Castellano v. Colvin, Civil Action No. 13-cv-02147-RM

• Decision Date: 25 November 2015
• Docket Number: Civil Action No. 13-cv-02147-RM
• Parties: DINO CASTELLANO, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
• Court: U.S. District Court — District of Colorado

DINO CASTELLANO, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

Civil Action No. 13-cv-02147-RM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

November 25, 2015

Judge Raymond P. Moore

ORDER

This matter is before the Court on Plaintiff Dino Castellano ("Plaintiff") request for judicial review pursuant to 42 U.S.C. § 405(g). (ECF No.1.) Plaintiff challenges the final decision of Defendant, Commissioner of the Social Security Administration ("Commissioner"), denying Plaintiff's application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act (the "Act"). 42 U.S.C. §§ 1381-83c. For the reasons set forth below, the Court AFFIRMS the denial of Plaintiff's SSI application.

I. BACKGROUND

A. Relevant Medical Evidence

Plaintiff was born on November 22, 1958, and was 53 years old on the date his application was filed. (Tr. 25.) Plaintiff was 55 years old at the time of the ALJ's decision, and alleged disability due to memory problems, back pain, and headaches. (Id. at 20, 22.) He also alleged that he had symptoms associated with a remote brain injury and that he is illiterate. (Id. at 84.)

On April 24, 2012, Plaintiff received a physical and mental functional capacity evaluation from Elizabeth Lowell-Tupa, PhD. (Id. at 290.) Dr. Lowell-Tupa's report stated that a "[s]taff member helped [Plaintiff] fill out a written psychological questionnaire as [Plaintiff] states he can neither read or write." (Id. at 287.) Dr. Lowell-Tupa observed that Plaintiff was unable to spell the word "world" or count by sevens, but that he was able to count by fours, recall three out of three items immediately, recall two out of three items after five minutes and eventually remember the third item with assistance. (Id. at 289.) Dr. Lowell-Tupa stated that, although Plaintiff's speech was clear, "it was slow and he evidenced mild poor verbal skills. His thought processes appear to be organized but somewhat slow." (Id. at 288.) Dr. Lowell-Tupa diagnosed Plaintiff with alcohol dependence and moderate major depressive disorder and assigned him a global assessment of functioning (GAF) score of 50. (Id. at 289.)

Dr. Lowell-Tupa concluded that Plaintiff's ability to understand, remember and carry out simple instructions was moderately impaired, as was his ability to make simple work-related judgments. (Id.) She determined that his ability to carry out complex instructions and make complex work-related decisions was markedly impaired. (Id. at 290.) Dr. Lowell-Tupa determined that his ability to maintain concentration and maintain pace in both daily life and work activities was moderately impaired, and that he had a moderate impairment in his adaptability to changes. (Id.) She found Plaintiff's ability to relate to the public, coworkers and supervisors to be mildly impaired, but that his ability to respond to criticism and accept instructions was not impaired, and that he could work near others without excessive distractions. (Id.) Dr. Lowell-Tupa opined that his attendance at work would likely be a marked issue primarily because of his then existing alcohol abuse and also because of depressive symptoms which were also exacerbated by alcohol abuse. (Id.) Dr. Lowell-Tupa concluded that Plaintiff,among other things, was "illiterate and is likely of low average to borderline intellectual functioning." (Id. at 290.)

Also on April 24, 2012, Thurman Hodge, D.O., conducted Plaintiff's physical functional capacity evaluation in connection with his application for benefits. (Id. at 295.) Dr. Hodge diagnosed Plaintiff with uncontrolled hypertension, poor dentition, acute thoracic and lumbosacral strain/spasm, and left shoulder pain with abduction of greater than 90 degrees. (Id.) Dr. Hodge found evidence, based on X-rays of Plaintiff's neck and lower back, of mild diffuse degenerative disc disease and mild degenerative facet joint arthropathy. (Id. at 297-98.) Dr. Hodge found that Plaintiff was "being truthful and the exam was performed with full cooperation, even with limitations." (Id. at 292.) Dr. Hodge also examined Plaintiff's shoulders and found:

Exam of the right shoulder was without abnormality. Left shoulder had pain with abduction greater than 90 degrees. There was no swelling or erythema. Range of motion is as follows: Abduction; right 180 degrees, left 90 degrees. Rotation on abduction is 90 degrees; right 80 degrees, left 60 degrees. Internal rotation; right 80 degrees, left 80 degrees. External rotation; right 90 degrees, left 90 degrees.

(Id. at 294.) No significant limitations were found to exist based on these specific findings as to the shoulders. Dr. Hodge found overall an ability to sit (6 hours), stand (4 hours), walk (4 hours), bend, squat, lift (30 pounds), carry (20 pounds) and do daily activities and repetitive motions "with his left arm at less than 90 degrees abduction." (Id.)

