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Xiong v. Commissioner of Social Security

May 4, 2010


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


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. 20) and defendant's cross-motion for summary judgment (Doc. 24).


Plaintiff applied for social security benefits on January 21, 2005. In the application, plaintiff claims that his disability began on December 20, 2001. Plaintiff claims that his disability is caused by a combination of major depressive disorder and PTSD symptoms, otitis media (OM) with a history of tympanic membrane (TM) perforation, and osteoarthritis. Plaintiff's claim was initially denied. Following denial of reconsideration, plaintiff requested an administrative hearing, which was held on January 23, 2008, before Administrative Law Judge ("ALJ") Stanley R. Hogg.*fn1 In a May 1, 2008, decision, the ALJ concluded that plaintiff is not disabled based on the following findings:

1. The claimant has not engaged in substantial gainful activity since January 21, 2005, the application date (20 CFR 416.920(b) and 416.971 et seq.).

2. The claimant has the following severe impairment: depression (20 CFR 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 CFR Part 404, Subpart P Appendix 1 (20 CFR 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 perform a full range of work at all exertional levels but with the following non-exertional limitations: he is limited to unskilled work.

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

6. The claimant was born on June 15, 1962 and was 42 years old, which is defined as a younger individual age 18-49, on the date the application was filed (20 CFR 416.963).

7. The claimant is illiterate and is able to communicate in English (20 CFR 416.964).

8. Transferability of job skills is not an issue because the claimant does not have past relevant work (20 CFR 416.968).

9. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 416.960(c) and 416.966).

10. The claimant has not been under a disability, as defined in the Social Security Act, since January 21, 2005, the date the application was filed (20 CFR 416.920(g)).

After the Appeals Council declined review on July 10, 2008, this appeal followed.


The certified administrative record ("CAR") contains the following evidence, summarized below:

A. Treating Records

We Care Medical Center

On March 15, 2003, Plaintiff was seen for prescriptions, headache, insomnia, and depression.*fn2 He was seen for a swollen finger and medication on May 24, 2003. On June 27, 2003, Plaintiff was seen for a cough and was assessed with bronchitis, depression, and osteoarthritis. Plaintiff was back in on July 31, 2003, for back pain, headache and depression, and saw a physician's assistant. It was noted Plaintiff was eating and sleeping well. His back was tender in the lumbosacral area, but he had full range of motion. He was assessed with depression, low back pain, and TM perforation/left otitis media. Plaintiff was seen again for a follow-up and lab results on September 4, 2003. Plaintiff was seen for ear pain on October 20, 2003, November 6, 2003, and December 12, 2003, and was assessed with left otitis media.

On May 24, 2004, Plaintiff was seen for fever and sore throat. On October 5, 2004, he was seen for refill on his medication and back pain. It was noted his neck, back and shoulder were tender, and he had decreased range of motion. He was assessed with osteoarthritis. He was seen again on November 10, 2004, for medication refill, headache and body pain. He was assessed with upper respiratory infection.

On January 6, 2005, Plaintiff was seen for neck and low back pain. He was assessed with "OA/neck/back." (CAR 168). He was seen for headaches on February 21, 2005.

His medication from We Care include, in addition to others which are illegible, Zoloft, Tylenol #3, and Bactrim DS.

The physician's assistant Plaintiff regularly saw at We Care completed an assessment of his physical and mental activities, which was apparently approved or written on behalf of the supervising doctor, R. A. Sychukok, M.D. In that assessment, all of Plaintiff's abilities were rated as fair or poor. He was rated fair in his abilities to sit, stand, ambulate independently, hear, speak, travel and balance, as well as his mental abilities for cognition, concentration, persistence, and adaption. He was rated poor in his abilities to lift, carry, twist, bend, handle objects, and his vision, as well as his mental abilities for understanding, memory, judgment, orientation and social interaction. (CAR 202).

Northgate Point RST

Plaintiff's initial psychiatric evaluation at Northgate Point RST was on June 8, 2004. With the assistance of an interpreter, Plaintiff reported that he takes Prozac with no side effects, and he has been depressed since coming to the United States in 1994. The reasons for his depression include loss of hearing, and his inability to get SSI, speak English and work. His activities of daily living include cooking for his children. Plaintiff's thought process was logical, his mood was sad and worried, his affect was flat, his insight and judgment was limited. Dr. Nguyen's diagnosis was "MDD, rec. 296.33" and noted Plaintiff's GAF at 50. Plaintiff's Prozac was increased.

Plaintiff was seen again on January 31, 2005. He reported being depressed and worried. His sleep was variable; his concentration was poor. He reported feeling tired, anxious and worried for his family. Plaintiff's mental status examination ...

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