Ruiz v. Saul

          ORDER

          HONORABLE BRUCE G. MACDONALD UNITED STATES MAGISTRATE JUDGE

         Currently pending before the Court is Plaintiff’s Opening Brief (Doc. 18). Defendant filed his Responsive Brief (“Response”) (Doc. 20), and Plaintiff filed her Reply (Doc. 21). 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 March 5, 2014, Plaintiff filed a Title II application for Social Security Disability Insurance Benefits (“DIB”) and a Title XVI application for Supplemental Security Income (“SSI”) alleging disability as of March 1, 2007 due to right shoulder pain; lower back pain, including bulging discs; right hip-bone on bone; right ankle weakness; insulin dependent diabetes; low blood platelet count; high blood pressure; dizziness; anxiety; and depression. See Administrative Record (“AR”) at 27, 29, 67–68, 76–79, 82, 84, 90–91, 102–105, 121– 22, 262, 296, 300, 323, 349. The Social Security Administration (“SSA”) denied this application on September 4, 2014. Id. at 27, 76–101, 143–50. On October 15, 2014, Plaintiff filed a request for reconsideration, and on March 26, 2015, SSA denied Plaintiff’s application upon reconsideration. Id. at 27, 102–37, 151–52. On May 22, 2015, Plaintiff filed her request for hearing. Id. at 27, 153–54. On January 25, 2017, a hearing was held before Administrative Law Judge (“ALJ”) Laura Speck Havens. Id. at 27, 41–63. On June 8, 2017, Plaintiff appeared at a supplemental hearing before ALJ Havens. AR at 27, 64– 75. At the supplemental hearing, Plaintiff moved to amend her onset date to March 5, 2014 and to withdraw her Title II claim. Id. at 67–68. On July 3, 2017, the ALJ amended Plaintiff’s onset date to March 5, 2014, dismissed her Title II claim, and issued an unfavorable decision. Id. at 24–34. On August 28, 2017, Plaintiff requested review of the ALJ’s decision by the Appeals Council, and on May 15, 2018, review was denied. Id. at 1–4, 245–49. On June 11, 2018, Plaintiff filed this cause of action. Compl. (Doc. 1).

         B. Factual History

         Plaintiff was forty-five (45) years old at the time of the administrative hearings, as well as at the time of the alleged onset of her disability. AR at 27, 29, 33–34, 45, 67–68, 76–77, 90, 102–104, 121, 173, 201, 218, 230, 251, 262, 296, 323, 349. Plaintiff obtained a high school equivalent education (GED). Id. at 33, 76–77, 102–103. Prior to her alleged disability, Plaintiff worked in as a caregiver and convenience store cashier; however, the ALJ determined Plaintiff lacked substantial gainful activity. Id. at 29, 48, 302, 319.

         1. Plaintiff’s Testimony

         a. Administrative Hearing

         i. January 25, 2017

         At the administrative hearing, Plaintiff testified that she obtained a GED. AR at 45. Plaintiff further testified that she is able to read, but was equivocal about her ability to do simple adding and subtracting. Id. Plaintiff testified that she previously worked as a companion through an agency for between ten (10) and fifteen (15) hours per week. Id. at 46–47. Plaintiff further testified that she had to stop working because she could no longer do the work. Id. at 47. Plaintiff also testified that she lives in a house with three (3) of her four (4) daughters. Id. at 48. Plaintiff testified that she wakes up at approximately 11:00 a.m. and for the past year she has required help getting out of bed, showering, and getting dressed. AR at 48. Plaintiff further testified that she does not do any household chores, such as cooking, washing dishes, cleaning floors, or doing laundry. Id. at 49. Plaintiff testified that she shops for groceries if she is up to it, but estimates that ninety-five (95) percent of the time her daughters do the chores. Id. at 49. Plaintiff further testified that prior to the onset of her disability, she was able to do more, including all of the chores. Id.

