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Fullick v. Berryhill

United States District Court, D. Arizona

March 26, 2018

Teresa R. Fullick, Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.

          ORDER

          Hon. Bruce G. Macdonald, United States Magistrate Judge

         Currently pending before the Court is Plaintiff's Opening Brief (Doc. 12). Defendant filed her Brief (“Response”) (Doc. 13), and Plaintiff filed her Reply Brief (“Reply”) (Doc. 14). 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 April 4, 2012, Plaintiff filed a Title II application for Social Security Disability Insurance Benefits (“DIB”) alleging disability as of February 3, 2012 due to fibromyalgia syndrome, chronic fatigue syndrome, diabetes mellitus, anxiety/panic attacks, depression, multiple neuropathies, post-traumatic stress disorder, trigeminal neuralgia, and fatigue immune deficiency syndrome. See Administrative Record (“AR”) at 23, 110-11, 123, 143, 148. Plaintiff's date last insured is September 30, 2017. Id. at 21, 23, 110, 123, 275, 304. The Social Security Administration (“SSA”) denied this application on November 13, 2012. Id. at 21, 109-21, 143-46. Plaintiff filed a request for reconsideration, and on June 6, 2013, SSA denied Plaintiff's application upon reconsideration. Id. at 21, 122-39, 148-50. On July 26, 2013, Plaintiff filed her request for hearing. Id. at 21, 151. On July 31, 2014, a hearing was held before Administrative Law Judge (“ALJ”) Larry E. Johnson. AR at 21, 83-108. On November 21, 2014, the ALJ issued an unfavorable decision. See Id. at 21. Plaintiff did not seek review of this decision, but rather requested that the case be reopened due to a potential issue regarding her name, as well as new and material evidence including treating source testimony. Id. at 21, 181-88, 328-31. Plaintiff's request was granted and a supplementary hearing was held before the ALJ on August 6, 2015. Id. at 21, 38-82, 322. On December 15, 2015, the ALJ issued a second unfavorable decision. Id. at 18-30. On December 22, 2015, Plaintiff requested review of the ALJ's decision by the Appeals Council, and on December 21, 2016, review was denied.[1] AR at 1-3, 7-17. On February 2, 2017, Plaintiff filed this cause of action. Compl. (Doc. 1).

         B. Factual History

         Plaintiff was fifty-six (56) years old at the time of the first administrative hearing, fifty-seven (57) at the time of the second administrative hearing, and fifty-four (54) at the time of the alleged onset of her disability. AR at 21, 23, 77, 109-11, 122-24, 176, 206, 235, 248, 275, 304, 313, 328. Plaintiff graduated from high school. Id. at 109, 122, 264. Prior to her alleged disability, Plaintiff worked as a medical assistant, certified caregiver, food preparer, and security officer. Id. at 77, 87-91, 264, 285-91.

         1. Plaintiff's Testimony

         a. Administrative Hearing

         i. July 31, 2014

         At the administrative hearing, Plaintiff testified that her last position involved taking care of homebound individuals. AR at 86. Plaintiff further testified that she only worked approximately eight (8) hours per week in this position, because of her fatigue. Id. at 87. Plaintiff also testified that her last full-time position was as a medical assistant. Id. at 87-88. Plaintiff testified that she left that position due to downsizing; however, Plaintiff believes that it was actually due to her fatigue. Id. at 89. Plaintiff's testimony regarding her past work consistently noted issues with her energy levels and fatigue. Id. at 87-91.

         Plaintiff testified that she is tired when she goes to bed at night, does not sleep well, and then wakes up very fatigued. AR at 93. Plaintiff further testified that she has a lot of pain. Id. at 93-94. Plaintiff stated that she can do household tasks for approximately fifteen (15) minutes, but then has to return to bed. Id. at 94. Plaintiff further stated that in order to accomplish anything, she requires constant breaks throughout the day. Id. Plaintiff testified that some days are better than others, and on bad days she might spend the entire day in bed. Id.

         Plaintiff further testified that she has trouble with concentration, noting that she has trouble focusing, and indicated that her medications contribute to feeling like she is in a fog or “loopy.” AR at 95. Plaintiff described her pain as a generalized, constant, dull ache in both her muscles and joints, which tends to migrate around her body. Id. at 96. Plaintiff stated that she also has intermittent numbness in her thighs, as well as pains in her knees, ankles, and feet. Id. at 96-97. Plaintiff also testified that the numbness is a result of neuropathies. Id. at 97-98.

