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Morrison v. Astrue

January 15, 2009

HENRY MORRISON, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: VICTOR B. Kenton United States Magistrate Judge

MEMORANDUM OPINION AND ORDER (Social Security Case)

This matter is before the Court for review of the decision by the Commissioner of Social Security denying Plaintiff's application for disability benefits. Pursuant to 28 U.S.C. §636(c), the parties have consented that the case may be handled by the Magistrate Judge. The action arises under 42 U.S.C. §405(g), which authorizes the Court to enter judgment upon the pleadings and transcript of the record before the Commissioner. The parties have filed the Joint Stipulation ("JS"), and the Commissioner has filed the certified Administrative Record ("AR").

Plaintiff raises the following issues:

1. The Administrative Law Judge ("ALJ") failed to properly consider the opinion of his treating physician, Dr. Surdyka (issues 1 and 2);

2. The ALJ did not properly consider the opinion of State Agency psychiatrist Dr. Michael;

3. The ALJ did nor properly evaluate Plaintiff's testimony and credibility;

4. The ALJ did not properly evaluate Plaintiff's residual functional capacity ("RFC"); and

5. The ALJ did not properly consider side effects of prescribed medications.

This Memorandum Opinion will constitute the Court's findings of fact and conclusions of law. After reviewing the matter, the Court concludes that the decision of the Commissioner must be affirmed.

I. THE ALJ DID NOT IMPROPERLY EVALUATE THE OPINION OF DR. SURDYKA

Plaintiff's surgeon, Dr. Surdyka, performed a left total hip arthroplasty in February 2002. (AR 416, 13, 195-196.) In November 2003, Plaintiff underwent a right total hip arthroplasty. (AR 416.)

Three months after the first surgery, Dr. Surdyka assessed Plaintiff's functional limitations, concluding that he was incapable of climbing, stooping, kneeling, crouching, or crawling. (AR 196.) The medical basis for this conclusion was asserted to be the surgery on Plaintiff's left hip. (Id.)

Following the surgery on his right hip, Plaintiff was referred for a complete orthopedic evaluation ("Orthopedic CE") by the Department of Social Services. (AR 416-421.) Dr. Meltzer performed a complete examination and assessed that Plaintiff could sit, stand and walk an unlimited length of time in an eight-hour workday without any external support; should avoid irregular ground; could frequently climb, stoop and kneel and crouch, but should not crouch beyond 90 to 100 degrees to avoid the slight risk of dislocation. Dr. Meltzer noted that Plaintiff can do a full squat without difficulty. (AR 420.)

At the hearing, Dr. Landau, the medical examiner ("ME"), assessed that Plaintiff can stand and walk for two hours out of eight, 15 to 30 minutes at a time on level ground and using a cane as needed; can sit for six hours out of eight with normal breaks; could lift and carry ten pounds frequently and 20 pounds occasionally; can occasionally stoop and bend, but can't squat, crouch, kneel or crawl. He can climb ...


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