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Kheng v. Astrue

May 18, 2009


The opinion of the court was delivered by: Magistrate Judge Susan E. Cox


Plaintiff Nary Kheng ("plaintiff") seeks judicial review of a final decision by the Commissioner of Social Security ("Commissioner") denying her application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("SSA"). The parties have filed Cross-Motions for Summary Judgment; plaintiff seeks reversal or remand, while the Commissioner moves the Court to affirm the decision below. For the reasons discussed herein, plaintiff's motion is denied [dkt 17] and the Commissioner's motion is granted [dkt 24].


March 31, 2004 was the last date on which plaintiff was eligible to receive DIB.*fn1 Plaintiff applied for DIB on August 6, 2004, claiming a disability onset date of May 1, 1998.*fn2 Plaintiff later amended the disability onset date to February 1, 2003.*fn3 Plaintiff alleged that diabetes, hepatitis B, depression, and Post-Traumatic Stress Disorder ("PTSD") rendered her incapable of pursuing gainful employment.*fn4 Plaintiff has since attributed her disability solely to mental impairments. After her application was denied on October 8, 2004 and reconsideration was denied on February 4, 2005, plaintiff was granted a hearing before an administrative law judge ("ALJ").*fn5 On January 17, 2007, plaintiff appeared before ALJ John Kraybill, who determined that plaintiff was not disabled as of March 31, 2004.*fn6 The Appeals Council affirmed the ALJ's decision on May 8, 2008, and plaintiff filed this action on July 2, 2008.*fn7


Born on July 5, 1962, plaintiff was 44 years old when she appeared before the ALJ.*fn8 Plaintiff has a 10th grade education and worked as a factory employee for several years before acquiring two video stores with her husband.*fn9 Plaintiff operated one of the stores, while her husband operated the other.*fn10 Plaintiff alleges that her disability forced her to close her store in 2001.*fn11 Plaintiff has not been employed since that time.*fn12

A. Medical History

The date on which plaintiff was last insured ("DLI") is March 31, 2004.*fn13 Prior to the DLI, plaintiff was evaluated by Marcia R. Katz, M.D. ("Dr. Katz"), of Chicago Health Outreach.*fn14 On December 19, 2002, Dr. Katz noted that plaintiff had been experiencing nervousness, poor concentration, and forgetfulness for the past 1-2 months.*fn15 Dr. Katz suspected that plaintiff might have an "underlying anxiety disorder," and observed that plaintiff had previously "shown signs of somatic type [symptoms]."*fn16

The next record of plaintiff's mental health condition appears after the DLI. On April 22, 2004, Dr. Katz noted that plaintiff was "feeling overwhelmed" and "tearful often," and that plaintiff had been scheduled for a mental health evaluation at Asian Human Services.*fn17 Plaintiff's "Client Problem List" at Chicago Health Outreach lists "depression, PTSD" in April 2004, and is initialed by Dr. Katz.*fn18

Later that year, on October 26, 2004, Dr. Katz diagnosed plaintiff with acute traumatic family loss, stemming from her brother's suicide two days prior.*fn19 Plaintiff was subsequently referred to Kathleen Allen, LCPC ("Allen"), who conducted a mental health assessment of plaintiff on February 16, 2005.*fn20 Plaintiff told Allen that she would scream, sweat, and talk to herself in her sleep, and that she had been "scratching [herself] with a coin" for the past two years.*fn21 Plaintiff traced these actions back to her experiences during the Khmer Rouge regime in Cambodia in the 1970s, before she arrived in the United States in 1981.*fn22 Plaintiff described the deaths of both parents and three siblings during the war and subsequent occupation.*fn23 She explained to Allen that her symptoms had been growing "progressively worse over the last several [years], especially the last 2," and that she was "devastated by the suicide of her younger brother 11/2 [months] ago."*fn24 Allen determined plaintiff's Global Assessment of Functioning score to be 50, which denotes "serious symptoms or any serious impairment in social, occupational, or school settings."*fn25 Allen also diagnosed plaintiff with PTSD, and began treating plaintiff on a weekly basis.*fn26 Allen subsequently referred plaintiff to a psychiatrist, Raymond Gouttama, M.D. ("Dr. Gouttama"), who diagnosed plaintiff with PTSD on September 19, 2005.*fn27

B. January 17, 2007 Hearing Before the ALJ

On January 17, 2007, plaintiff appeared before the ALJ along with two expert witnesses, Allen and Carl Leigh, M.D. ("Dr. Leigh").*fn28 The ALJ first questioned plaintiff regarding the details of her living conditions. Plaintiff testified that she regularly used the medication Lexapro, prescribed by Dr. Gouttama, in order to mitigate the effects of her depression and nightmares.*fn29 Plaintiff explained that many of her thoughts and dreams focused on the torture she experienced as a teenager in Cambodia.*fn30 She noted that her prescribed dosage of Lexapro had been increased twice to alleviate the persistent symptoms.*fn31 Plaintiff also testified that she was forced to close her video store in 2001 because her nightmares and physical sickness prevented her from working.*fn32 She had more recently attempted to help out at her husband's video store, but would constantly shake and charge customers the wrong price.*fn33

The ALJ next questioned Allen, who had been treating plaintiff since diagnosing her with PTSD in February 2005. In her testimony, Allen confirmed Dr. Gouttama's diagnosis of PTSD and described plaintiff's treatment program.*fn34 Allen explained that plaintiff was taking Lexapro instead of Zoloft, which may have been a more appropriate PTSD medication, because plaintiff's brother had committed suicide with Zoloft.*fn35 Allen also testified that while plaintiff's symptoms had been severe at the start of her treatment, they were gradually lessening over time.*fn36 According to Allen, however, plaintiff still remained largely incapable of performing the day-to-day functions of cooking, cleaning, and parenting.*fn37 Plaintiff's memories overwhelmed her and prevented her from sustaining any meaningful relationships.*fn38

The ALJ lastly questioned Dr. Leigh, who testified that plaintiff's physical impairments of diabetes and hepatitis B were non-severe because there was "no evidence of cirrhosis or liver damage, or end-organ damage, and creatin levels were normal."*fn39 Plaintiff has ...

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