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Lai Saeteurn v. Carolyn W. Colvin

April 10, 2013

LAI SAETEURN,
PLAINTIFF,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Sandra M. Snyder United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT THE COURT AFFIRM DENIAL OF BENEFITS AND ORDER JUDGMENT FOR COMMISSIONER

Plaintiff Lai Saeteurn, by his attorney Sengthiene Bosavanh, seeks review of the final decision of the Commissioner of Social Security ("Commissioner") denying his application for disability benefits under Titles II and XVI of the Social Security Act. The matter is before the Court on the parties' cross-briefs, which were submitted, without oral argument, to the Honorable Sandra

M. Snyder, United States Magistrate Judge. Following a review of the complete record and applicable law, the undersigned finds the decision of the Administrative Law Judge ("ALJ") to be supported by substantial evidence in the record as a whole and based upon proper legal standards, and recommends that the Court affirm the Commissioner's denial of benefits.

I. Procedural History

Plaintiff claims he has been disabled since October 22, 2004. His previous application for benefits was denied by an ALJ on July 31, 2007. Under Chavez v. Bowen, 844 F.2d 691 (9th Cir. 1988), this finding of non-disability was res judicata through that date. Plaintiff applied again on November 20, 2007. The agency denied benefits. On January 15, 2009, Plaintiff appeared and testified before ALJ Sharon L. Madsen with the assistance of a Mien interpreter. On December 3, 2 2010, the ALJ denied Plaintiff's application. The Appeals Council denied review. Plaintiff appealed.

II. Factual Record 4

A. Plaintiff's Testimony

Plaintiff was born in 1967 and was age 41 at the hearing. He said he was disabled because of 6 gout affecting his knees and ankles, pain, and depression. AR 149, 318-21. His physical condition 7 had worsened over the years and his physical activities were limited, especially since a fall in late 8

2009. AR 318-24. He said he needed crutches to walk since 2006. His son helped him with personal 9 needs like showering and dressing. He did no chores at home. He spent a typical day in bed.

In September 2008, Plaintiff told comprehensive orthopedic examiner Dr. Fieser that his pain level was currently 9/10, and with loss of activity activity increased to 10/10. He said he was independent with all activities of daily life, with the exception of donning and doffing his socks and shoes, although the doctor observed him don and doff his socks and shoes, and get on and off the examination table independently. He could not do laundry, dishes, vacuuming, light dusting, or significant lifting. He could sit for five minutes, and with crutches could stand for five minutes and walk a half block. He spent most of his day "doing nothing" and lying down due to pain. AR 234.

B. Medical Record

The sparse medical records reflect that Plaintiff had a history of pain in his right knee and left ankle, gout that is stable with treatment, and non-compliance with treatment, all of which predate the prior, July 2007 ALJ decision. Beginning in June 2008, he started taking 50mg Zoloft prescribed by his primary care doctor.

From March 2007 to June 2008, medical staff at Mercy Medical Center, including treating physician Leng Thao, M.D., found that after running out of medications for several weeks, Plaintiff had acute gout exacerbation and pain. He reported having similar pain intermittently for the past several years. Initially, his pain had been improving and he had no problem with ambulation until he developed foot pain making ambulation more difficult. He needed medication refills and reminders about dietary precautions to stabilize his gout. AR 192-93, 229-32.

In February 2008, non-examining state agency physician George W. Bugg, M.D., reviewed

2 the medical evidence through September 2007 and opined that there had been no change in 3

Plaintiff's condition since the prior ALJ denial. Plaintiff had only some occasional postural 4 limitations. AR 216-25. In March 2008, non-examining state agency psychiatrist Harvey Biala, 5

M.D., found Plaintiff's depression to be nonsevere. AR 226-27. 6

In August 2008, Plaintiff had another gout attack and ambulated with a cane. His symptoms

7 improved by March 2009 and he had normal ranges of motion in the lower extremities despite mild 8 pain. AR 273, 278. 9

In September 2008, Carl Fieser, M.D., conducted a comprehensive orthopedic examination, but was unable to review any records. AR 233-37. Plaintiff had limited ranges of knee and ankle motion and ambulated with (apparently unprescribed) crutches. He opined that Plaintiff had significant limitations and should use crutches to walk. AR 235-37. After reviewing record ...


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