         Plaintiff described her typical day as getting up, showering, and dressing with her daughter’s help, followed by sitting in the kitchen for awhile before returning to bed. Id. at 50. Plaintiff noted that if she needs to use the restroom during the day, her daughter helps her get up. AR at 50. Plaintiff testified that prior to her health decline, she was able to walk everywhere, get up, dress herself, and take care of her children. Id. at 50–51. Plaintiff further testified that she was able to walk approximately three (3) blocks before taking a thirty (30) minute break before getting up and going again. Id. at 51. Plaintiff admitted to using cocaine when her parents passed away. Id. at 51–52. Plaintiff testified that she does not drive a car having stopped in approximately 2013. Id. at 52. Plaintiff testified that she does not go out socially and sleeps approximately five (5) hours per night on average. AR at 52. Plaintiff listed her current medications as two types of insulin, metoprolol for her heart rate, blood pressure medicine, cholesterol medicine, monophines [sic], and lorazepam. Id. at 53. Plaintiff described the medication side effects as including drowsiness, sleepiness, and an inability to function. Id.

         Plaintiff testified that she can walk or stand for approximately five (5) to ten (10) minutes and can sit for approximately twenty (20) minutes. Id. Plaintiff further testified that she cannot lift her granddaughter who is approximately twenty-five (25) pounds. Id. at 54. Plaintiff also testified that she has constant lower back pain, rating it as seven (7) out of ten (10). AR at 54. Plaintiff testified that she suffers from depression and anxiety, but is not receiving mental treatment, rather she receives pain medication for her anxiety. Id.

         Plaintiff further testified that she had initially applied for disability benefits in 2013 because she had hurt her back and hip. Id. at 55. Plaintiff also testified that she worked three (3) days per week in 2014 because she could not tolerate more due to her pain. Id. at 55–56. Plaintiff described that she has “blood issues” and frequently gets dizzy and falls. Id. at 56–58. Plaintiff also testified that she goes to the urgent care once or twice per month for her pain-not to receive additional pain medication, but to ensure that nothing has gotten worse. AR at 57. Petitioner testified that she has trouble with her sinuses, as well. Id. Plaintiff further testified that she had not sought mental health help because she was on “too much medication.” Id. at 58.

         ii. June 8, 2017

         At the supplemental administrative hearing, Plaintiff testified that her condition has gotten worse. AR at 68. Plaintiff further testified that her hip pain has increased and she had surgery on her foot because of Methicillin-resistant Staphylococcus aureus (“MRSA”) that she had contracted as a result of an infection related to her diabetes. Id. at 69. Plaintiff also testified that her depression has also increased. Id.

         b. Administrative Forms

         i. Function Report-Adult

         On June 13, 2014, Plaintiff completed a Function Report-Adult in this matter. AR 310. Plaintiff reported that she lived in a house with family. Id. Plaintiff described her medical conditions as follows:

Can’t sit longer than 20-30 minutes. Can’t stand longer than 20-30 minutes. Have to lay down 2-3x a day due to severe back pain. Very limited in physical activity[, ] can only do chores – dishes, putting a load of laundry in for 10-15 minutes before having to sit down. If sugars are not right[, ] get really dizzy.

Id. Plaintiff described her typical day as waking up and going to work for four (4) hours per day. Id. at 311. Plaintiff reported that she is able to lay down and take breaks as needed while working, and then goes home and is in bed for the remainder of the day. Id. Plaintiff further reported that she does minimal chores, watches an elderly woman, and watches any kids at her home. AR at 311. Plaintiff noted that her children do a lot of the chores, because she cannot, but that she will give pets food and water if it is not already done. Id. Plaintiff reported that prior to her conditions, she was a very active mother who worked full time. Id.

