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Larson v. Colvin

United States District Court, D. South Dakota, Southern Division

March 1, 2016

NEIL T. LARSON, Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

OPINION AND ORDER AFFIRMING IN PART BUT VACATING AND REMANDING THE COMMISSIONER'S DECISION

ROBERTO A. LANGE, UNITED STATES DISTRICT JUDGE.

Plaintiff Neil T. Larson ("Larson") seeks reversal of the Commissioner of Social Security's decision denying Larson disability insurance benefits and supplemental security income (collectively "social security benefits"). For the reasons explained below, this Court affirms in part the Commissioner's decision, but vacates and remands the decision for further consideration.

I. Background

A. Procedural Background

Larson last worked on August 15, 2007, which he contends to be the onset date of his claimed disability. AR 225, 232.[1] In 2009, Larson filed claims for social security benefits, which were denied in 2010 after an administrative hearing before an administrative law judge ("ALJ"). AR 65-75. There is limited information in the appeal record before this Court concerning that prior case, although the Notice of Decision-Unfavorable and the decision of the ALJ from 2010 are part of the record. AR 65-75. Larson did not appeal from that 2010 denial of social security benefits.

On May 25, 2011, Larson protectively filed an application for supplemental security benefits and an application for disability insurance benefits. AR 225-38. Larson's filings did not seek reconsideration of the prior ALJ decision, but involved resubmission of information and apparently different or at least additional records. The Commissioner denied Larson's claims initially on July 26, 2011. AR 125-27. Larson requested reconsideration, AR 128-31, and the claims were denied upon reconsideration on March 12, 2012. AR 102-24. Larson then sought a hearing before an ALJ, which was conducted on March 20, 2013. AR 34, 37-64. In April of 2013, the ALJ issued his decision denying Larson's claims for social security benefits. AR 7-21.

Larson then hired a new attorney, AR 32-33, who appealed to the appeals council and submitted new material, AR 314-18, 553-72. The new material included old medical records from prior hospitalizations and a recent evaluation of Larson by neuropsychologist James A. Dickerson. AR 313-18, 508-72. The extensive neuropsychological evaluation directly undercut the ALJ's foundation for denying social security benefits to Larson and raised other issues about potentially severe cognitive and psychological impairments impacting Larson's ability to work. See AR 553-72. The appeals council purportedly considered this new information in stating, "In looking at your case, we considered the reasons you disagree with the decision and the additional evidence listed on the enclosed Order of Appeals Council." AR 1; see also AR 4 (listing Dickerson report and additional material concerning Larson's hospitalizations for acute pancreatitis). Without any further explanation, the appeals council then included its stock language: "We found that this information does not provide a basis for changing the Administrative Law Judge's decision." AR 2. In considering the record as a whole, this Court disagrees that Dr. Dickerson's report can be so casually dismissed with regard to determining Larson's residual functional capacity ("RFC") and ability to perform a light-duty job, such that remand on those issues is proper. This Court, however, affirms the ALJ's decisions on certain other matters challenged by Larson.

B. Factual Background

Larson was born in May of 1970. AR 39, 225. He has no children and has never been married. AR 51-52, 232-33. Since 2011, Larson has lived in a subsidized housing unit and has been supporting himself through moneys his parents give him and welfare programs, including Supplemental Nutrition Assistance Program benefits. AR 51, 226-231. Larson is adopted and was raised in Beresford. AR 269, 556. He dropped out of high school toward the end of his senior year and ultimately received a GED. AR 39. He attended vocational school in Mitchell for architectural drafting and building construction for one year. AR 39. His work history primarily has been in the food service industry, although he worked during 1999 and 2000 doing painting for a commercial grain dryer business where he had to lift up to 70 pounds. AR 39-40. Thereafter his employment was in making sandwiches or pizzas and in delivering pizzas. AR 39-40, 243-92. He last worked in August of 2007 delivering pizzas, but was fired from that job reportedly for taking too long to complete the work. AR 40-41. Larson testified that his diabetes and other problems caused him to become tired and fatigued, such that by August of 2007 he could no longer perform the duties of that job. AR 41-42.

