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Rogers v. Saul

United States District Court, D. Arizona

September 16, 2019

Johnathan Adam Rogers, Plaintiff,
v.
Andrew M. Saul, [1] Acting Commissioner of Social Security, Defendant.

          ORDER

          Hon. Bruce G. Macdonald, United States Magistrate Judge

         Currently pending before the Court is Plaintiff's Opening Brief in Support of Vacature of the Decision of the Commissioner of Social Security on a Claim for a Period of Disability and Disability Insurance Benefits (Doc. 17). Defendant filed his Response Brief Requesting a Remand for Further Proceedings (“Response”) (Doc. 21), and Plaintiff filed his Reply (Doc. 22). 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 January 21, 2015, Plaintiff filed a Title II application for Social Security Disability Insurance Benefits (“DIB”) alleging disability as of June 11, 2014 due to neuroma, post-traumatic stress disorder (“PTSD”), degenerative disc disease, hypertension, sleep apnea, and migraines. See Administrative Record (“AR”) at 14, 31, 64-65, 71, 78-79, 82, 85-86, 90, 96, 181, 184, 242, 260. The Social Security Administration (“SSA”) denied this application on June 8, 2015. Id. at 14, 64-77, 101-05. On July 7, 2015, Plaintiff filed a request for reconsideration, and on September 15, 2015, SSA denied Plaintiff's application upon reconsideration. Id. at 14, 78-96, 106-09. On October 8, 2015, Plaintiff filed his request for hearing. Id. at 14, 110-11. On February 13, 2017, a hearing was held before Administrative Law Judge (“ALJ”) MaryAnn Lunderman.[2] Id. at 14, 29-63. On April 26, 2017, the ALJ issued an unfavorable decision. AR at 14-24. On April 27, 2017, Plaintiff requested review of the ALJ's decision by the Appeals Council, and on October 25, 2017, review was denied. Id. at 1-3, 165-66. On May 22, 2018, Plaintiff filed this cause of action. Compl. (Doc. 1).

         B. Factual History

         Plaintiff was thirty-seven (37) years old at the time of the administrative hearing and thirty-five (35) at the time of the alleged onset of his disability. AR at 14, 23, 31-32, 64, 65, 71, 78-79, 86, 90, 94, 96, 167, 181, 184, 242, 260. Plaintiff obtained a high school diploma. Id. at 23, 35-36, 37-38, 71, 75, 77, 94, 96, 185. Prior to his alleged disability, Plaintiff worked in the Army as infantry, a welder, and as an allied trades specialist. Id. at 185, 191, 224-31. Prior to the Army, Plaintiff worked in catering, as an automotive service technician, and construction foreperson. Id. at 38-39, 224-31.

         1. Plaintiff's Testimony

         a. Administrative Hearing

         At the administrative hearing, Plaintiff testified that he graduated from high school. AR at 35-36. Plaintiff further testified that after high school, he joined the military and was infantry, then a welder and machinist. Id. at 36. Plaintiff testified that prior to joining the Army, he worked in construction and as an automotive mechanic. Id. at 38-39. Plaintiff further testified that he is currently going to school on the GI bill for a welding degree. Id. at 36-38. Plaintiff also testified that he receives income from Veterans Affairs (“VA”) for a ninety (90) percent disability rating. Id. Plaintiff testified that the VA disability rating was for his PTSD, right shoulder, right foot, and implanted neuro stimulator. AR at 34.

         Plaintiff further testified that he is married with two children. Id. at 33. Plaintiff also testified that he was in the Army for eight (8) years and two days. Id. at 36. Plaintiff testified that he cannot handle large groups of people and generally has difficulty interacting with people. Id. at 39-40. Plaintiff further testified that loud noises trigger his PTSD and people make him very anxious. Id. at 40. Plaintiff also testified that he smokes approximately a half of a pack of cigarettes per day and does not drink alcohol or take illegal drugs or marijuana. AR at 40-41. Plaintiff noted that the only side effect of his medications is some erectile dysfunction. Id. at 40.

