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Nguyen v. Colvin

United States District Court, D. South Dakota, Northern Division

March 13, 2014

MINH-DUNG T. NGUYEN, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

ORDER ADOPTING REPORT AND RECOMMENDATION

CHARLES B. KORNMANN, District Judge.

Plaintiff brought this action pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), to obtain judicial review of defendant's final decision denying plaintiff's claim for disability insurance benefits. This matter was referred to United States Magistrate Judge William D. Gerdes for the purposes of conducting any necessary hearing and issuing a report and recommendation.

The magistrate filed his Report and Recommendation. Copies of such Report and Recommendation were served upon the parties as required by 28 U.S.C. § 636. Plaintiff filed objections. I have conducted a de novo review of the file and the report as required by 28 U.S.C. § 636(b)(1). I find that the Commissioner's decision is supported by substantial evidence on the record as a whole.

BACKGROUND

Plaintiff was born in 1966. She lived and worked in Aberdeen, South Dakota, from 1992 to 1998. She graduated from Northern State University and obtained a master's degree from the University of Maryland through the Internet. She lived and worked in Florida from 2001-2002, while she was working on her Ph.D. in computer science. She claims she developed osteoarthritis and claims she was "fired" from the Ph.D. program because she was unable to sit at a computer. She moved to California in 2005 but returned to Aberdeen after her work hours were reduced.

Plaintiff filed a disability claim in 2004, which was denied on September 7, 2006. She filed a second claim in 2008, claiming a disability onset date of September 8, 2006.

Plaintiff's claim was denied on November 6, 2008. Plaintiff filed a request for reconsideration on December 29, 2008. Her claim was denied on reconsideration on February 11, 2009, on the following basis:

You state that you are disabled due to osteoarthritis in (sic) limbs, including both knees, both hands, both elbows, both shoulders as well as the hip and your back. Although you have pain, it does not severely limit normal daily activities. X-rays do not show severe damage. There is no indication of joint damage which would result in severe weakness or loss of function. There is no indication of nerve or muscle damage which would result in severe weakness or loss of function. The reports do not show any other condition that would severely limit the ability to work. Considering medical records, age, education and work history, we have concluded that you are able to do work that doesn't require heavy lifting or extensive standing or walking.

On April 9, 2009, plaintiff requested a hearing before an ALJ. She claimed the reconsideration denial notice ignored "the lies in the Xray reports." She went into great medical detail as to why she believed the "normal" x-ray reports were "lies by the Radiologists." She contended the denial "ignored the severity already included in my medical treatment records." She outlined in great detail why the medicines prescribed by physicians clearly show that her degenerative condition was severe, including her assertion that Flonase nasal spray was prescribed

to relieve the condition of being hard to breathe as a result of swelling of the glenohumeral joint of the left shoulder which created pressure in the chest area... The Flonase prescription can tell that the use of steroid, a powerful anti-inflammatory medicine, has been already needed since 2006 to reduce swelling of the joints.

She continued to outline in detail how her previous medical history and prescribed medications showed the severity of the swelling in her joints. Finally, she claimed the denial was in error because her request for a physical examination at the Social Security Administration's expense was denied even though such examination would show the now-visible damages of the osteoarthritis disease.

A hearing was held on July 16, 2010, before ALJ Robert Maxwell. William Tucker, a vocational expert, was present. Following the hearing, the ALJ ordered a medical consultive examination. On October 4, 2010, plaintiff was examined by Dr. John Vidoloff. Dr. Vidoloff reported that plaintiff's physical complaints were not consistent with her presentation. He ordered x-rays of her shoulders, right wrist and hand and the radiology reports were negative for any significant degenerative change. Plaintiff requested a supplemental hearing and a supplemental hearing was held before the ALJ on January 12, 2011. Plaintiff appeared at the hearing, waived advance written notice of the hearing, and testified that she disagreed with Dr. Vidoloff's report and that his report was a lie.

Plaintiff sought to subpoena the radiologists who reviewed her x-rays so that she could cross-examine them about their reports. The ALJ denied the requests. Plaintiff also sought to introduce the actual x-ray films into evidence to show that the reports were wrong and she did in fact have a severe impairment. That request was also denied.

The Administrative Law Judge ("ALJ") issued a decision on January 25, 2011, denying plaintiff's claim for disability. Plaintiff filed a request for review of the ALJ's decision. She ...


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