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Casebeer v. Astrue

March 5, 2009

DAVID A. CASEBEER, 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

ORDER

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, plaintiff's Motion for Summary Judgment is GRANTED IN PART, the Commissioner's Cross Motion for Summary Judgment is DENIED in part, and this matter is remanded to the ALJ for further findings as directed in this opinion. The Clerk is directed to enter judgment for plaintiff.

BACKGROUND

Plaintiff, born June 23, 1955, applied on July 27, 2004 for disability benefits. (Tr. at 71.) Plaintiff alleged he was unable to work due to back and hip pain. (Tr. at 112-13.)

In a decision dated March 29, 2007, ALJ Jean Kingrey determined plaintiff was not disabled. The ALJ made the following findings:*fn1

1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2008.

2. The claimant has not engaged in substantial gainful activity since January 16, 2004, the alleged onset date (20 CFR 404.1520(b) and 404.1571 et seq.).

3. The claimant has the following severe impairment: degenerative changes in the back without evidence for neurological compromise and unclear etiology for reported pain (20 CFR 404.1520(c)).

4. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).

5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to lift up to 20 pounds occasionally, and lift up to 10 pounds frequently. He can sit for six hours out of an eight-hour workday, and stand/walk for six hours out of an eight-hour workday. The claimant requires the freedom to change position at least every hour for a brief period of time to relieve discomfort. He has no other functional limitations.

6. The claimant is capable of performing past relevant work as a pharmaceutical sales representative, and as a yellow pages advertising sales representative. This work does not require the performance of work-related activities precluded by the claimant's residual functional capacity (20 CFR 404.1565).

7. The claimant has not been under a disability, as defined in the Social Security Act, from January 16, 2004, through the date of this decision (20 CFR 404.1520(f)).

(Tr. at 18-24.)

ISSUES PRESENTED

Plaintiff has raised the following issues: A. Whether the ALJ Improperly Rejected the Opinions of Plaintiff's Treating and Examining Physicians; B. Whether the ALJ Erred in Failing to Re-contact Dr. O'Sullivan to Seek Additional Evidence or Clarification Regarding Conflicts or Ambiguities; C. Whether the ALJ Improperly Substituted Her Own Opinion For That of Plaintiff's Doctors, and Made Her Own Independent Medical Findings; D. Whether the ALJ Improperly Rejected Plaintiff's Pain Testimony; and E. Whether the ...


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