Galligan v. Astrue

• Decision Date: 02 September 2009
• Docket Number: No. CV 06-657-TUC-FRZ (HCE).,CV 06-657-TUC-FRZ (HCE).
• Parties: Isabel S. GALLIGAN, Plaintiff, v. Michael J. ASTRUE, Commissioner of Social Security, Defendant.
• Court: U.S. District Court — District of Arizona

656 F.Supp.2d 1067

Isabel S. GALLIGAN, Plaintiff, v. Michael J. ASTRUE, Commissioner of Social Security, Defendant.

No. CV 06-657-TUC-FRZ (HCE).

United States District Court, D. Arizona.

September 2, 2009.

COPYRIGHT MATERIAL OMITTED

David Anaise, Benham & Anaise LLC, Tucson, AZ, for Plaintiff.

Gerald S. Frank, U.S. Attorney's Office, Tucson, AZ, Shea Lita Bond, SSA Office of the General Counsel, San Francisco, CA, for Defendant.

ORDER

FRANK R. ZAPATA, District Judge.

Pending before the Court is a Report and Recommendation issued by United States Magistrate Judge Hector C. Estrada whereby he recommends granting in part Plaintiffs motion for summary judgment to the extent the case is remanded to the Administrative Law Judge ("ALJ") to conduct further proceedings.¹

As thoroughly explained by Magistrate Judge Estrada, remand is necessary for further proceedings with regard to evidence of fibromyalgia including Dr. Soltani's June 2004 report which may affect the ALJ's severity analysis and his findings with regard to Plaintiff's allegations of mental impairment, physical therapist McLearran's report, Plaintiff's credibility, and the impact of Plaintiff's obesity (i.e., the ALJ's errors may affect the entire sequential disability analysis). Defendant filed several objections to the Report and Recommendation; however, the Report and Recommendation covered the issues reflected in the objections and appropriately found that remand was necessary in this case. For example, while Defendant asserts that the ALJ appropriately dealt with the fibromyalgia issue throughout the evaluation process such that remand is unwarranted, the Report and Recommendation correctly found that the ALJ failed to properly consider the impact of fibromyalgia at Step Two of his evaluation which in turn may have tainted the remainder of the sequential disability evaluation process. See Report and Recommendation at 1095-1100; Objections at 2-4; Report and Recommendation at 1100-05. Similarly, Defendant argues that the ALJ appropriately addressed issues relating to Plaintiff's plantar fasciitis, mental impairment, credibility, obesity, and McLearran's report such that remand on these issues is not required; however, the Report and Recommendation addressed these issues in detail and correctly found that outstanding issues remain to be resolved such that a remand for further proceedings is necessary. See Report and Recommendation at 1099-1105.

Accordingly, IT IS HEREBY ORDERED as follows:

(1) The Report and Recommendation (Doc. # 25) is accepted and adopted.

(2) Plaintiff's motion for summary judgment (Doc. # 14) is granted to the extent this matter is remanded for further proceedings.

(3) Defendant's cross-motion for summary judgment (Doc. # 20) is denied.

(4) This case is remanded for further proceedings consistent with the Report and Recommendation which has been accepted and adopted by the Court..

(5) The Clerk of the Court shall enter judgment and close the file in this case.

REPORT & RECOMMENDATION

HÉCTOR C. ESTRADA, United States Magistrate Judge.

Plaintiff has filed the instant action seeking review of the final decision of the Commissioner of Social Security pursuant to 42 U.S.C. § 405(g). This matter was referred to the undersigned Magistrate Judge for a Report and Recommendation pursuant to the Rules of Practice of this Court.

On July 18, 2007, Plaintiff filed a Motion for Summary Judgment (Doc. No. 14) (hereinafter "Plaintiff's MSJ"). Thereafter, Defendant filed a Cross-Motion for Summary Judgment (Doc. No. 20) (hereinafter "Defendant's XMSJ"). For the following reasons, the Magistrate Judge recommends that the District Court grant in part Plaintiff's MSJ and deny Defendant's XMSJ.

I. PROCEDURAL HISTORY

On June 16, 2004, Plaintiff submitted to the Social Security Administration (hereinafter "SSA") an application for disability insurance benefits under Title II and Title XVIII of the Social Security Act alleging inability to work since December 23, 2001 due to "problems with knees, lower back and hands; blind in right eye; high blood pressure; arthritis; depression." (TR. 80-82, 127). Plaintiff's application was denied initially and on reconsideration. (TR. 54-57, 59, 62-65).

Plaintiff then requested a hearing before an administrative law judge and the matter was heard on November 8, 2005 by ALJ Frederick J. Graf (hereinafter "the ALJ"). (TR. 53, 523). Plaintiff, represented by counsel, testified before the ALJ.¹ (TR. 523-531). On January 25, 2006, the ALJ denied Plaintiff's claim. (TR. 22-35). On October 27, 2006, the Appeals Council denied Plaintiff's request for review thereby rendering the ALJ's January 25, 2006 decision the final decision of the Commissioner. (TR. 5-8, 16). Plaintiff then initiated the instant action.

