United States District Court, D. Arizona
J. Markovich United States Magistrate Judge
Remo Romulo Rainsford brought this action pursuant to 42
U.S.C. § 405(g) seeking judicial review of a final
decision by the Commissioner of Social Security
(“Commissioner”). Plaintiff raises three issues
on appeal: 1) the Administrative Law Judge
(“ALJ”) erred by failing to include all of
Plaintiff's mental limitations in the residual functional
capacity (“RFC”) assessment; 2) the ALJ failed to
fully develop the record; and 3) the ALJ failed to provide
clear and convincing reasons to discount Plaintiff's
statements about his bipolar disorder. (Doc. 16).
the Court are Plaintiff's Opening Brief, Defendant's
Response, and Plaintiff's Reply. (Docs. 16, 17, &
18). 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. For the reasons stated below, the
Court finds that the Commissioner's decision should be
affirmed. . . . . . .
filed an application for Supplemental Security Income on July
15, 2013.(Administrative Record (“AR”)
86). Plaintiff alleged disability beginning on July 15,
2013based on back problems, bipolar disorder,
and mental illness. (AR 86, 99, 217). Plaintiff's
application was denied upon initial review (AR 85) and on
reconsideration (AR 98). A hearing was held on February 29,
2016 (AR 43), after which ALJ Charles Davis found, at Step
Four, that Plaintiff was not disabled because he could
perform his PRW as a dump truck driver. (AR 22). On August
28, 2017 the Appeals Council denied Plaintiff's request
to review the ALJ's decision. (AR 1).
was born on January 13, 1968, making him 45 at the AOD of his
disability. (AR 99). He has an 11th grade education and has
past relevant work as a horse caretaker, ranch hand,
landscape laborer, vet assistant, water truck driver, and in
maintenance. (AR 83, 239).
August 7, 2012 Plaintiff was seen at COPE Community Services
for a psychiatric diagnostic interview. (AR 281). He had poor
insight, judgment, and concentration, and was angry and
agitated. Plaintiff was possibly under the influence, was not
directable, and was only able to express wanting help for his
elbow and stated he was only at COPE because he was
court-ordered to be there.
February 5, 2013 Plaintiff was seen for medication refills
for Fluoxetine for depression and Quetiapine for mood
instability. (AR 282). He was friendly with good eye contact,
memory appropriate, thought processes logical and coherent,
and had good concentration, judgment, and insight. Diagnoses
were bipolar II disorder and cannabis abuse.
March 5, 2013 Plaintiff was friendly with good eye contact,
mood and concentration good, thought processes logical and
coherent, and judgment fair due to illicit cannabis use. (AR
288). He was medication compliant and his bipolar disorder
was stable or improved. (AR 289).
April 25, 2013 Plaintiff was talkative with an even mood,
thought processes were logical and coherent, concentration,
insight, and judgment good, and memory appropriate. (AR 286).
He was medication compliant and bipolar disorder stable or
improved. (AR 287).
3, 2013 Plaintiff asked for a seriously mentally ill
(“SMI”) designation to help him with a disorderly
conduct charge. (AR 284). His memory was appropriate,
judgment and concentration were good, insight fair, and
thought processes tangential. Plaintiff was medication
compliant and bipolar disorder was stable or improved. (AR
September 18, 2013 Plaintiff reported he stopped Seroquel
because it made him twitch and that cannabis controlled his
anxiety and mood instability. (AR 290). He was depressed
because his hip hurt and frustrated. Plaintiff had good
judgment, insight, and concentration, anxious mood, and
logical and coherent thought processes. A review summary that
same date notes that Plaintiff reported stopping his
medications because they were causing twitches, dry mouth,
and disturbed sleep. (AR 294).
various other non-mental health appointments, Plaintiff was
described as tangential, talkative, and animated (AR 390,
483, 486, 502, 508), alert and oriented x3 (AR 392, 420, 478,
481, 484, 505, 527, 532, 535), normal/appropriate affect (AR
420, 478, 519, 527, 535), pleasant and cooperative (AR 390,
478, 519), and anxious (AR 443, 484, 505, 510, 513).
Plaintiff denied depression, bipolar disorder, and anxiety on
multiple occasions (AR 397, 426, 530, 534) and reported using
medical marijuana to relieve stress (AR 398, 426). At an ER
visit for back pain, Plaintiff had pressured speech and
tangential thought processes and the physician believed
Plaintiff had a mental health issue with mania and was
exhibiting drug seeking behavior. (AR 480-81). At an ER visit
for eye redness, the physician noted Plaintiff had an obvious
psychiatric disturbance and required a lot of redirection.
