United States District Court, D. Arizona
HONORABLE BRUCE G. MACDONALD, UNITED STATES MAGISTRATE JUDGE
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.
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. 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. 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).
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.
January 14, 2016
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.
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.
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.
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
May 26, 2016
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
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.
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.
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.
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
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.
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.
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.
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.
Plaintiff's Medical Records
September 12, 2012, Plaintiff established care with David P.
Los, D.O. 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
October 1, 2012, Plaintiff followed up with Dr. Los regarding
her hypertension. 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.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.
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. 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.
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.
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.
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. 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.
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.
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. 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.
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.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 ...