United States District Court, D. Arizona
Bernardo P. Velasco United States Magistrate Judge.
Michael Alan McKenzie has filed the instant action pursuant
to 42 U.S.C. § 405(g) seeking review of the final
decision of the Commissioner of Social Security. (Doc. 1).
The Magistrate Judge has jurisdiction over this matter
pursuant to the parties' consent. (Doc. 8). See
28 U.S.C. § 636(c). Pending before the Court are
Plaintiff's Opening Brief (Doc. 14), Defendant's
Brief Requesting Remand for Further Administrative
Proceedings (Doc. 18), and Plaintiff's Reply Brief (Doc.
19). For the following reasons, the Court remands this matter
for an immediate calculation and award of benefits to
2009, Plaintiff filed an application for disability insurance
benefits, alleging that he had been disabled since May 1,
because of depression and back problems.
(Transcript/Administrative Record (“Tr.”) at 644,
163). After Plaintiff's application was denied initially
and upon reconsideration, he requested a hearing before an
Administrative Law Judge (“ALJ”). (Tr. 55, 104,
109). After the hearing, ALJ Larry Johnson directed further
development of the record, held a supplemental hearing where
Plaintiff and Vocational Expert (“VE”) Kathleen
McAlpine testified, and entered a decision (“2011
Decision”) that Plaintiff was not disabled at step
five. (Tr. at 20-28, 58-101). After the Appeals Council
denied Plaintiff's request for review of the 2011
Decision, Plaintiff initiated his first civil action in this
Court. (Doc. 14 at 3). The Honorable Jacqueline R. Rateau,
United States Magistrate Judge, issued a Report and
Recommendation that the Commissioner's final decision be
reversed and remanded for further proceedings. (Tr. at
508-27). Neither Plaintiff nor the Commissioner objected to
the Report and Recommendation. (Tr. at 507). On August 29,
2013, the Honorable Frank R. Zapata, United States Senior
District Judge, adopted the Report and Recommendation and
judgment was entered accordingly. (Tr. at 505-07).
November 26, 2013, the Appeals Council remanded
Plaintiff's claim to an ALJ for readjudication. (Tr. at
534-37). On April 1, 2014, Plaintiff appeared with counsel
and testified at an administrative hearing before ALJ
Johnson. (Tr. 449-82). On August 28, 2014, ALJ Johnson
decided that Plaintiff was not disabled at step five. (Tr. at
542-52). Plaintiff sought review by the Appeals Council. (Tr.
at 395-401). On September 9. 2010, the Appeals counsel
remanded Plaintiff's claim to an ALJ for reajudication.
(TR. at 557-61).
18, 2016, Plaintiff appeared with counsel and testified
before ALJ Peter J. Baum. (Tr. at 483-91). On July 21, 2016,
ALJ Baum entered his decision denying Plaintiff's claim
at step-five. (Tr. 364-76). Thereafter, the Appeals Council
denied Plaintiff's request for review (Tr. at 352-55),
making the ALJ's July 21, 2016 decision the
Commissioner's final decision for purposes of judicial
review. Plaintiff then initiated the instant action.
was born in 1959 and was 50 years of age on March 31, 2009,
the date last insured. (Tr. at 644). Plaintiff completed high
school and attended some community college, but did not
obtain a degree. (Tr. at 167, 338, 487). Plaintiff worked as
a utility worker for the City of Tucson from 1995 to 2001 and
as construction laborer from 2004 to 2008. (Tr. at 191, 66).
Plaintiff stopped working in August of 2008 when he was
terminated for “[e]xcessive absenteeism” because
he “missed a lot of work, because I was care-giving for
my grandmother and my mom.” (Tr. at 66-67, 163, 191).
He also missed work due to problems with his neck and back.
