United States District Court, D. Hawaii
BRIAN J. NICHOLSON, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
ORDER REVERSING THE DECISION OF THE SOCIAL SECURITY
ADMINISTRATION COMMISSIONER AND REMANDING THE CASE FOR
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 Brian J. Nicholson.
April 6, 2015, Plaintiff filed applications for Disability
Insurance Benefits and Supplemental Security Income pursuant
to Titles II and XVI of the Social Security Act. Plaintiff
claims that he has been disabled since March 25, 2015 on the
basis of a hip fracture, osteoporosis, lumbar spine
degenerative disease, a right femur fracture, and seizures.
Social Security Administration denied Plaintiff's
applications for Disability Insurance Benefits and
Supplemental Security Income. Following an administrative
hearing, the Administrative Law Judge (“ALJ”)
held that Plaintiff was not disabled for a period which
lasted or was expected to last for a continuous period of one
year at any time from March 25, 2015 through the date of the
ALJ's decision of April 18, 2017. The Appeals Council
denied Plaintiff's request for review and Plaintiff
appealed to this Court.
Court REVERSES the decision of the Social
Security Administration Commissioner and
REMANDS the case for further evaluation.
is necessary to allow the Administrative Law Judge to address
the opinions of Plaintiff's treating and examining
April 6, 2015, Plaintiff Brian J. Nicholson filed an
application for Disability Insurance Benefits with the Social
Security Administration. (Administrative Record
(“AR”) at pp. 18, 192-195, ECF No. 15). On the
same date, Plaintiff Nicholson filed an application for
Supplemental Security Income. (AR at pp. 18, 196-201).
11, 2015, the Social Security Administration denied
Plaintiff's initial applications for Disability Insurance
Benefits and Supplemental Security Income. (AR at pp. 81-100,
September 8, 2015, the Social Security Administration denied
Plaintiff's motion for reconsideration. (AR at pp.
101-26, 133). Following the denials, Plaintiff sought a
hearing before an Administrative Law Judge
March 2, 2017, an ALJ conducted a hearing on Plaintiff's
applications. (AR at pp. 39-80).
April 18, 2017, the ALJ issued a written decision denying
Plaintiff's applications. (AR at pp. 18-27). Plaintiff
filed an appeal with the Appeals Council and submitted
additional evidence on appeal. (Supplemental to the AR at pp.
648-57, ECF No. 20).
August 18, 2017, the Appeals Council denied further review of
Plaintiff's applications and rendered the ALJ's
decision as the final administrative decision by the
Commissioner of Social Security. (AR at pp. 1-4, ECF No. 15).
October 11, 2017, 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
January 16, 2018, the Government filed the Administrative
Record. (ECF No. 15).
January 22, 2018, the Magistrate Judge issued a briefing
schedule. (ECF No. 16).
March 16, 2018, Plaintiff filed PLAINTIFF'S OPENING
BRIEF. (ECF No. 17).
April 26, 2018, the Parties filed a STIPULATION FOR EXTENSION
OF TIME TO FILE THE SUPPLEMENTAL CERTIFIED ADMINISTRATIVE
RECORD AND REVISED BRIEFING. (ECF No. 18).
April 27, 2018, the Court issued a revised briefing schedule
and a deadline for the Government to file the Supplemental
Certified Administrative Record. (ECF No. 19).
4, 2018, the Government filed the Supplemental Certified
Administrative Record. (ECF No. 20).
18, 2018, Plaintiff filed PLAINTIFF'S AMENDED OPENING
BRIEF. (ECF No. 21).
18, 2018, Defendant filed DEFENDANT'S ANSWERING BRIEF.
(ECF No. 22).
August 9, 2018, Plaintiff filed PLAINTIFF'S REPLY BRIEF.
(ECF No. 23).
August 16, 2018, the Government requested a continuance of
the hearing. (ECF No. 24).
same date, the Court granted the Government's request to
continue the hearing. (ECF No. 25).
October 29, 2018, the Court held a hearing on Plaintiff's
appeal of the decision of the Social Security Administration
is a 46 year old male. (Administrative Record
(“AR”) at p. 41, ECF No. 15). Plaintiff suffers
from osteoporosis, a seizure disorder, lumbar degenerative
disc disease, and hip pain due to a previously broken right
femur that rendered his right leg shorter than his left.
(Id. at p. 41).
