United States District Court, D. Arizona
Honorable Bruce G. Macdonald, United States Magistrate Judge.
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.
11, 2011,  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 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).
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,
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.
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.
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.
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
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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.
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.
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.
Vocational Expert Cornelius Ford's
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,
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.
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. ...