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Xiong v. Colvin

United States District Court, D. Minnesota

February 5, 2014

Ge Xiong, Plaintiff,
Carolyn W. Colvin, Commissioner of Social Security, Defendant

Order Filed: January 22, 2014

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[Copyrighted Material Omitted]

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Ge Xiong, Plaintiff, Pro se, Brooklyn Park, MN.

For Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant: Ann M Bildtsen, LEAD ATTORNEY, United States Attorney's Office, Minneapolis, MN.


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DONOVAN W. FRANK, United States District Judge.

The above matter comes before the Court upon the Report and Recommendation of United States Magistrate Judge Janie S. Mayeron dated January 21, 2014. (Doc. No. 19.) No objections have been filed to that Report and Recommendation in the time period permitted. Defendant filed a " Non-objection Response to Report and Recommendation" (in support of the Report and Recommendation) on February 4, 2014. (Doc. No. 21.) The factual background for the above-entitled matter is clearly and precisely set forth in the Report and Recommendation and is incorporated by reference. Based upon the Report and Recommendation of the Magistrate Judge, and upon all of the files, records, and proceedings herein, the Court now makes and enters the following:


1. Magistrate Judge Janie S. Mayeron's Report and Recommendation (Doc. No. [19]) is ADOPTED.

2. Plaintiff's Motion for Summary Judgment (Doc. No. [9]) is DENIED.

3. Defendant's Motion for Summary Judgment (Doc. No. [11]) is GRANTED.



JANIE S. MAYERON, United States Magistrate Judge.

The above matter is before the undersigned United States Magistrate Judge on plaintiff's Motion for Summary Judgment [Docket No. 9] and defendant's Motion for Summary Judgment [Docket No. 11]. This matter has been referred to the undersigned Magistrate Judge for a Report and Recommendation by the District Court pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.1(c).

For the reasons discussed below, it is recommended that plaintiff's Motion for Summary Judgment be DENIED and that defendant's Motion for Summary Judgment be GRANTED.


On July 27, 2010, plaintiff GE Xiong filed an application for disability insurance benefits, alleging disability since August 1, 2009, due to seizures and cirrhosis of the liver. See Social Security Administrative Record [Docket No. 8] (" Tr." ), 63, 149-52. Xiong's applications were denied initially and upon reconsideration. Tr. 63-65. At Xiong's request, an administrative hearing was held on April 16, 2012, before Administrative

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Law Judge Mary Kunz (" ALJ" ). Tr. 26, 80. Xiong was represented during the hearing. Tr. 28. Testimony was taken at the hearing from Xiong, medical expert Dr. Andrew Steiner, M.D. (" ME" ), and vocational expert Robert Brzezinski (" VE" ). Tr. 27. The ALJ issued a decision on April 26, 2012, finding that Xiong was not disabled under sections 216(i) and 223(d) of the Social Security Act. Tr. 9-18. Xiong filed a request for review of the ALJ's decision with the Appeals Council, the Appeals Council denied Xiong's request for review and upheld the ALJ's decision denying disability insurance benefits to Xiong (Tr. 1-5), making the ALJ's findings the final decision of defendant. See 42 U.S.C. § 405(g).

Xiong has sought review of the ALJ's decision by filing a Complaint with this Court pursuant to 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3). [Docket No. 1]. The parties now appear before the Court on cross-motions for summary judgment [Docket Nos. 9 and 11].


Congress has prescribed the standards by which Social Security disability benefits may be awarded. The Social Security Administration shall find a person disabled if the claimant " is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment." 42 U.S.C. § 1382c(a)(3)(A). The claimant's impairments must be " of such severity that [the claimant] is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 1382c(a)(3)(B). The impairment must last for a continuous period of at least twelve months or be expected to result in death. 42 U.S.C. § 1382c(a)(3)(A); see also 20 C.F.R. § § 404.1509, 416.909.