During Plaintiff's examination before both Dr. Hodge and Dr. Tupa, Plaintiff discussed a traumatic head injury he suffered when he "fell 3 stories out of a building in 1983." (Id. at 291.) Plaintiff stated he was hospitalized for two months and that he had undergone brain surgery. (Id. at 287-88.) No specific limitation or impairment was found by either to flow from this accident.

On May 19, 2012, Plaintiff was admitted to the Denver Health Medical Center and diagnosed with an upper gastrointestinal (GI) bleed, alcohol abuse, H. pylori infection, andhistory of hepatitis C (Id. at 311.) The GI bleed was surgically repaired and treatment was prescribed for his infection. (Id.) After his hospitalization, Plaintiff claims to have quit drinking alcohol. (Id. at 45.)

In June, 2012, Anthony LoGalbo, M.D., a state agency physician, reviewed Plaintiff's record and opined that Plaintiff had limitations consistent with the ability to perform a reduced range of medium work. (Id. at 91-92.) State agency psychologist Barbara Martinez, Ph.D., reviewed the evidence and concluded that Plaintiff had mental limitations consistent with the ability to perform unskilled work. (Id. at 89, 94.)

On November 7, 2012, Plaintiff was seen at the Denver Health Outpatient clinic for the purpose of establishing a primary care provider. (Id. at 306.) At the time of the visit, Plaintiff complained of neck pain "shooting up to the top of his head and down his back," shoulder pain, and the feeling that his "hands and feet don't work sometimes." (Id. at 306.) Plaintiff also told Sarah Christensen, M.D., upon examination, that he was "trying to quit drinking since May." (Id.) Dr. Christensen noted that Plaintiff's neurological exam was normal and prescribed ibuprofen and Tylenol for pain. (Id. at 306.) Dr. Christensen also ordered X-rays of the neck, which showed some narrowing of the spinal canal, greater on the right than left. (Id. at 304.) On November 14, 2014, Dr. Christensen notified Plaintiff of the X-ray results, prescribed physical therapy, and confirmed with Plaintiff that his neurological exam was normal. (Id. at 304.)

On November 19, 2012, Plaintiff was seen at the Denver Health Outpatient Clinic in order to follow up on X-ray results and to review his medications. (Id. at 300.) The results of an examination by Michelle Cleeves, M.D. performed during that visit showed that Plaintiff presented with some stiffness in the muscles of his neck, but that his neurological exam was normal. (Id.) Dr. Cleeves recommended that Plaintiff undergo a disability evaluation. (Id.)

In addition to the above, several pieces of evidence are present in the record concerning Plaintiff's ability to read and write. In many instances, the evidence is contradictory. For example, one Adult Function Report Plaintiff completed in connection with his application for benefits stated that he cannot read. (Id. at 207.) In a separate Function Report, Plaintiff reports being able to use a checkbook and money orders. (Id. at 238.) On the Disability Report that Plaintiff completed in connection with his application, he answered no to questions of whether he could "read and understand English" and whether he could "write more than your name in English." (Id. at 225; see also id. at 240.) However, a separate Disability Report lists Plaintiff's answer as yes to these same questions. (Id. at 191.) Responding to a question regarding his ability to follow written instructions, Plaintiff stated that he "can't read." (Id. at 240.)

B. Plaintiff's Testimony at The ALJ Hearing, The ALJ's Decision and Plaintiff's Appeal

At the hearing held on January 18, 2013, Plaintiff testified that his mailing address was in Denver, but that he had been homeless for about four years. (Id.) Plaintiff further testified that he had dropped out of high school after reaching the eleventh grade and that he does not have a GED. (Id. at 36; see also id. at 227.) Plaintiff went on to list the jobs he had performed prior to the onset of his alleged disability, including work for True Green Lawn Care, Urban Farmer, and other employments generally as a day laborer. (Id. 37-39.) Plaintiff testified that he was taking a number of medications for his various maladies and pain, although he could not remember the names of those medications other than aspirin. (Id. 39-40.) Plaintiff testified that he quit drinking alcohol altogether in May of 2012. (Id. at 40.) Plaintiff testified that, prior to May 2012, he would drink every day and would panhandle to get the money to buy liquor. (Id. at 41.)

Plaintiff testified that he could not read or write, except for "a little bit." (Id. at 42.) Hestated that his niece filled out the forms required to apply for disability benefits and that he had told her what to write. (Id. at 43.) In response to the ALJ's question as to whether Plaintiff could write a simple word like "dog or cat," Plaintiff replied that he could write those words, his name, and other easy names like "John" but that he did not know "the months," and that he "really [doesn't] get into...