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Luis Alvarez, Jr v. Commissioner of Social Security

June 27, 2011

LUIS ALVAREZ, JR.,
PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY,
DEFENDANT.



The opinion of the court was delivered by: Wigenton, District Judge,

NOT FOR PUBLICATION

OPINION

Before the Court is plaintiff Luis Guillermo Alvarez, Jr.‟s ("Plaintiff") appeal of the decision of the Commissioner of the Social Security Administration ("Commissioner"), denying Plaintiff‟s claim for disability insurance benefits ("DIB") pursuant to Sections 216(i) and 223(d), and supplemental security income ("SSI") under Section 1614(a)(3)(A) of the Social Security Act (the "Act"). See 42 U.S.C. §§ 416(i), 423(d) and 1382c(a)(3)(A).

This appeal is decided without oral argument pursuant to Federal Rule of Civil Procedure 78. The Court has subject matter jurisdiction pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). Venue is proper under 28 U.S.C. § 1391(b).

For the reasons set forth below, this Court REMANDS the Commissioner‟s decision.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiff was born on September 18, 1951. (Admin. R. Ex. 1D, at 1.) He was fifty-seven years old at the time of his hearing before Administrative Law Judge Richard West ("ALJ"). (Luis Alvarez Hr‟g July 14, 2009 Tr. (hereafter "Tr.") 5.) Plaintiff graduated from high school and completed some college; however, he did not receive a college degree. (Tr. 5.) On December 7, 2006, Plaintiff filed for DIB and SSI. (ALJ‟s Decision at 1.) Plaintiff claimed disability due to severe depression, severe panic and anxiety attacks, asthma, stomach problems, leg and thigh pain, high cholesterol and anemia. (Admin. R. Ex. 3E, at 1.) He alleged that his disability began on February 25, 2004. (Id. at 2.) Plaintiff‟s applications were initially denied on June 20, 2007, and then denied again after reconsideration on March 11, 2008. (ALJ‟s Decision at 1.) Plaintiff requested a hearing, and the hearing was held on July 14, 2009 before the ALJ. (Id.) The ALJ‟s decision dated July 23, 2009 ("ALJ‟s Decision") was unfavorable. On April 30, 2010, the Appeals Council denied Plaintiff‟s request for review. On May 24, 2010, Plaintiff commenced this matter to appeal before this Court. (Id.)

A.Medical History

Plaintiff began treatment for depression in the early to mid 1970s. (See Tr. 10.) In December 1999, Plaintiff began treatment with a psychiatrist, Dr. David Corwin ("Dr. Corwin"), for panic attacks, anxiety and depression. (Admin. R. Ex. 1E, at 9.) Dr. Corwin treated Plaintiff with medication and counseling until December 2006. (See generally Admin. R. Ex. 1E.) Plaintiff testified that he stopped working in 2004 because of depression and started seeing Dr. Jesus Alfredo Pena ("Dr. Pena"). (Tr. 10.)

Plaintiff testified that he had a long history of depression, and began psychiatric treatment thirty years earlier, but his symptoms worsened around 2004. (Tr. 10.) Subsequently, Plaintiff began seeing Dr. Pena every two months for treatment and to adjust his medication. (Id. at 12, 29.) He also saw another unidentified therapist twice a week. (Id. at 12-13.) Dr. Pena treated Plaintiff with "[m]edications for depression and anxiety attacks, panic attacks and therapy." (Id. at 12.) Plaintiff went to Trinitas Medical Center for treatment twice a month and saw a church family therapist twice a week. (Id. at 12-13)

Plaintiff testified that due to his depression, he lost 70 pounds. (Id. at 15.) Plaintiff claimed that in 2004, his drinking, panic attacks, and depression increased due to his wife‟s birth of a stillborn baby.*fn1 (Tr. 9.) Prior to his relapse in 2004, Plaintiff had been sober for approximately seventeen years and was in Alcoholics Anonymous. (Id. at 17.) At the time of his hearing in 2009, Plaintiff had been sober since March 2006. (Id.)

On October 14, 2004, Plaintiff had a vascular test performed at Trinitas Hospital. (Admin. R. Ex. 7F, at 12.) The doctor‟s impressions indicated that he could have a mild arteriosclerotic vascular disease, but it did not appear to be significant. (Id.) On October 31, 2006, Plaintiff complained of knee and hip pain, as well as difficulty breathing. (Id. at 7-8.) Plaintiff‟s right knee and hip were x-rayed at Trinitas Diagnostic Imaging. (Id. at 7.) His knee x-ray showed mild degenerative changes, but it was otherwise a normal study. (Id.) The study of Plaintiff‟s hip was unremarkable. (Id.) Plaintiff‟s chest x-ray also showed mildly prominent interstitial markings, which may have been chronic; however, there were no acute infiltrates found. (Id. at 8.)

