United States District Court, D. Arizona
Honorable Bruce G. Macdonald United States Magistrate Judge
pending before the Court is Plaintiff's Opening Brief
(Doc. 15). Defendant filed her Brief (“Response”)
(Doc. 20), and Plaintiff filed his Reply Brief
(“Reply”) (Doc. 21). Plaintiff brings this cause
of action for review of the final decision of the
Commissioner denying Social Security Disability Insurance
Benefits (“DIB”) and Supplemental Security Income
(“SSI”) disability benefits pursuant to 42 U.S.C.
§ 405(g) and 42 U.S.C. §1383(c)(3). The United
States Magistrate Judge has received the written consent of
both parties, and presides over this case pursuant to 28
U.S.C. § 636(c) and Rule 73, Federal Rules of Civil
Procedure. . . . . . .
13, 2012, Plaintiff filed a Title II application for Social
Security Disability Insurance Benefits (“DIB”),
as well as a Title XVI application for Supplemental Security
Income (“SSI”), alleging disability as of January
1, 1990 due to obstructive sleep apnea status post
uvulopalatopharyngoplasty, diverticulitis, diabetes,
inflammatory polyarthropathy, obesity, degenerative disc
disease of the lumbar spine, adjustment disorder with mixed
anxiety and depressed mood, borderline intellectual
functioning, and learning disorder. See
Administrative Record (“AR”) at 19, 21, 52, 70,
74, 76, 82, 86, 88, 96, 100-01, 104, 109, 113-14, 117,
198-200, 202-03, 218, 222, 227, 236, 253, 308.
Plaintiff's date last insured is September 30, 1990.
Id. at 21, 49, 70-71, 75, 87, 91, 100, 104, 109,
205, 243. The Social Security Administration
(“SSA”) denied these applications on October 11,
2012. Id. at 19, 68-93, 122-29. Plaintiff filed a
request for reconsideration, and on May 15, 2013, SSA denied
Plaintiff's applications upon reconsideration.
Id. at 19, 94-121, 131-36. On May 21, 2013,
Plaintiff filed his request for hearing. Id. at 19,
137-38. On February 28, 2014, a hearing was held before
Administrative Law Judge (“ALJ”) Laura Speck
Havens. AR at 19, 46-67. On May 8, 2014, the ALJ issued an
unfavorable decision. Id. at 16-33. On June 3, 2014,
Plaintiff requested review of the ALJ's decision by the
Appeals Council, and on July 24, 2015, review was denied.
Id. at 1-7, 13-14. On September 23, 2015, Plaintiff
filed this cause of action. Compl. (Doc. 1).
was forty-three (43) years old at the time of the
administrative hearing and nineteen (19) at the time of the
alleged onset of his disability. AR at 21, 32, 49-50, 68-71,
82, 94-96, 109, 175, 179, 205, 207, 243. Plaintiff has a high
school education through special education and attempted
approximately two (2) semesters of college. Id. at
51, 212, 295. Prior to his alleged disability, Plaintiff
worked briefly as a laborer in an automotive shop in 1996,
but otherwise has no work history. Id. at 31-32,
administrative hearing, Plaintiff testified that he received
a high school diploma through special education classes and
approximately two semesters of college. AR at 51, 61.
Plaintiff currently lives in an apartment with his mother,
who is disabled. Id. at 52-53. Plaintiff further
testified that he is able to dress and bathe himself and take
his medications, as well as do his own laundry, cooking, and
food shopping. Id. at 53- 54, 62. Plaintiff does not
have any hobbies, but watches television three (3) to four
(4) hours per day. Id. at 54. He walks approximately
ten (10) to fifteen (15) minutes at a time, and tries to
stretch to relieve his muscle pain. Id. at 54-55.
testified that he no longer has a driver's license,
because it has been suspended. AR at 55. Plaintiff further
testified that he had an accident where he fell asleep while
driving and hit a bus. Id. at 55-56, 63. Plaintiff
testified that he has problems keeping his food down, and
sometimes has trouble with decreased appetite. Id.
at 56-57. Plaintiff also testified that he sleeps
approximately three (3) to four (4) hours per night, and
wakes approximately every hour and forty-five (45) minutes.
Id. at 56-57. Plaintiff testified that some of his
medications, Celebrex and Plaquenil specifically, cause
stomach upset and gastrointestinal distress. Id. at
58-59. Plaintiff further testified that he sees his regular
doctor at least once per month, and his rheumatologist,
neurologist, and stomach specialist every six (6) to eight
(8) weeks. AR at 59.
testified that he can stand for ten (10) to fifteen (15)
minutes, and sit for thirty (30) to forty-five (45) minutes.
Id. Plaintiff further testified that he could pick
up ten (10) pounds using both hands. Id. Plaintiff
testified that he has pain all over, but his back and leg
pain is the worst. Id. at 60. Plaintiff also
testified that with medication, his pain level has decreased
to a five (5) out of ten (10) with ten (10) being the very
worst pain. Id.
testified that he is only able to write simple phrases, and
needed help filling out the disability forms. AR at 51-52,
61. Plaintiff further testified that he cannot read the
newspaper, but can perform simple addition and subtraction.
