Hamlin v. Commissioner of Social Security, No. 2:2015cv00331 - Document 18 (E.D. Wash. 2017)
Court Description: ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, INTER ALIA denying 13 Motion for Summary Judgment; granting 14 Motion for Summary Judgment. Signed by Senior Judge Lonny R. Suko. (AY, Case Administrator)
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Hamlin v. Commissioner of Social Security Doc. 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WASHINGTON ) ) ) Plaintiff, ) ) vs. ) ) ) NANCY A. BERRYHILL, ) Acting Commissioner of Social ) Security, ) ) Defendant. ) ______________________________ ) GARRETT STEVEN HAMLIN, No. 2:15-CV-0331-LRS ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT, INTER ALIA BEFORE THE COURT are the Plaintiff's Motion For Summary Judgment (ECF No. 13) and the Defendant's Motion For Summary Judgment (ECF No. 14). JURISDICTION Garrett Steven Hamlin, Plaintiff, applied for Title XVI Supplemental Security Income benefits (SSI) on January 13, 2012. The application was denied initially and on reconsideration. Plaintiff timely requested a hearing which was held on April 16, 2014 before Administrative Law Judge (ALJ) Lori L. Freund. Plaintiff testified at the hearing, as did Vocational Expert (VE) Daniel McKinney. On September 22, 2014, the ALJ issued a decision finding the Plaintiff not disabled. The Appeals Council denied a request for review of the ALJ’s decision, making that decision the Commissioner’s final decision subject to judicial review. The Commissioner’s final decision is appealable to district court pursuant to 42 U.S.C. §405(g) and §1383(c)(3). 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 1 Dockets.Justia.com 1 STATEMENT OF FACTS 2 The facts have been presented in the administrative transcript, the ALJ's 3 decision, the Plaintiff's and Defendant's briefs, and will only be summarized here. At 4 the time of the administrative hearing, Plaintiff was 46 years old. He has no past 5 relevant work experience. At the hearing, Plaintiff amended his alleged disability 6 onset date to January 13, 2012, the same date on which his application for SSI 7 benefits was filed. On that date, he was 44 years old. 8 9 STANDARD OF REVIEW 10 "The [Commissioner's] determination that a claimant is not disabled will be 11 upheld if the findings of fact are supported by substantial evidence...." Delgado v. 12 Heckler, 722 F.2d 570, 572 (9th Cir. 1983). Substantial evidence is more than a mere 13 scintilla, Sorenson v. Weinberger, 514 F.2d 1112, 1119 n.10 (9th Cir. 1975), but less 14 than a preponderance. McAllister v. Sullivan, 888 F.2d 599, 601-602 (9th Cir. 1989); 15 Desrosiers v. Secretary of Health and Human Services, 846 F.2d 573, 576 (9th Cir. 16 1988). "It means such relevant evidence as a reasonable mind might accept as 17 adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 18 S.Ct. 1420 (1971). "[S]uch inferences and conclusions as the [Commissioner] may 19 reasonably draw from the evidence" will also be upheld. Beane v. Richardson, 457 20 F.2d 758, 759 (9th Cir. 1972); Mark v. Celebrezze, 348 F.2d 289, 293 (9th Cir. 1965). 21 On review, the court considers the record as a whole, not just the evidence supporting 22 the decision of the Commissioner. Weetman v. Sullivan, 877 F.2d 20, 22 (9th Cir. 23 1989); Thompson v. Schweiker, 665 F.2d 936, 939 (9th Cir. 1982). 24 It is the role of the trier of fact, not this court to resolve conflicts in evidence. 25 Richardson, 402 U.S. at 400. If evidence supports more than one rational 26 interpretation, the court must uphold the decision of the ALJ. Allen v. Heckler, 749 27 F.2d 577, 579 (9th Cir. 1984). 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 2 1 A decision supported by substantial evidence will still be set aside if the proper 2 legal standards were not applied in weighing the evidence and making the decision. 3 Brawner v. Secretary of Health and Human Services, 839 F.2d 432, 433 (9th Cir. 4 1987). 5 ISSUE 6 7 8 Plaintiff argues the ALJ erred in finding he did not have a “severe” depression impairment and in discounting Plaintiff’s credibility. 9 DISCUSSION 10 11 SEQUENTIAL EVALUATION PROCESS 12 The Social Security Act defines "disability" as the "inability to engage in any 13 substantial gainful activity by reason of any medically determinable physical or 14 mental impairment which can be expected to result in death or which has lasted or can 15 be expected to last for a continuous period of not less than twelve months." 