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Ramon Guardado, Jr v. Michael J. Astrue

May 27, 2011


The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge


Plaintiff Ramon Guardado, Jr., by his attorney, Ann M. Cerney, seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for disability insurance benefits (DIB) under Title II of the Social Security Act and for supplemental security income ("SSI"), pursuant to Title XVI of the Social Security Act (42 U.S.C. § 301 et seq.) (the "Act"). The matter is currently before the Court on the parties' cross-briefs, which were submitted, without oral argument, to the Honorable Sandra M. Snyder, United States Magistrate Judge. *fn1 Following a review of the complete record and applicable law, this Court finds that the decision of the Administrative Law Judge ("ALJ") disregarded substantial portions of the agency record and failed to set forth his findings and analysis in sufficient detail. As a result, this Court reverses the decision below and remands for further proceedings. ///

I. Administrative Record

A. Procedural History

On March 16, 2007, Plaintiff applied for disability benefits pursuant to Title II of the Social Security Act and for supplemental security income ("SSI"), alleging disability beginning March 30, 2005. His claims were initially denied on September 27, 2007, and upon reconsideration, on January 11, 2008. On January 18, 2007, Plaintiff filed a timely request for a hearing. Plaintiff appeared and testified at a hearing on July 2, 2008. On December 24, 2008, Administrative Law Judge James M. Mitchell denied Plaintiff's application. The Appeals Council denied review on July 2, 2009. On August 18, 2009, Plaintiff filed a complaint seeking this Court's review.

B. Factual Record

Plaintiff (born September 18, 1958) worked as a forklift operator for many years, first, at a food processing plant and later, for a lumber and millwork company. He loved his job and testified that he wanted to return to it. Plaintiff reported that he was released from his last job because of his illnesses and chronic fatigue. Plaintiff attended school through the tenth grade, and did not graduate or complete a GED.

Plaintiff was five feet, four inches, with weight ranging from 210 to 254 pounds during the course of processing his application. In a disability report dated April 24, 2008, he reported that his medications included Aciphex, Actos, Buspirone, Glipizide, Lisiopril, Metformin, ProVigil, Sertraline, and Temazepam. *fn2

Treatment records (Paul McGrew, M.D.). The earliest record of Plaintiff's illness is his appointment with Paul McGrew, M.D. on April 6, 2005. Plaintiff complained of stress and of feeling down, sad, and irritable for about a month. Plaintiff was sleeping OK but was missing one or two days of work each week because of fatigue. He felt anxious. In addition to Plaintiff's existing non-insulin dependent diabetes, McGrew diagnosed depression and prescribed Lexapro.

By his appointment with McGrew on April 27, 2005, Plaintiff felt a little better. He had been out on disability since April 6 but was still sometimes agitated. He was crying less and was less irritable. McGrew assessed Plaintiff as having appropriate mood and affect and noted no side effects from the medications. He referred Plaintiff to a counselor.

On June 16, 2005, Plaintiff's blood sugars were high (218 the prior day), and he was experiencing back and abdominal pain with mild nausea and diarrhea. Plaintiff complained of being sleepy. Noting tenderness in the periumbilical region, McGrew diagnosed infectious gastroenteritis in addition to diabetes and depression.

By his August 25, 2005 examination, Plaintiff's medications had changed to Zoloft and Busporone. He complained that he was sometimes too sleepy to work; he had returned home from work that day because of severe fatigue. Plaintiff reported loud snoring and occasional apnea. His blood glucose was 200. McGrew referred Plaintiff for a sleep study.

Plaintiff's main complaint on December 28, 2005, was back pain despite having experienced no injury. McGrew diagnosed lumbrosacral strain.

On March 6, 2006, Plaintiff reported problems with his CPAP mask, which made his mouth get dry. He was tired all the time and had been in bed since last Monday. Plaintiff requested a visit with the psychologist and a month off of work.

On March 20, 2006, Plaintiff was off work. He still needed a new CPAP mask. McGrew added a diagnosis of hyperlipidemia and prescribed Lovastatin. In relation to his diagnosis of diabetes, McGrew noted that Plaintiff needed to lose weight.

By August 7, 2006, Plaintiff, who had begun taking ProVigil each morning, complained of being severely tired and unable to get out of bed. He had a new CPAP mask but was still unable to keep it on through the night; he requested a full face mask. Despite taking Temazepam, Plaintiff was waking every two hours and did not sleep well. Plaintiff's anxiety was improved, however, and he was staying awake from 10:00 a.m. until he went to sleep at 11:00 p.m.

On May 21, 2007, McGrew noted that Plaintiff, who had not worked in over a year, had been fired. His glucose was high: McGrew noted "very poor control." Plaintiff also had a dental infection. McGrew noted that Plaintiff's judgment was appropriate, and he was oriented and had normal memory and appropriate mood and affect.

Psychologist's notes . Beginning on May 2, 2005, Plaintiff's treating psychologist, Tamara Elkins, Ph.D., provided periodic reports to McGrew. Elkins' objectives were to assist Plaintiff in developing stress management skills using cognitive and relaxation therapies.

