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Torres v. Colvin

United States District Court, District of Arizona

April 29, 2015

Jose Carlos Torres, Plaintiff,
v.
Carolyn W. Colvin, Defendant.

ORDER

BRIDGET S. BADE UNITED STATES MAGISTRATE JUDGE

Jose Carlos Torres (Plaintiff) seeks judicial review of the final decision of the Commissioner of Social Security (the Commissioner) denying his application for benefits under the Social Security Act (the Act). The parties have consented to proceed before a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b) and have filed briefs in accordance with Local Rule of Civil Procedure 16.1. For the following reasons, the Court affirms the Commissioner’s decision.

I. Procedural Background

On June 9, 2009, Plaintiff filed an application for a period of disability and disability insurance benefits under Title II of the Act. (Tr. 15.)[1] Plaintiff alleged that he had been disabled since January 7, 2008. (Id.) After the Social Security Administration (SSA) denied Plaintiff’s initial application and his request for reconsideration, he requested a hearing before an administrative law judge (ALJ). After conducting a hearing, the ALJ issued a decision finding Plaintiff not disabled under the Act. (Tr. 18-27.) This decision became the final decision of the Commissioner when the Social Security Administration Appeals Council denied Plaintiff’s request for review. (Tr. 1-6); see 20 C.F.R. § 404.981 (explaining the effect of a disposition by the Appeals Council). Plaintiff now seeks judicial review of this decision pursuant to 42 U.S.C. § 405(g).

II. Administrative Record

The record before the Court establishes the following history of diagnosis and treatment related to Plaintiff’s alleged impairments. The record also includes opinions from State Agency Physicians who examined Plaintiff or reviewed the records related to his impairments, but who did not provide treatment.

A. Medical Treatment Evidence

In July 2008, Plaintiff saw Dr. Bapu Aluri, M.D., to establish care. (Tr. 265.) Plaintiff reported a thirty-year history of seizures and estimated he had experienced at least ten seizures since January 2008. (Id.) He reported symptoms including a “weird sensation” (which Dr. Aluri identified as an aura), transient disturbances in his ability to express and understand language (aphasia), and loss of consciousness. (Id.) Plaintiff denied other seizure symptoms such as tongue biting or loss of bladder or bowel control. (Id.) Plaintiff reported that “a vagus nerve stimulator [had been] placed without any improvement.” (Id.) Dr. Aluri noted that the stimulator would be removed if Plaintiff responded to other treatment. (Tr. 266.) He diagnosed epileptic seizures and prescribed medication. (Tr. 265-67.)

During a September 2, 2008 appointment with Dr. Aluri, Plaintiff reported two seizures in the previous two days and stated that he had run out of one of his seizure medications, Lamictal. (Tr. 268-69.) Plaintiff reported “weird sensation [aura], ” loss of consciousness, and loss of awareness. (Id.) Dr. Aluri again assessed epilepsy. (Id.) On October 13, 2008, Plaintiff told Dr. Aluri that he had not had any seizures since his last visit. (Tr. 270-71.) On November 24, 2008, Plaintiff reported three tonic clonic convulsions, stating that he “had the flu and [his] seizures returned.” (Tr. 272.) He reported a “weird sensation [aura]” but denied aphasia, loss of consciousness, or other seizure symptoms. (Tr. 272.) During a January 7, 2009 appointment with Dr. Aluri, Plaintiff reported three tonic clonic convulsions in the past month, but denied symptoms other than a “weird sensation [aura].” (Tr. 274.) Dr. Aluri noted that Plaintiff’s seizures were under “much better control.” (Id.) The record indicates that Plaintiff returned to Dr. Aluri’s office five more times in 2009, four times in 2010, and seven times in 2011.

On February 23, 2009, Plaintiff reported five tonic clonic convulsions since his January 2009 visit. (Tr. 276.) On April 7, 2009, Plaintiff reported no seizures in March and a couple of seizures in April. (Tr. 278.) On June 25, 2009, Plaintiff reported “at least” six tonic clonic convulsions since his last visit. (Tr. 280.) On August 31, 2009, Plaintiff reported no seizures in the last three weeks. (Tr. 282.) On October 29, 2009, Plaintiff reported five tonic clonic convulsions since his last visit. (Tr. 285.) On April 28, 2010, Plaintiff reported three “small seizures” since his last visit. (Tr. 327.) On May 27, 2010, Plaintiff reported two seizures since his last visit. (Tr. 329.) On August 11, 2010, Plaintiff reported two seizures in early June, but none during the past two months. (Tr. 365.) On September 30, 2010, Plaintiff reported three seizures since his last appointment. (Tr. 362.)