         Plaintiff noted that she is awoken every couple of hours due to severe pain and constant discomfort. Id. Plaintiff described her clothing choices as “[v]ery simple easy to put on” and having “to rest in the middle of [getting dressed.]” Id. Plaintiff reported that she wears her hair in ponytails or otherwise uses minimal care. AR at 311. Plaintiff further reported that she does not need special reminders to take care of personal needs or to take her medication. Id. at 312. Plaintiff also reported that she could cook pre-cooked meals, sandwiches, or TV dinners, and does so once or twice per week. Id. Plaintiff reported that cooking takes her no more than a maximum of thirty (30) minutes, whereas prior to the onset of her conditions she was able to cook complete meals for her family. Id. Plaintiff described fatigue, exhaustion, and severe pain as limiting her ability to cook. Id.

         Plaintiff further reported that she does some dishes and one (1) or two (2) loads of laundry for between ten (10) and fifteen (15) minutes, two (2) to three (3) times per week. AR at 312. Plaintiff reported that her family helps her with these tasks. Id. Plaintiff indicated that she goes outside daily, either in a car or using public transportation. Id. at 313. Plaintiff further reported that she cannot drive regularly due to her anxiety and chronic pain. Id. Plaintiff also reported that she shops in stores for groceries once or twice per month for approximately one (1) to two (2) hours, including breaks. Id.

         Plaintiff noted that she can pay bills, count change, handle a savings account, and use a checkbook or money orders. AR at 313. Plaintiff described her hobbies as spending time with her children and reading. Id. at 314. Plaintiff reported that she tried to do these things daily, but noted that she can no longer go on long walks due to her pain and discomfort. Id. Plaintiff indicated that she talks with her children and boyfriend daily, as well as watching television. Id. Plaintiff further reported that she goes to work daily and doctor appointments two (2) to three (3) times per month. Id. Plaintiff again noted that she used to work full time and was very active with her children’s school, as well as at home. AR at 315. Plaintiff indicated that her conditions affect her ability to lift, squat, bend, stand, reach, walk, sit, kneel, climb stairs, complete tasks, and use her hands. Id. Plaintiff stated that she cannot lift more than ten (10) pounds; squat; kneel; or use her hands, because she loses her grip. Id. Plaintiff reported that she can walk for one-half of a block and then must rest for ten (10) to twenty (20) minutes before continuing. Id. Plaintiff also reported that although she does not have trouble with written instructions or authority figures, she needs reminders regarding spoken instructions. Id. at 315–16. Plaintiff further reported that stress causes her pain to flare-up, and changes in routine take all of her energy. AR at 316. Plaintiff noted that her diabetes is “super out of control” and causes dizziness and faintness. Id. at 317.

         On February 11, 2015, Plaintiff completed a second Function Report-Adult. Id. at 341–48. Plaintiff again noted that she lived in a house with family. Id. at 341. Plaintiff reported that she is unable to be on her feet too long before they start to hurt, and she takes a lot of medication “at all hours of the day.” Id. Plaintiff described her day as spending most of the time in bed. AR at 342. Plaintiff further reported that her daughter cared for their pets. Id. Plaintiff indicated that prior to her conditions she was able to do “everything, ” including hanging out with friends and family. Id. Plaintiff reported that she is up most of the night with pain. Id.

         Plaintiff further reported that she needs reminders to shower, and her boyfriend reminds her to take her medicine. Id. at 343. Plaintiff noted that she does not prepare meals, because it is too much for her to handle. AR at 343. Plaintiff also reported that she washes dishes and folds laundry for forty-five (45) minutes to an hour. Id. Plaintiff indicated that she does not do other house or yard work due to the limitations her pain causes. Id. at 344. Plaintiff reported going out two (2) to three (3) times per week either riding in a car or using public transportation, and noted that she does not drive due to pain and dizziness. Id. Plaintiff further reported constantly falling and needing help with insulin injections. Id.

