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Pio Rodriguez v. Michael J. Astrue

March 12, 2012


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



Plaintiff Pio Rodriguez ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying his application for supplemental security income benefits 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 Gary S. Austin, United States Magistrate Judge.*fn1


Plaintiff filed an application for supplemental security income benefits in November 2006, alleging disability beginning January 1, 2002.*fn3 AR 154-162. Plaintiff's application was denied initially and on reconsideration, and Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 88-101, 103-105. ALJ James P. Berry held a hearing and issued an order denying benefits on November 19, 2009, finding Plaintiff was not disabled. AR 8-16. On May 13, 2010, the Appeals Council denied review. AR 1-3.

Hearing Testimony

ALJ Berry held a hearing on September 2, 2009, in Fresno, California. Plaintiff appeared and testified; he was assisted by non attorney representative Anthony Gonzales. Vocational Expert ("VE") Judith Najarian also testified. AR 17-56.

Plaintiff was born June 7, 1962,*fn4 and was forty-seven years old on the date of the hearing. AR 23. He lives by himself in Fresno*fn5 , and receives general relief and food stamp assistance. AR 25; see also AR 41. Plaintiff dropped out of high school in the tenth grade. He has not received any vocational training. AR 24. Plaintiff does not have a driver's license because it was "taken away" as a result of drunk driving offenses. AR 25. He relies primarily upon his sister for transportation, but will use his bus pass "[o]nce in awhile." AR 26. Plaintiff believes he last worked in 1990 or 1991 delivering auto parts.*fn6 AR 39.

Plaintiff applied for supplemental security income benefits in November 2006, alleging he has been disabled due to liver problems. AR 20-21. The doctors have diagnosed him with hepatitis C and cirrhosis of the liver. AR 22. He understands the condition was caused by his drinking too much alcohol; he quit drinking about four years ago. AR 22-23. Plaintiff is treated for this condition at Community Medical Centers. He was treated a week prior to the hearing for "banding" in his throat, having received the same treatment about six months prior. AR 27-28. The banding treatment is to repair damage in his throat caused by his drinking. As he understands it, without the banding, "the veins in there are ready to bust so it's like they have to like put rubber bands around them to like cut the pieces off that, that are there so that way I won't throw up blood . . .." AR 29. While he does not "throw up" blood, he does spit up blood nearly every day. AR 29. He is to return to Community Medical Center for another banding procedure in two weeks' time. AR 30. His treating physician, Dr. Dominic, told him to "sign up" for a liver transplant. AR 37-38.

Plaintiff feels a burning "ugly feeling" in his stomach. AR 29. He takes Nexium on a daily basis, and understands that the medication acts to coat his stomach as a result of the damage caused by drinking. AR 28.

In addition to his liver problems, Plaintiff suffers from "a lot of pain" and anxiety. AR 24-25. He experiences anxiety a couple times a week and does not like being around others. AR 25; see also AR 50-51. When he was asked to describe what happens when he is around too many other people, Plaintiff replied he "can't breathe" as if someone was choking him. He has reported those symptoms to his physicians and has been prescribed medication for the condition. AR 26. The medications prescribed were identified as Seroquel, Ambien and Paroxetine (or Paxil). AR 27. Plaintiff indicated the medications help a little, but "[n]ot really." AR 27; see also AR 45. Plaintiff has been taking these medications for three or four years. AR 45-46.

Plaintiff obtains treatment for anxiety at Kingsview. He sees a psychiatrist. AR 33. When he was asked whether the staff at Kingsview suggested he return to work or go to school, Plaintiff replied, "they wanted me to, but they, like they know my condition already because of my anxiety and stuff so they, they just ask me how would you feel about going to something like that, and I told them I don't think I could handle that . . .." AR 33-34.

Plaintiff testified that the liver problems, throat problems, and anxiety keep him from working. AR 30. On a typical day, he gets up late. AR 30-31. When asked what he does all day, Plaintiff replied, "[r]eally nothing." AR 31. He explained that he is often in bed or on the couch, and that he "change[s] from place to place" because he cannot stand too long. AR 31. He watches television and sleeps during the day. AR 32. Once in a while Plaintiff will prepare his own meals. AR 31. He does very little housekeeping, and his sister does his laundry. AR 31. He leaves the house when he has an appointment then returns home, otherwise he becomes anxious and his feet swell. AR 31-32. With regard to social activities, Plaintiff indicated he does not go to church on a regular basis, nor does he visit with friends or go to the movies. AR 32-33; see also AR 37.

