United States District Court, D. Arizona
Honorable Bruce G. Macdonald United States Magistrate Judge
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.
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,
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.
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.
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.
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.
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.
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.
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.
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.
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
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].”
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
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
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.
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.
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.
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.
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)
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
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.
Vocational Expert Kathryn Atha's Testimony
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.
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.
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.
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.
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.