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Ahmed v. Berryhill

United States District Court, D. Arizona

March 29, 2019

Huda Ahmed, 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 Opening Brief (Doc. 16). Defendant filed her Brief (“Response”) (Doc. 17), and Plaintiff filed her Reply Brief (“Reply”) (Doc. 18). 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). 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 September 27, 2013, Plaintiff filed a Title XVI application for Supplemental Security Income (“SSI”) alleging disability as of September 27, 2013 due to insomnia, post-traumatic stress disorder (“PTSD”), depression, and high blood pressure.[1] See Administrative Record (“AR”) at 21, 23, 38, 53, 64-65, 67-68, 72, 192, 222. The Social Security Administration (“SSA”) denied this application on January 23, 2014.[2] Id. at 21, 64-70. On February 20, 2014, Plaintiff filed a request for reconsideration, and on July 11, 2014, SSA denied Plaintiff's application upon reconsideration. Id. at 21, 71-83. On July 24, 2014, Plaintiff filed her request for hearing. Id. at 21, 96-97. On January 14, 2016, an initial hearing was held before Administrative Law Judge (“ALJ”) Laura Speck Havens. Id. at 21, 49-63. On May 26, 2016, a supplemental hearing was held before ALJ Havens. AR at 21, 35-48. On June 28, 2016, the ALJ issued an unfavorable decision. Id. at 18-29. On July 29, 2016, Plaintiff requested review of the ALJ's decision by the Appeals Council, and on October 25, 2017, review was denied. Id. at 1- 4, 189-91. On November 22, 2017, Plaintiff filed this cause of action. Compl. (Doc. 1).

         B. Factual History

         Plaintiff was fifty-five (55) years old at the time of the initial administrative hearing, fifty-six (56) at the time of the supplemental hearing, and fifty-three (53) at the time of the alleged onset of her disability. AR at 54, 64-65, 67-68, 72-73, 149, 192, 218, 244, 264. Plaintiff obtained a high school diploma. Id. at 54, 64, 69, 80, 223. Prior to her alleged disability, Plaintiff worked in fast food, as a hotel housekeeper, and as a sales associate at Target. Id. at 199-200, 254.

         1. Plaintiff's Testimony

         a. Administrative Hearing

         i. January 14, 2016

          At the administrative hearing, Plaintiff testified that she has a high school diploma, from her native country of Iraq. AR at 54. Plaintiff further testified that she is unable to read in English, but can do simple adding and subtracting. Id. at 54-55. Plaintiff testified that she had not worked since September 27, 2013. Id. at 55. Plaintiff confirmed that she suffers from hypertension, post-traumatic stress, anxiety, and depression. Id.

         Plaintiff testified that she lives in government housing with her son and daughter. Id. Plaintiff testified that she wakes up around ten (10) o'clock in the morning, because she normally goes to sleep late. AR at 56. Plaintiff further testified that her twenty-three (23) year old daughter always helps her dress and bathe, as Plaintiff is unable to do so without help. Id. Plaintiff also testified that her son is receiving SSI, and that is how the family is supported. Id. Plaintiff testified that she does not do any household chores because she cannot stand for long periods, and as such, her daughter does the chores. Id. at 56-57. Plaintiff further testified that she tries to sleep during the day, because she cannot sleep at night. Id. at 57. Plaintiff also testified that sometimes she goes out with her son to do the shopping or watches television, but does not otherwise go outside of her home and never goes out without her son. AR at 57-58, 61-62. Plaintiff testified that she does not have a driver's license and relies on her son to take her to the doctor and to give her medication. Id. at 57.

         Plaintiff further testified that she starts remembering what happened to her in Iraq and begins screaming. Id. at 58. Plaintiff testified that she sees a Dr. Davis, as well as a psychiatrist. Id. Plaintiff also testified that she has side effects from her medications including dizziness from her blood pressure medicine, as well as her mental health medications. Id. at 58-60. Plaintiff testified that she sees her doctor for her physical problems every month and goes to COPE for mental health services twice a month. AR at 59. Plaintiff testified that she could stand for approximately fifteen (15) minutes and walk no more than ten (10) meters. Id. at 59-60. Plaintiff further testified that she could sit for approximately one-half hour and could lift not more than ten kilograms. Id. at 60. Plaintiff attributed these symptoms to her kidney problems. Id. Plaintiff testified that when she was working she would be late to work often because she could not sleep at night due to her mental health issues. Id. Plaintiff further testified that she would have panic attacks remembering events from her past and be unable to work. AR at 60. Plaintiff stated that employers found her unreliable and would fire her. Id.