         Plaintiff testified that he can lift approximately twenty-five (25) to fifty (50) pounds. Id. at 41, 46. Plaintiff further testified that he needs to get up after approximately fifteen (15) to twenty (20) minutes of sitting, can walk about a block or block and a half, and can stand for approximately ten (10) minutes at a time. Id. at 41, 47, 52. Plaintiff also testified that when he is not at school he tries to help by taking the trash out daily, attempting to cook instant meals once or twice per week, occasionally doing dishes, and sweeping or mopping the floor. Id. at 41-42, 46-49. Plaintiff testified that he has a little hobby welder at the house but does not have other hobbies. AR at 41.

         Plaintiff testified that he requires accommodations at school due to his mental health issues. Id. at 42-44. Plaintiff explained that he sometimes need to leave the booth when welding due to frustration and needs to leave the classroom because of the number of people. Id. at 43-44. Plaintiff estimated that when he leaves to collect himself, he requires approximately five (5) to ten (10) minutes before being able to continue. Id. Plaintiff testified that this occurs approximately four (4) times per class. Id. Plaintiff further testified that his teachers give him additional time to take tests and weld, as well as seating him in an area that is more secluded. AR at 43-44. Plaintiff also testified that he does not talk to his class mates. Id. at 44.

         Plaintiff testified that his wife had been paid by the VA to be his family care giver, but he was not sure if she was still being paid or if the payments had stopped and might be restarted. Id. Plaintiff further testified that he does not have a driver's license, because his wife and the VA social workers agreed that he should not drive. Id. at 45. Plaintiff further testified that he suffers from migraines and estimated that they occur once or twice per month. Id. Plaintiff explained that they last for a day and he has light and noise sensitivity. AR at 45. Plaintiff also testified that he has sleep difficulties including trouble falling and staying asleep, as well as nightmares. Id. at 45-46. Petitioner testified that he began sleeping in the recliner several months prior to the hearing. Id. at 46. Plaintiff further testified that he uses his cane all the time, which was recommended by his doctors. Id. at 47. Plaintiff testified that he pets his animals, but his children feed and brush them. Id. at 48. Plaintiff also testified that he is easily distracted by noises or side conversation when trying to interact with people. AR at 49. Plaintiff further described anxiety attacks when he has his back to a door. Id. Plaintiff testified that his wife manages his medications for him by setting them out each day, although his pain medication does not always last for the entire dosing schedule. Id. at 50-52.

         b. Administrative Forms

         i. Function Report-Adult

         On May 6, 2015, Plaintiff completed a Function Report-Adult in this matter. AR 183-90, 213-20. Plaintiff reported that he lived in a house with family. Id. at 213. Plaintiff described his medical conditions as follows:

PTSD limits ability to tolerate people and loud noises. SJS [(Stevens-Johnson Syndrome)] limits time in sun and heat. Pain in back, right shoulder, knees and right foot limits ability to walk and/or stand for long periods of time.

Id. Plaintiff also noted neuroma, degenerative disc disease, hypertension, sleep apnea, and migraines as medical conditions limiting his ability to work. Id. at 184. Plaintiff reported that he does “very little” during the day, noting that his “wife does everything, ” including caring for their children and pets. Id. at 214. Plaintiff further reported that he cannot be around people, be in the sun and heat, or walk or run, and that his PTSD causes nightmares. AR at 214.

         Plaintiff indicated that he does not have problems with personal care, except he needs to be reminded to eat. Id. Plaintiff reported he prepares ramen on his own and does dishes and takes out the garbage. Id. at 215. Plaintiff noted that his ability to house and yard work is limited by pain, as well as his need to avoid heat and sun. Id. at 216. Plaintiff reported that when he goes out he either walks or rides in a car, but due to his PTSD he cannot go out alone and does not drive. Id. at 216. Plaintiff further reported that he can shop by computer for tools and car parts, which takes him approximately fifteen (15) minutes, but does not do it often. AR at 216. Plaintiff also reported that although he can count change, he cannot pay bills, handle a savings account, or use a checkbook or money orders, and as a result his wife takes care of all of their financials. Id. Plaintiff explained that a traumatic brain injury has affected his memory and impaired his money management capabilities. Id. at 217.

