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Meneses v. Colvin

United States District Court, D. Nevada

September 17, 2014

RAFAEL MENESES, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

FINDINGS AND RECOMMENDATION

GEORGE FOLEY, Jr., Magistrate Judge.

This matter is before the Court on Plaintiff Rafael Meneses' Complaint for Review of Final Decision of the Commissioner of Social Security (#3), filed on September 6, 2013. Defendant's Answer (#15) was filed on November 17, 2013, as was a certified copy of the Administrative Record (the "A.R."). See Notice (#16). This matter has been submitted to the undersigned United States Magistrate Judge for Findings and Recommendations on Plaintiff's Motion for Remand (#18), filed on December 9, 2013. The Acting Commissioner filed her Cross Motion to Affirm (#21) and Opposition to Plaintiff's Motion for Remand (#22) on February 7, 2014.

BACKGROUND

Plaintiff seeks judicial review of Administrative Law Judge Michael Kennett's ("ALJ") decision dated November 23, 2011. See Administrative Record ("A.R.") 24-33. The issue before the Court is whether the ALJ erred at step four of his analysis by failing to address a proffered limitation when determining Plaintiff's residual functional capacity ("RFC") and by failing to determine whether alcoholism was a contributing factor material to the determination of disability.

A. Procedural History

Plaintiff filed a Title XVI application for supplemental security income ("SSI") on May 17, 2006, alleging disability beginning July 1, 2005. A.R. 92. The application was denied initially, and upon administrative reconsideration. A.R. 112-115, 119-121. Thereafter, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). A.R. 124. At a hearing before ALJ Kennett on September 23, 2009, Plaintiff appeared with his attorney, Diane Haar, and testified in support of his claim. A.R. 68-84. ALJ Kennett issued an unfavorable decision on March 18, 2010. A.R. 92-98.

On October 15, 2010, the Appeals Council granted Plaintiff's request for review of the ALJ's decision under the substantial evidence and new and material evidence provision of the Social Security Act ("SSA") regulations. A.R. 102-107. The Appeals Council vacated the decision and remanded the case to an ALJ because it found that the RFC assessment relied on a treating source opinion that was performed prior to Plaintiff's diagnosis of cirrhosis of the liver. A.R. 105. The ALJ also remanded the case for evaluation of the new evidence submitted by Plaintiff. Id.

ALJ Kennett conducted a second hearing on November 1, 2011. A.R. 46-67. Plaintiff appeared with his attorney, Brandon Wright, and testified in support of his claims. Id. Jack Dymond, a vocational expert, also appeared at the hearing. Id. Plaintiff amended his alleged onset date from July 1, 2005 to May 17, 2006, the protective filing date of his current application. Id. In a decision dated November 23, 2011, ALJ Kennett found Plaintiff was not disabled within the meaning of the SSA. Id. Plaintiff timely filed a Request for Review, which was denied by the Appeals Council on May 2, 2013. A.R. 5-11. When the Appeals Council declined to review the ALJ's decision, the decision became final. Id. Plaintiff then filed this action for judicial review pursuant to 42 U.S.C. 405(g). This matter has been referred to the undersigned for a report of findings and recommendations under 28 U.S.C. ยงยง 636 (b)(1)(B) and (C).

B. Factual History

Plaintiff Rafael Meneses was born on May 31, 1968, in El Paso, Texas. A.R. 50, 97, 412. He was almost 38 years old on his amended alleged onset date. A.R. 25. He is 5'4" and weighed 152 pounds. A.R. 53. He is a divorced father of four and resides with his two minor children ages nine and twelve. A.R. 51, 676. Plaintiff indicated that he completed the tenth grade in special education and has had no other formal education or vocational job training. A.R. 51, 261. He testified that he cut down to about three cigarettes a day and has not drank alcohol for about six years prior to the date of his hearing. A.R. 57.

With regard to daily activities, Plaintiff testified that he drives, but not very often because it hurts his feet. A.R. 58, 227. His children help with the cooking and housecleaning and he refrains from outside chores such as pet care and yard work. A.R. 59-60. He reads, watches television and movies with his children and helps them with their school work. A.R. 60-61. He testified that he can only concentrate on an hour long television show for approximately seven to eight minutes. A.R. 65. Once in a while he will attend school events and activities at the Boys and Girls Club with his children. A.R. 61-62. Since the last hearing, he testified that he is no longer able to walk his children two blocks to school. A.R. 63. With regard to personal care, Mr. Meneses indicated that he can bathe by himself but he cannot shower. A.R. 225. He reported no problems dressing, shaving, and feeding himself. A.R. 225.

Prior to 2005, Plaintiff worked as a roofing laborer and landscaping laborer. A.R. 249. He also worked as a cook/dishwasher intermittently from 1991 to 2000. A.R. 261. He indicated that he quit working in 2005 due to diabetic neuropathy in his feet. A.R. 52. Mr. Meneses has not had substantial gainful employment ("SGA"), however, since 1989 and therefore has no record of past relevant work. A.R. 51-52, 199. At the time of the hearing, Plaintiff was taking Metformin, Hydrocodone Lortab 10, and 20 milligrams of Paroxetine, which he stated made it difficult for him to function. A.R. 54. He stated that he is unable to work due to lower back pain, which causes a numbness and tingling in his left leg, and a bladder problem for which he wears a pad. A.R. 55-56. He stated that he uses the restroom ten to eleven times a day to urinate, and has approximately three accidents a day. A.R. 64-65. He also testified that he was having a lot of anxiety and panic attacks, which affect his concentration and make him want to sleep. A.R. 56. He estimated suffering from approximately three panic attacks a week, each lasting about ten to twenty minutes. A.R. 65.

