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Gines v. Colvin

United States District Court, D. Hawaii

January 25, 2017

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.




         This is an action brought under 42 U.S.C. § 405(g) to review a final decision of the Acting Commissioner of Social Security, Carolyn W. Colvin (the “Commissioner, ” or “Defendant”). Alexander Valdez Gines (“Plaintiff”) appeals Defendant's adoption of the Administrative Law Judge's (the “ALJ”) February 20, 2015 decision finding Plaintiff not disabled under the Social Security Act, 42 U.S.C. §§ 401-34, 1381-83f (the “February 20 Decision”). Plaintiff argues that the February 20 Decision must be overturned because the ALJ (1) abused her discretion in refusing to forward Plaintiff's interrogatories to the consultative examiner; and (2) failed to adequately develop the record. Based on the following, the court REMANDS the case pursuant to § 405(g) for further proceedings.


         A. Factual Background

         Plaintiff, born in 1964, worked in construction until he was laid off in 2009. Admin. R. (“AR”) at 33, ECF No. 11. He returned to his job in December 2010 but, after a couple of days, was once again let go. Id. Although he has attempted to interview for jobs since December 2010, he has not worked since that time. Id. at 33-34.

         Plaintiff filed for Social Security and Disability Insurance benefits on October 17, 2012, alleging disability since May 15, 2010, due to the combination of gout, psoriasis, high blood pressure, and high cholesterol. Id. at 129, 207. His claim was denied twice -- once on February 20, 2013, and again upon reconsideration on September 19, 2013. Id. at 45, 55. On October 12, 2013, Plaintiff filed a request for a hearing. Id. at 80-81. A hearing was conducted on August 12, 2014 (“August 12 Hearing”), before the ALJ, in which Plaintiff and vocational expert David Dettmer testified. Id. at 29-44. Including the information summarized above, the ALJ had access to medical reports by Plaintiff's treating physician, Dr. Harry Acuna. Id. at 19. In addition, the ALJ permitted a post- hearing consultative examination that took place on November 3, 2014, by Dr. Nalani Gauen. Id.

         1. Plaintiff's Testimony and Statements

         Plaintiff testified that he worked in construction until July 2009, and upon further questioning by the ALJ, corrected his testimony to include a brief period of work in December 2010. Id. at 33. Since then, he has attempted to interview for other jobs, but because of gout “flare-ups, ” was unable to make the interviews. Id. at 34.

         When Plaintiff has a gout flare-up, he experiences intense soreness, to the point where he “scream[s]” when “even the wind blows on it.” Id. at 35. The flare-ups cause his feet to swell so much that he cannot wear shoes. Id. at 36. Because of the discomfort in his feet, he is uncomfortable sitting. Id. To deal with a flare-up, Plaintiff lies in bed and elevates his feet, as he was told by his treating physician, Dr. Acuna. Id. at 36. The flare-ups last between four days and two weeks, and require Plaintiff to use crutches to walk. Id. at 37-38.

         Plaintiff suffered “about three or four” flare-ups between January 1, 2014, and the August 12, 2014 hearing. Id. at 35. Dr. Acuna told Plaintiff to change his diet to alleviate the symptoms from Plaintiff's gout, so Plaintiff “tried juicing for a couple months” as recommended by his friend, but did not see any changes. Id. at 34-35, 38.

         2. Dr. Acuna's Medical Reports

         Dr. Acuna treated Plaintiff during the time period relevant to this case. Id. at 256-312, 315-341 (medical records ranging from November 22, 2003, to June 28, 2013). Throughout Dr. Acuna's records of Plaintiff's exams, he notes that Plaintiff, although exhibiting symptoms of gout and pedal edema, maintained normal gait and station and had adequate range of movement in all extremities. See, e.g., id. at 258, 260, 263, 268 (exams dated January 5, 2012; October 7 and June 1, 2011; and March 4, 2010).

         In a February 13, 2013 questionnaire, Dr. Acuna reported that Plaintiff had “full” range of motion of upper and lower extremities, “normal” gait and station, and was “able to use both hands for gross and dexterous movement.” Id. at 313-14. In another questionnaire on July 11, 2014, Dr. Acuna wrote that Plaintiff experienced gout flare-ups on October 18 and November 2, 2013, and on May 24, 2014. Id. at 365. He further noted that Plaintiff was not physically limited during flare-ups, and could in fact sit in a working position for eight hours a day without any lifting limitations. Id. at 365-66.

         3. Dr. Gauen's Consultative Examination

         After Plaintiff's testimony, the ALJ had an on-the-record exchange with Plaintiff's attorney. The ALJ observed that “even during the flares, for the most part there's no swelling. There's normal gait. There's full range of motion of the extremities.” Id. at 39. In response, Plaintiff's attorney complained that Plaintiff is “kind of at a disadvantage because of Dr. Acuna's reluctance to give [them] a little more information” and requested a post-hearing consultative examination (“CE”). Id. at 40. The ALJ agreed to a post-hearing CE. Id.

         Dr. Nalani Gauen performed Plaintiff's CE on November 3, 2014. Id. at 369-75. Dr. Gauen's notes show that Plaintiff was referred due to complaints of gout, psoriasis, and hypertension. Id. at 369. Specifically, she recorded that Plaintiff complained of “gout attacks” that make him unable to walk. Id. Her examination of Plaintiff's lower extremities found “no evidence of swelling, effusion, erythema, warmth, or deformity of the hips, knees, and ankles. All joint ranges of motion are within normal limits.” Id. at 372. Moreover, Dr. Gauen wrote that Plaintiff “ambulates with a normal gait.” Id. at 373. Dr. Gauen concluded that Plaintiff could stand for up to two hours in a normal eight-hour workday, and sit without restrictions. Id. at 374. She further concluded that Plaintiff could “occasionally” do certain activities, such as kneeling, crawling, and climbing stairs and ladders. Id.

         On November 24, 2014, Dr. Gauen completed a Medical Source Statement (“MSS”). Id. at 377-82. In the MSS, she noted that Plaintiff was limited to standing for 30 minutes and walking for 30 minutes in a typical eight-hour workday, but could sit for up to seven hours. Id. at 378. She further noted that Plaintiff could perform a range of activities, such as shopping, preparing food, walk a block, and use public transportation. Id. at 382. She did not distinguish between limitations during and absent a flare-up.

         4. Proceedings Subsequent to ...

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