United States District Court, D. Arizona
ORDER
Bernardo P. Velasco, United States Magistrate Judge.
Plaintiff
Cynthia Miller filed the instant action seeking review of the
final decision of the Commissioner of Social Security. (Doc.
1.) The Magistrate Judge has jurisdiction over this case
pursuant to the parties' consent under 28 U.S.C. §
636(c). (Doc. 16.) The matter is now fully briefed before
this Court. (Docs. 17-19.) For the following reasons, the
Court reverses the Commissioner's decision and remands
for consideration in accordance with this Order.
I.
Procedural History
On May
21, 2013, Plaintiff filed an application for disability and
disability insurance benefits (Administrative Record
(“AR”) 234-40), and on May 21, 2013 she filed a
Title XVI Application for Supplemental Security Income (AR
241-49). Plaintiff alleged disability as of January 1, 2012.
(AR 272.) Plaintiff claimed disability due to Bipolar
Disorder, depression, anxiety, auditory hallucinations,
degenerative disc disease, COPD, gout, obesity, carpal tunnel
syndrome, and hernias. (AR 277.) Plaintiff's application
was initially denied on September 25, 2013 (AR 68-84,
154-57), and upon reconsideration on March 26, 2014. (AR
104-124). On September 2, 2015, Plaintiff appeared before an
Administrative Law Judge (“ALJ”). (AR 4.) The ALJ
issued an unfavorable decision on November 13, 2015. (AR
4-17.)[1] Following Plaintiff's Request for
Review (AR 230-33), the Appeals Counsel denied
Plaintiff's request on August 17, 2017 (AR 24), making
the ALJ's decision the Commissioner's final decision
for the purposes of review.
Plaintiff
filed the instant action on October 16, 2017, arguing that:
(1) the ALJ failed to give clear and convincing reasons for
discrediting Plaintiff; (2) the ALJ did not properly account
for the limiting effects of Bipolar Disorder; (3) the ALJ
gave inappropriate weight to the opinions of examining
physicians Dr. Brenda Sparrold and Dr. Machelle Martinez; and
(4) the residual functioning capacity was not supported by
substantial evidence. (Doc. 17 at 2.) Because the Court finds
that the ALJ erred on the first two grounds, and this error
was not harmless, the Court does not address Plaintiff's
other arguments.
II.
Plaintiff's Background, Statements and Vocational
Expert's Findings
a.
Plaintiff's Testimony
Plaintiff
was thirty-three years old on the date of the alleged onset
of disability. (AR 278.) She completed high school and some
college classes. (AR 278.) Plaintiff's past work included
working at a call center and as a hemodialysis technician.
(AR 15.) In the Administrative Hearing, Plaintiff claimed she
suffered from daily anxiety and depression. (AR 49-50.) The
anxiety caused physical impairments including sweating,
dizziness, asthma, and loss of vision. (AR 50.) Plaintiff
controlled her anxiety attacks with medication, but the
medication took approximately 20-30 minutes before offering
any relief. (AR 50.)
Plaintiff
also testified that she experienced audio hallucinations a
few times a week and visual hallucinations a few times a
month. (AR 50.) Plaintiff described her hallucinations,
claiming she heard children laughing and a man telling her
“I've already failed at life, . . . nobody loves me
. . . I don't have anything together, I'm not well. .
. I can't do anything right and I just may as well give
up because there's just nothing ahead for me.” (AR
51.)
Plaintiff
claimed the hallucinations interfered with her ability work
in previous jobs, causing her to be fired after a short time.
(AR 51.) She indicated several short-term jobs for which she
was unable to maintain prolonged employment. (See
e.g., AR 42 (fired from Life Sonora Homes near Christmas
2012); AR 41 (in 2012, worked at Go Wireless “for a
very short time”); AR 44-45 (in 2011, fired from
A'Garo Administrative Service after six months); AR 45
(in 2010, fired from Corey G. Hicks & Associates after
short term); AR 45 (in 2009, fired from Afni after 9-10
months); AR 46-47 (in 2003, worked as a hemodialysis
technician for approximately six months); AR 1184 (record
shows “approximately 8 terminations for failure to
attend work”).) For example, Plaintiff claimed that in
her customer service job at Afni in 2009, her anxiety was so
severe that her supervisor needed to stay with her in her car
before work, calm her down, and coax her to come inside. (AR
46.) Once this supervisor left, Plaintiff was no longer
capable of showing up for work and lost her job. (AR 46.)
Plaintiff
explained that she supported herself though food stamps and
occasional blood donations. (AR 43.) In addition, her housing
and utilities were provided by COPE Community Services. (AR
43.) When asked about other financial support, Plaintiff
described a three to four-week trip to Canada completely paid
for by a male friend. (AR 43-44.) She claimed she got engaged
to this man while there, but since she did not really know
him, she had since called the engagement off. (AR 44.)