         Plaintiff reported that she grocery shops once per month for approximately three (3) hours. AR at 344. Plaintiff confirmed that she can pay bills, count change, handle a savings account, and use a checkbook or money orders. Id. Plaintiff noted that she becomes frustrated because she misplaces things. Id. at 345. Plaintiff described her hobbies as sleeping and watching television, which she does daily. Id. Plaintiff denied spending time with others, and needing reminders to go places, as well as someone to go with her. Id. Plaintiff further reported that her conditions cause irritation and she does not participate in family functions. AR at 346. Plaintiff indicated that she can walk for approximately ten (10) minutes before needing to stop and rest for between twenty (20) and thirty (30) minutes. Id. Plaintiff reported that she finishes what she starts and is generally able to follow both written and spoken instructions. Id. Plaintiff further reported that she gets along with authority figures, but does not handle stress or changes in routine well. Id. at 347. Plaintiff noted that she also feels depressed and angry. Id.

         ii. Work History Report

         On June 13, 2014, Plaintiff also completed a Work History Report. AR at 319–22. Plaintiff listed her prior work experience as including being a caregiver and a cashier or store clerk. Id. at 319. Plaintiff described the caregiver position as staying with an elderly woman and feeding her through a tube. Id. at 320. Plaintiff reported that the job did not require the use of machines, tools, or equipment, but did require technical knowledge or skills, as well as writing or completing reports or similar duties. Id. Plaintiff further reported that while working as a caregiver she walked; stood; climbed; stooped; kneeled; crouched; crawled; handled, grabbed, or grasped large objects; reached; and wrote, type, or handled small objects for approximately two (2) hours per day. Id. Plaintiff noted that she sat for approximately three (3) hours per day and the job did not entail any lifting. AR at 320. Plaintiff described the position as requiring her to lift less than ten (10) pounds frequently, and that this was also the heaviest weight she lifted. Id.

         Plaintiff described her position of store clerk as keeping the store clean, greeting customers, balancing the register, and making sure all shelves were stocked. Id. at 321. Plaintiff reported that she 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. Id. Plaintiff further reported that the position required her to walk and stand for approximately six (6) hours per day; climb, stoop, crouch, and crawl for approximately two (2) hours per day; and sit, kneel, handle, grab, or grasp big objects, reach and write, type, or handle small objects for approximately one (1) hour per day. Id. Plaintiff also reported that she lifted and carried boxes of product to and from shelves. AR at 321. Plaintiff indicated that she would frequently lift ten (10) pounds, and the heaviest weight she lifted was twenty (20) pounds. Id. Plaintiff reported that she was a lead worker. Id. Plaintiff explained that she worked off and on at Circle K, quit to raise her daughter, and never returned due to the deterioration of her health. Id. at 322.

         iii. Disability Report-Appeal

         Plaintiff had a Disability Report-Appeal completed indicating that she was “further limited in her ability to stand, sit upright, [and] [could not] reach at all with [her] [left] shoulder.” AR at 325. Plaintiff further reported that her depression and pain continued to worsen. Id. Plaintiff also noted that she required frequent rest due to an increase of fatigue resulting from “a combination of a high medication regimen and chronic, severe, and worsening pain.” Id. Plaintiff indicated that she could not complete chores, get dressed, or make food without either assistance or several rest periods. Id.

         2. Plaintiffs Medical Records

         a. Treatment records^[2]

         On March 22, 2013, Plaintiff underwent an abdominal ultrasound. AR at 593. Jack Porrino, M.D.’s impression included hepatomegaly with a “[c]oarsened and nodular hepatic echotexture is highly suspicious for underlying diffuse hepatocellular disease/cirrhosis.” Id. Dr. Porrino further observed a nine (9) millimeter lesion within the right lobe of the liver with features typical for a hepatic hemangioma, but recommended further study to exclude alternative etiologies. Id. On April 17, 2013, Plaintiff was seen by Guillermo Gonzalez-Osete, M.D. for an evaluation regarding thrombocytopenia. Id. at 417-19, 618-20. Treatment records indicate that Plaintiff had blood work that indicated a low platelet count, but she denies any bleeding, bruising, or nosebleeds. Id. at 417-18, 618-19. Dr. Gonzalez-Osete opined that Plaintiff’s thrombocytopenia did not require immediate treatment, but that it would be appropriate to try and determine its cause. AR at 418, 619.

