United States District Court, D. Nebraska
MEMORANDUM AND ORDER
Gossett, III United States Magistrate Judge
David A. Diaz (“Diaz”), seeks review of the
decision by the defendant, Carolyn W. Colvin, Commissioner of
the Social Security Administration (the
“Commissioner”), denying his application for
Supplemental Security Income (“SSI”) disability
benefits under Title XVI of the Social Security Act. See
42 U.S.C. § 1381. For the reasons explained
below, the Commissioner's decision will be affirmed.
August 14, 2013, Diaz filed an application for SSI, alleging
disability beginning March 5, 2011. (Tr. 10, 171). Diaz claimed
medically severe impairments of “[attention deficit
hyperactivity disorder] (“ADD”) and related
mental problems, ” and chronic back and leg pain. (Tr.
29-30, 129). Diaz's application was initially denied on
November 6, 2013, and upon reconsideration on December 5,
2013. (Tr. 122, 129).
was appointed counsel on December 17, 2013. (Tr. 133). On
February 11, 2014, he requested a hearing before an
Administrative Law Judge (“ALJ”), and on March
25, 2014, he made a written request for mental and physical
consultative examinations. (Tr. 134-139). Diaz asserted the
examinations were necessary due to the deficiency in his
medical records resulting from his incarceration between 2002
and 2009 and his financial inability to obtain regular
medical care. (Tr. 138-139).
administrative hearing was held before the ALJ on January 26,
2015. (Tr. 27). Diaz and an impartial vocational expert
testified at the hearing. Counsel for Diaz orally renewed his
request for a consultative examination. (Tr. 30). Following
the hearing, the ALJ issued an unfavorable decision on May
28, 2015. (Tr. 7-11). The ALJ denied Diaz's oral and
written requests for a physical consultative examination
because “[Diaz] specifically testified that, while his
back bothered him, his main medical problem is [ADD].”
The ALJ also denied Diaz's request for a mental
consultative examination because he had “received
mental health treatment since the application date and such
treatment notes provide sufficient evidence to determine
[Diaz's] mental functioning without consultative
examination.” (Tr. 10).
Appeals Council denied Diaz's Request for Review of the
ALJ's decision. (Tr. 1). Diaz has now filed this action
to set aside the Commissioner's decision. (Filing No.
was born on January 18, 1970, and was 43 years old on the
date he filed his application. (Tr. 31). He has never had a
driver's license, has a ninth grade education, and a
limited ability to read and write. (Tr. 31-33).
1999, Diaz was hit by a car and fractured both his legs,
necessitating bilateral leg surgeries. (Tr. 62-63).
Diaz's medical records and testimony reflect that Diaz
still has “pins and plates” in his left leg from
the surgeries and he has reported chronic lower leg pain
since the accident. (Tr. 306; 288, 293-299, 301, 304,
was incarcerated between 2002 and 2009. (Tr. 46-47). During
Diaz's incarceration, he worked in the prison wood shop
until he hurt his back lifting something, and transitioned to
a “light duty job” cleaning windows and dusting.
(Tr. 35, 38, 42). Diaz saw “prison doctors” about
his back, and received medication for his leg and back pain.
(Tr. 39, 69).
has sought medical treatment for back pain once during the
relevant period, on September 6, 2013, when he visited an
emergency room for moderate lower back pain starting four
days prior. (Tr. 325). Lumbar spine x-rays reflected minimal
degenerative changes and no evident new fracture. (Tr. 325).
Diaz was diagnosed with an acute lumbar strain and was
instructed to ice his back intermittently, limit lifting, and
rest, and was prescribed ibuprofen and flexeril. (Tr. 326).
administrative hearing, Diaz testified he cannot stand for
more than half an hour or lift more than twenty-five pounds
due to pain and bruising in his legs. (Tr. 63-64). During a
medical appointment in July 2014, Diaz reported he can
“tolerate” his chronic leg pain. (Tr. 354).
respect to Diaz's claimed mental impairments, a
consultative mental examination from December 2012 opined
that Diaz has some learning issues, including limited reading
abilities. (Tr. 297-305). Diaz believes he has been diagnosed
with dyslexia. (Tr. 298-300, 308-309). At the administrative
hearing, Diaz testified he takes Concerta for ADD and
recently began taking Lyrica to help with his anxiety and
back pain. (Tr. 40-41).
testified he regularly receives psychiatric care. (Tr. 39).
An assessment dated August 18, 2013, by Kathryn Batson, APRN,
notes diagnoses of impulse control disorder, ADD, and
post-traumatic stress disorder (“PTSD”). (Tr.
311-316). Medical records from medication management
appointments with Batson from May, June, August, and November
2013, and February, May, July, and September 2014, generally
reflect that Diaz reports he does well taking Concerta, which
helps his concentration. (Tr. 318-321, 345, 351, 353).
testified he does not receive any other medical care besides
the psychiatric care mentioned above, unless he goes to the
emergency room for his “back spasms” and back