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Nicholson v. Berryhill

United States District Court, D. Hawaii

November 28, 2018

BRIAN J. NICHOLSON, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER REVERSING THE DECISION OF THE SOCIAL SECURITY ADMINISTRATION COMMISSIONER AND REMANDING THE CASE FOR FURTHER PROCEEDINGS

          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 Brian J. Nicholson.

         On 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.

         The 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.

         The Court REVERSES the decision of the Social Security Administration Commissioner and REMANDS the case for further evaluation.

         Remand is necessary to allow the Administrative Law Judge to address the opinions of Plaintiff's treating and examining physicians.

         PROCEDURAL HISTORY

         On 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).

         On June 11, 2015, the Social Security Administration denied Plaintiff's initial applications for Disability Insurance Benefits and Supplemental Security Income. (AR at pp. 81-100, 127).

         On 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 (“ALJ”).

         On March 2, 2017, an ALJ conducted a hearing on Plaintiff's applications. (AR at pp. 39-80).

         On 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).

         On 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).

         On 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 No. 1).

         On January 16, 2018, the Government filed the Administrative Record. (ECF No. 15).

         On January 22, 2018, the Magistrate Judge issued a briefing schedule. (ECF No. 16).

         On March 16, 2018, Plaintiff filed PLAINTIFF'S OPENING BRIEF. (ECF No. 17).

         On 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).

         On 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).

         On May 4, 2018, the Government filed the Supplemental Certified Administrative Record. (ECF No. 20).

         On June 18, 2018, Plaintiff filed PLAINTIFF'S AMENDED OPENING BRIEF. (ECF No. 21).

         On July 18, 2018, Defendant filed DEFENDANT'S ANSWERING BRIEF. (ECF No. 22).

         On August 9, 2018, Plaintiff filed PLAINTIFF'S REPLY BRIEF. (ECF No. 23).

         On August 16, 2018, the Government requested a continuance of the hearing. (ECF No. 24).

         On the same date, the Court granted the Government's request to continue the hearing. (ECF No. 25).

         On October 29, 2018, the Court held a hearing on Plaintiff's appeal of the decision of the Social Security Administration Commissioner.

         BACKGROUND

         Plaintiff 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).

         From 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. 42).

         On 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).

         On 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.

         Plaintiff 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.

         On 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).

         Plaintiff 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).

         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 Work History Prior to His Alleged On-Set Date of Disability on March 25, 2015

         From 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. 46-47).

         From 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).

         II. Plaintiff's Various Injuries And Medical Treatment Beginning on March 24, 2015

         A. First Injury - Grand Mal Seizure And Fall on March 24, 2015 Requiring Surgery And Metallic Rod In His Femur

         On 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. (Id.)

         Two 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).

         B. Plaintiff's Evaluations Following His March 26, 2015 Surgery

         1. Evaluations By Orthopaedic Surgeon Dr. Douglas Ching, M.D. and Initial Physical Therapy

         On 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).

         Dr. 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).

         The right femur fracture did not heal well due to Plaintiff suffering from osteoporosis. (Id. at pp. 57-58).

         2. Evaluations By Plaintiff's Primary Physician, Dr. Anne Biedel And Continued Physical Therapy

         The 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.

         On June 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.)

         On June 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.)

         Dr. 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).

         C. Plaintiff's Second Injury - Fall Causing Knee Pain And Toe Fractures On July 5, 2015

         On July 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.)

         Plaintiff 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.)

         Dr. 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).

         Dr. 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. ...


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