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Yang v. Astrue

September 22, 2010

CHA YANG, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

BACKGROUND

Plaintiff Cha Yang ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his applications for disability insurance benefits and supplemental security income pursuant to Titles II and 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 Dennis L. Beck, United States Magistrate Judge.

FACTS AND PRIOR PROCEEDINGS*fn1

Plaintiff filed his applications on September 20, 2006, alleging disability since March 22, 2005, due to depression, headaches, weakness and suicidal thoughts. AR 81-82, 312, 313. After his applications were denied initially and on reconsideration, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 64, 65-69, 71-75, 312, 313. ALJ Bert C. Hoffman, Jr., held a hearing on March 14, 2008, and issued an order denying benefits on June 20, 2008. AR 9-22, 317-344. On June 19, 2009, the Appeals Council denied review. AR 2-4.

Plaintiff filed a previous application for benefits that was denied by decision dated March 21, 2005. The Appeals Council denied review on July 27, 2006. AR 12.

Hearing Testimony

ALJ Hoffman held a hearing in Fresno, California, on March 15, 2008. Plaintiff attended the hearing with his attorney, Sengthiene Bosavanh. An interpreter also assisted at the hearing. AR 317.

Plaintiff testified that he was born in 1946 and was divorced. He lives with a friend and has a driver's license, though he can't drive any more because of pain in his leg and back. AR 322-323. Plaintiff has not attended school. AR 325. He last worked as a machine operator but had to stop because he was sick. AR 326.

Plaintiff explained that he could not perform the position anymore because he has pain in his back and right leg. AR 328. He has severe back pain and cannot sit in a chair. Sitting on the ground against the wall helps for a little while, though he can only sit like that for ten minutes. AR 328. Plaintiff thought that he could sit for five minutes at a time and could stand and/or walk for ten minutes. AR 329. He could lift a gallon of milk and could carry it for five or ten minutes. AR 330. Plaintiff uses a cane all the time but it has not been prescribed. AR 331. He did not use it at the hearing, however, as he left it in the car. AR 331.

Plaintiff testified that he suffers from depression and has nightmares every night or two. Plaintiff fought in the war when he was 10 and his dreams are usually about relatives or friends that died in the war. AR 332. He also gets headaches, which last almost all day before medication helps, once a week. AR 334. Plaintiff suffers from stomach pains, as well. AR 334.

Plaintiff testified that he has problems remembering things every day and that he cannot concentrate or focus because he is sick. He testified that watching television and listening to the radio make him sick mentally. AR 335.

Plaintiff further testified that he has friendly neighbors and that he talks to them every time he goes outside. He also smokes cigarettes with his friends when he goes outside. AR 337.

Plaintiff takes medication for his depression but sometimes goes without. AR 338. When he doesn't have his medication, his depression is worse. AR 339. During the day, Plaintiff doesn't do much other than sitting and laying down. AR 339.

Medical Evidence

In October 2003, Plaintiff began receiving treatment from Fresno County Mental Health. AR 252.

On June 16, 2004, Plaintiff was examined by Wen Liang Chu, M.D. He complained of depression and pain in his back and knee. On mental status examination, his mood was depressed and he gave conflicting reports of his functioning level. Dr. Chu diagnosed depression, not otherwise specified, rule out malingering. AR 266-267.

In May 2005, Plaintiff reported that his only complaint was that he was fighting his SSI denial. He was alert and in a bright mood and reported that his depression was connected to the fact that he had no income. Plaintiff wanted to stay with Mental Health until he gets SSI. Plaintiff agreed that he was stable but worried how discharge would affect this SSI. AR 259.

In August 2005, Plaintiff presented as rested and nicely dressed and groomed. He and his girlfriend went on a vacation to Eureka for two weeks and he enjoyed fishing and visiting with friends. Plaintiff reported that his depression had improved and stated that if he had money and good health, he would never be depressed. He acknowledged that he had met his goal of treatment but requested that his case be left open because of the pending SSI application. AR 252.