2002 until March 2015, Plaintiff worked full-time in the
restaurant industry as a server, manager, and bartender.
(Id. at pp. 43-49, 221). Plaintiff attended the
Culinary Institute of America for one year and received
Master in Wine I and II certificates. (Id. at p.
March 24, 2015, Plaintiff had a grand mal seizure, causing
him to fall and break his right femur. (Id. at pp.
309-19). Plaintiff was hospitalized and underwent surgery
that required a titanium rod to be placed in his right leg,
shortening his leg by at least one inch. (Id. at pp.
50, 309-19). Plaintiff states that as a result, he suffers
from consistent pain in his hips and back and he requires a
cane to ambulate. (Id. at pp. 50-53).
April 6, 2015, Plaintiff filed applications for Disability
Insurance benefits and for Supplemental Security Income,
alleging that he has been disabled following the March 24,
2015 grand mal seizure. (Id. at pp. 192-201).
Plaintiff's initial applications were denied.
sought reconsideration which was also denied by the Social
Security Administration. Following the denial of
Plaintiff's request for reconsideration, a hearing was
held before an Administrative Law Judge on March 2, 2017.
April 18, 2017, the Administrative Law Judge denied
Plaintiff's applications for Disability Insurance and
Supplemental Security Income benefits. (Id. at pp.
18-27). The Administrative Law Judge found that although
Plaintiff could not perform his previous work as a server,
there was work that existed in significant numbers in the
economy that Plaintiff could perform. (Id. at pp.
24-27). 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 Cashier
II, Storage Facility Rental Clerk, and Furniture Rental
Consultant. (Id. at p. 26).
sought review of the Administrative Law Judge's decision
with the Appeals Council and submitted additional medical
evidence. (Supplemental Administrative Record at pp. 648-57,
ECF No. 20). The Appeals Council denied Plaintiff's
request for review and rendered a final administrative
decision by the Commissioner of Social Security. (AR at pp.
1-4, ECF No. 15).
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 Work History Prior to His Alleged On-Set Date
of Disability on March 25, 2015
January 2002 until March 2007, Plaintiff worked as the
assistant food and beverage director at Renaissance Hotels on
the mainland. (AR at pp. 48, 221, ECF No. 15).
Plaintiff's duties included staff development, inventory,
and ordering the beverages and food for the hotel chain.
(Id. at p. 48). Following that position, Plaintiff
worked at a boutique resort in San Francisco for one year
where he was employed as the beverage manager. (Id.
at pp. 46-48, 221). Plaintiff was responsible for developing
the wine list, ordering inventory, staff training, and
creating cocktails for the resort. (Id. at pp.
March 2008 until November 2014, Plaintiff worked fulltime as
a server in fine dining restaurants in California.
(Id. at pp. 44-46, 221). From November 2014 until
March 2015, Plaintiff worked as a server in fine dining
restaurants on Maui. (Id.) Plaintiff's work as a
server required him to wait on tables, take orders, deliver
food to tables, prepare the restaurant for diners and clean
the restaurant following service. (Id. at pp.
44-46). Plaintiff stated that he lifted trays of food
weighing about 20 pounds nearly 30 or 40 times a day.
(Id. at p. 45).
Plaintiff's Various Injuries And Medical Treatment
Beginning on March 24, 2015
First Injury - Grand Mal Seizure And Fall on March 24, 2015
Requiring Surgery And Metallic Rod In His Femur
March 24, 2015, Plaintiff suffered a grand mal seizure. (AR
at pp. 49, 309-19, ECF No. 20). Plaintiff had previously
suffered one seizure when he was 19 years old, but he had not
had a seizure in 25 years. (Id. at p. 50). Plaintiff
was on the island of Lanai on March 24, 2015, and early in
the morning was in the bathroom when “everything went
black.” (Id. at pp. 49-50). Plaintiff was
taken to the emergency room by ambulance and transported to
the island of Maui where he was hospitalized for six days at
Maui Memorial Medical Center. (Id. at pp. 309-19).
Plaintiff broke his femur bone in his right leg as a result
of falling on concrete when he had his seizure. (Id.
at p. 309). The emergency room records stated that Plaintiff
had alcohol dependence and alcohol withdrawal syndrome.
days after the grand mal seizure, on March 26, 2015,
Plaintiff underwent surgery to insert a metal rod in his
right femur, performed by orthopaedic surgeon Dr. Douglas
Ching, M.D. (Id. at p. 310). Plaintiff developed a
large bruise over the surgical site. He participated in
physical therapy and occupational therapy. He was ambulating
with a cane. (Id. at p. 310). Plaintiff was
instructed not to put any weight on his right leg.
