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Boutsalath v. Astrue

March 25, 2009

VILAY BOUTSALATH, 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 Disability Income Benefits ("DIB") under Title II 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 August 9, 1957, applied for disability benefits December 6, 2004, alleging disability since November 5, 2004, due to pain in her neck, back, shoulders and legs.*fn1

Administrative Record ("AR") 11, 43.

At the March 15, 2007 hearing before administrative law judge ("ALJ") Mark C. Ramsey, plaintiff testified, with the assistance of a translator and represented by counsel, that she was forty-nine years old, divorced since 1995, and has four children whose ages range from 21 to 29. AR 136. Plaintiff testified that she came to the United States from Laos in 1986. She stated that she went to school for five years in Laos, and studied English for three years in the United States. AR 137. Plaintiff became a United States citizen in 1996, and has a driver's license. She receives general assistance and food stamps, and lives with her children. AR 138-139.

Plaintiff testified as follows about her past work. She first tested computer units, which required standing, and lifting up to 50 pounds. She next worked as a sorter, stuffing envelopes in a seated position, without significant lifting requirements. Plaintiff next worked as a machine operator for a soup company, a seasonal job requiring standing, and lifting up to 25 pounds. She next worked filling customer orders, a job requiring standing, and lifting up to 30 pounds. AR 139-141. Plaintiff left her last job on November 5, 2004, after being hit by a car in the employee parking lot. Plaintiff stated that she was knocked down and has thereafter had low back pain with left leg pain and numbness. AR 141-142, 143. See generally, AR 66-70.

Plaintiff testified that her regular household chores includes cooking two meals a week, and changing the sheets on her bed once a month. Plaintiff stated that she grocery shops weekly (her friend takes her), and goes to the Buddhist Temple once a month, for three-and-a-half hours, to provide food to the monks. Plaintiff testified that her children do the laundry, vacuum and mop the floors. Plaintiff does not do any yard work. Asked if she takes walks for exercise, plaintiff stated that she walks inside her house every day for up to one hour; she walks for four or five minutes, stops for ten minutes, and sometimes sits down. AR 146, 160-161. Plaintiff also watches some TV, the news, and lies down. AR 143-146, 149.

Plaintiff described her low to middle back pain as "dull," and stated that the pain daily moves to her shoulders and neck, and can last all day. She also has migraines, twice a week, that last four or five hours. AR 149-152. The headaches affect plaintiff's vision, which will last for the whole day, and she feels tired and dizzy. AR 157-158. She treats her headaches by massaging Vick's on her temples, and lying down. AR 151-152. She also takes medicine, but it makes her feel tired because it is too strong. AR 159. Her neck and shoulders usually hurt when she has headaches. AR 152. She also gets numbness in her shoulders. AR 153.

Plaintiff testified that she sleeps poorly three times a week, which makes her feel worse in the morning. On other mornings, she feels well but becomes tired and experiences pain by the afternoons. AR. 153. When plaintiff has difficulty sleeping, it is because she is "thinking too much about my life." AR 154. She has tried "stress medicine" and sleep medicine, but can only take these sometimes because they make her feel tired and nervous. Id. Plaintiff testified that she generally sleeps three hours a night, then sits through the rest of the night. She takes two or three naps a day, 15-30 minutes each. AR 150, 157.

At the hearing, the ALJ went through the list of plaintiff's medications, and identified Ferro-sulfate (iron supplement), Loratadine (for allergies), Patanol (eye drops for allergies), Neopolymycin (ear drops), Soma (a muscle relaxant), and Tramadol (for pain).*fn2 AR 147-149, 154-156; see also AR 55, 74. Plaintiff takes the pain medication and muscle relaxant on an as-needed basis, about three times a week each, but at different times. The medications make plaintiff feel tired and nervous. AR 159-160. For her back pain, plaintiff also uses a heating pad, which helps for an hour. AR 156.

Plaintiff testified that she can stand for 10 to 15 minutes, sit for 10 to 20 minutes, and that sitting is more painful than standing. AR 161. She testified that she can occasionally lift five pounds. AR 162.

The ALJ issued a decision on July 25, 2007, finding that plaintiff is not disabled.*fn3 AR 11-18. The ALJ made the following findings:

1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2008.

2. The claimant has not engaged in substantial gainful activity since November 5, 2004, the alleged onset date (20 CFR 404.1520(b) and 404.1571 et seq.).

3. The claimant has the following severe impairments: history of anemia and lower back pain due to strain (20 CFR 404.1520(c)).

4. The claimant does not have an impairment or combination of impairments that meets or equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525, and 404.1526).

5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform the full range of medium work. In particular, the claimant can lift, carry, push, and pull 50 pounds and 25 pounds frequently. The claimant can also sit, stand and walk without restriction for six to eight hours per day.

6. The claimant is capable of performing past relevant work as an order filler. This work does not require the performance of work-related activities precluded by the claimant's residual functional capacity (20 CFR 404.1565).

7. The claimant has not been under a disability, as defined in the Social Security Act, from November 5, 2004 through the date of this decision (20 CFR 404.1520(f)).

II. ISSUES PRESENTED

Plaintiff contends that the Commissioner erred by (1) rejecting the opinion of plaintiff's treating physicians, and (2) concluding that ...


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