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Van Duong v. Michael J. Astrue

August 21, 2012

VAN DUONG, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying plaintiff's applications for Social Security Disability ("SSD") benefits under Title II of the Social Security Act and Supplemental Security Income ("SSI") benefits under Title XVI of the Social Security Act.*fn1 (Dkt. No. 11.) In his motion for summary judgment, plaintiff alleges that the Administrative Law Judge ("ALJ") erred by (1) failing to properly calculate plaintiff's residual functional capacity ("RFC"); and (2) relying on improper or incomplete vocational expert ("VE") testimony. (("Pl.'s Memo.") Dkt. No. 18.)

After careful consideration of the entire record and the arguments submitted by the parties, for the reasons that follow, the court grants plaintiff's motion for summary judgment, denies the Commissioner's cross-motion for summary judgment, and remands this case for further proceedings.

I. BACKGROUND*fn2

A. Procedural Background

Plaintiff applied for SSD and SSI benefits on February 21, 2008, alleging disability commencing on February 9, 2007 (See Administrative Transcript ("AT") 93-95, 96-103.) The Social Security Administration denied plaintiff's application initially and upon reconsideration. (AT 43-47, 48-52.) Plaintiff filed a request for a hearing before an ALJ, (AT 66), and a hearing was conducted regarding plaintiff's claim on October 7, 2009. (AT 18-38.) Plaintiff, who was represented by counsel at the hearing, appeared and testified at the hearing. (Id.) A vocational expert also testified at the hearing. (Id.)

In a decision dated February 22, 2010, the ALJ denied plaintiff's application. (See AT 9-17.) As discussed below, the ALJ determined that plaintiff was able to perform jobs that existed in significant numbers in the national economy.*fn3 (AT 22.) The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review. (AT 3-6.) Plaintiff subsequently filed this action.

B. Relevant Medical Opinions

On April 18, 2008, consultative examiner Dr. Patrick Wong saw plaintiff for a psychological evaluation. (AT 192.) Dr. Wong assessed plaintiff's functional ability as follows:

[Plaintiff's] ability to carry out simple instructions is intact. Her ability to carry out complex instructions is mildly diminished by her depressive symptoms. Her ability to maintain an adequate pace and level of endurance is mild to moderately decreased by her depressive symptoms, her loss of stress tolerance, some issues with concentration and initiative. Her ability to relate to co-workers and the public is mildly to moderately impaired by this same pattern. Her ability to take directions from a supervisor on a sustained basis is mild to moderately affected as well. The probability of functional deterioration due to typical workplace stressors is probably moderately elevated due to her depressive symptoms. Her ability to adapt to changes in a workplace is mildly diminished to moderately diminished by her depressive symptoms. Ms. Duong is currently capable of staying consistently aware of safety issues in the workplace. Ms. Duong is currently capable of responsibly managing her own funds.

(At. 193-94.) The ALJ stated that he gave "great weight" to Dr. Wong's opinion. (AT 15.) Plaintiff does not challenge the ALJ's adoption of Dr. Wong's opinion; instead, plaintiff asserts the ALJ failed to adequately incorporate Dr. Wong's assessment into her RFC. (Pl.'s Memo. at 11-13.)

On May 7, 2008, state agency physician Kim Morris, reviewed plaintiff's case, including Dr. Wong's opinion. (AT 196-211.) In her mental residual functional capacity assessment, Dr. Morris checked the boxes for "Moderately Limited" in the following mental activities: ability to understand and remember detailed instructions; ability to carry out detailed instructions; ability to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; ability to interact appropriately with the general public; ability to accept instructions and respond appropriately to criticism from supervisors; ability to respond appropriately to changes in the work setting. (AT 196-97.) All other mental activities were found by Dr. Morris to be "Not Significantly Limited." (Id.) There were no "Markedly Limited" mental activities. (Id.) In the "Functional Capacity Assessment" section of her report, Dr. Morris concluded that plaintiff has "sufficient ability": to understand and remember simple instructions; to complete simple instructions, to follow directions without additional assistance, and to maintain adequate attention for such tasks, to maintain appropriate behavior in a context of limited public contact, to be aware of ordinary hazards, to make simple decisions, to utilize transportation, and to cope with the demands of a routine, low stress position. (AT 198.) Dr. Morris further concluded that plaintiff is capable of accepting simply instructions and responding appropriately to feedback from supervisors. (Id.) The ALJ also gave "great weight" to Dr. Morris' opinion. (AT 14.) As with Dr. Wong's opinion, plaintiff asserts the ALJ failed to adequately incorporate Dr. Morris' opinion into her RFC. (Pl.'s Memo. at 11-13.)

C. Summary of the ALJ's Findings

The ALJ conducted the required five-step, sequential evaluation. At step one, the ALJ concluded that plaintiff had not engaged in substantial gainful activity since February 9, 2007, the alleged onset date. (AT 11.) At step two, the ALJ concluded that plaintiff had the severe impairments of "headaches and depression." (Id.) At step three, the ALJ found that plaintiff did not have an impairment or ...


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