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Xiong v. Astrue

September 15, 2010


The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge



Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security (the "Commissioner" or "Defendant") denying her application for Supplemental Security Income ("SSI") pursuant to Title XVI of the Social Security Act (the "Act"). 42 U.S.C. §§ 405(g), 1383(c)(3). The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to the Honorable Sheila K. Oberto, United States Magistrate Judge.*fn1


Plaintiff was born in 1958 and has no formal education or past relevant work. (Administrative Record ("AR") 16, 23.) She speaks Hmong but cannot communicate in English. (AR 16, 24.)

On March 9, 2007, Plaintiff filed an application for SSI, alleging disability beginning on April 1, 2006, due to numbness, headaches, sleeplessness, and back and shoulder pain. (AR 81-88, 95.)

On April 25, 2007, Dr. Damania, an internist, performed a consultative examination of Plaintiff. (AR 154-60.) Before examining Plaintiff, Dr. Damania reviewed all of Plaintiff's available medical records. (AR 154.) Dr. Damania also physically examined Plaintiff. (AR 156-58.) The doctor's diagnostic impressions included chronic daily headaches probably secondary to stress, chronic abdominal pain (possibly peptic ulcer disease), and arthralgias.*fn2 (AR 158.)

Dr. Damania ultimately opined that Plaintiff could lift and carry 20 pounds occasionally and 10 pounds frequently (AR 158), i.e., Plaintiff could perform light work. See 20 C.F.R. § 416.967(b). Plaintiff could stand and walk for six hours in an eight-hour workday with normal breaks, and could sit for six hours. (AR 158.) Dr. Damania also opined that Plaintiff needed no assistive device for ambulation. (AR 158.) Further, Plaintiff had no postural, manipulative, visual, or communicative impairments. (AR 158-59.)

On April 29, 2007, Ekram Michiel, M.D., a psychiatrist, performed a consultative psychiatric evaluation of Plaintiff. (AR 161-64.) Dr. Michiel observed that Plaintiff was accompanied by her friend and daughter-in-law, with whom Plaintiff laughed and chatted loudly while in the waiting room. (AR 161.) Once Plaintiff entered the waiting room, however, "she stated that she feels sad and is in pain." (AR 161.) Dr. Michiel's diagnoses included depressive disorder not otherwise specified ("NOS") and a GAF score of 65.*fn3 (AR 163.)

Dr. Michiel opined that Plaintiff was able to maintain attention and concentration and to carry out simple instructions. (AR 163.) She was able to relate and interact with co-workers, supervisors, and the general public. (AR 163.) However, Plaintiff was unable to carry out an extensive variety of technical and/or complex instructions. (AR 163.) Plaintiff was further unable to handle her own funds, as she was unfamiliar with United States currency. (AR 163.)

On May 3, 2007, E.A. Fonte, a state agency medical consultant, assessed Plaintiff's physical residual functional capacity ("RFC"). (AR 165-69.) The consultant opined that Plaintiff could (1) occasionally lift and/or carry up to 50 pounds and frequently up to 25 pounds; (2) stand and/or walk for a total of about six hours in an eight-hour workday; (3) sit for about six hours in an eight-hour workday; and (4) perform unlimited pushing and/or pulling. (AR 166.) In other words, Plaintiff could perform medium work. See 20 C.F.R. § 416.967(c). Plaintiff had no postural, manipulative, visual, communicative, or environmental limitations. (AR 166-68.)

On June 12, 2007, Martin Koretzky, Ph.D., a state agency psychologist, completed a psychiatric review technique form pursuant to 20 C.F.R. § 416.920a(e). (AR 174-87.) Dr. Koretzky assessed Plaintiff's functional limitations and opined that Plaintiff's activities of daily living were not restricted. Plaintiff had no difficulties in maintaining social functioning, but had mild difficulties in maintaining concentration, persistence, or pace. Plaintiff did not experience episodes of decompensation. (AR 184.) Plaintiff's depressive disorder was, therefore, not a severe impairment. (AR 174, 177.)

From November 2006 through at least September 2008, Virender Kaleka, M.D., treated Plaintiff for complaints of stomach, leg, arm, neck, and knee pain, as well as weakness, headaches, dizziness, and insomnia. (AR 142-53, 192-97, 201-04.) On October 20, 2008, Dr. Kaleka completed a "Physical Capacities Evaluation" form. (AR 199-200.) Dr. Kaleka opined that Plaintiff could (1) sit for four hours in a day; (2) stand and walk for two hours in a day with periodic alternate sitting and standing; (3) frequently lift 20 pounds and occasionally 21-25 pounds but never more than 25 pounds; (4) not use her feet for repetitive movements; and (5) occasionally bend, squat, kneel, and stoop, but not crawl or climb. (AR 199.) Plaintiff was restricted from activities involving hazards such as machinery and heights. (AR 199.)

The Commissioner denied Plaintiff's application initially and again on reconsideration; consequently, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). (AR 32-52, 54-59.) On November 14, 2008, ALJ Christopher Larson held a hearing in which Plaintiff testified through an interpreter that she is married and lives at home with her husband and five children ranging from 4 years old to 18 years old. (AR 22.) All of her children are in school except her youngest child. (AR 22.)

Plaintiff testified that she cannot work because she is sick and has pain in her shoulder, making it hard to lift her hands over her head. (AR 24.) She has pain in her back ...

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