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Diaz v. Colvin

United States District Court, D. Nebraska

May 8, 2017

DAVID ANGLE DIAZ, JR., Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner, Social Security Administration, Defendant.

          MEMORANDUM AND ORDER

          F.A. Gossett, III United States Magistrate Judge

         Plaintiff, 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.

         PROCEDURAL BACKGROUND

         On August 14, 2013, Diaz filed an application for SSI, alleging disability beginning March 5, 2011.[1] (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).

         Diaz 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).

         An 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).

         The 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. 1).

         FACTUAL SUMMARY

         Diaz 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).

         In 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, 306-309, 315).

         Diaz 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).

         Diaz 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).

         At the 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).

         With 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).

         Diaz 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).

         Diaz 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 pain ...


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