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Diaz v. Berryhill

United States District Court, M.D. Pennsylvania

July 3, 2019

ALBERT DIAZ, JR., Plaintiff,
v.
NANCY BERRYHILL, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION

          Martin C. Carlson, United States Magistrate Judge

         I. Introduction

         In the case of Albert Diaz we most assuredly do not write upon a blank slate. Quite the contrary, Albert Diaz suffered what was undeniably a disabling injury 11 years ago in May of 2008. Despite this decade-old disabling injury, this is Diaz's third appeal of an adverse Social Security disability ruling over the past ten years. It is undisputed that each of the three prior decisions made by the ALJs who evaluated Diaz's case-including the decision that is currently on appeal-contained material errors. Indeed, to its credit, the Office of the Commissioner concedes error in this appeal.

         It is also undisputed that Diaz's spinal and neurological impairments are severe, and were totally disabling for a period of many years, from 2008 through 2012. Furthermore, there is no dispute that it took more than ten years from the date of the onset of Diaz's disability for an Administrative Law Judge (ALJ) to finally recognize the partially disabling impact of these injuries in July of 2018. Yet, even as it was acknowledged that Diaz suffered disabling injuries for many years, the plaintiff was denied disability benefits after March 2012 in an ALJ decision which found that in the span of a single month the plaintiff went from per se disabled to capable of performing sedentary work. In reaching this latest decision, the ALJ rejected a 2015 treating source opinion which found that Diaz remained disabled after 2012, erroneously ignoring that opinion based upon an incorrect view regarding Diaz's date last insured. The ALJ also fashioned a residual functional capacity (RFC) assessment for Diaz which was unsupported by any competent medical opinion evidence, and was contradicted by both lay testimony and clinical evidence, as well as by multiple medical opinions from treating and examining sources.

         Commendably, the Commissioner concedes error in this latest July 2018 ALJ decision, but citing the deference owed to administrative agency determinations, recommends that we remand this case for what would be the fourth ALJ hearing of Diaz's decade-spanning disability claim. Diaz urges us to follow a different path, one which places a greater value on finality and fairness than upon administrative agency deference, and exercise our legal authority to award benefits in this case.

         Upon careful consideration of the parties' competing positions, we conclude that it is now time for this painfully prolonged litigation to draw to a close. Finding that the exacting requirements set by law for an award of benefits are met under the extraordinary circumstances of this case, for the reasons set forth below, it is ordered that judgment is entered in favor of the plaintiff and the Commissioner is directed to award benefits in this case.

         II. Statement of Facts and of the Case

         This legal saga began more than 11 years ago, in May of 2008. At that time Albert Diaz had a steady employment history working in building maintenance for approximately 8 years. (Tr. 113-14.) “On May 8, 2008, when Mr. Diaz was thirty-nine years old, he fell approximately four feet down an elevator shaft while engaging in his duties as a maintenance director and maintenance worker.” Diaz v. Colvin, No. 4:16-CV-00358, 2017 WL 1078229, at *2 (M.D. Pa. Mar. 22, 2017).

         It is now entirely undisputed that Diaz suffered severe spinal, elbow, wrist and neurological impairments as a result of this fall. These impairments have left Diaz in intractable pain and multiple medical sources have found over the past decade that these impairments were completely disabling. Indeed, it is now conceded that Diaz was totally and completely disabled for at least four years in the immediate aftermath of this May 2008 fall. On July 18, 2018, an ALJ concluded that Diaz's severe impairments met the requirements of Listing 1.04, [1] and found him to be per se disabled from May 2008 through March 2012. (Tr. 1307-33.) Yet, even as the ALJ conceded in July 2018 that Diaz had become disabled more than a decade earlier, the ALJ also found that Diaz had regained the capacity to perform a limited range of sedentary work in March of 2012, a decision denying continuing benefits to Diaz which the Commissioner now concedes was flawed in basic and fundamental ways.

         The tortured and protracted administrative history which led in July of 2018 to a decision which conceded Diaz's disability for a closed period while denying him disability benefits for the past six years began on April 19, 2010, approximately two years after Diaz suffered this injury, when the plaintiff filed his initial application for disability benefits based upon his spinal and neurological impairments. (Tr. 104-5.) Having applied for these benefits, Diaz waited more than a year before he received an ALJ hearing on this claim on October 5, 2011. (Tr. 40-67.) Two months later, on December 21, 2011 Diaz's claim was denied by an ALJ. (Tr. 7-19.)

         At this juncture Diaz's agency proceedings had been pending for approximately 20 months, and he had been enduring the disabling symptoms of his May 2008 injury for more than 40 months. Diaz appealed this adverse decision to the Social Security Appeals Council. He was then compelled to wait another 20 months before his administrative appeal was denied on June 25, 2013. (Tr. 1-5.)