On July 25, 2005, Plaintiff was admitted to Sunrise Hospital and Medical Center for alcohol withdrawal, alcohol withdrawal seizure, and alcohol abuse. A.R. 267-69. Medical notes indicate that he had been in "an outside of the hospital rehab program." A.R. 270. He was administered Thiamine, Serax, IV hydration, Librium, and Activan. A.R. 271. He was also given a Texas catheter because he was unable to control his urine. Id. He was discharged home in stable condition with severe alcohol withdrawal with delirium tremens, hypokalemia, thrombocytopenia, and fever. A.R. 270.

On October 5, 2006, Plaintiff presented to Dr. Steven E. Gerson for a consultative internal medicine evaluation. A.R. 277. Dr. Gerson stated that Plaintiff's reliability was average. Id. Plaintiff indicated that he has had high blood sugars on and off for several years, but was told that he was not diabetic when they hospitalized him fifteen months prior. Id. He indicated the he has had regular foot pain for several years that occurs with rest as well as exertion, and has pain, weakness, and numbness of both legs and feet. Plaintiff further indicated that "[h]e is an ex-alcohol drinker. He was drinking beer everyday heavily for eight years. He quit approximately 15 months [ago], at the time of his hospitalization." Id. Dr. Gerson diagnosed Plaintiff with diabetes and chronic pain of the feet and legs. A.R. 280. The doctor provided that Plaintiff has no manipulative limitations, but due to decreased sensation and back pain, he proffered environmental limitations including, only occasional contact with moving machinery and avoidance of heights. A.R. 282.

In a physical residual functional capacity assessment dated October 25, 2006, Loretta Nye, a state agency decision maker, opined that Plaintiff could occasionally lift 20 pounds, frequently lift 10 pounds, stand/walk 6 hours in an 8-hour day, and sit for 6 hours in an 8-hour day. A.R. 285. She limited Plaintiff to occasional climbing, balancing, stooping, kneeling, crouching, crawling, and frequent balancing. A.R. 286. In making this finding she stated that "[t]he alleged severity in the functional limitations as it relates to squatting, lifting, standing, bending, reaching, walking, sitting and kneeling cannot be fully supported by the overall data, including the most recent MD objective examination findings, " which was completed by Dr. Gerson. A.R. 289, 290. She further noted that Dr. Gerson's limitations or restrictions were different from her own findings, indicating that she would change Plaintiff's avoidance of heights limitation from never to occasional. A.R. 290. On November 20, 2006, Sergio R. Bello, a state agency medical consultant, affirmed Ms. Nye's assessment. A.R. 292.

On November 2, 2006, Plaintiff presented to the University Medical Center ("UMC") for a nerve conduction/EMG test. A.R. 328. The findings suggested a peripheral neuropathy. Id. On July 12, 2007, Plaintiff was seen in the UMC emergency room and was found to have a "Jones fracture of his fifth metatarsal basically transverse fracture the base of fifth metatarsal and a fractured acute dorsal navicular avulsion fracture of his right foot." A.R. 301. He was subsequently sent to an orthopedic doctor and was informed that because he had peripheral neuropathy, they could not put a cast on his foot because he might not be able to discern a painful area that might be rubbing or having vascular compromise. Id.

On July 31, 2007, Plaintiff presented to Dr. Rucker for a follow-up. Id Upon review of Plaintiff's systems, Dr. Rucker stated that "[t]he patient has decreased sensation but [is] able to elucidate pain." Dr. Rucker assessed Plaintiff with a fractured right foot and ankle and peripheral neuropathy. A.R. 301.

On May 12, 2008, Plaintiff presented to Dr. Muhammad S. Ghani for leukopenia and thrombocytopenia. A.R. 412-13. Dr. Ghani performed a work-up of Plaintiff including a peripheral smear, B12, folic acid and hepatitis panel. A.R. 413. He opined that Plaintiff had "leukopenia and thrombocytopenia, history of liver disease, history of heavy alcohol abuse, which can contribute to leukopenia and thrombocytopenia, history of diabetes, and neuropathy." Id.

On November 25, 2008, Plaintiff presented to Southwest Medical Associates for a check-up. A.R. 397. Dr. Norris stated that "[a]lthough pt has peripheral neuropathy to lower extremities, pt can perform tasks that allow him to sit at a desk." A.R. 398.

On June 4, 2009, Plaintiff was seen by Dr. Sharma for complaints of recent upper GI bleeding. A.R. 670. He performed an EGD with endoscopic variceal ligation. Id. In January 2010, Plaintiff presented to Dr. Sharma for a follow-up in which it was reported that Plaintiff was well and denied any nausea, vomiting, or any hematemesis or melena. A.R. 670. The doctor assessed Plaintiff with cirrhosis possibly alcoholic liver ...


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