United States District Court, D. Arizona
Bruce G. Macdonald, United States Magistrate Judge
pending before the Court is Plaintiff's Opening Brief
(Doc. 14). Defendant filed her Brief (“Response”)
(Doc. 15), and Plaintiff filed her Reply Brief
(“Reply”) (Doc. 16). Plaintiff brings this cause
of action for review of the final decision of the
Commissioner for Social Security pursuant to 42 U.S.C. §
405(g). Compl. (Doc. 1). The United States Magistrate Judge
has received the written consent of both parties, and
presides over this case pursuant to 28 U.S.C. § 636(c)
and Rule 73, Federal Rules of Civil Procedure.
November 16, 2012, Plaintiff filed a Title II application for
Disability Insurance Benefits (“DIB”) and Title
XVI application for Supplemental Security Income
(“SSI”) alleging disability as of December 30,
2010. Administrative Record (“AR”) at 23, 154.
After proceeding through the normal administrative process,
the Administrative Law Judge (“ALJ”) issued his
unfavorable decision, finding Plaintiff not disabled, on
December 6, 2013. Id. at 23, 154-63. Plaintiff
sought review, and on April 11, 2014, the Appeals Council
remanded the matter back to the ALJ for further consideration
of mental impairments. Id. at 23, 173. After a
second hearing, on October 14, 2014, the ALJ again issued an
unfavorable decision. Id. at 23, 173-86. Plaintiff
again sought review, which was denied on January 16, 2015.
Id. at 195-97. No. further action was taken by
Plaintiff until she began the process in this case.
14, 2015, Plaintiff filed a Title XVI application for SSI
alleging disability as of October 15, 2014 due to bilateral
knee impairments, back impairments, post-traumatic stress
disorder (“PTSD”) with worsening agoraphobia,
cognitive impairments, and Type II diabetes mellitus.
See AR at 22, 25, 201-02, 206, 208, 220-21, 308,
343, 363, 366, 387. The Social Security Administration
(“SSA”) denied this application on February 18,
2016. Id. at 22, 201-19, 244-48. Plaintiff filed a
request for reconsideration, and on July 1, 2016, SSA denied
Plaintiff's application upon reconsideration.
Id. at 22, 220-42, 249-53. On July 13, 2016,
Plaintiff filed her request for hearing. Id. at 22,
254-67. On January 9, 2017, a hearing was held before
Administrative Law Judge (“ALJ”) Yasmin Elias.
Id. at 22, 54-96. On February 13, 2017, the ALJ
issued an unfavorable decision. AR at 19-46. On February 20,
2017, Plaintiff requested review of the ALJ's decision by
the Appeals Council, and on April 12, 2017, review was
denied. Id. at 1-5, 12-18, 459-66. On April 27,
2017, Plaintiff filed this cause of action. Compl. (Doc. 1).
was thirty-five (35) years old at the time of the
administrative hearing, and thirty-three (33) at the time of
the alleged onset of her disability. AR at 43, 100, 131, 208,
221, 307, 343, 363, 387. Plaintiff received a high school
diploma, although she attended special education classes.
Id. at 44, 68, 95, 132, 201, 206, 208, 220. Prior to
her alleged disability, Plaintiff worked as a housekeeper,
cashier, and a front desk clerk. Id. at 43, 74, 77,
administrative hearing, Plaintiff testified that she feels
that she cannot work, because her PTSD triggers her traumatic
brain injury and her mobility. AR at 62. Plaintiff further
testified that she had knee surgery on her right knee twice.
Id. at 63. Plaintiff stated that she walks with a
cane, which was not prescribed by a doctor. Id. at
63. Plaintiff estimated that she can walk less than a block
at one time. Id. Plaintiff stated that she also has
trouble sitting, but adjusts because she would rather sit
than stand. Id. at 64. Plaintiff testified that she
cannot kneel, crouch, stoop or bend. AR at 64. Plaintiff
further testified that if she drops something on the floor
she has her son pick it up, or tries to “wiggle it
up” with her cane. Id. Plaintiff stated that
her back pain is on the left side and travels from back
around her hip to the front. Id. Plaintiff further
stated that she has difficulty balancing and walking.
Id. at 65. Plaintiff testified that she has
tendinitis and arthritis in her thumb on her right hand.
Id. at 65.
further testified that she suffered a traumatic brain injury
in a near drowning incident that occurred when she was three
(3). AR at 66. Plaintiff also testified that she had received
blows to the head in the course of an abusive relationship.
Id. at 67-68. Plaintiff stated that she struggled
through school, stayed in special education classes, and
graduated with a low academic score. Id. at 68.
Plaintiff also testified that she had difficulty with her
previous Social Security application, because she struggled
with the paperwork. Id. at 68-69. Plaintiff
testified that if there is a lot of information on a form,
she has trouble understanding the whole form. Id. at
further testified that her knee was originally injured in an
altercation with a Tucson police officer. AR at 69. Plaintiff
also testified that she suffers significant PTSD from that
event, as well as the abuse she had suffered in previous
relationships. Id. at 69-70. Plaintiff stated that
men, such as police officers, who appear to be loud and
threatening trigger her PTSD, which makes her feel like
leaving or running. Id. at 70. Plaintiff also stated
that when her PTSD is triggered, she suffers symptoms such as
a racing heart, heaving breathing, and crying. Id.
