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Tong Vue v. Michael J. Astrue

February 17, 2011


The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge



Plaintiff Tong Vue ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying her application for supplemental security income benefits pursuant to 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


Plaintiff filed an application for supplemental security income benefits on October 31, 2005, alleging disability beginning in July 2004. AR 89-90. Her application was denied initially and on reconsideration, and Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). AR 41-47. ALJ Christopher Larsen held a hearing on March 13, 2008, and issued an order regarding benefits on June 27, 2008, finding Plaintiff was not disabled. AR 60-67. However, the Appeals Council remanded the matter to the ALJ for further consideration. AR 68-72. On March 16, 2009, ALJ Larsen held a second hearing, and subsequently issued an order denying benefits after finding Plaintiff was not disabled. AR 14-21. Thereafter, on August 19, 2009, the Appeals Council denied review. AR 6-9.

2008 Hearing Testimony

On March 13, 2008, ALJ Larsen held a hearing in Fresno, California. Plaintiff appeared and testified with the assistance of an interpreter. She was represented by attorney Melissa Proudian. Vocational Expert ("VE") Judith Najarian also appeared and testified. AR 273-290.

When asked to provide her date of birth, height and weight, Plaintiff testified that she did not know her birth date or her height and weight. However, she was able to provide a California identification card reflecting a date of birth of July 2, 1955, a height of five feet and a weight of 153 pounds. AR 277. She is right-handed. AR 278.

Plaintiff is married and she and her husband have twelve children, seven of whom still live at home. The youngest child living at home is seven years; the oldest is twenty years old. AR 278.

Unable to read or write, Plaintiff does not have a driver's license. She has never been to school, either in the United States or in Laos. When asked whether she had attended adult school in this country, Plaintiff indicated she was exempt due to "mental conditions." AR 279.

Plaintiff has never worked. In fact, she has never tried to find work because she is "sick a lot and not able to do much of anything." AR 259-260. She is not capable of working eight hours a day, five days a week because of the pain in her lower back, arms and legs. She also complained of "an ear infection as well that sometime [sic] is bleeding." AR 280. Additionally, she suffers from "mental conditions that cause lot of stress" and agitation. AR 280. Plaintiff also has difficulty sleeping and suffers from memory loss. AR 280.

With particular regard to stress, Plaintiff indicated that she has thoughts about killing herself, and indicated that she made one such attempt with a knife, but was stopped by her children. That occurred about two months prior to the hearing. AR 281. Asked how often she suffers from suicidal thoughts, Plaintiff indicated about "two to three times" and "sometimes four and five times a day." AR 281-282. She has been suffering these thoughts for about a month. AR 282. Generally, Plaintiff is depressed "all the time" and it affects her ability to function. She feels as though she can do nothing, nor does she want to do anything. She does not have any friends and she cannot get out of the house because her older children are working. AR 282. Plaintiff does not have any hobbies. AR 282-283.

Plaintiff cannot concentrate or focus and gets "angry easily sometimes." When asked how many minutes or hours she could focus her attention at one time, Plaintiff stated she could not do so and could not "concentrate by [her]self like that." AR 283. If she starts to do something, soon after she is "just not there anymore." AR 283. She watches television sometimes; she does not know how to turn the television on, so she typically watches it when her children have turned it on. If the children leave the television on when they leave for school, she will watch it. AR 283.

Regarding the treatment she receives for depression, Plaintiff indicated that she attends the Kings Winery clinic group therapy program once a week. AR 283-284. She has been attending sessions regularly but does not see an improvement. She sees a psychiatrist who has prescribed medications to treat her depression. Although she could not identify the medication by name, Plaintiff indicated that her daughter knows the name of it as her daughter administers the medication. It makes her "go to sleep" and helps "a little bit." AR 284.

When asked about a gap in treatment with her psychiatrist, Plaintiff stated that when she is "real sick" she sees the doctor more frequently, and indicated that she had seen him the week prior to the hearing. AR 284-285.

Plaintiff is also treated for back pain at Kings Winery. The treatment has consisted of injections that caused an allergic reaction, a cream to treat the reaction, and then medication in the form of a pill. Her back pain is constant. AR 285. With regard to the back pain specifically, Plaintiff states it affects her ability to work and make a living. She believes the pain is likely the result of "delivering too many kids." AR 285-286. Plaintiff's diabetes is under control. She takes medication and follows a diabetes diet. AR 286.

Regarding her physical abilities, Plaintiff can sit for about twenty minutes, cannot stand for one hour, and can walk for ten minutes before requiring rest. She cannot lift any weight any longer. AR 286.

