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McGee v. Astrue

January 29, 2009

SCOTT MCGEE, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Gregory G. Hollows U.S. Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("Act"). For the reasons that follow, the court recommends plaintiff's Motion for Summary Judgment be denied, the Commissioner's Cross Motion for Summary Judgment be granted, and judgment be entered for the Commissioner. BACKGROUND

Plaintiff, born June 6, 1962, applied on July 21, 2004 for disability benefits. (Tr. at 52.) Plaintiff alleged he was unable to work since November 25, 2003, due to neuropathy, anxiety, depression, restless leg syndrome, and degenerative disc disease. (Tr. at 92, 17.)

In a decision dated July 27, 2006, ALJ Laura Speck Havens determined plaintiff was not disabled. The ALJ made the following findings:*fn1

1. The claimant filed applications for a period of disability and disability insurance benefits and for supplemental security income payments on July 21, 2004.

2. The claimant is 44 years old, is a high school graduate and has past relevant work experience as a construction supervisor and heavy equipment operator.

3. The claimant met the special earnings requirements for benefits based on disability under Title II of the Social Security Act at the time of his alleged disability onset and continues to meet those requirements through at least December 31, 2008.

4. The claimant has not engaged in substantial gainful activity since his alleged disability onset date.

5. The claimant has the following medically determinable impairment: degenerative disc disease and obesity.

6. The claimant's medically determinable impairment significantly limits his ability to perform basic work activities.

7. The claimant does not have any impairment or impairments that meet or equal the criteria set forth in any applicable section of the Listing of Impairments found at 20 CFR, Part 404, Subpart P, Appendix 1.

8. The claimant has the residual functional capacity to perform a full range of work at the medium exertional level.

9. The claimant is precluded from performing his past relevant work by his medically determinable impairments.

10. Taking into consideration the claimant's age, education, employment experience, and residual functional capacity, the Medical-Vocational Guidelines found at 20 C.F.R., Part 404, Subpart P, Appendix 2 direct a finding of 'not disabled' as indicated by Rule 203.29.

11. Alternatively, the claimant is able to perform the job of small parts assembler, Dictionary of Occupational Titles #706.684-022, of which 97,000 such jobs exist in the State; the job of cashier DOT #211.462-010, of which 85,000 such jobs exists [sic] in the state; and the job of routing clerk, DOT #222.687-022, of which 15,000 such positions exist in the State.

12. The claimant's subjective statements regarding pain and other symptoms have been considered, but to the extent that those statements constitute an allegation that the claimant has been precluded from engaging in all substantial gainful activity by a medically determinable impairment or impairments for a period of time which has lasted or reasonably can be expected to last for 12 continuous months, they are not found credible.

13. The claimant was not disabled within the meaning of the Social Security Act, at any time on or before the date of this decision.

(Tr. at 25-26.)

ISSUE PRESENTED

Plaintiff has raised the following issues: A. Whether the ALJ and the Appeals Counsel Improperly Rejected the Diagnosis of the Claimant's Treating Physician; B. Whether Plaintiff is Unable to do the Full Range of Medium Work; C. Whether the Vocational Expert's Second Hypothetical Fails to Encompass Plaintiff's Actual Limitations; and D. Whether the ALJ Failed ...


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