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Trujillo v. Berryhill

United States District Court, D. Arizona

September 21, 2017

Ubaldo Trujillo, Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.

          ORDER

          Honorable Bruce G. Macdonald, United States Magistrate Judge.

         Currently pending before the Court is Plaintiff's Opening Brief (Doc. 21). Defendant filed her Responsive Brief (“Response”) (Doc. 22), and Plaintiff filed his Reply Brief (“Reply”) (Doc. 23). Plaintiff brings this cause of action for review of the final decision of the Commissioner for Social Security pursuant to 42 U.S.C. § 405(g). 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.

         I. BACKGROUND

         A. Procedural History

         On July 11, 2011, [1] 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 April 30, 2008[2] due to headaches, anxiety, seizures, and head trauma. See Administrative Record (“AR”) at 11, 33-34, 72-77, 91-92, 114, 117, 187, 194, 219, 232. Plaintiff's date last insured is December 31, 2012. Id. at 11, 13, 76, 219, 228, 263, 294. The Social Security Administration (“SSA”) denied this application on November 10, 2011. Id. at 11, 71-73, 108-12. Plaintiff filed a request for reconsideration, and on January 12, 2012, SSA denied Plaintiff's application upon reconsideration. Id. at 11, 74-105, 113-20. On January 17, 2012, Plaintiff filed his request for hearing. Id. at 11, 121-22. On April 30, 2013, a hearing was held before Administrative Law Judge (“ALJ”) Myriam C. Fernandez Rice. AR at 11, 28-70. On August 7, 2013, the ALJ issued an unfavorable decision. Id. at 8-22. On October 11, 2013, Plaintiff requested review of the ALJ's decision by the Appeals Council, and on March 23, 2015, review was denied. Id. at 1-7. On May 28, 2015, Plaintiff filed this cause of action. Compl. (Doc. 1).

         B. Factual History

         Plaintiff was fifty-two (52) years old at the time of the administrative hearing and forty-nine (49) at the time of the alleged onset of his disability. AR at 33, 72-76, 91, 187, 194, 219, 263. Plaintiff has a ninth grade education and obtained a GED. Id. at 33, 72-75. Prior to his alleged disability, Plaintiff worked as a laborer, cement finisher, and floor hand. Id. at 33, 208-18, 222-30, 233, 277.

         1. Plaintiff's Testimony

         a. Administrative Hearing

         At the administrative hearing, Plaintiff testified that he is married, and his wife is on benefits. AR at 36-37. Plaintiff further testified that his wife had a stroke resulting in both mental and physical disability, and they tried to take care of one another. Id. at 37. Plaintiff has no other source of income. Id. at 36-37. Plaintiff is not supposed to drive due to his seizure condition, but does sometimes. Id. at 37. Plaintiff testified that he has trouble sleeping at night, and on a typical day he and his wife will read the Bible together, eat lunch, watch a movie or some television, eat supper, and get ready for bed. Id. at 37-38, 55. Plaintiff testified that both he and his wife do chores, such as cooking, cleaning, and grocery shopping. AR at 38. Plaintiff further testified that he cannot spend much time in a store to shop, because of his panic attacks. Id. at 47-49. Plaintiff testified that to accommodate this issue, he and his wife try to shop early or late in the day. Id. at 49. Plaintiff also testified that the few times that he and his wife have gone to see a movie, he could not comprehend what was happening on the screen. Id. at 50. Plaintiff testified that this happens when he watches movies or television at home, too. Id. at 54.

         During the hearing, Plaintiff had difficulty remembering the precise title of his last job as a laborer. AR at 33-34. Plaintiff testified that he was laid off in conjunction with having a seizure while walking down the stairs at work. Id. at 34, 42. Plaintiff further testified that he takes seizure medication, as well as medication for depression and anxiety, and headaches. Id. at 35-36, 53-54, 62. Plaintiff also testified that he can no longer work as a cement finisher, because he cannot read blueprints or do the necessary calculations, cannot pay sufficient attention, and he suffers from neck and back pain. Id. at 38-39, 56. Plaintiff's work as a cement finisher also involved supervising approximately ten (10) to twenty (20) people. Id. at 64-65. Plaintiff testified that he no longer uses drugs or alcohol, but does not remember when he last used. Id. at 39-40.