         On May 8, 2013, Plaintiff followed-up with Dr. Gonzalez-Osete regarding her thrombocytopenia. Id. at 414-16, 615-17. Treatment records indicated Plaintiff’s medications included metformin, glipizide, NovoLog, Lantus, pravastatin, aspirin, oxycodone, lisinopril, and lorazepam. Id. at 414, 615. Dr. Gonzalez-Osete reviewed an ultrasound of Plaintiff’s liver and noted that it was enlarged and demonstrated a nodular echotexture. Id. Dr. Gonzalez-Osete opined that “[t]he hepatomegaly and the nodular pattern are suspicious for diffuse hepatocellular disease/cirrhosis.” Id. Dr. Gonzalez-Osete also noted “a small 9-mm lesion in the right lobe that is suspicious for a hemangioma.” AR at 414, 615. Dr. Gonzalez-Osete further opined that Plaintiff’s thrombocytopenia was mild and did not require treatment. Id. at 414-15, 615-16.

         On August 26, 2013, Plaintiff returned to see Dr. Gonzalez-Osete for a follow-up regarding her thrombocytopenia. Id. at 412-13, 612-14. Plaintiff denied any bleeding, bruising, or petechiae. Id. at 412, 612. Dr. Gonzalez-Osete assessed that Plaintiffs thrombocytopenia was secondary to cirrhosis and noted her increased risk for hepatocellular carcinoma. Id. Plaintiffs thrombocytopenia remained mild and untreated. AR at 413, 613. On January 31, 2014, Plaintiff was seen by Dr. Gonzalez-Osete.^[3] Id. at 411.

         On March 9, 2014, Plaintiff presented to the Carondelet Health Network Emergency Department at St. Mary’s Hospital complaining of pelvic pressure and blood when wiping after urination. Id. at 440-47. David A. Boswell, M.D. evaluated Plaintiff, reviewed her laboratory studies, and found “her symptoms and diagnostic studies [were] consistent with [a Urinary Tract Infection].” Id. at 441. Dr. Boswell prescribed Keflex and Pyridium and discharged Plaintiff home. Id. On March 10, 2014, 2014, Plaintiff was seen by Annette Hernandez-Parkhurst, M.D. at El Rio Community Health Centers regarding her pelvic pain. AR at 580-83. Dr. Hernandez-Parkhurst’s examination was generally unremarkable except for small genital ulcers. Id. at 582. Cultures were collected for herpes and chlamydia testing. Id. On March 14, 2014, Plaintiff underwent mammography screening, which was negative for malignancy. Id. at 843.

         On April 11-12, 2014, Plaintiff presented to the Carondelet Health Network Emergency Department at St. Mary’s Hospital reporting nausea, vomiting, and diarrhea after eating a hamburger from Circle K. Id. at 432-439, 976-79. Amy H. Vinik, PA-C’s impression indicated “[p]robable food poisoning with nausea, vomiting and diarrhea which has resolved spontaneously.” AR at 433. Plaintiff was discharged and directed to follow-up with her primary care doctor in the following two (2) to three (3) days. Id. On April 25, 2014, Plaintiff saw Ida M. Heath, RNP at Healthcare Southwest, Inc. for pain management. Id. at 1209. Plaintiff reported her pain as a six (6) out of ten (10) and indicated that she fell in mid-March, injuring her right ankle. Id. Plaintiff also reported increased anxiety due to family issues. Id. NP Heath observed tenderness in Plaintiff’s right shoulder, right ankle, and lower back and hip. AR at 1209.