         Plaintiff testified that she does not have any hobbies, finds reading difficult, and cannot do any housework or exercise. Id. at 94-95, 100. Plaintiff further testified that she had to stop working because of the physical nature of her work coupled with her constant fatigue. AR at 101-02. Plaintiff also testified that she suffers from severe anxiety/panic attacks and depression. Id. at 102.

         ii. August 6, 2015

         Plaintiff again testified that her previous employment involved lifting and moving patients. Id. at 77. Plaintiff also stated that she had only spent approximately ten (10) to fifteen (15) minutes with Consultative Examiner Jeri Hassman, M.D. Id. Plaintiff further testified that she does not believe that she was capable of working regular, eight (8) hour day from her alleged onset date of February 3, 2012. Id. Plaintiff testified that she cannot sit or stand for long periods of time, has difficulty with motivation, and has a difficult time concentrating. AR at 78. Plaintiff explained that these symptoms varied from day to day, with her pain levels at a three (3) one day, and an eight (8) or nine (9) the next. Id.

         b. Administrative Forms

         Plaintiff completed a Function Report-Adult in this matter. AR at 277-81. Plaintiff noted that she lived in a house with her father. Id. at 277. Plaintiff described her medical conditions as follows:

I'm unable to stand, sit, walk for long periods of time due to aching muscles, muscle spasms in my back and feet. Constant pain in my spine, hips, shoulders, and into my pelvis. Problems with painful numbness front of left thigh[.] . . . My focus [and] concentration is limited which makes it extremely difficult to always comprehend and remember instructions. I experience daily[, ] unbearable fatigue along with a generalized [___].

Id. Plaintiff reported her medications as Metformin and Cymbalta. Id. at 278. Plaintiff further reported weakness that limits her ability to start of finish tasks or maintain a daily routine, as well as extreme anxiety and depression which limit her social interactions. Id.

         Plaintiff reported that in caring for other people, she can only sometimes carry heavy bags of food or take care of others. AR at 280. Plaintiff further reported that she sleeps well only sometimes. Id. Plaintiff also reported that although she can reach up high or bend down low, she cannot stand for long periods of time in front of the stove or sink, and cannot lift or carry heavy, hot items. Id. Plaintiff noted that she can understand and follow recipes or other written instructions only sometimes. Id. Plaintiff stated that she cannot clean more than one room at a time without resting, and cannot move furniture. Id. Plaintiff can use a broom, mop, or vacuum cleaner, and carry a heavy laundry basket only sometimes. AR at 280.

         Plaintiff cannot sit in a car for long periods of time, or take a trip without stopping frequently to get out of the car. Id. Plaintiff reported that she also cannot walk for long periods of time without resting, stand in line for long periods of time, or handle lots of people around her. Id. Plaintiff can sometimes get up and walk again after resting just a few minutes, load heavy bags into the car, and carry heavy bags into the house and put them away. Id. Plaintiff also reported she cannot handle stress and can only sometimes remember to pay bills, remember her appointments, concentrate, finish things she starts, or handle changes in routine. Id. Plaintiff cannot use or hands for long periods of time, but can pick up and use small items sometimes. AR at 281. Plaintiff cannot do the social activities that she used to enjoy. Id.

         Plaintiff completed a Work History Report. Id. at 285-91. Plaintiff listed her jobs prior to the alleged onset of his disability to include medical assistant, certified caregiver, food preparer, and security officer. Id. at 285. Plaintiff reported that as a medical assistant she would take patients to their assigned room, check their blood pressure, assist physicians with office procedures, call prescriptions into pharmacies, perform scheduling, obtain medical and procedure authorizations, and perform gastro patient testing. Id. at 286. Plaintiff further reported that this job required machines, tools, or equipment; technical knowledge or skills; and that she wrote or completed reports. AR at 286. Plaintiff also reported that she walked or stood for approximately five (5) hours per day. Id. Plaintiff stated that she sat for approximately three (3) hours per day, and reached, wrote, typed, or handled small objects approximately five (5) hours per day. Id. Plaintiff reported carrying charts and equipment from the front desk to examination rooms or between examination rooms. Id. Plaintiff noted that the heaviest weight she lifted was less than five (5) pounds, and this was also the amount that she frequently lifted. Id.

