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Hernandez v. Berryhill

United States District Court, E.D. California

July 20, 2017

CARLOS HERNANDEZ, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1] Defendant.

          FINDINGS AND RECOMMENDATIONS RECOMMENDING ENTRY OF JUDGMENT IN FAVOR OF CARLOS HERNANDEZ AND AGAINST NANCY A. BERRYHILL

          Gary S. Austin UNITED STATES MAGISTRATE JUDGE.

         I. INTRODUCTION

         Plaintiff, Carlos Hernandez (“Plaintiff”), representing himself pro se, seeks judicial review of a final decision by the Commissioner of Social Security (“Commissioner” or “Defendant”) denying his applications for disability insurance benefits (“DIB”) and supplemental security income (“SSI”) pursuant to Titles II and XVI of the Social Security Act. The matter is currently before the Court on the parties' briefs, which were submitted without oral argument to the Honorable Gary S. Austin, United States Magistrate Judge. A review of the briefs and the administrative record reveals that the ALJ's decision is not supported by substantial evidence. Therefore, it is recommended that Plaintiff's appeal be GRANTED IN PART.

         II. BACKGROUND AND PRIOR PROCEEDINGS [2]

         Plaintiff filed an application for DIB and SSI in September 2011, alleging disability beginning April 10, 2011, due to knee pain and injuries, hypertension and a weak back. AR 34; 150-156; 157-161; 195. His applications were denied initially and on reconsideration. AR 34; 96-106. Plaintiff requested a hearing before an administrative law judge (“ALJ”). AR 111-112. ALJ Timothy Snelling (“ALJ”) conducted a hearing on April 11, 2013. AR 50-75. Plaintiff testified and was represented by Terri Issac, Esq. The ALJ published an unfavorable decision on June 14, 2013. AR 34-42. Plaintiff filed two appeals and the Appeals Council denied both appeals, rendering the ALJ's order the final decision of the Commissioner.[3] AR 1-3; 14-20. 42 U.S.C. §§ 405(g), 1383(c)(3). AR 20-31.

         After filing a complaint in this Court, Plaintiff filed a letter outlining his arguments noting there were additional documents relevant to his case.[4] (Doc. 37). In response, the Court issued an order giving Plaintiff the standard for filing this additional evidence, as well as guidelines he should consider when filing his brief. (Doc. 38). Plaintiff filed eight pages of supplemental briefing and over 303 pages of additional medical documents. (Doc. 41). The Commissioner filed her opposition. (Doc. 43). Plaintiff filed a response. (Doc. 44). The Court has reviewed all of these documents.

         III. ISSUES PRESENTED

         Plaintiff argues that he is disabled because he was exposed to toxic ink while working as a silk screen printer in 2004. He contends that he suffers from neuropathy including chronic tingling and pain in his head and extremities, persistent heart palpitations, high blood pressure, anxiety, chest pains, and panic attacks. (Doc. 37, pgs. 2-3; Doc. 41, pgs. 1-4). He alleges the ALJ erred when finding that he was not disabled because the ALJ misinterpreted the medical evidence and improperly found that he was not credible during his hearing. (Docs. 41, pgs. 4-8; Doc. 44, pgs. 1-4). It appears he is asking that the Court award him disability benefits.[5] The Commissioner argues that the ALJ's assessment of the medical evidence and his credibility determination were proper and are supported by substantial evidence. Accordingly, the ALJ's disability determination should not be disturbed. (Doc. 43, pgs. 7-18).

         IV. PLAINTIFF'S HEARING TESTIMONY

         Plaintiff was fifty-two years old at the time of the hearing. He graduated high school and completed about a year and a half of college. AR 51; 53. He has worked all of his life. Most recently (from 1983 until 2009), he was employed as a screen printer installing graphics on cars. AR 51-54. Plaintiff testified that in 2004, the chemicals he was using at work changed the way his nervous system was functioning. Plaintiff stopped working in 2009 when he was laid off after experiencing problems with high blood pressure which caused him to miss work. AR 56-57. He continues to suffer from high blood pressure which he has not been able to get under control even with medication. AR 56-58. He has not looked for work after being laid off because he feels “horrible every day” and he suffers from anxiety, which has gotten worse over the years. AR 65.

         After Plaintiff was laid off, he supported himself with unemployment benefits for over a year. AR 58. After those benefits stopped, he moved in with his nephew but is still responsible for buying his own food. He also receives food stamps but was never able to work due to his health issues, which includes anxiety, gastrointestinal problems, and a past history of alcohol abuse. AR 60-61. When he experiences anxiety, his chest feels tight and he is unable to breathe. AR 60-61. He can't take anxiety medications because the drugs his doctor prescribed made him dizzy. AR 61-62. Some days he is unable to get out of bed because his anxiety has gotten too severe. He also suffers from knee pain which prevents him from standing or walking for more than a half hour. AR 67. Plaintiff is also unable to sit for more than approximately thirty to forty minutes because of his back. AR 68. He has not lifted anything recently but thinks he could lift between ten and twenty pounds. AR 68.

