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Jose Rodriguez v. Carolyn W. Colvin

May 15, 2013


The opinion of the court was delivered by: Suzanne H. Segal United States Magistrate Judge



Jose Rodriguez ("Plaintiff") brings this action seeking to overturn the decision of the Commissioner of the Social Security Administration (hereinafter the "Commissioner" or the "Agency") denying his application for Social Security Disability Insurance benefits ("DIB") and Supplemental Security Income benefits ("SSI"). The parties consented, pursuant to 28 U.S.C. § 636(c), to the jurisdiction of the undersigned United States Magistrate Judge. For the reasons stated below, the decision of the Agency is AFFIRMED.


Plaintiff filed an application for SSI on January 20, 2009. (Administrative Record ("AR") 123-134). He alleged a disability onset date of March 1, 2006. (AR 123). His last-insured date was December 31, 2006. (AR 135). The Agency initially denied this claim on April 8, 2009. (AR 50-51). After Plaintiff requested and received reconsideration of his claim, Plaintiff's claim was denied again on October 8, 2009. (AR 52-53).

On November 17, 2009, Plaintiff filed a written request for a hearing. (AR 87). Plaintiff testified at a hearing held before Administrative Law Judge ("ALJ") Helen E. Hesse on September 15, 2010. (AR 20-49). On January 27, 2010, the ALJ issued a decision denying benefits. (AR 6-19). That same day, Plaintiff requested that the Appeals Council review the ALJ's decision. (AR 1). The Appeals Council denied Plaintiff's request on April 11, 2012. (Id.). Plaintiff then requested judicial review by filing the instant action on June 15, 2012.


Plaintiff, who was forty-five at the time of the ALJ hearing, has a high school education and earned an electronic technician certificate from a trade school. (AR 29, 123, 131, 147, 149). Plaintiff worked as a forklift operator from 1993 until 2005. (AR 149). As discussed below, Plaintiff was incarcerated at various points after his alleged disability onset date. Additionally, Plaintiff used methamphetamine until 2006, when he was first incarcerated. There is no record of methamphetamine use after incarceration, including after Plaintiff was released to a "sober living" halfway house in May 2009. Plaintiff was incarcerated again from September to December 2009 for a parole violation. He currently lives at both his sister's home and his mother's home. Plaintiff reports that he has not abused drugs since his initial incarceration.

During the hearing, Plaintiff stated that he has not worked since 2006, although he noted that he worked "for a couple of months" in "2005 or 2006." (AR 32). Plaintiff stated that he has not received unemployment benefits, state disability benefits, workers' compensation benefits, or general relief benefits since 2006 and that he has had no income since that time. (Id.). According to Plaintiff, he cannot work because he hears voices. (AR 33). Specifically, when the ALJ asked Plaintiff why he is unable to work, Plaintiff stated, "I don't know. I just - I hear voices. I mean, it - I just walk away from the jobs." (Id.). Plaintiff further testified that the voices are sprits telling him "[w]hat people are thinking" such as that he is "stupid." (Id.).

Plaintiff testified that he watches television, takes walks, helps care for his nephews, cleans the pool and garage, mows the lawn, and reads every day. (AR 34). Additionally, according to staff at the facility where Plaintiff resides, Plaintiff "[was] able to do all household chores," "go[] outside daily," and "walk[] and use[] public transportation" but "[could] not legally drive." (AR 174). When Plaintiff lived at the facility, he shopped in stores on a weekly basis and was able to pay bills, count change, handle a savings account, and use a checkbook. (AR 174-75). At that time, Plaintiff's hobbies and interests included "watching TV, walking and going on bus rides," which Plaintiff did each day "with no problem." (AR 175).

Plaintiff also testified that medication helps his condition. (AR 36). Additionally, according to Department of Corrections medical reports, Plaintiff previously stated that medication "quiet[s] the voices" and helps with his concentration and feelings of paranoia. (AR 262).

A. Plaintiff's Medical History

A variety of medical professionals have examined Plaintiff between his alleged disability onset date and when he filed for benefits. The Court summarizes Plaintiff's medical history below.

Plaintiff did not receive professional mental health care treatment until he was incarcerated. Department of Corrections medical records from 2007 indicate that Plaintiff suffered from amphetamine-induced psychotic disorder and amphetamine dependence with hallucinations. (AR 200-34). In the absence of amphetamine use, the Department of Corrections diagnosed Plaintiff with bipolar II disorder, not otherwise specified, and polysubstance dependence with a GAF of 60. (AR 212-14). Department of Corrections psychological evaluation records also state that Plaintiff's fund of information, intellectual functioning, organization and association of thought were all within normal limits. (AR 216). Additionally, a February 14, 2007 report noted that Plaintiff did not suffer from "perception disturbances" and that his hallucinations were "under control of meds [sic]." (AR 214). Upon evaluation by the Department of Corrections in 2009, Plaintiff reported no negative side effects from medication. (AR 289). Department of Corrections medical reports also indicate that, according to Plaintiff, "the first time he heard a voice he had been up for a long time and that he was using methamphetamine at the time. He states that the first time he took medications for this issue was while he was in prison. He states that the medications help with his feelings of paranoia, help him concentration [sic], and quiet the voices." (AR 262).

