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Yang v. Astrue

February 4, 2010


The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge



Plaintiff Seng Yang ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying his application for supplemental security income pursuant to Title XVI of the Social Security Act. The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to the Honorable Gary S. Austin, United States Magistrate Judge.*fn1


Plaintiff filed his application on or about August 20, 2002,*fn3 alleging disability since January 1, 1993,*fn4 due to an ulcer and "pain." AR 116-118. His application was denied initially and on reconsideration, and Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 90-94. ALJ Frederick J. Graf held a hearing on April 14, 2004, and issued an order denying benefits on June 3, 2004. AR 71-76. On July 13, 2005, the Appeals Council vacated the decision and remanded for further proceedings because the recording from the hearing was lost and therefore the record was incomplete. AR 78-79. Thereafter, on May 16, 2006,*fn5 ALJ James Berry held a hearing in Fresno, California. Plaintiff appeared and testified with the assistance of an interpreter and was represented by counsel. AR 415-436. On September 1, 2006, ALJ Berry issued an order denying benefits. AR 19-26. On November 13, 2007, the Appeals Council denied review. AR 7-9.

2006 Hearing Testimony

ALJ Berry held a hearing on May 16, 2006, in Fresno, California. Plaintiff appeared and testified with the assistance of a Hmong interpreter. Plaintiff was represented by attorney Charles Oren. Vocational Expert ("VE") Judith Najarian and Yee Chang also testified. AR 415-436.

Plaintiff lives in a home with his wife Yee Chang and eight of his ten children. AR 419-420. The oldest child living at home is eighteen years old; the youngest is five years old. AR 420. Plaintiff's income sources include food stamps and his wife's salary from Foster Farms. His wife handles the family's finances. AR 425.

Plaintiff attended school in Laos for about three years. AR 418. He attended school in this country for about a year more than ten years ago. AR 418-419. He cannot learn or concentrate due to chest and back pain. AR 419. He reads a little English, but does not understand it. He cannot write in English. AR 419. He occasionally watches television programs in English but he does not know what is being spoken. AR 419.

Although he only drives once in a while, Plaintiff has a driver's license. Occasionally he picks up his children from school. AR 420.

Asked about his work history in this country, Plaintiff replied that in 1990 or 1991, he provided in home care for his ill mother. AR 420-421. He has not worked since that time. AR 424.

Plaintiff typically rises at six or seven in the morning. When he feels well, he helps with chores like vacuuming and washing the dishes. AR 421-422. If he feels bad, he cannot do anything as his hands and leg shake and his body is painful. AR 421.

He has been using a single cane for about three years. Previously Plaintiff used a "cane that had four legs" for about ten years. AR 421. He asked the doctor for a lighter cane, thus the one he currently uses. AR 421. He uses the cane for the pain in his back and weakness in his legs. AR 422. The pain in his leg radiates into his feet. AR 422.

Because he cannot work or help himself, Plaintiff is depressed. He feels worthless and has felt depressed for over ten years. AR 422. He sees a doctor for his depression and takes medication for the condition. However, the medication no longer provides relief because he has been on it for so long. AR 422-423. He also suffers from sleep disturbance. AR 423.

If he feels well, Plaintiff will walk outside for seven to ten minutes. AR 423. He does not go shopping with his family or visit friends. AR 423.

The pain in his chest is a sharp pain that radiates through to his back. AR 423-424. He feels it every day. AR 424. Asked about his hands and feet, he testified they "feel sometimes very big and shaking." On occasion he cannot pick up and hold onto items. AR 424.

Plaintiff's back pain has become so severe that he cannot bend down to touch the floor. If he were to attempt to do so, he would feel pain in his lower back. AR 424-425.

Asked about his physical capabilities, Plaintiff indicated he could lift and carry five pounds, could stand for six or seven minutes at a time, or for twenty to thirty minutes throughout the day, and could walk for six or seven minutes before needing to rest. AR 425-427. He can sit for twelve to thirteen minutes at a time and could sit for about two hours during an eight-hour period. AR 426.