When asked how long he could walk, Plaintiff indicated he could walk about forty-five minutes at a regular pace before his feet would hurt. AR 34-35. He can sit less than an hour. AR 35; see also 42-43. He can lift two gallons of milk. AR 36. Plaintiff indicated he cannot maintain concentration by stating he is "[n]ot too good at it," and could not provide an estimate as to the period of time he would be able to concentrate on a task. AR 36-37.

The ALJ asked Plaintiff whether he could do a job that required him to sit in a chair for eight hours counting trucks and taking its number; Plaintiff testified he could not because he cannot sit that long. AR 46-47. When he was asked whether he could perform that job if he could sit or stand, Plaintiff replied he still could not do the job. AR 47.

Plaintiff's past work involves work as a temporary laborer in 1996. VE Najarian indicated that such a position might involve stacking and loading items in a warehouse, which would be classified as medium, unskilled work with an SVP*fn7 of two. AR 53.

The VE was asked to consider a hypothetical worker of Plaintiff's age, education and work history, who can lift and carry fifty pounds occasionally and twenty-five pounds frequently, can stand, walk, and sit for six hours each in an eight-hour work day, has the ability to perform simple, repetitive tasks and maintain attention, concentration, persistence and pace, and can relate to and interact with others in a work setting and can adapt to usual changes and adhere to safety rules. AR 54. The VE indicated such an individual could perform Plaintiff's past relevant work as a store laborer. AR 54. The individual could also perform the full range of unskilled, medium, light and sedentary work. AR 54. Three examples of medium work would include: industrial cleaner, DOT*fn8 381.687-018, with approximately 115,181 jobs available in California; machine packager, DOT 920.685-078, with approximately 5,483 jobs available in California; and hand packer, DOT 920.587-018, with approximately 23,514 jobs available in California. National figures are obtained by multiplying these figures by nine. AR 54-55.

In a second hypothetical, the VE was asked to assume the same factors as indicated previously, however, the individual could lift and carry about sixteen pounds maximum, could sit for forty-five minutes total, stand less than one hour and walk thirty minutes total. The individual would require unscheduled breaks throughout the work day and would have difficulty interacting and relating to others, as well as maintaining persistence and pace. AR 55. VE Najarian indicated such an individual could not perform Plaintiff's past work, nor could such an individual perform any work as typically found in the regional or national economy. AR 55.

Medical Record

The entire medical record was reviewed by the Court. AR 234-531. The medical evidence will be referenced below as necessary to the Court's decision.

ALJ's Findings

Using the Social Security Administration's five-step sequential evaluation process, the ALJ determined that Plaintiff did not meet the disability standard. AR 8-16.

More particularly, the ALJ found that Plaintiff had not engaged in substantial gainful activity since November 29, 2006. AR 10. Further, the ALJ identified schizoaffective disorder, cirrhosis, and alcohol dependence as severe impairments. AR 10-11. Nonetheless, the ALJ determined that the severity of the Plaintiff's impairments did not meet or exceed any of the listed impairments. AR 11.

Based on his review of the entire record, the ALJ determined that Plaintiff has the residual functional capacity ("RFC") to perform medium work, and that he can: perform simple repetitive tasks; maintain concentration, persistence and pace; relate to others; and adapt to changes in work setting; and adhere to work safety rules. AR 11-14.

Next, the ALJ determined that Plaintiff could perform his past work as a store laborer. AR 14. Additionally, based upon Plaintiff's age, education, work experience and RFC, the ALJ determined there were other jobs that existed in significant numbers in the national economy that Plaintiff could perform. Specifically, the ALJ found Plaintiff could perform the work of an industrial cleaner, machine tender, and hand packer. AR 14-15.


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, this 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 Commissioner's determination that the claimant is not disabled if the Secretary applied the proper legal standards, and if the Commissioner's findings are supported by substantial evidence. See Sanchez v. Sec'y of Health and Human Serv., 812 F.2d 509, 510 (9th Cir. 1987).


In order to qualify for benefits, a claimant must establish that he is unable to engage in substantial gainful activity due to a medically determinable physical or mental impairment which has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. ยง 1382c (a)(3)(A). A claimant must show that he has a physical or mental impairment of such severity that he is not only unable to do her previous work, but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. Quang Van Han ...

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