The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge
ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT
Plaintiff Victor Molina ("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 Dennis L. Beck, United States Magistrate Judge.*fn1
FACTS AND PRIOR PROCEEDINGS*fn2
Plaintiff filed his initial application in February 2003, alleging disability since January 14, 1999, due to back problems, "hearing voices" and depression. AR 135-138, 144-150. Plaintiff's application was denied initially, on reconsideration and after a hearing by an Administrative Law Judge ("ALJ"). AR 47-51, 79-86, 91-94, 651-658. On July 20, 2007, the Appeals Council granted Plaintiff's request for review and remanded the action for a new hearing. AR 87-90.
On January 9, 2008, ALJ Christopher Larsen held a hearing. AR 610-650. He denied benefits on January 25, 2008. AR 15-25. The Appeals Council denied review on June 9, 2008. AR 11-13.
ALJ Larsen held a hearing on January 9, 2008, in Fresno, California. Plaintiff appeared with his attorney, Melissa Proudian. Vocational expert ("VE") Jose Chaparro also appeared and testified. AR 610.
Plaintiff testified that was 40 years old. He has two adult children, but could not remember their ages. Plaintiff lives with his sister. AR 615-616. He has a driver's license and drives when he can, about twice a month. AR 617-618. He completed the eighth grade and can read and write a little, though he cannot read a newspaper because it is hard for him to understand. AR 618-619. He last worked 10 years ago as a dishwasher and stopped when he slipped and fell. AR 620. Prior to that position, Plaintiff worked as a landscaper and baker's helper. AR 621-622.
Plaintiff explained that he could not work because of back pain and the voices that he hears. AR 623. His back pain resulted from the slip and fall injury. The pain shoots down his right leg constantly. AR 632. He has taken two types of medication that lower the pain but don't make it go away completely. AR 624. He rated his pain at an 8 out of 10 when he's taking the medication. AR 625. Plaintiff has not had epidural injections and testified that neither physical therapy nor a TENS unit helped. AR 626. He uses a cane that a doctor prescribed about six years ago. AR 627-628. He also uses a back brace that he was given in 1998, though it doesn't take the pain away. AR 628.
Plaintiff testified that his back pain affects his ability to sit. He thought he could sit for about 15 minutes before needing to shift around and about 30 minutes before needing to get up.
He could stand for about 30 minutes and walk about one block. Plaintiff thought that he could lift about 10 pounds. AR 629-630.
During the day, Plaintiff rests for about two hours. AR 631. He is able to dress himself and bathe, though he has trouble bending over and reaching out at shoulder height. AR 632-633. He does not cook, clean, do laundry or grocery shop, though he testified that he could do these things if he had to. AR 639. He also goes to church. AR 640.
Plaintiff further testified that he hears voices once or twice a week telling him to "kill them." AR 634. He is on medication and receives mental health treatment. AR 635. The medication causes him to shake most of the time and scratch, and also causes constipation and headaches. AR 640-641. Plaintiff believed that the medication helped, though he still hears voices. AR 642. He has difficulty being around people because he feels like someone is always trying to kill him or saying something he doesn't like. AR 643. Plaintiff has suicidal thoughts once or twice a month. AR 643. He hasn't told his doctor how often he has these thoughts because he was never asked. Plaintiff was hospitalized for three days, but he could not remember when. AR 644.
Plaintiff also testified that he is anxious all the time, which affects his ability to concentrate. AR 636. He explained that he loses concentration fast, so that when he reads and tries to understand what he's reading, he can't remember what he just finished reading. AR 636. When the ALJ asked him what type of things he reads since he testified earlier that he had a difficult time reading, he said that he reads to try and focus and help himself. AR 636-637. He is able to concentrate enough to watch a two hour movie. AR 638.
Plaintiff feels depressed most of the day, which causes problems adjusting and understanding. AR 637-638.
For the first hypothetical, the ALJ asked the VE to assume a person of Plaintiff's age, education and work experience. This person could lift and carry 50 pounds occasionally, 25 pounds frequently, stand and walk for six hours and sit for six hours. This person could understand, remember and carry out simple one or two step job instructions. The VE testified that this person could perform Plaintiff's past work as a baker's helper as performed, but not as described by the Dictionary of Occupational Titles. AR 646. He could also perform the positions of weeder-thinner, window cleaner and industrial sweeper-cleaner. AR 646-647.
If this person could not maintain concentration and attention reliably through an eight hour day, he could not perform any work. AR 647.
If this person could not complete an eight hour day or a forty hour work week without interruption from psychologically-based symptoms, this person could not work. AR 647.
If the person in the first hypothetical had to have additional breaks throughout an eight hour day from one to two hours a day, this person could not work. AR 648.
In June 2001, Plaintiff was seen at Fresno County Mental Health and reported that he was frustrated and nervous about his SSI appeal. He had quit school because he couldn't concentrate and thought he was psychotic. AR 346.
In February 2002, a case manager at Fresno County Mental Health recommended that Plaintiff be moved to medication services only because he did not participate in any case management recommendations to attend school or work part-time. He was insistent on winning his SSI appeal that had been denied three times. AR 340.
From March 2002 through June 2003, Plaintiff was seen at University Medical Center for complaints of low back pain. He was taking Vicodin, naproxen and neurontin and was using a cane. AR 314, 316, 318, 320, 326, 372.
Plaintiff continued treating at Fresno County Mental Health through April 2003. Generally, he was anxious and depressed and reported auditory hallucinations. He denied suicidal ideations. His medications were effective and he had no side effects. AR 331-336, 338.
On April 14, 2003, Plaintiff saws Charles House, M.D., for a consultive psychiatric evaluation. Plaintiff complained that he had physical pain, heard voices and suffered from depression. He was unable to concentrate because of the pain and voices. Specifically, Plaintiff reported episodic depression and crying spells. He denied suicidal ideation, though he said that he is sometimes so fatigued that he wished he was not alive. He reported sleeping problems but stated that he's been sleeping significantly better with the use of psychotropics. Plaintiff reported that he began hearing voices in 1999. The voice is a male voice that tells him to kill himself and kill everybody. Plaintiff said he only hears voices when he is alone. In 1999, Plaintiff was hospitalized after a "nervous breakdown," though he could not provide precipitating events. AR 275-276.
Plaintiff indicated that he would have a hard time working because of pain and because the voices keep him from concentrating. Plaintiff reported that he was taking Zoloft and Seroquel, which significantly improved his sleep and partially diluted his alleged auditory hallucinations. AR 277. He reported that during the day, he takes showers, tries to help his mother, prepares a little food and maybe goes out of the house, but most of the day he stays in bed because of pain. AR 277-278.
On examination, Plaintiff was alert, responsive and oriented to person, place and time. Gait was slow and aided by a cane. Eye contact was 35 percent. His attitude was cooperative but somewhat guarded. Plaintiff's speech was productive, though his vocabulary was below average. His thinking was logical and organized. Plaintiff attempted to manipulate the conversation to focus on his back pain and the stress of his psychiatric problems, which are the symptoms that he believes warrant disability status. Plaintiff's mood was depressed. AR 278.
Mental status examination revealed intact cognitive functioning with no evidence of an impairment in concentration, attention or memory. AR 279. He was able to maintain good concentration, persistence and pace. AR 280. Plaintiff's intellectual level was below average without evidence of a cognitive impairment. Auditory hallucinations were acknowledged, but not observed during the consultation. Plaintiff's problem solving skills were impaired as a function of lowered intellectual ...