         Plaintiff further testified that his seizures had been controlled over the previous five (5) months, likely because of a change in his medication. AR at 40. Plaintiff testified that prior to that he would have seizures once or twice a week. Id. at 41. Plaintiff stated that he has grand mal seizures, which cause him to lose consciousness for approximately one (1) hour. Id. at 42-43. Plaintiff testified that having seizures at work made it so he could not do his job. Id. at 43. Plaintiff indicated that when he was a foreman taking breaks was a possibility; however, this is not an option for regular laborers. Id. at 44. Plaintiff further testified that despite the fact that his seizures are better controlled, they would still be a problem at work. AR at 45-46.

         Plaintiff also testified that he also suffers from anxiety and panic attacks. Id. at 46-47. Plaintiff further testified that when a panic attack occurs he suffers from dizziness, sweating, and a change in breathing. Id. Plaintiff testified that sometimes his panic attacks prevent him from sleeping. Id. at 48, 51. Plaintiff further testified that although the frequency of his panic attacks has been reduced by medication, they still occur. Id. at 50. Plaintiff also testified that he cannot sleep through the night, and will wake up after a couple of hours thinking that his world is going to end. AR at 51. Plaintiff testified that it takes a long time to go back to sleep after this occurs, and can take as long as an hour and a half to two (2) hours. Id. at 52. Plaintiff further testified that this affects his mood swings, and he often suffers from bad moods. Id. Additionally, Plaintiff described incidents at work resulting in fights, because he does not like to “take orders” from anyone. Id. at 57-58. Plaintiff also testified that he has trouble remembering things, such as conversations or activities. Id. at 56-57.

         Plaintiff testified that he suffers from daily headaches, but does not have a specific medication to treat them. AR at 58-59. Plaintiff takes Naproxen to treat both his headaches and his back. Id. at 59. Plaintiff further testified that he has had these headaches since being hit on the head with a tire iron. Id. at 59-60. Plaintiff also testified that previously some supervisors would allow him to take off from work when he had a headache, but others would be angry. Id. at 60.

         Plaintiff testified that his depression makes him feel like giving up. Id. at 61. Plaintiff further testified that he does not have any hobbies aside from reading the Bible, but his appetite is good. AR at 61-62. Plaintiff also testified that he has thought about taking his own life, and continues to have those thoughts. Id. at 62.

         b. Administrative Forms

         On July 20, 2011, Plaintiff completed a Function Report-Adult in this matter. He indicated that he lived with a friend, made his bed, water to the lawn, and cleaned up. AR at 241. On the same date, Plaintiff completed a Seizure History form. Id. at 243-45. Plaintiff described his seizures as feeling like electricity is flowing through his head and sometimes throughout his entire body. Id. at 243. Plaintiff stated that he has seizures once or twice per week, but does not remember the dates of his last three (3) seizures. Id. Plaintiff described a shocking feeling as the warning sign before the seizure begins. Id. During the seizure, Plaintiff passes out, loses control of his urine, and has been told that he shakes. AR at 243. Plaintiff indicated that his seizures usually occur at night and vary in length. Id. Plaintiff confirmed that he stares into space for short period of time without falling or shaking, and reported feeling lost and unable to remember anything after the seizure. Id. Plaintiff listed several seizure medications, including Carbamazepine, clonazepam, and trazodone, and indicated that he usually takes the medication as directed. Id. Plaintiff noted that it has been about two (2) years since he last used alcohol or drugs. Id. Plaintiff also indicated that he is seeking help from a psychologist. Id.

         Plaintiff also completed a Headache Questionnaire. AR at 246-52. Plaintiff testified that he has headaches once or twice a day that feel like the top of his head is going to explode. Id. at 246. Plaintiff described a sound “like a train whistle going off” occurring prior to or during the headaches, with the pain located on the top of his head and sometimes on his temples. Id. Plaintiff stated that he takes “lots and lots of Tylenol” and uses cold water to relieve the symptoms. Id. Plaintiff further indicated that stress makes the headaches worse, and they sometimes last all day. Id.

