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Miller v. Berryhill

United States District Court, D. Arizona

September 28, 2018

James S. Miller, Plaintiff,
v.
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.

          ORDER

          HONORABLE BRUCE G. MACDONALD UNITED STATES MAGISTRATE JUDGE

         Currently pending before the Court is Plaintiff's Brief (Doc. 17). Defendant filed her Brief (“Response”) (Doc. 18), and there was no reply. 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.

         I. BACKGROUND

         A. Procedural History

         On March 23, 2012, Plaintiff filed a Title II application for Social Security Disability Insurance Benefits (“DIB”) alleging disability as of December 31, 2010 due to degenerative arthritis and type 2 diabetes mellitus. See Administrative Record (“AR”) at 19, 21, 32, 35, 39-43, 47-49, 52, 55, 62, 122, 129, 141, 155, 172, 180, 632. Plaintiff's date last insured is June 30, 2016. Id. at 21, 40, 48, 141, 170, 178, 476. The Social Security Administration (“SSA”) denied this application on July 2, 2012. Id. at 19, 39- 46, 55-57. On July 17, 2012, Plaintiff filed a request for reconsideration, and on November 29, 2012, SSA denied Plaintiff's application upon reconsideration. Id. at 47- 54, 58, 62-64. On December 17, 2012, Plaintiff filed his request for hearing. Id. at 19, 65-66. On June 24, 2013, a hearing was held before Administrative Law Judge (“ALJ”) Peter J. Baum. AR at 19, 28-38. On July 22, 2013, the ALJ issued an unfavorable decision. Id. at 16-24. On August 29, 2013, Plaintiff requested review of the ALJ's decision by the Appeals Council, and on November 26, 2014, review was denied. Id. at 1-3, 13. On January 22, 2015, Plaintiff filed a complaint in the United States District Court, District of Arizona. No. CV-15-030-TUC-BGM, Miller v. Colvin; see AR at 572-620. On March 31, 2016, the undersigned issued an Order reversing the ALJ's decision and remanding for further proceedings and analysis beyond Step Two of the sequential evaluation. AR at 597-620.

         On May 9, 2016, the Appeals Council notified Plaintiff that the matter had been returned to the ALJ. Id. at 621-23. On September 21, 2016, a second hearing was held before the ALJ; however, at this time ALJ Yasmin Elias was substituted in place of ALJ Baum. Id. at 491-526. The Vocational Expert was unavailable to testify at this hearing. See Id. at 491-526, 529-30. As such, a supplemental hearing took place on April 3, 2017. Id. at 527-52. On July 22, 2013, the ALJ issued her unfavorable decision. AR at 471-82. On August 9, 2017, Plaintiff filed his Complaint (Doc. 1) in this matter seeking review pursuant to Section 405(g), Title 42, United States Code. See Compl. (Doc. 1).

         B. Factual History [1]

         Plaintiff was sixty-two (62) years old at the time of the first administrative hearing, sixty-six (66) at the time of the second administrative hearing, as well as the third hearing, and sixty (60) at the time of the alleged onset of his disability. AR at 31, 39-40, 47-48, 122, 141, 170, 178, 474, 480, 491, 498, 527. Plaintiff obtained a high school diploma. Id. at 31, 39, 47, 156. Prior to his alleged disability, Plaintiff worked in the copper mining industry, most recently as a maintenance superintendent. Id. at 32, 132-34, 156, 164-69, 186-88. Since that time he has worked briefly at Lowe's Home Improvement. Id. at 33-34, 140, 148, 186, 188.

         1. Plaintiff's Testimony

         a. Administrative Hearing

         i. June 24, 2013

         At the administrative hearing, Plaintiff testified that he has a high school diploma. AR at 31. Plaintiff further testified that he worked in the copper mining industry as a maintenance superintendent until he retired in December 2010. Id. at 32. Plaintiff was a working superintendent, supervising sixty-five (65) people. Id. at 33. Plaintiff also testified that his legs and feet gave him trouble, and he was on his feet most, if not all of his shift, carrying pipes and other equipment. Id. After retirement, Plaintiff worked at Lowe's for a short period; however, his feet were too painful standing on the concrete floor for an entire shift, so he resigned. Id. at 33-34.