         Plaintiff also testified that she has a thyroid mass that may require surgery. Id. at 61. Plaintiff testified that she had kidney stones, some of which were removed in July 2015, but that an additional surgery was necessary to remove the remaining stones. Id. Plaintiff further testified that her sinus tachycardia causes chest pains and difficulty breathing. Id.

         ii. May 26, 2016

         Plaintiff testified that her condition had not improved since the previous hearing. AR at 38-39. Plaintiff further testified regarding the loss of her husband during the Iraq/Iran war and her son being shot in his leg and diagnosed with a tumor. Id. at 41-42. Plaintiff also testified that she had been a teacher in Iraq, but had to leave once her son was injured and sick. Id. at 42. Plaintiff testified that as a result of her experiences in Iraq, she now suffers from panic attacks. Id. at 43. Plaintiff further testified that she is also homesick. Id. Plaintiff also testified that she needs surgery for her kidneys, and that her kidneys cause her to be unable to stand. AR at 43. Plaintiff reported that she because of her kidney stones, she is unable to undergo surgery for her thyroid. Id. at 43-44. Plaintiff indicated that her back and shoulder pain were also due to the kidney stones. Id. at 45. Plaintiff confirmed that she can only stand for approximately a half hour, can sit for approximately one (1) hour before needing to change positions, and can lift less the ten (10) kilograms. Id. at 46. Plaintiff testified that she has feeling of desperation and has difficulty with focus and concentration, requiring her son to remind her to take her medication. Id.

         b. Administrative Forms

         Plaintiff completed a Function Report-Adult in this matter. AR 230-37. Plaintiff reported that she lived in an apartment with family. Id. at 230. Plaintiff described her medical conditions as follows:

My depression and chronic pain interferes w[ith] my ability to work or stay on task. I have [a] hard time concentrating, focusing, or completing basic tasks. My depression keeps me from getting out of the house or bed. I also have a hard time being on my feet for long periods of time.

Id. Plaintiff reported that she is able to cook, “indoors arrange, ” and iron, and that it takes about two (2) hours, weekly or monthly, to perform them. Id. at 231. Plaintiff further reported that she needs help to clean, do laundry, vacuum, and mop, and that she cannot do house or yard work when she is down. Id.

         Plaintiff indicated that she can ride in a car with her son, but cannot go out alone because she feels scared. AR at 231. Plaintiff does not drive, and does not have a car or license. Id. Plaintiff reports that she shops in stores with her son for food, clothes, and medicine. Id. These tasks take approximately one (1) hour. Id. Plaintiff does not report any problems with performing personal care tasks, but that she requires assistance with her medications and reminders to take a shower. Id. at 232. Plaintiff reports that she prepares her own meals, which consist of sandwiches and frozen dinners. AR at 232. Plaintiff makes meals such as these almost daily, and it takes her approximately ten (10) minutes. Id. Plaintiff further reports that her cooking habits have changed since her conditions began. Id.

         Plaintiff describes a typical day as waking up, eating breakfast, watching television, talking with her son and daughter, and sometimes knitting. Id. at 233. Plaintiff showers, takes medication, and tries to attend her appointments and learn English. Id. Plaintiff reports that she also tries to care for her disabled son, who has cancer, by preparing food. AR at 233. Prior to her conditions, Plaintiff reports that she was able to work, but can no longer do so. Id. Plaintiff further reports that her conditions affect her sleep, and she is only able to sleep between two (2) and three (3) hours at a time. Id.

         Plaintiff cannot pay bills, handle a savings account, or use a checkbook, because she cannot read and write in English. Id. at 234. Plaintiff described her hobbies as watching television, knitting, visiting with her family, which she tries to do every day. Id. Plaintiff noted that she used to run, but can no longer do so. AR at 234. Plaintiff spends time each day, in person, with her son and daughter. Id. Plaintiff notes that although she is fine with her family, she is not okay around other people. Id. at 235. Plaintiff further described issues arising from her conditions to include sleep problems, having difficulty climbing stairs, running, societal problems, crying, and nightmares. Id. Plaintiff reported that her conditions also affect her ability to walk, hear, climb stairs, see, concentrate, understand English, follow instructions, get along with others, as well as affect her memory. Id. Plaintiff further reported that she cannot walk more than one hundred (100) meters, cannot climb more than twelve (12) stairs, and has trouble with her hearing and vision. AR at 235. Plaintiff also stated that she can walk approximately forty (40) meters before needing to rest for approximately ten (10) minutes before resuming her walk. Id. Plaintiff noted that she wears glasses for reading. Id. at 236. Plaintiff reported that she can pay attention for approximately fifteen (15) minutes, cannot finish what she starts, and cannot follow written instructions, though is better able to follow spoken instructions. Id. at 235. Plaintiff also indicated that she does well with authority figures. Id. at 236.