         Plaintiff stated that he does not get along with anyone and does not like people telling him what to do. AR at 247. Plaintiff further noted his anxiety and poor ability to handle stress or changes in routine. Id. Plaintiff also noted that he relies on glasses or contact lenses for reading. Id. Plaintiff indicated that he angers easily and does not like to socialize. Id. at 248. Plaintiff further indicated that he cannot hear very well, his eyesight has gotten “real bad, ” he is forgetful, he has trouble understanding, and cannot stand being around others. Id. Plaintiff also stated that he was having difficulty filling out the form. AR at 248. Plaintiff testified that he can concentrate for approximately thirty (30) minutes to one (1) hour, but has difficulty following instructions. Id.

         Plaintiff listed his previous activities as playing cards, fishing, and watching television. Id. at 249. Plaintiff stated that he was good at those things; however, now he loses interest quickly. Id. Plaintiff further stated that he speaks with his brother on the phone once a week, but does not go anywhere else on a regular basis. Id. Plaintiff testified that he needs to be reminded to go places, but does not need anyone to accompany him. AR at 249. Plaintiff stated that when he goes out he walks or rides in a car, but does not drive because he does not have a driver's license. Id. at 250.

         Plaintiff further stated that he shops in stores approximately twice per month for one (1) to two (2) hours for groceries. Id. Plaintiff also noted that he is able to pay bills, count change, and handle a savings account; however, he cannot use a checkbook due to a lack of funds. Id. Plaintiff testified that he needs reminders to take his daily medication. Id. at 251. Plaintiff prepares his own meals once or twice a day, making mostly sandwiches. AR at 251. Plaintiff testified that this meal preparation takes him approximately twenty (20) minutes. Id. Plaintiff also stated that he forgets about having the stove on. Id.

         Regarding household chores, Plaintiff testified that he makes his bed, takes the garbage out, and waters the lawn. Id. Plaintiff stated he performs these tasks daily and it takes him approximately four (4) hours to complete. Id. Plaintiff also indicated that he does not care for other people or pets. AR at 252. Plaintiff testified that he can no longer work cement or as a laborer. Id. Plaintiff also stated that he has trouble sleeping, and gets a shocking feeling when he tries to go to sleep which scares him. Id. Plaintiff did not indicate any problems with personal care, although he has trouble remembering where he puts things. Id.

         On December 19, 2011, Plaintiff filled out a second Seizure History form. Id. at 274-75. Plaintiff again described his seizures as feeling like electricity is flowing through his body, and also noted a loss of feeling in his left leg and arm and pressure in his head. AR at 274. Plaintiff noted that the frequency of his seizures vary, and could not remember the dates of his last three (3) seizures. Id. at 274. Plaintiff described feeling like electricity begins hitting his body prior to the onset of the seizure. Id. Plaintiff reported that he sometimes passes out during the seizure and sometimes loses control of his urine. Id. Plaintiff also stated that he was told that he shakes during the seizure. Id. Plaintiff further reported that the seizures occur both during the day and at night and vary in length. AR at 274. Plaintiff described feeling lost after having a seizure. Id. Plaintiff stated that he has used alcohol or street drugs in the past; however, does not remember the last time he used them, estimating it was approximately ten (10) years ago. Id. Plaintiff listed two seizure medications, Carbamazepine and lamotrigine, and indicated that he always takes the medication as directed. Id. Plaintiff apologized for his inability to remember things or events, noting that his brain does not work “that great.” Id. at 275. Plaintiff also stated that filling out these forms causes him a great deal of stress. Id.

         On the same date, Plaintiff completed a second Function Report-Adult in this matter. AR at 287-293. Plaintiff stated that he lived with his son. Id. at 287. Plaintiff described his daily activities as waking up; making his bed; taking a shower; sometimes eating; taking his medication; cleaning house if he is feeling well; feeding the dog; watching television; and keeping to himself. Id. Plaintiff noted that he does not care for any other people, but feeds his son's dog and gives her water. Id. at 288. Plaintiff stated that he is no longer able to work because of his illness. Id.

