United States District Court, D. Nevada
REPORT AND RECOMMENDATION
J. YOUCHAH UNITED STATES DISTRICT JUDGE.
the Court is Plaintiff Darrin Duhamel's Amended Motion
for Summary Judgement (“Plaintiff's Motion”).
ECF No. 52. The Court has considered Plaintiff's Motion,
the Defendant Nancy A. Berryhill's (Acting Commissioner
of Social Security) Cross-Motion to Remand for Further
Proceedings (ECF No. 57), Plaintiff's Response to
Defendant's Cross-Motion to Remand for Further
Proceedings (ECF No. 65), and Defendant's Reply to
Cross-Motion to Remand for Further Proceedings (ECF No. 66).
After considering each of these filings and the
Administrative Record (“AR”) submitted therewith,
the Court finds remand of Plaintiff's case under the
Compassionate Allowance program and time specific
requirements is appropriate.
filed his application for disability insurance benefits in
August 2013. AR 53. His claim was initially denied on March
4, 2014, and upon reconsideration on December 30, 2014.
Id. Plaintiff filed a request for a hearing, which
took place August 1, 2016. Id. The Administrative
Law Judge (“ALJ”) concluded Plaintiff had not
engaged in substantial gainful activity since August 1, 2013,
and that Plaintiff has severe medical impairments of obesity,
peripheral neuropathy, loss of visual efficiency, and
orthostatic hypotension. AR 55. However, the ALJ also found
Plaintiff did not meet or equal any impairment listed in 20
C.F.R. Part 404, Subpart P, Appendix I (AR 57), Plaintiff had
a residual functional capacity (“RFC”) to perform
light work, although with numerous limitations (AR 57), and
thereafter concluded Plaintiff was not disabled because he
could perform his past relevant work of retail manager. AR
63. Plaintiff then requested an Appeals Council review of the
ALJ's findings and submitted new documents. AR 19. The
Appeals Council denied Plaintiff's request for review
rendering the ALJ's decision final for judicial review
purposes. AR 7-11.
case started more than six years ago on August 15, 2013, when
Plaintiff filed an application for disability insurance
benefits under Title II of the Social Security Act. AR
198-99, 214. The Social Security Administration obtained many
(but not all) of Plaintiff's medical records and sent
Plaintiff for a consultive examination on January 17,
2014. AR 315-318. The examiner, Dr. R. Kirby
Reed, reviewed various medical records, examined Plaintiff,
and stated, among other things, that Plaintiff had
“been diagnosed as having peripheral neuropathy.
EMG/NCS results were not provided, however these studies
could still be normal with small fiber neuropathy.” AR
and after Plaintiff's consultive examination, he was also
treated by Dr. M. Paul Singh, his primary care physician. AR
310 and 337. Dr. Kenneth Martinez and Dr. Singh diagnosed
Plaintiff with a variety of ailments including
polyneuropathy, autonomic neuropathy, orthostatic
hypotension, restless leg syndrome, and chronic constipation.
AR 310, 404, 415, 497-518. During treatment by these
physicians, Plaintiff also saw an ophthalmologist,
psychiatrist, gastroenterologist, and an electrophysiologist
for various different ailments that developed over time
including, but not limited to, orthostatic intolerance,
autonomic neuropathy, syncope, and depression. AR 310-32,
348-353, 355-400, 418, 443-448.
commencing treatment with Dr. Edgar Evangelista in 2015,
Plaintiff was diagnosed with orthostatic hypotension,
unspecified idiopathic peripheral neuropathy, and restless
leg syndrome. AR 529. In October 2015, Plaintiff was seen at
HealthCare Partners reporting severe pain that kept him from
sleeping for the prior three months. AR 473. Plaintiff also
reported such severe pain that he could not “keep his
feet on the floor, ” couldn't wear shoes or socks,
and was so depressed he had contemplated suicide. AR 474.
