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Kilgore v. Commissioner of Social Security

September 4, 2008

JEFFREY KILGORE, PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

Plaintiff, who is proceeding with retained counsel, brings this action for judicial review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g). Pursuant to the consent of the parties, this case is before the undersigned for final decision on plaintiff's motion for summary judgment (Doc. 13) and defendant's cross-motion for summary judgment (Doc. 16).

I. PROCEDURAL HISTORY

Plaintiff applied for social security benefits on July 29, 2004. In his application, plaintiff claims that his disability began on January 26, 2001. In an adult disability report submitted with his application, plaintiff claims his disability consists of a combination of degenerative disc disease, right forearm laceration and nerve damage, and pain. Plaintiff's claim was initially denied. Following denial of his request for reconsideration, plaintiff requested an administrative hearing, which was held on October 13, 2005, before Administrative Law Judge ("ALJ") Theodore T. N. Slocum. In his April 19, 2006, decision, the ALJ made the following findings:

1. The claimant met the disability insured status requirements of the Act on January 26, 2001, the date the claimant stated he became unable to work, and continues to meet them through the end of December 2003.

2. The claimant has not engaged in substantial gainful activity since January 26, 2001.

3. Beginning on or before the end of December 2003, the medical evidence establishes that the claimant had "severe" back pain and right upper extremity soft tissue injury, but that he has not had an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulations No. 4. There is no evidence in the record that the claimant has any migraine headaches and this impairment is therefore deemed to be non-severe.

4. The claimant's testimony is not substantially credible for the reasons stated in the body of this decision.

5. Beginning on or before the end of December 2003, the claimant has had the residual functional capacity to perform the physical exertion and non-exertional requirements of work except for frequently lifting more than 10 pounds, occasionally lifting more than 20 pounds, and repetitively stooping or bending (20 CFR § 404.1545).

6. Beginning on or before the end of December 2003, the claimant has been unable to perform his past relevant work as a warehouse manager, delivery driver, cellular tower warehouse worker and carpenter.

7. Beginning on or before the end of December 2003, the claimant's residual functional capacity for the full range of light work has been reduced by bending and stooping restrictions.

8. The claimant is 44 years old, which is defined as a younger age individual (20 CFR § 404.1563).

9. The claimant possesses the equivalent of a high school education (20 CFR § 404.1564).

10. The claimant does not have any acquired work skills which are transferable to the skilled or semi skilled work functions of other work (20 CFR § 404.1568).

11. With respect to the period beginning on or before the end of December 2003, it is held that based on an exertional capacity for light work, and considering the claimant's age, education, and work experience, section 404.1569 and Rule 202.22, Table No. 2, Appendix 2, Subpart P, Regulations No. 4 would direct a conclusion of "not disabled."

12. For the period beginning on or before the end of December 2003, the claimant's capacity for light work has not been compromised by his non-exertional limitations. Accordingly, using the above-cited rule(s) as a framework for decision making, the claimant is not disabled.

13. The claimant was not under a "disability," as defined in the Social Security Act, at any time through the date of this decision (20 CFR § 404.1520(f)).

After the Appeals Council declined review on March 23, 2007, this appeal followed.

II. SUMMARY OF THE EVIDENCE

The certified administrative record ("CAR") contains the following medical records:

1. Medical Report dated June 30, 2000, from Michael Millman, Ph.D. (CAR 215-19);

2. Medical Report dated September 1, 2000, from Gisler Family Chiropractic (CAR 220-24);

3. Medical Report dated October 25, 2000, from Edington Medical Group (CAR 225-32);

4. Medical Records covering the period from March 2, 2000 to December 26, 2001, from Med Clinic (CAR 233-39);

5. Medical Report dated March 20, 2002, from Santiam Chiropractic Clinic (CAR 240-43);

6. Medical Report dated August 6, 2002, from Todd J. Lewis, M.D. (CAR 244-45);

7. Residual Functional Capacity Assessment -Physical (DDS) dated December 3, 2002 (CAR 246-50);

8. Psychiatric Review Technique Form (DDS) dated December 4, 2002 (CAR 251);

9. Medical Records covering the period from June 20, 2002 to February 27, 2003, from Park Street Clinic (CAR 252-59);

10. Medical Report dated March 4, 2003, from Department of Veteran's Affairs (CAR 260-96);

11. Medical Report dated October 25, 2004, from Rita B. Bermudez, M.D. (CAR 300-05);

12. Psychiatric Review Technique Form (DDS) dated November 23, 2004 (CAR 306);

13. Residual Functional Capacity Assessment - Physical (DDS) dated January 11, 2005 (CAR 311-18);

14. Medical Records covering the period from July 2, 2004 to October 10, 2005, from Department of Veteran's Affairs (CAR 319-38); and

15. Medical Records covering the period from August 16, 2006 to October 24, 2006, from Department of ...


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