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Khamon Konethongkham v. Michael Astrue

May 14, 2012

KHAMON KONETHONGKHAM, PLAINTIFF,
v.
MICHAEL ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

I. INTRODUCTION

Plaintiff Khamon Konethongkham ("Plaintiff") seeks judicial review of an administrative decision denying her claim for disability benefits under the Social Security Act, Title VI (the "Act"). Pending before the Court is Plaintiff's motion for summary judgment and the cross-motion for summary judgment of defendant Michael Astrue, Commissioner of Social Security ("Commissioner"). Plaintiff filed her complaint on April 24, 2010. (Doc. 1.) Plaintiff filed her summary judgment motion on January 21, 2011. ( Doc. 26.) The Commissioner filed his summary judgment cross-motion and opposition on March 23, 2011. (Doc. 30.) Plaintiff filed her Reply Brief on April 7, 2011. (Doc. 31.) The matter is currently before the Court on the parties' briefs, which were submitted without oral argument to United States Magistrate Judge Barbara A. McAuliffe for findings and recommendations to United States District Judge Lawrence J. O'Neill.

II. BACKGROUND

A. Overview of Administrative Proceedings

On June 28, 2006, Plaintiff applied for disability insurance benefits under Title XVI of the Social Security Act, alleging disability beginning July 28, 2000. (Administrative Record ("AR") at 13.) Plaintiff claims to suffer from depression, posttraumatic stress disorder and chronic knee pain. (Pl's Brief, 2: 5-7, Doc. 26.)

Plaintiff's application was initially denied and denied again on reconsideration. (AR at 84-88, 90-93.) Plaintiff's application was subsequently denied by an Administrative Law Judge ("ALJ") in a decision issued on June 18, 2008. (AR at 13-19.) The Appeals Council denied review on February 25, 2010. (AR at 2-4.) Plaintiff filed this action for judicial review pursuant to 42 U.S.C. § 405(g), 1383(c). (Doc. 1.)

B. Plaintiff's Background

Plaintiff was born on September 18, 1954. (AR at 252.) Plaintiff, a native of Laos who is now a permanent resident of the United States, claims to suffer from depression, posttraumatic stress disorder, chronic knee pain and numb hands. (AR at 109-124.) Plaintiff alleges that, as a teenager, she witnessed the murder of her brother when her family attempted to flee from Laos. (AR at 124, 181, 280.) It was at this time, Plaintiff alleges, that her depression and posttraumatic stress disorder began. Id. Plaintiff currently lives with her three children and her husband. (AR at 254.)

C. Plaintiff's Testimony At the Administrative Hearing

On February 22, 2008, Plaintiff testified before the ALJ regarding her claim for disability. (AR at 244-248.) As Plaintiff does not speak or understand English, a Laotian interpreter translated the proceedings. (AR at 244, 251.) Plaintiff testified that she neither speaks nor understands any English, and can not read a newspaper headline. (AR at 260.)

Plaintiff has no education past the fourth grade. (AR at 253.) Plaintiff initially testified that she never had a job outside the home. (AR at 253.) Plaintiff later testified that she had worked selling fruit for three months in 1998. (AR at 253-54.) Plaintiff stated she made "around" $500 a month selling fruit. (AR at 253.) When questioned by Plaintiff's counsel, Plaintiff testified to the following regarding the fruit selling job in 1998: (1) she made approximately $200 per week; (2) she didn't work every week; and (3) the weeks Plaintiff did work, Plaintiff would work approximately three days a week. (AR at 276-77.) Plaintiff did not disclose these earnings to the IRS. (AR at 254.)

Plaintiff testified that she had an unrestricted driver's license, but has been too afraid to drive for the past two years. (AR at 255.) Plaintiff said she does not brush her own teeth, but she dresses herself, bathes herself, and prepares simple meals three times a day. (AR at 255-56.) On average, plaintiff washed dishes three times a day, made the bed every day and changed the sheets once a week. (AR at 257-58.) Plaintiff testified she went to temple and the market once a month. (AR at 258.) Plaintiff cares for her cat. (AR at 258.) Plaintiff spends approximately 30 minutes cleaning the kitchen two times a week. (AR at 259.) Plaintiff sweeps and dusts the furniture about once a week. (AR at 259.) Plaintiff waters her garden and spends approximately 20 minutes a week pulling weeds from her garden. (AR at 259-260.) Plaintiff also spends about three hours a day watching television. (AR at 260.)

