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Ricardo Briseno v. Commissioner of Social Security

January 22, 2013

RICARDO BRISENO,
PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Stanley A. Boone United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

Plaintiff Ricardo Briseno ("Plaintiff") filed a complaint seeking judicial review of the final decision of the Commissioner of Social Security denying Plaintiff's application for disability insurance benefits (Title II) and Supplemental Security Income disability benefits (Title XVI) under the Social Security Act. (ECF No. 1.) The matter was submitted to the undersigned magistrate judge for findings and recommendations to the District Court. For the reasons set forth below, the undersigned recommends that the ALJ's decision be reversed and that this action be remanded to the ALJ for further proceedings consistent with this opinion.

I. FACTUAL AND PROCEDURAL BACKGROUND*fn1

Plaintiff applied for Supplemental Security Income benefits and disability insurance benefits on December 19, 2007. (AR 139-150.) Plaintiff claimed disability benefits based upon Hepatitis B/C, diabetes, vision problems, and pain and swelling in his hands, left knee and leg, and left shoulder. (AR 169.) Plaintiff's applications for benefits were denied, both initially and after reconsideration. (AR 85-93.) Plaintiff was deemed not to be disabled at any time between the alleged onset date (December 10, 2001) through the date of current determination (AR 78). Plaintiff requested a hearing before an Administrative Law Judge. (AR 96.) Plaintiff appeared and testified at a hearing held before ALJ Timothy S. Snelling (hereinafter referred to as "the ALJ") on February 11, 2010. (AR 13.) The ALJ denied benefits in a decision dated June 11, 2010. (AR 10-29.) The Appeals Council denied Plaintiff's request for review on September 28, 2011. (AR 1-3.)

A. Plaintiff's Hearing Testimony

Plaintiff appeared and testified at two hearings before the ALJ: on October 15, 2009 and February 11, 2010. (AR 13.) Plaintiff appeared without an attorney or other representative. (AR 13.)

Plaintiff testified that he would like to have his mental examination redone because he felt it was not done properly the first time. (AR 67.) Plaintiff further stated that he was "not disagreeing on the part that [he was] not physically handicapped ... [his] problem is emotional torture and stuff I went through and [is] still going through today." (AR 68.) The October 15, 2009 hearing was continued to give Plaintiff an opportunity to find legal counsel. (AR 76-77.)

At the continued hearing on February 11, 2010, Plaintiff was still unrepresented and the hearing went forward. (AR 32-34.) Plaintiff testified that his disability "is mostly emotional and mental," but also included Hepatitis C and diabetes. (AR 38.) Plaintiff also had difficulty finding employment due to his long prison record. (AR 38.)

Plaintiff has been in and out of prison since 1982. (AR 38-39.) Plaintiff was convicted of rape in 1982. (AR 40-42.) Prior to pleading guilty to the rape offense, Plaintiff skipped bail and was a fugitive for approximately six years before he was discovered. (AR 41-42.) While serving time for the rape conviction, Plaintiff received his GED, worked at a bakery, and took auto body educational courses. (AR 42-43.) Plaintiff was paroled in 1984 or 1985. (AR 42.)

In 1988 or 1989, Plaintiff was convicted of being an accessory to a robbery. (AR 43.) Plaintiff received parole in 1993. (AR43.) Plaintiff was also imprisoned at some point in time for possession of cocaine, but the date of the possession conviction is unclear. (AR 44.)

Plaintiff has been attacked by others in his hometown of Empire, California. (AR 45.) On one occasion, Plaintiff was attacked by an individual with a baseball bat. (AR 45.) Plaintiff stated that the attacker accused Plaintiff of being a child molester. (AR 45.) Plaintiff testified that he was not a child molester and that the attacker may have misinterpreted Plaintiff's status as a registered sex offender from his prior rape conviction, which involved a 23-year-old. (AR 45.) Plaintiff believed this attack occurred in 1995 or 1996. (AR 46.)

Plaintiff was attacked by another individual in Empire who sucker punched Plaintiff and knocked some of Plaintiff's teeth out. (AR 46.) Plaintiff believed this attack occurred in 2007 or 2008. (AR 46.) Plaintiff believes that the second attack was also related to his earlier rape conviction and the mis-perception that Plaintiff is a child molester. (AR 47.)

Plaintiff testified that neither attacker was prosecuted. (AR 46-47.) Plaintiff also testified that other people in his town call Plaintiff a child molester and tell him to stay out of town. (AR 47-48.) Plaintiff described another incident where a man approached Plaintiff while Plaintiff was in his truck, called Plaintiff a child molester, and tried to remove Plaintiff from his truck before Plaintiff took off. (AR 57.) Plaintiff testified that he cannot move out of town because he has no means of moving and all his family is in the area, including his son and three grandchildren. (AR 48.)

Plaintiff currently lives with his wife and his parents in a home owned by his parents. (AR 49.) Plaintiff's mother is 78 and Plaintiff's father is 75. (AR 49.) Plaintiff helps take care of his parents and helped take care of an uncle, who was paralyzed on one side, until the uncle passed away. (AR 49.) Plaintiff's father had surgery on one arm and lost the use of that arm. (AR 50.) Plaintiff helps with household chores such as mowing the lawn, fixing things around the house, painting, and other activities that his father is unable to do. (AR 50.) Plaintiff also works on his car or truck and does woodwork. (AR 53.)

Plaintiff was caught with meth sometime around 2009 but avoided serving time by completing addiction treatment. (AR 53-56.) Plaintiff also used meth between 2004 and 2009 on an average of two or three times a month. (AR 56.)

Plaintiff testified that he stays home approximately 75 percent of the time because of fear of being attacked and accused of being a child molester. (AR 57-58.) The other 25 percent of the time outside the house is spent at his grandchildren's sporting events and with his niece's children. (AR 59.) Plaintiff's grandchildren and niece's children live in Turlock. (AR 60.)

Near the end of the hearing, Plaintiff affirmed that the basis of his claim for benefits focused more on the mental and emotional aspects of his disability, as opposed to the physical aspects:

ALJ: And the gist of your claim is, it sounds to me like the gist of your claim is not really physical limitations but mental.

Plaintiff: It's more mental and emotional, yeah.

(AR 58.)

B. Plaintiff's Medical Records

On June 29, 2005, Plaintiff received treatment after he was hit on his left hand with a baseball bat. (AR 249.) Plaintiff reported pain and swelling in his hand and numbness in his fingers. (AR 249.) Soft tissue swelling was reported, but no fracture. (AR 253.)

On March 20, 2006, Plaintiff sought medical treatment after twisting his left ankle after stepping off his porch. (AR 238-248.) Plaintiff's physical exam showed that his calf and ankle were swollen, but with normal range of motion. (AR 238.) X-rays showed no fractures and Plaintiff was diagnosed with a left ankle sprain and left knee effusion. (AR 239.)

On March 20, 2008, Plaintiff received treatment after he was attacked. (AR 256.) Plaintiff reported that his mouth would not stop bleeding, that several teeth were missing or loose, and felt like his jaw may be broken. (AR 256.) Plaintiff eventually decided to leave without further treatment to see his own dentist. (AR 258.)

On May 14, 2008, Plaintiff was examined by a non-treating physician, Dr. Miguel Hernandez. (AR 276.) Dr. Hernandez diagnosed Plaintiff with Hepatitis C, Type-2 Diabetes, vision problems, left shoulder rotator cuff syndrome, history of right elbow injury, mental stress, and depression. (AR 279.) Dr. Hernandez found that Plaintiff ...


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