(Id.) As a result of the surgery, Plaintiff suffered
from “shortening and abduction of right lower
extremity.” (Id. at p. 313). Plaintiff was
discharged on March 30, 2015. (Id. at pp. 309-10).
Plaintiff's Evaluations Following His March 26, 2015
Evaluations By Orthopaedic Surgeon Dr. Douglas Ching, M.D.
and Initial Physical Therapy
April 10, 2015 and May 8, 2015, Plaintiff returned to the
orthopaedic surgeon, Dr. Douglas Ching, M.D., following his
femur surgery. (Id. at pp. 320-22). Dr. Ching found
the metallic rod and screws placed in Plaintiff's femur
were healing properly and there were no new fractures.
(Id. at p. 322).
Ching issued a prescription for Plaintiff to attend physical
therapy for 2-3 days a week for six weeks beginning on May
18, 2015. (Id. at pp. 325-26). Plaintiff attended
physical therapy sessions on May 18, 20, and 27, 2015, June
1, 5, 8, 12, 15, 19, and 26, 2015, and July 3, 2015.
(Id. at pp. 334-46).
right femur fracture did not heal well due to Plaintiff
suffering from osteoporosis. (Id. at pp. 57-58).
Evaluations By Plaintiff's Primary Physician, Dr. Anne
Biedel And Continued Physical Therapy
record reflects that Dr. Anne Biedel, M.D., Plaintiff's
primary care physician, examined Plaintiff more than 25 times
over the period of June 2015 to September 2016.
9, 2015, Plaintiff was examined by Dr. Biedel. (Id.
at p. 370). Dr. Biedel reported that following
Plaintiff's March 2015 seizure, Plaintiff continued to
see his orthopaedic surgeon, Dr. Ching, who was treating
Plaintiff's fractured right femur. Dr. Biedel stated that
Plaintiff did not like how the anti-seizure medications made
him feel. (Id.)
23, 2015, Plaintiff was again examined by Dr. Biedel.
(Id. at p. 368). Plaintiff complained of pain and
stated that he was having trouble sleeping but had continued
to go to physical therapy for his right femur fracture which
had not completely healed. (Id.)
Biedel issued a prescription for Plaintiff to attend further
physical therapy. (Id. at p. 371). The prescription
was for Plaintiff to attend physical therapy for 2 days a
week for four weeks. (Id.) Plaintiff attended
physical therapy on July 3, 2015. (Id. at p. 335).
Plaintiff's Second Injury - Fall Causing Knee Pain And
Toe Fractures On July 5, 2015
5, 2015, Plaintiff was at the beach when “he got
slammed while trying to come out of the water, he hit his
knee into the bottom of the sand and had a hard time getting
out.” (Id. at p. 367). The following day, on
July 6, 2015, Plaintiff was examined by Dr. Biedel a third
time. He had pain in his leg and knee from the fall at the
beach as it was where “he had a previous fracture and
metal placed.” (Id.)
was examined again by Dr. Biedel three days later on July 9,
2015. (Id. at p. 366). Plaintiff required the use of
crutches and reported pain in his right knee and in his toes
and feet. (Id.) Plaintiff expressed problems
sleeping and ambulating. X-rays of Plaintiff's toes were
taken and revealed fractures. Plaintiff was required to tape
his toes to allow the fractures to heal. (Id.)
Biedel continued to regularly examine Plaintiff and saw him
for appointments on August 10, September 22, October 20,
November 10, December 3, December 8, and December 28, 2015.
(Id. at pp. 482-88). Dr. Biedel continued to examine
Plaintiff in 2016 and saw him for appointments on January 7,
January 26, January 27, February 2, February 11, February 18,
February 23, February 25, March 9, April 11, May 7, May 23,
June 30, August 10, August 30, and September 27, 2016.
(Id. at pp. 445-481).
Biedel referred Plaintiff to specialists in order to assess
the severity of his infirmities. Plaintiff was referred to
Neurosurgeon Dr. Thomas Rogers, M.D., Endocrinologist Dr.
Frank Singer, M.D., and Neurologist Dr. George E. ...