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Diaz v. Berryhill

United States District Court, N.D. Ohio, Eastern Division

May 8, 2018

FRANCISCO DIAZ, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          JUDGE JAMES S. GWIN

          REPORT AND RECOMMENDATION

          Jonathan D. Greenberg United States Magistrate Judge

         Plaintiff, Francisco Diaz, (“Plaintiff” or “Diaz”), challenges the final decision of Defendant, Nancy A. Berryhill, [1] Acting Commissioner of Social Security (“Commissioner”), denying his applications for Period of Disability (“POD”), Disability Insurance Benefits (“DIB”), and Supplemental Security Income (“SSI”) under Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 416(i), 423, 1381 et seq. (“Act”). This Court has jurisdiction pursuant to 42 U.S.C. § 405(g). This case is before the undersigned United States Magistrate Judge pursuant to an automatic referral under Local Rule 72.2(b) for a Report and Recommendation. For the reasons set forth below, the Magistrate Judge recommends that the Commissioner's final decision be AFFIRMED.

         I. PROCEDURAL HISTORY

         In August 2014, Diaz filed an application for POD, DIB, and SSI, alleging a disability onset date of July 16, 2014 and claiming he was disabled due to diabetes and a left hand impairment. (Transcript (“Tr.”) 168, 172, 199.) The applications were denied initially and upon reconsideration, and Diaz requested a hearing before an administrative law judge (“ALJ”). (Tr. 134.)

         On February 12, 2016, an ALJ held a hearing, during which Diaz, represented by counsel, and an impartial vocational expert (“VE”) testified. (Tr. 42.) On March 11, 2016, the ALJ issued a written decision finding Diaz was not disabled. (Tr. 23.) The ALJ's decision became final on June 15, 2017, when the Appeals Council declined further review. (Tr. 2.)

         On July 31, 2017, Diaz filed his Complaint to challenge the Commissioner's final decision. (Doc. No. 1.) The parties have completed briefing in this case. (Doc. Nos. 12, 13, 15.) Diaz asserts the following assignments of error:

(1) Dr. Jeet was Mr. Diaz's treating endocrinologist since 2012 and offered several opinions. The ALJ failed to indicate what weight he assigned to the doctor's opinions. The reasons offered by the ALJ to discount Dr. Jeet's opinions were vague and in some instances were contradicted by the record. Did the ALJ comply with the mandates of the treating physician rule in evaluating Dr. Jeet's opinions?
(2) According to SSR 96-7p, the RFC must accurately portray the claimant. Mr. Diaz's diabetes progressed to hypoglycemic unawareness and because of this, he loses consciousness without warning or without the ability to control his symptoms. Dr. Jeet said these symptoms were very dangerous for himself and those around him. Should the ALJ have included these limitations in the RFC and hypothetical question posed to the VE?

(Doc. No. 12.)

         II. EVIDENCE

         A. Personal and Vocational Evidence

         Diaz was born in September 1977 and was 38 years-old at the time of his administrative hearing, making him a “younger” person under social security regulations. (Tr. 63.) See 20 C.F.R. §§ 404.1563(c) & 416.963(c). He has a high school education and is able to communicate in English. (Tr. 100.) He has past relevant work as an information clerk. (Tr.35.)

         B. Medical Evidence[2]

         On September 17, 2012, Diaz first visited endocrinologist Anant Jeet, M.D., for diabetes management. (Tr. 236.) Diaz reported he was currently taking insulin injections and monitoring his blood glucose 1-2 times a day. (Id.) He indicated dramatic fluctuations in his home blood glucose levels. (Id.) Diaz's physical examination was overall normal. (Tr. 237.) Dr. Jeet concluded Diaz's diabetes was uncontrolled and adjusted Diaz's diabetic medications. (Tr. 237, 238.)

