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Nou Sayavong v. Michael Astrue

January 19, 2012

NOU SAYAVONG,
PLAINTIFF,
v.
MICHAEL ASTRUE, COMMISSIONER OF ) SOCIAL SECURITY, )) DEFENDANT.



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

FINDINGS AND RECOMMENDATIONS REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

BACKGROUND

Plaintiff Nou Sayavong ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying her applications for disability insurance and supplemental security income benefits 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 Magistrate Judge Gary S. Austin, for findings and recommendations to the District Court.

FACTS AND PRIOR PROCEEDINGS*fn1

Plaintiff filed applications for benefits in July 2007, alleging disability as of January 1, 2005. AR 74-78. Plaintiff's applications were denied initially and on reconsideration, and she requested a hearing before an Administrative Law Judge ("ALJ"). AR 42-53. ALJ Christopher Larsen held a hearing and subsequently issued an order denying benefits on September 4, 2009, finding Plaintiff was not disabled. AR 16-23. On July 20, 2010, the Appeals Council denied review. AR 5-7.

Hearing Testimony

ALJ Larsen held a hearing on June 1, 2009, in Fresno, California. Plaintiff appeared and testified; she was assisted by attorney Gina Fazio and an interpreter. Chansy Sayavong also testified. AR 309-326.

Plaintiff's Testimony

Plaintiff was born on February 10, 1948. AR 313. She lives with her husband and one of her three daughters. AR 315-316. The family moved to California from North Carolina in 2006. AR 320-321. Plaintiff has not received a formal education. When she came to the United States, she took an English class but she understands only a few words. AR 313-314. Plaintiff does not know how tall she is, nor how much she weighs. AR 320.

As of January 1, 2005, Plaintiff's pain became disabling. She feels pain in her back, shoulders and hip all the time. Her back is very painful and "pop[s] all the time." AR 320. Her entire body is in pain and she has difficulty sleeping. AR 314. Without medication, Plaintiff will sleep one or two hours a night. With medication, she sleeps about three to four hours. AR 314.

Plaintiff also worries about her husband as he has had seven or eight strokes; she worries about losing him. AR 314-315. When she was asked whether she does anything to help her husband in light of his condition, Plaintiff indicated she cannot help her husband as a result of her own pain. AR 315. Despite receiving therapy once a month, the pain persists. Rather, Plaintiff's daughters care for their father. AR 315.

When she was asked whether she was receiving mental health treatment, Plaintiff replied, "I don't know. They say me go, I go. I don't know where I go." AR 315.

Plaintiff no longer drives; her daughters provide transportation. While she does not recall how long ago she stopped driving, Plaintiff indicated she no longer drives as a result of an eye condition and because she is "scared." AR 315-316. When asked what she was afraid of, Plaintiff replied that she becomes frightened when others honk their horn or "pass fast." AR 316.

A typical day finds Plaintiff resting and lying down, taking medications, then eventually trying to go to sleep. AR 316. Initially Plaintiff indicated she did not do any cooking, but then indicated she can do a "little bit but [] cannot finish it" due to pain and dizziness. AR 317, 320. She does not vacuum because it causes back pain. AR 317. Plaintiff does go out with her daughter when it is time to do the laundry. AR 317.

When she was asked whether she watched television, Plaintiff replied that she tries to watch, but if it is loud she will get a headache. Therefore, she can only watch for about ten to fifteen minutes at a time throughout the day. AR 318. She cannot watch for a longer period of time because she will get dizzy. AR 318. She does not listen to the radio or visit with friends. Plaintiff used to go to church, but stopped doing so when her husband's condition worsened in November. AR 318.

Plaintiff used to work assembling cell phones for seven years. Prior to that, she worked as a janitor at a school for about four years. AR 319. She can no longer perform either of those jobs due to her back pain. AR 320.

Chansy Sayavong's Testimony

Chansy Sayavong, a stay at home mom, was twenty-nine years old at the time of the hearing. AR 321-322. She does not live with her mother, but sees her about three or four times a week while her own children are in school. AR 322. Her twin sister lives with her parents, along with her sister's one-year-old daughter; her older sister lives elsewhere. AR 322, 324.

Chansy has seen her mother's stress and heard her complain about chronic pain, her father's condition, and having "no Medi-CAL to go to the doctor." AR 322-323. Her mother cannot stay still, and must be reminded about "[w]hatever she's doing." AR 323. Chansy helps her mother around the house and has been doing so since they moved to Fresno. AR 323.

With particular regard to her father, Chansy indicated he has had eight strokes, two recently. He was on life support and nearly died. AR 323-324. Her twin sister cares for their father. When asked whether her sister bathed their father, Chansy replied, "[s]he does everything." AR ...


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