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Perez v. Colvin

United States District Court, E.D. California

March 25, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


BARBARA A. McAULIFFE, District Judge.


Plaintiff David 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.[1] The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to Magistrate Judge Barbara A. McAuliffe. The Court finds the decision of the Administrative Law Judge ("ALJ") to be supported by substantial evidence in the record as a whole and based upon proper legal standards. Accordingly, this Court affirms the agency's determination to deny benefits.


On November 13, 2006, Plaintiff filed a prior application for supplemental security income and disability insurance benefits. AR 10.[2] Plaintiff's applications were denied initially and on reconsideration. AR 86, 94. Subsequently, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). ALJ Daniel Heely held a hearing on December 9, 2008 and issued an order denying benefits on January 6, 2009. AR 55.

On March 17, 2009, Plaintiff again applied for supplemental security income, alleging disability beginning January 6, 2009. AR 148. The Commissioner initially denied the claims on October 26, 2009, and upon reconsideration, on March 16, 2010. AR 86, 94. Plaintiff filed a timely request for a hearing. On February 22, 2011, Plaintiff, represented by Gina Fazio, testified at the hearing. AR 28. On April 4, 2011, ALJ Heely again denied Plaintiff's application. AR 7. On October 25, 2012, the Appeals Council denied review. AR 1. This appeal followed.

Hearing Testimony

The ALJ held a hearing on February 22, 2011, in Stockton, California. AR 28. Plaintiff appeared and testified. AR 28. He was represented by attorney Gina Fazio. AR 28. Impartial Vocational Expert ("VE") George Meyers also testified. AR 29.

Plaintiff was born on March 2, 1963 and was 47 years old at the time of the hearing. AR 241. He dropped out of high school in the ninth grade and he has no vocational training. AR 32. With respect to daily activities, Plaintiff stated that he was homeless and lives in a van when not staying with friends and family. AR 38. Plaintiff rides his bike for about one to two hours a day as his primary form of transportation and he spends the majority of his day collecting recyclables or lying in the park. AR 32, 40. Plaintiff also travels to a church and the Salvation Army for meals, and he does his laundry at his mother's home. AR 39, 42. He last worked plastering stucco in 2004. AR 33.

Plaintiff suffers from back and shoulder pain, but his chief complaints concern his mental impairments. At the hearing, Plaintiff explained that he is unable to work because he regularly hears electrical, wind, motor, and tire sounds in his head. AR 35, 44. The sounds are constant and they make it difficult for Plaintiff to go to sleep. AR 44. Plaintiff also does not like being around other people. AR 43. Plaintiff was given a prescription for his auditory hallucinations, but he has since stopped taking them because he believes they did not work. AR 36.

Thereafter, the ALJ elicited testimony of the vocational expert ("VE") George Meyers. AR 48. The VE testified that Plaintiff previously worked in plaster, which the VE classified as heavy. AR 47-48.

The ALJ asked the VE several hypothetical questions, contemplating an individual of the same age, education, and work background as Plaintiff. AR 48. First, the vocational expert was asked to assume an individual that could sit, stand, and walk for six hours in an eight-hour workday; lift and carry less than ten pounds occasionally; could never climb, balance, stoop, kneel, crouch, crawl, or work around hazards; would require numerous unscheduled rest breaks; and would not have the concentration to perform simple routine tasks. AR 48. The vocational expert testified that there were no jobs which could be performed with those limitations. AR 48.

In a second hypothetical question, the ALJ asked the VE to consider the same individual except that this person could sit, stand, or walk for 6 hours in an 8-hour workday, and this individual could lift and carry fifty pounds occasionally and twenty-five pounds frequently; and could perform simple, routine tasks. AR 48-49. The VE testified that a person with such limitations could perform other jobs in the national economy such as industrial cleaner, warehouse worker, and hand packer. AR 49.

Finally, Plaintiff's attorney questioned the vocational expert regarding an individual that had moderate impairments in the ability to understand and remember detailed instructions; to maintain attention and concentration; and to interact with co-workers; and had moderate to marked impairments in the ability to accept instructions from supervisors; to complete a normal workday/workweek; and to deal with changes in the work setting. AR 51. The vocational expert opined that an individual with these limitations would be unemployable. AR 51-52.

Relevant Medical Evidence

The entire medical record was reviewed by the Court and the relevant medical evidence is summarized as follows. AR 159-320. Plaintiff alleged an inability to work beginning January 2009 due to depression, anxiety, and bipolar disorder. AR 168. He also alleged an inability to work due to back and shoulder problems. AR 33-34, 42, 46. After his second SSI application, Plaintiff began reporting experiencing auditory hallucinations, and claimed that medication did not effectively control his mental symptoms. AR 35-36, 44.

With regard to his back and shoulder pain, Plaintiff received infrequent care for these physical impairments. Plaintiff's first date of documented treatment for physical complaints was on November 20, 2007. AR 316. Plaintiff complained of right shoulder pain, which his primary care physician, Glenn Villanueva, M.D., suspected was osteoarthritis. AR 316. When Plaintiff returned to Dr. Villanueva on March 3, 2008 seeking a release to perform community service in connection with his probation, Dr. Villanueva opined that Plaintiff had "no physical restrictions." AR 236.

In April 2008, Plaintiff reported right arm and back pain but did not seek back or shoulder treatment again until May 2009. AR 233, 235. Plaintiff reportedly fell off his bike three months prior, separating his left shoulder's AC joint. AR 233. An x-ray of Plaintiff's left shoulder revealed no fracture, mild degenerative changes, and suspect evidence of an old AC separation. AR 230.

In August and September 2009, Dr. Villanueva noted that Plaintiff reported pain in connection with an "old/chronic" left shoulder separation and prescribed him pain medications (Naprosyn and Ultram). AR 285-286. After taking these medications, Plaintiff reported soon after that the medications did not help to reduce his left shoulder pain. AR 268, 285. Plaintiff's physician observed there was decreased range of motion and deformity in Plaintiff's shoulder, prescribed him Vicodin, and referred him to an orthopedist. AR 268. Thereafter, despite meeting with Dr. Villanueva for treatment of mental symptoms, Plaintiff reported no further physical symptoms involving his shoulder. AR 267, 282, 302-305.

With regard to his mental impairments, the record also contained evidence of Plaintiff's treatment for mental symptoms. His first documented treatment for depression and bipolar disorder was on November 20, 2007. AR 316. Plaintiff reported that he had not seen a therapist since 2003, and he denied suicidal thoughts, difficulty sleeping, racing thoughts, or loss of interest in activities. AR 316. On March 3, 2008, Dr. Villanueva noted that Plaintiff had not seen a psychiatrist and was not on any psychiatric medications AR 236. On April 9, 2008, Dr. Villanueva noted that Plaintiff had been prescribed Depakote, but that Plaintiff "needs to start meds." AR 235. At that time, Plaintiff denied hallucinations and suicidal thoughts. AR 235.

Thereafter, Plaintiff began taking Depakote, but discontinued use of the medication as of June 24, 2008 because he claimed it made his chest hurt. AR 231. Plaintiff continued to deny experiencing hallucinations, and Dr. Villanueva ...

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