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LIS SAM v. MICHAEL J. ASTRUE

November 29, 2010

LIS SAM,
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 Lis Sam ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her 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 her applications on May 26, 2006, alleging disability since January 1, 2004, due to headaches, stomach pain, tailbone pain, spinal and hip fractures, muscle pain and post traumatic stress disorder ("PTSD"). AR 89-92, 125-132. After her applications were denied initially and on reconsideration, Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 54-57, 59, 68. ALJ Sandra K. Rogers held a hearing on April 21, 2008, and denied benefits on September 2, 2008. AR 7-23, 26-37. The Appeals Council denied review on April 9, 2009. AR 1-4.

Prior to these applications, Plaintiff filed for and received benefits from September 1989 through September 1994, when her disability was found to have ceased. AR 10. Subsequent applications in 1994 and 2004 were denied. AR 10. The 2004 application was denied by an ALJ decision dated May 12, 2006. AR 10.

Hearing Testimony

ALJ Rogers held a hearing on April 21, 2008, in Stockton, California. Plaintiff appeared with her attorney, Shellie Lott. Vocational expert ("VE") Stephen Schmidt also appeared and testified. Plaintiff was assisted by an interpreter. AR 26.

Plaintiff testified that she was 45 years old at the time of the hearing. She was single and lived with her children, mother and siblings. She has no education other than the "GAIN" program, which she attended for one year. AR 29. Plaintiff can only write her name. She understands spoken English "here and ... there." AR 30. She doesn't remember the last time she worked and testified that it has been "quite a while now." AR 30.

Plaintiff explained that she has nightmares about twice a month, when she sees her father and brother come back from the dead. Plaintiff was in labor camps in Cambodia and her nightmares relate to that experience. AR 30. Plaintiff also feels sad and depressed and is fatigued everyday. She takes care of her 19 year old disabled daughter, however. AR 30-31. Plaintiff sleeps about 2 or 3 hours during the day and about 4 or 5 hours at night. She sometimes doesn't eat during the day because of her depression. AR 31-32. Plaintiff also has trouble concentrating and although she watches television, she doesn't know what's going on. AR 32.

Plaintiff hurt her spine and lower back when she fell on a tree stump and "got a low fracture." She has pain and feels numb on the left side from her hips to her foot. AR 32. Plaintiff also has constant headaches. AR 33.

During the day, Plaintiff tries to cook and eat and then rests and watches television. She drives her child to school and drives to the grocery store. AR 33. Plaintiff's mother sometimes helps with cooking because Plaintiff often forgets something. Her siblings help her with chores. AR 33.

For the first hypothetical, the ALJ asked the VE to assume a person of Plaintiff's age, education and experience. This person could lift and carry 40 pounds and stand and walk for 6 to 8 hours, with breaks every 2 hours. This person could only perform simple, repetitive tasks. The VE testified that this person could perform the positions of hand packer, cleaner and assembly. AR 34.

If this person was limited to occasional bending, the positions of hand packer and cleaner would be eliminated. AR 35.

Plaintiff's attorney asked the VE to assume that this person was substantially limited in the ability to accept instructions and respond to criticism. The VE indicated that this person could still perform the assembly position. If this person was substantially limited in her interaction with the public, it would not have an impact on the previously identified positions. If this person was absent 3 to 4 times per month, this person could not perform any work. AR 35-36.

Medical Record Plaintiff saw her treating physician, Seang Seng, M.D., on June 4, 2004, and complained of continuing left knee pain. There was no edema or swelling in the left knee and no crepitation. Range of motion was "quite normal." Dr. Seng diagnosed left knee pain with an unremarkable examination and peptic ulcer disease. Plaintiff was provided with stretching exercises. AR 246.

Plaintiff returned to Dr. Seng on September 3, 2004. He described her as having a history of "known somatization along with chronic pain in the knees and also chronic headache." He also noted that her medications appeared to control her symptoms "quite well." Plaintiff was in no acute distress. Strength on both sides was normal despite Plaintiff's complaints of weakness on the left side. There were no signs of atrophy. Dr. Seng assessed Plaintiff as stable and refilled her medications. AR 244.

In November 2004, Plaintiff received emergency room treatment after she fell onto her buttock and complained of pain. Plaintiff was mildly to moderately tender in the sacrococcygeal junction. The physician described the x-rays as showing a questionable coccygeal fracture, though the x-rays indicated that there was no fracture. AR 158-173.

