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Jesse Vega v. Denial of Benefits Michael Astrue

December 1, 2010


The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge


Plaintiff Jesse Vega, proceeding in forma pauperis, by his attorney, Law Offices of Lawrence D. Rohlfing, 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 (42 U.S.C. § 301 et seq.) (the "Act"). The matter is currently before the Court on the parties' cross-briefs, which were submitted, without oral argument, to the Honorable Sandra M. Snyder, United States Magistrate Judge.*fn1 Following a review of the complete record and applicable law, the Court concludes that the ALJ properly found Plaintiff ineligible for benefits.

I. Administrative Record

A. Procedural History

On June 1, 2003, Plaintiff filed for supplementary security income, alleging disability beginning June 1, 1998.*fn2 AR 68. His claim was initially denied on December 26, 2003, and upon reconsideration, on September 21, 2004. AR 68. On November 15, 2004, Plaintiff filed a timely request for a hearing. AR 68. Plaintiff appeared and testified at a hearing on May 17, 2006.*fn3 AR 565-600. On September 14, 2006, Administrative Law Judge Bert C. Hoffman, Jr., denied Plaintiff's application. AR 68-74. Thereafter, the Appeals Council remanded the matter for further evaluation of Plaintiff's mental impairment. AR 19. An additional hearing took place on March 25, 2008. AR 527-564. On July 24, 2008, the ALJ again denied Plaintiff's application. AR 19-25. The Appeals Council denied review on March 11, 2009. AR 10-12. On April 23, 2009, Plaintiff filed a complaint seeking this Court's review (Doc. 1).

B. Factual Background

In 1972, Plaintiff (born March 3, 1953) graduated from Pershing High School, where he attended special education classes.*fn4 AR 170. Plaintiff has experienced fatigue since 1967, when he was sixteen years old. AR 215. His asthma is exacerbated by lawn mowing, car exhaust, exertion, and heat. AR 215.

In the 1970's and 1980's, Plaintiff was a construction laborer, measuring manholes, digging potholes to locate utility lines and water pipes, and carrying bags of cement. AR 165, 210.

Plaintiff speaks English but cannot read or write it. AR 163. Accordingly, Plaintiff cannot follow written instructions. AR 181. At an agency interview in 2003, Plaintiff demonstrated difficulty with reading, writing, and sitting.*fn5 AR 174. Plaintiff also has occasional difficulty following verbal instructions. AR 181.

At an agency interview in 2001, Plaintiff had difficulty breathing and used an inhaler several times. AR 206. His eyes were yellow, and he appeared jaundiced. AR 206.

In a daily activities questionnaire, Plaintiff reported that asthma limited his daily activities. AR 177. He had difficulty sleeping because of anxiety attacks. AR 177. Because his hands swelled while he slept, he was sometimes unable to care for his personal needs in the morning. AR 177.

Plaintiff cooked his own meals with help from his sister, who brought him prepared meals to heat. AR 178. His sister also shopped for him. AR 178. He was able do household cleaning, laundry, and ironing. AR 178. Plaintiffs sister came three times a week; he spoke with family by phone daily. AR 180.

Plaintiff enjoyed making model cars and restoring antique furniture. AR 178. He also enjoyed watching television alone or with his granddaughter. AR 179. Plaintiff cared fully for his two dogs.

Plaintiff went out of his home twice a week, traveling by foot or bus, usually going to see the doctor. AR 179. Because of his asthma, he experienced shortness of breath on long walks. AR 180.

Plaintiff's anxiety impaired his concentration and led him to be easily annoyed by others. AR 180, 181.

The report of Plaintiff's friend, Henrietta Gonzales,*fn6 largely repeated the information on Plaintiff's daily activities report. AR 188. Gonzales confirmed that Plaintiff had difficulties meeting his personal needs when his hands were swollen. AR 184. She added that he enjoyed working on landscaping projects. AR 185. Many activities aggravated Plaintiff's asthma, rendering him short of breath. AR 187. Some of his medications made him drowsy, and Plaintiff was not always aware that his medications sometimes affected his thinking. AR 187. Gonzales reported that, because Plaintiff had rheumatic fever as a child, he continued to experience aching and swelling of his joints. AR 188.

In 2001, Plaintiff reported experiencing an asthma attack about once a week. AR 190. He had previously been taken to the emergency room for treatment of an asthma attack, and once spent two days ion Fresno Community Hospital. AR 190, 191. Plaintiff has experienced both asthma and repercussions from rheumatic fever since childhood. AR 191.

In response to an agency inquiry on December 24, 2003, Plaintiff stated that his mental disorder was controlled with medication and that he was not being treated by a psychiatrist or psychologist. AR 338.

S. Damania Psychiatric Evaluation (January 9, 2002). Shireen R. Damania, M.D., conducted a psychiatric evaluation of Plaintiff for the agency. AR 242-245. Plaintiff was the sole source of background information and reported that his medical problems included asthma, a heart murmur, and hepatitis A, B, and C. AR 242. His medications included ibuprofen, Xanax, aspirin, and Tylenol with codeine. AR 242. He also took methadone, having ended intravenous drug abuse of heroin and cocaine five or six years earlier. AR 242. Plaintiff initially denied smoking and drinking alcohol, but later disclosed that he occasionally drank beer and had abused alcohol as "a teenager." AR 242-243. Damania described Plaintiff's accounts of his alcohol use as "evasive and guarded." AR 243.

Plaintiff related that in the past, he had been "in and out of jail," but had not been incarcerated since 1991. AR 243. He lived with his mother, his twenty-year-old daughter, and two-year-old granddaughter. AR 243. Plaintiff previously worked in construction but had not been employed since the mid-1980's. AR 243.

Damania diagnosed:

Axis I 1. Alcohol dependence, unspecified, 303.90 in partial remission, by history.

2. Polysubstance abuse, unspecified, 304.80 in remission five years, by history.

3. Adjustment disorder, with anxious mood. 309.24. Axis II Personality disorder, not otherwise specified. 301.9

Axis III 1. hepatitis A, B, and C, by history only.

2. Bronchial asthma, by history.

Axis IV Level of psychosocial stressors -- Mild.


Axis V GAF current -- 55. Highest past year -- 42.

AR 244.

Damania further summarized: The claimant was neatly dressed and groomed, pleasant, appropriate, cooperative, with adequate interpersonal and social skills. No difficulties were noted in memory, either recent or remote, concentration, persistence, and pace. There is no evidence of any emotional lability. He is able to understand, carry out, and remember simple, as well as one and two step job instructions. He is able to respond appropriately to co-workers, supervisors, and the public. He is able to respond appropriately to usual work situations, and deal with changes in a routine work setting, if the instructions are presented simply and undimensionally.

AR 244.

R. Damania Physical Evaluation (January 9, 2002). Plaintiff complained of body pain and night sweats to Rustom Damania, M.D., who prepared a medical evaluation for the agency. AR 247. Again, medical history was acquired solely from Plaintiff's accounts. AR 247. Plaintiff had bronchial asthma, which was treated with a nebulizer. AR 247. He had never been hospitalized for asthma and had one emergency room visit in the past year. AR 247. Plaintiff was not dependent on oxygen or steroids. AR 247. According to laboratory tests reported to ...

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