         On May 12, 2014, Plaintiff was seen by Michelle Meyer, M.D. at El Rio Community Health Center for right eye pain and a cough. Id. at 550-54. Dr. Meyer assessed a stye and gave Plaintiff eye ointment, as well as cough medication for her cough. Id. at 553. Dr. Meyer’s examination was otherwise unremarkable. Id. at 553-54. On May 28, 2014, Plaintiff saw NP Heath at Healthcare Southwest for pain management. Id. at 1208. Plaintiff reported working as a private duty caretaker. AR at 1208. NP Heath observed shoulder tenderness, low back tenderness at ¶ 5-S1 and the right paraspinals, and right hip tenderness over the greater trochanter. Id. Plaintiff also reported that her pain medications worked well. Id.

         On June 25, 2014, Plaintiff was seen by NP Heath at Healthcare Southwest for pain management. Id. at 791, 1155, 1213. Plaintiff reported “[e]njoy[ing] being back to work as a caregiver[, ] walks to and from bus stop to go to work . . . [s]tretches back in morning every day from paper given here[, ] but . . . is finding that she has more pain in [right] shoulder and back since she started working.” Id. NP Heath noted tenderness in Plaintiffs right shoulder, lower back, and right hip. AR at 791, 1155, 1213. NP Heath diagnosed lower back pain with pain into right leg due to disc protrusion and impingement of the L5 nerve root, right hip pain with minimal degenerative changes, right shoulder pain with mild degenerative changes, anxiety, and smoking cessation. Id.

         On August 7, 2014, Plaintiff was seen by Nikki G. Nakovic, NP at El Rio Community Health Center regarding musculoskeletal pain and diabetes. Id. at 768-73. Specifically, Plaintiff complained of left shoulder pain. Id. at 768. NP Nakovic’s examination was generally unremarkable, noting tenderness over Plaintiff’s left supraspinatus tendon only. Id. at 771. Plaintiff was referred to physical therapy. Id. at 772. On August 25, 2014, Plaintiff saw NP Heath for pain management. AR at 1206. NP Heath noted that Plaintiff walked without difficulty; had tenderness over the coracoid process of her left shoulder but with intact range of motion; and tenderness on her spine from L2-coccyx. Id. NP Heath increased Plaintiffs Morphine Sulfate Extended Release and decreased her Oxycodone immediate release to improve Plaintiffs long term pain relief Id.

         On September 11, 2014, Plaintiff returned to NP Nakovic regarding her shoulder pain and diabetes. Id. at 762-67. NP Nakovic’s examination of Plaintiff was generally unremarkable noting continued joint tenderness. Id. at 762, 764. Plaintiff was urged to make a physical therapy appointment. AR at 766. On September 25, 2014, Plaintiff saw NP Heath at Healthcare Southwest for pain management. Id. at 1205. Plaintiff reported having decreased her work hours due to fatigue. Id. Treatment records indicated that NP Heath’s notes regarding this visit were destroyed or taken by Drug Enforcement Agency (“DEA”) agents. Id.

         On October 2, 2014, Plaintiff had a Telemed evaluation by Jonathan Strohl, BHP, NP at COPE Community Services. Id. at 672, 677-715. Plaintiff reported poor motivation and depression. AR at 672. NP Strohl reported Plaintiffs appearance as appropriate; her concentration, insight, and judgment as fair; affect was anxious; her speech was normal; mood was anxious and depressed; and she denied delusions, hallucinations, and homicidal or suicidal ideas, intent or plan. Id. NP Strohl’s diagnostic impression noted that Plaintiff “has depression and anxiety worsened by financial woes and long term use of pain medication.” Id. NP Strohl further noted Plaintiffs global assessment of function (“GAF”) score as 58. Id. On October 23, 2014, Plaintiff saw NP Heath for pain management. Id. at 1154, 1207. Plaintiff reported that she was traveling to Houston the following day to visit family and that Zoloft “ha[d] made a big difference in [her] mood.” AR at 1154, 1207. NP Heath observed that Plaintiff walked without difficulty; had ...