United States District Court, D. Arizona
Honorable Bruce G. Macdonald United States Magistrate Judge
pending before the Court is Plaintiff’s Opening Brief
(Doc. 18). Defendant filed his Responsive Brief
(“Response”) (Doc. 21), and Plaintiff filed her
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
8, 2014, Plaintiff protectively 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 July 8, 2014 due to bipolar disorder,
anxiety, neck and back impairments, a traumatic brain injury
with cognitive loss, migraines, chronic nausea, and loss of
appetite/anorexia. See Administrative Record
(“AR”) at 42, 101–02, 114–15,
127–30, 144–47, 231, 253, 256, 259, 305, 344. The
Social Security Administration (“SSA”) denied
this application on October 8, 2014. Id. at 42,
101–28, 164–67. On November 28, 2014, Plaintiff
filed a request for reconsideration, and on April 17, 2015,
SSA denied Plaintiff’s application upon
reconsideration. Id. at 42, 129– 60,
168–69. On June 10, 2015, Plaintiff filed his request
for hearing. Id. at 42, 175–76. On February 7,
2017, a hearing was held before Administrative Law Judge
(“ALJ”) Barry O’Melinn. Id. at 42,
65–100. On August 24, 2017, the ALJ issued an
unfavorable decision. AR at 39–58. On October 18, 2017,
Plaintiff requested review of the ALJ’s decision by the
Appeals Council, and on June 7, 2018, review was denied.
Id. at 1–6, 223–29. On August 16, 2018,
Plaintiff filed this cause of action. Compl. (Doc. 1).
was forty-five (45) years old at the time of the
administrative hearing and forty-three (43) at the time of
the alleged onset of her disability. AR at 27, 56, 101, 114,
127–29, 144–45, 230, 239, 253, 305, 344.
Plaintiff obtained a high school diploma. Id. at 56,
79–80, 127–28, 144–45. Prior to her alleged
disability, Plaintiff worked in retail sales, as a sales
manager, and as a bartender. Id. at 56, 73–79,
administrative hearing, Plaintiff testified that she lives
with her boyfriend, and does not have any children in the
home. AR at 72. Plaintiff further testified that her
boyfriend drove her to the hearing, because although she has
a driver’s license, she does not drive. Id.
Plaintiff described her past work experience was in
Tombstone, Arizona in 2010 and included working at an art
gallery as a receptionist and on the floor, then working at a
clothing boutique, and lastly, as a bartender. Id.
at 73–77. Plaintiff testified that each position lasted
for approximately two (2) to three (3) months, and then she
would be fired. Id. at 73–76. Plaintiff
indicated that she had issues with chronic lateness, which
she believed contributed to her firing. Id.
Plaintiff further described selling Arbonne skin care and
cosmetics, from approximately 2008 to 2011, based out of her
home. AR at 77–78. Plaintiff testified that she
graduated from high school, and had a couple of months of
college. Id. at 79–80.
testified that she had three (3) children, the oldest was
twenty-one (21), the middle child committed suicide, and the
youngest was twelve (12). Id. at 76. Plaintiff
further testified that her youngest child lives with her
father. Id. Plaintiff further testified that on a
typical day she tries to prevent triggers and breakdowns.
Id. at 80. Plaintiff also indicated that she does
not shop for groceries, because she cannot manage the store
size and noise. AR at 80. Plaintiff reported that having to
leave her cart and exit the store, on more than one occasion,
has made it so that she does not shop by herself anymore.
Id. Plaintiff noted that sometimes she accompanies
her boyfriend to the store, but otherwise he does it by
himself. Id. Plaintiff also testified that aside
from doing all of the grocery shopping, her boyfriend also
pays all the bills, drives her everywhere, call or texts
several times per day to check on her, and generally takes
care of everything for her. Id. at 89–90.
testified that she has Dissociative Identity Disorder
(“DID”), with eighteen (18) different
personalities; however, her treatment providers “have
[her] somewhere on the dissociative spectrum and
they’re not sure where to put [her][, ] [so] [her]
diagnosis still isn’t complete.” Id. at
81. Plaintiff reported that her treatment providers had
“told [her] themselves that they don’t have
anybody in their employ who has experience in or knowledge in
treating DID or dissociative disorders.” AR at 81.