VE Najarian was asked to consider several hypothetical questions posed by the ALJ. First, the VE was asked to assume a hypothetical worker of Plaintiff's age, education, and work experience who can lift and carry fifty pounds occasionally and twenty-five pounds frequently, can stand and walk six hours in an eight-hour workday, and can understand, remember and carry out simple one or two-step job instructions. AR 287. The VE indicated that such a worker could perform medium specific vocational preparation ("SVP") 1 type jobs. Examples of this type of work include poultry hanger, Dictionary of Occupational Titles ("DOT") 525.687-078, with 2,516 available jobs in California, multiplied by nine for a nationwide figure; hand packer/bag loader, DOT 737.687-014, with 1,620 jobs available in California, multiplied by nine for a nationwide figure; and box bender, DOT 641.687.010, with 1,631 jobs available in California, multiplied by nine for a nationwide figure. AR 287-288.

In a second hypothetical, the VE was asked to consider the same worker, however, in this instance the worker could not maintain attention and concentration consistently throughout an eight-hour work day. The VE indicated there were no jobs for such an individual. AR 288-289. The same would be true of this hypothetical worker even where the lifting and carrying, and standing and walking were further limited. AR 289. The VE confirmed that a hypothetical worker who was unable to complete an eight-hour day without interruption from a psychologically based symptom was closed to the world of work. AR 289.

2009 Hearing Testimony

ALJ Larsen conducted a second hearing on March 16, 2009. Plaintiff appeared and testified with the assistance of an interpreter. She was represented by attorney Melissa Proudian. VE Cheryl Chandler also appeared and testified. AR 291-309.

With a California Identification card, Plaintiff responded to ALJ Larsen's inquiry regarding her date of birth: July 2, 1955. The card also indicates Plaintiff is five feet tall and weighs 153 pounds. AR 294. She is married and has twelve children; the youngest was eight years old and the oldest is thirty years old. AR 294-295. Five of her twelve children are still living at home with she and her husband. AR 295.

Plaintiff does not have a California Driver's License because she does not know how to drive. She gets around because her daughter-in-law will provide transportation for her. AR 296. She has never been to school; she cannot read or write in either Hmong or English. She has never had any vocational training, and has never worked in the United States. AR 297.

When asked whether she could work an eight-hour day, five days a week, Plaintiff replied that she could not because she suffers from pain in her arms and legs, and low back. She also suffers from headaches, diabetes, and visual impairments. AR 297. Standing for a short while will cause her to start shaking and feel as though she is going to "fall down or black out." AR 298. Plaintiff also suffers from depression. She cannot complete tasks. AR 298.

With regard to her diabetes, Plaintiff indicated that she takes medication in the form of a pill and tests her blood sugars regularly. Her children read the results, and the "number [is] like maybe one, no maybe about 150." AR 298. She takes Avandia every day as prescribed, and adheres to the diet every day as well. AR 298-299. Plaintiff has little energy and rests three or four times a day. Asked how long she will rest for, she could not specify a time, rather she indicated "until [she] feel[s] better or happier . . .." AR 299.

Plaintiff's low back pain is a problem "five to six days [a week], like all the time too, the pain." AR 299. The pain prohibits her from standing and sleeping, moving or twisting her body.

AR 299-300. Her husband must help her turn over at night because she cannot do so. She said the pain "is from where I had a lot of children, that's what caused the pain." AR 300. She does take medication for the back pain and it helps her "feel a little better" for a "little while," although she does not know the name of the medication she takes for pain. AR 300. When asked about side effects of the pain medication, Plaintiff responded negatively, but did indicate that following a single injection she suffered from itching and a rash. AR 301. She cannot sit in a chair without pain, and the longest she could sit would be "not over an hour." She could stand for about five minutes. AR 301. More particularly, Plaintiff indicated she could walk about a half a block before needing to stop. AR 301-302. She cannot lift any weight because of the pain in her right arm. It is a constant pain. AR 302.

Vision problems make it difficult for her to see and she believes it is the result of her diabetes. AR 302. When asked how often she was unable to see, Plaintiff responded that "the most like I can't see is like ten." Plaintiff was then asked in seven total days, how many days would she have difficulty with her vision; she responded that she "can't see all the time" and she attributed this also to her age. AR 303.

Plaintiff's depression affects her ability to function because she is angry, and unable to focus. AR 303. She cannot complete a task around the house, like cooking or cleaning, because when she is performing a task, she is thinking of another, and will lose focus on the initial task. AR 304. When she was asked how many minutes or hours she was able to focus her attention on something at one time, Plaintiff indicated she could not do so. Further, Plaintiff indicated that about ten times a day she considers suicide: "I don't want to be a human being anymore and I want[] to die." AR 304. She gets angry about three or four times a day. AR 304. She cannot cook because she feels "very depressed." When she was asked about cleaning her home, Plaintiff stated she does "not know how to do all the cleaning with [her] depression." AR 305. Her children do the cleaning. Asked what she does during the day as her children are all old enough for school or have reached adulthood, Plaintiff indicated she stays home or walks outside. AR 305. She does not have any hobbies and she does not know how to turn on the television. AR 305.

The medication prescribed to treat Plaintiff's depression does not help much. If she takes a lot of the medication, the doctor tells her not to. AR 305-306.

