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Jerod Latina v. Carolyn W. Colvin

March 26, 2013

JEROD LATINA,
PLAINTIFF,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT (Docket No. 1)

I. BACKGROUND

Plaintiff Jerod Latina ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security (the "Commissioner" or "Defendant") denying his application for Supplemental Security Income ("SSI") pursuant to Title XVI of the Social Security Act (the "Act"). 42 U.S.C. § 1383(c)(3). The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to the Honorable Sheila K. Oberto, United States Magistrate Judge.*fn1

II. FACTUAL BACKGROUND

Plaintiff was born in 1989, and in 1991 Plaintiff's mother applied for SSI on behalf of Plaintiff due to infant-onset diabetes; Plaintiff's SSI application was approved in 1993. (AR 55-61, 177-89, 385.) After Plaintiff turned 18 years of age, the Social Security Administration ("SSA"or "Agency") redetermined Plaintiff's eligibility for SSI, and found him no longer disabled as of February 8, 2008.*fn2 (AR 389-92.) Plaintiff maintained that he remained disabled due to diabetes from infancy, chronic fatigue, liver complications, and back pain caused by scoliosis. (AR 480, 489.)

A. Relevant Medical Evidence

On November 16, 2007, approximately two months after Plaintiff turned 18, he was seen by John B. Krpan, D.O., at Mark Twain St. Joseph Hospital. Dr. Krpan indicated that Plaintiff and his identical twin brother were life-long type 1 diabetics and noted that there had been "no complications" with Plaintiff's diabetes since he had last been seen. (AR 564-65.) Dr. Krpan indicated that Plaintiff and his brother had returned to home schooling, and Plaintiff was planning to graduate from high school in the spring. (AR 564.) Plaintiff's insulin medications were continued, and a comprehensive metabolic panel and complete blood count were performed. (AR 564.)

On November 30, 2007, Dr. Krpan noted that Plaintiff's recent blood work had shown that his "hemoglobin A1C was 10.1 [and] estimated mean plasma glucose [was] 282." (AR 558.) Plaintiff and his mother informed Dr. Krpan that they believed that Plaintiff's "sugars will be much better controlled" because Plaintiff was currently being home-schooled after having "some issues" attending the local public high school. (AR 558.) Dr. Krpan noted that Plaintiff had "had been in poor control," but was "going to do a better job about administrating his insulin now that he is being home[-]schooled." Dr. Krpan examined Plaintiff's back and noted that he had "some fullness in the right paraspinous musculature in the lower aspect of the T-spine," but "did not appreciate a real significant scoliosis, although there was a slight bit with him flexed at the waist." (AR 558.) Plaintiff was referred for a thoracic x-ray due to back pain, and was scheduled for a repeat hemoglobin A1C. (AR 559.)

On January 24, 2008, Plaintiff was seen by Phillip Seu, M.D., who performed a comprehensive internal medicine evaluation. (AR 521-25.) Plaintiff's chief complaints were diabetes and liver disease, as well as complaints for occasional back pain and headache. (AR 521-22.) Plaintiff reported that he "occasionally goes snow boarding. He walks for exercise. He plays paint ball. He helps around the house with chores." (AR 522.) Upon examination, Dr. Seu observed that Plaintiff appeared "fit and well developed. His movements are not guarded. He has no problems walking, sitting, standing, or getting on and off the exam table." (AR 522.) Dr. Seu diagnosed Plaintiff with type 1 diabetes, noting that "[t]here is currently no evidence of end organ damage"; Plaintiff was also diagnosed with a history of elevated liver enzymes and peptic ulcer disease by history. (AR 524.) Dr. Seu provided a functional assessment and opined that Plaintiff was "without limitations" to the number of hours he should be able to stand, walk, and/or sit in an eight-hour workday. Plaintiff was also "without limitations" to the amount of weight he could lift and carry; had "no postural limitations" on bending, stooping, or crouching; had "no manipulative limitations" on reaching, handling, feeling, grasping, and fingering; and had "no relevant visual, communicative, or workplace environmental limitations." (AR 524.)