Plaintiff testified that she first experienced her alter
personalities in January 2016 after the death of her son.
Id. Plaintiff further testified that Southeastern
Arizona Behavioral Health Services (“SEABHS”)
provide her medication and opined that they have failed her.
Id. Plaintiff also testified that as a result, her
boyfriend pays for her to see a therapist twice per month,
who she has been seeing since April or May of 2016.
Id. at 81–82.
testified that in January 2013, she and her then boyfriend
broke up and he left. Id. at 85. Plaintiff further
testified that at that time she had all three (3) of her
children living with her. AR at 85. Plaintiff explained that
after the break-up, her mental condition became such that she
could not adequately care for her children, so they each went
to live with their respective father. Id. at
testified that she had been in-patient at the psychiatric
ward twice in the previous year. Id. at 88.
Plaintiff confirmed that she had been in-patient in 2013 as
well. Id. Plaintiff described feeling continuing
deterioration while in the psychiatric ward due to the
continuing noise of the air circulation system. Id.
at 87–88. Plaintiff also acknowledged being aggressive
with staff, but explained that her behavior did not feel like
a violent outburst at the time it occurred, rather she can
see that it was looking back on it. AR at 89. The ALJ
questioned Plaintiff regarding a note by Dr. Gayle Dean after
Plaintiff’s son’s death that stated she was
“coping well now, ” and Plaintiff explained that
Dr. Dean was her OB/GYN and beyond telling the doctor about
her diagnosis, did not feel like explaining more about what
was really going on with her. Id. at 90–92.
Plaintiff also contemplated that it may have been because she
confirmed that she was okay with going through with the exam
despite previous trauma. Id.
September 4, 2014, Plaintiff completed a Function
Report-Adult in this matter. AR 282–87, 296–304.
Plaintiff reported that she lived in a house with her
boyfriend. Id. at 296. Plaintiff described her
medical conditions as follows:
My Bipolar Disorder is not yet stabilized-I am still in a
state of “Crisis” with erratic mood swings and
instability. My level of stress and anxiety is debilitating
to the point I rarely leave my house or see friends/family.
Id. Plaintiff reported that she gets very little
sleep at night ranging from one and a half to two (2) hours
per night to between four (4) and six (6) hours. Id.
at 297. Plaintiff further reported that this insomnia results
in severe fatigue causing her to sit or rest on the sofa
during the day. Id. at 297. Plaintiff also reported
that she provides food and water for her cat and has a cat
door so that she does not have to let her out. AR at 297.
indicated that prior to her illness she was able to own and
operate her own home-based business and raise three (3)
children. Id. Plaintiff reported that her insomnia
is extreme, especially during manic episodes, and sleep
medications give her little relief Id. Plaintiff
indicated a lack of motivation regarding her personal
hygiene, in part because she loses track of time.
Id. at 298. Plaintiff reported that she does not
“feel the need to shower, but often someone tells me I
need to.” Id. Plaintiff further reported that
she does not get dressed and only wears pajamas; however, she
has lost so much weight that her pajamas do not fit. AR at
298. Plaintiff purchased a weekly pill box to help her
remember her medication. Id. Plaintiff also reported
that she does not cook, eating only foods that come out of a
container, such as yoghurt, applesauce, crackers, or soup.
Id. at 297-98. Plaintiff indicated that her food
choices only include items that take five (5) minutes or less
to prepare, suggesting that anything more and she becomes
dizzy and disoriented. Id. at 298. Plaintiff noted
that she used to cook complicated meals, but she no longer
has the energy or desire to spend time in the kitchen.
further reported that she occasionally does some laundry,
sweeps or vacuums, and uses Clorox wipes in the bathroom. AR
at 282, 299. Plaintiff also reported that she does not have a
regular cleaning schedule and needs help with chores that
take longer than five (5) minutes. Id. Plaintiff
noted that she does not have the stamina to do yardwork, and
goes out only to take out the garbage or check the mail.
