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Soriano v. Astrue

May 7, 2009

GABRIEL SORIANO, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

BACKGROUND

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

FACTS AND PRIOR PROCEEDINGS*fn2

On or about November 3, 2005, Plaintiff filed an application alleging disability since June 30, 1987, due to back problems. AR 73-75.*fn3 His application was denied initially and on reconsideration, and Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 8-8a, 44. ALJ Patricia Leary Flierl held a hearing on September 28, 2007, and issued an order denying benefits on November 20, 2007. AR 12-21, 190-226. On April 18, 2008, the Appeals Council denied review. AR 6-7a.

Hearing Testimony

ALJ Flierl held a hearing in Fresno, California, on September 28, 2007. Plaintiff appeared, testified, and was represented by Melissa Proudian. Vocational Expert Cheryl R. Chandler also testified at the hearing. AR 190.

Plaintiff testified that he was twenty years old. AR 193. He lives with his mom and four siblings in Fresno. AR 194. He does not have a driver's license, and only recently began to learn how to drive. He believes he completed the ninth grade; he does not have a diploma or GED. AR 195-196. He has never worked because of "all the back problems." AR 196.

Plaintiff was born with spina bifida. He had surgery at two months of age, and again at the age of fifteen years. AR 197. Prior to the latter surgery, he was in pain but believes the pain worsened after surgery. AR 197. The pain is primarily in his lower to mid back area, and he feels it in his stomach as well. AR 198. He feels pain every day and assigned it a 6 on the scale of 1 to 10. AR 198-199. He currently treats the pain with regular Tylenol; he does not take any prescription medications. AR 199, 220.

The pain he feels every day can be aggravated when he tries to clean his room, as an example. He testified that he "can't do nothing [sic] because it will hurt." AR 200. When cleaning his room, if he tries to pick something up, the pain will increase. AR 200.

He cannot sit or stand for long periods of time without needing a break or change of position. AR 200-201. He believes he could walk for about ten minutes before he would need to stop and sit, and his left leg may give out as well. AR 201. He could lift ten pounds. AR 201.

Plaintiff complained that when reaching out at shoulder height his arms "fall asleep a lot" and he thinks the "nerves are messed, like I can't like really - - it gets like stuck, you know." AR 202. He also complained that his left hand cramps up. AR 203.

He admitted that it had been some time since he had seen his treating physician, or Dr. Woodward who treats his back. AR 203-204. Dr. Woodward told him he would have problems with his back for the rest of his life, and that he may require another surgery in the future. AR 203-204.

When asked about a notation in his medical records that he fails to follow through with treatment, Plaintiff responded that the doctors were "just giving me the runaround. Like there's no sense in the things that they're saying. Like I told them like I can't walk, I can't - - they're telling me like, well, walk a mile every day." AR 204-205. Additionally, Plaintiff testified that they ask him about his sexuality and that makes him uncomfortable. AR 205.

Following surgery in 2002, Plaintiff experienced pain in his mid-section. The pain was so great that he cried on occasion. He experiences pain while using the restroom, and this will occur once a week and affect him for the entire day. He will often require the use of the restroom eight or nine times a day, for seven or eight minutes at a time. AR 206-207. He feels like he has to urinate urgently and has little control. He has had accidents in the past, but does not wear protection against accidents because he tries to be as normal as possible. AR 207. He advised Dr. Woodward of this condition, but Dr. Woodward told him she had nothing to do with that, and instead referred him to another doctor. AR 207-208. He did not follow through with that doctor because "they were talking about like my kidneys maybe failing and my liver and . . . I kind of got scared." AR 207-208. The doctor wanted to run some tests, but Plaintiff was afraid to follow through. AR 208, 220.

Plaintiff also complained that his left leg is weaker than his right leg, and that the weaker leg is "real skinny and the other one is like big." AR 208. The left leg will give out "maybe like three times a day." He fell yesterday at his grandmother's home as a result. He has suffered bruising in the past, but does not use a cane. AR 208-209. He also complains that his feet are deformed because his right foot is different than his left foot, his right leg is longer than his left, and he wears two different shoe sizes. AR 210-211. When he walks he has pain in his right leg. AR 211. When asked if he was to wear anything in his shoe on the left side, he replied that he wears slippers because it is easier to do so, versus buying two pairs of shoes to accommodate the different sizes he would need. AR 211-212.

Plaintiff expressed displeasure that his surgical scar was "crazy" whereas others who had undergone the same surgery had a "perfect scar." He believes his scar is a deformity. AR 210.

With regard to depression, Plaintiff indicated that depression affects him every other day. When asked how long the depression lasts, Plaintiff testified that at the PACT unit in 2005 he was told that he was having withdrawal symptoms and would be depressed for thirty minutes and would suddenly snap out of it. AR 212. He was in the PACT unit overnight in 2005 because he tried to commit suicide. AR 212-213. Upon his release, Plaintiff was to see a counselor or therapist, but he did not follow through. He is not currently being treated for depression. AR 213. When he is depressed, he does not want to do anything. He used to be a straight A student with plans. AR 213. Now he is frustrated because his brothers will graduate before him, yet he is older. AR 214. When asked if he had suicidal thoughts, Plaintiff said that he did, but that he knew he would not take any action on those thoughts because he was afraid to do so. AR 215.

Plaintiff testified that he left school because he could not sit in the chairs due to the back pain. He was placed on home study, but then Dr. Woodward indicated he could not do home study anymore and that he could not go back to school, so he "had to drop out." AR 214.

He does not enjoy being around a lot of people, and has always tended to isolate himself. He is self-conscious and does not like people staring at him. AR 214.

Plaintiff testified that he could concentrate on a task for a half hour to an hour before needing to take an hour long break. AR 215-216. During a typical day, Plaintiff will sleep for about "eleven hours." He goes to bed at 1:30 a.m. at the latest, and sleeps until 3 or 4 p.m. the following day. AR 216-217. He gets up and then watches television, lying down. He occasionally helps with cooking or cleaning, but no one asks for his assistance much any more because it is a hassle. Were he to vacuum for ten minutes or so, he would be out of breath and would need to go lie down for about twenty minutes. AR 217-218.

When asked about the diagnosis of gender identity disorder,*fn4 Plaintiff testified that he knows who he is, and that others were the ones confused. He admitted feeling self-conscious about the gender identity issue, and does not like to discuss it. AR 218.

Plaintiff last used marijuana in August 2007. AR 218-219. He has not used methamphetamine since 2005. He recalled having to go to the hospital on more than one occasion as a result of the drug use; he guessed he had overdosed ...


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