On February 8, 2008, state agency physician Ian Ocrant, M.D., reviewed Plaintiff's medical evidence for an "[a]ge 18 redet[ermination]" of benefits. (AR 526-27.) Dr. Ocrant noted that Plaintiff had shown "poor compliance" treating his diabetes, but did not have "any functional limitations as a result." (AR 527.) Dr. Ocrant stated that Plaintiff appeared to have exaggerated the seriousness and functional abilities on his Fatigue Questionnaire ("FQ"), and that Plaintiff was "more active than what he admits to on FQ." (AR 527.) Dr. Ocrant opined that a finding of "[n]ot severe appears most appropriate" but that a limitation of "[m]edium would be giving [Plaintiff] the benefit of the doubt re: some of his functional complaints." (AR 527.)

On March 15, 2008, Plaintiff was seen by Dr. Krpan for "continued complaints of back pain" that had been "going on for a couple of months." (AR 590.) Plaintiff denied any specific injury. (AR 590.) Dr. Krpan indicated that an x-ray performed in February 2008 "showed mild scoliosis, perhaps signifying muscle spasm" and that there were "no fractures or dislocations" and "no arthritic process." (AR 590.) Dr. Krpan's physical examination "focused on the back" and found that Plaintiff had "some muscle spasm in the midthoracic range" and "malalignment of the spinous process" at approximately T7 to T8; "[o]therwise, the exam was normal" and Plaintiff had a "good range of motion" with a "full range of motion in all planes with some discomfort." (AR 590.)

On April 25, 2008, Plaintiff was seen by Donald K. Westbie, M.D., based on a referral from Dr. Krpan. (AR 657-58.) Dr. Westbie indicated that Plaintiff had been diabetic since infancy but that "[o[verall he [was] not doing bad[ly]," although he had "less than optimal control" of his blood sugars, which tended to be high in the morning. (AR 567-58.) Dr. Westbie noted that Plaintiff "was recently found to have scoliosis." (AR 658.) Plaintiff also had "very dramatically elevated liver function studies at one time as did his twin. Apparently no diagnosis was ever made for that." (AR 658.) Dr. Westie found that Plaintiff had "[s]ome muscle weakness, some fatigue." (AR 658.) The assessment and treatment plan indicated that Plaintiff needed an eye exam and "updated labs." (AR 658.)

On May 26, 2008, Dr. Krpan indicated that he had a phone conversation with Plaintiff's mother, who was had called regarding a bone density exam ordered by Dr. Westbie. (AR 609.) Plaintiff's mother was "quite emotional," and "made some accusations that [Dr. Krpan] should have checked [Plaintiff's] bone density prior to [that] year." (AR 609.) Dr. Krpan indicated that he had a "conversation" on "multiple occasions" with Plaintiff's mother during which he recommended that Plaintiff and his twin brother, "both type 1 diabetics, get established with an endocrinologist" and that Dr. Krpan would "take care of their acute needs, but . . . was not comfortable with the chronic care of a type [1] diabetic." (AR 609.) Dr. Krpan noted that a "[r]review of the chart reveals hemoglobin A1Cs generally in the 10-11 range in both twins and infrequent visits, usually twice to three times a year and . . . those are usually more acute visits for acute injuries than maintenance diabetes appointments." (AR 609.)

Plaintiff returned to Dr. Westbie on June 4, 2008. (AR 653.) Dr. Westbie noted that Plaintiff was a "[b]rittle, type 1 diabetic" who was "[g]enerally doing well" but needed to "tighten up the control of his diabetes." (AR 653.) Plaintiff had "some previous elevation in liver function test" but his test results "look[ed] good at [that] point." (AR 653.) Plaintiff was planning to attend college in the Folsom area, and Dr. Westbie noted that Plaintiff was "obviously going to need some very close attention to diet." (AR 653.)