Id. Plaintiff reported that if she leaves the house,
she rides in a car, because it is not safe for her to drive
due to anxiety, dizziness, and disorientation. Id.
Plaintiff described going to the grocery store with her
boyfriend if only a couple of items are needed, but that
otherwise he does all of the shopping. Id.
reported that she does not have any money to pay bills or a
bank account; however she can count change or write a check.
AR at 283, 300. Plaintiff indicated that prior to her
illness, she was able to earn an income and pay her bills.
Id. Plaintiff further reported that she has lost
interest in all of her former hobbies, including crafts,
reading, and crosswords, and explained that her vision is
blurry from the Lithium she takes. Id. at 283, 297,
300. Plaintiff described watching Netflix occasionally, but
also notes that the noise is often bothersome. Id.
283, 300. Plaintiff also reported that she used to be
extremely active. Id. Plaintiff described her social
interactions consisting of an occasional visit by a friend to
check on her and Facebook. AR at 283, 300. Plaintiff noted
that she only goes out regularly for doctor appointments and
requires someone to accompany her. Id. Plaintiff
further described that prior to her illness she was a
“social butterfly.” Id. at 284, 301.
reported that her illnesses affect her ability to stand,
walk, talk, hear, see, remember, complete tasks, concentrate,
understand, and follow instructions. Id. Plaintiff
explained that she can only stand or walk for approximately
five (5) minutes “before feeling uncomfortable, ”
she has vision problems since taking Lithium, she is very
sensitive to sound, she cannot focus, she is easily confused
and forgetful, and suffers from auditory hallucinations and
delusions of persecution. Id. at 284-85, 301-02.
Plaintiff further noted that these issues also make it
difficult for her to follow instructions, especially spoken,
but also written. AR at 284, 301. Plaintiff listed
medications included Lithium, Clonazepam, Dicyclomine, and
Promethazine. Id. at 286, 303. Plaintiff further
reported that she does not have a problem getting along with
people, because she rarely sees them. Id. at 285,
302. Plaintiff explained that she was fired from jobs because
she would be late arriving to work, being absent too many
days, and getting things confused on the job. Id.
Plaintiff noted that she does not handle stress or changes in
routine well. Id.
described herself as competent and “able” prior
to her illness and depicted her prior life as including being
able to parent three (3) children, earn a living, pay the
bills, and cook meals. AR at 286, 303. Plaintiff explained
that as a result of her health deterioration, she lost her
business, the custody of her children, and her current
romantic relationship is in trouble. Id.
February 24, 2015, Plaintiff completed a second Function
Report-Adult. Id. at 336-43. Plaintiff again noted
that she lived in a house with her boyfriend. Id. at
336. Plaintiff explained that her bipolar disorder and manic
depression medications keep her in a disorientated and foggy
mental state and lacking in motivation, which results in very
inconsistent daily functioning. Id. Plaintiff
described her typically day as trying to get out of bed
around nine (9) o’clock, sitting on the couch, watching
television, eating quick and easy meals, and sometimes going
for a walk. AR at 337. Plaintiff reported providing her cat
food and water daily, with help from her boyfriend.
Id. Plaintiff further reported “very
bad” insomnia and requiring medication to sleep.