42 16 U.S.C. § 1382c(a)(3)(A). The Act also provides that a claimant shall be determined 17 to be under a disability only if his impairments are of such severity that the claimant 18 is not only unable to do his previous work but cannot, considering his age, education 19 and work experiences, engage in any other substantial gainful work which exists in 20 the national economy. Id. 21 The Commissioner has established a five-step sequential evaluation process for 22 determining whether a person is disabled. 20 C.F.R. § 416.920; Bowen v. Yuckert, 23 482 U.S. 137, 140-42, 107 S.Ct. 2287 (1987). Step one determines if he is engaged 24 in substantial gainful activities. 25 416.920(a)(4)(i). If he is not, the decision-maker proceeds to step two, which 26 determines whether the claimant has a medically severe impairment or combination 27 of impairments. 20 C.F.R. § 416.920(a)(4)(ii). If the claimant does not have a severe If he is, benefits are denied. 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 3 20 C.F.R. § 1 impairment or combination of impairments, the disability claim is denied. If the 2 impairment is severe, the evaluation proceeds to the third step, which compares the 3 claimant's impairment with a number of listed impairments acknowledged by the 4 Commissioner to be so severe as to preclude substantial gainful activity. 20 C.F.R. 5 § 416.920(a)(4)(iii); 20 C.F.R. § 404 Subpart P, App. 1. If the impairment meets or 6 equals one of the listed impairments, the claimant is conclusively presumed to be 7 disabled. If the impairment is not one conclusively presumed to be disabling, the 8 evaluation proceeds to the fourth step which determines whether the impairment 9 prevents the claimant from performing work he has performed in the past. If the 10 claimant is able to perform his previous work, he is not disabled. 20 C.F.R. § 11 416.920(a)(4)(iv). If the claimant cannot perform this work, the fifth and final step 12 in the process determines whether he is able to perform other work in the national 13 economy in view of his age, education and work experience. 14 416.920(a)(4)(v). 20 C.F.R. § 15 The initial burden of proof rests upon the claimant to establish a prima facie 16 case of entitlement to disability benefits. Rhinehart v. Finch, 438 F.2d 920, 921 (9th 17 Cir. 1971). The initial burden is met once a claimant establishes that a physical or 18 mental impairment prevents him from engaging in his previous occupation. The 19 burden then shifts to the Commissioner to show (1) that the claimant can perform 20 other substantial gainful activity and (2) that a "significant number of jobs exist in the 21 national economy" which claimant can perform. Kail v. Heckler, 722 F.2d 1496, 22 1498 (9th Cir. 1984). 23 24 ALJ'S FINDINGS 25 The ALJ found the following: 1) Plaintiff has “severe” medical impairments, 26 those being: diabetes mellitus; cognitive disorder; history of myocardial infarction; 27 and history of pulmonary embolism; 2) Plaintiff’s impairments do not meet or equal 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 4 1 any of the impairments listed in 20 C.F.R. § 404 Subpart P, App. 1; 3) Plaintiff has 2 the residual functional capacity (RFC) to perform less than the full range of light 3 work as defined in 20 C.F.R. § 416.967(b): he can lift and carry 20 pounds 4 occasionally and 10 pounds frequently; stand or walk six hours in an eight hour 5 workday and sit two hours at a time for a total of six hours in an eight hour workday; 6 frequently climb ramps and stairs, balance, stoop, kneel, crouch crawl, and 7 occasionally climb ladders, ropes and scaffolds; can reach overhead bilaterally 8 frequently and handle or finger frequently; should avoid concentrated exposure to 9 hazardous machines, unprotected heights and operational control of moving 10 machinery other than an automobile; should avoid exposure to extreme heat, wetness 11 and humidity; can understand, remember and carry out simple, routine and repetitive 12 instructions and tasks; can interact superficially with the general public and co- 13 workers, but no tandem tasks; would work best in a low stress environment with only 14 occasional decision-making and occasional changes in work settings; and should 15 avoid any pace work or production work; and 4) Plaintiff’s RFC allows him to 16 perform other jobs existing in significant numbers in the national economy as 17 identified by the VE, including weld inspector, hand packager inspector, and garment 18 sorter. Accordingly, the ALJ concluded the Plaintiff has not been disabled at any 19 time since January 13, 2012. 