         During the day, Plaintiff is able to get out of bed and eat breakfast if he does not suffer from an anxiety attack. AR 68. Sometimes after getting out of bed, he suffers from an anxiety attack which is the main reason he is unable to work. AR 68-69. He suffers from these every day, sometimes more than once a day and they can last up to four hours. AR 69. Sometimes, the attacks never go away. When they occur, he is unable to breathe and has pressure in his chest. AR 69. He is unable to drive because he had an accident and now has a phobia about driving. AR 69. He gets around either by using public transportation, or by getting rides from his girlfriend. AR 69. He also suffers from memory loss, so his nephew and girlfriend have to remind him when to take his medications. AR 70.

         V. THE MEDICAL RECORD AT THE TIME OF THE ADMINSTRATIVE HEARING

         Plaintiff was seen at Kaiser Permanente in July 2009 for a physical examination complaining of tightness in his throat and dizziness. AR 274-285. His blood pressure was slightly elevated but he reported it was under control. AR 277. In addition to hypertension, it was noted he suffered from prediabetes, high cholesterol, and insomnia. AR 277; 281. Blood reports also revealed Plaintiff had low potassium levels. AR 40; 282.

         Plaintiff was treated at Golden Valley Health Center from January 2010 through April 2011. AR 40; 292-306. He began treatment there after losing his health insurance and complained of fatigue and chest pain on exertion. He was diagnosed with chronic hypertension and benign prostatic hypertrophy (enlargement of the prostate). AR 299. By May 2010, he had no further fatigue and experienced only occasional periods of tachycardia (rapid heart rate). AR 297. In April 2011, he was seen for a refill of his blood pressure medication and for blood work. AR 292-306. He denied chest pain, shortness of breath, palpitations, depression, anhedonia, disturbance of appetite, but acknowledged that he had some trouble sleeping and experienced some fatigue. AR 40; 295. He presented with euthymic mood and appropriate affect. AR 40; 295.

         On December 12, 2011, state agency consultative examiner Roger Wagner, M.D., examined Plaintiff. AR 40-41, 322-26. At the time of the examination, Plaintiff complained of knee pain, with more pain in his left knee than his right; low back pain; and high blood pressure. Dr. Wagner observed that Plaintiff was able to easily move about the exam room and appeared “quite limber” in performing such activities as bringing his ankles to the knees bilaterally. AR 40; 323. The doctor noted normal gait at a brisk pace and no complaints of pain on walking or sitting. AR 40; 323. He reported negative straight leg raising tests bilaterally, which led him to describe Plaintiff's low back pain as “benign[, ]” and 5/5 motor strength in the upper and lower extremities. AR 40; 325. Dr. Wagner also described Plaintiff's knee condition as “relatively benign” given the lack of any “signs of any severe problems.” AR 40; 325. Finally, with respect to Plaintiff's hypertension, Dr. Wagner opined that it was “well controlled. . . with no obvious end organ damage.” AR 40; 325. Dr. Wagner opined Plaintiff could stand and walk up to six hours; could lift and carry fifty pounds occasionally and twenty-five pounds frequently; could occasionally climb stairs; and could rarely climb and balance on ladders or scaffolds. AR 325-326.

         In March 2012, x-rays of Plaintiff's bilateral knees showed no abnormalities. AR 41; 368-369. On June 23, 2012, Plaintiff went to the emergency room complaining of numbness and tingling across his chest for the last few weeks, but denied symptoms at the time of the exam. AR 41; 355. After an unremarkable exam, including a negative chest x-ray and normal EKG[6] (AR 348; 356-357), Plaintiff was diagnosed with hypokalemia (low potassium), discharged from the hospital, and prescribed potassium chloride. AR 40; 347; 357-358.

         On July 5, 2012, Plaintiff followed up with his treatment providers and reported that he felt better but complained of tightness in the upper back, shoulder and neck. He attributed these symptoms to nerve damage.[7] AR 41; 370. At that time, Plaintiff exhibited no psychiatric deficits. AR 41; 371.

         On July 18, 2012, Plaintiff returned to the emergency room complaining of palpitations and dizziness after taking two different diuretics, drinking too much caffeine, and not taking enough potassium. AR 41; 343-345. Plaintiff was discharged after a few hours. He was diagnosed with palpitations after his condition had improved. AR 345. On July 20, 2012, Plaintiff initiated treatment at the county Health Services Agency with Dr. Thomas Wenstrup, M.D., and complained of the effects of past chemical exposure. AR 41; 471. Blood work taken in August and September 2012 revealed low potassium levels. AR 446-447; 451.

         Plaintiff returned to the Health Services Agency on September 26, 2012, Plaintiff again described “nerve damage” due to chemical exposure. He complained of “attacks” of tingling all over but the symptoms centered mainly around his chest. Later in the appointment, he denied anxiety. AR 41; 465.

         On September 29, 2012, Plaintiff returned to the emergency room seeking treatment for intermittent chest pain over the last two weeks with shortness of breath, sweating, nausea, palpitations, left arm numbness, and anxiety. AR 41; 382; 431. An ECG and chest x-ray were all normal. AR 384; 387-390. Plaintiff was discharged the next day, diagnosed with chest pain -likely secondary to anxiety, hypokalemia and hyperlipidemia (an ...


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