Plaintiff further testified that she began art therapy, but
felt threatened by a male staff member. Id. at
70-71. Plaintiff also discussed her difficulty in maintaining
services, which arose from her brother's untimely death
at Arizona State Hospital. AR at 71-72.
testified that she lives with her 14-year-old son.
Id. at 73. Plaintiff further testified that her last
paid job was in housekeeping at Villa Maria. Id. at
74. Plaintiff also confirmed working at Motel 6 as a front
desk clerk, as well as a cashier at AM PM. Id. at
76. Plaintiff stated that she was discharged from the Motel 6
position, because an audit showed that she had made multiple
data entry mistakes. Id. at 77. Plaintiff testified
that she is a daily medical marijuana user. AR at 77-79.
Plaintiff noted that she also takes Wellbutrin for either her
anxiety or depression. Id. at 79.
indicated that she has applied multiple times for social
security. Id. at 75. Plaintiff was unclear regarding
how many times she applied and the precise years of
application; however, she confirmed two, possibly three prior
applications. Id. at 75-76, 81-82.
Vocational Expert Cathleen Spencer's
Cathleen Spencer testified as a vocational expert at the
administrative hearing. AR at 22, 83-94. Ms. Spencer
confirmed that if her opinion conflicted with the Dictionary
of Occupational Titles (“DOT”), she would alert
the ALJ and Plaintiff to the conflict. Id. at 83.
Ms. Spencer described Plaintiff's past work as a sales
clerk as DOT number 290.477-014, Specific Vocational
Preparation (“SVP”) of 3, and light work.
Id. at 85. Ms. Spencer described Plaintiff's
past work as a cleaner, commercial or institutional, as DOT
number 381.687-014, SVP 2, heavy work. Id. at 85-86.
Ms. Spencer additionally included past work as a fast food
worker, which Plaintiff indicated was at KFC. Id. at
85-86. Ms. Spencer described this work as DOT number
311.472-010, SVP 2, light work. AR at 86.
asked Ms. Spencer about a hypothetical individual with the
same age, education, and work experience as the Plaintiff.
Id. The ALJ asked if such an individual would be
able to perform work at the medium exertion level with the
additional limitations of “occasionally [climbing]
ramps or stairs[;] never ladders, ropes or scaffolds[;]
occasionally kneel, crawl and crouch[;] is able to understand
and remember and carryout simple instructions and make simple
work-related decisions[;] respond appropriately to
supervision, coworkers and work situations[;] and deal with
routine changes at work[, ] [b]ut the work should not require
beyond three to fifth grade level reading, writing and math[,
] and the work should only have occasional superficial
contact with coworkers and supervisors and non to minimal
with the public[.]” Id. at 86-87. Ms. Spencer
testified that such an individual would not be able to
perform Plaintiff's past relevant work. Id. at
87. Ms. Spencer further testified that an individual with the
hypothetical residual functioning capacity could perform work
as a hand packager, DOT number 920.587-018, described as
medium work, SVP 2, and 42, 000 jobs available in the
national economy. Id. Ms. Spencer also reported that
an individual could perform work as a machine packager, DOT
number 920.685-078 and described as medium work, SVP 2 with
30, 000 jobs available in the national economy, as well as a
cleaner II, DOT number 919.687-014, described as medium work,
SVP 1, with 6, 000 jobs available in the national economy. AR
the asked Ms. Spencer regarding an individual with the same
residual functional capacity as the first hypothetical, but
who could only perform work at the light exertional level.
Id. at 88. Ms. Spencer provided three (3) possible
jobs that such an individual could perform, including: (1)
housekeeping, DOT number 323.687-014, light work, SVP 2, with
135, 000 jobs available in the national economy; (2) router,
DOT number 222.587-038, light work, SVP 2, with 53, 000 jobs
available in the national economy; and (3) retail worker, DOT
number 209.587-034, light work, SVP 2, with 292, 000 jobs
available in the national economy. Id.
third hypothetical asked of Ms. Spencer by the ALJ included a
hypothetical individual with the same residual functional
capacity, but who could only perform sedentary work.
Id. Ms. Spencer stated that such an individual could
perform the work of a document preparer, DOT number
249.587-018, which is sedentary work, with an SVP of 2, and
46, 000 jobs available in the national economy. Id.
Ms. Spencer also testified that such an individual could
perform work as an addresser, DOT number 209.587-010,
sedentary, SVP 2, and 6, 000 jobs available in the national
economy, as well as tube operator, DOT number 239.687-014,
sedentary, SVP 2, with 3, 000 jobs available in the national
economy. Id. Ms. Spencer also confirmed that all of
the sedentary jobs would allow an individual to alternate or
move positions every thirty (30) minutes while remaining