         Plaintiff confirmed that he is receiving some retirement income. AR at 34. Plaintiff also confirmed that if he tried to return to his former mining employment, he would be unable to perform the job due to having to be on his feet most of the day. Id. at 34-35. Plaintiff testified that he was diagnosed with arthritis in his thumb joint, including two nodules on the tendon approximately three (3) weeks prior to the hearing. Id. at 35.

         ii. September 21, 2016

         Plaintiff testified that his alleged onset date coincided with the date that he retired from the copper mines. AR at 498. Plaintiff noted that he was fifty-nine and a half (59 1/2) at the time of his retirement. Id. Plaintiff described the circumstances of his retirement as being brought into the office and told that he was not doing his job, and being given a choice of either retiring or being fired. Id. Plaintiff further noted that he had “a lot of medical issues at that time.” Id. Upon further examination, Plaintiff explained that management did not feel Plaintiff was spending enough time in the office, because he was out doing other things on site rather than sitting at his desk. Id. at 516- 18. Plaintiff further explained that management did not like him being out of contact, away from his phone. AR at 518.

         Plaintiff testified that he was a superintendent of the crushing and conveying department of Freeport McMoran Copper and Gold at that time. Id. at 498-99. Plaintiff described his job duties as desk work, which included doing budgets for the crushing materials, as well as “keeping track of 160 people.” Id. at 499. Plaintiff further explained that keeping track of people included walking plans for jobs out to the planners, and checking on each job at least once a day. Id. at 499, 504. Plaintiff testified that he would walk around the crushing and conveying building, but the remainder of his out of office responsibilities entailed driving. Id. at 499-500. Plaintiff estimated that he would also lift approximately fifty (50) to sixty (60) pounds multiple times per day. AR at 504. Plaintiff further testified that he worked as the superintendent for five (5) years. Id. at 500. Prior to working as a superintendent, Plaintiff worked for seven years as a planner, during which time he “planned all the jobs and made sure all the parts [were] there and delivered parts to the site where the job was.” Id. Plaintiff estimated that the planner job was comprised of approximately “25% sitting doing plans” and the remainder “was out delivering parts to the worksite and checking on the jobs to see where they were so [he] could report back to the superintendent.” Id. at 500.

         Plaintiff testified that when he stopped working in 2010, he had diabetes and in 2007 had two stents put in and an ablation in his heart. Id. at 502. Plaintiff further testified that the heart surgery improved his overall health greatly. AR at 503. Plaintiff also testified that the diabetes caused neuropathy, as well as his feet and legs to ache if he walked or stood on concrete for long. Id. Plaintiff estimated that in 2010 the neuropathy encompassed his feet and just above his ankles, but has progressed up to his knees. Id. at 504-05. Plaintiff described the pain as generally burning, but with occasional, sharp, sudden pain. Id. at 505. Plaintiff also described pain in his hips in 2010 as traveling across the lower part of his back, which makes it difficult to stand up when he gets out of bed in the morning and would increase when he was walking on concrete. Id. at 505, 507. Plaintiff further noted that he could not run. Id. at 506. Plaintiff rated his hip and lower back pain as an eight (8) or nine (9) out of ten (10). AR at 507-08. Plaintiff testified that he did not suffer pain sitting as much in 2010, as currently, noting that he could spend quite a bit of the 25% of his day doing paperwork before needing to get up and walk. Id. at 506. Plaintiff clarified that his back pain is in his low back and coextensive with his hip pain. Id. at 508. Plaintiff testified that since 2010, he can only sit for approximately fifteen (15) minutes at a time before he needs to stand up and walk or squirm in his seat. Id. at 508-09. Similarly, Plaintiff stated that he can only stand for approximately fifteen (15) minutes at a time before his back and legs begin to hurt. Id. at 509. Plaintiff noted that this pain had existed since 2009 or 2010. AR at 509. Plaintiff also estimated that since 2010, he can walk about three-quarters of a block before he needs to stop, and if possible, sit down. Id. Plaintiff stated that it was more painful to sit in the office; however, it was also his personal philosophy that he needed to be out on the floor, checking jobs. Id. at 519. Plaintiff testified that he has only had two (2) physical therapy appointments, and was given exercises for his back for getting out of bed. Id. at 514. Plaintiff confirmed that he has been doing the exercises. Id. Plaintiff stated that his hip and back pain do not feel mild. AR at 514. Plaintiff stated that he did not have neuropathy in his hands in 2010, but that it started about four (4) years ago, and causes him to drop things often. Id. at 506.

