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Diesta v. Colvin

United States District Court, D. Hawaii

November 15, 2016

WILLIAM Q. DIESTA, Plaintiff,
v.
CAROLYN W. COLVIN, Social Security Administration Commissioner, Defendant.

          ORDER AFFIRMING THE DECISION OF THE SOCIAL SECURITY ADMINISTRATION COMMISSIONER

          Helen Gillmor United States District Judge.

         This case involves the appeal of the Social Security Administration Commissioner's denial of Disability Insurance Benefits and Supplemental Security Income benefits to Plaintiff William Q. Diesta.

         On February 6, 2013, Plaintiff filed an application for Disability Insurance Benefits and Supplemental Security Income pursuant to Titles II and XVI of the Social Security Act on the grounds that he has been disabled since he was in a car accident in December 2011 and hit his head on the steering wheel. Plaintiff was diagnosed at various points as having: degenerative disc disease, post-concussion syndrome, a history of viral bulbar myelopathy, and a cognitive disorder. Plaintiff filed applications for Social Security benefits, claiming that his conditions have prevented him from working since December 30, 2011.

         The Social Security Administration denied his application. Following an administrative hearing, the Administrative Law Judge (“ALJ”) held that Plaintiff was not disabled at any time from December 30, 2011 through the date of the ALJ's decision of August 1, 2014. The Appeals Council denied Plaintiff's request for review and Plaintiff appealed to this Court.

         The Court AFFIRMS the decision of the Social Security Administration Commissioner.

         PROCEDURAL HISTORY

         On February 25, 2013, Plaintiff William Q. Diesta filed an application for Disability Insurance Benefits with the Social Security Administration. (Administrative Record (“AR”) at 176-180, ECF No. 14). On the same date, Plaintiff William Q. Diesta filed an application for Supplemental Security Income. (AR at p. 169-175).

         In May and November 2013, the Social Security Administration denied Plaintiff's initial applications and his requests for reconsideration. (AR at pp. 118-122, 126-128, 129-131). Following the denial of Plaintiff's application, he sought a hearing before an Administrative Law Judge (“ALJ”) and on May 20, 2014, an ALJ conducted a hearing on Plaintiff's applications. (AR at pp. 29-53, 132-33).

         On August 1, 2014, the ALJ issued a written decision denying Plaintiff's applications and Plaintiff sought review by the Appeals Council for the Social Security Administration. (AR at pp. 8-28). The Appeals Council denied further review of Plaintiff's applications on October 22, 2014, rendering the ALJ's decision as the final administrative decision by the Commissioner of Social Security. (AR at pp. 1-7).

         On November 5, 2015, Plaintiff sought judicial review of the Commissioner of Social Security's final decision to deny his applications for Disability Benefits and Supplemental Security Income in this Court pursuant to 42 U.S.C. § 405(g). (Complaint for Review of Social Security Disability and Supplemental Security Income Benefits Determinations, ECF No. 1).

         On February 29, 2016, the Magistrate Judge issued a briefing schedule. (ECF No. 16).

         On April 18, 2016, Plaintiff filed PLAINTIFF'S OPENING BRIEF. (ECF No. 17).

         On June 16, 2016, Defendant filed DEFENDANT'S MOTION FOR A FIRST EXTENSION OF 35 DAYS TO FILE THE ANSWERING BRIEF, which was granted. (ECF Nos. 18, 19).

         On July 25, 2016, Defendant filed DEFENDANT'S ANSWERING BRIEF. (ECF No. 21).

         On August 22, 2016, Plaintiff filed PLAINTIFF'S REPLY BRIEF. (ECF No. 22).

         On September 28, 2016, Defendant filed a letter requesting a continuance of the hearing date. (ECF No. 23).

         On September 29, 2016, the Court issued a Minute Order granting Defendant's request for a continuance. (ECF No. 24).

         On October 11, 2016, the Court held a hearing on Plaintiff's appeal of the decision of the Social Security Administration Commissioner.

         BACKGROUND

         Plaintiff is a 51 year old male. (Administrative Record (“AR”) at p. 54, ECF No. 14). Plaintiff is homeless and lives in his car on the island of Oahu. (Id. at p. 34).

         On December 30, 2011, Plaintiff was in a car accident where he hit his head on the steering wheel. (Id. at pp. 34, 38-39).