         Diaz then lodged his first appeal with this court in August of 2013. Diaz v. Colvin, No.1:13-CV-2242. On August 12, 2014, it was recommended that this case be remanded for further consideration by the Commissioner, a recommendation that the Commissioner did not dispute. Diaz v. Colvin, No.1:13-CV-2242 (Docs. 15 and 16.) On August 27, 2014, six years after Diaz's injury and four years after he first filed for disability benefits, this court remanded this case to the Commissioner with instructions to further evaluate Diaz's claim. Diaz v. Colvin, No.1:13-CV-2242 (Doc. 17.)

         Another ten months then passed before Diaz received his second disability hearing before an ALJ on June 30, 2015. (Tr. 649-69.) Following that hearing, on December 16, 2015, the ALJ entered an opinion once again denying Diaz's claim for benefits. (Tr. 585-628.) At this juncture, Diaz's disability application had been pending for more than 5 years and he had suffered with these spinal and neurological impairments for 7 years.

         Diaz pursued his second appeal to this court on February 27, 2016. Diaz v. Colvin, No.4:16-CV-358. On March 22, 2017, we vacated this second decision by the Commissioner and remanded this case for further proceedings. Diaz v. Colvin, No.4:16-CV-358 (Doc. 24.) This second decision by the court noted the prolonged delay which had taken place in this litigation observing that: “Mr. Diaz's claim navigated through a complex procedural labyrinth, where it has been denied and remanded due to multiple defects before it arrived before us in the instant matter.” Diaz v. Colvin, No. 4:16-CV-00358, 2017 WL 1078229, at *1 (M.D. Pa. Mar. 22, 2017). The district court also acknowledged that it had the discretion to order an award of benefits at this juncture given this protracted delay, id. at *1, n.1, but gave deference to the agency's request for a remand in lieu of any award of benefits. Id. However, in choosing this course the court specifically “recommend[ed] that, because Mr. Diaz's application for benefits has been pending for almost seven years, the Commissioner schedule an expedited hearing within 120 days of the Court's Order and promptly issue a revised decision.” Id. At the time of this ruling, Diaz had suffered from the disabling effects of his May 2008 injuries for nearly 9 years, and his disability application had been pending for nearly 7 years.

         Despite the court's March 2017 recommendation that this matter be set for an expedited hearing within 120 days, and a prompt decision, another 16 months elapsed before the ALJ issued the third decision in this case, on July 18, 2018. (Tr. 1307-33.) This decision was issued nearly one year after a hearing on Diaz's disability application which took place on August 24, 2017. (Tr. 1346-1422.)

         In that July 2018 decision the ALJ acknowledged that Diaz had, in fact, been disabled a decade earlier in May of 2008 when he fell down an open elevator shaft. (Tr. 1307-33.) The ALJ also conceded that Diaz remained disabled until March of 2012, but denied his claim after March of 2012 reasoning that his condition had improved sufficiently after that date to allow him to perform a limited range of sedentary work. (Id.)

         In reaching this result, the ALJ rejected a March 2015 medical opinion of Diaz's long-time treating physician, Dr. Rubinfeld, who stated that Diaz remained totally disabled after March of 2012 due to his persistent profound pain, and the frequent episodes of palsy caused by treatment of his neurological conditions. (Tr. 1119-22.) According to the ALJ Dr. Rubinfeld's March 2015 was entitled to “no weight.” (Tr. 1330.) The ALJ rejected this 2015 medical opinion from Dr. Rubinfeld, even though the ALJ had previously concluded that prior, essentially identical medical opinions from Dr. Rubinfeld, issued in November 2011 and January 2012 were entitled to “great weight, ” (Tr. 1321), and formed a significant part of the evidence which led the ALJ to announce that Diaz had been per se disabled from 2008 through March 2012. (Id.) In large measure, the ALJ justified this seemingly inconsistent approach to evaluating the opinions of this longstanding treating source by insisting that Dr. Rubinfeld's March 2015 opinion was issued after Diaz's date last insured, December 2013, and therefore was of no value whatsoever. (Tr. 1316, 1330.)

         This finding was simply wrong. It is now conceded by all parties that the Diaz's date last insured is actually in 2017, two years after Dr. Rubinfeld opined in March of 2015 that Diaz remained completely disabled.

         Nonetheless having rejected the March 2015 opinion of a treating source that the ALJ had previously defined as a source entitled to great weight for what was undeniably the wrong reason, the ALJ went on to conclude that Diaz could perform a limited range of sedentary work. (Tr. 1324-5.) No. medical opinion supported the RFC assessment arrived at by the ALJ and multiple medical opinions from treating and examining sources, both preceding and following the March 2012 date when the ALJ found that Diaz regained the capacity for work, directly contradicted this finding. Thus, in arriving at the decision that Diaz could perform sedentary work after March of 2012, the ALJ cited to no medical opinion evidence. Instead the ALJ was compelled to either reject or distinguish the opinions of multiple medical sources, who found that Diaz was either completely or significantly disabled.

