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Duhamel v. Berryhill

United States District Court, D. Nevada

September 16, 2019

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Before 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.


         Plaintiff 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.


         This 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.[1] 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 317.

         Before 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.

         Upon 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 443-446.

         In May 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.

         Dr. 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.

         In 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, [2] 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.

         Despite 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.

         The ALJ “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. AR 62.

         Following 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.


         In her 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 further states:

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.

         Further, 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. AR 47.

         Ultimately, 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 ...

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