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Denunzio v. Berryhill

United States District Court, D. Arizona

April 9, 2018

Lisa A. Denunzio, Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner of the Social Security Administration, Defendant.

          ORDER

          Leslie A, Bowman United States Magistrate .Judge

         The plaintiff filed this action for review of the final decision of the Commissioner for Social Security pursuant to 42 U.S.C. § 405(g). (Doc. 1, pp. 1-2)

         The Magistrate Judge presides over this case pursuant to 28 U.S.C. § 636(c) having received the written consent of both parties. See Fed.R.Civ.P. 73; (Doc. 14)

         The ALJ in this case failed to give specific and legitimate reasons for discounting the opinion of the treating physician. The ALJ also failed to give clear and convincing reasons for discounting the claimant's subjective testimony. The case is remanded for payment of benefits.

         PROCEDURAL HISTORY

         In August of 2011, Denunzio filed applications for disability insurance benefits and for supplemental security income pursuant to Title II and Title XVI of the Social Security Act respectively. (Tr. 172-182) She alleged disability beginning on November 1, 2009, due to bipolar disorder, anxiety, depression and mood swings. (Tr. 203)

         Her applications were denied initially (Tr. 116-123) and upon reconsideration (Tr. 126-132). Denunzio requested review and appeared with counsel at a hearing before Administrative Law Judge (ALJ) Norman R. Buls on January 16, 2013. (Tr. 60) In his decision, dated April 4, 2013, the ALJ found Denunzio was not disabled because her mental impairment was not severe. (Tr. 24-34) Denunzio appealed, and on June 3, 2014, the Appeals Council denied review making the decision of the ALJ the final decision of the Commissioner. (Tr. 1-3) Denunzio sought review in District Court, and on May 18, 2015, this court reversed and remanded the action to the Commissioner for further proceedings. (Doc. 480-509)

         On May 9, 2016, Denunzio appeared with counsel before ALJ Charles Davis. (Tr. 407-435) In his decision, dated October 18, 2016, the ALJ found Denunzio was not disabled because there are some jobs in the national economy that she can perform despite her limitations. (Tr. 387-400) Denunzio appealed, and on March 20, 2017, the Appeals Council denied review making the decision of the ALJ the final decision of the Commissioner. (Tr. 377-380) Denunzio subsequently filed this action appealing that final decision. (Doc. 1)

         Claimant's Work History and Medical History

         Denunzio was born in June of 1964. (Tr. 42) She was 52 years old when ALJ Davis issued his decision in October of 2016. (Tr. 63, 400)

         Denunzio has a high school education. (Tr. 64) She last worked in 2009, when she was employed as a stocker and cashier. (Tr. 65-66) “[S]he was dismissed from her job for not showing up after periods of depression.” (Tr. 373) “[S]he has gotten into verbal confrontations with supervisors in the past.” (Tr. 373) Denunzio received unemployment benefits for a period of time after her dismissal. (Tr. 66)

         Mental Impairment

         In December of 2011, Andres Kerns, Ph.D., reviewed the medical record for the disability determination service and offered an opinion of Denunzio's mental impairment. (Tr. 78, 79, 84) Kerns diagnosed Denunzio with affective disorder. (Tr. 83, 84) He then evaluated Denunzio's “B” listing criteria, which gauge the severity of her limitations. See 20 C.F.R. §§ 404.1520a(c)(3), 416.920a(c)(3). Kerns found Denunzio has “mild” restrictions of her daily activities; “mild” difficulties in maintaining social functioning; “mild” difficulties in maintaining concentration, persistence, or pace; and no evidence of decompensation. (Tr. 84) Kerns further opined that the medical evidence did not establish the presence of the “C” criteria, which are an alternative gauge of the extent of her mental impairment. (Tr. 84) Kerns concluded that Denunzio's mental impairment is non-severe. (Tr. 84)

         In February of 2013, Denunzio was examined by Glenn Marks, Ph.D., for the disability determination services. (Tr. 74) Marks reported that Denunzio “presented with a stable mood and a varied affect.” (Tr. 374) “Although she reported that she felt like she was having one of her panic-type episodes, there was no evidence of it.” (Tr. 374) Her “[t]hought processes appear linear, logical and goal directed with no evidence of atypical thought processes.” (Tr. 374) Marks diagnosed bipolar disorder and anxiety disorder, NOS. (Tr. 374) He listed her GAF (global assessment of functioning) as 55 to 60. (Tr. 374)