On August 18, 2008, Plaintiff was seen by Dr. Westbie for a follow-up visit on "very brittle type 1 diabetes, scoliosis, [and] unexplained lactic acidosis." (AR 648.) Dr. Westbie noted that Plaintiffs' twin has severe osteoporosis" and that a "bone density [exam] had not been scheduled" for Plaintiff. (AR 648.) Plaintiff had back pain in his lower thoracic spine. (AR 648.)

On February 11, 2009, Plaintiff returned to Dr. Westbie, who noted that Plaintiff had "compounding problems" due to his diabetes that "include[d] severe kyphoscoliosis, although he has not had the fractures that his brother has had." (AR 664.) Plaintiff's diabetes test results were "terrible." (AR 664.) Plaintiff had been living in San Diego with his twin brother, but they had returned home. Plaintiff had lost weight, developed a diabetic-related "severe rash," and was "in general . . . washed out and tired." (AR 664.) Extensive lab work was ordered, and Dr. Westbie was seeking to refer Plaintiff "to the bone disease [center] at Stanford along with his brother." (AR 664.) Dr. Westbie stated that there appeared to be "some element of possible malabsorption" and "[m]aybe even a mitochondrial myopathy." (AR 664.)

On April 8, 2009, Dr. Westbie saw Plaintiff for a follow-up visit. (AR 663.) Plaintiff's blood sugars were "up and down, a lot in the 200 to 300 range." (AR 663.) Plaintiff was "having a lot of pain from his back" and Dr. Westbie noted that Plaintiff "does tend to sit in a somewhat twisted position for pain relief." (AR 663.) Plaintiff was attempting to perform some light exercise, and his "muscle strength [did] not seem to be really impaired." (AR 663.) Plaintiff was not attending school and was "working a little bit with his mother, but that is not terribly time consuming." (AR 663.) Dr. Westbie was seeking to refer Plaintiff to the "bone and metabolic unit at Stanford." (AR 663.)

On April 9, 2009, Dr. Westbie wrote a referral letter to David Karpf, M.D., at Stanford University Medical Center on behalf of Plaintiff and his twin brother. (AR 684.) Dr. Westbie admitted to being "somewhat out of [his] depth" when it came to treating the twins. (AR 684.) Dr. Westbie stated that Plaintiff had "significant scoliosis," with both brothers having "very brittle type 1 diabetes, concomitant findings of severe vitamin D deficiency with abnormal DEXA [dual energy X-ray absorptiometry] screens." (AR 684.) Dr. Westbie noted that the brothers were "somewhat noncompliant, not terribly unexpected in 19-year-olds." (AR 684.) Dr. Westbie concluded that the twins should be seen at Stanford's tertiary care center, "where they can have the full advantage of metabolic bone evaluations, intensive treatment of their very brittle diabetes, etc." (AR 684.)

On May 28, 2009, Plaintiff returned to Dr. Westbie, who noted that Plaintiff's "[s]ugars are terrible, average is somewhat above 300" and that Plaintiff had lost weight. (AR 662.) Dr. Westbie indicated that he needed to "update labs" and "needed a current bone density on [Plaintiff], which he has been trying unsuccessfully to get." (AR 662.) Dr. Westbie further noted that Plaintiff "may have to be further evaluated for the possibility of underlying sprue." (AR 662.)

On June 22, 2009, Dr. Westbie completed a Child Disability Report on behalf of Plaintiff. (AR 660.) Dr. Westbie diagnosed Plaintiff with diabetes, chronic lactic acidosis, and Vitamin D deficiency, and noted clinical findings of elevated blood sugars, chronic lactic acidosis, low bone density, scoliosis, and poor muscle strength. (AR 660.) Plaintiff was treated with insulin therapy, but his blood sugars remained elevated. (AR 660.) Dr. Westbie opined that Plaintiff's prognosis was "poor." (AR 660.)

On August 10, 2009, Dr. Westbie completed a Physical Medical Source Statement. (AR 748-50.) Dr. Westbie opined that Plaintiff could lift 20 pounds occasionally and less than 10 pounds frequently; could stand and/or walk less than 2 hours and sit less than 6 hours in an 8-hour workday; could never climb, balance, stoop, kneel, crouch, or crawl, and could only occasionally reach, handle, finger, and feel. (AR 748-49.)

