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McKenzie v. Berryhill

United States District Court, D. Arizona

March 27, 2018

Michael Alan McKenzie, Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.


          Bernardo P. Velasco United States Magistrate Judge.

         Plaintiff 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 Plaintiff.

         I. Procedural History

         In May 2009, Plaintiff filed an application for disability insurance benefits, alleging that he had been disabled since May 1, 2001[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).

         On 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).

         On May 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.

         II. Plaintiff's Background

         Plaintiff was born in 1959 and was 50 years of age on March 31, 2009, the date last insured.[2] (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).

         Plaintiff 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).

         Plaintiff 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).

         At the 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).

         In May 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 marijuana. (Id.).

         III. The ALJ's Decision

         A. Claim Evaluation

         Whether 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).[3] 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.

         B. The ALJ's Findings in Pertinent Part

         The ALJ 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 ...

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