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Xiong v. Astrue

March 19, 2009

THAI ZE XIONG, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



ORDER

Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his applications for Disability Income Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act ("Act"), respectively. For the reasons discussed below, the court grants plaintiff's motion for summary judgment and remand, and denies the Commissioner's cross-motion for summary judgment.

I. BACKGROUND

Plaintiff, born October 2, 1960, applied for disability benefits and supplemental security income on March 3, 2005. Administrative Record ("AR") 169-171. Plaintiff stated that he became unable to work on February 20, 2004, as a result of diabetes, high blood pressure, high cholesterol, and pain in his right leg, right arm, shoulder, and left lower abdomen, resulting in constant pain and an inability to engage in extended standing and walking. AR 69-70. Plaintiff previously worked for a mobile glass company (1998-1999), and then for a company that made and installed vehicle "starters" (2000-2004). AR 70, 61, 42-28, 99. His most recent job required plaintiff to open, lift, carry, stack and pack boxes. He was required to walk, stand, climb, stoop, reach, handle and manipulate small objects eight hours a day, and his job included the use of machines, tools or equipment, and the performance of writing or completing reports or similar tasks. He was required frequently to lift items weighing 25 pounds, and occasionally 50 pounds. AR 70-71. Plaintiff has no formal education. AR 73. He takes several medications for pain, stomach ulcer, sleeping and diabetes.*fn1 AR 72. He lives in an apartment with his wife and six children, born 1988 to 1996. AR 170.

At the February 16, 2007 hearing before administrative law judge ("ALJ") Theodore Slocum, plaintiff testified, assisted by both an interpreter and a personal representative, that he was born in Laos in 1960 and came to the United States in 1980. AR 179. Plaintiff testified that he went to school for five years in Laos, and worked as a farmer. AR 180. He was a CIA soldier in Laos from 1972 to 1975. AR 184. He joined the military when he was 13 years old. AR. 185. Plaintiff testified that while he was a soldier he had to "shoot a big gun a lot," and as a result, now has right shoulder pain and hearing loss. AR 185, 189. Also while a soldier, plaintiff was shot in the right foot. That same foot was later bit by a dog and is now painful, with medications providing only temporary relief. AR 188.

Plaintiff testified that in the United States, he worked for one year packaging computers, but left "because I don't understand English, and I don't know the job well, so they don't want me." AR 181. Plaintiff worked from 2001 to 2004 for an auto parts company that built and installed alternators and starters. AR 181, 182. He was required to lift up to 50 pounds all day.

AR 185. He was laid off when told that "the job's very slow, so I need to go home." AR 181. Previously, from 1983 to 1990, for "four years," plaintiff worked sorting newspapers. AR 186. He left because "[t]hey said it got slow, so they laid me off." Id. Plaintiff testified that he hasn't looked for work since leaving the auto parts job because he doesn't feel well. AR 182. He testified that he has not learned English "[b]ecause I working, and I don't have time to go study." Id.

Plaintiff testified that he watches what he eats, measures his blood sugar regularly, and goes to the doctor monthly. AR 183-184. He stated that he gets headaches, lasting three or four hours, that make him nauseous and "cannot see," his doctor gave him medication that helps temporarily but the pains come back. AR 188-189, 196-197. Plaintiff testified that he doesn't sleep well due to his headaches, and the pain in his leg and shoulder, as well as coughing and "throw up." AR 192. Plaintiff stated that he takes daily naps lasting 30 minutes, and that he walks a mile in the morning and a mile in the afternoon to reduce his blood pressure, as directed by his doctor, taking five-minute breaks in the middle of each walk to rest. AR 194-195. Plaintiff testified that he drives his car only to the school, about five minutes away; that his son drives him to medical appointments; and that his wife and children do all the shopping, largely because the smells make him nauseous. AR 195. Plaintiff testified that he has no friends other than his brother-in- law, with whom he visits a few minutes once or twice a week. Id.

Plaintiff testified that he is home alone during the days and usually sits on the sofa and relaxes. He does not watch television or listen to music. He generally remembers to take his medications and test his diabetes but, if he forgets, his wife or children remind him. AR 197-198, 189. Plaintiff testified that he was scheduled for hernia surgery the following month. AR 192, 198.

Plaintiff testified that he went to "Northgate Point" (a Sacramento County mental health treatment clinic) because "I was so lonely, that's why I made a check-up right then." AR 191.

The ALJ stated, "[t]hat could be very important to this case," and left open the record to obtain plaintiff's information from Northgate Point. AR 191, 199. The ALJ also noted that "the idea that he can walk a mile is not harmful to him. . . . [T]hat's an indication that he may be trying to keep his health in good shape." AR 199.

The ALJ issued a decision on September 17, 2005, finding that plaintiff is not disabled.*fn2

AR 11-18. The ALJ made the following findings:

1. The claimant meets the insured status requirements of the Social Security Act through September 30, 2009.

2. The claimant has not engaged in substantial gainful activity since February 20, 2004, the alleged onset date (20 C.F.R. 404.1571 et seq., 416.920(b) and 416.971 et seq.).

3. The claimant has the following severe impairments: Diabetes, hypertension, and shoulder, leg and abdominal strain (20 C.F.R. 404.1520(c) and 416.920 (c)).

4. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. ...


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