On August 10, 2009, Plaintiff was seen by Jenna Brimmer, M.D., who performed a comprehensive internal medical evaluation. (AR 751-62.) Plaintiff reported that he had back pain since the age of 12 or 13 that had progressively worsened. (AR 751.) Plaintiff rated the pain in his back between 6 and 8 out of a scale of 1 to 10, with 1 being no pain and 10 being severe pain, and noted that the pain was associated with spasms of his mid-back that occurred four or five times a week. (AR 751.) Plaintiff stated that "any movement of his upper body exacerbates his pains such as twisting or turning his torso and pushing and pulling activities." (AR 752.) Plaintiff estimated that he could stand 30 to 40 minutes at a time, walk 20 to 25 minutes, sit 20 minutes, and was limited to lifting 35 pounds. (AR 752.) Plaintiff stated that his pain was relieved by "lying flat" and "asked if he could lie down for the evaluation." (AR 751-52.) Dr. Brimmer noted that Plaintiff was able to get up from a seated position without the use of his upper extremities and performed the physical exam sitting on the table and standing when requested. (AR 751.) Plaintiff could "get up from the supine position" and "move around the exam room . . . without difficulty." (AR 753.) Dr. Brimmer's narrative report indicated that Plaintiff had no limitations (AR 755); however, the form Dr. Brimmer completed indicated that Plaintiff could lift and carry up to 10 pounds frequently and 20 pound occasionally, could sit 6 hours and stand/walk 3 hours in an 8-hour day, and could occasionally climb stairs and ramps, climb ladders or scaffolds, and balance, stoop, kneel, crouch, and crawl. (AR 756-59.)

B. Lay Testimony

On October 30, 2007, Plaintiff completed a Fatigue Questionnaire. (AR 508-09.) Plaintiff stated that he had been sick a lot, could not attend public school, and needed to be home-schooled because he would get dehydrated "from going to the bathroom so much" while at school and his "sugars would run low" during certain classes. (AR 508.) Plaintiff indicated that he would "get good grades" while being home-schooled, where he had the ability to "stop during the day and take a nap or just rest." (AR 508.) Plaintiff stated that he would get "dizzy" from fatigue, and when he was home he could adjust his low blood sugars by eating and resting. (AR 508.) He would get dizzy and experience pain while doing chores, and would need to take a break, check his sugars, and lie down. (AR 508.)

There are two unsigned disability reports (AR 479-502) that are apparently attributable to Plaintiff's mother. (See AR 21-22.) The disability reports indicate that Plaintiff suffered from diabetes since infancy, chronic fatigue syndrome, and liver complications. (AR 480.) The reports state that Plaintiff "experiences chronic fatigue and weakness," and that "[h]is joints hurt often and [he] is required to take NSAID [pain relief medications] regularly." (AR 487.) Plaintiff also complained of "dizziness often[,] which is relieved when he [lies] down." (AR 487.) The reports further indicated that Plaintiff could not attend school "because he has to lie down a lot." (AR 493.) Plaintiff would get "light[-]headed" and needed "constant monitoring of his blood pressure." (AR 493.) Further, the reports indicate that "[s]ometimes [Plaintiff] is bedridden; he sleeps [and] has no energy to get up [and] even go to the bathroom. His mother has to bring him food. [He has] [v]ery low energy all the time." (AR 500.)

C. Administrative Hearing

The Commissioner denied Plaintiff's re-determination of disability initially and again on reconsideration; consequently, Plaintiff requested a hearing before an administrative law judge ("ALJ"). (AR 389-409.) On June 24, 2009, ALJ Laura Havens held a hearing in which Plaintiff, represented by counsel, and Plaintiff's mother Casey Margolis testified. (AR 781-810.) Vocational expert ("VE") Susan Moranda was present at the hearing via phone, but did not testify. (AR 781-810.)

