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Xiong v. Astrue

June 25, 2010

VICKIE XIONG, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

BACKGROUND

Plaintiff Vickie Xiong ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying her 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

FACTS AND PRIOR PROCEEDINGS*fn2

Plaintiff filed her application for supplemental security income on or about January 31, 2005. AR 26. The claim was denied initially on May 20, 2005, and upon reconsideration on March 15, 2007. AR 26-27. Plaintiff then requested a hearing before an Administrative Law Judge ("ALJ") on or about April 17, 2007. AR 33. ALJ Bert C. Hoffman held a hearing on April 15, 2008. AR 527-554. On May 29, 2008, the ALJ issued an unfavorable decision denying benefits. AR 9-25. On December 2, 2008, the Appeals Council denied review. AR 3-5.

Hearing Testimony

ALJ Hoffman held a hearing on April 15, 2008 in Fresno, California. AR 527. Plaintiff was represented by Melissa Proudian. AR 527. Plaintiff and her mother, Hmai Yang ("Ms. Yang"), testified with the aid of an interpreter. AR 527.

A. Testimony of Vickie Xiong

During the hearing the ALJ asked Plaintiff to verify her Social Security Number, what language she spoke in, and who her teacher was. AR 529. When asked how old she was, Plaintiff responded that she was seven years old and has brothers and sisters at home. AR 530. She also responded that she was the youngest in her family. AR 530. The ALJ asked Plaintiff to speak up several times and Plaintiff responded with "Yes" to each command. AR 532. When asked if she had siblings Plaintiff responded "yes." AR 532. At the end of hearing the ALJ thanked Plaintiff for coming, and Plaintiff responded by saying "Bye." AR 553.No further testimony from Plaintiff was given. The majority of the testimony was given by Plaintiff's mother.

B. Testimony of Ms. Yang

Plaintiff is currently in second grade at Olmos Elementary School.*fn3 AR 109-114, 535. Plaintiff did not learn English until kindergarten. AR 553.

During 2001, Plaintiff was exposed to lead when she was living in the family home in Milwaukee. AR 537. She was one and a half years old at the time. AR 537. Symptoms included paleness, bloated stomach and lethargy. AR 537.

Plaintiff was taken to a hospital and tests revealed her lead level was 215. AR 539. Plaintiff received an IV and was injected with several needles into her legs over 83 hours to reduce the amount of lead poisoning. AR 538. In addition, tubes were inserted into her nose and pills were taken. AR 541. This process was repeated several times. AR 541. Plaintiff was hospitalized for two weeks. AR 538. Plaintiff's mother was told the process would be lengthy because the lead got into Plaintiff's bones. AR 542. There were no side effects to the injections, but the pills might cause "black liver." AR 542. After the treatment, Plaintiff was told to return to the hospital every other week to receive an injection. AR 539. Plaintiff also received injections at home during the weeks she did not receive injections at the hospital. AR 539.

In October 2003, Plaintiff and her family moved to California and she received treatment at Valley Children's Hospital in Madera, California. AR 538, 540. Plaintiff was not hospitalized at Valley Children's, however, she was hospitalized at Kaweah Delta in Visalia, California in early 2004 for two days and two nights. AR 540, 541. The lead removal process in Milwaukee was not repeated at Kaweah Delta. AR 541. Plaintiff was never hospitalized again and her subsequent treatment was limited to medication. AR 540. However, she only took medication when her lead levels rose because one of the side effects of the medication was liver damage. AR 542. It has been more than a year since Plaintiff last took the pills. AR 542. Aside from black liver, side effects included loss of appetite, hyperactivity, loss of attention, and behavior problems. AR 543. Plaintiff's appetite still has not fully returned and she takes vitamins to ensure she receives the proper nutrients. AR 543.

Plaintiff received nursing visits while in Wisconsin and California. AR 543. The nurse analyzed Plaintiff's urine and provided Plaintiff's mother with dietary information to instruct Plaintiff on proper nutrition. AR 543. The urine tests were performed monthly for a duration of one to two years while Plaintiff resided in Wisconsin and California. AR 544. Plaintiff's urine is not currently tested. AR 544. The nurse also handled Plaintiff's injections and obtained medication for Plaintiff when her temperature rose or she had headaches. AR 544. Plaintiff suffers from headaches two to three times a week. AR 544. She takes Tylenol to alleviate the pain, however, the headaches often recur within two or three days. AR 545. No medication other than Tylenol is used to combat the headaches. AR 545.

