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Day v. Berryhill

United States District Court, D. Arizona

July 3, 2018

Thomas Day, Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security Administration, Defendant.


          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. 13)

         The decision of the Administrative Law Judge (ALJ) at step 5 of the disability determination is not supported by substantial evidence. The case is remanded for payment of benefits.

         Procedural History

         On November 27, 2013, Day filed an application for disability insurance benefits pursuant to Title II and supplemental security income pursuant to part A of Title XVIII of the Social Security Act. (Tr. 186-187) He alleged disability beginning March 1, 2013, stemming from brain damage to the right frontal lobe, depression, left knee injury and diabetes. (Tr. 96) His application was denied originally (Tr. 131-134) and on reconsideration. (Tr. 136-138) He then appeared with counsel at hearings before ALJ Peter J. Baum on December 2, 2015 and March 2, 2016. (Tr. 43-72, 72-94) The ALJ found that significant numbers of jobs existed that Day could perform in spite of his limitations and denied his claim on April 26, 2016 (Tr. 19-42). Day appealed and was denied review on September 28, 2017, making the decision of the ALJ the final decision of the Commissioner. (Tr. 1-7)

         Claimant Work History and Medical History

         Day was born on February 9, 1968. (Tr. 39) He was 45 years old at the onset date of his alleged disability and 48 when the ALJ issued his decision in April of 2016. (Tr. 36) He last worked in March of 2013 at a call center. (Tr. 78, 88) He resigned due to health problems. Id. He has completed some college since, although he withdrew in 2014 due to pain issues. (Tr. 79-82) Days received a 10% disability rating for his left knee from the Veterans Administration and had tuition paid for plus a monthly stipend during the school year. (Tr. 82-83)


         On February 20, 2014, Jaine Foster-Valdez, Ph.D, and Marilyn Orenstein, M.D., analyzed Day's claim for the disability determination service. (Tr. 103) They diagnosed his impairments as follows: severe diabetes mellitus, non-severe cerebral trauma, non-severe sprains and strains, severe COPD and non-severe affective disorders. Id.

         Foster-Valdez conducted Day's psychiatric review. Under the “A” criteria of listings, Day had a medically determinable impairment from an affective disorder that did not precisely satisfy diagnostic criteria. Id. Under the “B” criteria, which gauge severity, Day's affective disorder gave him moderate difficulty in maintaining social function but no other issues. Id. There were no “C” criteria established. Id.

         Foster-Valdez also evaluated Day's Mental Residual Functional Capacity (RFC). (Tr. 96-110) Day was found to have social interaction limitations, but no understanding and memory or sustained concentration and persistence limitations. (Tr. 107) His ability to interact appropriately with the public, accept instructions and respond appropriately to criticism from supervisors, and ability to get along with coworkers or peers without distracting them or exhibiting behavioral extremes were all moderately limited. (Tr. 108) He had no other significant social interaction limits, or any adaptation limitations. Id.

         Orenstein evaluated Day's Physical RFC, finding that he could frequently lift ten pounds, occasionally lift twenty, stand or sit for about six hours with breaks out of an eight-hour workday, and push or pull without restriction. (Tr. 105) She also found that Day had postural limitations due to his obesity, diabetes and left knee injury, and that he had various problems climbing ramps or stairs, balancing, stooping, kneeling, crouching or crawling. (Tr. 105-6) She recommended that Day avoid concentrated exposure to wetness, hazards, anything that might affect air quality or extreme cold. Id.

         Randall J. Garland, Ph.D., reviewed the record on reconsideration for the disability determination service on June 18, 2014. (Tr.111) He diagnosed Day's affective disorders as severe. (Tr. 121) He found that in the “B” criteria of listings, Day now had mild restriction of activities of daily living and moderate difficulties in maintaining concentration, persistence or pace. Id. In the RFC accompanying this report, Garland found that Day was moderately limited in ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods. (Tr. 126)


         On December 2, 2015, Day appeared with counsel at a hearing before the ALJ. He testified that he last worked at a call center until he resigned in March of 2013 due to health problems. (Tr. 78, 88) He took some courses in web design at Pima Community College, although he withdrew for a time due to pain issues. (Tr. 79-82) At the time of the hearing, he was enrolled in several courses but regularly missed classes when he was unable to get out of bed due to pain. (Tr. 80) He would have to get up and leave his classes every 10 to 15 minutes when he felt overwhelmed by the number of people around or the noise. Id. His professors accommodated his needs, and he had no on-campus tests or presentations in front of the class. (Tr. 81) He withdrew in Spring 2014 when pain in his back and right hip left him unable to attend class. (Tr. 82) At the time of the hearing, he was back in school despite continuing pain. Id.

         Day received 10% disability from the VA and had tuition paid plus a monthly stipend during the school year. Id. He can be on his feet for ten to fifteen minutes before he loses balance from pain and either sits down or falls, after which he has to sit for ten to fifteen minutes. Id. He cannot stay sitting for a full 30 minutes, even in a comfortable chair. (Tr. 84) When he visits his mother-in-law in Yuma, he cannot drive but reclines in the front seat for fifteen to thirty minutes at a time. (Tr. 85) He needs pain medication to last a full thirty minutes and will not make the trip if he has not taken any. Id. He can only work at a computer for ten to twenty minutes at a time. Id.

         In the past, Day has worked as an assistant engineer at a radio station, a security guard supervisor, an auto-repair shop manager and a call center worker. (Tr. 86-88) Only the last was a sedentary job. Id.

         Day feels overwhelmed by groups of people both in class and in public. (Tr. 89) He has a panic attack every four to five weeks and will move people out of the way to escape. (Tr. 89-90) He has had arguments in public as a result. (Tr. 90)

         Day was launched through a windshield face first in a car wreck when he was around seven or eight months old. Id. He had to have surgery on his brain and skull. Id. His doctor at the VA told him he has brain damage in his right frontal lobe as a result. Id. He testified to having a hard time concentrating around people or noise and having a bad memory. (Tr. 90-91)

         Day also has trouble sleeping due to pain and has been diagnosed with sleep apnea (Tr. 91) His pain is mostly in his left knee, right hip and lower spine. Id. He has problems with ankle reflexes that he believes are due to his diabetes. (Tr. 92) His attorney and he believe he meets listings 12.02, 12.04 and 12.06. Id.

         Day appeared with counsel before the ALJ a second time on March 2, 2016. (Tr. 43) He and his wife both claimed that his conditions have worsened since 2013. (Tr. 48) Between the two hearings, Day's performance in school declined because he cannot concentrate when he reads. Id. He also has problems with loud noises and when he is ...

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