(AR 502). At an ER visit for elbow pain, Plaintiff was loud,
yelling, inappropriate, and said he wanted to hit someone
with a hammer. (AR 510). When security arrived, Plaintiff
calmed down and said he wanted to go home.
physical medicine consultation with Dr. Hassman on November
1, 2013, Plaintiff denied depression but reported anxiety.
(AR 344). Plaintiff was described as awake and alert,
oriented times three, pleasant and cooperative, and extremely
had cognitive testing with Dr. Plevell on February 23, 2016.
(AR 358). Plaintiff was described as alert and oriented with
elevated affect and rapid speech, and his thought processes
were circumstantial, tangential, and loose in association.
Dr. Plevell's conclusion was:
The client's condition appeared to be most consistent
with the diagnoses of: Bipolar Disorder; R/O Unspecified
Neurocognitive Disorder. Testing suggested highly significant
difficulty with processing speed and possibly with
abstraction. Behaviorally, he demonstrated rapid speech and
significantly disorganized thought. It is unclear if these
issues are due to a primary condition or secondary to his
State Agency Physicians
initial review, state agency physician Dr. JES found that
Plaintiff had mild restriction in activities of daily living,
moderate difficulties in social functioning and in
maintaining concentration, persistence, or pace, and one or
two episodes of decompensation. (AR 90). Dr. JES noted that
Plaintiff had a history of tangential thought processes and
poor judgment that had gotten him into legal trouble, and was
not compliant with his meds, which was a common problem with
affective disorders and thus was regarded as a consequence of
his mental impairment rather than a contributing factor. (AR
91). Dr. JES assessed the following limitations: marked
limitation in ability to understand and remember detailed
instructions, carry out detailed instructions, and interact
with the general public; moderate limitation in ability to
maintain attention and concentration, perform activities
within a schedule, maintain regular attendance, and be
punctual, complete a normal workday and workweek without
interruption from psychologically based symptoms and perform
at a consistent pace, accept instruction and respond
appropriately to criticism from supervisors, and get along
with coworkers and peers. (AR 93-94). Dr. JES opined that
Plaintiff could perform simple tasks on a sustained basis,
interact with peers and supervisors on a superficial, work
basis, and could adapt to a work situation with simple tasks
and no public contact. (AR 95). These findings were affirmed
on reconsideration. (AR 103-104, 107-108).
Disability Report dated July 19, 2013 Plaintiff stated that
he stopped working in 2008 due to personal reasons. (AR 217).
On a Function Report dated October 3, 2013 Plaintiff reported
that he could not work because of pain and arthritis in his
right elbow and pain in his right hip. (AR 231). He takes
care of his pets, has no problems with personal care,
prepares his own meals, and does chores like vacuuming,
watering the plants, and taking out the trash. (AR 232-233).
On the section about his abilities, Plaintiff did not note
any mental-related impairments. (AR 236). For how long he can
pay attention, he wrote “I so broke I can't afford
to pay” but checked the box indicating he can finish
what he starts. (AR 236). For how well he can follow written
instructions, Plaintiff stated he had problems writing
because of his elbow pain, and for how well he can follow
spoken instructions, Plaintiff wrote “what does that
have to do with my hip.” (AR 236).
hearing before the ALJ, Plaintiff testified he lives with his
78-year-old mother and that he tries to help her with yard
work, watering flowers, vacuuming, and cleaning. (AR 51). He
stated that it was frustrating because he hadn't been
able to get a full-time job but also that he had not applied
for any; he used to do seasonal work on ranches because he
traveled around playing polo but has not played since 2002.
(AR 52). His back and elbow pain prevent him from working
now. (AR 52, 53).
current medications are Flucytosine for his nose and fish
oil. (AR 53). At times he takes pain medication but mainly
uses medical marijuana. (AR 55, 69). His mother gives him
money when he helps with chores to purchase the marijuana.
(AR 70). Plaintiff was previously court-ordered to take
Prozac and Seroquel. (AR 71-72). He did not take Prozac; the
jail gave him Risperdal but it gave him headaches so it was
changed to Seroquel, but that also gave him bad headaches and
put him in a fog. (AR 72). Plaintiff reported that COPE staff
told him to follow up with the doctors but that they were
happy he was using marijuana right now. (AR 72).
questioning by his attorney, Plaintiff stated that he had
problems processing new information and staying focused. (AR
62). He had problems bouncing around and changing the subject
ever since someone gave him LSD at 4 years old; he loses
track and then comes back to things but gets overwhelmed,
confused, and anxious. (AR 62). Plaintiff stated that he
tries to get along with everyone, but then also admitted that
he had called his counsel's office multiple times in a
row upset and yelling because he gets agitated about things.
(AR 63). He does not like being around a lot of people and
had never gotten in a fight with anyone, but there were