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Robert A. Person v. Michael J. Astrue

June 3, 2011


The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge



Plaintiff Robert A. Person ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his applications for disability insurance benefits and supplemental security income pursuant to Titles II and 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.


Plaintiff filed his applications on December 8, 2006, alleging disability since May 21, 2005, due to HIV, hepatitis, diabetes and high blood pressure. AR 124-128, 129-131, 143-149.

After his applications were denied initially and on reconsideration, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 72-73, 79, 100. ALJ Michael Kopicki held a hearing on January 8, 2009, and issued a decision denying benefits on May 18, 2009. AR 18-29, 30-71. The Appeals Council denied review on June 18, 2010. AR 1-5.

Hearing Testimony

ALJ Kopicki held a hearing on January 8, 2009, in Fresno, California. Plaintiff appeared with his attorney, Steven Gonzales. Vocational expert ("VE") Judith Najarian also appeared and testified. AR 30.

Plaintiff testified that he lives in an apartment with his brother. AR 33. He is divorced and has grown children. AR 35. Plaintiff's current source of income was general relief and food stamps. AR 34. Plaintiff was 51 years old at the time of the hearing. He was five feet, eight inches tall and weighed 125 pounds. AR 35.

Plaintiff completed the twelfth grade and did not have any vocational training. He was in the Army for a total of six years and received an honorable discharge. AR 35-36.

Plaintiff testified that he had not worked since June 2005. AR 37. He stopped working because the new owner of the trailer park where he as a maintenance man fired him. AR 36. Prior to that, he was a laborer at an apple processing plant. AR 37.

Plaintiff explained that he could not work anymore because he is HIV positive, which makes him constantly tired and unable to get out of bed. He said he spends twenty hours a day in bed. His diabetes also causes him to urinate every twenty minutes and his HIV medicine causes diarrhea. AR 41-42. Both HIV and diabetes make him tired. AR 44. Plaintiff was diagnosed with HIV in May 2005*fn2 after being admitted to Saint Agnes Hospital. The treatment notes reference delirium tremens, septic shock, malnutrition, chemical dependency and alcohol withdrawal. Plaintiff was also positive for meth. Plaintiff testified that he does not drink, so he does not understand why the notes say "alcohol withdrawal." AR 41-42.

Plaintiff takes two different kinds of insulin for his diabetes. He follows the instructions for taking his insulin, but it is hard to follow the recommended diet because he doesn't have the finances to buy the special foods he needs. AR 45.

The ALJ asked Plaintiff to respond to a note in the Veterans' Administration ("VA") treatment records dated August 2008, which state that Plaintiff was not following his diet because he "didn't care about the diabetes." AR 45. Plaintiff explained that he did care about his diabetes and meant that he did not have the resources for the proper food or to ride to the hospital on the bus. He said that he does care about his diabetes, as evidenced by his treatment record. AR 45. He checks his blood sugar two to four times per day. AR 46.

Plaintiff also has hepatitis C and treatment is on "standby." AR 46. An ultrasound of his liver revealed gallstones, which need to be addressed. AR 46.

An x-ray last year diagnosed emphysema, but he does not receive treatment for it. AR 47. The emphysema causes him to get short of breath and have a coughing spell when he walks and lifts anything. Plaintiff is still smoking, though he is trying hard to quit. AR 47. He smokes a "couple" cigarettes a day. AR 67. The ALJ asked Plaintiff about a note in the treatment record indicating that Plaintiff was offered, but refused, smoking cessation classes. Plaintiff testified that he did get the "patches and everything." He states that he does not know why the record says he didn't go, because he did go after having Dr. Wong set it up. AR 47-48.

Plaintiff also testified that he is depressed and takes medication. AR 49.

The ALJ also wanted to allow Plaintiff an opportunity to respond to issues of drug use. Plaintiff testified that he used methamphetamine until 2006, when he was "diagnosed with all this" and was "scared to death." AR 49. The ALJ read Plaintiff a treatment note from October 2006 that indicated that Plaintiff continued to use meth when he had money to buy it. The ALJ also read a note from June 20, 2007, that indicates "ongoing use of meth, not willing to give it up as he had three strikes against him already." AR 49-50. Plaintiff explained that he no longer sees things this way because he thinks he is going to die soon and doesn't do drugs anymore. AR 50. He states that he made those comments to be a "smart ass" and that he was joking with the doctors because they were joking about his drug use. AR 50.

When asked directly, Plaintiff didn't know when he last used meth, but said it was in 2007. He couldn't remember when in 2007 because his memory was not good. AR 51.

Plaintiff testified that he stays in bed all day. He gets the mail and comes back. Plaintiff does the shopping when he gets his food stamps and his brother takes him to the store. He can't do all the shopping at once, however. AR 52. Plaintiff has an expired driver's license and does not drive. He does laundry once a month. He watches television about eight or nine hours a day and sleeps for the rest of the day. AR 53.

Plaintiff thought that he could stand for thirty minutes to one hour in an eight hour day. He said that he cannot walk because he walked to the neighborhood store six blocks away and was out of breath and had issues with his legs. He thought that he could lift ten pounds, at most, and only if he didn't have to carry it anywhere. AR 55. He could sit for two or three hours out of an eight hour day, but would need to get up often to use the restroom. AR 59.

When questioned by his attorney, Plaintiff testified that he has talked to his doctors in the past about returning to work but in 2007, Dr. Tayloe said he could not work. AR 56-57. Dr. Tayloe also certified that Plaintiff could not work for the General Relief program in September 2008 and in connection with child support proceedings against him. AR 58-59.

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/or carry twenty pounds occasionally, ten pounds frequently, stand and/or walk for six hours in an eight hour day and sit for six hours in an eight hour day. This person should avoid concentrated exposure to fumes, gases or odors. The VE testified that this person could not perform Plaintiff's past work ...

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