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Almazan v. Colvin

United States District Court, E.D. California

October 15, 2014

RUDY ALMAZAN, Plaintiff,


SANDRA M. SNYDER, Magistrate Judge.

Plaintiff Rudy Almazan, by his attorneys, Frailing, Rockwell, Kelly & Duarte, LLP, seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for disability insurance benefits ("SSDI") pursuant to Title II, and for supplemental security income ("SSI") pursuant to Title XVI of the Social Security Act (42 U.S.C. § 301 et seq. ) ("the Act"). This action was initially referred to the undersigned pursuant to Local Rule 302(c)(15), and both parties voluntarily consented to proceed before a United States Magistrate Judge for all purposes. See 28 U.S.C. § 636(c). The matter is before the Court on the parties' cross-briefs, which were submitted without oral argument. Following a review of the complete record and applicable law, the Court finds the decision of the Administrative Law Judge replete with legal error and not supported by substantial evidence.


I. Procedural History

On March 19, 2009, Plaintiff applied for SSDI and SSI benefits. Plaintiff alleges onset of disability on January 15, 2007. The Commissioner initially denied the claims on September 22, 2009, and upon reconsideration again denied the claims on February 17, 2010. On April 19, 2010, Plaintiff filed a timely request for a hearing.

On May 18, 2011, and represented by counsel, Plaintiff appeared and testified at a hearing presided over by Laura Speck Havens, the Administrative Law Judge ("ALJ"). See 20 C.F.R. § 404.929 et seq. An impartial vocational expert, Stephen B. Schmidt, telephonically appeared and testified.

On September 22, 2011, the ALJ denied Plaintiff's application. The Appeals Council denied review on May 28, 2013. The ALJ's decision thus became the Commissioner's final decision. See 42 U.S.C. § 405(h). Plaintiff filed a complaint on July 26, 2013, seeking this Court's review pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3).

II. Administrative Record[1]

A. Plaintiff's Hearing Testimony[2]

Plaintiff testified to the following at the May 18, 2011 hearing. Plaintiff, born August 24, 1963, was homeless and using his sister's address in Modesto, eating at a Salvation Army, and bathing at a local community college. Plaintiff reported that the remainder of his family had moved to San Diego. Plaintiff had one minor daughter in foster care. Plaintiff did not complete high school, but received his GED and was able to communicate in English. Plaintiff testified that he last worked in 2007 as a general laborer through a temporary agency, but was not currently working and had not worked since 2007.

Plaintiff alleged onset of disability in 2007 due to testicular cancer, back pain, arthritis, and depression. Plaintiff testified that he stopped working because "that's when I caught cancer." Plaintiff stated that his depression prevented him from working because he could not concentrate, and told the ALJ that he was "having a hard time right now [at the hearing]." He testified that he experienced sharp pain that "comes and goes" in his shoulders, legs, knees, and lower back. Plaintiff had the following exchange with the ALJ:

Q On a scale of 1 to 10, with 10 being the worst level of pain, what average number would you put the pain at with the medication you take?
A I didn't get what you said.
Q On a scale of 1 to 10, with 10 being the very worst pain, like a car accident or a broken bone or something like that, what number would you put the pain at with the medication that you take on an average?
A Like, this morning my knee was killing me.
Q Okay. Listen to my question again.
A Huh?
Q Listen to the question. On an average, what number would you put the pain at, 1 to 10?
A Probably an 8.
Q Okay. That's with the medication, correct?
A [No verbal response.]
Q Is that a yes?
A Yeah.

Plaintiff reported that he took Tramadol, Neurontin, Prevacid, Lipitor, as well as other prescriptions, but that he could not remember all of them and his attorney did not have a list of at the hearing. Plaintiff stated that he believed his cancer was then in remission, and he received follow-up care for ongoing determinations once every three to six months. Plaintiff testified that the most weight that he could lift was ten pounds. He testified that he could ride his bike "about an hour" or "maybe half hour. You know, it depends." Plaintiff estimated that he could sit for 40 minutes, but "not that long because it hurts my back." He stated that he had trouble sleeping at night because of his shoulder pain, and also couldn't sleep on his back "ever since I hurt [it]."