In March Plaintiff traveled to Laos. He flew from Fresno to Los Angeles, and from Los Angeles to Laos. He did not recall how long the trip took, but stated that is seemed "like a whole day." AR 426-427. Asked by counsel about his travel to Laos, Plaintiff explained that he did have to sit for more than two hours, but he stood up and walked around, then would return to his seat. When he arrived in Laos he could "do nothing" and was "very tired and confused." AR 427. He traveled with his wife. AR 428.

Yee Chang testified that she has been married to Plaintiff for almost twenty-five years. AR 428. She is currently employed at Foster Farms and has been there for six years. AR 428-429. She cuts and packages chicken. AR 429.

Ms. Chang testified that Plaintiff has not worked in the last fifteen years. Initially Plaintiff cared for his ill mother, but after a year he became ill and could not work. He suffers from back and chest pain and has since 1993. AR 429. Asked what her husband does all day, Ms. Chang replied "[n]othing really." He will get up and walk to the sofa, pick up trash or walk around "outside one time" before returning to the house to lie on the sofa. AR 429.

When Plaintiff was in Laos he was a soldier. He was in a ditch and a bomb hit on top of his hand and injured him. Because he was young the pain did not affect him as much, however, now that he is older the pain has worsened. AR 429-430. She had not met her husband at that time so she did not know what year this occurred, but he told her about it. AR 430.

Plaintiff's emotional problems have become very severe. He suffers from memory problems because he is forgetful. AR 430. She may take him with her to visit others, but he does not speak to others. AR 430-431.

Ms. Chang traveled with her husband to Laos. They traveled there to "see his house" and because of his illness and to find herbal medications. AR 431. She does not recall how long they were in Laos but recalled it was after the new year. They found "some tree, a root, herb medication for him" that he has been taking every day. AR 431. The medications he was prescribed here in the states do not help any more and the herbal medication from Laos is not available here. AR 431. The herbal medication "takes a long time" to work so they are not sure yet whether it will help. AR 432.

Her husband cannot work because of his illness. It causes her a lot of stress. Asked whether she thought he would work if he were able, Ms. Chang replied that she did not think he could work because he can do some "easy work like pick up the trash" or wash dishes, but he cannot cook. AR 432.

VE Najarian testified that Plaintiff's previous work as a home attendant is considered medium with an SVP of 3. Plaintiff performed the job at a heavy level however as he indicated he would sometimes carry his mother. The position is semi-skilled when it involves administering medication. AR 433.

The VE was asked to consider hypothetical questions posed by the ALJ. First, the VE was asked to assume a fifty-three year old illiterate individual with the past work experience described, with the ability to lift and carry 100 pounds occasionally and 50 pounds frequently, with the ability to stand, walk and sit for six hours of an eight-hour work day, who can perform simple repetitive tasks and can maintain attention, concentration, persistence and pace, has the ability to relate to and interact with others and adapt to usual changes in the workplace and can adhere to safety rules. AR 434-435. The VE opined that such an individual would be able to perform work in the national economy whether it was light, medium or heavy and unskilled with a reduction for the language barrier. Three examples of available heavy work included hand packaging with 8,777 available jobs in California and nine times that many in the nation; vehicle cleaner with 5,663 available jobs in California, multiplied by nine for the nation; and production worker with 3,945 jobs in California, and again multiplied by nine for national statistics. AR 434. The VE would apply a ninety-percent reduction to those figures to account for the language barrier. AR 435.

Next, the VE was asked to consider the same individual with the ability to lift and carry ten pounds maximum, and ability to stand, walk and sit for a total of three hours; the individual would be required to lie down for two hours. This hypothetical worker could occasionally use or operate foot controls, and occasionally climb, balance, stoop, crouch, kneel and crawl, could frequently reach and handle, but could not grasp or grip. The individual would also be precluded from exposure to unprotected heights and dangerous moving machinery. AR 435. The VE indicated this hypothetical worker would be unable to perform any work in the national economy. AR 435.

