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Yang v. Astrue

March 1, 2010

SENG H. YANG, 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, plaintiff's motion for summary judgment or remand is denied and the Commissioner's cross-motion for summary judgment is granted.

I. BACKGROUND

Plaintiff, born September 10, 1959, applied for SSI on October 19, 2004. Administrative Record ("AR") 58-62. She alleged that she became unable to work beginning January 8, 2004, due to "[d]epression, migraine headaches, ulcers, post traumatic stress . . . major depression, panic and anxiety attacks, complete hysterectomy, asthma, gastritis, possible diabetes, [and] ringing in ear," causing "severe headaches, dizzy spells/vomiting and nausea, chronic stomach pain, mood swings, poor memory and would leave stove on without it off [sic], problems sleeping, unable to do chores or cook, unable to sit/stand due to pain to loaud [sic] noise." AR 84.

At the time she applied for SSI, plaintiff was 44 years old. She lives with her husband, four of her eight children, and four other relatives. AR 58, 59, 215-216. Plaintiff does not read or speak English. AR 83. Her prior work includes selling clothing with her husband at flea markets (1996-2001), and providing in-home care to her mother-in-law for three hours a day, five days a week (February 2003 to January 2004). AR 75-82. Plaintiff's former work selling clothing required, in an 8-hour workday, lifting and carrying no more than 10 pounds, standing up to 8 hours, walking 2 hours, sitting 5 hours, reaching and grasping 8 hours, stooping and kneeling 1 hour each. AR 77.

At the March 8, 2007 hearing before administrative law judge ("ALJ") Robert C. Tronvig, Jr., plaintiff testified through an interpreter. AR 313-358. Plaintiff testified that she is married and lives with her husband and four of her children. AR 322-324, 326-327. She stated that she didn't know how many children she had, and didn't remember their ages; only the youngest child goes to school. Id. Plaintiff testified that she had never gone to school, did not know how long she'd lived in the United States, and did not know whether she was a U.S. citizen. AR 325. She later testified that she could read and once was able to write in Hmong, but doesn't know whether she learned to do so in school, and can no longer write. AR 347. Plaintiff testified that she counts using her fingers. AR 348.

Plaintiff testified that she does not drive because her "brain's not good," but that she had previously held a driver's license; she didn't know whether her license was currently valid. AR 324-235. She testified that she could not remember her work history, and did not know the source of the family income. AR 327-328. She stated that she could read a clock, but did not know what time she goes to bed or gets up in the morning. AR 328, 332, 333.

Plaintiff testified that she does no cooking or housework, and has no hobbies; she does watch a few minutes of television daily. AR 328-330. She stated that her husband helps get their youngest child ready for school. AR 345. She stated that she doesn't visit with neighbors, and only occasionally talks on the phone with her mother. AR 347.

Plaintiff testified that the morning of the hearing her husband fixed her some food, and picked out her clothes; plaintiff dressed herself, as she generally does. She stated that she sometimes has problems with her right hand and obtains the help of her husband when dressing. AR 331. Plaintiff testified that she cannot lift anything in her right hand due to pain, but can lift a little in her left hand. AR 333-334. She testified that her diabetes causes pressure in her right hand, and that is why it is painful. AR 335. She also testified that she has tingling in her right hand, perhaps peripheral neuropathy. AR 343. She testified that she can walk a few minutes, sit a little longer, and has problems walking up ramps and stairs, balancing, stooping and bending. AR 334. In response to the question, "Do you have problems kneeling?" plaintiff stated, "My chest is painful, so that's why I have problems." Id. Plaintiff stated that she didn't know if she had problems crouching, crawling, reaching, handling, fingering, or feeling. AR 334-335.

Plaintiff testified that she is depressed but her doctor believes she is improving with medication. AR 335-337. She stated that she suffers post traumatic syndrome but did not know its cause and that she was a little girl when fleeing Laos. AR 337-338.

Plaintiff further testified that she has pain in her right side, associated with her hysterectomy in September 2004, but medication helps; that she has pain throughout her abdomen, chest, and low back. AR 338-339, 342, 193-211. Plaintiff stated that she has headaches two or three times a day; that she takes medication and falls asleep. AR 339, 343. She testified that she has asthma controlled by medication, that she takes on her own as needed; she has gastritis, but her medication helps; and she has high blood pressure controlled by medication. AR 338-340; 342, 345. Plaintiff takes medication that helps her sleep at night. AR 345. Plaintiff occasionally sleeps during the day. AR 346.

Plaintiff testified that she has diabetes, that her husband tests her blood and gives her medication. AR 340, 344-345. She testified that she has tinnitus or ringing in the ears. AR 342, 340. She stated that she has memory loss and that she is forgetful. Her testimony was equivocal whether she has auditory or visual hallucinations. AR 340-341.

Plaintiff's nineteen-year-old daughter also testified. AR 321, 348-351. She stated that she could add nothing new or different than the information provided by her mother's testimony. AR 348. She testified that the family tries not to leave plaintiff home alone "[b]ecause we don't want anything to happen to the house. She can't cook, and she can't clean, so we don't want anything bad to happen." AR 349-350. Asked if anything bad had happened yet, plaintiff's daughter stated, "Close, but it wasn't anything bad. . . . Cooking, the pot was kind of like over boiling. . . . a couple of months ago. . . ." Id. She stated that sometimes her mother will accompany her father to the flea market, where she may talk with customers but he "doesn't let her do anything." AR 350-351.

A vocational expert also testified. AR 353-357. Attributing a sixth-grade education to plaintiff in her native language, no ability to speak English, no past relevant work, and the capacity to perform light work (lift, carry, push, pull 20 pounds occasionally, 10 pounds frequently), with normal capacity to sit, stand and walk (6 hours each in an 8-hour work day), occasional ability to make postural adjustments except no use of ladders, ropes or scaffolds, no ability to tolerate fumes or other hazards, the vocational expert opined that plaintiff would be able to perform the jobs of poultry dresser, bottle packer, or egg breaker, each position existing in significant numbers in the local and national economies. AR 353-356. Assuming the same hypothetical, but that plaintiff cannot lift or carry with her right dominant hand (but could manipulate occasionally), the vocational expert testified that there are no jobs plaintiff can perform. AR 356-357.

The ALJ issued a decision on June 7, 2007, finding that plaintiff was not disabled.*fn1 AR 17-23. The ALJ made the following findings:

1. The claimant has not engaged in substantial gainful activity since January 8, 2004, the alleged onset date (20 C.F.R. 416.920(b) and 416.971 et seq.).

2. The claimant has the following severe impairments: asthma, diabetes mellitus type II, chronic lower back pain, chronic abdominal pain and migraine headaches (20 C.F.R. 416.920(c)).

3. 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. 416.920(d), 416.925 and 416.926).

4. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to lift and/or carry 10 pounds frequently and 20 pounds occasionally; sit, stand and/or walk for 6 hours in an 8-hour workday with normal breaks; push and pull commiserate with the ability to lift and/or carry; no ability to climb ladders; can occasionally perform all other postural activities; avoid all exposure to hazards; and avoid concentrated exposure to fumes. The undersigned further finds that the claimant has no limitations performing work-related mental activities.

5. The claimant has no past relevant work (20 C.F.R. 416.965).

6. The claimant was born September 10, 1959 and was 44 years old, which is defined as a younger individual age 18-44, on the date the ...


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