         In some instances the ALJ justified this decision by asserting that the doctors' opinions pre-dated March 2012, the date when the ALJ deemed that Diaz's condition had improved to a degree that allowed him to work.[2] In other instances, such as when a treating source like Dr. Rubinfeld opined that Diaz was disabled both before and after March of 2012, the ALJ chose the give great weight to the earlier opinions but erroneously concluded that this treating doctor's March 2015 opinion was entitled to no weight. (Tr. 1321, 1330.)

         In still other instances, the ALJ was presented with numerous consultative examining expert opinions, all of which post-dated March of 2012 and all of which reflected findings of full or partial disability on Diaz's part after March of 2012. For example, in July of 2012, Dr. Angela Adams opined that Diaz was experiencing a 50% disability due his spinal and neurological problems, a degree of disability which presented an exacerbation of his previous issues. (Tr. 1697.) Dr. Adams further opined that Diaz suffered from a 40% disability due to an elbow injury and neurological complications from that injury. (Tr. 1698.) Dr. Adams also opined that Diaz had a 30% partial permanent emotional disability due to the anxiety and depression caused by the chronic physical impairments. (Id.)

         Three months later, in October of 2012, Dr. Cyrus Vosough, also submitted a medical opinion letter confirming that Diaz suffered from on-going and significant disabilities. (Tr. 1687-1690.) According to Dr. Vosough, Diaz was 70% disabled due to his back injuries, 55% disabled due to his elbow injuries, and 37 ½% disabled as a result of right wrist injuries. (Id.)

         On December 4, 2013, a consulting, examining physician, Dr. Thomas McLaughlin, further documented the on-going and profound nature of Diaz's physical impairments. (Tr. 1017-31.) According to Dr. McLaughlin, Diaz was never able to engage in any lifting or carrying, could sit or walk for no more than 10 minutes at a time, required the use of a cane to ambulate, and could never use his dominant right hand to reach, lift, handle, finger, feel or pull. (Id.)

         Finally, in January of 2014, Tiffany Griffith, Psych. D., opined that Diaz faced a series of moderate mental and emotional impairments due to the chronic anxiety and depression with accompanied his on-going physical and neurological impairments. (Tr. 1032-39.)

         Presented with this substantial array of medical opinions, all of which confirmed the treating source opinion that Diaz remained totally disabled after March of 2012, the ALJ elected to afford all of these opinions “little weight” in this disability assessment. (Tr. 1330-31.) The ALJ also gave “little weight” to the testimony and statements provided by Diaz's spouse. (Tr. 1328-9.) Even though her description of Diaz's limitations and impairments was based upon years of direct observation and was entirely consistent with this body of medical opinion and treating source evidence, the ALJ concluded that her familial attachment to Diaz undermined the weight to be given to her testimony. (Id.)

         The principal basis given by the ALJ for rejecting this substantial body of lay testimony and treating and consulting source opinion evidence was the ALJ's conclusion that “Dr. Rubinfeld's treatment records revealed from March 2012 to December 2013, the physical examination findings were essentially within normal limits.” (Tr. 1326.) It is difficult to see how the ALJ reached this conclusion that the treatment records revealed essentially normal results. Rather, those records described Diaz's back pain as a recurring problem; characterized the severity of this pain as ranging between moderate, moderate-to-severe, and severe; and assessed Diaz's functional impairment as falling between moderate and severe. (Tr. 1060-1117.) In short, nothing about these treatment records seemed to be normal. Rather they reflected a chronic level of impairment that varied between moderate and severe. These findings, in turn, were consistent with Dr. Rubinfeld's treatment notes, which also documented Diaz's on-going severe spinal pain. (Tr.1577-1658.) Furthermore, these clinical records corroborated Dr. Rubinfeld's numerous notations between 2014 and 2016 that Diaz was not able to return to work. (Tr. 1659-79.)

         Given this admittedly flawed analysis, the ALJ concluded that Diaz retained the ability to perform a limited range of sedentary work. Based upon this conclusion, the ALJ then found at Step 5 of this sequential analysis that Diaz's disability ended in March of 2012, and denied his claim for continuing benefits after that date. (Tr. 1330-33.) At the time that the ALJ issued this decision in July of 2018 denying Diaz's right to benefits after March of 2012, Diaz's medical impairments had persisted for more than a decade, and Diaz had been litigating his entitlement to disability benefits for more than 8 years.

         This third disability appeal then followed. (Doc. 1.) While the Commissioner initially endeavored to defend this July 2018 ALJ decision, (Doc. 19), upon reflection the Commissioner now agrees at a minimum that the ALJ erred in discounting Dr. Rubinfeld's opinions based upon an incorrect assumption regarding Diaz's date last insured. Accordingly, the Commissioner concedes error and asks us to remand this case for what would be the fourth administrative decision in this case. (Doc. 21.) For his part, Diaz urges us to order an award of benefits in this case, arguing that the record developed over the past decade is complete and supports an award of benefits in this case.

         This appeal is fully briefed by the parties and at the plaintiff's request was the subject of an oral argument conducted on June 28, 2019. ...


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