Id. Plaintiff noted that she does not have problems
with personal care, but sets an alarm on her telephone to
remind her to attend to her personal hygiene and to take her
medications. Id. at 338.
further described preparing “easy meals” that
take less than five (5) minutes, but noted that she used to
be able to cook full meals. Id. Plaintiff reported
that she does the “bare minimum” in terms of
housework, including laundry, dishes, sweeping, and
vacuuming. AR at 338. Plaintiff estimated that she performs
these activities for approximately fifteen (15) minutes every
ten (10) days. Id. Plaintiff also reported going
outside four (4) or five (5) times per week and either walks
or rides in a car. Id. at 339. Plaintiff further
noted that she lives in a rural area where there is nothing
in walking distance. Id. Plaintiff explained that
she does not drive due to side effects from Seroquel which
makes her vision blurry and her depth perception impaired.
reported that she shops in stores for groceries and personal
items once per week for approximately forty-five (45)
minutes, and that this is her only regular outing. AR at
339-40. Plaintiff confirmed that she can pay bills, count
change, handle a savings account, and use a checkbook or
money orders, but noted whereas she used to pay everything on
time, now she is always late. Id. Plaintiff reported
that her only hobby is watching television, which she does
all day, every day. Id. at 340. Plaintiff further
reported that her only social interaction occurs via Facebook
two (2) or three (3) times per week. Id. Plaintiff
noted that she does not go out often, and requires reminding
and someone to accompany her when she does. Id.
Plaintiff described that prior to her illnesses she loved to
be around people and plan social engagements, as well as run
her own business. AR at 337, 341.
reported that her illnesses affect her ability to hear, see,
remember, complete tasks, concentrate, and understand.
Id. at 341. Plaintiff further explained that she has
hypersensitive ears; tracers, shadows, and blurred vision
constantly; is frustrated very easily; and manic, racing
thoughts. Id. Plaintiff estimated that she can walk
a mile and pay attention for an hour. Id. Plaintiff
also reported being able to follow written and spoken
instructions adequately. Id. Plaintiff indicated
that she does not have any problems getting along with
people, and has not been fired from a job because of her
relationships with co-workers. AR at 342. Plaintiff reported
that she cannot handle stress or changes in routine well, and
“live[s] in constant fear of not recovering[.]”
Id. Plaintiff noted that she wears glasses.
Id. Plaintiff listed her medications as including
Seroquel, Lithium, and Klonopin. Id. at 343.
Work History Report
Plaintiff also completed a Work History Report. AR at 328-35.
Plaintiff listed her prior work as a motel housekeeper,
network marketer, sales cashier in an art gallery, retail
sales, and bartender. Id. at 328. Plaintiff
described the position of housekeeper as involving changing
linens, cleaning bathrooms, and cleaning floors. Id.
at 329. Plaintiff reported that while working she walked and
stood for four (4) hours per day; stooped and handled,
grabbed or grasped large objects for two (2) hours per day;
and kneeled, crouched, and wrote, typed, or handled small
objects for thirty (30) minutes per day. Id.
Plaintiff further reported that she frequently lifted ten
(10) pounds, and the heaviest weight she lifted was twenty
(20) pounds. Id.
described the position of network marketer as sales of
make-up and skin care products and included taking orders by
phone and placing orders online. AR at 330. Plaintiff
reported that the position required her to use machines,
tools, or equipment, as well as technical knowledge or
skills, but did not require her to write, complete reports,
or perform other similar duties. Id. Plaintiff
further described the position as requiring her to walk or
stand for four (4) hours per day; handle, grab, or grasp
large objects for three (3) hours per day; and stoop, reach,
and write, type, or handle small objects for one (1) hour per
day. Id. Plaintiff reported that she frequently
lifted less than ten (10) pounds, and the heaviest weight she
lifted was ten (10) pounds. Id.
described her position first position as a cashier as
involving the sale of figurines and tourist items.
Id. at 331. Plaintiff reported that she stood for
six (6) hours per day; walked for five (5) hours per day;
handled, grabbed, or grasped large objects for three (3)
hours per day; stooped and reached for two (2) hours per day;
sat and wrote, typed, or handled small objects for one (1)
hour per day; and crouched for thirty (30) minutes per day.
AR at 331. Plaintiff further reported frequently lifting less
than ten (10) pounds, with the heaviest weight she lifted ten
(10) pounds. Id.
described her second position as a cashier as ringing up
clothing sales and giving change. Id. at 332.
