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Mee Xiong v. Michael J. Astrue

January 4, 2011

MEE 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 Mee Xiong ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying his application for supplemental security income under 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 protectively filed an application for supplemental security income on January 12, 2006, alleging disability beginning September 1, 1999, as the result of mental and physical impairments stemming from a seizure disorder and hearing loss. (AR 15, 17). Plaintiff's application was denied initially and on reconsideration, and subsequently he requested a hearing before an Administrative Law Judge ("ALJ"). (AR 79-90, 105). ALJ Bert C. Hoffman, Jr. held a hearing on September 11, 2008, and issued an order denying benefits on February 27, 2009. (AR 15-21). On June 26 2009, the Appeals Council denied review. (AR 8-11).

Hearing Testimony

Mee Xiong

On September 11, 2008, in Fresno, California, ALJ Hoffman held a disability hearing during which Plaintiff, represented by attorney Robert Shakon, appeared and testified with the assistance of an interpreter, Chi Yang. (AR 23-41). Plaintiff's father, Yong Xiong, also testified. (AR 41-51, 56-62).

At the time of the ALJ's hearing, Plaintiff was a twenty-one year-old male living in Fresno, California with his parents. (AR 27-28). He attended Washington Union High School and was generally enrolled in special education classes. (AR 40). While at Washington Union, he typically earned average marks in his classes, but he was unable to complete the course work required to graduate before he turned twenty. (AR 57).

Currently, Plaintiff is attending adult school. His class schedule fluctuates from twice a week to daily, depending on his course load. (AR 39). His classes are taught in English, and he took English while attending Washington Union High School, but his mastery of the language remains elusive. Plaintiff attributed this to his inability to remember his English lessons. (AR 48-49).

Plaintiff sometimes gets lost when riding his bike to and/or from the local convenience store. (AR 42, 50). He has some concept of money, as he knows if the convenience store clerk is giving him correct change, yet he does not think he could work as a cashier at McDonalds because the position is "difficult." (AR 49-50). Plaintiff, however, believes he could do other duties of a McDonalds' employee, such as wiping tables and washing dishes, because he is already doing those tasks at home. (AR 50). He does not particularly enjoy doing dishes at home, and complains of being tired, but he tries the best he can and often he just does it because his mother told him to. (AR 50-51). Occasionally, he helps his father and brother-in-law with bundling vegetables for retail sale and sometimes picking vegetables. (AR 46-47). Plaintiff enjoys walking to his relatives' residence, who live in a nearby apartment complex. He also enjoyed going on bike rides with his friends to a local Chinese buffet restaurant. (AR 45-46).

When Plaintiff is about to suffer a seizure, he is alerted by a little pain in his head and feelings of disorientation. (AR 43). After his seizure, he is dizzy and it takes from thirty minutes to an hour for him to regain his composure. (AR 44). He last had a seizure a month or two ago. (AR 44). He takes medication daily to control his seizures, and he admits that the medication helps him experience fewer seizures, but the medication also causes memory difficulty, and as a result, sometimes he forgets to take his medication. (AR 42, 45).

Yong Xiong

Yong Xiong, Plaintiff's father, provided lay testimony at the hearing. He testified that when Plaintiff is struck with a seizure, he stands up, raises his arms, he will not blink, and he begins making a chewing motion. (AR 56, 59). He states that Plaintiff's seizures can last from two to three minutes and that Plaintiff needs to lie down for about thirty minutes after the seizures pass. (AR 56-57). Mr. Xiong and his wife remind Plaintiff to take his medicine daily. Mr. Xiong believes that if Plaintiff takes his medication daily that he can reduce the seizure occurrence to two or three seizures per month*fn3 . (AR 58-60). However, without the medication, Plaintiff suffers seizures approximately once or twice a day. (AR 59).

Medical Record

The entire medical record was reviewed by the Court. Those records relevant to the issues on appeal are summarized below. Otherwise, the medical evidence will be referenced as necessary in the Court's decision.

Ronaldo A. Ballecer, M.D.

