Heladio Diaz v. Michael J. Astrue, No. 5:2012cv00363 - Document 16 (C.D. Cal. 2012)
Court Description: MEMORANDUM OPINION AND ORDER by Magistrate Judge Marc L. Goldman: For the reasons discussed below, the Commissioner's decision is reversed, and this action is remanded for further proceedings. (See document for details.) (rla)
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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 CENTRAL DISTRICT OF CALIFORNIA 7 EASTERN DIVISION 8 9 HELADIO DIAZ, Plaintiff, 10 v. 11 12 13 MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, 14 Defendant. 15 ) ) ) ) ) ) ) ) ) ) ) ) ) Case No. EDCV 12-00363-MLG MEMORANDUM OPINION AND ORDER 16 17 Plaintiff Heladio Diaz seeks judicial review of the Commissioner s 18 final decision denying his application for disability insurance benefits 19 ( DIB ) and Supplemental Security Income ( SSI ) under the Social 20 Security Act. For the reasons discussed below, the Commissioner s 21 decision 22 proceedings. is reversed, and this action is remanded for further 23 24 25 I. Background Plaintiff was born on February 18, 1959. (Administrative Record 26 ( AR ) at 52.) He speaks limited 27 experience as a small engine mechanic and as a truck driver. (AR at 47.) 28 Plaintiff filed his applications for DIB and SSI on September 4, 2008, 1 English and has relevant work 1 alleging disability beginning July 5, 2008, due 2 to pulmonary tuberculosis, diabetes, and seizures. (AR at 16, 198.) 3 Plaintiff s applications were denied initially on September 26, 4 2008, and upon reconsideration on December 18, 2008. (AR at 16.) An 5 administrative hearing 6 Administrative Law 7 represented by counsel, testified with the assistance of a Spanish 8 interpreter. A Vocational Expert ( VE ) also testified. (AR at 16.) was Judge held ( ALJ ) on November Maxine R. 19, 2010, Benmour. before Plaintiff, 9 On January 10, 2011, the ALJ issued an unfavorable decision. (AR at 10 22-28.) At the first step of the five-step sequential evaluation process 11 for determining whether an individual is disabled, the ALJ found that 12 Plaintiff had not engaged in substantial gainful activity since the 13 disability onset date. (AR at 18.) At step two, the ALJ found that 14 though the Plaintiff suffers from a seizure disorder, diabetes, diabetic 15 neuropathy, pulmonary tuberculosis, and neck pain, these impairments are 16 not severe, either individually or in combination. (AR at 18-19.) 17 Accordingly, the ALJ concluded that Plaintiff was not disabled within 18 the meaning of the Social Security Act. On January 23, 2012, the Appeals 19 Council denied review. (AR at 1-3.) Plaintiff 20 commenced this action for judicial review, and on 21 September 18, 2012, the parties filed a Joint Stipulation ( Joint 22 Stip. ) of disputed facts and issues. Plaintiff contends that the ALJ 23 erred in finding that his medical impairments were not severe by failing 24 to properly consider both the relevant medical evidence and plaintiff s 25 subjective complaints. (Joint Stip. at 3.) Plaintiff seeks remand for a 26 new administrative hearing. (Joint Stip. at 23-24.) The Commissioner 27 requests that the ALJ s decision be affirmed. (Joint Stip. at 24.) 28 // 2 1 II. 2 Standard of Review Under 42 U.S.C. § 405(g), a district court may review the 3 Commissioner s decision to deny benefits. The Commissioner s or ALJ s 4 decision must be upheld unless the ALJ s findings are based on legal 5 error or are not supported by substantial evidence in the record as a 6 whole. Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir. 1990); Batson v. 7 Comm r of Soc. Sec. Admin., 359 F.3d 1190, 1193 (9th Cir. 2004); Parra 8 v. Astrue, 481 F.3d 742, 746 (9th Cir. 2007). Substantial evidence means 9 such evidence as a reasonable person might accept as adequate to support 10 a conclusion. Richardson v. Perales, 402 U.S. 389, 401 (1971); Widmark 11 v. Barnhart, 454 F.3d 1063, 1066 (9th Cir. 2006). It is more than a 12 scintilla, but less than a preponderance. Robbins v. Soc. Sec. Admin., 13 466 F.3d 880, 882 (9th Cir. 2006). To determine whether substantial 14 evidence supports a finding, the reviewing court must review the 15 administrative record as a whole, weighing both the evidence that 16 supports 17 conclusion. Reddick v. Chater, 157 F.3d 715, 720 (9th Cir. 1996). If 18 the 19 conclusion, the reviewing court may not substitute its judgment for 20 that of the ALJ. Robbins, 466 F.3d at 882. and evidence the can evidence support that either detracts affirming from or the Commissioner s reversing the ALJ s 21 22 III. Discussion 23 A. The ALJ s Finding that Plaintiff Suffers from No Severe Impairment 24 is not Supported by Substantial Evidence 25 Plaintiff contends that the ALJ s conclusion that his impairments 26 are non-severe is not supported by substantial evidence. (AR at 4.) In 27 particular, Plaintiff maintains that his diabetes is a severe impairment 28 in and of itself. (AR at 6.) The Court agrees that the ALJ erred in 3 1 finding that Plaintiff s diabetes and diabetic neuropathy are non- 2 severe, and therefore remand is appropriate.1 3 The existence of a severe impairment is demonstrated when the 4 evidence establishes that an impairment has more than a minimal effect 5 on an individual s ability to perform basic work activities. Webb v. 6 Barnhart, 433 F.3d 683, 686-87 (9th Cir. 2005); Smolen v. Chater, 80 7 F.3d 1273, 1290 (9th Cir. 1996); 20 C.F.R. §§ 404.1521(a), 416.921(a). 8 The regulations define basic work activities as the abilities and 9 aptitudes necessary to do most jobs, which include physical functions 10 such as walking, standing, sitting, pushing, carrying; capacities for 11 seeing, hearing and speaking; understanding and remembering simple 12 instructions; responding appropriately in a work setting; and dealing 13 with changes in a work setting. 20 C.F.R. § 404.1521(b). The inquiry at 14 this stage is a de minimis screening device to dispose of groundless 15 claims. Smolen, 80 F.3d at 1290 (citing Bowen v. Yuckert, 482 U.S. 137, 16 153-54 (1987)). An impairment is not severe only if it is a slight 17 abnormality with no more than a minimal effect on an individual s 18 ability to work. See SSR 85-282; Yuckert v. Bowen, 841 F.2d 303, 306 19 (9th Cir. 1988). An ALJ s conclusion at step two that the claimant lacks 20 a medically severe impairment should be affirmed only where it is 21 clearly established by medical evidence. Webb, 433 F.3d at 687 22 23 24 1 Because the finding that Plaintiff s diabetes constitutes a severe impairment warrants remand, Plaintiff s contentions regarding his other impairments will not be discussed. 25 2 26 27 28 The Secretary issues Social Security Rulings to clarify the Secretary's regulations and policy.... Although SSRs are not published in the federal register and do not have the force of law, [the Ninth Circuit] nevertheless give[s] deference to the Secretary's interpretation of its regulations. Bunnell v. Sullivan, 947 F.2d 341, 346 n. 3 (9th Cir. 1991). 4 1 (quoting S.S.R. 85-28) (reversing a step two determination because 2 there was not substantial evidence to show that Webb s claim was 3 groundless ). 4 Here, Plaintiff has offered sufficient evidence to demonstrate that 5 his diabetes and diabetic neuropathy have more than a minimal effect on 6 his ability to perform work-related functions. First, Plaintiff has 7 provided one year of medical records documenting that during monthly 8 visits, his glucose levels were extremely high and that his diabetes was 9 uncontrolled. (AR at 375, 376, 383, 387, 389, 388, 391, 392, 395, 399, 10 400.) Additionally, a radiology report dated November 7, 2008, notes 11 that Plaintiff had complained of numbness in both feet, and that x-rays 12 revealed arterial calcification in his left foot, indicating diabetes 13 and diabetic neuropathy. (AR at 378-80.) A progress note dated January 14 14, 2009, states that Plaintiff was referred to an ophthalmologist for 15 a retinal hemorrhage, which can be caused by uncontrolled diabetes. (AR 16 at 17 diabetic-retinopathy/DS00447. On September 25, 2008, a state agency 18 reviewing physician completed a residual functional capacity assessment 19 indicating that Plaintiff suffered from exertional limitations with 20 respect to his ability to lift and/or carry, and to stand, walk, and 21 sit. (AR at 334.) 