Plaintiff initially testified she could carry 20 pounds, but later testified she could only hold a gallon of milk for about five minutes. (AR at 261, 274.) Plaintiff testified she could stand for ten minutes before having to sit down. (AR at 261.) Plaintiff can sit for ten minutes, and walk for twenty minutes before having to rest. (AR at 261.) Out of an eight hour work day, Plaintiff stated she would need to lie down for about three hours. (AR at 261.) Plaintiff stated she can concentrate for about five minutes at a time, and would require ten minutes of rest before being able to concentrate for five more minutes. (AR at 262, 274-75.)

Plaintiff testified she felt constant pain in her back, head, knee and hands. (AR at 275-76.) Medications relieves her pain "a little." (AR at 276.) Plaintiff has problems with depression, and has been "diagnosed with [a] condition because of an event that causes [her] stress and that event occurred sometime ago."*fn1 Twice a week, Plaintiff has nightmares of people coming to kill her. (AR at 280.) Plaintiff's stress and nightmares are the result of her witnessing her brother's murder. (AR at 280.) Plaintiff, however, does not have problems dealing with people as a result of these events. (AR at 281.) When asked why she could not work, Plaintiff stated it was due to her inability to concentrate and her physical pain. (AR at 281.)

D. Medical History

1. Medical Evidence Relating to Plaintiff's Knee and Back Pain

i. University Medical Center Medical Records

In April of 2006, Plaintiff complained of back pain and knee pain. (AR at 196.) At this time, Plaintiff was proscribed an anti-inflammatory medication. (AR at 196.) In July and October of 2006, Plaintiff complained of swollen legs. (AR at 190-91.) On November 2, 2006, Plaintiff reported knee and back pain. (AR at 189.) At this time, Plaintiff was assessed with degenerative joint disease. Id.

ii. Agency Consultant Rustom Damania, MD

On October 7, 2006, Plaintiff submitted to a comprehensive internal medicine evaluation by Dr. Rustom Damania. (AR at 200.) Plaintiff required an interpreter at the evaluation. Plaintiff complained of pain in her right knee, and hearing impairments in both ears. (AR at 200.) Plaintiff did not appear to have any difficulty leaving or entering the office. (AR at 201.) Regarding Plaintiff's right knee, Dr. Damania reported that the knee was slightly tender, but not swollen. There were no crepitations, and no signs of acute or chronic inflamation. (AR at 201.) X-ray revealed there was no fracture or malalignment. Two small osteochondromata were seen arising from portions of the tibia and fibula, however, the exam was otherwise negative. (AR at 203.) Dr. Damania concluded the pain in Plaintiff's right knee was possibly caused by osteoarthritis, but did not provide a definitive diagnoses as such. (AR at 202.)

For Plaintiff's functional assessment, Dr. Damania stated that Plaintiff should be able to stand, sit and walk six hours in an eight hour day. Plaintiff does not require an assistive device. Plaintiff could lift 20 pounds occasionally, ten pounds frequently. Plaintiff does not have any postural limitations, unless she has to do frequent kneeling. (AR at 202.)

iii. Wesley G. Jackson, M.D.

On October 27, 2006, Dr. Jackson, a state agency physician, reviewed Plaintiff's medical records. (AR at 232-239.) Dr. Jackson noted Dr. Dimania's examination, which showed a normal range of motion in Plaintiff's right knee, slight tenderness, no swelling or crepitation, no signs of acute or chronic inflamation. (AR at 238.) Dr. Jackson reviewed the X-ray of Plaintiff's knee, which he opined did not show any changes of arthritis or other process that would be expected to cause pain. Id. Dr. Jackson also noted that Plaintiff was not taking pain mediation. Id. Dr. Jackson concluded that Plaintiff's right knee condition was non-severe. (AR at 238-39.) Dr. Jackson also concluded that Plaintiff did not have any exertional, postural or manipulative limitations. (AR at 232-33.)

2. Medical Evidence Relating to Plaintiff's Mental Impairments

i. Fresno County Health Services Agency - Mental Health Department

From 2006 - 2007, Plaintiff received mental health treatment and medication from the Fresno County Health Services Agency - Mental Health Department. (AR at 157-186.) Plaintiff complained of depression, sleep problems, poor concentration, forgetfulness, regretfulness, anger outbursts, seeing shadows, ...


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