On April 15, 2006, Plaintiff underwent a psychological examination performed by Vang Leng Mouanoutoua, Ph.D. Plaintiff reported that he lived with his girlfriend and her children. He explained that he was drafted into the Laotian army and fought in the Secret War funded by the American Central Intelligence Agency for 15 years. He was wounded during his service and lost many friends and relatives. When the communists took control of Laos, he joined the anticommunist forces in the jungle. In 1988, Plaintiff and his family escaped to Thailand and two years later, came to the United States. Plaintiff worked in Michigan for 12 years before moving to Fresno in 2003 because he suffered back and shoulder pain and could no longer work. Plaintiff reported excessive depressed feelings, lingering fear from nightmares about the war, agitated mood, startle responses to noise, irritability, social isolation, poor sleep, poor appetite and body weakness. Plaintiff was taking antidepressant medication and receiving treatment from Fresno County Mental Health. AR 148-149.

On examination, Plaintiff was quiet and withdrawn, but was cooperative and followed simple instructions in his native language. Plaintiff demonstrated good long-term memory but poor short-term memory. He attempted one-step instructions with encouragement and he sometimes needed repetition of instructions to keep him focusing on the tasks at hand. Plaintiff lost his concentration easily toward the end of the interview. Despite his sadness and agitated mood, Plaintiff appeared to be doing his best in responding to what was asked of him. AR 149-150.

Dr. Mouanoutoua diagnosed major depressive disorder, severe, post-traumatic stress disorder, delayed onset, and "acculturation problems, survival from war, and chronic medical problems." His GAF was 45. Dr. Mouanoutoua noted that Plaintiff suffered from many symptoms, including low stress tolerance, lingering fear from nightmares, body weakness, depressed feeling and preoccupation with back pain that prevent him from learning new information and job skills. Plaintiff cannot follow complex tasks and his impairments impact his ability to learn English and perform repetitive tasks for an 8 hour day. AR 151-152.

Plaintiff returned to Fresno County Mental Health on April 21, 2006, and was distraught over not receiving SSI. He stated that his attorney told him to go to mental health "as that would give him more points toward being approved." Plaintiff was angry and preoccupied with not having an income. AR 251.

On April 28, 2006, Plaintiff reported that he has only been getting two hours of sleep a night. He also reported that for the past four years, he constantly hears bullets going off in both ears day and night. Plaintiff was bored all day because he doesn't like to watch television or listen to the radio. He mostly felt angry and stressed over having no income and not being able to work. AR 250.

In May 2006, Plaintiff reported that he was worse because he had more body pain. AR 246. On May 17, 2006, Plaintiff was alert and well oriented to the discussion. He was responding to questions with appropriate eye contact and effectively engaged himself in group discussion. AR 244.

Treatment notes from July 2006 indicate that Plaintiff would be taken out of group for multiple no shows. AR 232-233.

On September 15, 2006, Plaintiff attended group therapy and appeared somewhat active and focused on the tasks, though he was slightly confused. He was very depressed due to his feelings of hopelessness/helplessness. Plaintiff indicated that being a soldier in the war caused his mental problems. AR 218.

On November 17, 2006, Plaintiff attended group therapy and was in a positive mood. He showed good interaction with staff and peers and appeared to enjoy group interaction. His continued good coping skills were noted. AR 207.

On December 4, 2006, Plaintiff saw Dr. Chu and reported that he had run out of Wellbutrin. He also indicated that he was applying for SSI and asked Dr. Chu to write a letter. Dr. Chu noted that Plaintiff was stable and diagnosed depression, not otherwise specified, rule out "malingering to get SSI." AR 205.