20 21 SEVERE MENTAL IMPAIRMENTS 22 A “severe” impairment is one which significantly limits physical or mental 23 ability to do basic work-related activities. 20 C.F.R. § 416.920(c). It must result 24 from anatomical, physiological, or psychological abnormalities which can be shown 25 by medically acceptable clinical and laboratory diagnostic techniques. It must be 26 established by medical evidence consisting of signs, symptoms, and laboratory 27 findings, not just the claimant's statement of symptoms. 20 C.F.R. § 416.908. 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 5 1 Step two is a de minimis inquiry designed to weed out nonmeritorious claims 2 at an early stage in the sequential evaluation process. Smolen v. Chater, 80 F.3d 3 1273, 1290 (9th Cir. 1996), citing Bowen v. Yuckert, 482 U.S. 137, 153-54 (1987) 4 ("[S]tep two inquiry is a de minimis screening device to dispose of groundless 5 claims"). "[O]nly those claimants with slight abnormalities that do not significantly 6 limit any basic work activity can be denied benefits" at step two. Bowen, 482 U.S. 7 at 158 (concurring opinion). "Basic work activities" are the abilities and aptitudes to 8 do most jobs, including: 1) physical functions such as walking, standing, sitting, 9 lifting, pushing, pulling, reaching, carrying, or handling; 2) capacities for seeing, 10 hearing, and speaking; 3) understanding, carrying out, and remembering simple 11 instructions; 4) use of judgment; 5) responding appropriately to supervision, co- 12 workers and usual work situations; and 6) dealing with changes in a routine work 13 setting. 20 C.F.R. § 416.921(b). 14 The Commissioner has stated that “[i]f an adjudicator is unable to determine 15 clearly the effect of an impairment or combination of impairments on the individual’s 16 ability to do basic work activities, the sequential evaluation should not end with the 17 not severe evaluation step.” Webb v. Barnhart, 433 F.3d 683, 687 (9th Cir. 2005), 18 citing S.S.R. No. 85-28 (1985). An ALJ may find that a claimant lacks a medically 19 severe impairment or combination of impairments only when his conclusion is 20 “clearly established by medical evidence.” Id. 21 Plaintiff asserts that had his symptom claims been properly credited, the ALJ 22 would have found that Plaintiff suffered from depression constituting a “severe” 23 impairment. As noted above, a “severe” impairment must be established by medical 24 evidence consisting of signs, symptoms, and laboratory findings, not just the 25 claimant's statement of symptoms. 20 C.F.R. § 416.908. In any event, the ALJ did 26 find that Plaintiff suffered from “severe mental impairments,” (AR at p. 21), 27 specifically a “severe” cognitive disorder (AR at p. 14), but the ALJ concluded 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 6 1 Plaintiff’s condition did “not rise to the level of complete disability.” Substantial 2 evidence in the record supports that conclusion. A report from Community Health 3 Association of Spokane (CHAS) dated January 30, 2012, indicated “[n]o unusual 4 anxiety or evidence of depression.” (AR at p. 718). This was repeated in a report 5 dated June 26, 2012 (AR at p. 721). 6 Plaintiff underwent a memory assessment by Jonathan W. Anderson, Ph.D., on 7 August 31, 2012. During that assessment, Plaintiff indicated he had last received 8 mental health counseling approximately 15 years ago. (AR at p. 729). Plaintiff 9 described his mood as pretty good and his affect was congruent to that stated mood. 10 (AR at p. 732). Dr. Anderson diagnosed the Plaintiff with Cognitive Disorder NOS 11 (Not Otherwise Specified). (AR at p. 733). Plaintiff demonstrated difficulties on 12 some cognitive tasks which were “more likely than not related to his recent medical 13 events,” those being his cardiac arrest in May 2012 and anoxic encephalopathy1 14 resulting from that event. (AR at p. 733). According to Dr. Anderson: [Plaintiff] demonstrated concrete-level thinking as evidenced by his interpretation of at least one proverb. He provided concrete-level responses to 2 or 3 questions on a similarities task. He appeared to have insight into his condition. His memory is adequate for simple instructions. He sustained attention during the present 120-minute evaluation. He performed adequate on tasks of concentration. His pace was adequate and he persisted on tasks. [Plaintiff] does not appear to be resisting social interaction. It is likely that [Plaintiff] would adapt appropriately to change. 