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Nouanephoumivanhv v. Astrue

March 20, 2009

LEUA NOUANEPHOUMIVANH, 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 her 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.

I. BACKGROUND

Plaintiff, born January 1, 1963, applied for supplemental security income on September 17, 2004. Administrative Record ("AR") 50. Plaintiff alleged that she became unable to work on January 13, 2002, AR 50, due to "headaches, lost memories pain all over numbness all body," and "[m]y legs are numb and I cannot move," AR 57. At the time of her application for benefits, plaintiff was forty-one years old, and had last worked as a furniture sander from 2000 to June 2001. AR 58. Plaintiff's husband passed away in 1994. AR 57.

The initial administrative hearing, convened July 17, 2006, was postponed at the suggestion of the administrative law judge in order to provide plaintiff further opportunity to obtain representation. AR 219-221. With the assistance of counsel and an interpreter, plaintiff testified at the administrative hearing held October 3, 2006, before administrative law judge ("ALJ") Plauche F. Villere, Jr. AR 222-232.

Plaintiff testified that she has had no formal education, and cannot read or write in any language. AR 225. Plaintiff stated that she has five children, the youngest age 15. Plaintiff cares for her own personal needs, shops with her children, cooks simple food and does light housework; she has never driven a car. AR 226. Plaintiff testified that she worked outside the home, as a table sander, for about two years, about four or five years before, but quit due to numbness and pain in her legs and arm; she stated that she felt "paralyzed." AR 226-227. Prior to the sanding job, plaintiff worked for less than a year in food processing, cutting and packing fruits and vegetables; she quit because of the cold. AT 230. Plaintiff explained that her diabetes causes the numbness in her legs and arm; and that she was in an auto accident ten years before that also causes "back pain, body pain too." AR 227. Plaintiff's doctor prescribed medication that provides temporary relief; plaintiff also takes medication for her diabetes and allergies, and takes Tylenol. AR 228. Plaintiff testified that she also has headaches, "morning and evening" "right on top of my eyes." The headaches are accompanied by dizziness, and they last four or five hours. Plaintiff treats her headaches by taking medication and lying down. AR 227-228.

Plaintiff testified that she is forgetful; that she will forget her children's names. AR 229. She testified that she is depressed all of the time, which is treated with a sleeping pill that "works." Plaintiff has not sought counseling. Id. Plaintiff's attorney noted at the administrative hearing the report of a consultative psychiatrist that plaintiff "hears voices," but the ALJ noted that the report reflected only mild impairments. AR 230-231. The ALJ left the record open to receive a statement from one of plaintiff's children, AR 231, which was not forthcoming.

Plaintiff's counsel rejected the opportunity to examine plaintiff, with the assistance of the interpreter, at the administrative hearing. AR 230.

The ALJ issued a decision on November 21, 2006, finding that plaintiff was not disabled.*fn1 AR 11-17. The ALJ made the following findings (AR 13-17):

1. The claimant has not engaged in substantial gainful activity since January 13, 2002, the alleged onset date (20 C.F.R. 416.920(b) and 416.971 et seq.).

2. The claimant has the following medically determinable impairments: back strain, headaches, depression and somatoform disorder (20 C.F.R. 416.920(c)).

3. The claimant does not have an impairment or combination of impairments that has significantly limited (or is expected to significantly limit) the ability to perform basic work-related activities for 12 consecutive months; therefore, the claimant does not have a severe impairment or combination of impairments (20 C.F.R. 416.921). . . . [T]he claimant's medically determinable impairments could reasonably be expected to produce the alleged symptoms, but . . . the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not entirely credible.

4. The claimant has not been under a "disability," as defined in the Social Security Act, since September 17, 2004 (20 C.F.R. 416.920(c)), the date the application was filed. On May 11, 2007, the Appeals Council denied plaintiff's request for review, and the ALJ's decision became the final decision of the Commissioner. AR 3-5.

