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Ernest Perez v. Michael J. Astrue

November 10, 2011


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



Plaintiff Ernest Perez ("Plaintiff") 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. 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.


On January 17, 2008, Plaintiff filed an application for SSI. AR 132-38. He alleged disability since January 4, 2008, due to nervousness, depression, talking to self, and pains in heart. AR 153. After being denied initially and on reconsideration, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 84-87, 91-95, 97-98. On March 3, 2010, ALJ Patricia Leary Flierl held a hearing. AR 23-54. ALJ Flierl denied benefits on March 23, 2010. AR 7-17. The Appeals Council denied Plaintiff's request for review on January 3, 2011. AR 1-3.

Hearing Testimony ALJ Flierl held a hearing on March 3, 2010, in Fresno, California. AR 23. Plaintiff appeared with his attorney, Melissa Proudian. Vocational expert Jose Chaparro also appeared and testified. AR 25.

Plaintiff was born in 1961 and finished the tenth grade. He has never worked and has never lived on his own. He claimed that he could not work at a job eight hours a day, five days week because he "can't think right." AR 26-28.

Plaintiff testified to problems with depression. He cries for no reason about five days a week. AR 28-29. He gets sad about his dad, who died after falling down the stairs. Because of his depression, he can't think right and he can't comprehend. AR 29-30. He can watch TV for two to three hours without taking a break, but can only look at a book for 10-15 minutes and pay attention for 5 minutes. It is hard for him to understand things. AR 30-31.

Plaintiff also testified to problems sleeping and hearing voices five days a week. He takes Seroquel, which calms him down and helps him sleep. During the day, he watches TV for about three hours. For the rest of the day, he visits family and friends outside the house. AR 32-34.

Plaintiff does not have suicidal thoughts. When depressed, he can't eat and he cries about three or four times a week. It helps to talk to somebody. AR 35.

Plaintiff testified that he sees Dr. Collado at Mental Health every two months for medication. He tells Dr. Collado that he is still hearing voices and is still paranoid. He feels like people are following him six to seven times a month. He doesn't know what triggers it. He takes medication, but still feels like that. AR 36-37.

Plaintiff testified that he dresses himself and takes showers, but doesn't make himself anything to eat. He is never by himself as he would be scared because of the voices. AR 37-38.

Plaintiff reported that he last had alcohol two years before the hearing. He did not know why someone at Mental Health said he was drinking. He is a borderline diabetic and has glucose. Two years ago, he was not drinking on a regular basis. He was never a heavy drinker. AR 38-39.

Plaintiff also stated that he has problems crossing at the cross light because he feels that everybody's looking at him. He also has family or friends go with him to the store. He can't be around a lot of people because it feels uncomfortable. If there is a long line at the store, he will go outside and wait. He also doesn't like to pick up the phone or open letters. AR 39-40.

Plaintiff testified that he was in prison four times for selling heroin, but he didn't think he was using heroin. Plaintiff explained that he sold heroin because he couldn't hold or handle a job, but he also never applied for a job and never worked. Plaintiff would have friends pick up and sell the heroin. He was the "middleman." His friends never got arrested. AR 42-43.

Plaintiff testified that he used crank in the 90s. He last used it in 1996. He started selling heroin in 1986. He last sold it in 2005. He is not using drugs anymore. AR 45-46.

When asked if he had physical problems, Plaintiff testified that he was in a car accident when he was 10 and he has a scar on his head. He believes the car accident is the cause of the paranoia and the voices. Plaintiff started hearing voices about eight years ago, when he was age 40. He didn't hear voices in his 20s and he was selling heroin at age 25. AR 49-51. For the first hypothetical, the ALJ asked the VE to assume an individual with no exertional limitations who is limited to simple and repetitive tasks and no interaction with the public. The VE testified that there would be jobs available at the unskilled, heavy, medium, light and sedentary levels, which were consistent with the DOT. AR 52-53.

For the second hypothetical, the ALJ asked the VE to assume an individual with a fair ability to carry out one-to-two-step job instructions, a poor ability to relate appropriately to supervisors and co-workers, a poor ability to deal with the public, a poor ability to maintain concentration and attention in two-hour increments and a poor ability to withstand the stress and pressure of a workday. The VE testified that there were no jobs for this individual. AR Medical Record*fn2

On November 29, 2006, while in the custody of the California Department of Corrections ("CDC"), Plaintiff was diagnosed with depression. AR 233.

On February 1, 2007, Plaintiff reported anxiety and an auditory hallucination. On exam, Plaintiff was anxious with a constricted affect. The CDC psychiatrist prescribed Vistoril. Plaintiff ...

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