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Gonzales v. Astrue

October 28, 2010

LORETO G. GONZALES, 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 Loreto G. Gonzales ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying his application for Supplemental Security Income benefits 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

Plaintiff filed his application on May 10, 2005, alleging disability beginning May 1, 2003. AR 26-27, 88. His application was denied initially (AR 73-79) and on reconsideration AR 62-72. Thereafter, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 57. ALJ Stanley R. Hogg, held a hearing on May 14, 2008, and issued an order denying benefits on July 17, 2008. AR 15-25, 28-37. Plaintiff requested a review of the decision. On August 13, 2008, the Appeals Council denied review. AR 5-14.

Hearing Testimony

ALJ Hogg held a hearing on May 14, 2008, in Redding, California. Plaintiff appeared and testified. He was represented by attorney Steven Burniker. AR 219-243.

Plaintiff was thirty two years old on the date of the hearing. AR 222. He completed the Twelfth grade; however, he received special education services throughout high school. AR 223. Plaintiff was placed in special education classes for his entire academic life. Id. He has difficulty reading, writing, and following instructions. AR 223, 229-230. Plaintiff was incarcerated from 2001 to 2003. AR 227-228.

Plaintiff lives in Corning, California. AR 238-239. He is not married, but has two children. Id. He lives with his fiancé, his daughter, his grandparents and his fiancé's grandparents. Id. His other daughter lives with Plaintiff's mother and father, whose residence is unknown. AR 238. AR 26-27.

For fun, Plaintiff spends time with his daughter and plays videos games. AR 239. He does not read or own a computer. AR 223. He spends must of his time at his house because he does not have any friends. AR 239. He does not like interacting with other people in social settings and mainly goes to fast food restaurants when dinning out. AR 239-240. He does not have a driver's license and is dependent on his girlfriend or another acquaintances for transportation. AR 239. He goes grocery shopping with his girlfriend and daughter, but he tries to stay in the car while they shop. AR 240. Plaintiff does yard work, such as cleaning and pulling weeds. AR 232-233, 239. He has also preformed construction work on his house. AR 232

Plaintiff last worked in 2004 as a cook at a Kentucky Fried Chicken ("KFC") for one week. AR 224, 230-232. He was terminated for walking off the job site after he got into an argument with a manager because he was unable understand instructions on how to properly bread the various types of chicken. AR 224, 230-231. Plaintiff has not submitted any applications for work since his termination from KFC. AR 237.

A year prior to working at KFC, Plaintiff worked in a camp processing salmon in Alaska. AR 224-225. He worked there for one month but was terminated for smoking a cigar in a non-smoking area. AR 225. The longest job Plaintiff has held was for five months working construction in an oil field. AR 225-226. His job duties included transporting pumps and parts, and generally assisting other workers as a "helper." AR 226. This type of work was very labor intensive, and required Plaintiff to lift 100 pounds. AR 226, 242. Plaintiff was terminated because he got into an argument with his boss because he did not follow instructions. AR 226.

Plaintiff has stabbing pain in his lower back when he breathes. AR 234. He experiences this two to three times a week, with an episode generally lasting half a day. AR 234-235. He has been treated for back pain and has had it a long time. AR 233. Plaintiff takes Naprosyn to manage his pain, which offers only slight relief. AR 235. On a scale of one to ten, Plaintiff rates his back pain as a ten without medication, and a seven or eight with medication. Id.

Plaintiff can lift one hundred plus pounds if it is required of him. AR 235. He can walk between one half mile and a mile in twenty to twenty-five minutes. Id. He can stand for twenty to twenty-five minutes, but he experiences shooting pain in his heels. AR 236. He has difficulty sitting due to back pain, but he can sit for half-hour to an hour and can bend without much difficulty. AR 236-237.

Dr. Rehman, Plaintiff's primary care physician, sent Plaintiff to a neurologist for his back pain. The neurologist diagnosed Plaintiff with tendonitis. AR 241. Some additional testing was completed but Plaintiff had not received the results at the time of the hearing. Id. He was referred to another specialist by the neurologist. Id.

In addition to his back Pain, Plaintiff suffers from depression and he has anger issues. AR 233, 237. Plaintiff saw a psychiatrist for two sessions. AR 228, 237-238. His treatment was terminated because the psychiatrist did not believe Plaintiff was a candidate for counseling and he suggested Plaintiff try hypnotism. AR 237-238 The psychiatrist did not prescribe any medication. AR 237. However, Plaintiff is currently taking Restoril, which was prescribed by Dr. Rehman. AR 237. Plaintiff had previously taken Seroquel, but Dr. Rehman terminated his medication because it was not effective and was causing liver damage. Id.

Plaintiff indicated he had an appointment in a few months to see another psychiatrist so that his medication could be evaluated. AR 242-243. The ALJ informed both Plaintiff and counsel that he would not be able to hold the record open that long, at which time counsel responded, "[r]ight." AR 243.

Medical Record

The entire medical record was reviewed by the Court. Those records relevant to the issues on appeal are summarized below.

Sid Cormier, Ph.D.

On July 12, 2005, Clinical Psychologist Sid Cormier Ph.D., preformed a consultative examination at the request of Department of Social Security to determine Plaintiff's eligibility for disability benefits. AR 154-163.