         Plaintiff reported that he watches television daily, and does not spend time with other people. Id. Plaintiff indicated that he goes to a friend's house once or twice per week, but does not take part in many activities. Id. Plaintiff further reported difficulty in getting along with others due to violent outbursts, noting that he has become a recluse. AR at 218. Plaintiff reported that his conditions have affected his ability to lift, squat, bend, stand, reach, walk, kneel, talk, hear, climb stairs, remember, complete tasks, concentrate, use his hands, and get along with others. Id. Plaintiff indicated that he cannot lift more than twenty (20) pounds, cannot squat, can stand for approximately ten (10) minutes, cannot reach above shoulder height, can walk for approximately five (5) minutes, cannot kneel, gets confused, has a hearing aid in his left ear, forgets easily, and is having rails installed. Id. Plaintiff further reported that he can walk for approximately five (5) minutes and then requires approximately five (5) minutes of rest. Id. Plaintiff also reported that he can pay attention for approximately two (2) to five (5) minutes, and cannot finish what he starts. Id.

         Plaintiff noted that he can follow written and spoken instructions. AR at 218. Plaintiff reported that he does not get along well with authority figures and does not handle stress or changes in routine well. Id. at 219. Plaintiff further reported difficulty falling asleep and his PTSD causes recurring nightmares. Id. Plaintiff indicated that he requires a cane and hearing aid. Id.

         On August 4, 2015, Plaintiff completed a second Function Report-Adult. Id. at 244-52. Plaintiff again noted that he lived in a house with family. AR at 244. Plaintiff described how his conditions limited his ability to work as follows:

PTSD limits ability to be around crowds and small groups of people. Right shoulder and lower back hinders bending, reaching, and lifting. Right foot limits standing, walking, and standard mobility.

Id. Plaintiff stated that he attempts to help with chores around the house, but his wife cares for their children and animals, as well as being his VA appointed family care giver. Id. at 245. Plaintiff indicated that prior to his conditions, he could run, lift, reach, and be in crowds. Id. Plaintiff also reported that he cannot lay on his right side because of shoulder pain, and that sleep apnea and medications for PTSD and sleep limit his ability to sleep. Id.

         Plaintiff reported difficulty with personal care, including pain affecting his ability to dress, having to sit while he bathes, using a cane to stand up, and needing his wife to help him shave his face and head, as well as to cook for him. AR at 246. Plaintiff further reported that his wife reminds him to shower and take medication. Id. Plaintiff indicated that he does not cook because he cannot stand long enough to do so. Id. Plaintiff listed laundry as the only chore that he does and noted that he requires reminding to do so. Id. at 247. Plaintiff reported that he does not go out often because his Stephens-Johnson Syndrome diagnosis requires avoiding sun and heat. Id. Plaintiff noted that when he does go out, he rides in a car and cannot go out alone because of his PTSD. AR at 247-48. Plaintiff can count change, but does not shop and cannot pay bills, handle a savings account, or use a checkbook or money orders. Id. Plaintiff reported that his wife takes care of all of these tasks because he cannot concentrate on the tasks and is irresponsible with money. Id. at 248.

         Plaintiff further reported watching television daily as his only hobby or interest. Id. Plaintiff also reported that he does not spend time with others and does not go anywhere on a regular basis. Id. Plaintiff described his anxiety as causing problems with people. AR at 249. Plaintiff reported that pain limits his physical abilities and PTSD limits his mental abilities. Id. Plaintiff noted that these issues affect his ability to lift, squat, bend, stand, reach, walk, kneel, talk, hear, climb stairs, see, remember, complete tasks, concentrate, understand, follow instructions, and get along with others. Id. Plaintiff estimated that he can walk fifty (50) feet before he needs to rest for ten (10) to fifteen (15) minutes. Id. Plaintiff also reported that he can only concentrate for two (2) to three (3) minutes. Id. Plaintiff indicated that he cannot finish what he started and cannot concentrate well enough to follow written instructions and also has difficulty with spoken instructions. AR at 249. Plaintiff reported difficulty in getting along with authority figures, handling stress, as well as changes in routine. Id. at 250. Plaintiff noted that he requires use of a cane, hearing aid, and glass or contacts. Id.

