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Cheng v. Commissioner of Social Security

March 23, 2010

THAI CHENG, PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

Plaintiff, who is proceeding with retained counsel, brings this action for judicial review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g). Pursuant to the written consent of all parties, this case is before the undersigned as the presiding judge for all purposes, including entry of final judgment. See 28 U.S.C. § 636(c). Pending before the court are plaintiff's motion for summary judgment (Doc. 16) and defendant's cross-motion for summary judgment (Doc. 19).

I. PROCEDURAL HISTORY

Plaintiff applied for social security benefits on April 27, 2001. In the application, plaintiff claims that her disability began on January 1, 1999. Plaintiff claims that her disability is caused by a combination of chronic fatigue, low potassium, chest pain, difficulty breathing, stomach ache, headache, back, arm and leg pain, body ache, poor appetite, sleeping problems, depression, anxiety, stress, nightmares, hallucinations, suicidal, problems concentrating and thinking, and memory loss. Plaintiff's claim was initially denied. Following denial of reconsideration, plaintiff requested an administrative hearing, which was held on October 17, 2002, before Administrative Law Judge ("ALJ") Barry Wesker. In a November 25, 2002, decision, the ALJ concluded that Plaintiff was not disabled based on the following relevant findings:

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

2. The claimant has an impairment or combination of impairments considered "severe" based on the requirements in the Regulations 20 CFR § 416.920(b).

3. These medically determinable impairments do 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 her physical and emotional limitations are not credible for the reasons set forth in the body of the decision.

5. The undersigned has carefully considered all of the medical opinions in the record regarding the severity of the claimant's impairments (20 CFR § 416.927).

6. The claimant has the following residual functional capacity to perform light work. She can perform 1 and 2 simple steps, but must avoid the public.

7. The claimant is unable to perform any of her past relevant work (20 CFR § 416.965).

8. The claimant is a "younger individual between the ages of 45 and 49" (20 CFR § 416.963).

9. The claimant is "unable to communicate in English" (20 CFR § 416.964).

10. The claimant has no transferable skills from any past relevant work and/or transferability of skills is not an issue in this case (20 CFR § 416.968).

11. The claimant has the residual functional capacity to perform a significant range of light work (20 CFR § 416.967).

12. Based on the vocational expert's testimony and the framework of Rule 202.16, there are a significant number of jobs in the national economy that she could perform. Examples of such jobs include work as Packing line assembler, D.O.T. number 753.687-038, SVP 2, light exertional work, there are 68,0000 jobs in California; Can filling machine operator, D.O.T. number 529.685-282, SVP 2, light work, there are 18,000 jobs in California; and Small part assembler, D.O.T. number 706.684-022, SVP 2, light, there are 68,000 jobs in California.

13. The claimant was not under a "disability," as defined in the Social Security Act, at any time through the date of this decision (20 CFR § 416.920(f)).

(Certified Administrative Record ("CAR") 16).

After the Appeals Council declined review on February 27, 2003, Plaintiff filed an appeal with this court, case number 03cv1012-KMJ. The parties entered in to a stipulated remand, wherein the parties agreed that the ALJ was to "consider the opinion of Dr. Su, treating physician, as well as Dr. Greenleaf's opinion concerning peer contact. The ALJ will also obtain additional evidence from a vocational expert if necessary." (CAR 310-11).

Pursuant to that stipulated remand order, a new administrative hearing was held on July 19, 2005, before ALJ Wesker. In a September 27, 2005, decision, the ALJ concluded again that Plaintiff is not disabled based on the following relevant findings:

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

2. The claimant's dysthymia and mild degenerative arthritis are considered "severe" based on the requirements in the Regulations 20 CFR § 416.920(c).

3. These medically determinable impairments do 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 her limitations are not totally credible for the reasons set forth in the body of the decision.

5. The claimant has the residual functional capacity to perform "light" work involving one- or 2-step instructions, criticism from supervisors, and concentration at an adequate pace on simple tasks, but she cannot handle significant public contact.

6. The claimant has no past relevant work (20 CFR § 416.965).

7. The claimant is a 'younger individual' (20 CFR § 416.963).

8. The claimant is 'unable to communicate in English' (20 CFR § 416.964).

9. The claimant has the residual functional capacity to perform a significant range of light work (20 CFR § 416.967).

10. Although the claimant's exertional limitations do not allow her to perform the full range of light work, using the Medical-Vocational Guidelines as a framework for decision-making, there are a significant number of jobs in the national economy that she could perform. Examples of such jobs include 3 unskilled (SVP2), light jobs: packing line assembler, DOT Code 753.687-038, of which there are 68,0000 jobs in California; can filling machine operator, DOT Code 529.685-282, of which there are 18,000 jobs in California; and small parts assembler, DOT Code 706.684-022, of which there are 68,000 jobs in California.

11. The claimant was not under a "disability," as defined in the Social Security Act, at any time through the date of this decision (20 CFR § 416.920(g)).

(CAR 275).

Following Plaintiff's appeal of that decision to the Appeals Council, on October 2, 2007, the Appeals Council issued a denial stating it found no reason to assume jurisdiction. This appeal followed.

II. SUMMARY OF THE EVIDENCE

The CAR contains the following evidence, summarized chronologically below:

1. Emergency/Outpatient Record, Sutter Health, May 14, 1999 (CAR 141-45);

2. Hospital Records, Sutter Health, from June 25, 1999 through June 29, 1999 (CAR 146-80);

3. Internal Medicine Consultative Examination, James L. Martin, M.D., June 19, 2001 (CAR 181-83);

4. Psychiatric Evaluation, Stephen M. Greenleaf, M.D., July 10, 2001 (CAR 184-88);

5. Residual Functional Capacity Assessment (RFC) - Mental, DDS physician, July 18, 2001 (CAR 189-92);

6. Medical Records, We Care Medical Center, April 21, 2001 through September 11, 2001 (CAR 193-200);

7. Psychiatric Review Technique Form, DDS physician, November 21, 2001 (CAR 201-15);

8. Medical Records, Sacramento County Mental Health Treatment Center, November 5, 2001 through April 22, 2002 (CAR 216-27);

9. Medical Records, We Care Medical Center, December 5, 2001 through June 19, 2002 (CAR 228-37);

10. Medical Records, Adult Psychiatric Support Services, December 10, 2001 through June 17, 2002 (CAR 238-52);

11. Medical Assessment of Ability to Do Work-Related Activities (physical) from Wu-Hsiung Su, M.D., May 15, 2002 (CAR 253-56);

12. Psychological Evaluation, Barry Finkel, Ph. D., January 25, 2005 (CAR 426-33);

13. Medical Records, Adult Psychiatric Support Services, July 31, 2002 through March 26, 2003 (CAR 434-43);

14. Medical Records, Sacramento Community Health Center, October 20, 2004 through January 27, 2005 (CAR 444-49);

15. Medical Records, Northgate Point RST, April 24, 2003 through June 16, 2005 (CAR 450-80);

16. Psychiatric Review Technique Form, DDS physician, September 19, ...


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