United States District Court, D. Arizona
Adan V. Medellin, Plaintiff,
v.
Commissioner of Social Security Administration, Defendant.
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.
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