Gurrola v. Berryhill

          ORDER

          LESLIE A. BOWMAN UNITED SUITES 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, p. 1)

         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. 12)

         The ALJ's decision to give little weight to the report from the treating physician, Dr. Bacchus-Morris, is not supported by specific and legitimate reasons. His decision to give little weight to plaintiff Gurrola's subjective symptom testimony is not supported by clear and convincing reasons. The court does not reach Gurrola's alternate claims of error. The case is remanded for payment of benefits.

         Procedural History

         On October 23, 2013, the plaintiff, Sarah Gurrola, filed an application for disability insurance benefits pursuant to Title II and supplemental security income pursuant to Title XVI of the Social Security Act. (Doc. 14-6, pp. 2-15) She alleged disability beginning April 1, 2010 stemming from lupus, fatigue, rheumatoid arthritis, depression, fibromyalgia, and anxiety. (Doc. 14-7, pp. 11-12) She later reported that she is also disabled due to migraines. (Doc. 14-7, p. 43) Her claims were denied initially on April 11, 2014 and again on reconsideration on September 18, 2014. (Doc. 14-5, pp. 2-5, 7-10, 16-21) Gurrola appeared with counsel at a hearing before Administrative Law Judge Charles Davis on April 25, 2016. (Doc. 14-3, pp. 32, 34) He denied her claim on July 25, 2016. (Doc. 14-3, p. 13) Gurrola filed a Request for Review with the Appeals Council on September 7, 2016. (Doc. 14-3, pp. 2, 6) The Appeals Counsel denied her request on November 24, 2017 making the decision of the ALJ the final decision of the Commissioner. (Doc. 14-3, pp. 2, 6)

         Claimant Work History and Medical History

         Gurrola was born in June of 1979. (Doc. 14-4, p. 4) She was 30 years old on the alleged disability onset date and 36 when the ALJ issued his decision in April of 2016. Id. She is a high school graduate. (Doc. 14-7, p. 12)

         On April 1, 2010, Gurrola left her last full-time job as an office processing manager for an auto glass replacement company. (Doc. 14-3, p. 36); (Doc. 14-7, p. 12) She testified that she “had to leave [her] job and couldn't work anymore.” (Doc. 14-3, p. 36) In August of 2013, Gurrola was involved in a serious motor vehicle accident. (Doc. 14-9, p. 46) She sustained multiple fractures to her pelvis and spine and developed chronic pain. Id. Since then, she worked briefly as an office worker on a part-time basis for two hours per day. Id.; (Doc. 14-3, p. 43); (Tr. 42); (Doc. 14-7, p. 12); (Tr. 249) She was discharged because she was not reliable enough. (Doc. 14-3, p. 37)

         Impairments

         Nancy Armstrong, M.D., and Ralph Robinowitz, Ph.D., evaluated Gurrola's initial claim for the disability determination service. (Doc. 14-4 pp. 2-28) They diagnosed her with systemic lupus erythematosus, disorders of the back, obesity and affective disorders. Id. at 8

         Robinowitz completed Gurrola's psychiatric review on April 8, 2014. (Doc. 14-4, p. 10) He found that she has a medically determinable mental impairment that does not precisely satisfy the “A” diagnostic criteria for an affective disorder. Id. at 9 Under the ‘B' criteria, he found that the disorder imposed mild restriction of activities of daily living; mild difficulties in maintaining social functioning; and mild difficulties in maintaining concentration, persistence, or pace. Id. He found no repeated extended episodes of decompensation. Id. He also found that the impairment did not satisfy the ‘C' criteria of the listings. Id.

         Armstrong evaluated Gurrola's physical residual functional capacity (RFC) on February 13, 2014. (Doc. 14-4, pp. 11-13) She indicated that Gurrola could frequently lift or carry 10 pounds and occasionally 20 pounds. Id. Gurrola could stand or walk for a total of four hours and sit for six hours out of an eight-hour day. Id. Gurrola could only occasionally climb ramps, stairs, ladders, ropes, and scaffolds and could only occasionally stoop, kneel, crouch, or crawl due to her morbid obesity. Id. at 11-12

         In September of 2014, Nathan Strause, M.D., and Eric Penner, Ph.D., evaluated Gurrola's claim for the disability determination service on reconsideration. They found the same impairments that were present during her first evaluation. (Doc. 14-4, pp. 38-41, 52-56)

         Penner's findings on the psychiatric criteria were identical to Robinowitz's. (Doc. 14-4, p. 38) Strause's findings on her physical RFC were identical to Armstrong's except he noted that “alternation of positions of sitting should be accommodated in normal wor[k] day with usual breaks and lunch.” Id. at 40-41.