Plaintiff noted the use of machines, tools, or equipment in
this position. Id. Plaintiff reported walking and
standing for six (6) hours per day; handling, grabbing, or
grasping large objects and writing, typing, or handling small
objects for five (5) hours per day; and stooping and reaching
for one (1) hour per day. Id. Plaintiff noted that
she frequently lifted less than ten (10) pounds, and that ten
(10) pounds was the heaviest weight that she lifted. AR at
described her position as a bartender as making and serving
drinks and restocking alcohol, including cases of beer and
wine. Id. at 333. Plaintiff reported walking,
standing, or handling, grabbing, or grasping large objects
for six (6) hours per day and stooping, reaching, and
writing, typing, or handling small objects for two (2) hours
per day. Id. Plaintiff further indicated that she
frequently lifted ten (10) pounds, and the heaviest weight
she lifted was twenty (20) pounds. Id.
Plaintiff had a Disability Report-Appeal completed indicating
that her “[r]apid cycling mood changes have worsened,
but I do not get “high” days, just varying levels
of “low”-extremely, dangerously low in
October.” AR at 307. Plaintiff also reported aching
pain and exhaustion. Id.
second Disability Report-Appeal reported that Plaintiffs
“mental conditions continue to hinder her ability to
complete many daily activities.” Id. at 347.
It further described a worsening of Plaintiff’s bipolar
disorder, anxiety, and depression. Id. The report
also references Plaintiffs physical conditions negatively
impacting her daily functions. Id.
Disability Determination for Social Security Pain and Other
Plaintiff had a Disability Determination for Social Security
Pain and Other Symptoms completed. AR at 314-16. Plaintiff
described suffering from unusual fatigue off an on her entire
life and requiring naps or rest once per day. Id. at
314. Plaintiff further described symptoms of depression,
dysphoria, fatigue, and lack of joy. Id. Plaintiff
also indicated that neck pain and side effects of medications
including consistent headaches, racing thoughts and heart
wake her up at night. Id. Plaintiff listed her
medications as Lithium, Clonazepam, Lamictal, and Seroquel,
the last of these she was weaning off. Id. at 315.
Plaintiff listed other medications that she had discontinued
due to side-effects included Prozac, Wellbutrin, and
Risperdal. AR at 315.
reported that her depression prevents her from working and
keeps her isolated without a social life. Id.
Plaintiff described anxiety with leaving her house and very
low motivation due to depression. Id. at 316.
Plaintiff further described her daily activities to include
spending the majority of time on her couch, a little computer
time, occasionally doing dishes, and giving her cat food and
water. Id. Plaintiff noted that her boyfriend helps
her with the cat. Id.
September 4, 2014, Plaintiff completed a Headache
Questionnaire. AR at 280-81. Plaintiff reported that she
began having headaches in 2010 and described having ten (10)
to twelve (12) per year. Id. Plaintiff noted that
she has not seen her doctor regarding headaches, but rather
sees her chiropractor for treatment. Id. Plaintiff
indicated that her headaches generally last between eight (8)
and twenty-four (24) hours and explained that the start at
the base of her skull/top of her neck and radiate around the
top and sides of her head. Id. Plaintiff stated that
the headaches are sometimes triggered by high stress, but at
other times there is no apparent reason for their occurrence.
Id. at 281. Plaintiff further noted that when a
headache comes on, “everything stops” and she
goes to bed until someone can take her to the chiropractor.
AR at 281. Plaintiff indicated that although she does not
take medication for her headaches, ibuprofen and stronger
pain killers do not relieve the pain. Id.
March 3, 2015, Plaintiff had a second Headache Questionnaire
completed. Id. at 323. Plaintiff described her
headaches as constant, and noted that they began in July of
2014. Id. Plaintiff reported that they are
considered to be a side effect of Lithium, but that they were
markedly worse while she was taking Seroquel. Id. at
323–24. Plaintiff indicated that the headaches last
between eighteen (18) and twenty (20) hours per day, easing
in the afternoon. AR at 323. Plaintiff further described her
headaches as an all over ache, which is very persistent and
affecting her eyes with blurry vision and pressure.