Plaintiff was referred to a psychiatrist who prescribed
another medication, but Plaintiff declined psychotherapy. AR
2016, Plaintiff saw Dr. Evangelista again. AR 553-555. Among
other things stated in these notes is the following:
“Nerve conduction studies were normal which makes
likelihood of a small or C fiber peripheral neuropathy more
likely given patient's degree of pain and paresthesias
and nehgative [sic] nerve conduction. … At this point,
the possibility that patient may have a small fiber of C
fiber neuropathy given his pain and symptoms is very
likely…” AR 553. On June 17, 2016, Dr.
Evangelista wrote a letter stating: “Patient was
previously diagnosed with peripheral neuropathy but after
further evaluation of patient's new symptoms, there is a
good possibility it may be Small Fiber Sensory Neuropathy
(SFSN). Patient needs to be referred to a facility where
further testing can be done to confirm this diagnosis so he
can be treated appropriately.” AR 591.
Evangelista referred Plaintiff to Stanford Autonomic
Disorders Program (ECF No. 52 at 12:21-24) where he was seen
by Dr. Dong In Sinn in the Neurology and Neurosciences
Autonomic Division. AR 43-48. This evaluation took place on
September 8, 2016, AR 43. The “Impression /Plan”
written by Dr. Sinn states, in pertinent part:
“Neurological examination shows orthostatic hypotension
and small-fiber sensory findings. . . . Clinically, it is
reasonable to make a diagnosis of peripheral autonomic
sensory neuropathy and small-fiber neuropathy and treat him
under such diagnosis.” AR 47. This report was not
provided to the ALJ, but to the Appeals Council after the ALJ
had made his decision that Plaintiff is “not disabled
under sections 216(i) and 223(d) of the Social Security
Act.” AR 8, 19, 64, 67-69.
addition to the ALJ not having Dr. Sinn's report that
diagnosed Plaintiff with, among other things, small fiber
neuropathy, Plaintiff provided the Appeals Council with a
folder of “New Exhibits” that included a December
2, 2016 letter from Dr. Martinez who explained the care and
diagnoses he provided during treatment and made the statement
that Plaintiff “has been unable to work since
2012.” AR 27. Dr. Martinez further stated, “Given
the degenerative and permanent nature of his polyneuropathy
and associated autonomic nervous system dysfunction, in my
opinion he poses a safety risk to any vocation due to fall
and fainting hazard. I recommend permanent disability
status.” Id. Notably, Dr. Martinez had
previously submitted a May 2015 questionnaire in which he
stated that Plaintiff was physically disabled from working
and that his condition was so severe that he could not
concentrate sufficiently to perform even simple tasks. AR 3.
Dr. Dharij Narula,  who first saw Plaintiff in May 2014 (AR
355), opined in June 2015 that Plaintiff's conditions and
treatment “prevent him from working” and that he
“is completely totally disabled.” AR 419 and 422.
Dr. Lana Dawood, who first saw Plaintiff in November 2014 (AR
461-463), opined in November 2015 that Plaintiff was in
constant pain and “incapable of even ‘low
stress' job” because “he can't put his
feet down or work or put shoes or socks on.” AR 429.
the consistency of opinions among Plaintiff's treating
physicians, Drs. Martinez, Narula, and Dawood, the ALJ
rejected all three opinions because they relied on
Plaintiff's reports of symptoms and limitations, and
there were no “progress notes or a longitudinal
record” supporting their opinions. AR 62. In contrast,
the ALJ assigned “significant weight to the [opinions
of] state agency medical consultants” Dr. Larry Pappas
and Dr. Navdeep Dhaliwal, neither of whom examined or met
Plaintiff. AR 61. Dr. Dhaliwal (a non-examining physician),
who opined in March 2014, largely rejected Dr. R. Kirby
Reed's finding (despite his examination of Plaintiff)
stating that his opinion was “not supported by exam
findings.” AR 119. Dr. Pappas (also a non-examining
physician) largely confirmed Dr. Dhaliwal's findings in
December 2014. AR 136. These consultive physicians concluded
that Plaintiff was able to do some work, with Dr.