(Tr. at 67).
testified that depression overwhelmed him and although he had
job interviews, he received no offers. (Tr. at 72; see
also Tr. at 458 (“The depression became more of an
issue, and it was overwhelming because of having to be a
caregiver.”)). Plaintiff first attempted suicide when
he was 13 or 14 years old and he has thought frequently of
suicide throughout his life. (Tr. at 80). He also attempted
suicide when he learned his mother was going to die, and
later when his dogs were taken from him for something they
“didn't do” and were euthanized because
Plaintiff did not have the money to pay required fees. (Tr.
at 81-83). He testified that the incident “changed
me.” (Tr. at 83).
described that his “head starts to spin, and it's
like I'm having an anxiety attack or breakdown, because I
remember the only other times I felt like this is when I
heard about my loved ones dying or something really-even
losing my job with the City, I didn't really have that
much of a breakdown, but that's what happens.” (Tr.
at 83-4). Plaintiff has experienced anxiety ever since he was
a child. (Tr. at 84). Anxiety has been problem since prior to
March 2009. (Id.; Tr. at 478). Plaintiff saw various
counselors through work and when he had insurance. (Tr. at
86). Plaintiff testified that he “take[s]
anti-depressants still, . . .” but he was also given
permission to try not taking them. (Tr. at 72).
2014 hearing after remand by the Court, Plaintiff cried
throughout his testimony. (Tr. at 477). He testified that he
lives with his wife. (Tr. at 465). Plaintiff spends time
playing his guitar. (Tr. at 466; Tr. at 468 (Plaintiff has
always played guitar when he was depressed)). Plaintiff goes
shopping although he does not like to be out in public. (Tr.
at 467, 478). He also described experiencing panic attacks
and difficulty thinking. (Tr. at 475-77). Plaintiff tries to
help with household chores but his “mind doesn't
let me do things. It's just too overwhelming, everything
that I've been through in the last ten years or
so.” (Tr. at 471). Prescribed medications him feel
“more suicidal . . . afraid of what's going to
happen.” (Tr. at 473). The medications also made him
feel foggy and forgetful. (Id.). None of the
antidepressants Plaintiff has tried has stopped him from
“being suicidal or being so depressed . . .” like
THC. (Tr. at 472-73). He smoked at least one marijuana
cigarette throughout the day. (TR. at 473-74).
2016, Plaintiff testified that he spent his time playing
guitar, reading, doing some babysitting of his grandchildren,
and walking his dog. (Tr. at 488). He no longer used
The ALJ's Decision
a claimant is disabled is determined pursuant to a five-step
sequential process. See 20 C.F.R.
§§404.1520. To establish disability, the claimant
must show that: (1) he has not performed substantial gainful
activity since the alleged disability onset date (“Step
One”); (2) he has a severe impairment(s) (“Step
Two”); and (3) his impairment(s) meets or equals the
listed impairment(s) (“Step Three”).
Dominguez v. Colvin, 808 F.3d 403, 405 (9th Cir.
2016). If the claimant satisfies Steps One through Three,
then he is disabled and entitled to benefits. Id..
If the claimant has a severe impairment that does not meet or
equal the severity of one of the ailments listed, the ALJ
then proceeds to Step Four, which requires the ALJ to
determine the claimant's residual functioning capacity
(RFC). Id. After developing the RFC, the
ALJ must determine whether the claimant can perform past
relevant work: “if not, then at step five, the
government has the burden of showing that the claimant could
perform other work existing in significant numbers in the
national economy given the claimant's RFC, age,
education, and work experience.” Id.
The ALJ's Findings in Pertinent Part
found that although Plaintiff worked after the May 1, 2001
alleged disability onset date, that work activity did not
rise to the level of substantial gainful activity. (Tr. at
367). The ALJ determined that through the date last insured,
Plaintiff “had the following severe impairment:
myofascial pain status post motor vehicle accident of
September 2827 [sic], 2002 (20 CFR 404.1520(c))” (Tr.
at 368). The ALJ found that Plaintiff had the RFC
to perform medium work as defined in 20 CFR 404.1567(c)
except that he is limited to frequent use of his feet, hands,
and arms, and no more than frequent exposure to unprotected
heights, operating mechanical parts, operating a motor
vehicle, humidity and wetness, dusts, odors, fumes, and ...