United States District Court, D. Arizona
James S. Miller, Plaintiff,
Nancy A. Berryhill, Acting Commissioner of Social Security, Defendant.
HONORABLE BRUCE G. MACDONALD UNITED STATES MAGISTRATE JUDGE
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.
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
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.
Factual History 
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.
June 24, 2013
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.
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.
September 21, 2016
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.
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.
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.
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.
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.
April 3, 2017
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.
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.
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.
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.
Vocational Expert Sonia ...