Plaintiff testified that he had a high school diploma, and could read the newspaper and do simple adding and subtracting. (AR 787-88.) Plaintiff had not worked since he had been out of school. (AR 788.) He lived with his mother and twin brother. (AR 788.) Plaintiff was able to dress and bathe himself, although he indicated that it was "kind of difficult" depending on how he slept on his back. (AR 788-89.) Plaintiff was able to do chores such as washing dishes, but only if there were "not that many dishes" and he could stand for approximately 10 minutes. (AR 789.) Plaintiff did not do any cooking, mopping, sweeping, grocery shopping, or yard work, but he did his own laundry. (AR 789.) Plaintiff indicated that he used to snowboard, but "can't do that anymore." (AR 790.) Plaintiff could also read for half an hour, depending on back pain, and would watch "about two [or] three" hours of television a day. (AR 790.)

Plaintiff was taking insulin for his diabetes, which helped control his blood sugars. (AR 791-92.) The diabetes affected the circulation to Plaintiff's feet, and he would get "horrible" and "annoying" tingling. (AR 792.) Plaintiff would have to lie down due to problems with his feet and pain in his back, which was "like an old man's back." (AR 792-93.) Plaintiff would feel pain on his upper and middle back, which he said felt like a "12" on a pain scale of 1 to 10. (AR 793.) Medication helped relieve the pain, but made him drowsy. (AR 793.) Plaintiff also experienced back spasms and cramps. (AR 801.)

Plaintiff stated that he would experience "ulcer pain" in his stomach. (AR 795.) Plaintiff was weak and unable to work out because he could not lift much weight; however, he also testified that he could lift between 70-75 pounds. (AR 793, 795.) Plaintiff was also unable to gain body weight. (AR 795.) Plaintiff stated that he tried to go back to public school for his last year of high school, but it was "too strenuous" and he "couldn't walk back and forth to the classes and stay up for lunch" because the lunch break was "kind of long." (AR 796.) Plaintiff also could not participate in the physical education classes. (AR 796.) Plaintiff lasted about four or five months at public school before returning to home-schooling, where he was able to lie down and take medication for his back without fear of becoming dizzy from the medication. (AR 797.) Plaintiff testified that he was currently lying down on a regular basis throughout the day. (AR 797-98.) Plaintiff also experienced problems with the circulation in his feet and would need to elevate them. (AR 799.) Plaintiff would "spend a lot of time" monitoring his blood sugars trying to "make sure [his] sugars . . . stay at a moderate level" and "not get too high." (AR 800-01.)

Plaintiff testified that one of the Social Security doctors did not examine him, but merely looked at a skin rash and told him it was not related to diabetes even though other doctors had stated that the rash was diabetes related. (AR 801.) The Social Security doctor did not examine Plaintiff's back. (AR 801.)

Plaintiff's mother testified that she had just received confirmation of Plaintiff's referral to Stanford Medical Center for evaluation of Plaintiff's malabsorption and inability to absorb Vitamin D as a condition of his diabetes. (AR 805-06.) Plaintiff's scoliosis was "progressing rapidly." (AR 805.) Plaintiff's mother relayed Plaintiff's history of suffering with infancy-onset type 1 diabetes, including Plaintiff's inability to sleep, his need to rest due to fatigue, the need for liver biopsies when Plaintiff was in the ninth grade because the liver enzymes "were off the charts," the need to constantly control the blood sugar to the point that Plaintiff had received over 200,000 injections by the time he was 12, and Plaintiff's suffering from debilitating pain. (AR 806-08.)

D. ALJ's Decision

On January 19, 2010, the ALJ issued a decision finding Plaintiff not disabled since February 8, 2008, the date Plaintiff was found to be no longer disabled pursuant to a disability redetermination after his 18th birthday. (AR 15-26.) Specifically, the ALJ found that (1) Plaintiff had attained age 18 on September 22, 2007, and was notified that he was found no longer disabled as of February 8, ...


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