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Nguyen v. Astrue

March 19, 2009



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


Plaintiff, born February 24, 1971, applied for supplemental security income on July 12, 2004. Administrative Record ("AR") 52-69, 53. Plaintiff stated that he last worked in December 2001, and that he became unable to work on April 1, 2004, due to "head injured, mental," causing "daily headaches, depression, forgetfulness," symptoms that began to bother him in 1997. AR 53, 78. Plaintiff worked as a butcher from 1992 to 1996, which required standing six hours a day and frequently lifting fifty pounds. AR 79. At the time he filed his application, plaintiff was thirty-three years old, had never been married, had completed no formal schooling, and could not read or write English. AR 54, 84, 77. Plaintiff lives with two friends. AR 57.

At the July 13, 2005 hearing before administrative law judge ("ALJ") Daniel Heely, plaintiff testified, assisted by an interpreter and by counsel, that he was born in Vietnam and came to the United States in 1991. AR 227. Plaintiff testified that he is unable to perform his past work because, "I got sick and I cannot mix the people or talk to the people.... I got scared, nervous.... I just scared people hurt me." AR 228. Plaintiff stated he received mental health treatment "in prison"*fn1 and his medications "help little." Id. Plaintiff testified that during the day he will "[w]alk around on the street outside and stay in the house, sit in the house," but does not visit with anybody, go shopping or go to church. AR 228-229.

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

AR 11-23. The ALJ made the following findings (AR 22):

1. The claimant has not engaged in substantial gainful activity since the alleged onset of disability.

2. The claimant's post traumatic stress disorder is a "severe" impairment, based upon the requirements in the Regulations (20 C.F.R. 416.920).

3. The medically determinable impairment does not meet or medically equal one of the listed impairments in Appendix 1, Subpart P, Regulation No. 4.

4. The undersigned finds the claimant's allegations regarding his limitations are not totally credible for the reasons set forth in the body of the decision.

5. The claimant has the following residual functional capacity: does not speak English, occasional public contact.

6. The claimant is unable to perform any of his past relevant work (20 C.F.R. 416.965).

7. The claimant is a "younger individual between the ages of 18 and 44" (20 C.F.R. 416.963).

8. The claimant is "unable to communicate in English" (20 C.F.R. 416.964). 9. The claimant has no transferable skills from any past relevant work and/or transferability of skills is not an issue in this case (20 C.F.R. 416.968).

10. The claimant has the residual functional capacity to perform substantially all of the full range of heavy work (20 C.F.R. 416.967).

11. Based on an exertional capacity for heavy work, and the claimant's age, education, and work experience, Medical-Vocational Rule 204, Appendix 2, Subpart P, Regulation No. 4 would direct a conclusion of "not disabled."

12. The claimant's capacity for heavy work is substantially intact and has not been significantly eroded by any non-exertional limitations. Accordingly, using the above-cited rule(s) as a framework for decision-making, the claimant is not disabled.

13. The claimant was not under a "disability," as defined in the Social Security Act, since any time through the date of this decision (20 C.F.R. 416.920(g)).

On June 13, 2007, the Appeals Council denied plaintiff's request for review, and the ALJ's decision became the final decision of the Commissioner. AR 4-8.


Plaintiff contends that the Commissioner erred in concluding that plaintiff can perform the mental demands of unskilled work, (1) due to improperly discounting plaintiff's language and literacy limitations, (2) improperly rejecting the opinion of examining consultative psychiatrist, Les P. Kalman, M.D., and relying on the opinion of examining consultative psychologist, James Wakefield, Ph.D., and (3) improperly discrediting the third party evidence offered by plaintiff's friend, Hien Nguyen.


The Commissioner's decision that a claimant is not disabled will be upheld if the findings of fact are supported by substantial evidence in the record and the proper legal standards were applied. Schneider v. Comm'r of the Soc. Sec. Admin., 223 F.3d 968, 973 (9th Cir.2000); Morgan v. Comm'r of the Soc. Sec. Admin., 169 F.3d 595, 599 (9th Cir.1999); Tackett v. Apfel, 180 F.3d 1094, 1097 (9th Cir.1999).

The findings of the Commissioner as to any fact, if supported by substantial evidence, are conclusive. See Miller v. Heckler, 770 F.2d 845, 847 (9th Cir.1985). Substantial evidence is more than a mere scintilla, but less than a preponderance. Saelee v. Chater, 94 F.3d 520, 521 (9th Cir.1996). " 'It means such evidence as a reasonable mind might accept as adequate to support a conclusion.' " Richardson v. Perales, 402 U.S. 389, 401(1971) (quoting Consol. Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)).

"The ALJ is responsible for determining credibility, resolving conflicts in medical testimony, and resolving ambiguities." Edlund v. Massanari, 253 F.3d 1152, 1156 (9th Cir.2001) (citations omitted). "Where the evidence is susceptible to more than one rational interpretation, one of which supports the ALJ's decision, the ALJ's conclusion must be upheld." Thomas v. Barnhart, 278 F.3d 947, 954 (9th Cir.2002).



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