Id. Plaintiff explained that when a headache arises,
they are incapacitating and require her to lay down with the
lights low. Id. at 324. Plaintiff also noted that
medication does not relieve their pain. Id.
Vocational Expert Staci Schonbrun’s
Staci L. Schonbrun testified as a vocational expert at the
administrative hearing. AR at 42, 92–97. The ALJ asked
Ms. Schonbrun to classify Plaintiff’s past work for the
business that she ran out of her home regarding sales, and
noted that he did not believe the other jobs had sufficient
earnings or duration. Id. at 93. Ms. Schonbrun
described Plaintiff’s past relevant work as retail
sales, Dictionary of Occupational Titles (“DOT”)
number 299.677-010, with a Specific Vocational Preparation
(“SVP”) of 2-unskilled, and an exertional level
of light. Id. Upon further questioning by the ALJ,
Ms. Schonbrun confirmed that the DOT did not have a job that
adequately encompassed a home business such as Avon or Amway.
Id. at 93–94. As such, Ms. Schonbrun also
described the position of sales manager, DOT number
185.167-046, with an SVP of 7-skilled, and a light exertional
level. Id. at 94–95.
asked Ms. Schonbrun to consider a hypothetical individual of
Plaintiff’s age, education, and work experience and
without physical exertional limitation, but who could
understand, carry out, and remember simple instructions; make
commensurate work-related decisions; respond appropriately to
supervision and co-workers in work situations; deal with
routine changes in work setting; maintain concentration,
persistence, and pace for up to and including two hours at a
time, with normal breaks throughout a normal work day; could
not be required to interact with the public; and who should
only be required to have occasional interaction with
co-workers. AR at 95. Ms. Schonbrun testified that such an
individual would not be able to perform Plaintiff’s
past relevant work, primarily because of the public
interaction. Id. Ms. Schonbrun further testified
that such an individual would be able to perform other work,
such as a mail clerk or mail sorter, DOT number 209.687-026,
with an SVP of 2-unskilled, and light exertional level, and
138, 000 jobs in the national economy. Id. at
95–96. Ms. Schonbrun also suggested that the
hypothetical individual could work as a housekeeper, DOT
number 323.687-014, with an SVP of 2- unskilled, and light
exertional level, and approximately 917, 000 jobs in the
national economy. Id. Ms. Kramer’s third
suggestion was a laundry worker, DOT number 361.684-014, with
an SVP of 2-unskilled, and medium exertional level, and
approximately 917, 000 jobs in the national economy.
inquired as to an employer’s tolerance for an
individual’s absences in the types of jobs she listed.
AR at 96. Ms. Schonbrun opined, based on her experience, that
an employee is going to be absent three (3) or more times per
month, they are considered to be unemployable. Id.
The ALJ also inquired as to an employer’s tolerance for
an individual’s off-task production before employment
would be jeopardized. Id. Ms. Schonbrun testified
that based on her experience, an employer would tolerate less
than fifteen (15) percent off task, above which the
individual would not be likely to maintain employment.
Id. Ms. Schonbrun further opined, based on her
experience, that an individual who engages on a frequent and
ongoing basis in conduct in the work place that is disruptive
of normal operations would be precluded from competitive
Lay Witness Testimony
September 1, 2014, Desiree Houston-Rocha, Plaintiff’s
friend, completed a Function Report-Adult-Third Party. AR at
275–79, 288–95. Ms. Houston-Rocha reported that
she had known Plaintiff for fifteen (15) years and that they
had raised their children together and spent a lot of time
together. Id. at 288. Ms. Houston-Rocha further
reported that Plaintiff lived in a house with her boyfriend,
but that “he sometimes moves out for months at a
time.” Id. at 288. Ms. Houston-Rocha described
Plaintiff as having declined over the ...