15 16 17 18 19 20 Based on the present evaluation and a review of available records, there does not appear to be a severe mental health condition that would provide a barrier to [Plaintiff] sustaining employment within his physical capabilities. He demonstrated some memory difficulties. To compensate for this, he would benefit from information presented in a list format and/or he is allowed to read material. In addition, he would likely benefit from a work environment that was not overly complex or require him to multi-task. 21 22 23 24 25 26 27 28 1 A condition where the brain tissue is deprived of oxygen. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 7 When asked what would happen if he was offered a job that started tomorrow, he replied, “It would have to depend on what it was[,] but if it was something I could do[,] I would probably take it.” When asked to describe his perfect job, he replied, “It would have to be something that there wasn’t many hours a week, part-time. And it would have to be something were there wasn’t too much heavy lifting.” 1 2 3 4 5 (AR at pp. 733-34). 6 On August 22, October 1 and December 17, 2012, and on January 22, March 7 19, May 1, July 1 and August 7, 2013, reports from CHAS consistently indicated that 8 Plaintiff was experiencing no unusual anxiety or evidence of depression. (AR at pp. 9 743, 746, 751, 757, 769, 789 and 798). On September 12, 2013, Plaintiff presented 10 himself at CHAS for an individual therapy appointment related to his substance 11 abuse, specifically alcohol abuse. 12 dependence, the Plaintiff was assigned a current GAF of 65 indicating “mild” 13 symptoms (depressed mood and mild insomnia) or some difficulty in social, 14 occupational or school functioning, but generally functioning pretty well with some 15 meaningful interpersonal relationships.2 Notwithstanding an assessment of alcohol 16 On October 2, 2013, Plaintiff reported having problems with anxiety. (AR at 17 p. 807). Plaintiff was advised to avoid emotional triggers of anxiety, use relaxation 18 techniques and was put on a trial course of Citalopram. (AR at p. 808). On October 19 3, 2013, Plaintiff presented for another individual therapy session regarding alcohol 20 abuse. Although Plaintiff was diagnosed with alcohol dependence and “major 21 depression, recurrent, moderate,” he was nevertheless again assigned a current GAF 22 of 65. (AR at p. 811). The identical diagnoses were provided on November 5, 2013. 23 (AR at p. 814). On November 26, 2013, Plaintiff reported not having used alcohol in 24 three months, feeling good and doing very well. (AR at p. 821). On December 5, 25 26 27 28 2 American Psychiatric Ass’n, Diagnostic & Statistical Manual of Mental Disorders, (4th ed. Text Revision 2000)(DSM-IV-TR at p. 34). ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 8 1 2013, it was once again reported that Plaintiff had no unusual anxiety or evidence of 2 depression. (AR at p. 825). 3 4 5 6 7 8 On February 27, 2014, Plaintiff was psychologically evaluated by James E. Bailey, Ph.D.. According to Dr. Bailey, the reason for the referral was as follows: He complains of brain disease. He said he had very low blood sugar. . . . He was not taking his medication for diabetes. He was aware that proper glucose level would be needed for brain function. . . . In terms of depression, he said his depression is not bad. He said he has little energy, and his counselor told him that was depression. He said his appetite is good and he sleeps six to eight hours a night. 9 (AR at p. 857). Dr. Bailey noted that Plaintiff had no history of psychiatric 10 hospitalization and no history of psychological or psychiatric treatment. (AR at p. 11 857). On mental status exam, Dr. Bailey observed “no strong depressed facies” 12 regarding Plaintiff’s mood and affect. Asked why he could not work, the Plaintiff 13 indicated he had a speech impediment and tired easily, had low blood sugar and might 14 have to stop on the job, although he might be able to work part-time. (AR at p. 859). 