On January 10, 2011, Plaintiff reported five seizures since his last appointment. (Tr. 360.) On February 21, 2011, Plaintiff reported no seizures since his last appointment. (Tr. 357.) On April 8, 2011, Plaintiff reported three seizures since his last visit. (Tr. 354.) On May 20, 2011, Plaintiff reported three seizures since his last visit. (Tr. 351.) On July 1, 2011, Plaintiff reported four small seizures and one strong seizure since his last visit. (Tr. 348.) On September 1, 2011, Plaintiff reported two seizures since his last visit. (Tr. 345.) On November 4, 2011, Plaintiff reported three “events” that lasted a “couple seconds” since his last visit. (Tr. 342.)

In July 2008, September 2008, and May 2011, Plaintiff reported a loss of consciousness in connection with his seizures. (Tr. 265, 268, 351.) Otherwise, Plaintiff repeatedly denied seizure symptoms other than a “weird sensation [aura].” (Tr. 276-84, 327-30, 342, 67.) In June 2009, an MRI of Plaintiff’s brain was normal. (Tr. 288.) In April 2010, Dr. Aluri noted that Plaintiff’s vagus nerve stimulator had been removed. (Tr. 327.) In May 2010, Dr. Aluri stated that he would consider reducing one of Plaintiff’s seizure medications, Keppra, at Plaintiff’s next appointment if he continued to do well. (Tr. 330.) Dr. Aluri subsequently tapered Plaintiff off that medication. (Tr. 363, 366.)

On April 8, 2011, Plaintiff told Dr. Aluri that he had not taken a seizure medication that Dr. Aluri prescribed in October 2009, Vimpat, because his health insurance denied coverage. (Tr. 354.) The record does not reflect when the insurance company denied coverage for the medication or whether Plaintiff ever took the medication. (Tr. 354, 286 (“start Vimpat” in October 2009).) Dr. Aluri did not record serum drug levels. (Tr. 268-84, 327-30, 342-67.)

2. Treatment Related to Depression

During his initial appointment with Dr. Aluri in July 2008, Plaintiff reported depression but stated that it improved with treatment. (Tr. 265.) Dr. Aluri did not diagnose depression or prescribe anti-depressant medication at that visit. (Tr. 265-67).

Between October 2008 and June 2009, Dr. Aluri prescribed anti-depressant medication and noted that Plaintiff’s depression was better with treatment. (Tr. 270.) He did not record any abnormal psychiatric examination findings. (Tr. 270-81.) Beginning in August 2009, Dr. Aluri diagnosed depression and stated that, with treatment, it was “in remission.” (Tr. 283, 328, 330, 343, 346, 349, 352, 355, 358, 361, 363, 366.)

B. Medical Opinion Evidence

1. Dr. Aluri

On May 9, 2011, Dr. Aluri wrote a letter “to whoever it may concern” stating that Plaintiff had intractable epilepsy that was not controlled with medication, Plaintiff had seizures regularly, and the prognosis for controlling Plaintiff’s seizures did “not look good.” (Tr. 341.) Dr. Aluri noted that a nerve stimulator was ineffective and that Plaintiff was currently taking two anti-epileptic medications. (Id.)

2. Dr. Lloyd Anderson

On February 11, 2010, state agency physician Lloyd Anderson reviewed the record and completed a physical residual functional capacity (RFC) assessment. (Tr. 292.) He opined that Plaintiff did not have any exertional limitations, but he should not climb ladders, ropes, or scaffolds, and should avoid machinery and heights. (Tr. 293, 294-96.) Dr. Anderson concluded that the record lacked the documentation regarding seizures, such as drug serum levels and accurate third-party descriptions of seizures and the frequency of seizures, that “obscure[d] credibility” and precluded a finding of presumptively disabling epilepsy. (Tr. 297); see 20 C.F.R. pt. 404, subpt. P, app. 1 § 11.00A.

3. Dr. Martha Goodrich

On October 19, 2010, state agency physician Dr. Goodrich reviewed the record and completed a physical RFC assessment. (Tr. 70-71.) She opined that Plaintiff did not have any exertional limitations, but he should not climb ladders, ropes, or scaffolds, and should avoid machinery and heights. (Id.)

4. Dr. Ashley Hart

On April 12, 2010, Plaintiff saw state agency psychologist Ashley Hart for a psychological evaluation for his disability benefits claim. Plaintiff reported that he experienced seizures once every five or six weeks, and estimated that he had ten seizures during the past year. (Tr. 372, 375.) Plaintiff stated that he could carry out most aspects of daily living and go shopping. (Tr. 372.) After conducting a psychological examination, Dr. Hart opined that Plaintiff had mildly deficient memory skills, good social interaction, and “very good” personal activities of daily living. (Tr. 371-76.)

5. Dr. Eric Penner and Dr. Eugene Campbell

As part of the administrative proceedings, state agency psychologists Eric Penner (Tr. 322-24) and Eugene Campbell (Tr. 72-73) reviewed the record and opined that Plaintiff had abilities consistent with unskilled ...


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