Plaintiff described that on a typical day he wakes up in the morning after an average five hours of sleep, puts away his sleeping bag, and then goes to the bus station where he sits inside for warmth and talks to friends. Though he did not have a car, Plaintiff maintained his driver's license. Plaintiff stated that he used public transportation such as the bus, but primarily rode his bike for transportation. Plaintiff testified that he did not currently drink alcohol or use drugs, having stopped on July 23, 2010, approximately ten months before the hearing. Plaintiff reported going to Alcoholic Anonymous meetings, and though he did not have a sponsor, was seeking one. Plaintiff alleged mental impairments and testified that he was regularly seeing a mental health professional, David Sandoval, a licensed clinical social worker at Paradise Medical Center, for counseling.

B. Vocational Expert Testimony[3]

Stephen B. Schmidt testified as a vocational expert ("VE") at the May 18, 2011 hearing. The VE classified Plaintiff's past relevant work as a general laborer as "construction worker II" at Specific Vocational Preparation ("SVP") level 2. See DOT Code 869.687-026. The VE noted that the position was ranked by the DOT as "very heavy" exertional level, but because Plaintiff lifted a maximum of only 10 pounds on the job, it would be considered "light" exertional level as actually performed. See SSR 85-15.

The ALJ posed the following hypothetical to the VE:

Assume a person of claimant's age, which is now 47, with an 11th grade - I'm sorry - high school equivalent education, and the same past relevant work with the following additional restrictions present: the hypothetical person can sit six hours out of an eight-hour day; can stand for two hours out of an eight-hour day; can walk for two hours out of an eight-hour day; can occasionally lift and carry 20 pounds; frequently lift and carry 10 pounds, can occasionally climb stairs; never climb ladders; occasionally balance, kneel, crouch, and crawl. Additionally, the hypothetical person must avoid concentrated exposure to heights and moving machinery. Additionally, the hypothetical person has mental restrictions of the following: the hypothetical person is able to understand, remember, carry out simple job instructions only. With these restrictions, could a person do the job as performed by Mr. Almazan in the past?

The VE responded that such an individual could not return to Plaintiff's past relevant work.

The VE testified that the hypothetical individual could perform a limited range of unskilled, sedentary level job with an SVP of 2, such as "assembly" (DOT code 726.684-110), with 4, 000 positions in California, as well as "information clerk" (DOT code 237.367-046), with 11, 000 positions in California, and "inspector" (DOT code 726.684-050), with 2, 000 positions in California, though did not supply the respective numbers available in the national economy. He testified that his testimony was consistent with the DOT.

Plaintiff's attorney posed the following hypothetical to the VE:

Please assume the hypothetical person has the same age and education as the claimant. Additionally, he is able to sit six hours out of an eight-hour day; stand/walk two hours out of an eight-hour day. However, he cannot accept instructions from supervisors or interact with the coworkers and public; unable to perform work activities on a consistent basis without special or additional instruction; could not maintain regular attendance in the work place.

In response, the VE testified that such an individual would not be able to perform the three previous examples of unskilled, sedentary work, or any other work.

C. Medical and Mental Health Evidence

The following medical and mental health records and opinions were properly before the ALJ.

1. 2008-09: Radiation Oncology[4]

On March 10, 2008 at Doctor's Medical center, Dr. Beck performed "radical orchiectomy on the right side for a hard, firm mass suspicious for cancer." Pathology confirmed "pure seminoma with vascular invasion." In medical records dated May 16, 2008, radiation oncologist, Peter Sien, M.D., wrote, "The patient has been abstained from alcohol for 9 months, as he claimed. Yesterday he was on a beer binge and ended up in the emergency room in the hospital for evaluation because he has nausea, vomiting, and abdominal pain." On June 30, 2008, Dr. Sien noted that Plaintiff had completed a course of postoperative prophylactic radiation therapy after he had right radical orchiectomy. Plaintiff received follow up care for testicular cancer at Prigge Radiation Oncology Center in Modesto. Medical records from 2009 show that Plaintiff presented with right testicular seminoma, stage I, post orchiectomy and prophylactic radiation therapy. In radiation oncology follow-up evaluation notes dated October 8, 2009, Dr. Sien wrote that Plaintiff would continue his future follow up visits with his primary physician at Paradise Clinic where "he should have a blood test to monitor his serum marker."

