United States District Court, D. Hawaii
WILLIAM Q. DIESTA, Plaintiff,
CAROLYN W. COLVIN, Social Security Administration Commissioner, Defendant.
ORDER AFFIRMING THE DECISION OF THE SOCIAL SECURITY
Gillmor United States District Judge.
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.
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.
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.
Court AFFIRMS the decision of the Social Security
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).
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,
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.
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
February 29, 2016, the Magistrate Judge issued a briefing
schedule. (ECF No. 16).
April 18, 2016, Plaintiff filed PLAINTIFF'S OPENING
BRIEF. (ECF No. 17).
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).
25, 2016, Defendant filed DEFENDANT'S ANSWERING BRIEF.
(ECF No. 21).
August 22, 2016, Plaintiff filed PLAINTIFF'S REPLY BRIEF.
(ECF No. 22).
September 28, 2016, Defendant filed a letter requesting a
continuance of the hearing date. (ECF No. 23).
September 29, 2016, the Court issued a Minute Order granting
Defendant's request for a continuance. (ECF No. 24).
October 11, 2016, the Court held a hearing on Plaintiff's
appeal of the decision of the Social Security Administration
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).
December 30, 2011, Plaintiff was in a car accident where he
hit his head on the steering wheel. (Id. at pp. 34,
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.)
applications were denied and reconsideration was denied by
the Social Security Administration. Following Plaintiff's
request, a hearing was held before an Administrative Law
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).
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).
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).
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).
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).
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).
Plaintiff's History and Claimed Disability
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).
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).
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
(Id. at p. 244).
stated that dizziness, lightheadedness, and severe headaches
prevent him from concentrating and maintaining his balance.
(Id. at p. 41-44, 47-48).
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).
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.
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).
Objective Medical Evidence
2001, Plaintiff was diagnosed with viral bulbar myelopathy,
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.
December 30, 2011 Car Accident
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.)
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
Plaintiff's Medical Treatment Within a Year of the
December 30, 2011 Accident
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).
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 in his spine and mild neural foraminal
stenosis. (Id. at pp. 318-319).
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 headaches as a result of the car accident
and gave Plaintiff prescription strength Naproxen for his
headaches. (Id. at p. 284).
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).
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.
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.
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).
Plaintiff's Medical Treatment More Than a Year After the