         Plaintiff testified that he limits himself to lifting and carrying approximately ten (10) pounds, although he does not think that any doctors have instructed such a limitation. Id. at 509. Plaintiff noted that he limits himself to ten pounds, because even if he can pick something up, he feels pain later on that night. Id. Plaintiff stated that he and his wife do the grocery shopping, and the he does approximately twenty-five (25) percent of the housework. Id. at 510. Plaintiff testified that he helps with the dusting and vacuuming, but in fifteen (15) minute increments. AR at 510. Plaintiff further testified that twisting and climbing stairs also exacerbate his pain. Id. at 510-11. Plaintiff indicated that he was compliant with his prescriptions. Id. at 511.

         Plaintiff testified that he worked at Lowe's for two (2) months during 2012. Id. at 512. Plaintiff further testified that he worked approximately twenty (20) hours per week on Friday, Saturday, and Sunday. Id. Plaintiff described the position as walking around and assisting people; however, he could not maintain the constant walking. AR at 512. Plaintiff also opined that he did not believe that he could perform work that required sitting, because he has to get up and move every fifteen (15) minutes due to back and leg pain. Id. at 512-13. Plaintiff further opined that his pain interferes with his mental functioning, although he has not received any therapy or prescriptions for the same. Id. at 513.

         ii. April 3, 2017

         Plaintiff again testified about his work at Lowes after leaving the copper mines. AR at 533. Plaintiff confirmed that he was only at Lowes for approximately two (2) months. Id. at 535. Plaintiff further testified that he could not continue in that position because the constant walking caused pain in his feet and legs. Id. at 533, 535. Plaintiff further described his job duties at the mine, explaining that it was an office job that required him to go out to check on his people. Id. at 533. Plaintiff also explained that although he did hire and fire, most of that task was left to the planners who worked for him. Id. Plaintiff estimated that he would spend approximately four (4) hours per day in the office. AR at 533, 535-36. Plaintiff further estimated that he would have to lift approximately fifty (50) to seventy-five (75) pounds. Id. at 534. Plaintiff also explained that his subordinates would produce budgets and schedules, but he would present the information to management. Id. at 534.

         Plaintiff clarified that the planner job and general coordinator job that he listed in his work history were the same job, but the mining company had changed the title. Id. at 539-41. He further explained that in those positions, he was coordinating maintenance on equipment and coordinating materials. Id. at 541. Plaintiff indicated that in the supervisor position, he had to have knowledge of every job, but did not supervise every job. AR at 542. Plaintiff also acknowledged spending the last approximately nine (9) months of his employment as a mechanic in a different section of the mine. Id. at 542- 43.

         b. Administrative Forms

         On June 11, 2012, Plaintiff filled out an Exertional Daily Activities Questionnaire, indicating that on an average day he “walk[s] around for approx: 30 min[utes.]” Id. at 161. Plaintiff reported that “as pain gets worse steps shorten and take more rest stops use [A]dvil for pain no more than 2-200 mg tabs a day.” AR at 161. Plaintiff further reported “[b]roncides night sweats use of inhailer [sic] 3-x a day[, ] still have shortness of breath.” Id. Plaintiff indicated that he grocery shops, as well as household chores including “vacuum[ing], dust[ing], dishes, clean[ing] toilet and showers[, ] mop[ping] floors, clean[ing] appliances (stove, ref[rigerator], dish washer).” Id. at 162. Plaintiff reported that he must “quit after each chore to rest.” Id. Plaintiff further reported being able to drive a car. Id. Plaintiff also indicated that he cleans the yard, provides for two (2) dogs, waters the garden, and mows the grass. AR at 162. Although he did these chores prior to becoming disabled, Plaintiff states that now “it takes a lot longer, if not the next day.” Id. Plaintiff reports resting for two (2) hours “halfway through the day.” Id. Plaintiff lists several medications and indicates that he also had stents placed in his coronary arteries, has diabetes, pain in his knees and ankles, and requires the use of an inhaler. Id. at 163.

         On appeal, Plaintiff completed a Disability Report - Appeal (Form SSA-3441), indicating that he has “arthritis in both ankles and Neuritis in both feet.” Id. at 172. Plaintiff reported that “the degenerative arth[r]itis has gotten worse in both . . . hips and back.” AR at 172. Additionally, Plaintiff stated that the “condition with [his] hips and back and feet has hindered the activities with [his] grandkids[, ] [and] the pain in [his] hips and back have gotten worse and [his] feet has slowed [him] down from being active, walks and jogging[.]” Id. at 176.

         2. Vocational Expert Sonia ...


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