VanSickle 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. 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 Procedure.

         I. BACKGROUND

         A. Procedural History

         On July 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).

         B. Factual History

         Plaintiff 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, 264, 328.

         1. Plaintiff’s Testimony

         a. Administrative Hearing

          At the 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.

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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 85–86.

         Plaintiff 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.

         b. Administrative Forms

         i. Function Report-Adult

         On 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.

         Plaintiff 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. Id.

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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.

         On 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.

         Plaintiff 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. Id.

         Plaintiff 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.

         Plaintiff 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.

         ii. 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.

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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 332.

         Plaintiff 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.

         iii. Disability Report-Appeal

          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.

         A 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.

         iv. Disability Determination for Social Security Pain and Other Symptoms

          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.

         Plaintiff 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.

         v. Headache Questionnaire

          On 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.

         On 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.

         2. Vocational Expert Staci Schonbrun’s Testimony

         Ms. 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.

         The ALJ 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. Id.

         The ALJ 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 employment. Id.

         3. Lay Witness Testimony

         a. Desiree Houston-Rocha

          On 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 ...