Larson's medical history is significant for two critical bouts with acute pancreatitis. Larson was hospitalized in June and July of 2002 for treatment of severe pancreatitis. AR 508-29. After his discharge, Larson resumed work. AR 277-81. However, Larson apparently stopped taking medication to treat his pancreatic issues and became critically ill in late December of 2004. AR 531-32. Larson was hospitalized from December 30, 2004, until January 28, 2005, with a life-threatening bout of acute pancreatitis. AR 531-52. Larson at one point was subject to a do-not-resuscitate order during part of that one month of hospitalization. AR 532. However, Larson was able to engage in substantial gainful employment for most of the next two years after his discharge from this second hospitalization. AR 277.

The record is devoid of documentation as to Larson's health around the alleged date of the onset of disability-August 15, 2007. Besides the hospitalizations for acute pancreatitis, the earliest medical records in the appeal record before this Court are from 2009. Larson typically sought medical care from Falls Community Health, which provides health care for low income or indigent individuals. AR 43. By 2009, Larson had poorly-controlled diabetes and issues with his knees and back. AR 358-59. The records from 2010 from Falls Community Health characterize Larson as having diabetes, poorly controlled; low back pain with pain radiating down the right leg at times; and obesity. AR 345-58. A record from January of 2010 mentions the possible need for Larson to undergo a psychiatric examination. AR 356. However, the records from 2010 do not support a conclusion of cardiovascular problems at that time. See AR 356 ("No cardiovascular symptoms"); AR 352 (noting heart rate, rhythm, and sounds as normal).

Larson's medical records from 2011 reflect poorly-controlled diabetes, as well as high cholesterol. AR 338-41, 362. In March of 2011, Larson reported feeling fairly well, but having trouble sleeping. AR 341. Those records characterize Larson as being resistant to any changes suggested on how he might better regulate his diabetes and address other health issues. AR 341.

In late April of 2011, Larson went to Sanford USD Medical Center for chest pain and shortness of breath. AR 320. Although his blood sugar was within the range of normalcy, Larson felt dizzy and had an elevated heart rate. AR 326. Larson's symptoms resolved, and he was discharged to go home. AR 330. Subsequent records from Falls Community Health reflect that his chest pain was resolved, but that he was continuing to have low back pain as well as left shoulder pain from sleeping on it wrong. AR 338.

In June of 2011, Larson visited Falls Community Health, where his blood sugar range was reported to be very high at times, and where his trouble sleeping was noted. AR 368. According to the records, his "[b]ack [is] feeling better but he continues to have some bad days, but the good days are more frequent than before." AR 368. In the summer of 2011, Larson was on a series of medications, including Crestor, [2] Actos, [3] TriCor, [4] Flonase, [5] Hydrochlorothiazide-Lisinopril, [6] Singulair, [7] Cozaar, [8] as well regular insulin for control of his ongoing diabetes. AR 333.

On July 23, 2011, non-examining physician Kevin Whittle issued two separate but very similar Disability Determination Explanations. AR 81-100. Dr. Whittle received certain listed medical records through June of 2011. AR 83-84, 93-94. Dr. Whittle determined that Larson had severe impairments of diabetes mellitus, spine disorders, and sleep-related breathing disorders, but that Larson appeared to overstate his limitations. AR 86, 96. Dr. Whittle assessed Larson's functional limitations and noted Larson could: occasionally lift or carry twenty pounds, frequently lift and carry ten pounds, sit for six hours in an eight-hour workday, frequently climb stairs and ladders, and frequently stoop, bend, or crouch. AR 86-87, 96-97. Dr. Whittle concluded and opined that Larson did not have the ability to perform past relevant work, but had the RFC to perform light work and thus was not disabled. AR 89, 99.

Larson twice more in 2011 received emergency room care for chest pain. On August 14, 2011, Larson presented to Sanford USD Medical Center because of having a headache, dizziness, and chest discomfort. AR 393. His symptoms resolved, and a cardiac referral simply confirmed the previously diagnosed diabetes, hypertension, and dyslipidemia. AR 393-95. Larson presented again to the emergency room on October 9, 2011, with chest pain. AR 377. Larson underwent a stress test, where there were no significant abnormal findings, and Larson himself expressed the view that personal stress likely caused his temporary chest pain. AR 377. Larson reportedly seemed depressed, but would not share what psychological stressors he felt. AR 377-78.

