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Turchetta v. Commissioner of Social Security Administration

United States District Court, D. Arizona

October 30, 2017

Pauline R. Turchetta, Plaintiff,
v.
Commissioner of Social Security Administration, Defendant.

          ORDER

          DAVID K. DUNCAN UNITED STATES MAGISTRATE JUDGE.

         Pauline R. Turchetta appeals from the denial of her application for benefits by the Social Security Administration. This Court has jurisdiction pursuant to 42 U.S.C. § 405(g) and, with the parties' consent to Magistrate Judge jurisdiction, pursuant to 28 U.S.C. § 636(c). Turchetta argues that she is entitled to benefits because the ALJ decision is not supported by substantial evidence and contains legal errors. (Doc. 20) As detailed below, the Court agrees.

         Background

         Turchetta's past relevant work was as a binding and cutting machine operator, digital copy machine operator, in customer service, and as a supervisor. (Tr. 64-65) Her alleged onset date of disability was December 1, 2012. (Tr. 20)

         Administrative Hearing.

         On January 26, 2015, ALJ Christa Zamora conducted a hearing where Turchetta and vocational expert David Janus testified. (Tr. 41-68) Turchetta testified that that she had “constant pain” from a tear in her stomach and a bad hernia, arthritis in her hands and lower back, fibromyalgia, “tingling” in her hands and feet from her diabetes, and fatigue. (Tr. 47, 61) She also testified that she was missing a portion of her left lung and had trouble breathing. (Tr. 47) To manage her valley fever symptoms, she stays inside on “bad air days.” (Tr. 59) She testified that her mental health symptoms had recently increased in intensity and she was taking anxiety and depression medications. (Tr. 58-59) She testified that she goes to a doctor appointment at least twice a week. (Tr. 54)

         Turchetta testified that her daughter and her daughter's boyfriend drove her to California in 2012 and they stopped hourly to accommodate her pain. (Tr. 49, 52-53) She testified that she has not traveled since then. (Tr. 48-49) She testified that she tries to walk as much as she can but can only manage a “couple blocks.” (Tr. 58)

         Turchetta further testified that she had used marijuana once since 2012. (Tr. 53) She stated it was recreational but also that her doctors encouraged her to end her use of pain medication. (Tr. 54)

         Turchetta testified that she had surgery to repair a tear in her left shoulder and that a similar surgery for her right shoulder had been scheduled. (Tr. 47) She also has hepatitis C and chronic kidney disease. (Tr. 50) She was experiencing undiagnosed vein problems and, at the time of the hearing, had been undergoing additional testing at the direction of a cardiologist. (Tr. 50-51) She had also had two carpal tunnel surgeries which improved her pain but she was still experiencing weakness in her hands, numbness in her fingertips, and problems turning a doorknob. (Tr. 55) Turchetta testified that she could sit for 15-20 minutes at a time before she needed to stand up or lie down. (Tr. 48) She further testified that she could not lift more than five pounds and could not bend over. (Tr. 55, 57)

         Vocational expert David Janus testified. (Tr. 63-67) The ALJ asked VE Janus about a hypothetical person with Turchetta's background who was limited to medium exertion with “occasional climbing ramps and stairs, ladders, ropes, and scaffolds; occasional balance, heights, and occasional to [sic] moving machinery; frequent handling and fingering; frequent overhead reaching; and frequent exposure to dusts, fumes, and pulmonary irritants.” (Tr. 64) VE Janus responded that all past work could be performed. (Tr. 64) It appears that the ALJ presented this hypothetical based on the limitations proposed by the State Agency medical consultants. (Compare Tr. 30 with Tr. 64) If the limitations were modified to “light exertional, ” the copy machine operator and customer service positions could still be performed. (Tr. 64) If limitations were further modified so that the handling, fingering, and reaching categories were limited to occasional, then past work would not be possible. (Tr. 65) Instead, the only position available would be a counter clerk. (Tr. 65-66) That position would permit a maximum of ten percent allowance for being off-task, less than one absence per month, and would require standing six of eight hours a day. (Tr. 66-67)

         ALJ Decision. The ALJ's decision tracked the requisite five step process. First, the ALJ found that Turchetta had not engaged in any substantial gainful activity since her alleged onset date. (Tr. 23) Next, the ALJ found that Turchetta had the following severe impairments: carpal tunnel syndrome, osteoarthritis of the hand, left de Quervaines, rotator cuff syndrome in both shoulders, valley fever, cervical lymphadenopathy on the left, and obesity. (Tr. 23) As relevant here, the ALJ found that Turchetta's fibromyalgia, spondylosis, radiculopathy, and diabetic peripheral neuropathy were not severe. (Tr. 23-26). The ALJ found that none of Turchetta's severe impairments met or medically equaled the severity of a listed impairment. (Tr. 26)

         The ALJ found that Turchetta's “statements concerning the intensity, persistence and limiting effects of [her] symptoms [we]re not entirely credible.” (Tr. 28) The ALJ gave little weight to the Third Party Function Report submitted by Turchetta's mother and little weight to the opinions provided by Turchetta's treating provider, Renee Ostin, FNP-C. (Tr. 27, 29) Instead, the ALJ gave significant weight to the State Agency medical consultants. (Tr. 30)

         The ALJ concluded that Turchetta could perform her past relevant work as a digital machine operator, customer service representative, and supervisor. (Tr. 32) Accordingly, the ALJ found that Turchetta did not meet the Social Security Act's definition of disability. (Tr. 32)

         Standard ...


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