15 Dr. Bailey diagnosed Plaintiff with alcohol dependence in remission for six months 16 and “[r]ule out cognitive disorder.” (AR at p. 859). According to the doctor, the 17 Plaintiff “may have been reduced from some prior level; however, he is generally 18 cognitively intact.” (AR at p. 859). In summary, Dr. Bailey stated: 19 20 21 22 23 24 25 26 27 28 [A]ctivities of daily living seem mostly independent within his physical ability. Socially, he is cooperative and friendly. He likely could meet the public. He is able to relate interactively fairly well. In concentration and persistence, he can do simpler and probably some well-learned multistep (sic) tasks. He may have had some decrease in activity associated with low blood sugar. However, he is fairly cognitively intact. This would be consistent with the notes of the CHAS clinic. In terms of decompensation, there is no evidence of decompenstation in the past 12 months. (AR at p. 860). There is not substantial evidence in the record that Plaintiff suffered from a “severe” medically determinable impairment of depression for a period of 12 months. Furthermore, the record does not indicate Plaintiff suffered unique functional ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 9 1 limitations from depression as distinct from the limitations caused by the “severe” 2 mental impairments found by the ALJ. Accordingly, if the ALJ erred in failing to 3 find Plaintiff’s PTSD was a separate “severe” impairment, it was a harmless error. 4 Burch v. Barnhart, 400 F.3d 676, 682-83 (9th Cir. 2005). 5 6 CREDIBILITY 7 Where, as here, the Plaintiff has produced objective medical evidence of an 8 underlying impairment that could reasonably give rise to some degree of the 9 symptoms alleged, and there is no affirmative evidence of malingering, the ALJ’s 10 reasons for rejecting the Plaintiff’s testimony must be clear and convincing. Garrison 11 v. Colvin, 759 F.3d 95, 1014 (9th Cir. 2014); Burrell v. Colvin, 775 F.3d 1133, 1137 12 (9th Cir. 2014). "In assessing the claimant's credibility, the ALJ may use ordinary 13 techniques of credibility evaluation, such as considering the claimant's reputation for 14 truthfulness and any inconsistent statements in [his] testimony." Tonapeytan v. 15 Halter, 242 F.3d 1144, 1148 (9th Cir. 2001). See also Thomas v. Barnhart, 278 F.3d 16 947, 958 (9th Cir.2002)(following factors may be considered: 1) claimant's reputation 17 for truthfulness; 2) inconsistencies in the claimant's testimony or between his 18 testimony and his conduct; 3) claimant’s daily living activities; 4) claimant's work 19 record; and 5) testimony from physicians or third parties concerning the nature, 20 severity, and effect of claimant's condition). 21 At the hearing, Plaintiff testified the most he would be able to work would be 22 for two hours “mainly” because of his diabetes. (AR at p. 36). He testified he might 23 be able to go three or four hours if it involved sitting down, but he also indicated that 24 he gets low blood sugar crashes “sometimes unexpectedly” and when he does, he 25 needs to lie down and have sugar immediately. (AR at p. 37). According to Plaintiff, 26 he has never heard any of his doctors say he is not compliant with his diabetes 27 regimen (medication and diet). (AR at p. 40). Plaintiff testified that an adjustment 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 10 1 in his medication about six months prior to the hearing date (April 2014) “fixed” his 2 low blood sugar problem. (AR at p. 41). Nevertheless, Plaintiff asserts he can still 3 have a low blood sugar crash due to diet and trying to consume enough sugar to avoid 4 a crash and not too much sugar in order to avoid gaining weight. (AR at pp. 44-45). 5 Plaintiff testified he is fatigued constantly and that almost every day he has to 6 lie down and take naps. (AR at p. 46). Plaintiff testified he takes one or two naps a 7 day lasting at least an hour when he feels like he needs to take a nap. (AR at pp. 55- 8 56). According to Plaintiff, he has insomnia and it is also necessary for him to get 9 up early in the morning to take his medications. (AR at p. 47). 10 Plaintiff testified he cannot lift anything over 20 pounds (AR at p. 61); can 11 walk three to four blocks in the summer and maybe a couple of additional blocks in 12 the winter (AR at p. 61); and can stand for fifteen to twenty minutes at a time (AR 13 at p. 61). He testified climbing stairs is difficult because of pain (neuropathy) in his 14 feet due to diabetes. (AR at p. 62). Plaintiff indicated he could sit for 10 to 30 15 minutes depending on the type of chair and then he would need to get up and stretch 16 “just for different reasons.” (AR at pp. 66-67). He said he walks two or three times 17 a week about a block or block and a half each way. (AR at p. 68). He denied ever 18 telling any doctor that he exercised daily for a total of 10 to 15 hours a week and 19 belonged to a health club. (AR at p. 68). He said he went bowling once with the 20 residents of his assisted living residence but was sore and tired after that and did not 21 do it again. (AR at p. 69). 