On February 27, 2012, psychologist Shelley Sandbulte at Family Services, Inc., completed a report for South Dakota Disability Determination Services regarding her assessment of Larson. AR 397-404. Larson was cooperative, direct, and forthright during Sandbulte's interview of him. AR 397. Larson denied any past psychiatric or psychological issues. AR 397. Larson talked of having been teased and bullied through life. AR 398. Larson reported having a neck and back injury from a 1994 motor vehicle accident and described his two serious bouts of pancreatitis. AR 398. Larson also spoke of his recent emergency room visits and mentioned feeling sleep deprived. AR 398. Larson described his educational background and his work history, including being fired from his final job in 2007 because, in his assessment, his unstable blood sugars affected his work performance. AR 399-400. Larson talked of a somewhat lonely existence, having two friends and socializing mostly in the community room of his apartment complex. AR 400. Larson described himself as somewhat depressed and complained of low back pain and right hip pain, causing him to spend much of his time lying on a floor. AR 401. Sandbulte did not observe Larson shifting in his chair or moving about during the interview, however. AR 401. Larson performed normally on some simple cognitive tests administered by Sandbulte. AR 402-04. Larson acknowledged that he can drive and shop and that his parents pay for much of his bills. AR 402.

Sandbulte's diagnostic impression of Larson included possible dysthymia; dependent personality disorder with possible self-centeredness and a sense of entitlement; physical complications of diabetes, obesity, low back pain, leg pain, COPD, sleep apnea, and varicose veins by self-report; and psychological stressors. AR 402. Sandbulte was unsure if Larson's depression was due to declining health or a product of his lack of motivation in being proactive about his own health and independence. AR 403. Sandbulte ultimately opined "that there are no psychiatric or psychological issues that would interfere in [Larson's] ability to be employed and/or negatively impact his activities of daily living." AR 404. Sandbulte concluded that the issue of disability, in her view, turned on the effect of his physical issues, including diabetes and obesity. AR 404.

In April of 2012, Larson reported to Sanford USD Medical Center with symptoms of shaking, possibly from elevated blood sugar. AR 406. The symptoms resolved and he was sent home. AR 405-13.

On October 19, 2012, Larson presented to Sanford USD Medical Center with nausea and lightheadedness. AR 415. His blood sugar reading was 292 at that time, his weight was recorded as 290 pounds, and he had chronic low back pain. AR 415-16. Larson was hospitalized until October 21, 2012, with diabetic ketoacidosis. Doc. 415-45. He was discharged with instructions to keep his blood sugar in good control through medication, diet, and exercise. AR 424. During the hospitalization, he underwent an assessment for sleep-related desaturation, with the finding of possible desaturation in early morning hours. AR 444.

On November 27, 2012, Larson was seen at Heuermann Counseling Clinic, which provides mental health care to low and no income individuals in Sioux Falls, for anxiety related to his upcoming disability hearing. AR 449.

Larson was hospitalized from December 28 until December 31, 2012, at Sanford USD Medical Center due to reported chest pain. AR 450. Larson underwent a series of tests as a result. AR 450-60. A venous duplex study was largely normal, but recorded evidence of superficial venous insufficiency of his right lower extremity. AR 460. There was no evidence of deep venous thrombosis or superficial thrombophlebitis of either the right or left lower extremity. AR 460. Larson's discharge summary stated that "he has multiple excuses as to why he cannot change his diet or exercise, most related to money and agoraphobia."[9] AR 465. The discharge summary also noted that his diabetes was poorly controlled and that he was on the maximum dosing of Crestor and Tricor for triglycerides. AR 466. The findings of Larson's nuclear stress test were described as containing a "small defect, with intensity that is mildly reduced." AR 467.

The appeal record contains few medical records concerning Larson's treatment after 2012. Larson visited Falls Community Health on January 14, 2013, with a chief complaint of low back pain ongoing for a couple of years. AR 462. Larson described that chiropractic treatment helped him for only a day and that he had no money for an MRI. AR 462. Larson complained of pain radiating down both legs. AR 462. Larson also ...


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