Medellin v. Commissioner of Social Security Administration

          ORDER

          Bernardo P. Velasco, United States Magistrate Judge

         Plaintiff Adan V. Medellin filed the instant action pursuant to 42 U.S.C. § 405(g) seeking review of the final decision of the Commissioner of Social Security. The Magistrate Judge has jurisdiction over this case pursuant to the parties consent under 28 U.S.C. § 636(c). (Doc. 9.) The matter is now fully briefed before this Court. (Docs. 14, 15, 19.) For the following reasons, the Court vacates the Commissioner's decision and remands for consideration in accordance with this Order.

         I. PROCEDURAL HISTORY

         On March 12, 2013, Plaintiff filed an application for Social Security Disability Insurance Benefits. (Administrative Record (“AR”) 200.) Plaintiff alleged disability as of October 1, 2011, but later amended the onset date to January 3, 2013. (AR 215.) Plaintiff claimed disability due to ulcerative colitis, depression, post-traumatic stress disorder (“PTSD”), and bipolar disorder. (AR 97.) Plaintiff's application was initially denied on June 11, 2013, (AR 127), and upon reconsideration on January 9, 2014 (AR 134). On October 27, 2015, Plaintiff appeared with counsel and testified at an administrative hearing in front of an Administrative Law Judge (“ALJ”). (AR 44-95.) The ALJ issued an unfavorable decision on December 14, 2015. (AR 20-33.) Following Plaintiff's Request for Review (AR 141), the Appeals Counsel denied Plaintiff's request on April 10, 2017 (AR 1-6), making the ALJ's decision the Commissioner's final decision for the purposes of judicial review.

         Plaintiff filed the instant action on June 8, 2017, raising five arguments why this Court should reverse the ALJ's decision and remand for benefits. Plaintiff argued that: (1) the ALJ failed to give weight to the opinion of treating physician Dr. Miguel Arenas; (2) the ALJ erred when he assigned no weight to the opinion of treating Nurse Practitioner Mary Vincenz and some weight to the opinion of consultative physician Gwendolyn Johnson; (3) the ALJ improperly considered Mr. Edward Corella's third-party opinion; (4) the ALJ did not give clear and convincing reasons for discrediting Plaintiff's testimony; and (5) the ALJ did not provide substantial evidence supporting his contention that Plaintiff could perform the jobs listed by the Vocational Expert (“VE”). (Doc. 14.)

         II. PLAINTIFF'S BACKGROUND, STATEMENTS IN THE RECORD, AND VOCATIONAL EXPERT'S FINDINGS

         Plaintiff was forty-six years old on the date of the alleged onset of disability. (AR 200.) He completed the eleventh grade, but did not finish high school. (AR 47.)

         Plaintiff testified at the administrative hearing that he previously worked as a grill operator and sandwich maker at Wendy's. (AR 48.) He was fired from this job because he and his supervisor could not get along. Id. Prior to that job, Plaintiff worked as a cashier at Factory 2-U for two months and Jack in the Box for approximately six months. (AR 49-51.)

         On a daily basis, Plaintiff stated he typically did not wake until the afternoon because his medications made him drowsy. (AR 53.) He claimed he needed assistance with bathing and household chores, but was capable of doing the dishes, dusting, and paying the bills. Id. Plaintiff explained he could walk between 10-15 minutes at a time, sit in a chair for 60 minutes, and was comfortable laying down for any period of time. (AR 60.)

         Plaintiff described various ailments that limited his functioning. He claimed that he was unable to perform his past work because he had bleeding from his rectum, diarrhea, hearing loss, and an inability to get along with others. (AR 50-52.) Plaintiff stated that the diarrhea was sporadic, and he needed to defecate approximately four to five times a day. (AR 59, 75.) Furthermore, he claimed that his ulcerative colitis caused painful bleeding from his rectum. (AR 63.) This ailment caused him to bleed through his clothing at least three times a week without warning. (AR 68-69.) He also took Humira for the ulcerative colitis, which inhibited his immune system. (AR 68.)

         The VE testified that Plaintiff's prior work included convenience store cashier, fast food worker, fast food cook, and retail clerk. (AR 77-78.) The ALJ presented a hypothetical employee to the VE, asking if there was work available for an individual with the same age, education, and work history as Plaintiff; who could perform light work, occasional lifting and standing, sitting, or walking up to six hours; frequent handling but no exposure to loud noises; occasional interaction with the public; and no more than simple work. (AR 78-79.) The VE stated Plaintiff's past work would not be appropriate but such a person could perform work as a laundry worker, mail room clerk, and night cleaner. (AR 79-80.)

         In her assessment, the VE further stated that an employee who was off task ten percent of the time (approximately six minutes per hour) would be tolerated in a workplace, but when the off-task time increased to fifteen percent, it would eliminate half of the jobs. (AR 81.) The VE explained an hourly break time limited to approximately six minutes was not disruptive, and was expected in the workplace to help employees refocus. (AR 82.) However, the percentage of time off task could not be at unscheduled intervals and taken all at once, i.e. for 20 minutes at a time to use the restroom, because an extended break period would not be appropriate. (AR 81-82.)

         The ALJ then offered two additional hypotheticals. The first added a sit-stand option to the prior hypothetical, which the VE concluded precluded the job of night cleaner but not mail room clerk or laundry worker. (AR 82.) The second limited the first hypothetical employee to sedentary jobs, which the VE stated would still permit work as a final assembler, bench hand, and document preparer. (AR 83-84.) However, in all of the hypotheticals the off-task limitations still applied. (AR 84.) The VE later noted that the off-task limitations were not incorporated into the Dictionary of Occupational Titles, but were augmented by the VE's experience. (AR 94.)

         Plaintiff's counsel noted that the ALJ's hypotheticals mirrored the limitations expressed by a non-examining physician Dr. Gwendolyn Johnson. (AR 84.) Counsel then elaborated upon the ALJ's hypothetical:

Q [T]he physical and the mental limitations that the judge gave you were from what's called a non-examining physician and the non-examining physician also indicated that the claimant would require easy access to restroom facilities. Can you explain which jobs would remain if that were to be accommodated?

A Well, I believe that if a person is working inside a facility, that bathrooms are going to be available. It's not like they're in construction or out on a job site or that sort of thing, so I would say that all the jobs I mentioned would have ample access to a restroom. It's just a matter of how often.

Q Right, and how that particular facility, company, worksite is laid out, correct?

A Well if you're talking about a factory, I mean, there's going to be bathrooms available. . . .

Q Well I think you heard Mr. Medellin testify that he experiences diarrhea and bleeding and let's just assume that he needs to leave his work site in order to accommodate and not bleed through his pants or have accidents in his pants. It really depends on the worksite itself in terms of how close his bathroom is so that he doesn't have an accident. In other words, not every factory is laid out the same. . . . So we're really talking about individual work sites and whether or not they particularly have easy access to bathrooms. So how does that affect the numbers? . . .

A I really have no way to say how easy the access is. Easy access would be different for different people so you know, there is no way for me to answer a question about restroom placement in places of work.

(AR 84-86 (emphasis added).) In addition, the VE determined that the non-examining physician's conclusion that Plaintiff was moderately limited in his ability “to perform at a consistent pace without an unreasonable number and length of rest periods” would preclude all work. (AR 87-88.) Moreover, the VE stated that the non-examining physician's description of Plaintiff as moderately “unable to complete a workday and work weeks without interruptions from psychologically-based symptoms and to perform at a consistent pace without more than the normal rest periods” would also preclude all work. (AR 94.)

         III. SUMMARY OF ...