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Railey v. Berryhill

United States District Court, D. Arizona

March 26, 2018

Melissa Railey, 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. 17). Defendant filed her Brief (“Response”) (Doc. 31), and Plaintiff filed her Reply Brief (“Reply”) (Doc. 32). 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). Compl. (Doc. 1). 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 22, 2011, Plaintiff filed a Title II application for Social Security Disability Insurance Benefits (“DIB”) alleging disability as of November 2, 2010 due to chronic back pain, diabetes, cough, obesity, asthma, and status post left knee surgery. See Administrative Record (“AR”) at 13, 15, 21, 28, 52-53, 61, 65-67, 74, 137, 160, 162, 165, 183, 202. Plaintiff's date last insured is March 31, 2013. Id. at 15, 28, 53, 66, 160. The Social Security Administration (“SSA”) denied this application on December 8, 2011. Id. at 13, 52-64, 78-81. Plaintiff filed a request for reconsideration, and on May 17, 2012, SSA denied Plaintiff's application upon reconsideration. Id. at 13, 65-77, 91- 94. On May 21, 2012, Plaintiff filed her request for hearing. Id. at 13, 95. On January 9, 2013, a hearing was held before Administrative Law Judge (“ALJ”) Lauren R. Mathon. AR at 13, 26-51. On February 1, 2013, the ALJ issued an unfavorable decision. Id. at 10-21. On March 28, 2013, Plaintiff requested review of the ALJ's decision by the Appeals Council, and on July 10, 2014, review was denied. Id. at 1-3, 6-7.

         On August 29, 2014, Plaintiff filed this cause of action. Compl. (Doc. 1). Plaintiff filed her Opening Brief (Doc. 17) on April 11, 2015. Defendant filed a Stipulated Motion to Remand (Doc. 21), which was granted by the Court. See Order 6/17/2015 (Doc. 24). Upon remand the Appeals Council again denied review, and the Parties moved to reopen this cause of action. See Stipulated Mot. to Reopen (Doc. 26). Defendant filed her response brief upon reopening of the case, and Plaintiff subsequently replied.

         B. Factual History

         Plaintiff was thirty-eight (38) years old at the time of the administrative hearing and thirty-six (36) at the time of the alleged onset of her disability. AR at 19, 31, 52-53, 61, 65-66, 74, 137, 160, 183, 202. Plaintiff graduated from high school and completed approximately one (1) year of college. Id. at 19, 34-35, 76, 165. Prior to her alleged disability, Plaintiff worked as a medical assistant, phlebotomist, kids club advisor, teacher, and cashier. Id. at 35, 62-63, 75, 166, 172-79.

         1. Plaintiff's Testimony

         a. Administrative Hearing

         At the administrative hearing, Plaintiff testified that she lives with her children, ages fourteen (14), eleven (11), and two (2). AR at 31-32. Plaintiff further testified that she feeds and clothes her two (2) year old, as well as spends time with him, including watching television. Id. at 32. Plaintiff also testified, however, that she seldom does his laundry, and rarely cleans the house or cleans his room. Id. at 32-33. Plaintiff testified that she does grocery shop. Id. When asked why she began adoption of a newborn at the time that she became disabled, Plaintiff explained that the child was her great-nephew, and there were no other relatives with a clean background able to take him in. Id. at 37- 38. Plaintiff further explained that her extended family gave her more help and support during that time. AR at 38.

         Plaintiff testified that the older children walk to school, and that she is able to attend meetings at school for them. Id. at 33. Plaintiff further testified that she rarely takes the children anywhere on the weekend. Id. Plaintiff also testified that the older children have medical conditions requiring her to monitor their daily medication. Id. at 33-34. Plaintiff noted that the older children help with the household chores. Id. at 34.

         Plaintiff testified that she has a high school education, plus one (1) year of college. AR at 34. Plaintiff further testified that she supported herself since her alleged onset date by receiving cash assistance, food stamps, and child support. Id. at 35. Plaintiff stated that she drives a maximum of approximately three (3) days per week. Id. Plaintiff also testified that she has not traveled anywhere beyond Tucson since her alleged onset date. Id.