         Plaintiff described sometimes feeling jolts of electricity in his head, which affects his sleep. Id. Regarding personal care, Plaintiff stated that he is afraid of having a seizure in the shower; that it hurts to comb his hair; and that brushing his teeth sometimes gives him jolts of electricity in his head. AR at 288. Plaintiff indicated that he needs reminders for appointments and to take his medication. Id. at 289. Plaintiff stated that he prepares meals daily, consisting of mostly sandwiches, and taking approximately ten (10) to twenty (20) minutes to prepare. Id. Plaintiff further stated that he is scared to use the stove. Id. Plaintiff stated that he can vacuum, sweep, and mop. Id. These tasks take him approximately seven (7) hours, once per week, and he sometimes needs a reminder. AR at 289. Plaintiff stated that he goes outside approximately four (4) times per day. Id. at 290. Plaintiff further stated that he walks and rides in a car, but does not drive because he is afraid of having a seizure. Id. Plaintiff shops twice per month at the store for groceries, and the amount of time it takes varies. Id. Plaintiff indicates that he is unable to pay bills, count change, handle a savings account, or use a checkbook, because he does not have any money. Id.

         Plaintiff listed his previous activities as playing cards and watching television. AR at 291. Plaintiff stated that he watches television daily. Id. Plaintiff further stated that he speaks with family and attends church on Sundays. Id. Plaintiff noted that he does not need to be reminded to go places or need anyone to accompany him. Id. Plaintiff indicated that he has a bad temper and cannot work like he used to. Id. at 292.

         Plaintiff described his illness as affecting his ability to lift; stand; walk; sit; talk; see; remember; concentrate; understand; follow instructions; and get along with others. AR at 292. Plaintiff stated that he can walk approximately 500 yards before needing to stop and rest, and requires approximately ten (10) minutes of rest before he can resume walking. Id. Plaintiff indicated that he does not know how long he can pay attention, but sometimes can finish what he starts. Id. Plaintiff stated that he does not get along well with authority figures, and has been fired or laid off from a job because of problems with getting along with other people and not liking to be told what to do. Id. at 293. Plaintiff does not handle stress or changes in routine well, and suffers from anxiety. Id. Plaintiff stated that he does not currently use any assistive devices, but could use a cane. AR at 293.

         2. Vocational Expert Cornelius Ford's Testimony

         Mr. Cornelius J. Ford testified as a vocational expert at the administrative hearing. AR at 20, 63. Mr. Ford described Plaintiff's past work as a mining laborer, Dictionary of Occupational Titles (“DOT”) number 921.667-018, as heavy exertion, and a Specific Vocational Preparation (“SVP”) of 2, unskilled. Id. at 65. Mr. Ford described Plaintiff's other past work as a floor hand, DOT number 939.687-018, as a very heavy exertional level, SVP of 1, unskilled. Id. Mr. Ford described Plaintiff's third past work position as a cement mason, DOT number 869.664-014, as a heavy exertion level, SVP of 4, semiskilled. Id.

         The ALJ asked Mr. Ford about a hypothetical individual with the same age, education, and vocational background as Plaintiff. Id. The ALJ asked Mr. Ford to describe any past work or other work for such an individual, with the additional limitations of “not climb[ing] ladders, ropes or scaffolds; avoid[ing] all exposure to unprotected heights; . . . [and] limited to simple, routine repetitive tasks, only occasional interaction with the public and coworkers; . . . not [working] in an isolated work area; his interaction would be to be [sic] occasional but he should not be in a place where he's completely by himself[.]” Id. at 65-66. The ALJ further refined her hypothetical to request work in either the heavy or medium exertional level. AR at 66. Mr. Ford testified that such an individual would be able to do the job of laundry worker, DOT number 361.684-014, medium exertional level, and SVP of 2, unskilled. Id. Mr. Ford further testified that there are 367, 000 laundry worker jobs available in the national economy, and 4, 200 such jobs regionally. Id. Mr. Ford also testified to the availability of the job of hand packer, DOT number 920.587-018, medium exertional level, SVP of 2, unskilled. Id. Mr. Ford also testified that there are 377, 000 hand packer jobs available in the national economy and 1, 400 such jobs regionally. Id. Mr. Ford testified to a third example, an egg sorter, DOT number 732.686-010, medium exertional level, SVP of 1, unskilled. AR at 67. Mr. Ford further testified that there are 112, 000 egg sorter jobs available in the national economy and 1, 100 such jobs regionally. Id.

         The ALJ asked Mr. Ford a second hypothetical, assuming the same individual as in hypothetical number one, with the additional limitation that due to a combination of medical conditions and mental impairments this individual would be off task twenty (20) percent of the work day, and inquiring whether such limitations would be tolerated in employment. Id. Mr. ...


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