Waters v. Colvin, Case No. 1:13-cv-00197-SMS
| Decision Date | 26 March 2014 |
| Docket Number | Case No. 1:13-cv-00197-SMS |
| Court | U.S. District Court — Eastern District of California |
| Parties | JOHN PATRICK WATERS, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. |
DENIAL OF BENEFITS AND REMANDING
Plaintiff John Patrick Waters, by his attorneys, Law Offices of Lawrence D. Rohlfing, seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for disability insurance benefits pursuant to Title II of the Social Security Act (42 U.S.C. § 301 et seq.) (the "Act"). Because the Administrative Law Judge ("ALJ") failed to obtain and fully consider the Veterans' Administration's ("VA") disability rating of Plaintiff, the Commissioner's denial of benefits is reversed, and this matter is remanded to allow the ALJ to obtain and fully consider the VA's determination.
On October 23, 2009, Plaintiff applied for disability insurance benefits, alleging disability beginning October 16, 2009. The Commissioner initially denied the claim on January 21, 2010, and upon reconsideration, on June 14, 2010. On July 6, 2010, Plaintiff filed a timely request for a hearing.
Plaintiff appeared and testified at a hearing on September 28, 2011. On October 20, 2011, Administrative Law Judge James P. Berry denied Plaintiff's application. The Appeals Council denied review on December 12, 2012. Plaintiff filed the complaint in this action on February 7, 2013.
Plaintiff's testimony. Plaintiff (born April 16, 1968) completed high school and a two-year associate degree. He completed special training in telecommunications in 2004. In 2009, he performed seasonal maintenance work for the national park service, including painting and cleaning, trail and road maintenance, and operating a jack hammer. He stopped working as a result of seizures that caused him to "zone out" or lose focus after a co-worker announced that he would no longer ride in vehicles driven by Plaintiff. Before that job, for five or six years, Plaintiff installed DSL, pulling wire, configuring computers, and wiring phone lines for internet service. Installing DSL connections required Plaintiff to climb ladders, work on roofs, and perform his job responsibilities in other situations hazardous to an individual who experiences uncontrolled and unexpected seizures. Plaintiff was in the Marines from October 1986 to July 1990. At the time of the hearing, Plaintiff was unemployed and supported himself on VA unemployability payments.
Plaintiff began experiencing seizures in the late 1980's, apparently caused by a cancerous brain tumor that was surgically removed in 1991. Over time, his seizures have worsened. At the agency hearing, he testified that, although he was not aware when he was experiencing a seizure, several times daily, he goes into a trance for thirty seconds to a minute. For example, if he is driving he might not see a red light and would simply continue forward. After a seizure, Plaintiff feels very tired or drained, and must lie down for several hours. Plaintiff also reported progressive difficulty with memory.
Loud noises and bright lights can trigger his seizures. As a result he does not look at television or computer screens. Sometimes fluorescent lights bother him. He has not driven since 2009.
Although his doctors have prescribed several drugs over the years, including Dilantin and Phenobarbital, Plaintiff chooses not to take them since they make him feel worse than when he has a seizure: numb and zombie-like.
On good days, Plaintiff is able to do house work or go shopping. On bad days, he just tries to rest. He enjoys reading for short periods, visiting, and talking on the phone. He tries to attend church weekly.
In his adult disability reports, Plaintiff reported that he stopped working on October 16, 2009, when his condition became so bad that he could no longer do his job. He explained that he had memory loss and difficulty concentrating that caused him to forget where he was supposed to be and the task that he was supposed to be doing. At times, he felt incompetent to make daily decisions. Sometimes, he "can't think." AR 171. Sometimes, he lost his balance or confused his left and right hands. Sometimes, he could not hear, smell, or see well. As the case progressed, Plaintiff received a hearing aid. His doctors attributed his hearing loss to his brain surgery.
Plaintiff was bothered by headaches that required him to rest and was depressed about his condition. In turn, his depression had caused his personal care to deteriorate. Loss of his driving privileges had imposed financial and emotional hardship on Plaintiff and his family,
Sometimes, he cooked simple meals such as beans or barbequed chicken or hamburgers. He feared he might burn down his house since he sometimes forgot that he had food cooking. He enjoyed time with friends and family, hunting and fishing, playing cards, and television.
In a written questionnaire, Plaintiff attempted to report the details of his treatment for the brain tumor, but admitted to having forgotten many of the particular procedures. He encouraged the agency to contact the VA physicians who had treated him in Palo Alto between 1990 and 1992, as well as his more recent treating physicians at local VA centers.1 Plaintiff reported that he had previously tried several seizure medications, including Tegretol, Carbatrol, and Keppra, all of which caused unacceptable side effects including nausea, dizziness, depression, and decreased brain function.
In a seizure questionnaire, Plaintiff reported two or three seizures daily. He loses consciousness and has convulsions, but does not bite his tongue or lose bladder control. Seizures last approximately two minutes, leaving him numb and without memory. Sometimes he can quickly resume his ongoing activity; sometimes he will require several minutes. He did not take medication, choosing instead to watch what he ate or drank, and getting sufficient sleep.
Wife's report.2 Ruth Waters, Plaintiff's wife, recounted that Plaintiff might spend the day reading, working outside, or helping at church. Such activities took him a long time. He had difficulty sleeping and woke frequently during the night. He did not drive and could not remember written or oral instructions. He cooked but forgot to turn off the stove. He needed reminders to perform personal care and to turn off appliances. Plaintiff was capable of handling his own finances in all respects and of shopping for things that he needed.
Plaintiff's ability to carry on a conversation had diminished with his concentration. He sometimes had difficulty balancing. His coordination was impaired. His headaches caused his vision to blur.
Mrs. Waters recalled the frightening experience of driving with Plaintiff while he experienced a seizure: He drove through red lights at several intersections. She noted that when Plaintiff had last tried to return to work, he held the job for only four months. She emphasized Plaintiff's difficulty in admitting the extent of his deterioration and seeking disability assistance.
Medical records. In April 2009, industrial physician Dwight James, M.D., treated Plaintiff for a sore throat and congestion at Porterville Valley PromptCare. Later that month, Plaintiff returned to request a prescription for Viagra. Plaintiff continued to see Dr. James to maintain his Viagra prescription.
Consultative clinical psychologist Greg Hirokawa, Ph.D., examined Plaintiff on behalf of the state agency on August 13, 2009. Plaintiff reported memory problems, poor concentration, learning difficulties, word-finding difficulty, irritability, and easy frustration. His recent physical problems and inability to work caused depression.
Dr. Hirokawa evaluated Plaintiff's memory by asking him what he had eaten for breakfast and having him recall earlier life events. Testing revealed normal intelligence. Dr. Hirokawa diagnosed adjustment disorder with depressed mood and estimated Plaintiff's GAF to be 64.3Plaintiff's depression was mild to moderate and primarily attributable to work-related stress. The doctor summarized:
On August 16, 2009, Juliane Tran, M.D., who was certified in physical medicine and rehabilitation, conducted a nonfocal consultative neurological examination. No records, progress notes, or radiographic reports were provided to her. She reported that Plaintiff had experienced head tremors beginning in 1980 while he was in the Marines.4 Plaintiff had experienced grand mal seizures but could not recall his last grand mal seizure. He also experienced other types of seizures, including 30-second-to-one-minute...
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