         On May 18, 2014, Plaintiff completed a Work History Report. AR at 246. Plaintiff listed her jobs prior to the alleged onset of her disability to include working at Target and in hotel housekeeping. Id. Plaintiff reported her job at Target entailed bringing boxes into the store from the truck line, opening them, and then shelving the merchandise. See Id. at 247. Plaintiff further reported that this job did not require the use of machines, tools, or equipment; technical knowledge or skills; and she did not do any writing or complete reports or similar duties. Id. Plaintiff also reported that while working for Target she walked for approximately two (2) hours per day and stood for approximately four (4) hours per day. Id. Plaintiff reported that she stooped for approximately one (1) hour per day and kneeled or crouched for approximately thirty (30) minutes per day. AR at 247. Plaintiff described the position as requiring her to lift twenty-five (25) pounds frequently, and that this was also the heaviest weight that she lifted. Id. She carried merchandise daily. Id. Plaintiff reported that she did not have any supervisory responsibilities at Target. Id.

         Plaintiff described her hotel housekeeping job as requiring her to perform tasks such as cleaning and changing bed sheets. Id. at 248. Plaintiff reported that she used machines, tools, or equipment for this position; did not use technical knowledge or skills; and did not write, complete reports, or perform other similar duties. AR at 248. Plaintiff further reported that the position required her to walk and stand for approximately two (2) hours per day; climb for approximately one (1) hour; and sit, kneel, crouch, and crawl for approximately thirty (30) minutes per day. Id. Plaintiff also reported that she lifted and/or carried the vacuum, cart, towels, and sheets for the bed daily. Id. Plaintiff indicated that she would frequently lift twenty-five (25) pounds, and the most that she was required to lift was approximately thirty (30) pounds. Id. Plaintiff did not have any supervisory responsibilities in this position. Id.

         Plaintiff supplemented her work history report adding that she had been a fast food worker. See AR at 254-56. Plaintiff described her responsibilities as including cooking, cleaning, and helping the staff. Id. at 255. Plaintiff reported that she used machines, tools, or equipment; but did not use technical knowledge or skills or write or complete reports in this position. Id. Plaintiff further reported that as a fast food worker she walked approximately thirty (30) minutes per day; crawled for approximately one (1) hour per day; and stood for approximately three (3) hours and thirty (30) minutes per day. Id. Plaintiff described lifting and carrying kitchenware daily, with the heaviest weight lifted as approximately twenty (20) pounds, and ten (10) pounds or less what she frequently lifted. Id. Plaintiff did not supervise other people in this position. Id.

         Plaintiff completed a Disability Report-Appeal indicating that her mental health had gotten worse, including her depression and PTSD symptoms. AR at 238. As a result, her doctors had increased her medications. Id. Plaintiff also noted that her ability to do things like cooking and cleaning decreases as her physical health declines. Id. Plaintiff also reported that her memory is “really bad” as a result of her mental health, and it makes things like reading very difficult. Id. Plaintiff's counsel completed a second Disability Report-Appeal on her behalf. Id. at 257-63. Plaintiff indicated that her heart races, her high blood pressure was worse, and her chest pains had increased. AR at 257. Plaintiff further reported that she is easily distracted; tired and worried; cries daily; cannot sleep; cannot concentrate; suffers more headaches; and forgets appointments and medications. Id.

         2. Plaintiff's Medical Records

         a. Treatment records

         On September 12, 2012, Plaintiff established care with David P. Los, D.O.[3] AR at 439-42. Plaintiff reported running out of lisinopril and glyburide approximately three (3) months prior to the appointment, and that she suffers from depression, anxiety, PTSD, left knee pain, and right arm pain. Id. at 439. Dr. Los assessed benign hypertension, Diabetes Mellitus Type II, headache, neurotic depression and PTSD, pain in limb, asthma-unspecified, and chronic left knee pain. Id. at 441. Dr. Los noted that Plaintiff should self-refer to behavioral health as needed. Id.