Dr. Ballecer's medical records consist solely of an audiogram*fn4 which resulted in a diagnosis of"[s]evere right conductive hearing loss [and] normal hearing in the left ear," on January 17, 2005. (AR 213). He recommended that Plaintiff "avoid unnecessary noise exposure and use ear protectors as needed." (AR 213). The doctor's examination also includes a simple "-" notation next to the word "[s]eizures," apparently indicating no objective sign of seizures was present at the time. (AR 213).

Kings Winery Medical Clinic (KWMC)

Plaintiff received medical care at KWMC from November 13, 2004, through July 21, 2008. (AR 215-223, 259-261, 287-289, 293-300, 304-315, 319). While more than one physician provided Plaintiff with treatment during the aforementioned period, his primary KWMC care giver was Tou C. Vang, M.D. (AR 319), however, Plaintiff also received care on at least two occasions from M. Parayno, M.D. (AR 304-315) and on at least one occasion by a "Dr. Krueger" (AR 299-300). The records from this facility entail the single largest contribution of medical evidence to this case. Yet other than the September 2008 letter from Dr. Vang, these medical records consist almost exclusively of handwritten progress notes, often illegible, that only briefly document objective information pertaining to Plaintiff's hearing loss and seizure disorder.

On January 31, 2005, Plaintiff complained about his poor hearing, and his sister reported to the attending physician that his hearing was adversely impacting his ability to learn at school. (AR 217). The attending physician recommended Plaintiff "[a]void unnecessary noise exposure [, and] use ear protection." (AR 217).

The following year, on June 19, 2006, the progress notes begin to document seizures as part of Plaintiff's medical assessment. (AR 299). The attending physician's notations indicate that Dr. Krueger had previously treated Plaintiff's seizure disorder, including prescribing medication. (AR 299). The KWMC physician recommended continuing the medication regimen proposed by Dr. Krueger. (AR 299).

On June 20, 2006, Plaintiff was referred to Dr. Parayno for psychiatric care stemming from his subjective complaints of depression*fn5 . (AR 298). Plaintiff attributed the onset of his depression to his ongoing seizure disorder. (AR 298).

Plaintiff's father, Yong Xiong, accompanied him to his January 20, 2007, KWMC appointment and complained that the current level of Plaintiff's seizure medication was inadequate. The elder Xiong explained that Plaintiff was suffering seizures once or twice per month, apparently despite his current prescription regimen. (AR 293). Later, on September 10, 2007, Yong Xiong reported that Plaintiff had suffered seizures twice while at school. (AR 308). The progress note of September 10, 2007, also states, "new [medication] not working as well." (AR 308). In inconsistent fashion, the progress note of September 14, 2007, states "[history of] uncontrolled [seizures]." (AR 308). The history of uncontrolled seizures is also noted on the progress note of January 30, 2008. However, on July 21, 2008, the attending physician again identified a history of seizures, but also stated they were controlled with medication. (AR 304).

Finally, on September 1, 2008, Dr Vang provided a narrative report which explained the onset of Plaintiff's seizures as resulting from a traumatic brain injury suffered when he was thirteen. (AR 319). Dr. Vang reported that Plaintiff's seizures cause his eyes to roll up, his extremities to stiffen, and a loss of consciousness for two to three minutes, but no loss of bladder control or bowel function, and no tongue biting. (AR 319). Dr. Vang noted that Plaintiff had been prescribed Phyenytoin ER and Keppra by a neurologist, yet "[h]e continues to have seizure[s] once or twice per month. He also has poor attention and poor memory. He was also seen by a psychiatrist who diagnosed him as having a 'cognitive deficit.'" (AR 319). Dr. Vang concluded by opining "[Plaintiff's] ability to work and learn is limited because of his uncontrolled epilepsy, cognitive deficit, and [by] the side effect[s] of his medications which can cause drowsiness." (AR 319).

University Medical Center (UMC)

On December 24, 2005, Plaintiff underwent a CT scan of his head. (AR 258). The doctor's impression noted a low density abnormality in the right temporal region; he suspected this finding was related to ...


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