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Rodriguez v. Astrue

August 3, 2008


The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge



Plaintiff Gabriel Rodriguez ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for Supplemental Security Income ("SSI") pursuant to Title XVI of the Social Security Act. The matter is currently before the Court on the parties' cross motions for summary judgment, which were submitted, without oral argument, to the Honorable Gary S. Austin, United States Magistrate Judge.*fn1


Plaintiff filed for SSI on May 14, 2004. AR 63-64. He alleged disability since March 15, 2004, due to seizures, asthma and developmental delays. AR 63-64, 71. After being denied both initially and upon reconsideration, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 45-49, 51-57, 58. On April 19, 2006, ALJ Patricia Flierl held a hearing. AR 315-347. ALJ Flierl denied benefits on August 2, 2006. AR 9-18. On October 17, 2006, the Appeals Council denied review. AR 5-8.

Hearing Testimony

On April 19, 2006, ALJ Flierl held a hearing in Fresno, California. AR 315-347.

Plaintiff appeared with his attorney, Melissa Proudian. AR 317.

Plaintiff was born on February 24, 1983, and was 23 at the time of the hearing. AR 317. He is single and does not have any children. AR 319. He lives with his uncle, his uncle's girlfriend and his cousin. AR 319. He does not have a driver's license and does not drive. AR 320-321.

Plaintiff testified that he completed the ninth grade. AR 321. He has not gone back to get a GED or diploma. AR 321. He went to vocational training for medical assisting in 2005, but did not finish because he could not do the math. AR 321-322. He has not tried any other courses. AR 322.

Plaintiff testified that he has worked and has "had about three jobs." AR 322. The longest job he had was working at a Burger King in Germany for two months where he did food prep. AR 322. He only worked two months because he was "moving back to the states." AR 322. He could not do the job at Burger King. AR 323. He was not as fast as everybody else. AR 323. He was not fired or reprimanded. AR 323. He quit. AR 323. If he had not quit, they "probably would have fired" him. AR 323. The boss told him all the time that he better speed up. AR 323. He understood what he was supposed to do at Burger King. AR 323. He could not remember the stuff he was supposed to make, so he would have somebody help him. AR 323. He got in trouble for that, too. AR 323.

Plaintiff testified that he thought he could work. AR 324. There was "a lot of stuff" he was scared to do, like working with money. AR 324. He is not fast at counting money. AR 324. He did not know if he was able to work, but would like to work. AR 324. He did not know if he could do a job eight hours a day, five days week. AR 324.

Plaintiff testified that he also worked at a lumber place stacking wood and at another Burger King. AR 324. He stacked wood for a month or a month and a half. AR 325. He quit and moved to Fresno. AR 325. They did not let him go, he just quit. AR 325. He could not remember if he got in trouble at that job. AR 325. He was pulling apart spools, but could not do it. AR 325. They switched him to stacking wood. AR 326. He could do the stacking. AR 326. The heaviest wood that he had to lift was ten pounds. AR 326. He had to ask questions about where to put the wood. AR 327. His supervisor got upset at him for asking questions because he would have to stop the machine. AR 327.

Plaintiff testified that at the other Burger King he worked he did the same thing as the first Burger King. AR 327. It was hard "keeping up making the sandwiches and remembering how to make them." AR 327.

Plaintiff testified that he has a seizure problem and asthma. AR 327. He previously had a problem with drugs. AR 327. He always had problems at school. AR 327. He could not catch up. AR 327. He could not learn like his other friends. AR 327-328. He was in regular classes and they switched him to "special ed." AR 328. He switched to special ed at the end of ninth grade. AR 328. He stopped going to school because he could not remember a lot of stuff. AR 328. It is hard for him to do homework. AR 328. He was in special ed for only one year. AR 328. He thought he was doing good in special ed. AR 329. He stopped going because he was "just being dumb" and was sneaking out of school. AR 329.

Plaintiff testified that the last time he had a seizure was a year or two before the hearing. AR 329. He does not know what type of seizure he has been diagnosed with. AR 329. The doctors say it is seizure disorder. AR 329-330. He does not know if it is epilepsy. AR 330.

Plaintiff testified that he does not have a doctor and has not had one in a long time because he does not have insurance. AR 330. He now has appointments for the doctor. AR 330. He went to Community Medical last year. AR 330-331. He is on medication and taking it regularly. AR 331. His uncle reminds him because he will forget. AR 331. He is taking Tegretol. AR 331. He did not know if he was having side effects from it, but he cannot sleep. AR 331. He does not pay for the Tegretol. AR 331-332. The MISP insurance pays for it. AR 332.

Plaintiff also thinks that he has depression as a side effect. AR 332. He gets "really, really, really bad anxiety attacks." AR 332. He has not had any treatment for depression. AR 332. He tried to go to Fresno County Mental Health Outpatient within the two years prior to the hearing. AR 332. He told them the problems he was having and they sent him to talk to somebody. AR 333. They looked in the phone book and then he left. AR 333.

Plaintiff testified that he was kept overnight at Community Hospital for depression. AR 333. He was feeling suicidal because his life was going nowhere and it was hard for him to find a job because of his seizures. AR 333. People would not hire him. AR 333.

Plaintiff testified that physical insecurity is a problem for him. AR 334. It is one of the reasons why he will not look for work. AR 334. He would rather avoid work because of physical problems and the possibility of having a seizure. AR 334. He gets weird when people look at him. AR 334. If he cannot do his job right, he gets really nervous. AR 334. He is "afraid to go into an anxiety attack." AR 334. He does not have medication and has not seen a doctor for it. AR 334.

Plaintiff testified that he had a small anxiety attack the day before the hearing. AR 334. He had not seen his friends and was feeling weird seeing them again. AR 334. He got nervous and shaky, but did not want to show that he was nervous. AR 334. When he gets an anxiety attack, he starts to get shaky. AR 334. Sometimes his voice will start shaking and sometimes he will stay quiet so nobody knows. AR 334. He will try to calm himself down. AR 335. ...

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