United States District Court, D. Arizona
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, ...