22 The ALJ found Plaintiff’s allegation of disability was “contradicted by the fact 23 he has only undergone conservative treatment with diabetic medication, but has often 24 been noncompliant in taking his prescribed medication.” (AR at p. 18). Substantial 25 evidence in the record supports that conclusion. 26 In January 2012, it was reported that Plaintiff’s diabetes was well-controlled. 27 (AR at p. 391). On an emergency room visit in March 2012, however, it was 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 11 1 indicated that Plaintiff had been out of Metformin3 for the last several months and 2 therefore, his diabetes was uncontrolled. (AR at pp. 597-98). Plaintiff was given a 3 prescription for Metformin. (AR at p. 598). On another emergency room visit in 4 April 2012, it was noted that Plaintiff’s hyperglycemia was “likely secondary to 5 poorly controlled diabetes,” the Plaintiff was unsure whether he had been taking his 6 Metformin, and the emergency room physician suspected this was “due to medication 7 noncompliance.” (AR at p. 595). Upon his discharge from the hospital in May 2012 8 following his admission for myocardial infarction and resulting anoxic 9 encephalopathy, it was reported that Plaintiff’s diabetes was being managed with oral 10 (p.o.) medications. (AR at p. 608). On June 26, 2012, it was reported that Plaintiff’s 11 diabetes was well-controlled. (AR at p. 721). This was also the case on October 3, 12 2012 (AR at p. 749) and on December 7, 2012 (AR at p. 750), at which time Plaintiff 13 was advised he was not in need of diabetes specialist care as his diabetes was well- 14 controlled. (AR at p. 752). On January 22, 2013, Plaintiff’s medications (Lantus4 and 15 Metformin) were renewed for his “Diabetes Type 2, controlled.” (AR at p. 757). 16 On February 22, 2013, it was reported that Plaintiff went to an area hospital 17 with poorly controlled diabetes. (AR at p. 761). On February 25, 2013, a report 18 indicated that Plaintiff was “refusing the medication” and therefore, Plaintiff was 19 instructed/counseled to take insulin as prescribed, monitor his blood sugar at home 20 three to four times daily and increase the amount of Lantus and insulin he was taking. 21 (AR at pp. 763 and 765). 22 On March 19, 2013, Advanced Registered Nurse Practitioner Kathryn Sander 23 24 25 26 27 28 3 Oral diabetes medicine that helps control blood sugar levels in people with Type 2 diabetes and is sometimes used in combination with insulin or other medications. 4 Generically known as insulin glargine. ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 12 1 who saw Plaintiff at CHAS noted that Plaintiff was doing “quite well,” but that he 2 was having a lot of low blood glucose later in the day. (AR at p. 767). In the “Social 3 History” of her report, it indicated there was no history of alcohol use (AR at p. 768), 4 although that was clearly contrary to what was indicated when Plaintiff was seen in 5 the emergency room in the early part of 2012 (AR at pp. 594-98). It was also 6 indicated that Plaintiff had a moderate activity level, that he was a health club 7 member, and that he exercised daily for a total of 10-15 hours (AR at p. 768) which, 8 as noted above, he denied during the April 2014 hearing. It was further indicated that 9 Plaintiff’s hobbies included going to church and to the library. (AR at p. 768). The 10 ARNP’s assessment was that Plaintiff’s diabetes was uncontrolled at that time. (AR 11 at p. 769). 12 On a follow-up visit on March 27, 2013 to PA-C (Certified Physician’s 13 Assistant) Benjamin Moss at CHAS, the Plaintiff reported he was “doing well” on his 14 medications and “[h]is sugars [were] also improved with the recent changes in his 15 diabetes meds.” (AR at p. 771). Plaintiff was counseled to take his medications as 16 required. (AR at p. 772). In April 2013, Plaintiff was instructed to take his Lantus 17 at bedtime (AR at p. 789), a change which he testified helped to fix his low blood 18 sugar problem. In August 2013, Plaintiff reported that he was on a “drinking binge” 19 to which he attributed his low blood sugar readings. (AR at p. 796). A report dated 20 August 26, 2013 indicated Plaintiff was being seen after being admitted to the 21 hospital for alcohol withdrawal and advised he had not had any alcohol since August 22 13. (AR at p. 800). He was referred to outpatient alcohol counseling and instructed 23 to take his diabetes medication as prescribed, monitor his blood sugar one to three 24 times daily, make appropriate dietary changes to control sugars, and exercise at least 25 two to three times a week for 20 to 30 minutes. (AR at. p. 803). On October 2, 2013, 26 it was reported that Plaintiff’s diabetes and