386); see also Mayo Clinic, http://www.mayoclinic.com/health/ 22 While the ALJ provided several reasons for finding that Plaintiff s 23 diabetes did not constitute a severe impairment, these reasons are not 24 sported by substantial evidence. Webb, 433 F.3d at 687. First, the ALJ 25 found that Plaintiff was not compliant with his doctor s recommendations 26 regarding exercise and diet, as there were at least two notations in the 27 medical 28 recommendations. (AR at 21, 389, 399.) A claimant who refuses to follow record that Plaintiff was 5 not cooperating with these 1 prescribed treatment without good reason will be denied benefits. 20 2 C.F.R. § 404.1530; § 416.930. However, there must be evidence that 3 compliance with the treatment would restore the claimant s ability to 4 work. 20 C.F.R. §§ 404.1530(a); Byrnes v. Shalala, 60 F.3d 639, 641 (9th 5 Cir. 1995). 6 Here, there is no evidence that compliance with his physician s 7 recommendations related to diet and exercise would have fully remedied 8 his diabetes-related symptoms. To support a finding that Plaintiff could 9 keep his diabetes under control by following recommendations, the ALJ 10 appears 11 Plaintiff was taking his medications and that his blood sugar was 12 controlled. (AR at 20.) However, the July 2008 consultation makes no 13 mention of Plaintiff s diet or exercise habits, (AR at 293), and the 14 medical records documenting his high glucose levels between November 15 2008 16 medication as directed and was regularly refilling his prescription. (AR 17 at 384, 386, 389, 391, 397, 399, 400, 404.) These records show that 18 Plaintiff was experiencing complications despite taking his medications, 19 and contain no evidence that compliance with his doctor s exercise and 20 diet directions would fully restore his ability to work. to and have October relied 2009 on also a July state 2008 that consultation Plaintiff stating was taking that his 21 Next, the ALJ found that Plaintiff s neuropathy was not severe 22 because his extremities have appeared normal during all appointments, 23 aside 24 calcification in Plaintiff s left foot (AR at 21.) However, the ALJ s 25 reliance on these findings is inconsistent with his determination that 26 Plaintiff does suffer from diabetic neuropathy. To the extent the ALJ 27 was convinced that Plaintiff s extremities were, in fact, normal, he 28 should not have concluded that he suffers from neuropathy. Furthermore, from a radiology report dated 6 November 7, 2008, finding 1 the findings noting that Plaintiff s extremities were normal were part 2 of a long check-the-box list without explanation as to what type of test 3 was administered or whether it was one likely to document symptoms 4 related to diabetic neuropathy. (See, e.g., AR at 371.) In light of the 5 evidence documenting Plaintiff s consistently high blood sugar levels,3 6 the x-ray showing calcification in Plaintiff s foot, and Plaintiff s 7 testimony regarding his symptoms, discussed more fully below, the 8 notations that Plaintiff s extremities were normal do not constitute 9 substantial evidence to support the ALJ s finding that Plaintiff s 10 11 diabetic neuropathy was not severe. Third, the ALJ noted that the medical record suggests that 12 Plaintiff did not receive treatment for his diabetes in the year prior 13 to the hearing, as it appears that there were no records submitted for 14 that time period related to diabetes. (AR at 21.) However, both diabetes 15 and diabetic neuropathy are not curable medical conditions. The year s 16 worth of records covering the period between November 2008 and November 17 2009 document consistently high blood sugar levels and other signs that 18 Plaintiff s diabetes was out of control. There is no indication that 19 Plaintiff s symptoms were improving over time or that they ended after 20 this time period. In fact, Plaintiff testified that he was seeing a 21 doctor on a monthly basis regarding diabetes-related symptoms at the 22 time of the hearing. (AR at 36.) Accordingly, the lack of medical 23 records for this time period does not support a finding that Plaintiff 24 does not suffer from a severe impairment. 