         Plaintiff testified that her last job was in October of 2008, working as a medical assistant and phlebotomist. Id. Plaintiff further testified that she had to stop working because of her chronic cough, which prohibited her from working with patients. AR at 35. Plaintiff said that she had applied for medical assistant positions since then, despite her cough, because it was the only position for which she was trained. Id. at 35-36. Plaintiff also stated that she had also worked as a certified nurse's assistant, as a childcare worker, and in retail. Id. at 36. Plaintiff testified that she can stand for approximately five (5) to ten (10) minutes at a time, and can walk for approximately one half of a block before needing to rest. Id. at 36. Plaintiff further testified that walking and standing results in shortness of breath and severe lower back pain. Id. at 37. Plaintiff also testified that she could sit in a chair for approximately three (3) to five (5) minutes before needing to change positions, but noted that her chronic cough was an impediment to performing any work on the telephone. AR at 37.

         Plaintiff testified that she sees Drs. Sakali and LaHood, asthma and allergy specialists, for treatment of her cough. Id. at 38-39. Plaintiff indicated that her treatment originally involved allergy shots; however, she was allergic to the shots, so she was prescribed two (2) different inhalers, a nebulizer, and a nasal spray. Id. at 39. Plaintiff described Nurse Practitioner McLeod as her primary care physician, and confirmed that she was still treating with Drs. Raysford and Gorman. Id.

         b. Administrative Forms

         Plaintiff completed a Function Report-Adult in this matter. AR at 165-71. Plaintiff described her medical conditions as “[a]rthritis in lower back, asthma, allergies, diabetes, etc.” Id. at 165. Plaintiff noted her last day of work as October 1, 2007, and attributed her stopping work to her medical conditions. Id. Plaintiff reported her highest grade of school completed as one (1) year of college. Id. Plaintiff listed her prior work history as including medical assistant, child care, certified nursing assistant, cashier, and beauty advisor. Id. at 166. Plaintiff reported her medications as Advair Diskus, altrovent inhaler, Folic acid, Glimepiride, Hydroxyzine pamoate, Intal inhaler, LANTUS/Insulin, Metformin, omeprazole, and pain medication. AR at 168.

         Plaintiff also completed an Exertional Daily Activities Questionnaire. Id. at 180- 82. Plaintiff reported that she lived in a house with her children. Id. at 180. Plaintiff described her average day as waking up, getting her children up for school, eating breakfast, taking her medication, and waiting for a family member of friend to come over and help her with the baby, laundry, and cleaning. Id. Plaintiff also stated that during a typical day she would take a nap for approximately thirty (30) minutes. Id. Plaintiff further reported that she would help her children with their homework, make dinner when she could, watch television or read with the kids, try to walk outside, come home, take a shower, and try to get some rest. AR at 180.

         Plaintiff described her symptoms to include “[s]hortness of breath, when [she] walk[s] a short distance[;] [b]ack pain when[] [she] walk[s], sit[s], lay[s] down, [a] lot of time it takes [her] about 10-15 min[utes] to get out of the bed[;] [a]llergies stayed flarred [sic] up witch [sic] is what causes [her] to have a crhonic [sic] cough, and make[s] it harder on [her] asthma.” Id. Plaintiff stated that she “tr[ies] to walk [a]bout a block before [she] [is] short of breath[, ] [and] [it] takes [her] about 30 min[utes] to go around the block[.]” Id. Plaintiff further stated that she “can lift thigs [sic] that hardly have any weight to [them][, ] [and] [] can carry the baby back pack[, ] [but] lifting a gallon [of] milk can most of [the] time make the pain in [her] back sharper[.]” Id. at 181. Plaintiff indicated that she can “sometimes” perform household chores, including folding laundry while seated, and cooking meals. Id. Plaintiff noted, however, that standing during cooking “cause[s] excruciating pain in [her] back[.]” AR at 181. Plaintiff also reported that she has difficulty finishing housework and chores, because she “can do very little before [] get[ting] shortness of breath and [her] back [] hurting excruciating[ly].” Id.

