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Carlos Gutierrez v. Michael J. Astrue

January 25, 2012

CARLOS GUTIERREZ,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

BACKGROUND

Plaintiff Carlos Gutierrez ("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.

FACTS AND PRIOR PROCEEDINGS*fn1

Plaintiff filed his applications on September 16, 2005, and September 10, 2006, alleging disability since September 1, 2000, due to depression, anxiety and hepatitis C. AR 107-122, 158- 164. After his applications were denied initially and on reconsideration, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 4, 50, 51. ALJ Thomas J. Gaye held hearings on June 1, 2009, and November 5, 2009, and issued a decision denying benefits on November 24, 2009. AR 5-15, 20-49. The Appeals Council denied review on December 10, 2010. AR 1-3.

Hearing Testimony

June 1, 2009 ALJ Gaye held a hearing on June 1, 2009, in Bakersfield, California. Plaintiff appeared with his attorney, Rosemary Abarca. Vocational expert ("VE") Ken Farrow also appeared. AR 39.

Plaintiff testified that he had not used drugs in 10 years. He last drank in 2008 and goes to AA. AR 44-45.*fn2 He explained that he stopped using all drugs and alcohol in 2000, but had a "setback" in 2008 when he had 3 or 4 beers. AR 46. Plaintiff believed that, in addition to his physical problems, he could not work because he could not concentrate, is always scared and hears voices. AR 46.

Plaintiff's attorney explained that his leg impairment is the main impairment, but that there were also mental health issues. The ALJ ended the hearing and indicated that a psychiatrist would assist at the next hearing. AR 48-49.

November 5, 2009

ALJ Gaye held a second hearing on November 5, 2009, in Bakersfield, California. Plaintiff appeared with his attorney, Ms. Abarca. VE Linda Ferra and Medical Expert David Glasheyer, M.D., also appeared and testified. AR 20.

Plaintiff was 44 years old at the time of the hearing. He "absolutely" stopped drinking and testified that he stopped over 2 years ago, as best he could remember. AR 24. The ALJ noted that at the June hearing, there was evidence that Plaintiff was drinking in 2008. Plaintiff indicated that he was not sure of his exact sobriety date, but that he hasn't been drinking. AR 24-25.

Dr. Glasheyer testified that Plaintiff began treatment with Kern County Mental Health in April 22, 2007.*fn3 AR 26. Plaintiff had a drinking problem and was diagnosed with major depressive disorder and personality disorder, not otherwise specified, but these impairments did not meet or equal a listed impairment. AR 27. However, the impairments would lead to limitations in the work place, including a limitation to simple, repetitive tasks, no contact with the public and only non-intense contact with co-workers and supervisors. AR 27. Plaintiff could not be responsible for the safety of others and he should not operate dangerous equipment. AR

27. The last two limitations were based on his substance abuse and would not be necessary if ...


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