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Malay Kong v. Michael Astrue

February 16, 2011


The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge


Plaintiff Malay Kong, proceeding in forma pauperis , by her attorneys, Law Offices of Lawrence D. Rohlfing, seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for supplemental security income ("SSI"), pursuant to Title XVI of the Social Security Act (42 U.S.C. § 301 et seq.) (the "Act"). The matter is currently before the Court on the parties' cross-briefs, which were submitted, without oral argument, to the Honorable Sandra M. Snyder, United States Magistrate Judge. *fn1 Following a review of the complete record and applicable law, this Court reverses the Commissioner's decision and remands for further proceedings consistent with this opinion. /// /// ///

I. Administrative Record

A. Procedural History

On July 13, 2005, Plaintiff filed for supplementary security income, alleging disability beginning January 20, 2006. *fn2 AR 9. Her claim was initially denied on January 12, 2007, and upon reconsideration, on August 6, 2007. AR 9. On September 11, 2007, Plaintiff filed a timely request for a hearing. AR 9. Plaintiff appeared and testified through a Khmer interpreter at a hearing on November 21, 2008. AR 19-32. On October 24, 2007, Administrative Law Judge Stephen W. Webster ("ALJ") denied Plaintiff's application. AR 9-18. The Appeals Council denied review on June 5, 2009. AR 1-3. On August 4, 2009, Plaintiff filed a complaint seeking this Court's review (Doc. 1).

B. Agency Record

Adult function report (9/27/2006) (AR 134-141). When Plaintiff (born December 13, 1961) felt better, she cooked rice and did all the other chores. Now she needed help to complete her chores and care for her children. When she cooked, she did not finish, requiring her husband to assist her. Nonetheless, she cleaned and picked up the trash. She had bad dreams that woke her in the middle of the night. She had difficulty lifting, bending, standing, reaching, kneeling, talking, stair climbing, seeing, remembering, completing tasks, concentrating, following instructions, using her hands, and getting along with others. She could walk a block, then needed to rest for five minutes. She could pay attention for two minutes. Sometimes she could follow spoken instructions. She did not finish what she started. She took medication for stress. She was afraid of noise.

Plaintiff had no problems with personal care. She enjoyed watching television with her family. Sometimes, she preferred to be alone.

Plaintiff needed reminders of when to take her medicine. She left her home twice a month to attend clinic. She did not go out alone since she could not remember where she needed to go. Her poor memory prevented her from handling money or performing other financial tasks.

A third party adult function report (9/27/2006), prepared by Plaintiff's husband, Saroun Rin, provided information consistent with Plaintiff's adult function report. AR 126-133.

Adult function report (4/12/2007) (AR 154-161). Plaintiff reported that she was unable to do anything she did before: cook, clean, or keep house. She watched television all day. Her husband cooked and cared for the house and the children. Plaintiff only picked up small trash from the floor.

Plaintiff was able to perform personal care. She went outside twice a week. Her husband drove her because she could not read English and risked becoming lost in Fresno. Twice a month, Plaintiff and her husband shopped for food and children's clothing. Plaintiff did not perform financial tasks, such as counting money or paying bills, since it took her forever to get it right. Her illness did not change her ability to handle money.

Plaintiff did not spend time with others. She was easily angered. Her "bad condition" impaired her ability to get along with her family. Her "bad condition" also affected her ability to lift, bend, kneel, talk, see, remember, complete tasks, concentrate, understand, follow instructions, and get along with others. She could pay attention for one minute. She could not follow directions because her poor memory made her angry.

Plaintiff reported a new physician: Mohinder S. Poonia, M.D. Her medications included Lopid, *fn3 Trazodone, *fn4 Seroquel, *fn5 APAP, *fn6 Metformin *fn7 , Mevaer, *fn8 and Tobradex. *fn9

A third party adult function report (4/12/2007), prepared by Saroun Rin, provided information consistent with Plaintiff's adult function report. AR 162-169.

Plaintiff's medications (AR 183) . On October 9, 2008, Plaintiff's attorney reported to the agency that Plaintiff was then taking the following prescriptions: Metformin, Ibuprofen, *fn10

APAP, Amlodipine, *fn11 Simvastatin, *fn12 Sertaline, *fn13 Trazodone, Seroquel, and Megestrol Acetate. *fn14

Clinton Medical records (AR 188-195). The record includes notes completed by Plaintiff's doctors at Clinton Medical, indicating continuing treatment for high cholestrol, depression, and type 2 diabetes mellitus. Lab tests dated May 22, 2006, indicated elevated levels of blood glucose and triglycerides.