         On October 1, 2012, Plaintiff followed up with Dr. Los regarding her hypertension.[4] Id. at 443-46. Plaintiff complained of knee pain, back pain with radiation and ongoing numbness in her left foot, and right arm pain due to a fall. AR at 443. Dr. Los increased Plaintiff's lisinopril and continued fenofibrate for Plaintiff's hypertriglyceridemia. Id. at 445. On October 2, 2012, Plaintiff received an x-ray of her left knee due to pain. AR at 435. Robert W. Burman, M.D. assessed no radiographic abnormality. Id. On the same date, Plaintiff also underwent an x-ray of her lumbosacral spine due to low back pain. Id. at 436-37. Dr. Burman again assessed no radiographic abnormality. AR at 437. On October 18, 2012, Plaintiff was seen at the University of Arizona Medical Center for severe depression, likely PTSD, insomnia, and dysthymia.[5]See Id. at 342-56. Plaintiff reported that her husband was assassinated in Iraq, after which her son was diagnosed with osteosarcoma of the right knee joint. Id. at 342. The Emergency Department obtained a psychiatry consult, and Plaintiff was prescribed trazadone. Id. at 345-50. Plaintiff was diagnosed with PTSD with evidence of depression; hypercalcemia with hyperproteinemia, likely secondary to hyperparathyroidism, dehydration or paraproteinemia; and a urinary tract infection. Id. at 345. On October 19, 2012, Plaintiff was seen by Dr. Los regarding her knee pain. AR at 447-49. Dr. Los assessed patellar tendonitis, prescribed naproxen, and discussed use heat and ice, as well as stretching and strengthening exercises. Id. at 448. On October 30, 2012, Plaintiff completed an intake assessment at COPE Community Services. Id. at 613.

         On November 6, 2012, Plaintiff was seen by Lori Danker, RNP at COPE Community Services for a psychiatric diagnostic interview examination. Id. at 614. RNP Danker's diagnostic impressions included major depression, single episode moderate; moderate psychosocial stressors including unemployment, limited social network, and financial stress; and a GAF score of 55. Id. On December 17, 2012, Plaintiff was assessed at La Frontera Center reporting symptoms of depression. See AR at 290-96. Plaintiff reported seeing her husband killed and son wounded while in Iraq. Id. at 290. Plaintiff further reported trouble sleeping due to nightmares, dwelling on past events during the day, being afraid to go outside, an exaggerated startle response, and a fear of crowds and loud noises. Id. at 290, 293. Plaintiff was found to meet the DSM criteria for Chronic PTSD, as well as Major Depressive Disorder. Id. at 293. Plaintiff's global assessment of functioning (“GAF”) score was 45, indicating serious symptoms. Id. at 294. On December 21, 2012, Plaintiff was seen at the University of Arizona Medical Center Emergency Room for a toothache.[6] AR at 329-32, 358-73. Plaintiff was noted to have poor dentition with a visible cavity in her right upper rear molar, and her differential diagnosis included a periapical dental abscess, cavity, tooth fracture, and periodontal disease. Id. at 365, 367. Plaintiff was given Vicodin and Ibuprofen. Id. at 362.

         On January 17, 2013, Plaintiff was seen at La Frontera Center by Steven Diez de Pinos, M.D. Id. at 303-05. Dr. Diez de Pinos noted that Plaintiff “ha[d] not worked for some time and had tried to do a bookkeeping trainee program but was unable to do it due to her poor mood, low energy and drive, poor concentration and focus, decreased sense of worth and frequent sleep disturbance with nightmares, flashbacks, increased startle and avoidance of stressors, including other people.” Id. at 304. Dr. Diez de Pinos further noted that Plaintiff feels fearful around others, sometime hears mumbled voices, and gets no more than one (1) hour of sleep. AR at 304. Plaintiff reported that she had received an antidepressant in the Emergency Room, which she took briefly but discontinued because it caused dizziness. Id. Dr. Diez de Pinos prescribed mirtazapine to treat her depression, anxiety and insomnia. Id.

