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Frank Delgado v. Commissioner of Social Security

March 24, 2011


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



Plaintiff Frank Delgado ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying his application for disability benefits pursuant to Title II 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


In November 2006, Plaintiff filed an application for disability benefits, alleging disability as of December 15, 1999. AR 120-122. His application was denied initially and on reconsideration, and Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 105-114. ALJ Bert C. Hoffman, Jr. held a hearing and subsequently issued an order regarding benefits on May 29, 2008, finding Plaintiff was not disabled. AR 17-23, 47-83. Thereafter, on October 2, 2009, the Appeals Council denied review. AR 5-7.

Hearing Testimony

On February 21, 2008, ALJ Hoffman held a hearing in Fresno, California. Plaintiff appeared and testified. He was represented by attorney Sengthiene Bosavanh. AR 47-83.

Plaintiff was born December 10, 1946, and was sixty-one years old at the time of the hearing. He is five feet ten and one-half inches tall, weighs 180 pounds, and is right-handed. AR 50-51. He is presently divorced. AR 50. Plaintiff resides with his twenty-two year old daughter. AR 50, 74.

Plaintiff possesses a valid California driver's license, and drives two to three times per week, less than he used to. AR 51-52. He drives a 2003 GMC Sierra pickup. AR 72. Plaintiff typically drives to the grocery store, doctor's appointments, and the gym. AR 51. On average, Plaintiff goes to the gym two to three times a week, but may workout as many as five days per week if he is "stressed out." AR 51. He uses the treadmill for about a half an hour, and can walk without difficulty. AR 71.

After high school, Plaintiff earned an associates degree in industrial arts from the College of the Sequoias in Visalia. He has not received any additional education or work training beyond the associates degree. Plaintiff is able to read and write English. AR 52.

After the Dairyman's Cooperative became Land O' Lakes, Plaintiff stopped working at the warehouse in Tulare. AR 52-53. He "couldn't take [] the politics or the BS going on all the time." AR 52. He last worked in late December 2004, and is presently retired and receiving a union pension. AR 53-54. As a warehouseman for about twenty-five years, Plaintiff operated a forklift and loaded and unloaded supplies to and from trucks. He typically worked the 2 p.m. to 10 p.m. shift. AR 53-54.

When Land O' Lakes took over, the problems began. Plaintiff explained he "basically worked by" himself and management was "trying to like maybe combine jobs" and he "didn't want to go anywhere else" because he liked working by himself. AR 55. He did not wish to "join the crew." AR 55. Once Plaintiff indicated he was going to quit, he was left alone. AR 56.

When asked by counsel whether he could go back to work at any of his previous positions, Plaintiff replied, "[n]o, no way, no." AR 56. He explained that he has a hard time concentrating and is easily upset. His daughter helps him by letting him know when he is getting "out of control or whatever." AR 56. He has great difficulty dealing with people, and particularly supervisors or bosses. AR 57.

When counsel asked whether Plaintiff had any physical problems that kept him from working, he replied, "[n]o, you know, just a little bit of arthritis here and there . . .." AR 57. In order to treat the arthritis in his back and neck, Plaintiff takes aspirin as advised by his physician. He does not have any problem sitting or standing. AR 57.

Plaintiff gets "depressed sometimes" and finds it hard to leave the house. He tends to spend a lot of time alone, and works in the yard. His psychiatrist recommended he work out at a gym to relieve his stress, and he does so. AR 57. Plaintiff indicated that he had suicidal thoughts many years ago, and has not had such thoughts lately. He had "seven, eight years of counseling" through the Veterans Administration ("VA") that helped. AR 57. Plaintiff becomes very irritable over little things, and it is hard for him to focus and concentrate. AR 58. For example, he has difficulty "filling out forms" because it "gets to" him. AR 58. Asked to describe his difficulty focusing or concentrating by the ALJ, Plaintiff indicated he has to "really concentrate on" the task and he forgets things. AR 58. He feels himself become frustrated and he works to complete the task. He stated he can complete a task, but that "it just takes [him] way too much longer than it should." AR 58. For example, if he is filling out forms, a short form "might be all right," but "page after page" becomes more difficult. AR 59.

When he was asked what "things" he enjoyed, Plaintiff indicated he enjoyed his two children. He does not have any grandchildren. AR 59. He does not watch or participate in sports, but, as previously indicated, he does go to the gym. AR 59. His work out partner is an also retired, former co-worker named John. AR 60-61. Plaintiff works with the free weights. AR 59. When he first started working out at the gym, he could curl seventy-five to eighty pounds, for example, and now he can curl perhaps ninety to one hundred pounds. AR 59-60. The gym is not necessarily something he enjoys; he works out to release his frustration. AR 60.

Plaintiff indicated that he has "a hard time like doing more than one thing." AR 61. He explained that he used to be able to barbeque and mow the lawn at the same time, or do "all kinds of things at the same time." AR 61. Now he can do just one. AR 61. He suffers from post traumatic stress disorder ("PTSD") as a result of a tour in Vietnam in 1966. AR 61. After suppressing the experience, Plaintiff began suffering from nightmares, panic attacks and increased anger. AR 61-62. The news in Iraq reminds him of Vietnam and causes him to become angry. AR 62. The nightmares and panic attacks vary in occurrence.*fn3 In other words, sometimes Plaintiff will have nightmares once or twice a week, but in another week he will have them four or five days in a row. AR 62. With regard to panic attacks, Plaintiff will wake up "all sweaty" and scared. AR 63. When he was asked by the ALJ what he meant by "panic attack," Plaintiff agreed a panic attack is when one wakes suddenly and is startled, not knowing what has happened. AR 64. Then Plaintiff explained that he may know the contents of the dream, meaning he "was getting stabbed or whatever, or [he] was seeing somebody get killed." On some occasions he does not remember the dream. AR 64.