         ii. Work History Report

         On May 6, 2015, Plaintiff also completed a Work History Report. Id. at 191-98, 222-31. Plaintiff listed his prior work in the military from 2006 through 2014, including infantry and allied trades specialist-welder. AR at 191-93, 224-26. Prior to his military experience, Plaintiff worked in construction, as a mechanic, and in catering. Id. at 224, 227-29. Plaintiff described the position of allied trades specialist as welding, lifting metal, and fabricating parts. Id. at 225. Plaintiff reported that the job required the use of machines, tools, or equipment; technical knowledge or skills; and writing or completing reports or similar duties. Id. Plaintiff further reported that while working as an allied trades specialist he walked for between eight (8) and ten (10) hours per day; stood for between six (6) and seven (7) hours per day; sat for between two (2) and three (3) hours per day; climbed, stooped, and crawled, each for approximately one (1) hour per day; kneeled and crouched for approximately two (2) hours per day apiece; handled, grabbed, or grasped large objects, as well as reached, for between four (4) and five (5) hours per day; and wrote, typed, or handled small objects for between one (1) and two (2) hours per day. Id. Plaintiff noted that while performing the allied trades specialist job, he lifted large sheets of metal and carried them approximately 200 feet on a daily basis. AR at 225. Plaintiff described the position as requiring him to lift fifty (50) pounds frequently, and the heaviest weight he lifted was 300 pounds. Id. Plaintiff reported that he was a lead worker who supervised one (1) other person for between four (4) and five (5) hours per day. Id.

         Plaintiff described his position in infantry as wearing body armor and training soldiers. Id. at 226. Plaintiff reported that he used machines, tools, or equipment for this position, as well as technical knowledge or skills, and wrote or completed reports, or performed other similar duties. AR at 226. Plaintiff further reported that the position required him to walk and stand for between eight (8) and ten (10) hours per day; climb, kneel, crouch, and crawl for approximately two (2) hours per day; sit for between two (2) and three (3) hours per day; handle, grab, or grasp big objects and reach for between four (4) and five (5) hours per day; write, type, or handle small objects for between one (1) and two (2) hours per day; and stoop for approximately one (1) hour per day. Id. Plaintiff also reported that he lifted and carried body armor, people, and weapons approximately 100 meters daily. Id. Plaintiff indicated that he would frequently lift between 100 and 200 pounds, and this was also the heaviest weight he lifted. Id. Plaintiff reported that he was a lead worker and supervised three (3) people for the entirety of his workday. Id.

         Plaintiff described his position in construction as framing, hanging, and finishing drywall. AR at 227. Plaintiff reported that he used machines, tools, or equipment for this position, as well as technical knowledge or skills, but did not write or complete reports, or perform other similar duties. Id. Plaintiff further reported that the position required him to walk; stand; handle, grab, or grasp big objects; reach; and write, type, or handle small objects for between eight (8) and twelve (12) hours per day; climb for between six (6) and eight (8) hours per day; stoop for between five (5) and eight (8) hours per day; and kneel and crouch for between four (4) and six (6) hours per day. Id. Plaintiff also reported that he lifted and carried wood and sheetrock between fifty (50) and 100 feet daily. Id. Plaintiff indicated that he would frequently lift fifty (50) pounds or more, and the heaviest weight he lifted was 100 pounds or more. Id. Plaintiff reported that he was a lead worker and supervised one (1) to two (2) people for between four (4) and eight (8) hours of the workday. AR at 227.

         Plaintiff described his position as a service technician as performing oil changes. Id. at 228. Plaintiff reported that he used machines, tools, or equipment for this position, as well as technical knowledge or skills, but did not write or complete reports, or perform other similar duties. Id. Plaintiff further reported that the position required him to stand for between eight (8) and ten (10) hours per day; to stoop, kneel, crouch, or write, type, or handle small objects for between six (6) and eight (8) hours per day; reach for between four (4) and six (6) hours per day; walk for between one (1) and two (2) hours per day; and sit, climb, and handle, grab, or grasp big objects for approximately one (1) hour per day. Id. Plaintiff also reported that he lifted and carried tires for between ten (10) and twenty (20) feet, two to three times per week. Id. Plaintiff indicated that he would frequently lift ten (10) pounds, and the heaviest weight he lifted was 100 pounds or more. AR at 228. Plaintiff reported that he did not supervise others in this position. Id.