         Plaintiff stated that she does drive, but can only do so for approximately twenty (20) minutes, “before [her] back starts hurting really ba[d].” Id. Plaintiff noted that she tries to walk, but can only go about “a block before [she] [is] out of breath [and her] back hurting[.]” Id. Plaintiff reported that her ability to do chores or activities has changed since becoming disabled. Id. Further, Plaintiff indicated that she sleeps approximately three (3) to four (4) hours per night, and requires periodic rests or naps during the day, “[d]epending on the sharpness of pain and shortness of breath.” AR at 181. Plaintiff listed her medication to include Rena-vite, B-12, omeprazole, Vitamin D3, codeine sulfate, Balclofen, and ADIPEX-P. Id. at 182.

         With her appeal forms, Plaintiff completed a check box form indicating her abilities. Id. at 200. Regarding caring for pets or other people, Plaintiff indicated that she could not carry heavy bags of food; bend down to feed and water the pets; pick up her children; or play with them of the floor. Id. Plaintiff further indicated that she could pick up toys and care for other people “only sometimes.” Id. Regarding her personal care, Plaintiff reported that she never slept well, and could “only sometimes” button and zip her clothing; put on socks and shoes; stand in the shower; wash her back, feet, and hair; and clean herself after using the toilet. AR at 200. Regarding cooking, Plaintiff indicated that she could not stand for long periods of time in front of the stove or sink; reach up high, or bend down low; or lift and carry heavy, hot items. Id. Plaintiff noted that she could understand and follow recipes or other written instructions; use knives to prepare food; and wash dishes without dropping and breaking them “only sometimes.” Id. Regarding cleaning her living space, yard, and clothes, Plaintiff reported that she could never use a broom, mop, and vacuum cleaner; clean more than one room at a time without resting; move furniture; carry heavy laundry baskets; lift wet clothes out of the washer; or bend to put clothes in the dryer. Id.

         Plaintiff reported that regarding driving and getting around she could drive herself to appointments or without limitations only sometimes, and could never sit for long periods of time; take a trip without stopping frequently to get out of the car; or take a bus by herself. Id. at 201. Regarding shopping for groceries, Plaintiff indicated that she could never walk for long periods of time without resting; take heavy bags out of the car and load them into the car; carry heavy bags into the house and put the things away; handle lots of people around her; or stand in line for long periods of time. AR at 201. Additionally, Plaintiff indicated that she could only sometimes get up and walk again after resting just a few minutes. Id. In addressing cognitive and emotional problems, Plaintiff reported that she could only sometimes remember when to pay the bills; remember her appointments; follow spoken instructions; pay attention or concentrate; always understand what is going on; finish things that she started; handle changes in routine; and accepting criticism. Id. Plaintiff reported not being able to do her favorite hobbies or use her hands to type for long periods of time, and only sometimes able to use her hands to pick up and use small items. Id. Finally, Plaintiff noted that she could no longer do the social activities that she used to enjoy or go places by herself, and only sometimes gets along with people. Id.

         Additionally, Plaintiff completed a Work History Report. AR at 172-79. Plaintiff listed her jobs prior to the alleged onset of her disability to include medical assistant/phlebotomist, beauty advisor, kids club advisor, teacher, cashier, crossing guard, and bus monitor. Id. at 172. Plaintiff reported that as a medical assistant/phlebotomist she would “greet patients[;] take vitals[;] take or assist [patient] to assigned room[;] collect history notes[;] give [patient] shots as request[ed] by physician[;] assist [doctor] in minor surgeries[;] [and] draw blood [for lab work][.]” Id. at 173. Plaintiff further reported that this job required machines, tools, or equipment; technical knowledge or skills; and that she wrote or completed reports. Id. Plaintiff also reported that she walked, stood, or stooped, for approximately eight (8) hours per day. Id. Plaintiff indicated that she also occasionally lifted patients onto the table, and that she also carried boxes of supplies from the supply room to the patient rooms. AR at 173. Plaintiff noted that the heaviest weight she lifted was fifty (50) pounds, and she frequently lifted less than ten (10) pounds. Id.