         Diaz continued to visit Dr. Jeet on a regular basis. In October 2012, his blood glucose levels continued to fluctuate dramatically. (Tr. 241.) Diaz reported a recent hypoglycemia episode at work, in which his blood glucose level was in the 70s. (Id.) On November 14, 2012, Diaz's blood glucose was again fluctuating. (Tr. 245.) His A1c level[3] was 7.8. (Id.) On January 10, 2013, Diaz reported his symptoms had been worsening and his home blood sugar was still fluctuating. (Tr. 250.) Dr. Jeet renewed Diaz's medications. (Tr. 251.)

         On January 24, 2013, Diaz reported to Dr. Jeet he recently experienced another hypoglycemia episode at work. (Tr. 254.) He admitted he had not been checking his sugar level at work. (Tr. 254.) Dr. Jeet advised Diaz he needed to check his glucose 6-7 times a day. (Tr. 254, 255.)

         Diaz returned to Dr. Jeet on February 27, 2013 and requested a note for work. (Tr. 258.) He indicated he had been having low blood sugar readings and had another hypoglycemia episode while at work. (Id.) Dr. Jeet and Diaz discussed an insulin pump and Dr. Jeet adjusted Diaz's medication dosages. (Tr. 258, 259.) On March 18, 2013, Diaz's A1c level was 7.0. (Tr. 293.)

         On May 3, 2013, Dr. Jeet noted Diaz's disease course had been improving, but his blood sugars were still fluctuating. (Tr. 262.) Diaz's diabetes remained uncontrolled and his A1c was 7.0. (Tr. 263.)

         Diaz returned to Dr. Jeet on January 29, 2014, indicating he was only monitoring his blood glucose 1-2 times a day. (Tr. 265.) His blood glucose was still fluctuating dramatically and his A1c level was 7.2. (Id.) On April 29, 2014, Diaz was still only monitoring his blood glucose 1-2 times a day and his blood glucose levels continued to fluctuate. (Tr. 269.) His A1c was a 7.4. (Id.)

         On June 13, 2014, Diaz reported a recent episode of hypoglycemia and a seizure to Dr. Jeet. (Tr. 339.) Dr. Jeet noted Diaz was still not testing his glucose often enough. (Id.) Diaz's blood glucose reading was 63 at this office visit and his A1c level was 7.4. (Id.) On July 17, 2014, his A1c had improved to 6.2, but his blood sugar levels were still fluctuating dramatically. (Tr. 273.) Dr. Jeet recommended Diaz check his blood sugar 6-7 times a day, rather than 1-2 times a day. (Tr. 273, 275.) Dr. Jeet concluded Diaz would “not be able to work due to brittle type 1 diabetes.” (Tr. 275.)

         On September 5, 2014, Diaz visited optometrist Paul J. Alton, O.D., for an eye examination. (Tr. 414.) Diaz's vision was 20/20 with best correction. (Id.) His eye examination was overall normal, however, fundus photos indicated some abnormalities. (Tr. 415, 416.) Dr. Alton diagnosed background diabetic retinopathy in both eyes and referred Diaz to an ophthalmologist. (Tr. 415, 416.)

         On September 19, 2014, Diaz consulted with ophthalmologist Jermone P. Schartman, M.D. (Tr. 417.) Diaz reported he currently had no vision problems, but he did have an episode in December 2013 where his right eye vision went dark for about 20 minutes. (Id.) He denied any additional episodes since then. (Id.) Dr. Shartman noted while Diaz's blood sugar levels were not controlled, his retinopathy was not yet severe and did not require treatment. (Id.) Dr. Shartman observed no obvious ischemia or neovascularization in either eye. (Id.) Dr. Shartman advised Diaz to improve his blood sugar control and return for a retinal examination in a year. (Id.)

         Diaz returned to Dr. Jeet on September 15, 2014, indicating his blood sugars were fluctuating between 15 and 200. (Tr. 390.) Dr. Jeet noted Diaz's symptoms included hypoglycemia unawareness. (Id.) His A1c was 6.4. (Tr. 391.) Dr. Jeet encouraged Diaz to test his blood sugar levels 5-6 times daily. (Tr. 392.)