         Previously, on June 12, 2014, Gurrola's treating physician, Amanda Bacchus-Morris, M.D., completed a Physical Residual Functional Capacity Assessment. (Doc. 14-9, p. 46); (Doc. 14-10, p. 43) She opined that Gurrola could stand for 2 hours or less during an 8-hour day and sit for 30-60 minutes at a time. (Doc. 14-10, p. 43) She could walk one block at one time before needing to stop. Id. She could lift and carry 10 pounds occasionally. Id. She would be unable to work more than five days per month due to her impairments. Id.

         Hearing

         Gurrola appeared with counsel at a hearing before the ALJ on April 25, 2016. (Doc. 14-3, p. 34) She explained that her last full time job was in 2010, working as an office manager at an auto glass shop. (Doc. 14-3, p. 38) After that, she worked at a Cox call center “for about two weeks.” Id.

         In 2014, Gurrola had another part-time job doing office work for an electrician. (Doc. 14-3, pp. 36-37, 43) She was “matching up billing, [doing] data entry, [and] filing” for one to four hours a day. Id. at 37 She could not work full-time because on some mornings she would have “a headache so bad [she could] not see straight, ” or might be “sick and nauseous and vomiting.” Id. She also testified that there are “times [she] can't move [her] arms very well at all and just [has] overall sick feeling and pain.” Id. She was discharged because she was not reliable enough. Id.

         Gurrola believes that pain and nausea prevents her from working now. (Doc. 14-3, pp. 37-38) Also, her “cognitive abilities are not all there as well.” Id. at 38 “It's very hard for [her] to concentrate and stay focused, [and] sit, [and] stand.” Id. at 38.

         Gurrola lives with her seventeen-year-old daughter and five-year-old son. (Doc. 14-3, p. 39) Her son is with her Friday afternoon through Monday evening. Id. at 39-40 During the day, she tries to keep the house tidy and “take care of whatever needs to be taken care of.” Id. at 40 She shops for groceries if she is able, runs errands, and transports the children. Id. She is able to bathe and dress herself, and handle her own finances. Id. She can cook, but she alternates between sitting and standing and needs “breaks in between.” Id. at 41 She does laundry, but she cannot carry the basket because her hands and shoulders hurt. Id. She can wash dishes for short periods and drive. Id. She considers her daughter her “right hand.” Id. at 42 She rests a lot during the day and does not exercise. Id. She does not do anything outside the house and cannot sit through a movie in a theater. Id. at 43 She does not take pain medication except for Fioricet, which she takes if her headache is “to the point where [she] can't open [her] eyes, and [she] can't function properly, ” which is about three to four times a week. Id. at 45 The medication makes her tired. Id. It may make her nauseous too, but she is nauseous at all times. Id. at 46.

         Gurrola testified that she spends “roughly about 70% of [her] day either at the toilet vomiting or the other way, ” although she conceded that “70%” might be an overestimation. (Doc. 14-3, p. 46) She hurts everywhere, especial her collarbone, shoulders, lower back, hips, ankles, toes, fingers, and head. Id. at 47 She does not take pain medication for her body aches and has not done so since the summer of 2015 because the medication makes her feel worse. Id. Her healthcare providers have told her not to push herself. Id. at 47-48 She has difficulty lifting a gallon of milk. Id. at 48 She can stand for about 10 to 15 minutes before she starts shifting uncomfortably and feeling pain. Id. She has not been able to lift her son since he was three-years-old, either because of his growth or her worsening condition. Id. at 49 She has taken medication for depression in the past. Id. Her brain has not been functioning well since she was tasered in the head by her daughter's girlfriend's father in early 2015. Id. at 50-51

         Gurrola further testified that she had negative reactions from pain medications such as Topamax and Imitrex. (Doc. 14-3, p. 52) She also had negative reactions to morphine and oxycodone. Id. at 52-53 She tried them for a year and a half, and although they seemed to work in the beginning, toward the end, “they were making [her] body hurt more.” Id. She stated, “They were making my brain so I couldn't function properly.” Id. at 53

         She has difficulty standing up without something to hold on to. (Doc. 14-3, p. 53) She worries about being in the sun too much. Id. at 54 When she ...