If a claimant's initial application for benefits is denied, he or she may request reconsideration of the decision. 20 C.F.R. § § 404.907-09, 416.1407-09. A claimant who is dissatisfied with the reconsidered decision may obtain administrative review by an ALJ. 42 U.S.C. § § 405(b)(1), 1383(c)(1); 20 C.F.R. § § 404.929, 416.1429. To determine the existence and extent of a claimant's disability, the ALJ must follow a five-step sequential analysis, requiring the ALJ to make a series of factual findings regarding the claimant's work history, impairment, residual functional capacity, past work, age, education and work experience. See 20 C.F.R. § § 404.1520, 416.920; see also Locher v. Sullivan, 968 F.2d 725, 727 (8th Cir. 1992); 42 U.S.C. § 1382(a). . The Eighth Circuit described this five-step process as follows:

The Commissioner of Social Security must evaluate: (1) whether the claimant is presently engaged in a substantial gainful activity; (2) whether the claimant has a severe impairment that significantly limits the claimant's physical or mental ability to perform basic work activities; (3) whether the claimant has an impairment that meets or equals a presumptively disabling impairment listed in the regulations; (4) whether the claimant has the residual functional capacity to perform his or her past relevant work; and (5) if the claimant cannot perform the past work, the burden shifts to the Commissioner to prove that there are other jobs in the national economy that the claimant can perform.

Dixon v. Barnhart, 353 F.3d 602, 605 (8th Cir. 2003).

If the claimant is dissatisfied with the ALJ's decision, he or she may request review by the Appeals Council, though review is not automatic. 20 C.F.R. § § 404.967-404.982, 416.1467-1482. The decision of the Appeals Council (or of the

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ALJ, if the request for review is denied) is final and binding upon the claimant unless the matter is appealed to Federal District Court within sixty days after notice of the Appeals Council's action. 42 U.S.C. § § 405(g), 1383(c)(3); 20 C.F.R. § § 404.981, 416.1481.

Judicial review of the administrative decision generally proceeds by considering the decision of the ALJ at each of the five steps. The Court is required to review the administrative record as a whole and to consider:

1. The credibility findings made by the ALJ.

2. The plaintiff's vocational factors.

3. The medical evidence from treating and consulting physicians.

4. The plaintiff's subjective complaints relating to exertional and non-exertional activities and impairments.

5. Any corroboration by third parties of plaintiff's impairments.

6. The testimony of vocational experts, when required, which is based upon a proper hypothetical question which sets forth plaintiff's impairment.

Cruse v. Bowen, 867 F.2d 1183, 1185 (8th Cir. 1989) (citing Brand v. Secretary of HEW, 623 F.2d 523, 527 (8th Cir. 1980)).

The review by this Court is limited to a determination of whether the decision of the ALJ is supported by substantial evidence in the record as a whole. 42 U.S.C. § 405(g); Bradley v. Astrue, 528 F.3d 1113, 1115 (8th Cir. 2008); Johnson v. Apfel, 210 F.3d 870, 874 (8th Cir. 2000); Clark v. Chater, 75 F.3d 414, 416 (8th Cir. 1996). " We may reverse and remand findings of the Commissioner only when such findings are not supported by substantial evidence on the record as a whole." Buckner v. Apfel, 213 F.3d 1006, 1012 (8th Cir. 2000) (citation omitted).

Substantial evidence is " such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)); see also Culbertson v. Shalala, 30 F.3d 934, 939 (8th Cir. 1994). " Substantial evidence is less than a preponderance, but is enough that a reasonable mind would find it adequate to support the Commissioner's conclusion." Buckner, 213 F.3d at 1012 (quoting Prosch v. Apfel, 201 F.3d 1010, 1012 (8th Cir. 2000)); see also Slusser v. Astrue, 557 F.3d 923, 925 (8th Cir. 2009) (citing Gonzales v. Barnhart, 465 F.3d 890, 894 (8th Cir. 2006)) (same); Cox v. Apfel, 160 F.3d 1203, 1206-07 (8th Cir. 1998) (same).