25 26 3 27 28 Prolonged exposure to high blood sugar causes diabetic neuropathy and continued high blood sugar levels can prevent improvement of its symptoms. See http://www.mayoclinic.com/health/diabetic-neuropathy/ DS01045/DSECTION=causes. 7 1 Finally, the ALJ rejected the sit/stand/walk and lift/carry 2 limitations assessed by the state agency reviewing physician in his 3 September 2008 assessment because they were based on not only on 4 Plaintiffs diabetes, but also on his tuberculosis and seizure disorder, 5 which subsequently improved. (AR at 22.) The assessment does not, 6 however, explain which limitations are based on which medical condition. 7 (AR 8 plaintiff s diabetes in isolation is not substantial evidence that 9 supports a finding plaintiff lacks a medically severe impairment. 10 at 334-37.) The fact that this assessment was not based on Given the minimal threshold required to show that an impairment is 11 severe, 12 diabetes is not a severe impairment are not supported by substantial 13 evidence in the record. 14 B. The ALJ Improperly Evaluated Plaintiff s Credibility the ALJ s stated reasons for concluding that Plaintiff s 15 Plaintiff contends that the ALJ failed to properly evaluate his 16 credibility in determining that he has no severe impairment. At the 17 hearing, Plaintiff testified that his legs feel numb and weak. As a 18 result, he has difficulty walking and had been using a cane for 19 approximately one year. (AR at 35-36.) He experiences similar sensations 20 in his hands, which prevent him from performing the mechanic work he did 21 in the past. (AR at 43.) He also testified that he experiences extreme 22 fatigue on a daily basis. (AR at 39-40.) 23 To determine whether a claimant's testimony about subjective pain 24 or symptoms is credible, the ALJ must first determine whether the 25 claimant has presented objective medical evidence of an underlying 26 impairment which could reasonably be expected to produce the alleged 27 pain or other symptoms. Lingenfelter v. Astrue, 504 F.3d 1028, 1035-36 28 (9th Cir. 2007). Once the claimant produces such evidence, the ALJ must 8 1 provide specific, clear and convincing reasons for discrediting a 2 claimant's complaints, unless there is affirmative evidence showing that 3 the claimant is malingering. Robbins, 466 F.3d at 883. 4 Here, the ALJ concluded that Plaintiff s medically determinable 5 impairments 6 symptoms. (AR at 21). However, the ALJ found Plaintiff's statements 7 concerning the intensity, persistence and limiting effects of these 8 symptoms [were] not credible to the extent that they are inconsistent 9 with finding that the claimant has no severe impairment or combination could reasonably be expected to produce the alleged 10 of 11 malingering, the ALJ was required to provide clear and convincing 12 reasons for rejecting this testimony. impairments. (AR at 21). Because there was no evidence of 13 The ALJ provided several reasons for determining that Plaintiff was 14 not credible. First, the ALJ discredited Plaintiff s symptom testimony 15 based on his daily activities. (AR at 21.) Plaintiff testified he washes 16 dishes and does garden work a little bit ; feeds the dogs; sometimes 17 makes meals for himself; and can dress himself, though only while 18 sitting down. (AR at 42.) The issue at step two, however, is not whether 19 the Plaintiff is disabled, but whether the medical impairment has more 20 than a minimal effect on an individual