         Marks opined that Denunzio had mild restriction in her ability to understand and remember complex instructions, carry out complex instructions, and make judgments on complex work-related decisions. (Tr. 368) She had mild restriction in her ability to interact appropriately with the public, supervisors, or co-workers. (Tr. 369)

         The medical record contains treatment notes from Denunzio's treating psychiatrist, Steven J. Bupp, M.D., beginning in 2009 and extending through 2016. (Tr. 264- 352, 844-886)

         In January of 2013, Bupp completed a Medical Assessment form assessing Denunzio's ability to perform work-related activity. (Tr. 362-67) He rated Denunzio as having moderately severe impairment in the following areas: relating to other people, restriction of daily activities, responding appropriately to supervision in a work setting, responding to customary work pressures, performing complex tasks, performing varied tasks, and completing a normal work day/week without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number/length of rest periods. (Tr. 362-363); (Tr. 486-487) Bupp also rated Denunzio as having moderate impairment in the areas of: deterioration in personal habits; constriction of activities; ability to understand, carry out, and remember instructions in a work setting; respond appropriately to co-workers; and perform repetitive tasks. Id.

         In January of 2013, Bupp also completed a Mental Residual Functional Capacity Assessment for Denunzio. (Tr. 364-365); (Tr. 486-487) He rated Denunzio as markedly limited in her ability to: carry out detailed instructions, maintain attention and concentration for extended periods, perform activities within a schedule, maintain regular attendance and be punctual, sustain a routine without special supervision, complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace, maintain socially appropriate behavior, respond appropriately to changes in the work setting, and set realistic goals or make plans independently of others. Id. Bupp also rated Denunzio as moderately limited in her ability to: remember locations and work procedures, understand and remember detailed instructions, work in coordination with others without being distracted, accept instructions and respond appropriately to criticism from supervisors, get along with peers without distracting them or exhibiting behavioral extremes, be aware of normal hazards and take precautions, and travel in unfamiliar places or use public transportation. Id.

         Bupp indicated that his conclusions were based on Denunzio's self-reports, reports of others, and his own observations. (Tr. 366-367) He opined that Denunzio's short term memory is limited because she fails to work consistently and accurately. Id. He opined that her understanding is limited because of her frustration with failure. Id. He believes her sustained concentration is limited due to the limited duration of her concentration and her intermittent functioning, which has not changed with treatment. Id. Bupp finds her persistence is limited because she lacks motivation, interest, or joy. Id. Moreover, she is inconsistent and experiences anxiety. Id. Her social interaction is limited because she fears social interaction, has trouble assessing social cues, and has poor reactions to social situations. Id. Her adaptation is limited because she fails to make accurate assessments, fails to act quickly, fails to foresee adaptation needs, and has difficulty with the rate of change. Id. Bupp diagnosed Denunzio with bipolar affective disorder. (Tr. 367) He rated her GAF at 55. Id.

         In April of 2016, Bupp completed a second assessment of Denunzio's ability to perform work-related activity. (Tr. 896-898) He found her to have severe limits in her ability to: understand and remember detailed instructions, work in coordination with or proximity to others, complete a normal workday and workweek without interruptions from psychologically based symptoms and perform at a consistent pace, respond appropriately to changes in the work setting, and be aware of normal hazards and take appropriate precautions. (Tr. 896-898) She has moderately severe limits in her ability to remember locations and work-like procedures, carry out detailed instructions, maintain attention and concentration, perform activities within a schedule, maintain regular attendance and be punctual within customary tolerances, sustain ordinary routine without supervision, interact appropriately with the public, accept instructions and respond appropriately to criticism from supervisors, get along with co-workers or peers, maintain socially appropriate behavior, travel to unfamiliar places or use public transportation, and set realistic goals or make plans independently of others. Id. Bupp opined that Denunzio is likely to miss work more than three times a month. (Tr. 899) Bupp explained that his assessment is caused by her “severely brittle bipolar condition with recent prolonged medical hospitalization for life threatening drug reaction to Lamictal.” (Tr. 899)

         Hearings

         On January 16, 2013, Denunzio appeared with counsel at a hearing before ALJ Buls. (Tr. 60) She testified that she was born in June of 1964. (Tr. 63) She has a high school education. (Tr. 64) In 2009, she ...


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