In reviewing the record for substantial evidence, the Court may not substitute its own judgment or findings of fact for that of the ALJ. Hilkemeyer v. Barnhart, 380 F.3d 441, 445 (8th Cir. 2004); Woolf v. Shalala, 3 F.3d 1210, 1213 (8th Cir. 1993). The possibility that the Court could draw two inconsistent conclusions from the same record does not prevent a particular finding from being supported by substantial evidence. Culbertson, 30 F.3d at 939. The Court should not reverse the Commissioner's finding merely because evidence may exist to support the opposite conclusion. Buckner, 213 F.3d at 1011; Mitchell v. Shalala, 25 F.3d 712, 714 (8th Cir. 1994); see also Woolf, 3 F.3d at 1213 (the ALJ's determination must be affirmed, even if substantial evidence would support the opposite finding). Instead, the Court must consider " the weight of the evidence in the record and apply a balancing test to evidence which is contradictory." Gavin v. Heckler, 811 F.2d 1195, 1199 (8th Cir. 1987); see also Heino v. Astrue, 578 F.3d 873, 878 (8th Cir. 2009) (quoting Jackson v. Bowen, 873 F.2d 1111, 1113 (8th Cir. 1989)) (same).

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The claimant bears the burden of proving his or her entitlement to disability insurance benefits under the Social Security Act. See 20 C.F.R. § § 404.1512(a), 416.912(a); Thomas v. Sullivan, 928 F.2d 255, 260 (8th Cir. 1991). Once the claimant has demonstrated he or she cannot perform prior work due to a disability, the burden of proof then shifts to the Commissioner to show that the claimant can engage in some other substantial, gainful activity. See Goff v. Barnhart, 421 F.3d 785, 790 (8th Cir. 2005); Eichelberger v. Barnhart, 390 F.3d 584, 591 (8th Cir. 2004); Martonik v. Heckler, 773 F.2d 236, 239 (8th Cir. 1985).


The ALJ made the following determinations under the five-step procedure. At step one, the ALJ found that Xiong had engaged in substantial gainful activity during the period of October of 2009, December of 2009 and April of 2010. Tr. 11 (citing Tr. 153-57). However, because there a continuous 12-month period(s) during which the Xiong did not engage in substantial gainful activity, the ALJ found that her findings address the period Xiong did not engage in substantial gainful activity. Id.

At the second step, the ALJ found that Xiong had severe impairments of obesity, seizure-like activity, insulin dependent diabetes, alcoholic cirrhosis, chronic anemia secondary to gastric bleeding and pancytopenia, chronic renal disease, depression, anxiety, and a history of alcoholism. Id.

At the third step of the evaluation, the ALJ determined that Xiong did not have an impairment or combination of impairments that met or equaled the relevant criteria of any impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1. Tr. 12-14. With regard to Xiong's physical impairments, the ALJ relied on the testimony of the ME who testified: (1) that Xiong's diabetes was under reasonably good control and was not associated with any ongoing deficits (citing Tr. 480, 652, 876); there was no good evidence that Xiong's seizure activity was anything other than infrequent and was probably mainly related to other medical conditions, which have been addressed successfully; and (3) Xiong's liver condition was not at a listing level of documentation. Tr. 12. In addition, pursuant to SSR 02-1p, the ALJ considered the effect of the Xiong's obesity to determine if there were any combined effects of musculoskeletal, respiratory or cardiovascular impairments that could be evaluated under Listings Sections 1.00, 3.00 and 4.00, but concluded that these impairments did not reach the degree of severity contemplated by the Listings. Id.

As it related to Xiong's mental impairments, the ALJ determined that the severity of his mental impairments, considered alone and in combination, did not meet or medically equal the criteria of Listings 12.04 (Affective Disorders), 12.06 (Anxiety), and 12.09 (Substance Addiction). Id. First, the ALJ found that Xiong did not satisfy the " paragraph B" criteria of at least two marked restrictions in the following areas: activities of daily living; social functioning; concentration, persistence, or pace; or repeated episodes of decompensation, each of extended duration. Tr. 12-13. For activities of daily living, the ALJ found that Xiong had a mild restriction. Tr. 13. The ALJ made this finding based on Xiong's Adult Function Report, which reflected he did not have problems with performing personal care tasks, (Tr. 214); he needed reminders to take care of personal needs or grooming, (Tr. 218); he did not prepare his own meals or do housework (Tr. 218); he walked or rode in a car, (Tr. 219); he shopped in stores, (Tr. 218); he went to a gym, used the gym machines and walked, (Tr. 425, 1043); he did some

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yard work, (Tr. 1051); and he walked daily for exercise, (Tr. 1067). Tr. 13.