Plaintiff believes the dizziness she suffers from is the result of the diabetes, and feeling very hungry. She will start to shake as though she was about to fall. She gets dizzy about three or four times per week, and each episode will last about one to two hours. AR 306.

VE Chandler was asked to assume a hypothetical worker of Plaintiff's age, education and work experience, who can work at a medium exertional level, and can perform simple repetitive tasks. The VE indicated that such a worker could perform work as a dishwasher or kitchen helper, DOT 318.687-010, with about 20,000 jobs available in California. Other medium unskilled work identified involved poultry laborer, DOT 411.687-018, with approximately 61,700 jobs available in California; and agricultural laborer, DOT 403.687-010, with approximately 27,500 jobs available in California. National figures could be obtained by multiplying the number by ten. AR 307.

In a second hypothetical, VE Chandler was asked to assume a hypothetical worker of Plaintiff's age, education and work experience that must take extra breaks during a workday that amount to one to two hours everyday, in addition to the customary two breaks and meal period. According to the VE, there is no available work for such an individual. AR 308. Lastly, the VE indicated that the testimony she provided was consistent with the DOT. AR 308.

Medical Record

The medical record was reviewed by the Court (AR 151-272), however, only those medical records relevant to the issues on appeal will be addressed below as needed in this opinion.

ALJ's 2009 Findings

The ALJ determined that Plaintiff had not engaged in substantial gainful activity since October 31, 2005, and had the severe impairments of diabetes mellitus and depressive disorder not otherwise specified. AR 16. Nonetheless, the ALJ determined that none of the severe impairments met or exceeded one of the listing impairments. AR 16-17.

Based on his review of the medical evidence, the ALJ determined that Plaintiff had the residual functional capacity ("RFC") to perform simple repetitive medium level work. AR 17-20. The ALJ found that Plaintiff had no past relevant work or transferable job skills, was closely approaching advanced age and was unable to communicate in English. AR 20. Based on her age, vocational background and RFC, the ALJ determined Plaintiff could perform jobs that exist in significant numbers in the national economy. Thus, the ALJ determined Plaintiff was not disabled. AR 20-21.


Congress has provided a limited scope of judicial review of the Commissioner's decision to deny benefits under the Act. In reviewing findings of fact with respect to such determinations, the Court must determine whether the decision of the Commissioner is supported by substantial evidence. 42 U.S.C. § 405(g). Substantial evidence means "more than a mere scintilla," Richardson v. Perales, 402 U.S. 389, 402 (1971), but less than a preponderance. Sorenson v. Weinberger, 514 F.2d 1112, 1119, n. 10 (9th Cir. 1975). It is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. at 401. The record as a whole must be considered, weighing both the evidence that supports and the evidence that detracts from the Commissioner's conclusion. Jones v. Heckler, 760 F.2d 993, 995 (9th Cir. 1985). In weighing the evidence and making findings, the Commissioner must apply the proper legal standards. E.g., Burkhart v. Bowen, 856 F.2d 1335, 1338 (9th Cir. 1988). This Court must uphold the Commissioner's determination that the claimant is not disabled if the Secretary applied the proper legal standards, and if the Commissioner's findings are supported by substantial evidence. See Sanchez v. Sec'y of Health and Human Serv., 812 F.2d 509, 510 (9th Cir. 1987).


In order to qualify for benefits, a claimant must establish that she is unable to engage in substantial gainful activity due to a medically determinable physical or mental impairment which has lasted or can be expected to last for a continuous period of not less than twelve months. 42 U.S.C. § 1382c (a)(3)(A). A claimant must show that she has a physical or mental impairment of such severity that she is not only unable to do her previous work, but cannot, considering her age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. Quang Van Han v. Bowen, 882 F.2d 1453, 1456 (9th Cir. 1989). The burden is on the claimant to establish disability. Terry v. Sullivan, 903 F.2d 1273, 1275 (9th Cir. 1990).

In an effort to achieve uniformity of decisions, the Commissioner has promulgated regulations which contain, inter alia, a five-step sequential disability evaluation process. 20 C.F.R. §§ 404.1520 (a)-(f), 416.920 (a)-(f) (1994). Applying this process in this case, the ALJ found that Plaintiff: (1) had not engaged in substantial gainful activity since the alleged onset of her disability; (2) has an impairment or a combination of impairments that is considered "severe" based on the requirements in the Regulations (20 CFR §§ 416.920(b)); (3) does not have an impairment or combination of impairments which meets or equals one of the impairments set forth in Appendix 1, Subpart P, Regulations No. 4; (4) had no past relevant work; yet (5) in light of her age and background, she had the RFC to perform jobs that exist in significant numbers in the national economy. AR 19-25.

On appeal, Plaintiff argues that the ALJ (1) failed to properly evaluate a medical source statement; (2) failed to assess her visual loss; (3) failed to assess her mental limitations; and (4) ...

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