         On October 6, 2014, Dr. Jeet provided the following statement regarding Diaz:

It is my medical opinion that Francisco Diaz is unable to work at this time and will be unable to work until further notice. He is a type I diabetic that I have been treating since 9/17/12 and due the severity of his diabetes it would be harmful for himself or to others for him to be in a work environment.

(Tr. 346.)[4]

         On December 15, 2014, Dr. Jeet noted Diaz was still only monitoring his blood glucose 1-2 times a day and his blood sugar was fluctuating dramatically. (Tr. 394.) Dr. Jeet again listed hypoglycemia unawareness as a symptom. (Id.) His A1c was 6.9. (Tr. 395.) Diaz returned to Dr. Jeet on January 26, 2015, with an A1c of 7.4 and continuing blood sugar fluctuation. (Tr. 441, 443.)

         On December 23, 2014, Diaz's optometrist, Paul J. Alton, O.D., filled out a form regarding Diaz's ocular history. (Tr. 411 - 413.) He listed Diaz's diagnoses as myopia, astigmatism, and moderate non-proliferative diabetic retinopathy in both eyes. (Tr. 411.) He indicated Diaz's vision was 20/20 for both distance and reading, with best correction. (Id.) Dr. Alton reported Diaz had no visual impairment. (Tr. 413.)

         Diaz returned to Dr. Jeet on January 26, 2015, reporting he was now monitoring his blood glucose 5 times a day, but his blood sugar levels were still fluctuating dramatically. (Tr. 441.)

         Dr. Jeet continued Diaz's insulin regimen. (Tr. 443.) Diaz indicated continued fluctuations on February 23, 2015, and Dr. Jeet listed hypoglycemia unawareness as a symptom. (Tr. 436.) On April 23, 2015, Diaz relayed he was checking his blood glucose 5 times a day and his blood sugar was continuing to fluctuate. (Tr. 431.)

         On May 4, 2015, Diaz visited the emergency room after an episode of low blood sugar. (Tr. 519.) During this episode, Diaz became combative and his blood glucose dropped to a 28. (Id.) The EMS took him to the emergency room, where his hypoglycemia resolved. (Tr. 518, 519.) He did not require any hospitalization.

         Diaz followed up with Dr. Jeet on July 30, 2015, indicating continued fluctuations in his blood sugar levels. (Tr. 425.) Dr. Jeet reviewed Diaz's blood sugar logs and noted one episode of bad hypoglycemia. (Id.) On October 29, 2015, Diaz's blood glucose fluctuations were minimal. (Tr. 419.)

         On November 17, 2015, Diaz returned to Dr. Alton for an eye examination. (Tr. 450.) His vision continued to be 20/20 with best correction. (Id.) His examination revealed “normal health[y] eyes, ” but “clinically significant macular edema retinopathy.” (Tr. 451.) Dr. Alton advised Diaz he would monitor this condition. (Id.)

         Diaz followed up with Dr. Jeet on January 29, 2016, indicating minimal fluctuations in his blood glucose levels. (Tr. 574.) His A1c was 7.4. (Id.) Dr. Jeet listed Diaz's diabetes as uncontrolled and noted Diaz had a recent episode of hypoglycemia and an EMS visit. (Tr. 574, 576.)

         C. State Agency Reports

         1. Mental Impairments

         On October 21, 2014, Diaz underwent a consultative examination with psychologist Charles Loomis, M.Ed.. (Tr. 583-589.) Diaz reported his primary barriers to employment were his diabetes symptoms, including passing out at work and passing out at home and not showing up for work. (Tr. 584.) He relayed his physician suggested he file for social security. (Id.) Diaz reported he had passed out on the job 5-6 times. (Id.) Diaz reported no inpatient mental health treatment, but relayed he had been receiving counseling for depression. (Tr. 586.) He denied the use of any psychotropic medications. (Id.) Upon examination, his memory was average, he had no manifestations of anxiety, and a good fund of general information. (Tr. 587.)

         Based upon this examination, Mr. Loomis diagnosed unspecified depressive disorder, mild. (Tr. 588.) He provided ...


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