In March 2009, consultative psychiatrist Sohini Parikh, M.D., diagnosed Plaintiff with mood disorder, N.O.S.; alcohol and drug abuse, in remission; and bipolar disorder with a GAF of 70. (AR 235-41). Dr. Parikh noted that Plaintiff had no impairment in mental functioning. (AR 237-39). Dr. Parikh reported that Plaintiff lived in a sober house, was able to pay bills, manage funds, take care of grooming and hygiene, and get along with others, including close friends. (AR 237). According to Dr. Parikh, Plaintiff attended all sober house meetings and assisted in the kitchen. (Id.) Dr. Parikh also noted that Plaintiff had no difficulty completing household tasks, following simple oral and written instructions, or making decisions. (Id.). Plaintiff was able to focus during the evaluation. (Id.) Further, Dr. Parikh observed that Plaintiff reported hearing voices "but stated that this could be 'his own thoughts'" and denied having visual hallucinations. (AR 238). According to Dr. Parikh, Plaintiff denied "delusions, phobias, or ideas of reference" and displayed "no evidence that [he] was responding to internal stimuli during the . . . evaluation." (AR 238-39). Additionally, Plaintiff was able to perform serial sevens and serial threes and could complete simple calculations. (AR 239).

In April 2009, state agency medical consultant Dr. R. Paxton, M.D., reported that Plaintiff's impairments were nonsevere. (AR 242). Dr. Paxton noted that Plaintiff presented with personality disorders and substance addiction disorders. (Id.) However, Dr. Paxton reported that Plaintiff had only mild restriction of activities of daily living, mild difficulties in maintaining social functioning, mild difficulties in maintaining concentration, and no repeated episodes of decompensation of extended duration. (AR 242-49).

In July 2010, Plaintiff's treating physician, Dr. Ingyu Kim, M.D., reported that Plaintiff had marked limitation in the ability to follow instructions and respond appropriately to criticism from supervisors, maintain attention and concentration for extended periods, perform activities within a schedule, maintain regular attendance and be punctual within customary tolerances, and work in coordination with or proximity to others without being distracted by them. (AR 305). Dr. Kim also reported that Plaintiff had moderate limitation in the ability to interact appropriately with the general public or get along with co-workers or peers without distracting them or exhibiting behavioral extremes. (Id.). Additionally, Dr. Kim noted that Plaintiff would have trouble reacting to changes in a work environment and would have difficulty establishing realistic goals or making plans independently of others. (Id.). Finally, Dr. Kim noted that Plaintiff's impairments would cause him to miss three or more days of work each month. (Id.). However, at the ALJ hearing, medical expert Dr. Craig Rath, M.D., testified that he reviewed Plaintiff's medical records and found no support for Dr. Kim's conclusions. (AR 40). Dr. Rath further testified that although there was evidence that Plaintiff was markedly limited in several areas when he was using drugs, in the absence of methamphetamine use, Plaintiff's impairment was mild. (AR 41).

B. Vocational Expert's Testimony

A vocational expert testified at the 2010 hearing. (AR 45-47). The expert testified that a hypothetical individual of Plaintiff's vocational profile and residual functional capacity ("RFC") would be able to perform all of Plaintiff's past relevant work. (AR 47) ("Yes he could. All of the prior work."). The vocational expert also testified that such a person would not be able to perform Plaintiff's past relevant work if he had to miss more than two days of work a month. (Id.).

C. Lay Witness Testimony

On February 17, 2009, Emanuel Olague, Plaintiff's case manager at his sober house, submitted a third party function report. (AR 171-78). Mr. Olague reported that between waking up and going to bed, Plaintiff "attends required education and group sessions concerning his mental health and addiction issues." (AR 171). According to Mr. Olague, Plaintiff "can not [sic] work outdoors due to medication." (AR 172). Additionally, according to Mr. Olague, Plaintiff "is able to do all household chores." (Id.). Mr. Olague further reported that Plaintiff "goes outside daily" and walks and uses public transportation but "can not [sic] legally drive." (AR 174). The report indicates that Plaintiff shops in stores on a weekly basis, is able to pay bills, count change, handle a savings account, and use a checkbook. (AR 174-75). Plaintiff's hobbies and interests include "watching TV, walking and going on bus rides," which Mr. Olague reported Plaintiff does on a daily basis "with no problem." (AR 175). However, Mr. Olague noted that Plaintiff "has difficulties focusing and staying alert while injoying [sic] [such] activities." (Id.). According to Mr. Olague, ...

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