II. ISSUES PRESENTED

Plaintiff contends that substantial evidence does not support the Commissioner's finding, at step-two of the sequential evaluation, that plaintiff does not have a severe impairment or combination of impairments, because the ALJ failed properly to: (1) evaluate the medical evidence, improperly relying on the opinion of psychiatrist Reynaldo Abejuela, M.D., rather than the opinion of psychologist Michelina Regazzi, Ph.D., and (2) assess plaintiff's testimony and third party statements, particularly with respect to plaintiff's alleged mental impairments. Plaintiff claims that the record demonstrates she has "the severe impairments of depression [and] Somatoform disorder."*fn2 Pl.'s Mem., at p. 2.

III. LEGAL STANDARDS

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).

IV. MEDICAL EVIDENCE

A. TREATMENT HISTORY

Plaintiff was treated by Dr. Anh Huynh Nguyen, M.D., from December 1999 to October 2004. AR 135-153. Of the impairments alleged in her disability application (i.e., not including routine matters such as nasal congestion), plaintiff sought treatment for headache and neck pain in January 2001, headache in July 2000, low back pain in April 2001, low back pain and headache in February 2002, headache in April 2002, and muscle spasm and cervical neck pain in January 2003. AR 135-136. X-rays of plaintiff's cervical spine taken June 2003 were normal. AR 139.

Plaintiff was treated by Dr. David Tam Ha, M.D., from March to September 2004, throughout which she complained of leg, arm, neck and back pain. AR 123-134. Additional treatment notes from Dr. Ha, April 2005 through August 2006, also reflect plaintiff's complaints of back pain, headaches, numbness in her arms, legs, shoulders and hands. AR 200-216.

The records of Drs. Nguyen and Ha are difficult to decipher regarding objective findings and responsive treatment. Plaintiff correctly discerns findings of muscle tenderness (AR 142, 146, 149), a diagnosis of arthralgia (joint pain) (AR 202, 203, 206), and isolated prescriptions for Valium for anxiety (AR 170), and Ibuprofen for back pain (AR 216). While referral to a neurologist is noted June 2003 (AR 138), there are no further relevant notations or records.

B. CONSULTATIVE EXAMINATIONS 1. Internist Sanford Selcon, M.D.

On November 15, 2004, plaintiff was examined by consultative internist Sanford Selcon, M.D., with the assistance of a translator. AR 154-158. Plaintiff stated that her chief complaints were: "(1) Body aches, and pains and numbness in her arms and legs, (2) Frontal headaches, and (3) Depression." AR 154. Plaintiff stated that she had experienced numbness in her arms, legs, hands and feet, and decreased memory for the last 5 to 10 years; that she quit her last job because she had difficulty with language, and cannot work because of her problems with numbness and memory; that she has had chronic low back pain and chronic frontal headaches for several years; and that she is depressed, with difficulties coping and being with others. Plaintiff recounted an automobile accident which did not require surgery but caused her disorientation for a period of two days; plaintiff could not remember the year or month of the accident. Dr. Selcon noted plaintiff's current medications as "Motrin, carisoprodol ['Soma,' a muscle relaxant],*fn3 aprodine [decongestant], calcium, and o-PAP extra strength" (this appears to reference "APAP," which is hydrocodone, or Vicodin, prescribed for pain). AR 154-155. Dr. Selcon found no abnormalities upon physical examination of plaintiff. AR 156-157.

Dr. Selcon made the following functional assessment (AR 158): The number of hours that the claimant could sit in an 8-hour work period is without limitations. The number of hours that the claimant could stand/walk in an 8-hour work period is without limitations. The amount of weight that the claimant could lift/carry is without limitations. These are no postural, manipulative, visual, communicate, or workplace environmental limitations.

2. Psychiatrist Reynaldo Abejuela, M.D.

On December 7, 2004, a psychological assessment of plaintiff was conducted by psychiatrist Reynaldo Abejuela, M.D., at the request of the Commissioner. AR 160-167. The assessment was ...


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