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Ponh Phannourath v. Michael Astrue

September 10, 2012

PONH PHANNOURATH,
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

BACKGROUND

Plaintiff Ponh Phannourath ("Plaintiff") seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner" or "Defendant") denying her application for supplemental security income ("SSI") 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 Magistrate Judge Barbara A. McAuliffe, for findings and recommendations to the District Court.

FACTS AND PRIOR PROCEEDINGS*fn1

On March 30, 2001, Plaintiff filed her initial application for supplemental security income benefits alleging disability beginning January 25, 2001. AR 24, 67-79. The Commissioner denied Plaintiff's application both initially and upon reconsideration. Plaintiff subsequently requested a hearing before an administrative law judge ("ALJ"), which took place before ALJ Bert C. Hoffman on August 13, 2002. AR 67-79. On March 19, 2003, the ALJ issued a decision finding Plaintiff not disabled under the Social Security Act

On April 15, 2003, Plaintiff filed a subsequent SSI application which was granted in September 2003. However, in August 2005, the Appeals Council re-opened the favorable 2003 decision. The Appeals Council questioned the merits of the favorable decision as not supported by substantial evidence. AR 95-97, 134-39, 194-207. The Appeals Council directed ALJ Hoffman to re-consider the March 2003 decision in conjunction with evidence related to Plaintiff's April 2003 application. AR 95-97. On December 3, 2007, ALJ Hoffman held a second hearing, at which Plaintiff, assisted by her attorney and an interpreter, testified. AR 615-26. On February 26, 2008, the ALJ issued a decision, finding that Plaintiff was not disabled. AR 24-35. The Appeals Council denied Plaintiff's request for review on July 1, 2010 (AR 9-11), making the February 26, 2008 decision the final decision of the Commissioner. 42 U.S.C. §§ 405(g), 1383(C); 20 C.F.R. § 416.1481. This appeal followed.

Medical Record

In her 2001 application, Plaintiff alleged disability from asthma and emotional problems. AR 186. In her 2003 application, Plaintiff additionally alleged disability from seizures. AR 281. The ALJ noted in his February 2008 decision that Plaintiff also complained of back pain. AR 27. The entire medical record was reviewed by the Court. AR 288-468. The medical evidence will be referenced below as necessary to this Court's decision.

2002 Hearing Testimony

ALJ Hoffman held the first hearing on August 13, 2002, in Fresno, California. Plaintiff, who was represented by counsel, testified at the hearing with the assistance of a Laotian interpreter. AR 585.

Plaintiff testified she was born on March 3, 1956, in Laos, where she attended school for about four years. AR 588. Since moving to the United States over twenty years ago, Plaintiff has attended school "very long time," but has never worked. AR 585. Plaintiff lives with her husband and three of her children. AR 587. She claimed not to know the ages of her children; she said that her husband and one of her children received SSI. AR 587.

At the outset of the hearing, the ALJ asked Plaintiff for her identification, and he noted on the record that Plaintiff presented a California driver's license; the ALJ read aloud her birth date and the dates of issuance and expiration. AR 586-87. Despite having a California driver's license, she testified that she stopped driving long ago. AR 595. Plaintiff testified to feeling tired, having problems with breathing, and experiencing seizures, which caused shakiness. AR 590-91. She stated that she also had mental difficulties, which impacted her memory. AR 594. Plaintiff denied helping or caring for her disabled husband or any of her four children, other than occasionally watering the lawn. AR 597. Plaintiff testified to immigrating to the United States twenty years earlier but, for reasons she could not explain, waiting until recently to naturalize. AR 529-30.

The ALJ then took testimony from Plaintiff's daughter, Roungtavanh Phannourath. Roungtavanh testified that because of her mother's disability, she shoulders many of the household chores and duties. According to Roungtavanh, her mother does little around the house and is easily angered. AR 605.

2007 Hearing Testimony

At the December 2007 hearing, the ALJ again asked Plaintiff if she had identification, and she responded that she did but that it was "outside" with her relatives. AR 623. When asked if she had a driver's license, she stated "yes" but denied driving. AR 623. Plaintiff testified that her condition had worsened since the last hearing. AR 618. She again denied knowing her children's ages and said she did not know if her husband received SSI but said that he had an "angry condition" that prevented him from working. AR 622-23. Plaintiff testified that she shopped for food once per month. AR 621. She denied doing anything for her children other than watering the garden; she then stated that she did not want to be questioned further, as it was giving her a headache. AR 624.

ALJ's Findings

In the decision dated February 26, 2008, the ALJ performed a sequential evaluation analysis and found that Plaintiff was not disabled. At Step Two, the ALJ relied on the medical evidence and determined that the medical evidence failed to support Plaintiff's claims of severe impairments over a 12-month continuous period, as required by the regulations. AR 27-35. See 20 C.F.R. § 416.920. In reaching this conclusion, the ALJ discussed, in great detail, the medical evidence in regards to Plaintiff's claims of asthma, back pain, seizures, and mental impairments. AR27-35. The ALJ also found that Plaintiff was less than credible. AR 35. Therefore, the ALJ determined Plaintiff was not disabled. AR 32.

SCOPE OF REVIEW

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, this 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).

REVIEW

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).

Here, Plaintiff alleges that the ALJ's step-two finding was erroneous. Specifically, she asserts that the ALJ wrongly evaluated the medical evidence ...


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