s ability to work. See SSR 85- 21 28. Plaintiff s ability to perform these limited activities is not 22 inconsistent with his testimony that his diabetes has at least a minimal 23 effect on his ability to work. 24 Next, the ALJ discredited Plaintiff s testimony because he 25 discussed his symptoms related to leg numbness only once with his 26 primary care provider and did not mention difficulty with his hands or 27 fatigue. (AR at 21-22.) This explanation improperly discounts the fact 28 that Plaintiff s discussion of his leg numbness with his primary care 9 1 provider was sufficient to warrant diagnostic x-rays, and that the x- 2 rays revealed objective evidence of neuropathy in his left foot. (AR at 3 378-80.) Additionally, Plaintiff testified that he was regularly seeing 4 his doctor at the time of the hearing and had repeatedly discussed his 5 leg problems with him. (AR at 36-37.) Furthermore, the records dated 6 between 7 repeatedly seen for diabetes that was out of control and that his blood 8 sugar 9 principal October levels 2008 were and November consistently symptoms of 2009 very show high. that Fatigue uncontrolled Plaintiff is one of diabetes. was the See 10 http://www.mayoclinic.com/health/diabetes/ 11 Additionally, continued exposure to high blood sugar levels cause the 12 symptoms of diabetic neuropathy to worsen, and can cause the neuropathy 13 to 14 http://www.mayoclinic.com/health/diabetic-neuropathy/DS01045/ 15 DSECTION=symptoms. Plaintiff s early complaints in 2008 of numbness in 16 his feet and legs, followed by more recent complaints of numbness in his 17 hands, is consistent with the typical progression of neuropathy. Under 18 these 19 specifically related to Plaintiff s hand numbness and fatigue do not 20 constitute a legitimate reason for finding Plaintiff not credible. 21 progress from circumstances, feet the and legs absence of DS01121/DSECTION=symptoms. to hands records and arms. noting See complaints Finally, the ALJ found Plaintiff not credible because he did not 22 comply with his 23 exercise. An ALJ may properly rely on unexplained or inadequately 24 explained failure to seek treatment or to follow a course of treatment 25 in assessing credibility. Tommasetti v. Astrue, 533 F.3d 1035, 1039 (9th 26 Cir. 2008). Here, the same records stating that Plaintiff was not 27 compliant 28 Plaintiff was compliant in taking his prescribed medication and was with physician s diet and recommendations exercise 10 related recommendations to also diet note and that 1 coming in regularly for checkups. (AR at 370-406.) Given that Plaintiff 2 has not been wholly noncompliant with his physician s recommendations, 3 this reason does not constitute substantial evidence sufficient to 4 discredit Plaintiff s testimony that he suffered from impairments with 5 at least more than a minimal effect on his abiltiy to work. 6 In sum, the principal reasons upon which the ALJ based her decision 7 to reject Plaintiff s testimony to the extent they support a finding 8 that his diabetes and diabetic neuropathy were severe impairments is 9 unsupported by substantial evidence in the record. 10 11 12 IV. Conclusion As a general rule, remand is warranted where additional 13 administrative proceedings could remedy defects in the Commissioner's 14 decision. See Harman v. Apfel, 211 F.3d 1172, 1179 (9th Cir. 2000). 15 Here, the evidence shows that Plaintiff suffers from an impairment or 16 impairments that can be considered severe within the meaning of the 17 Social Security Regulations. Whether these impairments prevent Plaintiff 18 from performing either his past work or some work in the national 19 economy is not a determination that this Court can make. Accordingly, 20 the case is remanded for further evaluation in accordance with the five- 21 step sequential process. 22 23 DATED: October 3, 2012 24 25 26 ______________________________ Marc L. Goldman United States Magistrate Judge 27 28 11
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