Plaintiff saw Dr. Seng on November 15, 2004, in follow-up to her emergency room visit. She was in no acute distress, but had tenderness over the coccyx area. There were no bruises, lacerations or abrasions in the area. Plaintiff moved her extremities well and she had good tone and muscle strength. Dr. Seng diagnosed coccygeal pain and constipation. He refilled her Vicodin and ordered x-rays. AR 242.

On November 16, 2004, Plaintiff underwent x-rays of her sacrum and coccyx. The sacrum was normal. The angulation of the coccyx with the sacrum was most likely a normal variant. AR 312.

On December 10, 2004, Plaintiff told Dr. Seng that she continued to have pain in the coccyx area, though it was not as bad. Her examination was unremarkable except for mild tenderness over the coccygeal area. AR 240.

Plaintiff saw Dr. Seng on March 9, 2005, for back pain over her coccyx area. He noted that this issue has been worked up in the past and that x-rays were unremarkable. AR 238. Her examination was normal and Dr. Seng diagnosed chronic back pain and peptic ulcer disease, stable. AR 238.

Plaintiff returned to Dr. Seng on June 9, 2005, after the pharmacy would not refill her Tylenol No. 3 and her headache and back pain worsened. Plaintiff was in no acute distress and her examination was normal. Dr. Seng assessed chronic headache and back pain, stable, and refilled her Tylenol No. 3. AR 197.

Plaintiff saw Dr. Seng on September 8, 2005, for medication refills. She reported that Tylenol No. 3 helped her headaches and helped her function well. Her examination was normal. AR 194.

Plaintiff returned to Dr. Seng on December 8, 2005, for complaints of aches and pains, chronic headaches, fatigue, loss of energy and weight loss. Plaintiff was in no acute distress and had lost 10 pounds since the last visit. Dr. Seng diagnosed fatigue with weight loss and ordered testing. AR 192.

On March 10, 2006, Plaintiff saw Dr. Seng for complaints of chronic low back pain and chronic headache. Plaintiff reported that her back pain was getting worse and that she was not able to sleep. She was in no acute distress and other than subjective tenderness, there were no findings related to her back. Dr. Seng noted that she had a normal physical and diagnosed chronic headaches, chronic back pain and insomnia. AR 190.

Plaintiff underwent x-rays of her lumbar spine on March 10, 2006. The x-rays revealed small osteophytes. The vertebral height and disc height were normal, there was no osteopenia and the spinal canal was not compromised. AR 198.

In June 2006, Plaintiff began seeing Les Kalman, M.D., and complained mainly of nightmares. She also reported hallucinations of her father. Plaintiff was tearful and crying and was not alert. Her insight was fair. Plaintiff's mood was depressed and her affect was constricted. Dr. Kalman diagnosed PTSD. AR 395-398.

On August 19, 2006, Plaintiff saw Usman Ali, M.D., for a consultive physical examination. Plaintiff complained of low back pain, headaches and radiating knee joint pain. She reported that she fell on a tree trunk a few years ago and sustained a fracture. Plaintiff's examination was essentially normal, though mild back pain was noted and straight leg raising was done up to 40 degrees without pain. Plaintiff also had mild tenderness to epigastric palpation. Motor strength was 5 out of 5 and sensation was intact. Dr. Ali diagnosed low back pain and gastritis versus peptic ulcer disease. He believed that Plaintiff may be able to lift and carry about 40 pounds and could stand and walk for 6 to 8 hours, with breaks every 2 hours. Plaintiff had no restrictions in sitting or climbing, though she may have some difficulty performing repeated bending movements. AR 203-206.

Plaintiff returned to Dr. Kalman on August 20, 2006. She complained of headaches but reported that she was sleeping better. Dr. Kalman diagnosed PTSD and migraine headaches. AR 395.

On September 23, 2006, Plaintiff saw James Scaramozzino, Ph.D., for a consultive psychiatric evaluation. Plaintiff complained of chronic pain, financial worries, depressed mood, sleep disturbance, no appetite, poor concentration and memory and headaches. Plaintiff rated her pain at a 10 out of 10, though she did not appear to be in any distress during the evaluation. Plaintiff also explained that she was worried about how she would survive since her primary income is her daughter's disability benefits and her daughter is turning 18 soon. Plaintiff reported no formal education and no work outside of the home. As for her daily activities, Plaintiff reported that she wakes up, eats, showers, takes her medicine and organizes her day around her errands. ...


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