         Plaintiff reported that as a beauty advisor she performed customer service, ran a cash register, and set up displays. Id. at 174. Plaintiff further reported that in this position she used machines, tools, or equipment; technical knowledge or skills; and wrote or completed reports. Id. Plaintiff also reported that in this position she walked; stood; kneeled; crouched; crawled; handled big objects; and stooped for at least half her work day. Id. Plaintiff indicated that in addition to working the cash register, she packaged products, restocked shelves, and retrieved products for customers. Plaintiff reported that the heaviest weight she lifted was fifty (50) pounds, and she frequently lifted less than ten (10) pounds. AR at 174.

         Plaintiff reported that as a kids club advisor she provided coordinated activities and projects for children, as well as played with them and maintained a safe environment for them while their parent worked out at the fitness club. Id. at 175. Plaintiff described her job as requiring the use of machines, tools, or equipment; technical knowledge or skills; and writing or completing reports. Id. Plaintiff further reported the job required her to walk; stand; sit; stoop; kneel; crouch; crawl; handle both large and small objects; and reach. Id. In this position, Plaintiff regularly lifted infants and toddlers. Id. Plaintiff reported that in this position the heaviest weight she lifted was fifty (50) pounds, and she frequently lifted twenty-five (25) to fifty (50) pounds. AR at 175.

         Plaintiff described her position as a teacher as “car[ing] for and teach[ing] children and toddlers, prep[aring] them for kindergarten[.]” Id. at 176. Plaintiff noted that she worked with children between two (2) and five (5) years of age, and that this work also required her to potty train some children. Id. Plaintiff reported that this job required the use of machines, tools, or equipment; technical knowledge or skills; and writing or completing reports. Id. Plaintiff indicated that the job required her to walk; stand; sit; stoop; crouch; handle, grab or grasp both large and small objects; and reach. Id. Plaintiff reported that she carried toddlers, as well as toys, books, tables, and other equipment on a daily basis. AR at 176. Plaintiff stated that the heaviest weight she lifted was approximately fifty (50) pounds, and that she frequently lifted between twenty-five (25) and fifty (50) pounds. Id.

         Plaintiff described her position as a cashier as taking customer orders; collecting money for those orders; preparing meals; stocking items; and cleaning, including sweeping and mopping the dining area, cleaning windows, and cleaning restrooms. Id. at 177. Plaintiff reported that this job required the use of machines, tools, or equipment; technical knowledge or skills; and writing or completing reports. Id. Plaintiff further reported that the job required her to walk; stand; stoop; kneel; crouch; reach; and handle small objects frequently and large objects only occasionally. Id. Plaintiff noted that she lifted meals, sometimes delivering them to the customer's table; carried large tea dispenser from the lobby to the back of the restaurant; and carried frozen food items from the walk-in freezer to the cooking area. AR at 177. Plaintiff indicated that the heaviest weight she lifted was approximately twenty (20) pounds, and that she frequently lifted ten (10) pounds or less. Id.

         Plaintiff described her position as a cashier, stocker, and beauty advisor as running the cash register, stocking items, performing an inventory, revising shelves, and customer service. Id. at 178. Plaintiff reported that this position required the use of machines, tools, or equipment; technical knowledge or skills; and writing or completing reports. Id. Plaintiff also reported that the job required her to walk, stand, and stoop frequently. Id. Plaintiff noted that she was also required to kneel, crouch, crawl, reach, and handle large and small objects, with varying frequency. AR at 178. Plaintiff indicated that she was required to carry items to the register or move them to other areas of the store. Id. Plaintiff reported the heaviest weight she lifted as fifty (50) pounds, and that she frequently lifted twenty-five (25) pounds or less. Id.

         2. Vocational Expert Kathryn Atha's Testimony

         Ms. Kathryn A. Atha testified as a vocational expert at the administrative hearing. AR at 13, 40-50. Ms. Atha described Plaintiff's past work in a retail store as a beauty advisor as a salesperson of cosmetics and toiletries, Dictionary of Occupational Titles (“DOT”) number 262.357-018, as light work, semi-skilled, and a Specific Vocational Preparation (“SVP”) of 4. Id. at 40. Ms. Atha described Plaintiff's past work as a retail sales clerk, DOT number 290.477-014, light work, and an SVP of 3. Id. Ms. Atha described Plaintiff's past work of a nurse assistant, DOT number 355.674-014, as medium work, SVP of 4, and semi-skilled. Id. at 41. Ms. Atha described Plaintiff's past work of medical assistant as DOT number 079.362-010, light work, SVP of 6, and skilled, and phlebotomist as DOT number 079.364-022, also light work, and an SVP of 3. Id. Ms. Atha described Plaintiff's past work as a child daycare center worker as DOT number 359.677-018, light work, semi-skilled, and an SVP of 4. AR at 41. Ms. Atha also discussed Plaintiff's past work as a school crossing guard and school bus monitor; however, neither of these were full-time employment. Id. at 41-43.