         On February 6, 2013, Plaintiff filed applications for Disability Insurance benefits and for Supplemental Security Income, alleging that he has been disabled following the December 30, 2011 car accident. (Id. at pp. 169-175). Plaintiff claimed that he suffered from lightheadedness, headaches, and dizziness following the car accident, which have limited his ability to work. (Id.)

         Plaintiff's applications were denied and reconsideration was denied by the Social Security Administration. Following Plaintiff's request, a hearing was held before an Administrative Law Judge.

         The Administrative Law Judge denied Plaintiff's application for Disability Insurance and Supplemental Security Income benefits. (Id. at pp. 22-23). The Administrative Law Judge found that although Plaintiff could not perform his previous work as a handyman, there was work that existed in significant numbers in the economy that Plaintiff could perform. (Id. at pp. 22-23).

         The Administrative Law Judge relied on the testimony of a vocational expert to find that someone with Plaintiff's limitations could perform work as a Small-Products Assembler, Inspector, and Marker. (Id. at p. 22).

         Plaintiff sought review of the Administrative Law Judge's decision with the Appeals Council, which denied Plaintiff's request for review and rendered a final administrative decision by the Commissioner of Social Security. (Id. at pp. 1-3).

         STANDARD OF REVIEW

         A claimant is disabled under the Social Security Act if he or she is unable to “engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which ... has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); see 42 U.S.C. § 1382c(a)(3)(A); Burch v. Barnhart, 400 F.3d 676, 679 (9th Cir. 2005).

         A decision by the Commissioner of Social Security must be affirmed by the District Court if it is based on proper legal standards and the findings are supported by substantial evidence on the record as a whole. See 42 U.S.C. § 405(g); Andrews v. Shalala, 53 F.3d 1035, 1039 (9th Cir. 1995).

         Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971); see also Tylitzki v. Shalala, 999 F.2d 1411, 1413 (9th Cir. 1993).

         ANALYSIS

         I. Plaintiff's History and Claimed Disability

         The Administrative Record reflects that Plaintiff was born in the Kalihi neighborhood of Honolulu, on the island of Oahu, Hawaii, on March 30, 1965. (Administrative Record (“AR”) at pp. 54, 354, ECF No. 14). Plaintiff graduated from Farrington High School in Honolulu in 1984. (Id. at p. 354).

         Between 2003 and 2010, Plaintiff had a steady work history as a self-employed handyman. (Id. at pp. 35-38). Plaintiff stated that he used to strip and wax floors, clean carpets, paint houses, do carpentry, and build countertops and cabinets. (Id. at pp. 45-46). Plaintiff testified that he stopped working in early 2011 due to lack of work. (Id. at pp. 37-38).

         On December 30, 2011, Plaintiff was in a car accident where he hit his head on the steering wheel. (Id. at pp. 34, 38-39). Plaintiff filed his applications for disability with the Social Security Administration, claiming that he was unable to work following his December 2011 accident. Plaintiff alleged he was disabled and unable to work due to the following conditions:

I get dizzy spell, light headed, headaches, buzzing sound in my head when laying down from neck to the head moving, when I hear noise it echo in high pitch, I get tired fast, gotta go sleep, I can't held my head for long, irritated, get mad easily.

(Id. at p. 244).

         Plaintiff stated that dizziness, lightheadedness, and severe headaches prevent him from concentrating and maintaining his balance. (Id. at p. 41-44, 47-48).

         Plaintiff is homeless and lives in his car in Honolulu. (Id. at p. 34). Plaintiff stated that he is able to maintain an independent homeless lifestyle and has chosen not to live with family members. (Id. at p. 48). Plaintiff testified that he has headaches up to four times a day and takes several naps a day. (Id. at p. 41). Plaintiff reported that he spends his time drinking coffee, reading the paper, doing crossword puzzles, going to sleep, and eating. (Id. at p. 245). Plaintiff stated that occasionally his children take him out to eat. (Id. at p. 248).

         Plaintiff testified that he can sit for a long time, stand for ten minutes at a time, and walk for ten minutes at a time. (Id. at p. 42). Plaintiff stated that he can lift “may five or ten pounds.” (Id. at p. 43).

         Plaintiff is able to pay bills, count change, and use an EBT card to manage his finances. (Id. at pp. 222, 247, 355). Plaintiff testified that he is able to perform independent tasks, perform personal care, obtain meals and feed himself, do laundry, take walks, and shop in stores. (Id. at p. 43-44, 47).