II. THE RECORD ON APPEAL

A. Plaintiff's general background and Plaintiff's statements in the record

Plaintiff was born on December 10, 1953 and was 51 years old on the date the ALJ issued his decision. (TR. 80). Plaintiff is divorced and, at the time of the hearing, lived with her mother who was then 91 years of age. (TR. 80, 527). Plaintiff has three children who, at the time of the hearing, were ages 30, 28, and 26. (TR. 527).

Plaintiff completed high school. (TR. 133). She has had no vocational training and did not attend college. (Id.). Plaintiff's work history includes employment as: a cashier in the retail field from September 2001 through December 2001; a "floor person to [assistant] manager" in the retail field from September 1999 through August 2000; and an "assembler/supervisor/production manager" for a medical products company from March 1983 through March 1999. (TR. 106, 109, 128). In 2001, when Plaintiff worked as a cashier, she worked 2 to 4 hours per day, 3 days per week. (TR. 109). She was required to walk and/or stand 2 hours each day and she was not required to lift. (Id.). When Plaintiff worked in the retail field from 1999 to 2000, she worked 10 hours per day 5 days per week. (TR. 106, 108). She supervised others and unloaded merchandise. (TR. 108). She was required to walk and/or stand 8 hours each work day, she frequently lifted up to 25 pounds and the heaviest weight she lifted was 50 pounds. (Id.). She was required to kneel, crouch, handle, grab, grasp, reach, write, type and handle small objects. (Id.). As an "assembler/supervisor/production manager", Plaintiff's responsibilities included supervising and training others, setting up inventory, and weighing products. (TR. 107, 128). She worked 8 hours per day 5 days per week and was required to walk 8 or 10 hours and/or stand 7 hours. (Id.). She frequently lifted up to 50 pounds and the heaviest weight lifted was 100 pounds or more. (Id.) She was required to routinely crouch, handle, grab, grasp, reach, write, type and handle small objects. (Id.).

Plaintiff testified that she stopped working in 2001 due to "an injury at work, a herniated disc." (TR. 529). When asked by the ALJ why she believed she could not "do any type of work at the present time," Plaintiff responded: "Because I have trouble with my neck, my knees, my back. I have a lot of trouble sleeping, so I sleep a lot during the day and then with the medications that I take." (TR. 529-530).

Plaintiff testified that she was five feet three inches tall and weighed approximately 265 pounds. (TR. 528). She smokes about five cigarettes a day. (Id.)

Plaintiff experiences "a lot of pain ..." in her left knee, lower back, and left foot. (TR. 83). She has muscle spasms in her lower back and up and down her legs. (Id.). Her right knee also hurts but does not hurt as badly as her left knee. (Id.). She has pain in her arms and hands "all the time ...", her "eyes are also getting worse" and her left eye hurts and becomes fatigued. (Id.). Her pain feels "[l]ike burning in my bones like if they would be tearing all my ligaments [and] nerves in my legs [and] knees, my hands hurt allot [sic] ... I can't use them to[o] much." (Id.). Her left foot swells after fifteen minutes to half an hour of Plaintiff "getting up and moving around." (Id.). The only time she is not in pain is when she lays down or arises in the morning. (Id.).

Plaintiff has taken the following medications: Amitriptyline, Elavil, and Neurontin for fibromyalgia and to help her sleep; Celebrex for back pain; Cyclobenzaprine as a muscle relaxer; Arthrotec for arthritis and inflammation; Prilosec and Protonix for her stomach; Triameter for high blood pressure; Elavil, Celexa and/or Wellbutrin for depression; calcium for osteoarthritis; and Hydrocodone/Apap for pain. (TR. 84, 132, 324, 330, 377). Plaintiff's medications cause "clumsiness, headaches, spasms, cramps, tiredness, fatigue" (TR. 84) and dry mouth. (TR. 132).

On a typical day, Plaintiff arises, makes coffee and breakfast, and watches the morning news. (TR. 85; see also TR. 120 (Plaintiff will make breakfast if she feels well enough to do so)). Her pain prevents her from doing chores including laundry. (TR. 85). She will water the indoor plants if she feels "okay ..." (Id.). Plaintiff also stated that she is able to do "some cleaning inside but I have to sit down a lot." (TR. 87). She vacuums every other day if she feels good, it takes her 3 to 4 days to clean house and 2 days to do laundry, and she does no yard work. (TR. 122). Everything takes her longer to do. (TR. 87). She is unable to put her tennis shoes on, must sit while in the shower, and had to cut her hair short. (TR. 86). Plaintiff is able to drive, but has not been driving since she had surgery on her right eye four weeks before the hearing. (TR. 88, 528-529). She is unable to drive long distances because her eyes become tired. (TR. 90) She goes grocery shopping once a week. (TR. 88; see also TR. 123 (she goes grocery shopping once every 2 weeks for about one hour or one and one-half hours)). Plaintiff's sister pays all the bills and takes care of handling Plaintiff's savings account and...