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Keo v. Commissioner of Social Security

November 23, 2010

VETH KEO, 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 (Docs. 15 & 16) and defendant's cross-motion for summary judgment (Doc. 17).

I. PROCEDURAL HISTORY

Plaintiff first applied for social security benefits on December 28, 2000. The claim was denied following an administrative hearing held on June 12, 2002. Plaintiff did not appeal. Plaintiff applied again for social security benefits on March 21, 2007. In the application, plaintiff claims that disability began on October 31, 2006. Plaintiff claims that disability is caused by a combination of "depression memory loss, both knee pain, and back pain, head." Plaintiff's claim was initially denied. Following denial of reconsideration, plaintiff requested an administrative hearing, which was held on June 10, 2008, before Administrative Law Judge ("ALJ") Sandra K. Rogers. In a September 29, 2008, decision, the ALJ concluded that plaintiff is not disabled based on the following relevant findings:

1. The claimant has the following severe impairment: post-traumatic stress disorder;

2. The claimant's impairment does not meet or medically equal an impairment listed in the regulations;

3. The claimant retains the residual functional capacity to perform the full range of work at all exertional levels with the following non-exertional limitations: only simple repetitive tasks with only occasional public contact; and

4. Based on the claimant's age, education, work experience, and residual functional capacity, the Medical-Vocational Guidelines direct a finding of not disabled.

After the Appeals Council declined review on May 28, 2009, this appeal followed.

II. SUMMARY OF THE EVIDENCE

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

May 12, 2007 -- Plaintiff was evaluated by agency examining psychologist James A. Wakefield, Ph.D. Dr. Wakefield reported the following background: Veth is a 50 year old Cambodian speaking woman who reports having depression, memory loss, pain in both knees, back pain, and headaches. She has never attended school. Veth worked as an in-home care provider, taking clients to doctors' appointments and visits, preparing food, and doing laundry. She stopped working in February 2006. She takes Ibuprofen, Metronidazole, and Trazodone.

Veth reports that she takes unnamed medications for dizziness, tight nerves, poor sleep, and an infection. During the day, she cooks if she is feeling well; otherwise, she stays in bed. Veth was exposed to the war in Cambodia. . . . Veth has friends, but she never goes to see them.

After conducting an examination, Dr. Wakefield offered the following summary and recommendations:

Veth is a verbally fluent 50 year old Cambodian woman who reports having depression, memory loss, pain in both knees, back pain, headaches, and bad dreams, as well as exposure to wartime conditions and no schooling. Her intellectual ability was measured in the deficient range, although her verbal fluency and her mature nonverbal behaviors suggested a high level of ability. Since no record showing a developmental disability during childhood was available, Borderline intellectual functioning is provisionally diagnosed. Veth shows some symptoms of post-traumatic stress but does not appear to have a psychotic disorder.

The doctor noted that he was unable to assign a GAF score "due to reduced effort." He continued his summary as follows:

Veth presents herself as not able to handle her own funds, although stronger ability in this area is suspected. Veth's responses to the tests indicate that she can follow simple work rules, although her ability to follow more complex procedures could not be assessed due to reduced effort. Veth is able to interact with co-workers, supervisors, and the public at a minimally acceptable level in her native language. She is able to sit, stand, walk, move about, handle objects, hear, speak, and travel adequately, although reported pain may limit the duration of some of these activities. Veth's ability to reason and make occupational, personal, and social decisions in her best interests is presented as deficient. Her social and behavioral functioning were appropriate for her age and did not suggest immaturity that would be consistent with the test results. Veth's concentration, persistence, and pace are presented as deficient, although stronger abilities are suspected.

May 16, 2007 -- Agency examining doctor Philip Seu, M.D,. performed a comprehensive internal medicine evaluation. Plaintiff reported the following history via an interpreter:

The claimant reported that she has had headaches for approximately 3-4 years. She gets an average of 3-4 headaches a week. They usually involve her occipital region as well as the top of her scalp and the headaches are bilateral. She does not have an aura. She reported associated dizziness and occasional nausea. She denied vomiting or photophobia. She has seen a physician for this. She has not had any specific testing done. She takes Tylenol which provides some relief. She does not have a history of serious head trauma. She has not had a CT scan of the had. She has had no hospitalizations or emergency room visits for these symptoms. She has not suffered any falls or other injuries associated with these complaints.

As to daily activities, plaintiff reported that she is at home and takes care of several children. She told the doctor she does basic housework such as cooking, cleaning, and laundry. Following his physical examination, the doctor reported that plaintiff's ability to sit/stand is unlimited. Plaintiff does not require any assistive devices for ambulation. Plaintiff's weight-bearing ability is unlimited. No postural limitations were presented, and plaintiff does not have any visual manipulative, communicative, or environmental limitations.

June 6, 2007 -- Agency consultative psychiatrist D.R. Conte, M.D., completed a mental residual functional capacity assessment. The doctor concluded that plaintiff was moderately limited in her ability to understand and remember detailed instructions, her ability to carry out detailed instructions, her ability to work in coordination with or proximity to others, ability to complete a normal workday and workweek without psychological disruptions, and her ability to interact appropriately with the general public. In all other areas, plaintiff was assessed as not significantly limited. In notes appended to the assessment forms, Dr. Conte stated that the medical evidence of record does not support plaintiff's claim of memory loss and that the body of evidence supports the conclusion that plaintiff can perform simple, repetitive tasks.

August 21, 2007 -- Plaintiff, through her son as translator, submitted a function report as part of her current application. Plaintiff stated that she spent a typical day at home most of the time watching television "or sitting on back porch depressed most of the time." Plaintiff reported that she cannot forget about her family being killed and that she is afraid all the time. Plaintiff also stated that she has difficulty sleeping because she has frequent nightmares and afterwards is upset and cannot go back to sleep. Plaintiff stated that when she is severely depressed she needs assistance bathing and dressing. As to other activities of daily personal care, plaintiff did not state she needed assistance. As to meals, she stated her son "take care of everything for her." Similarly, she stated that her son does all the house and yard work. Plaintiff stated she is unable to shop alone and when she does shop it is only two or three times a month. She stated she is unable to handle paying bills, counting change, handling a savings account, or using a checkbook. Plaintiff stated her inability to handle finances was due to loss of concentration and memory. Plaintiff stated she is not dependable. As to social activities, plaintiff stated that she does not spend any time with others and most of the time sits alone in her room.

August 21, 2007 -- Plaintiff's son Chetakna Chou submitted an adult function report regarding plaintiff's abilities. The statement is essentially the same as the August 21, ...


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