         Plaintiff described his position in catering as cooking and cleaning. Id. at 229. Plaintiff reported that he used machines, tools, or equipment for this position, but did not use technical knowledge or skills, or write or complete reports, or perform other similar duties. Id. Plaintiff further reported that the position required him to stand for approximately eight (8) hours per day; to stoop for approximately seven (7) hours per day; to walk, kneel, and crouch for approximately six (6) hours per day; to reach and write, type, or handle small objects for approximately four (4) hours per day; and sit for between three (3) and four (4) hours per day. Id. Plaintiff also reported that he lifted and carried pots, pans, and a mop and bucket for between ten (10) and fifty (50) feet daily. AR at 229. Plaintiff indicated that he would frequently lift less than ten (10) pounds, and the heaviest weight he lifted was 20 pounds. Id. Plaintiff reported that he did not supervise others in this position. Id.

         iii. Disability Report-Appeal

         Plaintiff had a Disability Report-Appeal completed indicating that his pain had increased, particularly in his right shoulder, foot, and lower back. Id. at 233. Plaintiff described his pain as constant. Id. Plaintiff also noted that he experienced migraines once or twice every other week and was having nightmares every night. AR at 233. Plaintiff also reported that he had become less social due to his conditions and only left his home once per week. Id. Plaintiff reported that he could stand for ten (10) to twenty (20) minutes before needing to sit down and he could not kneel. Id. Plaintiff further reported that he cannot go to the grocery store because large groups of people give him anxiety. Id. Plaintiff also reported that he could not lift more than twenty (20) or thirty (30) pounds. Id. Plaintiff noted that he has to take breaks while doing chores and that his wife and children help him with chores and cooking. AR at 239. Plaintiff indicated that he could cook simple meals, but could no longer run and has difficulty dressing and showering whenever he has headaches. Id.

         2. Plaintiff's Medical Records

         a. Treatment records

         On June 5, 2012, Plaintiff attended a group therapy session at the William Beaumont Army Medical Center (“AMC”), Biggs Behavioral Health Clinic. AR at 361-65. Treatment notes written by Storey C. Smith, MA, MSW, indicated a moderate risk of violence and a significant history of PTSD secondary to combat trauma. Id. at 361, 363. Treatment notes further reflected discussion of a safety plan. Id. at 361. Plaintiff fully participated in group and exhibited a willingness to seek out and comply with treatment. Id. at 363-64. Plaintiff was also noted to have moderate symptoms of anxiety. Id. at 364. On June 18, 2012, Plaintiff was seen by Barry L. Seip, PA at William Beaumont AMC. AR at 358-60. Treatment records indicated that Plaintiff had a nerve stimulator implanted for foot pain after the excision of a Morton's neuroma. Id. at 358. Plaintiff also indicated that he was under evaluation by Orthopedics for right shoulder pain and that physical therapy did not help. Id. PA Seip assessed Plaintiff with joint pain localized in the right shoulder, with instability anteriorly and impingement findings. Id. at 359. PA Seip additionally noted acromioclavicular joint degeneration in Plaintiff's right shoulder. Id. PA Seip referred Plaintiff to further physical therapy pending evaluation by Orthopedics and noted he was non-deployable regarding this issue; however, the nerve stimulator was not deemed a barrier to deployment. AR at 359. On June 28, 2012, Plaintiff was seen by Alison Ryan Kinsler, M.D. in Orthopedics at William Beaumont AMC regarding subluxation in his right shoulder joint. Id. at 356-57. Plaintiff's active medications list included meloxicam, gabapentin, diclofenac sodium gel, trazodone HCL, sertraline HCL, lisinopril, meloxicam, oxycodone-acetaminophen, ...


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