         On February 15, 2013, Plaintiff was seen at La Frontera Center by Dr. Diez de Pinos. Id. at 300-02. Plaintiff reported a decrease in her depression from ten (10) out of ten (10) to seven (7) out of ten on mirtazapine. Id. at 301. Plaintiff further reported sleeping three (3) to four (4) hours per night versus one (1) hour and her energy was improved, but she was only eating one (1) meal per day. AR at 301. Dr. Diez de Pinos “strongly suggest[ed] getting in at least 2 [meals].” Id. Plaintiff completed an Obsessive Compulsive Disorder (“OCD”) questionnaire, scoring a twenty (20); however, Dr. Diez de Pinos posited that all of the things that she checked seemed to be related to trauma issues and related fears. Id.

         On March 18, 2013, Plaintiff, accompanied by her son, attended a service-planning meeting at COPE Community Services. Id. at 694-95. On April 1, 2013, Plaintiff saw Dr. Los for an evaluation of left rib and elbow pain.[7] Id. at 315-17, 450-52. Plaintiff reported taking naproxen several months previous, but was not taking it currently. AR at 315, 450. Dr. Los noted Plaintiff's history of hypercalcemia and high triglycerides, and that she reported taking fenofibrate, but had not returned for repeat laboratory work in October. Id. Dr. Los assessed left lateral epicondylitis and left costochondritis, prescribing naproxen, as well as rest, ice, and exercises, and noted Plaintiff's very high triglycerides. Id. at 316-17, 452. Dr. Los noted that Plaintiff's hypercalcemia may be contributing to her chronic pain. Id. at 316, 452. Dr. Los counseled Plaintiff and her son regarding all issues, including the importance of compliance with laboratory work and follow-ups. Id. at 316, 452. On March 6, 2013, Erisha Green, BHT, BA, of COPE Community Services spoke with Plaintiff's son, who explained that his mother missed her appointment because he was recovering from surgery and could not bring her. AR at 619. On March 18, 2013, Plaintiff and her son met with COPE Community Services staff regarding her service and crisis plans. Id. at 620.

         On April 12, 2013, Plaintiff was seen at La Frontera Center by Dr. Diez de Pinos. Id. at 297-99. Plaintiff reported “feeling a little bit better regarding her depression and anxiety but still having more problems with both than she would like and nightmares have re-increased to daily to every other day again.” Id. at 298. Dr. Diez de Pinos noted that Plaintiffs headaches were “still a significant problem and cause difficulty with concentration, focus and distractibility.” Id. Dr. Diez de Pinos further noted that she was no long causing herself direct physical harm. AR at 298. Plaintiff showed improved appetite, eating two (2) meals per day, but still only slept for three (3) to four (4) hours per night. Id. Dr. Diez de Pinos increased her mirtazapine dosage. Id. In addition to her PTSD and major depression, Dr. Diez de Pinos noted her Axis III diagnosis as hypertension, migraine headaches versus multifactorial headaches, and the need to “rule out left-sided neurologic deficit with both motor and sensory components (upper extremity greater than lower extremity) of unclear etiology.” Id.

         On May 30, 2013, staff at COPE Community Services contacted Plaintiff and spoke to her son regarding a missed appointment. Id. at 626. The following day, COPE staff again contacted Plaintiff's son to inform him regarding the rescheduled appointment date and time. AR at 627. On June 12, 2013, Plaintiff did not attend her appointment with Dr. Diez de Pinos at La Frontera Center. Id. at 306-07. On July 25, 2013, Plaintiff saw Dr. Los for follow-up regarding her throat evaluation.[8] Id. at 311-14, 453-55. Dr. Los noted that Plaintiff stopped taking lisinopril because it was causing dizziness. Id. at 312, 453. Dr. Los further noted that Plaintiff had not started fenofibrate or called for an endo evaluation of her hyperparathyroidism. Id. Dr. Los assessed Plaintiff with hyperparathyroidism, hypertriglyceridemia, and noted that she was stable off lisinopril. AR at 313, 455.

         On August 14, 2013, staff from COPE Community Services followed-up regarding a missed appointment. Id. at 628. Staff spoke with Plaintiff's son and he stated that he was out, and his mother was at home and receiving services from another provider. Id. On August 20, 2013, Plaintiff was seen at COPE Community Services, Inc. by Lori Danker, N.P. for depression.[9]Id. at 338-39, 630-32. Plaintiff reported that she had discontinued taking Lexapro because it made her feel dizzy. Id. at 338, 630. Nurse Practitioner Danker noted that Plaintiff was sleeping only three (3) hours and unable to return to sleep. AR at 338, 630. NP Danker noted that Plaintiff's ...


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