sugars were under control. (AR at p. 27 807). On October 3, 2013, Plaintiff advised he was adhering to his medication 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 13 1 regime, getting daily exercise and sleeping well. (AR at p. 810). On November 18, 2 2013, Plaintiff presented for follow-up on diabetes and medications, denied any 3 current problems, reported feeling well and that he was taking his medications as 4 prescribed. (AR at p. 816). On November 26, 2013, Plaintiff was described as doing 5 well and reported he had not used alcohol in three months. He indicated he was 6 feeling good and not craving alcohol. He advised that the assisted living residence 7 he was in provided a diabetes healthy diet as many of the residents had diabetes. (AR 8 at p. 821). On December 5, 2013, Plaintiff indicated he had no recollection of any 9 “lows.” (AR at p. 823). The assessment at that time was diabetes with “neurological 10 manifestations.” (AR at p. 826). On February 13, 2014, Plaintiff reported that lately 11 his sugars had been very good, but he had been sick the last month and this drove his 12 sugars up. (AR at p. 831). 13 There are simply no opinions during the relevant period of time from any of the 14 medical providers suggesting that Plaintiff’s diabetes physically limited him to an 15 extent greater than that found by the ALJ in her RFC determination. As the ALJ 16 noted, on September 17, 2012, Norman Staley, M.D., reviewed the medical record to 17 date and concluded the Plaintiff was capable of: lifting twenty pounds occasionally 18 and ten pounds frequently; standing or walking for six hours and sitting for six hours 19 in an eight hour workday; limited postural activities except for frequent stooping, 20 crouching and crawling; frequent reaching overhead bilaterally; but preclusion of 21 concentrated exposure to hazards. (AR at p. 18). 22 Consistent therewith was the disability examination conducted by Thomas 23 Hull, M.D., Olympus Health Services, LLC, on September 24, 2012, which resulted 24 in the following assessment: 25 26 27 Gait and station were normal. He has normal speech, hearing and vision. Motor exam normal. He has some mild decrease in range of motion in the shoulders. He [complains of] vertigo and tinnitus since his [myocardial infarction]. He can hold and manipulate small objects. 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 14 1 (AR at p. 740). In his February 27, 2014 report, Dr. Bailey noted as follows: 2 [Plaintiff] has no driver’s license but can drive. He is able to do cooking, cleaning and shopping, but where he lives, they do that. He has friends in his girlfriend. He is not assigned any chores where he is. On a typical day, he might sort files or boxes for two hours with his girlfriend. He watches two or three hours of TV. He goes on errands or shopping up to six hours. 3 4 5 6 7 (AR at p. 859). Based on this, as well as other evidence in the record regarding 8 Plaintiff’s daily living activities, the ALJ rationally concluded that Plaintiff’s 9 “physical impairments have reduced his capacity to work, but not to the extent that 10 he is precluded entirely from basic work-related activity.” (AR at p. 19). 11 Likewise, substantial evidence in the record supports the ALJ’s RFC 12 determination with regard to the extent of the Plaintiff’s mental limitations set forth 13 in that determination. This includes the evidence discussed above regarding the 14 severity of Plaintiff’s mental impairments, as well as Plaintiff’s hearing testimony in 15 which he indicated Citalopram prescribed for his depression had definitely resulted 16 in improvement and therefore, he felt it was no longer necessary to continue attending 17 counseling sessions for depression. (AR at pp. 70-72). 18 CONCLUSION 19 20 ALJ Freund rationally interpreted the evidence and “substantial evidence”- 21 more than a scintilla, less than a preponderance- supports her decision that Plaintiff 22 is not disabled. 23 // 24 // 25 // 26 // 27 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 15 1 Defendant’s Motion For Summary Judgment (ECF No. 14) is GRANTED and 2 Plaintiff’s Motion For Summary Judgment (ECF No. 13) is DENIED. 3 Commissioner's decision is AFFIRMED. 4 5 6 7 8 9 10 IT IS SO ORDERED. The The District Executive shall enter judgment accordingly and forward copies of the judgment and this order to counsel of record. DATED this 24th day of April, 2017. s/Lonny R. Suko LONNY R. SUKO Senior United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT- 16
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