Flashbacks are also a problem. Plaintiff tried to explain a flashback, indicating that "there was a weird smell that was in Vietnam that you don't forget about, and you smell that, and it just, just makes it more, more realistic." It is on those occasions when Plaintiff has a flashback. AR 64.

On further examination by the ALJ, Plaintiff indicated that he had recently returned to Vietnam and stayed for five days following his retirement. He also visited Thailand and China and the entire trip lasted twenty days. He traveled with his son, Frank Jr. AR 65. Plaintiff's son now works in Thailand as a commercial graphic artist. AR 66.

Plaintiff indicated that he is unable to return to work now because he has difficulty sleeping and would not wake up rested. AR 67. He could not handle the changes that occurred at his previous employment, prior to quitting. AR 67. Plaintiff sleeps about five to six hours a night and wakes up often. AR 79. When he was asked why he wakes often, Plaintiff said he did not know, but that it is "just hard" to "continuously sleep." Different things will cause him to wake up, he may be restless. AR 80. He does not typically nap during the day, but does so occasionally. AR 81.

With regard to friendships and socializing with others, Plaintiff indicate he has two Vietnam veteran buddies that he gets together with "once in a while." When they get together they will "shoot the bull [and] drink a couple of beers." AR 67. They may also go to a nearby flea market or out to eat. AR 68. He does not attend church regularly any longer. AR 70. Plaintiff has seven siblings who are "around," but he never sees them. AR 72. He does remain close with his two former brothers-in-law, one of whom lives in Tulare and the other in Delano. When they get together they drink a "couple of beers" and talk. AR 73.

Plaintiff met his girlfriend Linda at a friend's house about a year ago. Typically the two hang out at Linda's house. AR 70. However, he and Linda did recently go on a cruise to the Mexican Riviera. AR 70-71. When asked more specifically about what he and his girlfriend do together, Plaintiff indicated that while neither of them care to go to the movies, they do walk the dogs together. AR 72-74.

Anxiety is also a problem, but Plaintiff indicated that he did not know why the anxiety would come about. Sometimes he is just "sitting there," and he feels it. AR 77. Some days are worse than others. If he becomes frustrated, sometimes it shows. His daughter is "kind of like [his] angel," because she reminds him not to get upset or to take it easy. AR 77-78. She keeps him "straight" three to four times per week. AR 78.

Although he lives with his daughter who has a computer, and who created an email address for him related to his service in Vietnam, Plaintiff rarely uses the computer and has not checked his email in "probably a month." AR 68.

Plaintiff has had his drinking under control for "about five years." He may have a couple of beers, two or three, but no more than that. There is a "lot of diabetes" in his family, although he himself does not have diabetes. AR 69. Plaintiff cooks and watches his diet and glucose levels. AR 72. His daughter also does some cooking. AR 76.

When he was asked to describe a typical day, Plaintiff indicated that he gets up in the morning, fixes himself something to eat, and keeps the house orderly. He does his own laundry, goes to the gym and works out, and returns to the house for a shower. Then he may fix a sandwich and watch the news. AR 78. Plaintiff used to enjoy photography and barbequing but he "hardly" does those things any more. He has lost his passion. AR 78. He finds yard work to be hard and keeps the front yard manicured and is trying to get the back yard under control. He used to love to do yard work, but now it is "kind of hard" and "real hard" because he becomes frustrated. If the engine on the mower will not start, for instance, he becomes frustrated and "it's not a fun thing anymore." AR 78-79.

With regard to prescribed medication, Plaintiff is taking Wellbutrin and indicated the dosage had recently been increased. It does not resolve all of his symptoms, but it does help. He also takes Bupropion "for moods" as it keeps him from getting too anxious. AR 81. While initially Plaintiff would take the medication for a period of time and then discontinue its usage, he no longer does so. AR 81-82.

Medical Record

The entire medical record was reviewed by the Court (AR 203-447), however, only those medical records relevant to the issues on appeal will be addressed below as needed in this opinion.

ALJ's Findings

ALJ Hoffman determined that Plaintiff has not engaged in substantial gainful activity since December 31, 2004, and has the medically determinable impairments of post-traumatic stress disorder and depression. AR 19. However, the ALJ determined that none of the medically determinable impairments or combination of impairments significantly limited Plaintiff's ability to perform basic work-related activities. Thus, ALJ Hoffman found that Plaintiff does not have a severe impairment that met or exceeded one of the listing impairments and therefore is not disabled. AR 17-23.


Congress has provided a limited scope of judicial review of the Commissioner's decision to deny benefits under the Act. In reviewing findings of fact with respect to such determinations, the Court must determine whether the decision of the Commissioner is supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence means "more than a mere scintilla," Richardson v. Perales, 402 U.S. 389, 402 (1971), but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112, 1119, n. 10 (9th Cir. 1975). It is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401. The record as a whole must be considered, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion. Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). In weighing the evidence and making findings, the Commissioner must apply the proper legal standards. E.g., Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). This Court must uphold the ...

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