         Plaintiff reported that as a certified caregiver she assisted residents with daily living tasks, including showering, dressing, incontinence care, dispensing medication, cooking, cleaning, making beds, and laundry. AR at 287. 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, or sat for approximately three (3) hours per day. Id. Plaintiff stated that she reached for approximately two (2) hours per day; estimated that she stooped, kneeled, and handled big objects for approximately one (1) hour per day; and wrote, typed, or handles small objects for approximate one-half hour per day. Id. Plaintiff indicated that she assisted residents in and out of their bed or wheelchair. Id. Plaintiff reported that the heaviest weight she lifted was 100 pounds with assistance, and she frequently lifted less than ten (10) pounds. AR at 287.

         Plaintiff reported that in another certified caregiver position she assisted residents suffering from Alzheimer's/dementia with daily living activities, including showering, dressing, using the bathroom, dispensing medication, feeding, and soothing. Id. at 288. 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 wheelchair bound residents from their chair to bed, toilet, or chair, as well as carried food trays from the kitchen to dining areas. Id. Plaintiff reported that in this position the heaviest weight she lifted was 100 pounds, and she frequently lifted less than ten (10) pounds. Id.

         Plaintiff described her position as a food preparer as working in the kitchen “prepping lettuce, tomatoes, different foods to be stocked in walk-in refrigerator for fast food.” AR at 289. Plaintiff reported that the job required her to stand; handle, grab, or grasp large objects; and reach. Id. at 289. Plaintiff reported that she carried “filled food containers and carried them to walk-in cooler.” Id. Plaintiff stated that the heaviest weight she lifted, as well as frequently lifted was less than ten (10) pounds. Id.

         Plaintiff described her position as a security officer as ensuring the health and safety of guests and employees by responding to radio calls; walking or driving a golf cart on the property to lock and unlock buildings; and monitoring the pool area with water slides. Id. at 290-91. Plaintiff reported that this job required the use of machines, tools, or equipment; technical knowledge or skills; and writing or completing reports. AR at 290. Plaintiff further reported that the job required her to walk; stand; sit; climb; stoop; kneel; crouch; reach; and handle or grasp both large and small objects frequently. Id. Plaintiff noted that she lifted boxes from the floor to cart, lifted rattlesnakes into safety boxes, and carried the medical emergency bag from the cart to where needed. Id. Plaintiff estimated that the heaviest weight she lifted was approximately twenty (20) pounds, and that she frequently lifted this weight. Id.

         On December 3, 2012, Plaintiff completed a Disability Report-Appeal. Id. at 294-303. Plaintiff's updated medication list included oxycodone, Lorazepam, levothyroxine, Lisinopril, metformin, Cymbalta, Nuvigil, and Vitamin D. Id. at 297. Plaintiff reported that because she did not have health insurance, she was unable to afford seeing her doctor on a more frequent basis, and could not see a specialist. AR at 300. Plaintiff further reported having difficulty understanding the function report, and noted that she has trouble seeing at night while driving, cannot take an entire load of laundry out of the washing machine at once, and cannot carry heavy grocery bags. Id. at 300, 302.

         Plaintiff reported that in caring for other people, she can only sometimes take care of others. Id. at 302. Plaintiff further reported that she sleeps well only sometimes. Id. Plaintiff also reported that she cannot stand for long periods of time in front of the stove or sink, and cannot lift or carry heavy, hot items. Id. Plaintiff noted that she can she can reach up high or bend down low, and understand and follow recipes or other written instructions only sometimes. AR at 302. Plaintiff stated that she cannot clean more than one room at a time without resting, and cannot move furniture or carry a heavy laundry basket. Id. Plaintiff can use a broom, mop, or vacuum cleaner only sometimes. Id.

         Plaintiff cannot sit in a car for long periods of time, or take a trip without stopping frequently to get out of the car, and drives without limitation only sometimes. Id. Plaintiff reported that she also cannot walk for long periods of time without resting, stand in line for long periods of time, load heavy bags into the car, and carry heavy bags into the house and put them away, or handle lots of people around her. Id. Plaintiff can get up and walk again after resting just a few minutes only sometimes. AR at 302. Plaintiff also reported she cannot handle stress and can only sometimes remember to pay bills, remember her appointments, concentrate, finish things she starts, or handle changes in routine. Id. Plaintiff cannot use or hands for long periods of time, but can pick up and use small items and do her favorite hobbies sometimes. Id. at 303. Plaintiff cannot do the social activities that she used to enjoy, and only sometimes gets along with others. Id.