On June 13, 2005, Elkins reported that Plaintiff was complaining of constant fatigue and would go sleep on the couch on the days his wife forced him to get out of bed. Elkins questioned whether a more stimulating antidepressant might be substituted for the Lexapro that Plaintiff was then taking, since Lexapro might have a sedating effect.

On July 28, 2005, Elkins wrote that, although she had been prepared to send Plaintiff back to work, he had suffered a setback and frequent panic attacks, which could have been attributable either to stress associated with Plaintiff's planned appointment to meet with his boss to discuss his return to work or Plaintiff's father's sudden serious illness and surgery. Plaintiff's wife told Elkins that Plaintiff could not cope with the least stress, retreating into sleep when he felt overwhelmed. Elkins suggested to McGrew that Plaintiff might benefit from an anti-anxiety drug, although she discouraged a benzodiazepine since Plaintiff was to return to work operating heavy machinery.

Plaintiff's anxiety also increased in March 2007. He told Elkins that the Buspar was no longer helping him manage anxiety. Elkins also addressed Plaintiff's difficulty in securing his ProVigil prescription since his insurance carrier denied coverage for it. In April 2007, Elkins suggested a trial period of ProVigil to determine the propriety of the prescription before filing an appeal with Plaintiff's insurer. Plaintiff was also trying a new CPAP mask in April 2007. Finally, Elkins reported that Plaintiff's blood sugar readings were consistently high and that he had stopped using a cholesterol medication that was making him ill.

In May 2007, Elkins again asked McGrew to secure ProVigil samples for a trial period, reporting that because Plaintiff was experiencing severe sleep dysfunction, he complained of lack of motivation, low energy, and a constant desire to sleep. Plaintiff was removing his CPAP mask every few hours during the night, sometimes without being aware of his action. Elkins reported that if Plaintiff was unable to return to work within the next few weeks, he was going to be fired.

By June 2007, Plaintiff's sleep habits and exhaustion were improving on the trial course of ProVigil.

On December 28, 2007, Plaintiff told Elkins that he felt degraded. He could not afford the co-pay to see his doctor, had sent his son to apply for food stamps, and had been turned away from the foodbank. He described himself as depressed and unmotivated. His wife told Elkins that Plaintiff was now falling asleep suddenly, sometimes in the middle of a conversation. Elkins characterized Plaintiff as having descended into a "vicious cycle of depression & ill health that are feeding on each other and destroying [Plaintiff's] ability to function." AR 220.

Sleep Study (October 8, 2005). Avi Ishaaya, M.D., supervised an overnight sleep study of Plaintiff on October 8, 2005. Analysis on Plaintiff's sleep revealed moderate sleep apnea, severe sleep related oxygen desaturations, severe SaO2 nadir, moderate respiratory related sleep fragmentation (37 respiratory arousals per hour), severe snoring, and ECG/EKG abnormalities. Ishaaya noted that Plaintiff experienced reduced deep sleep and no REM sleep. Treatment options included initiation of nasal CPAP, uvulapalatoplasty or glossoplasty, or use of a dental appliance.

If clinically indicated, other recommendations would include weight loss, thyroid function testing, and avoiding sedatives and alcohol.

Adult Function Report (March 25, 2007). *fn3 Plaintiff described a daily routine in which he steadily slept for a few hours, awoke to eat, then slept a few hours more before again waking and eating. On some days, he was able to wake, eat breakfast, and stay up for three or four hours before he was so exhausted that he needed to return to bed. He could no longer concentrate or sleep and wake in a regular daily pattern. Plaintiff never felt that he had enough sleep.

Although Plaintiff thought he got along well with others, being around others gave him anxiety attacks. He could not handle stress. He had problems with memory, concentration, and following instructions. He had difficulty hearing.

Although he had household chores, motivating him to do them was difficult. His wife handled the housework and family finances.

Plaintiff enjoyed going to Home Depot once a week and looking at the tools. Other than that outing, he didn't "like to do much of anything anymore," including the things he used to enjoy, such as sports, television, and going out. Sometimes he forgot to go to doctors' appointments or to take medication.

Third-party Disability Report (March 25, 2007). Plaintiff's sister, Rosa Guizar, visited Plaintiff four or five days a week. She reported that he got up only to go back to sleep on the couch in front of the television. "If we let him," said Guizar, "he doesn't get out of bed." AR 88. He no longer dressed himself and neglected personal care such as cutting his hair or shaving. He was having trouble hearing.

Although Plaintiff was supposed to be responsible for the yard work, he worked only five or ten minutes before wandering away. Sometimes Guizar was able to get him to go outside with her to help weed the flowers. She took him to Home Depot about once a week just to get him out of the house.

Guizar reported that, although Plaintiff had once been very active, he was now always exhausted. He had lost interest in sports and going out. He had begun to spend money thoughtlessly, without thinking of necessities.