         II. Objective Medical Evidence

         In 2001, Plaintiff was diagnosed with viral bulbar myelopathy, [1] which is an impairment to the nerve tissue in the brainstem. (AR at pp. 330, 341-42, ECF No. 14); see Dorland's Illustrated Medical Dictionary 1167 (29th ed. 2000). The viral bulbar myelopathy caused numbness on the right side of Plaintiff's face. (AR at p. 342, ECF No. 14). Plaintiff's facial numbness was resolved within the first year of treatment. (Id.) Plaintiff did not report that his viral bulbar myelopathy interfered with his ability to work following the first year of treatment.

         A. December 30, 2011 Car Accident

         On December 30, 2011, Plaintiff was in a car accident and he went to the Kaiser Permanente Emergency Room. (AR at p. 550, ECF No. 14). The medical records from the visit stated that Plaintiff was rear ended while in a car that was stopped. (Id.) Plaintiff did not lose consciousness from the accident, the vehicle was not overturned, the airbag was not deployed, and the windshield was in tact. (Id.)

         Plaintiff arrived at the ER as a walk-in with “moderate” head and neck pain. (Id.) Plaintiff's physical exam revealed he was “oriented to person, place and time. He appears well-developed and well-nourished. No distress.” (Id. at p. 551). A computed tomography (“CT”) scan of Plaintiff's head was performed that showed no abnormalities. (Id. at p. 553).

         B. Plaintiff's Medical Treatment Within a Year of the December 30, 2011 Accident

         On January 3, 2012, at a follow-up appointment with General Practitioner Dr. Russell Tacata, Plaintiff was prescribed Vicodin and Motrin for his head and neck pain and he was referred to physical therapy and therapeutic massages for pain treatment. (AR at p. 474, ECF No. 14).

         Plaintiff's physical therapist and chiropractor Dr. Eugene Kitts referred him to Y&M Radiology for a magnetic resonance imaging (“MRI”) of Plaintiff's neck and spine. (Id. at p. 317). The January 13, 2012 MRI demonstrated that Plaintiff had some degeneration of the discs[2] in his spine and mild neural foraminal stenosis.[3] (Id. at pp. 318-319).

         Plaintiff was also referred to Neurologist Dr. Thomas Drazin for examination. (Id. at p. 283). On February 8, 2012, Dr. Drazin examined Plaintiff and his MRI results and found that Plaintiff suffered from moderate degenerative disc disease in his spine but no herniation. (Id. at p. 283). Dr. Drazin concluded that Plaintiff had post-concussive syndrome[4] headaches as a result of the car accident and gave Plaintiff prescription strength Naproxen for his headaches. (Id. at p. 284).

         On February 29, 2012, Dr. Drazin conducted a computed tomography (“CT”) of Plaintiff's head and neck. The CT scan of Plaintiff's head was “normal” and showed no serious abnormalities. (Id. at pp. 278-79, 285). Dr. Drazin determined that “[c]onservative treatment should be pursued” and that there was no need for “any type of cervical surgery.” (AR at p. 285, ECF No. 14).

         Plaintiff had therapeutic massages from January 2012 to March 2012 (id. at pp. 497-548) and went to physical therapy from December 2011 until July 2012. (Id. at pp. 491-495).

         On July 9, 2012, Plaintiff visited Kaiser Permanente and was seen by Dr. Hyewon Jun. (Id. at p. 338-39). Plaintiff complained of neck pain, headache, and dizziness. (Id. at p. 338). Dr. Jun conducted a neurological exam and found that the results were “normal, ” and that Plaintiff had a normal mental status and normal gait. (Id. at p. 339). Plaintiff was offered medication for his headache and neck pain, but he declined any medication. (Id.) Plaintiff was requested to have lab tests done but he declined. (Id. at p. 359).

         On July 31, 2012, Plaintiff visited Kaiser Permanente again and was seen by Dr. Todd Devere. (Id. at p. 341). Dr. Devere conducted a neurological exam and concluded it was normal. (Id.) Dr. Devere stated that he explained to Plaintiff that post-concussion headaches can sometimes take a few months to improve and he “recommended a trial of nortriptyline, but [Plaintiff] prefers to avoid prescription medication.” (Id.) Dr. Devere found that Plaintiff was “alert and well oriented with clear speech and normal language, attention” with normal gait. (Id. at p. 343).

         C. Plaintiff's Medical Treatment More Than a Year After the ...


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