As to social functioning, the ALJ found that Xiong had mild difficulties based on the records reflecting that he was under stress from a difficult divorce and he reported that he has problems getting along with others, (Tr. 221, 1039-1127); he spent time with others; socialized with friends, and talked on the phone with relatives once or twice per week, (Tr. 220); he traveled to California for the funeral of General Pang Pao and saw many friends and people he knew from the Vietnam War at the funeral, (Tr. 1071); and he stayed in touch with his friends, (Tr. 987). Tr. 13. In addition, Xiong testified that he borrowed money from relatives and received assistance from his uncle on a regular basis. Id.

With regard to concentration, persistence or pace, the ALJ found that Xiong had moderate difficulties. Id. The ALJ made this finding based Xiong's reports in his Adult Function Report that he was able to count change and handle a savings account but could not pay bills or handle a checking account, (Tr. 219); he watched television daily and exercised, (Tr. 220); he did not need reminders to go places, (Tr. 220); and he reported problems with memory, completing tasks, concentration, and understanding, (Tr. 221); medical records from April 2010 and August 2011 reflecting that he was alert and oriented, (Tr. 294, 789); and treatment records from Xiong's therapist that did not contain any indication that he was unable to concentrate during the sessions or understand treatment goals, (Tr. 980, 987 1065-66). Tr. 13.

The ALJ also found that the evidence in the record failed to establish the presence of the " paragraph C" criteria, as the record did not reflect evidence of either repeated episodes of decompensation, a residual disease process that resulted in such marginal adjustment that even a minimal increase in mental demands or change in the environment would be predicted to cause decompensation; a current history of one or more years' inability to function outside a highly supportive living arrangement; or a complete inability to function independently outside the area of one's home. Tr. 14.

Before reaching step four of the analysis, the ALJ found that Xiong had the residual functional capacity (" RFC" ) to perform light work, as defined in 20 CFR 404.1567(b), and that he could lift up to 20 pounds occasionally and 10 pounds frequently; he could walk or stand six hours and sit two hours in an 8-hour work day; he should not be exposed to unprotected heights or hazards; and he was restricted to routine, repetitive, simple work. Tr. 14. In reaching this RFC, the ALJ took into account Xiong's claims that he was unable to work because of bloody stools, weakness resulting in an inability to walk more than around the house, an inability to stand more than 10 minutes or to sit more than 30 minutes, seizures three to four times a week, blurred vision, and a heavy head due to side effects from his medications. Tr. 15. The ALJ also considered Xiong's claims that he would experience symptoms with heavy lifting or prolonged walking or standing, and reduced the RFC to accommodate these limitations. Id. Seizure precautions were also included in the RFC. Id.

The ALJ did not find Xiong's assertion that he was unable to work credible because of significant inconsistencies in the record as a whole. Id. First, the ALJ concluded that the objective medical record was inconsistent with the degree of limitations claimed by the Xiong, relying on the ME's testimony that Xiong's seizures were improved after his first seizure-like activity in July 2010, were stable

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on medication but that compliance on medications had been problematic, (Tr. 488, 513, 516, 653, 661, 832, 950, 1077, 1126); the seizure activity secondary to diabetic ketoacidosis [1] was successfully treated for renal failure, (Tr. 359); there were no confirmatory reports of repeated seizures, (Tr. 290, 758, 792, 867, 1043, 1045, 1053, 1066, 1074, 1077, 1107); and neurological examinations had been normal, (Tr. 568, 1083, 1093). Tr. 15.

The ALJ also noted that the ME determined that Xiong showed questionable compliance with his diabetes management. Id. (citing Tr. 935).