In addition to his panic attacks and depression, Plaintiff testified that he is only able to walk "a few steps" at a time because of numbness in his legs and clogged arteries. (Tr. 19.) Plaintiff claimed that these problems limit his ability to lift and carry heavy objects and he can now lift only "a couple of pounds." (Id.) Plaintiff also reported having a history of high cholesterol, high blood pressure, and gastritis. (Admin. R. Ex. 2F, at 4.) Furthermore, Plaintiff stated that he has difficulty concentrating and remembering, which are "side effects from the medications." (Tr. 23.) At the time of the ALJ hearing, Plaintiff was taking various prescription medications such as Klonopin, Cyto, Wellbutrin, Citalopram, Advair and a nitro inhaler. (Id. at 29-30.) Plaintiff also testified that he has panic attacks "[a] couple of times a week" and that it takes about an hour to recover from each attack. (Id. at 25.)

On March 3, 2006, Dr. Ernesto Perdomo ("Dr. Perdomo"), a licensed psychologist, evaluated Plaintiff‟s psychological state. (Admin. R. Ex. 2F, at 4.) Dr. Perdomo assessed that Plaintiff‟s "depression and panic attacks may affect his ability to function effectively at any job." (Id.) Furthermore, Dr. Perdomo‟s diagnosis indicated that Plaintiff‟s "[p]sychosocial stressors appear to be severe due to homelessness, living in the YMCA, recurrent depression, and panic attacks." (Id.) Dr. Corwin indicated that when he last saw Plaintiff, "he was depressed, disorganized with racing thoughts, and was quite distractible, with rambling speech which was not always coherent" and "[h]e has been frequently depressed and disorganized with panic states." (Admin. R. Ex. 1F, at 1.) In December 2006, Dr. Corwin stopped seeing Plaintiff because he closed his office. (Id.)

A June 15, 2007 Orthopedic Consultative Examination report by Dr. Allen Glushakow ("Dr. Glushakow"), a non-treating physician, indicated that Plaintiff was hospitalized in 1995 for his psychiatric treatment. (Admin. R. Ex. 5F, at 1.) Dr. Glushakow also stated that Plaintiff received treatment for twenty-five years, and at the time of the hearing was receiving psychiatric treatment at Trinitas Hospital. (Id.) He noted that Plaintiff had a history of asthma, but that he had full range of motion in his neck, shoulders, elbows, wrists, and back. (Id.) Further, Plaintiff had no atrophy in his upper or lower extremities, he was able to squat, walk on his toes, and heels and his gait was within normal limits. (Id.) There were no focal findings in Plaintiff‟s neurological field and there was no evidence of any orthopedic problems at the time. (Id. at 2.) Dr. Glushakow did note that Plaintiff suffers from depression. (Id.)

On November 1, 2006, Plaintiff‟s pelvis and abdomen were examined after he complained of abdominal pain, accompanied by weight loss. (Admin. R. Ex. 7F, at 6.) The tests of Plaintiff‟s liver, spleen, pancreas and abdominal loops showed no significant findings. (Id.) On June 22, 2007, Plaintiff‟s medical report revealed Plaintiff‟s "heart size and pulmonary vascularity to be normal", his lung fields were "free of infiltrate or other acute finding[s]", and that "the costophernic angles [were] sharp." (Admin. R. Ex. 7F, at 2.) Further, a pulmonary function test done on June 26, 2007 indicated that Plaintiff‟s dynamic and static lung volumes were normal, but there was a mild diffusion defect. (Id. at 3.)

In 2009, Plaintiff had three radiology examinations. (See generally Admin. R. Ex. 16F.) The first exam took place on April 1, 2009. (Id. at 1.) The doctor found "no evidence of abdominal aortic aneurysm or dissection.moderate diffuse atherosclerotic changes. [and] no evidence of periaortic collection." (Id.) The second took place on April 9, 2009. (Id. at 2.) The doctor found that both renal arteries appeared patent, but the "[p]roximal inferior mesenteric artery appeared to be occluded" and "the inferior mesenteric artery was reconstituted via retrograde flow from the middle rectal artery . . . [to] provide [] flow to the left colon[.]" (Id.) On April 27, 2008, Dr. Jung-Tsung Tsai noted that Plaintiff could elect to have surgery, but did not require him to do so. (Id. at 3.) The third exam occurred on May 8, 2009. (Admin. R. Ex. 16F, at 5.) This test showed that Plaintiff‟s lungs were "aerated and clear," and there was no pneumothorax, pleural effusion or consolidation. (Id.) His cardiomedicastinal silhouette was normal in size and configuration, and the soft tissues and osseous structures were otherwise unremarkable. (Id.) A lab test from July 9, 2009 showed that Plaintiff had no active pulmonary disease. (Id. at 4.)

Additionally, Plaintiff testified that after a double bypass surgery in 2009, he began taking Plavix, Lipitor, and aspirin. (Tr. at 16, 32-33.) Plaintiff stated that he might need another ...


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