On December 14, 2006, Plaintiff saw Greg Hirokawa, Ph.D., for a consultive psychiatric examination. Plaintiff was cooperative throughout the interview, though his participation effort was questionable because he was not able to answer most questions. Plaintiff reported that his depression was due to his physical problems and his inability to work. Plaintiff also reported that he was in a psychiatric hospital in October 2006 for seven days. Plaintiff told Dr. Hirokawa that he stopped working due to stress and difficulty concentrating. On examination, Plaintiff's mood was depressed and his affect was restricted. His intellectual functioning was within the average range. Plaintiff's recent memory was intact but his past memory appeared selectively limited.

Plaintiff was not able to perform a simple three step command and was not able to repeat three numbers consecutively, though his concentration for conversation was adequate. AR 306-309.

Dr. Hirokawa diagnosed depressive disorder not otherwise specified. Plaintiff's GAF was 62. He noted that Plaintiff's participation effort was poor or questionable as he was not able to answer questions throughout the interview. His symptoms of depression were in the mild range. Dr. Hirokawa believed that Plaintiff could understand, remember and carry out both short instructions and detailed instructions. His ability to maintain attention and concentration for extended periods was good. Plaintiff could also accept instructions and respond appropriately to criticism, perform activities within a schedule, maintain regular attendance, sustain an ordinary routine and interact with co-workers. AR 310-311.

On December 21, 2006, Plaintiff underwent an internal medicine evaluation performed by Rustom F. Damania, M.D. Plaintiff complained of pain in his body, back, leg and hand, as well as daily headaches for the past five years. On examination, Plaintiff was in no acute distress. He walked with a normal gait, though very slowly, and did not use an assistive device. He was alert, cooperative and well-oriented in all spheres. Range of motion in his neck was normal. Plaintiff had slight tenderness in his back and range of motion was limited. Straight leg raising was negative and muscle tone was equal throughout. Dr. Damania diagnosed multiple arthralgias, with probable mild degenerative joint disease of the lumbosacral spine with no clinical evidence of radiculopathy. He opined that Plaintiff could lift and carry 20 pounds occasionally, 10 pounds frequently, stand and walk for six hours and sit for six hours. Plaintiff did not need an assistive device. There was no objective reason for postural limitation, though Plaintiff did not make a good effort for range of motion of the lumbar spine. AR 299-304.

In January 2007, a State Agency Physician determined that Plaintiff's physical impairments were not severe. AR 292, 297.

Plaintiff continued his treatment with Fresno County Mental Health through February 2007. AR 195-204.

Treatment notes from Fresno County Mental Health dated April 13, 2007, indicated that Plaintiff participated in the group and enjoyed the interaction. Plaintiff appeared somewhat tired and withdrawn and he reported that his depression was the same. AR 153.

On May 4, 2007, Plaintiff was described as depressed but he seemed to enjoy staff encouragement. AR 154.

On May 7, 2007, Plaintiff saw Dr. Chu. He reported that Wellbutrin helped him sleep. His mood, insight and judgment were described as normal. Dr. Chu noted that he was of average intelligence. AR 175.

On May 9, 2007, State Agency physician J. A. Collado completed a Mental Residual Functional Capacity Assessment form. Dr. Collado opined that Plaintiff was moderately limited in his ability to understand, remember and carry out detailed instructions. Plaintiff retained the ability to understand, remember and carry out simple instructions, maintain socially appropriate behavior, respond appropriately to criticism and respond appropriately to changes in the work setting. AR 269-271.

Also on May 9, 2007, State Agency Physician Harvey Biala, M.D., completed a Psychiatric Review Technique form. Dr. Biala opined that Plaintiff had mild restrictions in activities of daily living and mild difficulties in maintaining social functioning. Plaintiff was moderately limited in maintaining concentration, persistence and pace. AR 277-291. This was affirmed on January 11, 2007. AR 277.

On May 11, 2007, therapy notes indicated that Plaintiff continued to have symptoms of depression, anxiety and isolation that interfered with his daily social interactions and activities. AR 155.

In June 2007, Plaintiff reported that he continued to be depressed due to health issues. He isolates himself at home, where he watches television, listens to the radio and goes outside to get fresh air. Plaintiff also reported that he had difficulty ...


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