2. June 2009: Psychiatric Review[5]

In a psychiatric review technique form dated June 17, 2009, A. Garcia, M.D., reported that she had "insufficient evidence" to determine Plaintiff's medical disposition. She left blank the remainder of the form.

3. June 2009: Urine Drug Abuse Screen[6]

On June 24, 2009, Dr. G. Webb-Kummer, M.D., received lab results from Plaintiff's urine drug abuse screen as part of his post-operative follow-up regimen. The results were "Negative" as to all drugs for which Plaintiff was tested, including: amphetamines, barbiturates, benzodiazapines, cocaine, opiates, phencyclidine, propoxyphene, cannabinoids.

4. July 2009: Psychiatric Evaluation by Dr. Libunao[7]

State agency psychiatric consultant and Board eligible psychiatrist, Gene Libunao, M.D., examined Plaintiff on July 24, 2009, and performed a comprehensive psychiatric evaluation. He also reviewed Plaintiff's disability form SSA-3368. In his five-page written report, Dr. Libunao noted that Plaintiff was asleep in the waiting room when called. Dr. Libunao observed that Plaintiff had adequate grooming, hygiene, and dress. He noted that Plaintiff presented with a neutral attitude and his behavior was cooperative; answered questions directly at times, though tangentially at times; and his speech was of normal volume, rate, and tone. Plaintiff reported depressed mood, variable sleep and appetite, poor concentration and poor energy. He also reported hearing voices and "medicat[ing] himself" with beer because "it makes the voices more bearable." During the examination, Plaintiff denied any auditory and visual hallucinations. Plaintiff reported that he "is currently drinking two 32-ounce beers every day, " and has stopped attending AA meetings. Dr. Libunao observed that Plaintiff was a poor historian.

Dr. Libunao documented Plaintiff's medical history as follows: testicular cancer in remission, rotator cuff injury, back problems, thumb injury, metal rod in right tibia, and knee arthritis. Dr. Libunao listed Plaintiffs current medications as Vicodin, Baclofen, Lipitor, Prevacid, and Naproxen. Dr. Libunao noted that Plaintiff reported having been "hit by a car as a pedestrian, once on foot, and once on a bike, 1994."

As to Plaintiff's psychiatric history, Dr. Libunao noted that Plaintiff denied any history of psychiatric hospital admissions; had no outpatient psychiatric treatment; denied suicide attempts, but admitted to suicidal ideations while in jail, for which he was placed in a safety cell. Dr. Libunao observed no visible response to internal stimuli and Plaintiff denied current auditory and visual hallucinations, and reported no suicidal or homicidal ideations. Dr. Libunao noted that Plaintiff's mood was "depressed and tired, " affect was full, and he was oriented to month, year, and city. In the "Current Level of Functioning" section, Dr. Libunao wrote:

Concentration was poor during the interview. The claimant was persistent with all questions. Pace during the interview was uneven with tangential thought process, and at times, seems to take the interview not seriously.


DISCUSSION/PROGNOSIS: The claimant's psychiatric symptoms are treatable. His condition can improve within the next 12 months with multidisciplinary treatments.
FUNCTIONAL ASSESSMENT/MEDICAL SOURCE STATEMENT: The following opinions are based on a psychiatric evaluation conducted on July 24, 2009.
The claimant is not capable of managing his own funds.
The claimant does have the ability to perform simple and repetitive tasks, but not detailed and complex tasks.
The claimant cannot accept instructions from supervisors and interact with coworkers and the public.
The claimant cannot perform work activities on a consistent basis without special or additional instruction.
The claimant cannot maintain regular attendance in the workplace.
The claimant cannot complete a normal workday/workweek without interruptions from a psychiatric condition.
The claimant cannot deal with the usual stress encountered in a competitive work environment.

5. August 2009: Dr. Garcia's Assessment[8]

Dr. Garcia filled out two Mental Residual Functional Capacity Assessment ("MRFCA") forms dated August 26, 2009.[9] She first completed the form considering the impact of DAA on Plaintiff's impairments, and opined that Plaintiff would be unable to sustain simple, repetitive tasks and relate or adapt to work changes. The form is predominately a checklist and as to Plaintiff's functional memory and concentration, Dr. Garcia checked the boxes for "Markedly Limited" next to two categories: (1) ability to understand and remember detailed ...

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