Id. at 52, 61. Plaintiff also testified that he has
difficulty staying focused or on task when directed to do
multiple things. Id. at 62. Plaintiff testified that
he is constantly overwhelmed due to anxiety, and because of
this likes to be alone. Id.
testified that he is most comfortable in a recliner or lying
in bed. Id. at 63. Plaintiff further testified that
he takes two (2) to three (3) hour naps every day, and will
fall asleep even while doing something. AR at 63-64.
Plaintiff also testified that his lupus causes him to lack
energy and be severely fatigued. Id. at 64.
Plaintiff testified that he no longer goes to church because
he cannot alternate between sitting and standing.
Id. at 65. Plaintiff also testified that his
migraine headaches are less frequent with medication, but he
still has them once or twice a month. Id. at 66.
These headaches last from an hour or two (2), to two (2) to
three (3) days. Id.
assistance, Plaintiff completed a Function Report-Adult in
this matter. AR at 217-26. Plaintiff stated that he is
“unable to hold a job due to learning
disability[.]” Id. at 217. He noted that cares
for his twin five (5) year old daughters and can take walks.
Id. at 218. Plaintiff indicated that he suffers from
sleep apnea. Id. Plaintiff further indicated that he
can perform his personal care without assistance, and cook
meals. Id. at 219. Plaintiff also stated that he can
perform household chores, and takes daily walks. AR at 220.
Plaintiff is also able to shop weekly. Id. at
220-21. Plaintiff can pay bills and talks to others
approximately once per week. Id. at 221.
ability to lift, squat, and bend is limited, and he can walk
for approximately one quarter (1/4) of a mile before needing
to stop and rest. Id. at 222. Plaintiff can pay
attention for approximately thirty (30) minutes, but is
unable to understand written instructions and is very limited
in his ability to follow spoken instructions. Id.
Plaintiff has difficulty handling stress and changes in
routine. AR at 223.
states that his biggest problem is his inability to under
written or verbal instructions and his learning disability.
Id. at 224. Plaintiff further states that his
diabetes is limiting his ability to control his depression.
Vocational Expert Report
did not call a vocational expert to testify at the hearing.
February 14, 2014, Plaintiff was evaluated by Philip Shapiro,
M.S., C.V.E., C.R.C., at counsel's behest. AR at 29, 438.
Mr. Shapiro stated that Plaintiff had been “referred
for a vocational evaluation to assess the client's
aptitudes, abilities and physical tolerances in a variety of
occupational areas in order to provide information in terms
of vocational potential for use in Mr. Daniel's Social
Security disability hearing.” Id. at 438. Mr.
Shapiro reviewed Plaintiff's medical history as narrated
by Plaintiff, as well as his educational and employment
history. Id. at 438-40. Plaintiff indicated that he
had earned a high school diploma through special education
classes, but did not have success in college. Id. at
Shapiro administered several academic achievement tests to
Plaintiff. Id. at 440. Plaintiff obtained a score at
the 6.3 grade level for the Vocabulary subtest of the
Nelson-Denny Reading test. AR at 441. Mr. Shapiro indicated
that this score is below average for Plaintiff's age
group. Id. On the untimed SRA Reading Index,
Plaintiff showed proficiency in the Picture-Word Association,
Word Decoding, and Phrase Comprehension subtests.
Id. Mr. Shapiro stated that “[t]hese results
indicate the client has the ability to read and understand
simple sentences, depending on knowing the meaning of the
preposition.” Id. On the Wide Range
Achievement Test (“WRAT”) Spelling subtest,
Plaintiff scored at the 2.8 grade level. Id. Mr.
Shapiro noted that this score is considered deficient or
below average for Plaintiff's age group. AR at 441.
WRAT Math Computation subtest, Plaintiff scored at the 4.8
grade level. Id. Mr. Shapiro noted that this would
be considered borderline or below average for his age group.
Id. The test confirmed that Plaintiff is able to do
simple addition and subtraction, multiplication, and division
of whole numbers. Id. Mr. Shapiro opined that these
test results indicate that Plaintiff “has limited
functional use of reading and basic arithmetic skills for use
in a variety of entry level, unskilled occupational
Shapiro reported Plaintiff scored in the average range of the
Standard Raven Progressive Matrices Test, and opined that
Plaintiff has the “potential for occupations requiring
nonverbal problem-solving skills of an abstract
nature.” AR at 442. Mr. Shapiro further reported that
Plaintiff scored below average on the Oral Directions Test
(“ODT”), but that Plaintiff “demonstrated
the ability to follow simple verbal instructions with
demonstrations.” Id. Mr. Shapiro also reported
that Plaintiff “scored in the below average range for
fine finger and hand dexterity.” Id. Mr.
Shapiro stated that this result indicates that Plaintiff
“has poor potential for jobs requiring the rapid
manipulation of small tools, instruments, and objects, such
as assembly line work or jobs requiring a quota
system.” Id. Mr. Shapiro stated that Plaintiff
“scored in the below average range for time and in the
average range for errors” on the Minnesota ...