Fresno County Department of Mental Health (AR 197-231, 283-296). Between May 17, 2006, and May 16, 2007, Plaintiff was eligible to attend therapy sessions intended to address her depression, improve her self confidence, and become able to function independently. (Plaintiff had received the same services prior to the period relevant to this SSI application.) Plaintiff's issues arose from her husband's periodic abandonment of home and family (Plaintiff's husband would leave their home for weeks at a time without explanation), and disagreements with her children. Plaintiff was troubled by her family's financial difficulties. Her husband did not want to work. She perceived that her husband and youngest child disliked and mistreated her. Plaintiff reported depression and anger at addressing her family problems. The family's difficulties were impeding Plaintiff's ability to perform her daily activities.

On at least eight occasions, Plaintiff missed her group meeting, sometimes calling to report ill health or another appointment. When Plaintiff attended group meetings, however, she interacted with her peers and often seemed to enjoy the planned activities. She reported feeling isolated, and stated that she planned a monthly family outing when she received their aid check. At multiple sessions, she told staff that she enjoyed spending time with her children. Plaintiff and her children cooked together at least three times a week. In March 2006, she reported that she had begun taking a daily walk around the block to improve her strength. On several occasions, she reported that her mood was improving.

In April 2006, Plaintiff reported that the cold weather disturbed her sleep. She also reported that she enjoyed going to the park with her children and socializing with her neighbors.

Following local demonstrations in May 2006, Plaintiff reported flashbacks to her war trauma and nightmares. She was feeling more depressed and turned to friends for support. But by mid-May, she was able to enjoy a group meeting at which the participants played Bingo, smiling and laughing with her peers.

In June 2006, Plaintiff complained of troubles with her children and hot weather. At a therapy session later in June, she advised her peers on ways to act independently, telling them to persevere even when they fail. In July, she enjoyed a group trip to the Roeding Park zoo and hoped to return with her family. In July and August, she requested further interaction with friends in the group. At another session, she indicated a desire to feel better and be able to do more at home.

Plaintiff learned of community news from friends since she could not understand the television news. She experienced language problems, particularly with a new physician who did not have an interpreter, complaining that her children were unwilling to translate for her. Although Plaintiff had reportedly attended classes at Fresno Adult School for many years, she still could not read or understand English.

In February 2007, Plaintiff felt depressed and hopeless and complained of arthritis pain. She could not perform as much housework as she would like. As she aged, she was becoming less interested and motivated. At the end of the month, Plaintiff reported that her anger and depression had subsided.

Plaintiff felt depressed about holiday celebrations in March, complaining of her lack of sufficient money to celebrate since she only had AFDC funds. But she reported increased desire to celebrate this year, perhaps even to join in festivities at the Buddhist temple. She continued to derive support from friends.

Because Plaintiff had stopped attending group sessions, her therapists recommended that FCMH to drop her from group therapy on May 3, 2007. On May 17, 2007, services to Plaintiff were approved for an additional year. On August 1, 2007, Plaintiff told FCMH that she no longer wished to attend the program.

Psychiatric records (AR 298-311). Maximo A. Parayno, Jr., M.D., supervised psychiatric medication incident to Plaintiff's treatment by FCMH. On May 31, 2008, on a Calworks questionnaire, he reported that, although Plaintiff's disability was not permanent she was unable to perform any work through December 1, 2008. Except for October 20, 2007, when /// he added that Plaintiff "forgets to turn on the rice cooker," Dr. Parayno's assessment of Plaintiff remained the same throughout from June 3, 2006, through June 21, 2008:

Does not know date, address, phone no. & DOB. Forgetful--loses valuable items at home. Burns pots & pans & food on stove.

According to Plaintiff, Dr. Parayno told her to apply for SSI. AR 185.

Plaintiff's testimony. Plaintiff testified through a Cambodian interpreter. She watched television, although she did not understand the language. She did not read, visit with friends, attend church or temple, or go to movies. She had never worked for wages, subsiding on welfare. She had no schooling.

Plaintiff lived in an apartment with three of her four children. Her husband had left her. She was capable of taking care of her own personal grooming, including bathing, dressing, and hair care. With her children's ...

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