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Pablo Reyna v. Michael J. Astrue

June 8, 2011


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


Plaintiff Pablo Reyna, by his attorneys, Milam Law Office, seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for disability insurance benefits under Title II 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 Administrative Law Judge erred in failing to find that Plaintiff satisfied the requirements of Listing 12.05C and was thus entitled automatically to be determined to be disabled at step two of the ALJ's analysis.

I. Administrative Record

A. Procedural History

On September 20, 2005, Plaintiff applied for disability benefits pursuant to Title II of the Social Security Act, alleging disability beginning February 20, 2005. His claims were initially denied on January 3, 2006, and upon reconsideration, on May 17, 2006. On July 7, 2006, Plaintiff filed a timely request for a hearing. Plaintiff appeared and testified at a hearing on January 5, 2007. On May 23, 2007, Administrative Law Judge Christopher Larsen denied Plaintiff's application.

On April 25, 2008, the Appeals Council remanded, noting that the residual functional capacity was not explained and that the vocational expert evidence was incomplete. Accordingly, Plaintiff again appeared and testified at a hearing on April 3, 2009. On June 30, 2009, the ALJ again denied Plaintiff's claim. On November 6, 2009, Plaintiff filed a complaint seeking this Court's review.

B. The Agency Record

Plaintiff (born August 3, 1962) previously worked as a farm laborer, a kitchen helper, and an industrial cleaner. When the case commenced, he was drawing a small stipend for providing home health care services to his disabled wife. (Plaintiff's wife used a wheelchair and required regular kidney dialysis.) Although able to speak both English and Spanish, Plaintiff was barely able to read and could not write. An agency interviewer observed that Plaintiff was unable to read and had difficulty responding to her questions.

Plaintiff was born prematurely. His parents were farm workers. He attended special education classes through the eighth grade, when he left school to work as a farm laborer.

Plaintiff's wife described him as "slow." She testified that he was unable to return with items on a shopping list and that he was unable to handle money unless he was provided with exact change for the purchase. Although Plaintiff knew how to drive, he testified that he had never secured a license since he could not read the written examination. When he took medications, his wife had to help him take the right pill(s) at the right time(s).

Plaintiff was fired from his job at a produce dehydrating plant after an argument with a co-worker over Plaintiff's failure to properly clean a machine led to a fight. He was fired from his restaurant job because he was unable to follow directions.

Beginning in or before 2004, Anwar Shaikh, M.D., and Lewis Hernandez, M.D., treated Plaintiff for polycythemia vera, a bone marrow disease in which the body produces too many red blood cells, white blood cells, and platelets. See (June 3, 2011). Because it causes increased blood thickness and clotting, polycythemia vera results in dizziness, breathing difficulties when lying down, fullness in the upper abdomen, headache, itchiness, red coloring and red skin spots, shortness of breath, symptoms of phlebitis, bluish skin discoloration, fatigue, and vision problems. Id. Treatment notes recorded that Plaintiff experienced fatigue, low blood pressure, dizziness, and severe headaches.

Hernandez opined that Plaintiff could stand or walk for two hours, and sit for two hours, in an eight-hour workday. Shaikh opined that Plaintiff was able to stand or walk for one hour, and sit for two hours, in an eight-hour workday.

In October 2005, psychologist Richard Engeln, Ph.D., performed a consultative examination for the agency. Engeln reported that Plaintiff spoke slowly and haltingly, and appeared to experience difficulty focusing his eyes.*fn2 Engeln administered the WAIS-III and reported that Plaintiff's estimated intelligence scores were 66 verbal; 73 performance; and 66 full scale. His memory scored in the mid-borderline range. The Wide Range Achievement Test R indicated that Plaintiff could read and do arithmetic at the beginning third grade level and could spell at the first grade level. On the WMS-III, Plaintiff scored 53 on immediate auditory memory (moderate range of mental retardation), 64 on delayed auditory memory (mild range of mental retardation), 71 on immediate visual memory (borderline); and 62 on delayed visual memory (mild range of mental retardation). Plaintiff demonstrated no evidence of mental or emotional illness. Englin opined that Plaintiff was able to perform jobs with unidimensional instructions and "normal supervision." He would be able to do the type of farm labor jobs that he had done previously.

As a result, in December 2005, agency physician Evangeline Murillo, M.D., determined that insufficient evidence existed to substantiate that Plaintiff had a mental disorder. She described Plaintiff as having an academic delay and mild limitations in daily activities, social functioning, concentration, persistence, and pace. Murillo determined, using the agency's checklist, that Plaintiff had only mild limitations in most areas, but was moderately limited in his ability to understand, to remember, and to carry our detailed instructions. Murillo categorized Plaintiff's ...

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