Dhaliwal's findings more restrictive than Dr. Pappas'
findings. AR 61.
“considered, but gave little probative weight to . . .
[Plaintiff's] testimony” because he believed the
testimony relating to “subjective allegations”
was inconsistent with the “medical evidence and other
evidence in the record.” AR 63. The ALJ also gave
“limited weight” to Dr. Reed's opinion
because he believed “there was little to no objective
evidence . . . or medical evidence that would support a
finding that the claimant had such extreme limitations in
standing and/or walking.” AR 60. The ALJ made this
statement despite the medical reports of Drs. Martinez,
Narula, and Dawood concurring that Plaintiff suffered from
such severe pain or symptoms that he was unable to work. AR
61 and 62. In fact, the ALJ stated he could not
“credit” the opinions of these doctors (all
treating physicians who saw Plaintiff more than once) at all.
these statements, the ALJ denied Plaintiff's application
for benefits because he “is not disabled under sections
216(i) and 223(d) of the Social Security Act.” AR 64.
REQUEST FOR REMAND
Cross-Motion to Remand for Further Proceedings (ECF No. 57),
Defendant admits that the ALJ erred when he gave
“little weight to Plaintiff's testimony”
because Plaintiff's “activities of daily living in
conjunction with the medical evidence demonstrating minimal
abnormalities, reflects a significant functional capacity and
not an individual unable to sustain regular and continuing
work due to a medically determinable impairments.” ECF
No. 57 at 13:16-20; AR 63. As explained by Defendant,
“[a]lthough the ALJ must consider the objective medical
evidence, this cannot be the sole basis for rejecting
claimant's testimony. 20 C.F.R. §
404.1529(c)(2).” ECF No. 57 at 13:24-25. Defendant
In the hearing decision at issue here, the ALJ did not
identify which of Plaintiff's activities of daily living
were inconsistent with his statements about symptoms. This
left the objective medical evidence as the ALJ's sole
basis for rejecting Plaintiff's testimony. Thus, we are
requesting voluntary remand so that the ALJ may reevaluate
whether Plaintiff's statements about his symptoms were
inconsistent with this or any of the other evidence factors
outlined in 20 C.F.R. § 404.1529(c)(3)(i)-(vii).
ECF No. 57 at 14:2-7. Defendant also recognizes that the ALJ
did not have all the relevant information before him
regarding Plaintiff's diagnoses, including Dr. Sinn's
diagnosis of small fiber neuropathy, “which may change
the ALJ's analysis of Plaintiff's alleged
symptoms.” Id. at 15-16 citing AR 47.
Defendant carefully points out that Dr. Reed, a state
consultive examiner, who examined Plaintiff, but whose
opinion the ALJ discounted, had previously opined that
“EMG/NCS results were not provided, however these
studies could still be normal with small fiber
neuropathy.” AR 317; ECF No. 57 at 14:24-26.
although not mentioned by Defendant, Dr. Evangelista, who
wrote a letter in June 2016 stating there is a “good
possibility” that Plaintiff's diagnosis was small
fiber neuropathy (AR 591), was mentioned only briefly by the
ALJ. AR 63. There is no discussion by the ALJ of the weight
given to Dr. Evangelista's treatment of Plaintiff in the
ALJ's decision. Id. Defendant is nonetheless
correct that before Dr. Sinn specifically diagnosed Plaintiff
with small fiber neuropathy, no such diagnosis had been made.
Defendant states that there is “conflicting evidence
regarding the frequency and severity of Plaintiff's
alleged symptoms…that are relevant to the ALJ's
findings regarding Plaintiff's testimony.” ECF No.
57 at 16:1-3. For this reason, together with Dr. Sinn's
medical diagnosis presented after the ALJ reached his
decision, Defendant states that on remand the ALJ will
consider this new “diagnosis of small fiber neuropathy
and any updated medical records that may shed light on
whether and ...