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Declements v. Colvin

United States District Court, W.D. Washington, Tacoma

January 8, 2015

CAROLYN W. COLVIN, Acting Commissioner of the Social Security Administration, Defendant.


J. RICHARD CREATURA, Magistrate Judge.

This Court has jurisdiction pursuant to 28 U.S.C. § 636(c), Fed.R.Civ.P. 73 and Local Magistrate Judge Rule MJR 13 ( see also Notice of Initial Assignment to a U.S. Magistrate Judge and Consent Form, ECF No. 5; Consent to Proceed Before a United States Magistrate Judge, ECF No. 6). This matter has been fully briefed ( see ECF Nos. 20, 24, 25).

After considering and reviewing the record, the Court concludes that the ALJ's finding that plaintiff's hernia was not a severe impairment prior to May 27, 2002 is based on substantial evidence in the record as a whole. Prior to October, 2001, plaintiff had indicated that he was suffering from left flank pain, which was diagnosed as related to a 1mm stone in his bladder. In October, 2001, plaintiff indicated that he had been experiencing abdominal pain for a couple of weeks and was diagnosed with a right inguinal hernia. Plaintiff sought medical services again following his release from incarceration in January, 2002 and was given Vicodin for pain. Although plaintiff was told on January 16, 2002 to follow up with another doctor as soon as possible, plaintiff does not appear to have sought medical services for almost three months, and was referred for a medical examination following his application for welfare benefits in April, 2002. The relevant period of time for this appeal is from January 16, 2002, his amended alleged onset date, until his date last insured of March 31, 2002. As plaintiff was not seeking medical treatment during this time, and because plaintiff's treatment record does not demonstrate the existence of a severe impairment expected to last at least twelve months before his date last insured of March 31, 2002, the ALJ's finding that plaintiff did not suffer from a severe impairment of a hernia prior to March 31, 2002 is based on substantial evidence in the record as a whole.

Therefore, this matter is affirmed pursuant to sentence four of 42 U.S.C. § 405(g).


Plaintiff, MARK J. DECLEMENTS, was born in 1959 and was 42 years old on the amended alleged date of disability onset of January 16, 2002 ( see AR. 33, 74-76). Plaintiff has a GED ( see AR. 1200). Plaintiff last worked at North Coast Yachts cleaning up and doing general labor (AR. 36). He testified that he left this job because he "was having a hard time just functioning and as far as life after being released from prison; [] didn't really have anywhere to go; [] never had taken care of [himself] before like that; and [] just, things were getting kind of overwhelming" (AR. 36-37). He also testified that he had difficulties with depression and confusion at that job ( see AR. 37). He testified that he was fired, and also that "it was kind of a mutual agreement" ( see AR. 52).

It appears that plaintiff was in prison for a drug related offense ( see AR. 39, 46-47). Plaintiff testified that he used methamphetamine and heroin each about ten times after he left prison, and then he entered rehabilitation just before he was shot in May, 2002 (AR. 37-38). Plaintiff testified at his May 1, 2006 hearing that he had one drug relapse after his rehabilitation (AR. 39). However, at his August 23, 2010 hearing, plaintiff indicated that he had another relapse with methamphetamine in 2007 or 2008 for a short period of time, and was incarcerated for eight months in 2008 (AR. 1208, 1211).

Plaintiff could not remember when he went to the emergency room and was diagnosed with hernias, but he recalled that one hernia was repaired after he was shot (AR. 41). However, he testified that the repair was not successful as "too much bacteria was dumped into it" after he was shot through the colon ( see id. ). Plaintiff's testicular hernia was not repaired during the time of his gunshot surgery, and "then when [he] got out, it strangulated" (AR. 42). He had "an old type repair" on his testicular hernia, without a screen or mesh, although he testified that "it's been pretty good" ( see id. ). At his 2010 hearing, plaintiff testified that he had three hernia surgeries total ( see AR. 1214).

According to the ALJ in the most recent written decision, plaintiff "had the following medically determinable impairments: Hepatitis C, Herniated Discs, and Hernia (20 CFR 404.1521 et seq. and 416.921 et seq. )" (AR. 744).

At the time of the 2010 hearing, plaintiff had been living with a friend with whom he had been staying for a couple of years ( see AR. 1212-13).


Plaintiff's last hearing was held before Administrative Law Judge Gary Elliott ("the ALJ") on March 20, 2013 (AR. 741-49). This case has a very complicated procedural history. The ALJ outlined the history as follows:

On March 31, 2003 the claimant protectively filed an application for Title II disability insurance benefits [DIB] and Title XVI supplemental security income [SSI]. Initially the Commissioner granted the application for supplemental security income finding the claimant disabled as of March 2003. The Title II [DIB] claim was denied initially on August 31, 2003 and again upon reconsideration on January 27, 2004. The claimant then filed a request for a hearing before an Administrative Law Judge and a hearing was held on May 1, 2006. A decision was issued on July 28, 2006 which found that the claimant did not become disabled until May 27, 2002 [after his March, 2002 date last insured for DIB]. The claimant requested review of that decision which was upheld by the Appeals Council and the United States District Court for the Western District of Washington. The claimant then appealed to the United States Court of Appeals for the Ninth Circuit which remanded the decision back to the Commissioner on February 17, 2010 [for a hearing with a medical expert]. An Administrative Law Judge held a hearing on August 23, 2010 and a supplemental hearing on March 1, 2011. A decision denying [DIB] benefits was issued on April 21, 2011. The Appeals Council issued an order remanding that decision to an Administrative Law Judge on August 20, 2012. The claimant appeared and testified at a hearing held on March 20, 2013, in Tacoma, WA.

(AR. 741). After the March, 2013 hearing, the ALJ issued a written decision on April 11, 2013, which is the subject of this appeal ...

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