Plaintiff
testified that even if she had simple, assembly line-type
employment, she could not do it because of her ongoing pain
and mental impairments. (AR 51-54.) She claimed the stress of
even a simple job would cause her to constantly feel like she
would be fired, which in turn would aggravate her anxiety,
and eventually lead to her actually being fired. (AR 51-54.)
b.
Vocational Expert Testimony
The ALJ
asked the Vocational Expert (“VE”) whether a
hypothetical person could participate in Plaintiff's
prior work if this person could work 6 hours a day, carry up
to 20 pounds, climb, and had “no manipulative, visual,
or communicative limitations, ” but would need to avoid
“fumes, odors, dusts, gases, poor ventilation, and . .
. hazardous machinery or unprotected heights.” (AR 61.)
The ALJ further indicated that such a person would be capable
of understanding simple instructions and procedures, and
could perform sustained, simple work. Id. However,
this person may “perform best in settings with limited
social interactions and that is with not only the general
public, but also with supervisors and with coworkers or
peers.” (AR 61-62.)
The VE
responded that such person could not perform Plaintiff's
prior work, but could work as a courier messenger or janitor.
(AR 62-63.)
Plaintiff's
attorney then asked the VE if such person would be employable
if the person also had daily panic attacks for 20 minutes at
a time, needed assistance to coax her into the workplace, and
was off task approximately 15 percent of the day. (AR 63-64.)
The VE responded that such a person would not be able
participate in sustained work. (AR 64.)
III.
Summary of ALJ's Findings
Whether
a claimant is disabled is determined pursuant to a five-step
sequential process. See 20 C.F.R. §§
404.1520, 416.920. To establish disability, the claimant must
show: (1) she has not performed substantial gainful activity
since the alleged disability onset date (“step
one”); (2) she has a severe impairment(s) (“step
two”); and (3) her impairment(s) meets or equals the
listed impairment(s) (“step three”). Id.
“If the claimant satisfies these three steps, then the
claimant is disabled and entitled to benefits. If the
claimant has a severe impairment that does not meet or equal
the severity of one of the ailments listed[, ] . . . the ALJ
then proceeds to step four, which requires the ALJ to
determine the claimant's residual functioning capacity
(RFC).” Dominguez v. Colvin, 808 F.3d 403, 405
(9th Cir. 2015). Then, “[a]fter developing the RFC, the
ALJ must determine whether the claimant can perform past
relevant work.” Id. Then, at stage five,
“the government has the burden of showing that the
claimant could perform other work existing in significant
numbers in the national economy given the claimant's RFC,
age, education, and work experience.” Id.; 20
C.F.R. §§ 404.1520, 416.920.
In this
case, at step one, the ALJ found that Plaintiff had not
engaged in substantial gainful activity since January 1,
2012. (AR 6.)
At step
two, the ALJ determined that Plaintiff had severe
impairments, including morbid obesity, Bipolar Disorder with
psychotic features, Post-Traumatic Stress Disorder, and panic
disorder without agoraphobia. (AR 6.)
But the
ALJ decided, at step three, that the Plaintiff's
impairments did not meet or equal the listed impairments
either singularly or in combination. (AR 7.) Specifically,
the ALJ determined that Plaintiff had not demonstrated her
mental impairments met the criteria for Listing 12.04
(Affective Disorders including Bipolar) or 12.06 (Anxiety
Related Disorders). (AR 7.) The ALJ concluded that Plaintiff
exhibited no marked restrictions in function and no periods
of decomposition, both of which are necessary for a
disability determination under paragraph B of the Listings
for mental impairments. (AR 7-8.)
At step
four, the ALJ stated that given the limiting effects of her
ailments, Plaintiff's RFC included light work; standing,
walking, or sitting for 6 hours a day with normal breaks;
occasional crawling and climbing; and frequent balancing,
stooping, kneeling, and crouching. (AR 9-10.) The RFC
eliminated exposure to areas without proper ventilation,
hazardous machinery, and unprotected heights. Id.
Furthermore, the ALJ found that Plaintiff could follow simple
instructions in the workplace and work on a sustained basis.
(AR 10.) Finally, the ALJ determined that Plaintiff would
require limited social interaction with the public,
supervisors, co-workers, and peers. Id. Based on
this assessment, the ALJ concluded that Plaintiff could not
perform past relevant work. (AR 15.)
However,
at step five, given Plaintiff's RFC, age, education, and
work experience, the ALJ found that Plaintiff was not
disabled and could work as a courier messenger or janitor.
(AR 17.)
IV.
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