Lastly, the ALJ asked the VE to assume a hypothetical individual of the same vocational parameters previously provided, with the ability to lift and carry five pounds maximum, and ability to stand twenty to thirty minutes, walk for six to seven minutes, sit for a total of two hours, with difficulty maintaining attention, concentration, persistence and pace, and who would have difficulty remembering recent and distant events. AR 435-436. The VE indicated that such an individual would be unable to perform any work in the national economy. AR 436.

Medical Record

The entire medical record was reviewed by the Court. A summary of the most relevant reports and treatment notes is provided below.

Heu Chiropractic

Plaintiff treated at Heu Chiropractic from August 17, 2001, to October 29, 2001. He complained of headaches, neck pain, upper/middle/low back pain, chest wall pain, left hip pain, shoulder pain, lower and upper extremity numbness and pain, strain/sprain, spinal joint dysfunction and myofasciatis. AR 161-167, 171-174,

Fresno Imaging Center

X-rays of the cervical, thoracic and lumbar spine, and left knee, taken August 17, 2001, revealed minimal spondylosis at C6-7, in the cervical spine series; minimal spondylosis and mild scoliosis in the thoracic series; mild levoscoliosis in the lumbosacral spine series, but were otherwise normal. The findings regarding the left knee were unremarkable. AR 168-170.

Kings Winery Medical Clinic

Numerous treatment notes reveal that Plaintiff was followed at the Kings Winery Medical Clinic during 2001 through 2006. He complained often of back, chest, and leg pain, as well as numbness and weakness in the extremities. Medications including Vicodin, Prevacid, Paxil, Wellbutrin, Tagamet, Ultracet and others were prescribed. Diagnoses included PTSD, MDD, PUD/GERD, depression, and myalgia. AR 176-213, 255-258, 347-364, 390-411.

John J. Lubenko, M.D.

Dr. Lubenko completed a form entitled Complete Medical Report (Physical) on March 15, 2004. It reports he has treated Plaintiff from December 1999 through to present. He noted clinical findings of chronic back pain and myalgia, and a diagnosis including chronic back pain, myalgia, peptic ulcer disease and GERD. He noted Plaintiff's response to treatment was good, but his prognosis was poor. AR 365. The attached Medical Assessment of Ability to Do Work-Related Activities (Physical) notes Dr. Lubenko believed Plaintiff capable of lifting and carrying up to 10 pounds occasionally, sitting and standing or walking for a total of three hours in an eight-hour work day but no more than an hour at one time, and lying down two hours in an eight-hour day for no more than an hour at one time. The use of Plaintiff's hands and feet were occasionally affected. AR 366-367. Plaintiff could occasionally climb, balance, stoop, crouch, kneel and crawl, could frequently reach and handle, occasionally push and pull, and continually feel, hear and speak. AR 368. Environmental restrictions included heights and moving machinery. AR 369.

Maximo Parayno, M.D.

In a form entitled Complete Medical Report (Mental) dated March 22, 2004, Dr. Parayno indicated he had treated Plaintiff from February 2002 to February 2004. His clinical findings included depressed mood, recurring nightmares, poor memory and concentration, and flashbacks. He diagnosed posttraumatic stress disorder and major depressive disorder. Dr. Parayno noted a fair response to treatment and a guarded prognosis. AR 370. In the attached Medical Assessment, Dr. Parayno found Plaintiff to have a poor ability to make any of the eight occupational adjustments listed. AR 371. He had a poor ability to understand, remember and carry out complex, detailed and simple job instructions. AR 372. Plaintiff had a fair ability to maintain personal appearance, but a poor ability to behave in an emotionally stable manner, relate predictably in social situations and to demonstrate reliability. AR 372. Dr. Parayno noted Plaintiff's ability to perform simple calculations, but inability to follow a two or three step process. AR 372-373.

Community Medical Centers

On January 16, 1997, Plaintiff was seen in the emergency room for complaints of ...

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