Dr. Cormier determined Plaintiff was "completely functionally illiterate" and that Plaintiff's girlfriend had to assist him in completing the history questionnaire. Although Plaintiff denied being under the influence of mind altering drugs or alcohol at the time of the examination, he admitted to smoking marijuana daily. While no physical discomfort was obvious, Dr. Cormier observed obvious psychological distress, and Plaintiff demonstrated a combination of verbal and nonverbal behavior consistent with a mixture of hostility, depression and moderate anxiety. Plaintiff was credible but needed reminders to exert his best efforts while testing. Plaintiff described his mood as typically angry because he usually feels mad at the world. Further, he reported difficulty falling and staying a sleep. Based on Plaintiff's own personal description and behavior, Dr. Cormier indicated that Plaintiff personified a moderately low energy level. However, Plaintiff did not experience any hallucinations or delusions. Dr. Cormier's diagnosed Plaintiff with cannabis abuse, and possibly an unspecified depressive disorder with clear indications of a reading and writing disorder. AR 154-155.

During testing, Plaintiff indicated that he is capable of showering and dressing himself, shopping, preparing meals, and providing some care for his living situation. However, he did not have a driver's license because he lost it for excessive speeding. He also does not pay any bills. Plaintiff described spending a typical day watching television and going outside. AR 155.

Dr. Cormier opined that Plaintiff was marginally alert, but that he was grossly oriented to person, place, time, and situation, and his ability of perception was a "bit patchy." Dr. Cormier could not rule out the possibility that Plaintiff was under the residual effects of long term cannabis abuse. Plaintiff's thought process flowed at a slower lethargic fashion, which was consistent with mild psychomotor retardation. Plaintiff's mood appeared to be a mixture of depression, anger, anxiety, and a "guarded affective quality." AR 156. His concentration capacity was significantly impaired. Plaintiff's abstract thinking ability was below average. Both his long-term and working memory appeared to be significantly impaired. Plaintiff's vocabulary was borderline and arithmetic reasoning skills were marginal. However, Plaintiff's judgment was basically intact and he seemed to have a fundamental grasp of the consequences of his own and other people's behavior. Based on Plaintiff's vocabulary, word usage, recorded history, and ability to conceptualize, Dr. Cormier indicated that Plaintiff had borderline intellectual functioning. AR 156.

On the Wechlser Adult Intelligence Scale III, Plaintiff's verbal IQ score was 71, Performance IQ score was 76, and his full-scale score was 71. Dr. Cormier found that Plaintiff's current level of functioning was within the lower end of the borderline range, which equaled or surpassed the performance of only three percent of people his age that took the test. AR 157. On the Wechsler Memory Scale, Plaintiff was found to be below average in immediate and delayed memory functioning and borderline in working memory functioning. Plaintiff's Global Assessment of Functioning score was 55. Further, Plaintiff would likely have some significant impairment in complex memory processing. AR 157-158.

Formal memory testing indicated that Plaintiff is probably capable of accepting and remembering simple instructions, but not complex instructions. Plaintiff also demonstrated obvious impairments regarding sustained concentration, persistence, and pace. His ability to complete a normal workday or workweek without interruption may be significantly impaired at times because of his borderline intellectual functioning, learning disabilities, and cannabis induced anxiety. Plaintiff's history and response to stress of the examination suggested that he has a moderate impairment regarding his ability to deal with the typical stress in a competitive work setting. He has significant impairments with his ability to interact with co-workers and the general public, and would likely need an additional or special supervisor. Although Plaintiff's borderline intellectual functioning and cannabis related problems may impair his ability to preform complex or detailed tasks, it probably would not impair his ability to perform repetitive tasks. Additionally, Plaintiff did not have a psychological condition that would impair his ability to maintain regular attendance or perform simplistic work activities. AR 159.

Dr. Cormier concluded that Plaintiff is marginally functional outside of a moderately supportive situation, but that his functional capacity may significantly improve if he were to discontinue his ongoing cannabis abuse and seek professional psychiatric and psychological assistance. AR 159.

Rajeswari Kumar, M.D.

On July 16, 2005, state consultative examiner Rajeswari Kumar M.D., a board-certified physician in rehabilitation and pain medicine, preformed a complete orthopedic evaluation. Plaintiff's chief complaints were a history of left shoulder pain, low back pain, knee pain, and chest pain. Dr. Kumar found no precipitating trauma that would result in Plaintiff's pain. Id. Plaintiff reported he was seen by a chiropractor in 1995 and 1996 when he had x-rays taken and was diagnosed with a deformity of the spine.*fn3 Plaintiff denied having any surgery or other treatment, and indicated that he does not take any medication for pain relief.Plaintiff described the pain in his lower back as constant and radiating, and the pain in his left knee and shoulder as constant. Plaintiff also complained of intermittent numbness in his left leg. AR 148-152.

The physical examination revealed Plaintiff's range of motion in his shoulders, elbows, wrists, hands, hips, knees, and ankles were all normal, with no tenderness or swelling. Plaintiff's neurologic examination showed normal muscle strength and normal sensation in his upper and lower extremities. Dr. Kumar was unable to ascertain evidence of scoliosis or other spinal deformity and opined that there were no ...


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