Additionally, relying on the ME's opinion, the ALJ found that while there was evidence of alcoholic cirrhosis with abnormal liver function markers, there was no overt liver decompensation, and only mild changes had been seen on a liver biopsy. Id. (citing Tr. 360, 563, 740). The ALJ also found that the medical record supported the finding that Xiong has chronic renal disease without overt renal failure. Id. (citing Tr. 319, 371, 373). As to Xiong's anemia, secondary to his gastric bleeding, the ALJ relied on the ME's testimony that more recently Xiong's hemoglobin had risen and was stable. Id. (citing Tr. 952-53).

Second, the ALJ took into account Xiong's obesity by limiting him to a light RFC. Id. (citing Tr. 431, 880).

Third, the ALJ considered Xiong's mental impairments, and found that the objective record relating to the mental impairments showed therapy related to stress, primarily secondary to the breakup of his marriage and financial troubles, but that there were no mental examinations demonstrating any cognitive or social limitations, and Xiong was encouraged to be more physically and socially active by his therapist. Tr. 16 (citing Tr. 1065).

Fourth, the ALJ noted that Xiong had a steady work history, but had made no attempt to return to work. Id. (citing Tr. 170-75)).

Fifth, the ALJ examined Xiong's claim that his noncompliance with treatment and medications were due to his inability to afford treatment, (Tr. 418, 994, 1045, 1047, 1126), and his assertion that he did not engage in many daily activities. Tr. 16. The ALJ indicated that Xiong's claim that he could not afford medications was contradicted by the fact that he borrowed money from relatives for many other expenses and he received $850 dollars a month from his ex-wife. Id. Further, the ALJ pointed to Xiong's reports that he was staying in touch with friends and was very happy about that. Id. (citing Tr. 987).

Sixth, the ALJ found Xiong's claims about is daily activities, including that he could not take care of himself were not supported by the medical record and were contradicted by his activities, including travelling to Bally's gym to use their machines, walking for two hours twice a week, walking every night for one-and one-half miles, doing yard work, and going to California for the funeral of General Pang Pao where he met many friends and people who he knew from the war. Id. (citing 424, 1043, 1051, 1071).

Seventh, the ALJ also did not find Xiong's claim that he could not speak or understand English credible. Tr. 16. Xiong spoke through an interpreter at the hearing, but in the previous hearing, he spoke in English and was able to complete forms on his own. Id. (citing Tr. 202-123, 425).

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Finally, despite Xiong's statement that he had not used alcohol since 2002, the ALJ noted that there was an issue of continued alcohol abuse by him, including returning intoxicated to a hospital. Id. (citing Tr. 325, 338, 669).

The ALJ gave the greatest weight to the opinions of the ME, given his specialization in physical medication and rehabilitation, his experience with the disability evaluation process, and his review of the entire record. Tr. 16-17. The ME's opinion was essentially consistent with the state agency physicians, which were also given great weight by the ALJ. Tr. 17 (citing Tr. 401-11,438-40).

The ALJ considered the opinion of Xiong's treating physician, Dr. Antonio Jhocson, that Xiong should not drive, and given Xiong's history of seizures, gave it weight by reflecting the limitation in the RFC of no exposure to hazards. Tr. 17. However, the ALJ gave no weight to Dr. Jhocson's opinion that Xiong could not work because of his diabetes, cirrhosis, depression and seizures, as he did not provide any support for that conclusion, nor did he identify any limitations stemming from those conditions. Id. (citing Tr. 650). In addition, the ALJ gave no weight to the May 2011 opinion of treating physician, Dr. Michael Rosenbloom, that Xiong could not drive or work for the next three months based on his seizures, noting that this was temporary opinion, there were no limitations listed except as to Xiong's ability to drive, the RFC had restricted any exposure to hazards, there were no reports asserting that his seizures were frequent, and his neurological examinations had been normal. Id. (citing Tr. 969).

Based on the RFC assigned to Xiong and the VE's testimony, the ALJ determined at the fourth step of the evaluation process that Xiong was able to perform his past relevant work as an unskilled and light production assembler as it is generally performed. Tr. 17.


A. Background

Xiong was 52-years-old when the ALJ issued her decision. Xiong left Laos for the United States when he was about 19 years old, and after his arrival, he finished his training as a welder. Tr. 195. He worked for approximately 30 years as ...

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