         The ALJ asked Ms. Atha about a hypothetical individual with the same age, education, and vocational background as Plaintiff. Id. at 43. The ALJ then asked Ms. Atha to describe any past work or other work for such an individual, with the additional limitations of being able to “lift and/or carry 50 pounds occasionally, 25 pounds frequently; can stand and/or walk six hours in an eight hour day; postural limitations are never climb ladders, ropes, scaffolds; can frequently climb ramps, stairs, balance, stoop, kneel, crouch and crawl[, ] [a]nd environmental limitations are avoid concentrated exposure to cold, heat, vibration, fumes, odors, dust, gases, poor ventilation[, ] and hazards.” Id. at 43-44. Ms. Atha testified that such an individual would be able to do the jobs represented by Plaintiff's past relevant work. Id. at 44. The ALJ posed another hypothetical encompassing the previous one, but with the additional limitation of light work. AR at 44. Ms. Atha testified that all of Plaintiff's past relevant work could be performed, with the exception of nurse assistant. Id. The ALJ then modified the light work limitation to sedentary work. Id. Ms. Atha testified that such an individual could work as an appointment clerk, DOT number 237.367-010, semi-skilled, an SVP of 3, and sedentary. Id. Ms. Atha also indicated that a receptionist, DOT number 237.367-0368, an SVP of 4, and sedentary, would be available to such an individual. Id. at 44-45.

         The ALJ also re-asked Ms. Atha each hypothetical, but included the additional limitation on avoiding working with the public. AR at 45-47. For medium exertional level jobs, Ms. Atha testified that Plaintiff could work as a kitchen helper, DOT number 318.687-010, with an SVP of 2. Id. at 45-46. Ms. Atha also testified that Plaintiff could be a warehouse worker, DOT number 922.687-058, medium work, with an SVP of 2. Id. at 46. Regarding possible jobs at the light exertional level, again avoiding the public, and with all prior restrictions, Ms. Atha testified that Plaintiff could work as a hotel maid, DOT number 323.687-014, unskilled, with an SVP of 2, or as a production assembler, DOT number 706.687-010, with an SVP of 2. Id. For such a hypothetical individual, but limited to sedentary work and avoiding the public, Ms. Atha testified that Plaintiff could work as a toy stuffer, DOT number 761.685-014, with an SVP of 2, or as a nut sorter, DOT number 521.687-086, also with an SVP of 2. Id. at 47.

         The ALJ posed a final question regarding possible work for a hypothetical individual with the same age, education, and vocational background as Plaintiff, and the “[a]bility to stand during an eight hour period, two hours or less; ability to walk at one time before needing to stop, less than one block; never carry 10 pounds; never carry 20 pounds[, ] . . . [and sitting for] 15 minutes to 30 minutes or less[, ] [but] . . . [without a] capacity maximum during the day of sitting.” AR at 48. Ms. Atha testified that she needed more information in order to form an opinion regarding such an individual. Id.

         Plaintiff's counsel asked Ms. Atha about the availability of jobs for a hypothetical person as described in the ALJ's final hypothetical, but with the limitation that such an individual could “sit for the entire day, but she can sit at one time for less than 15 to 30 minutes and then she needs to take a five minute[] break and then go back to sitting, but primarily she'll be sitting.” Id. at 49. Ms. Atha testified that the sedentary, unskilled jobs of toy stuffer and nut sorter would be available to such a person. Id. at 49-50. Ms. Atha further testified that her testimony was consistent with her personal training and experience, as well as her interpretation of the Dictionary of Occupational Titles. Id. at 50.

         3. ...


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