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Sammy Voravong v. Michael J. Astrue

January 24, 2011


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 his application for Supplemental Security Income ("SSI") pursuant to Title XVI of the Social Security 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 1961, has a fifth-grade education, is illiterate in English, and has no past relevant work. (Administrative Record ("AR") 23, 256.) On July 18, 2002, Plaintiff filed an application for SSI, alleging disability beginning on January 1, 2001, due to diabetes, depression, flashbacks, body pain and weakness, and loss of interest in activities. (AR 112.) Following an administrative hearing, Administrative Law Judge ("ALJ") Michael J. Haubner denied Plaintiff's application on June 21, 2004. (AR 109-19.)

On November 26, 2004, Maximo Parayno, Jr., M.D., a psychiatrist, performed a consultative psychiatric evaluation of Plaintiff. (AR 174-78.) Dr. Parayno noted that Plaintiff was a married Laotian man who fought in Laos as a guerrilla fighter. (AR 174.) Dr. Parayno diagnosed Plaintiff with post-traumatic stress disorder and major depressive disorder. (AR 177.) Dr. Parayno also found as follows:

We have a 42 year old male who had a psychological trauma during the war in Laos in which his close friends and relatives died around him. His parents were killed in the jungle. As a consequence of his traumatic experience, he started developing recurrent nightmares, flashbacks and intrusive thoughts about the events that happened in his life during the war. He also started having depressive symptoms with all its biological correlates of impaired sleep and appetite, loss of interest in pleasure, feeling hopeless and worthless, tired most of the time, poor concentration and attention span and impaired memory for both remote and recent events. He also had psychotic symptoms in the form of auditory hallucinations. On mental status examination, he was somewhat disoriented to time and place. On the recall of 5 items, he remembered only 1 out of 5. On the forward digit span, he was not able to recall the 7-digit numbers. His activities of daily living are restricted and depends on his family for his basic needs. His social life is constricted as a result of his fear of having a seizure episode if he leaves the house and also from his depression. In summary, it is apparent he is not capable of engaging in any substantial gainful activity although he had a work history while living in Utah in the past. His mental disability has impaired his capacity to work. He is also considered not competent to handle his funds.

(AR 177-78.)

On December 26, 2004, Dr. Parayno completed a psychiatric review technique form on which he opined that Plaintiff's affective disorder and anxiety disorder met Listings 12.04 and 12.06 because Plaintiff had marked limitations in activities of daily living, marked difficulties in maintaining social functioning, and marked difficulties in maintaining concentration, persistence, or pace. (AR 179, 184.)

On March 1, 2005, Plaintiff again applied for SSI, alleging disability beginning on June 22, 2004. (AR 102.)

On April 24, 2007, Virender S. Kaleka, M.D., a psychiatrist, opined that Plaintiff had "difficulty in focusing on task and poor concentration. Therefore, he can't pay attention to do any work." (AR 197.) Dr. Kaleka further opined that Plaintiff had a poor ability to (1) follow work rules; (2) relate to co-workers; (3) deal with the public; (4) use judgment; (5) interact with supervisors; (6) deal with work stress; (7) function independently; and (8) maintain attention and concentration. (AR 199.) Plaintiff's ability to understand, remember, and carry out simple, detailed, or complex job instructions was also poor. (AR 200.)

After Plaintiff's claim was denied initially and on reconsideration, ALJ James P. Berry denied Plaintiff's application on July 3, 2007, following an administrative hearing. (AR 99-108, 288-317.) On March 25, 2008, the Appeals Council vacated ALJ Berry's decision and remanded the case to another ALJ. (AR 120-24.) Among other things, the Appeals Council made the following finding:

In assessing [Plaintiff's] residual functional capacity, the [ALJ's] decision rejected the medical opinions of [Plaintiff's] treating psychiatrist V.S. Kaleka, M.D., and the consultative examiner Maximo A. Parayno Jr., M.D., who both found [Plaintiff] to have marked limitations in his ability to perform mental work-related activities. However, the decision did not provide an adequate basis for rejecting the opinions and did not provide a basis for the assessed limitations set forth in the decision.

(AR 122 (internal citation omitted).) The Appeals Council, therefore, remanded the case for an ALJ, among other things, to "[g]ive consideration to the treating and examining source opinions" and to "explain ...

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