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Savino v. Saul

United States District Court, D. Arizona

September 30, 2019

Kimbo Theresa Savino, Plaintiff,
v.
Andrew M. Saul, [1] Acting Commissioner of Social Security, Defendant.

          ORDER

          Honorable Bruce G. Macdonald United States Magistrate Judge.

         Currently pending before the Court is Plaintiff's Opening Brief (Doc. 18). Defendant filed his Brief (“Response”) (Doc. 19), and Plaintiff filed her Reply (Doc. 20). 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 October 3, 2014, Plaintiff protectively filed a Title XVI application for Supplemental Security Income (“SSI”) alleging disability as of April 25, 2013 due to HIV positive status, severe depression and/or adjustment disorder, fibromyalgia, osteoarthritis, peripheral neuropathy, migraines, venous insufficiency with chronic edema, Chronic Obstructive Pulmonary Disease (“COPD”) with allergy-induced asthma and mild emphysema, sleep apnea, and hemorrhagia. See Administrative Record (“AR”) at 15, 18, 165-66, 178-80, 295, 316, 320, 377. The Social Security Administration (“SSA”) denied this application on February 4, 2015. Id. at 15, 165-78, 192-95. On February 20, 2015, Plaintiff filed a request for reconsideration, and on March 30, 2015, SSA denied Plaintiff's application upon reconsideration. Id. at 15, 179-91, 196, 197-200. On May 13, 2015, Plaintiff filed her request for hearing. Id. at 15, 204. On October 31, 2016, a hearing was held before Administrative Law Judge (“ALJ”) Charles Davis and on March 7, 2017, a supplemental hearing was held. Id. at 15, 74-135. On August 23, 2017, the ALJ issued an unfavorable decision.[2] AR at 12-34. On October 17, 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, 290-94. On September 4, 2018, Plaintiff filed this cause of action. Compl. (Doc. 1).

         B. Factual History

         Plaintiff was fifty-two (52) years old at the time of the administrative hearings and forty-eight (48) at the time of the alleged onset of her disability. AR at 32, 74, 108, 165, 178-80, 247, 264, 277, 279, 282, 295, 316, 377. Plaintiff obtained a high school diploma and attended two (2) years of college. Id. at 178-79, 321. Prior to her alleged disability, Plaintiff worked as a resident relations director for an apartment complex, a security guard, waitress, and bartender. Id. at 32, 78-84, 322, 367-72.

         1. Plaintiff's Testimony

         a. Administrative Hearing[3]

         At the initial administrative hearing, Plaintiff reviewed her work history, which included a security guard, resident relations director for a condominium/apartment conversion, as a waitress, and a bartender. AR at 78-84. Plaintiff testified that she lived with her aging mother and brother. Id. at 84-85. Plaintiff further testified that she cooks, does her own laundry, can drive, occasionally does the grocery shopping, and takes her dog out in the apartment complex. Id. at 85-87. Plaintiff also reviewed her current conditions, medications, and treatment. Id. at 87-97.

         On March 7, 2017, at the supplemental administrative hearing, Plaintiff confirmed that she has to keep moving, has problems with her knees, cyclical vomiting, problems with her thought process, and severe migraines. Id. at 120-21. Plaintiff also confirmed that she was still living with her mother and brother. AR at 122. Plaintiff testified that her cyclical vomiting had improved some, and although she had an episode approximately two (2) weeks prior to the hearing, it only lasted a day or day and a half. Id. at 122-23. Plaintiff further testified that she had more recently been diagnosed with pulmonary hypertension and was having some bladder issues. Id. at 123. Plaintiff also testified that she regularly needs to change positions, because she gets stiff easily. Id. Plaintiff reported that she can sit for approximately fifteen (15) to twenty (20) minutes and can stand for only five (5) to ten (10) minutes. Id. at 124. Plaintiff also indicated that she can lift approximately ten (10) pounds, but has been having trouble with her right hand recently. AR at 124. Plaintiff testified that she drops things, has difficulty writing and typing, and has difficulty opening jars and doors. Id. at 124-25. Plaintiff further testified that she has migraines approximately six (6) or seven (7) days per month, and takes medication, as well as lays in a dark room away from other people. Id. at 125-26.

         b. Administrative Forms

         i. Function Report-Adult

         On December 27, 2014, Plaintiff completed a Function Report-Adult in this matter. AR 355-366. Plaintiff reported that she lived in an apartment with family. Id. at 355. Plaintiff described the limitations of her medical conditions as follows:

Psychologically, I have increasingly isolated myself socially, still unable to cope w/exactly what the physical impairments have taken from me. Physically, I have had little to no energy, often needing naps in the middle of the day. I hurt all of the time, even w/ the medication, but I don't want to take the narcotic pain relievers, because my brain is foggy enough most days. I limit my showers most days, because I dread the pain caused by the water on my skin (neuralgia pain). Due to the chronic urinrary [sic] stress incontinence, I often leak through my clothes even when wearing pads, which I always do.
If I'm around too many people, or too much noise, I get jittery, most often turning to anxiety/panic attacks, even if I know/am familiar with either. I struggle climbing steps, up or down, due to pain in my hips (bursitis), knees (osteoarthritis), and sometimes even my feet (plantar fasicitis [sic]). When standing in one place, it is only a short time before my lower back starts burnin [sic]/aching and I have to lean on something to alleviate the pressure. It's a little better if I'm actually moving/walking, but I can only walk short distances before my knees start hurting w/ my lower back and I have to stop and rest. If I sit, I must consistently move & adjust my position, and even then it is hard for me to stand and walk because the stiffness sets in quickly. In all 3 instances, standing in one place, moving/walking, & especially sitting too long, my ankles, feet and calves start to swell from the venous insufficiency.
My memory has been affected & I have to set alarms to remember simple things, like taking my medication. I forget words, even easy ones sometimes, and recall is slow. Reading is difficult because my mind wanders, and it took me close to 2 hours just to write his page and the previous one.
My muscles are weak, my stomach often hurts from the gastritis, I rarely sleep w/o waking up multiple times thru the night, so I am always tired. Trying to get on my knees is a painful struggle, kneeling is worse & I have to use objects or a wall to try & stand again.

Id. at 355-56. Plaintiff described her usual day as having coffee while waiting for her stiffness to go away, getting dressed, eating a small breakfast, going to appointments or sometimes the store, sometimes getting on the computer or watching television, taking her dog out for a short walk, doing needlework or sewing, eating an early dinner, taking her dog out for an evening walk, and watching television while crocheting, then going to bed. Id. at 357-58. Plaintiff reported that she feeds and waters her dog, takes her out twice per day, bathes her in the sink, and plays with her. Id. at 357, 360. Plaintiff also reported that her mother sometimes feeds and waters her dog or plays with her. AR at 357.

         Plaintiff indicated that prior to her illness she was able to do “everything” and was very social and active, including reading and writing books, working around the house and outside of the home, and spending time with her children and grandchildren. Id. at 357-58. Plaintiff reported that she now has sleep apnea due to the weight gain resultant from her medications and emotional distress. Id. at 357. Plaintiff further reported that regarding her personal care, dressing is difficult because of her balance issues, showers are often painful, her hair usually stays in a braid, and she has difficulty sitting and standing to use the toilet. Id. at 359. Plaintiff noted that sometimes her mother reminds her to take care of her personal needs and to take her medication. Id. Plaintiff also reported that she tries to eat healthy and cooks daily, with preparation time up to an hour. AR at 359. Plaintiff reported that she does laundry at the laundromat and washes dishes, but has difficulty with dusting and bathroom cleaning because she is sensitive to cleaning products and allergens. Id. at 361. Plaintiff indicated that her mother initiates tasks because of Plaintiff's lack of energy. Id. at 360.

         Plaintiff reported that she can drive, but sometimes is unable to go out alone due to migraines or her medications. Id. Plaintiff further reported that she is able to shop on the computer, and sometimes for groceries in the store. Id. Plaintiff also reported that she can pay bills, count change, handle a savings account, and use a checkbook or money orders. AR at 362. Plaintiff noted that she has to be careful with money since the onset of her conditions because she is more forgetful now. Id. Plaintiff listed her pre-illness hobbies to include reading, writing, television, sewing, crocheting or knitting, and being on the computer. Id. Plaintiff reported that she does not read anymore, does a little writing, watches television daily, rarely sews, crochets when her hands do not hurt, and cooks most of the time. Id. Plaintiff described spending time watching television with her mother, texting with her children and other family members, and talking on the telephone or with people that she encounters while walking her dog. Id.

         Plaintiff indicated that she does not go out on a regular basis, and when she does requires reminders and someone to accompany her. AR at 362. Plaintiff described that since her conditions began her social contact has dropped and she is depressed and reserved. Id. at 363. Plaintiff reported that her conditions affect her ability to lift, squat, bend, stand, reach, walk, sit, kneel, talk, climb stairs, see, remember, complete tasks, concentrate, and understand. Id. Plaintiff further reported being able to walk between one-half and one block before needing rest. Id. Plaintiff also reported that she can pay attention a maximum of ten (10) minutes at a time. Id. Plaintiff indicated that she can follow written and spoken instructions, but sometimes needs to either reread or have the instructions repeated. AR at 363.

         Plaintiff noted that she is able to get along with authority figures and has never been fired or laid off because she could not get along with people. Id. at 364. Plaintiff further reported that she does not handle stress well, and needs time to adjust to changes in routine due to anxiety, panic attacks, and fear of rejection. I ...


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