Psychological Disability Evaluation (May 17, 2007). Deborah von Bolschwing, Ph.D., examined Plaintiff on behalf of the agency on May 17, 2007. Her report was countersigned by her supervisor, Roxanne Morse, Ph.D. von Bolschwing observed Plaintiff to be appropriately dressed with adequate hygiene. He was alert and fully oriented; his speech was clear and coherent; his thought process was linear; his thought content was logical. Although mildly depressed, Plaintiff's insight and judgment appeared to be intact, and he reported no homicidal or suicidal ideation. von Bolschwing noted that Plaintiff had hearing difficulties since childhood but had never worn a hearing aid.

Plaintiff was cooperative and demonstrated adequate effort in the testing process, but his concentration and attention wavered. His memory was intact. He could read and complete the history form. He could write a simple sentence. He had mild difficulty doing arithmetic in his head, but demonstrated common sense and abstract reasoning. He worked slowly but with adequate persistence.

Plaintiff's intelligence testing scores fell in the low average range, with weakness in academic functioning. His score on the Bender-Gestalt Test II, which assesses visuo-constructive ability, was in the average range. Plaintiff's M-FAST scores suggested genuine and forthright presentation of symptoms. von Bolschwing diagnosed Plaintiff:

Axis I Dysthymia

Axis II: No Diagnosis

Intellectual Functioning Within the Borderline Impaired to Low Average Range Axis III: Deferred to Medical Opinion AR 109. von Bolschwing opined that Plaintiff had no impairment in his ability to follow or remember simple instructions; to follow or remember complex or detailed instructions; to maintain adequate pace or persistence to perform one or two step simple repetitive tasks; to maintain emotional stability or predictability; to interact appropriately with co-workers and supervisors on a regular basis; to interact appropriately with the public on a regular basis; to communicate effectively with others (verbal); and to communicate effectively with others (written). He had no to mild impairment in his ability to adapt to changes in job routine. Plaintiff had mild impairment in his ability to maintain adequate pace or persistence to perform complex tasks; to maintain adequate attention or concentration; to withstand the stress of a routine work day; and to perform tasks requiring mathematical skills. Plaintiff appeared cognitively able to manage his funds. von Bolschwing recommended that Plaintiff's ability to work be re-evaluated in six months.

Emergency Room Treatment (May 18, 2007). On May 18, 2007, Plaintiff was treated in the emergency room of Doctors Medical Center for elevated blood sugar (510) and elevated hemoglobin alcohol.

Internal Medicine Evaluation (May 23, 2007). Family practitioner Miguel Hernandez, M.D., who examined Plaintiff on behalf of the agency, diagnosed obstructive sleep apnea, stress, anxiety and panic attacks, diabetes mellitus, and glaucoma. He opined that Plaintiff could stand and walk about six hours in an eight-hour workday, could sit about six hours in an eight-hour workday, could lift and carry twenty pounds occasionally, and ten pounds frequently. Plaintiff had no postural or manipulative limitations. Because of his vision and glaucoma, Plaintiff should avoid dimly lit and dark rooms and spaces.

Disability Report-Appeal (January 18, 2008). Plaintiff's sister, Nancy Guardado, reported that Plaintiff's physical condition had worsened since his diabetes caused nerve damage to his feet and legs. The bottoms of Plaintiff's feet burned, and he could not stand for more than ten minutes at a time. He had stopped interacting with others, including his children and grandchildren. His ability to think and communicate had worsened. He could not drive because he blacked out. Plaintiff frequently lost bowel control, and could frequently be found crying in the dark. Plaintiff's medications included Aciphex, Actos, Alprazolam, Effexor, Fluoxetine, Januvia, Lisinopril, Lyrica, Metformin, Metropolol, Nortripyline, ProVigil, and Zolpidem. *fn4

Psychiatric Review Technique (September 25, 2007). Agency psychiatrist Archimedes Garcia, M.D., determined that Plaintiff had an affective disorder that did not result in a severe impairment. Garcia determined that Plaintiff's alleged depression and anxiety did not satisfy the regulatory criteria of Section 12.04 and that Plaintiff had no restrictions of activities of daily living, difficulties in maintaining social functioning, difficulties in maintaining concentration, persistence, and pace, and no repeated episodes of decompensation, each of extended duration.

Doctor's notes (Priti Modi, M.D.). *fn5 Plaintiff first saw Modi on August 26, 2007. Plaintiff's blood sugars were high, and he was gaining weight. He complained of headaches and leg pain, stating that his legs got cold and twitched during the night. He had sleep apnea and used a CPAP machine at night; by day, he was sleepy and used ProVigil. Plaintiff was seeing a psychiatrist for anxiety and depression. He claimed he was totally disabled and seeking SSI. Modi advised Plaintiff to begin using insulin and to begin testing his blood sugar three times daily. Modi diagnosed Plaintiff with poorly controlled non-insulin dependent diabetes, hypertension, obstructive sleep apnea, diabetic neuropathy, GERD/dyspepsia, obesity, drowsiness/fatigue, and insomnia.

Modi again advised Plaintiff to start using insulin at an October 26, 2007 appointment. In notes from the November 16, 2007 appointment, Modi noted that Plaintiff had run out of some medicines, including insulin and other diabetes medications, due to lack of money. His blood sugars were very high.

On June 9, 2008, Plaintiff complained of pain in his legs and feet. His blood sugars were elevated. On June 13, 2008, Plaintiff's ...

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