         2. Vocational Expert Tracy Young's Testimony

         Ms. Tracy Young testified as a vocational expert at the administrative hearing. AR at 21, 103-05. Ms. Young described Plaintiff's past work as a nurse aid, Dictionary of Occupational Titles (“DOT”) number 355.674-014, medium work, semi-skilled, and a Specific Vocational Preparation (“SVP”) of 4. Id. at 104. Ms. Young further described Plaintiff's past work as a caregiver or home health aide, DOT number 354.377-014, medium work, semiskilled, and an SVP of 3. Id. Ms. Young noted that both of the jobs may be heavier than medium at times, depending upon the size of the patient for example. Id. Ms. Young described Plaintiff's past work of medical assistant as DOT number 079.362-010, light work, SVP of 6, and skilled. Id. at 105. Ms. Young testified that there were no transferable skills to sedentary work or to other light work. Id.

         3. Treating Physician Christopher Puca, M.D.'s Testimony

         Christopher Puca, M.D. testified as a medical expert at the administrative hearing. AR at 21, 41-70. Dr. Puca testified that he is a board-certified internal medicine specialist, who has treated Plaintiff for several years, beginning in approximately 2009. Id. at 42-43, 55, 57. Dr. Puca further testified that in addition to overseeing Plaintiff's primary care and preventative medicine, he treated Plaintiff for her fibromyalgia syndrome, chronic fatigue, trigeminal neuralgia, and low back pain, as well as her depression, Type II diabetes, hypertension, hypothyroidism, and high cholesterol. Id. at 43, 56-58, 60. Dr. Puca testified that most recently Plaintiff's trigeminal neuralgia had flared, and morphed into facial numbness rather than pain. Id. at 44. Dr. Puca further testified that this is a chronic disease. Id. Dr. Puca also testified that when the disease is active it can last for days to weeks, and can have cognitive and emotional effects including causing difficulties with focus, concentration, and interpersonal relationships. AR at 45. Dr. Puca opined that at its worst, trigeminal neuralgia would have a marked effect on a person's ability to function, and when the disease is at a low level, it would have a mild effect. Id. at 46. Dr. Puca noted that Plaintiff's various diseases vary in intensity in such a way that one is predominant over the others at any given time. Id. at 47.

         Regarding Plaintiff's fibromyalgia, Dr. Puca testified that on June 1, 2015 he checked Plaintiff's eighteen (18) tender points, and she was positive at all eighteen (18).[2]Id. at 47-48, 58. Dr. Puca explained that the tender points are not the only places a person with fibromyalgia may have pain. Id. at 48. Dr. Puca testified that fibromyalgia is caused by a problem with neuro-processing, and that patients can have allodynia-a condition in which normally non-painful stimuli, such as touch, are experienced as pain. AR at 48, 53-54. Dr. Puca further testified that Plaintiff had been diagnosed in the 1990s with chronic fatigue syndrome, based on a positive test for the Epstein-Barr virus. Id. at 49-50.

         Dr. Puca also noted that Plaintiff's emotional issues, including depression and post-traumatic stress disorder stem for a traumatic event in 1996, and opined that the emotional issues lasted more than a year, and could negatively impact her physical ailments. Id. at 60-61, 65. Dr. Puca confirmed Plaintiff's medications as including Synthroid, oxycodone, acetaminophen, triamcinolone, methylphenidate, lorazepam, Lisinopril, hydrochlorothiazide, and Cymbalta. Id. at 62-63.

         Dr. Puca testified that Plaintiff does not have the stamina or energy to work an eight (8) hour day. Id. at 51. Dr. Puca further opined that Plaintiff would be able to stand two (2) hours or less during the work day; sit for approximately fifteen (15) to thirty (30) minutes; walk approximately one (1) block; never lift of carry ten (10) pounds; and no stooping, kneeling, crouching, or crawling due to her back problems. AR at 51-52. Dr. Puca opined that Plaintiff is not capable of maintaining even sedentary work on an eight (8) hour sustained basis. Id. at 52, 56, 68-69. Dr. Puca also opined that Plaintiff's combination of medical and emotional problems represent a major, negative impact on her ability to ...


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