United States District Court, D. Hawaii
ORDER REMANDING THE CASE PURSUANT TO § 405(g)
FOR FURTHER PROCEEDINGS
MICHAEL SEABRIGHT CHIEF UNITED STATES DISTRICT JUDGE.
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.
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.
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.
Plaintiff's Testimony and Statements
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.
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.
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.
Dr. Acuna's Medical Reports
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,
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.
Dr. Gauen's Consultative Examination
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.
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.
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
Proceedings Subsequent to ...