Plaintiff also has difficulty walking due to pain in her leg bones. AR 545. Plaintiff is carried around by her mother when this occurs. AR 545. To ease the pain, Plaintiff's mother gives Plaintiff Tylenol and massages her legs for ten minutes while the pain dissipates. AR 547.

The lead poisoning also causes Plaintiff to have seizures, during which time she foams at the mouth. AR 545. The seizures occur once every one to two weeks, lasting from two to three minutes, after which time Plaintiff feels normal again. AR 547. The seizures have no side effects other than leaving the Plaintiff "very tired" for two to three hours. AR 547-548. Plaintiff received treatment at Valley Children's Hospital for the seizures, but was not prescribed mediation because the adverse side effects would outweigh the benefits. AR 548.

Plaintiff's mother stated Plaintiff was "not very smart like [her] other children" because Plaintiff did not "learn well and she does not function as well"as her siblings. AR 549. Plaintiff is unable to perform tasks when asked to do so. AR 549. For example, Plaintiff is unable to "straighten places," brush her teeth, or eat properly. AR 549. Plaintiff's siblings are able to perform these tasks with no problems. AR 549.

In kindergarten, Plaintiff's teacher noted Plaintiff had learning problems and difficulty performing arithmetic, and recommended that Plaintiff repeat the grade. AR 549. Plaintiff's mother did not agree to have Plaintiff retained. AR 549. However, as Plaintiff proceeded through her schooling, Plaintiff's mother expressed concern that Plaintiff may not pass second grade. AR 535. Lastly, Plaintiff's mother was told by physicians that Plaintiff will continue to have problems in her adult years. AR 550.

Medical Record

A. Public Health Nurse Lillarose Bangs

On November 4, 2002, a PHN Lead Referral sheet from Public Health Nurse Lillarose Bangs noted that Plaintiff's blood lead level ("BLL") decreased from 215 to 50. AR 340. Plaintiff received chelation therapy several times. AR 340. On January 14, 2005, Nurse Bangs reported that Plaintiff's BLL was at 44.5. AR 265. She visited Plaintiff's home where Plaintiff's mother informed her that Plaintiff was still having small seizures, not eating correctly, and complained of her bones hurting. AR 265.

In a letter dated November 9, 2006, Nurse Bangs stated the chelation procedure put a toll on the Plaintiff's body. AR 128. In addition, Plaintiff continued to have seizures, learning difficulties, problems sleeping and headaches. In a letter dated November 15, 2006, Nurse Bangs reported Plaintiff had been chelated approximately thirteen times. AR 248. Bangs stated that lead poisoning leads to severe permanent neurological damage in young children, impacting their reading and learning abilities, speech and language capabilities, and can cause mental retardation. AR 248. Plaintiff's symptoms include headaches, irritability, and abdominal pain which is consistent with lead poisoning AR 248. She also noted Plaintiff suffers from lack of sleep and suffers continuously from abrupt seizures. AR 248.

B. 2005 Function Report

On January 31, 2005, a Function Report was completed by Plaintiff's mother. AR 82-89. She noted that Plaintiff was not totally unable to speak; however, she had problems speaking clearly. AR 84. Plaintiff's speech could hardly be understood even by people who knew her well. AR 84. Plaintiff's mother noted Plaintiff's ability to communicate was limited. AR 85. Plaintiff was able to use complete sentences of more than four words most of the time, able to talk about what she was doing, and able to ask for what she wanted. AR 85. Plaintiff's mother reported Plaintiff's ability to communicate was limited. AR 85. Specifically, Plaintiff cannot ask many "what, why, and where" questions or take part in conversations with other children. AR 85. In addition, Plaintiff is unable to talk about activities that happened in the past and cannot tell familiar childhood stories, or answer questions about them. AR 85. Plaintiff cannot deliver simple messages such as telephone messages; however, she could recite numbers up to three, and knew her age. AR 86. Plaintiff could not count three objects (like blocks, cars or dolls), could not recite numbers to ten, could not identify most colors, did not know her own birthday, did not know her own phone number, could not define common words or read capital letters of the alphabet, and could not understand jokes. AR 86.

Plaintiff's mother also reported Plaintiff's physical abilities were limited; however, she was able to catch a large ball and could use scissors very well. AR 87. Plaintiff was affectionate toward parents and enjoyed being with other same-aged children. AR 87. Plaintiff also shared toys, took turns, and played "pretend" with other children. AR 87. Plaintiff was reported to control her bowels and bladder during the day, and eat using a fork and spoon by herself. AR 88. Plaintiff could not dress herself with or without help, could not wash or bathe ...


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