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Vasquez v. Astrue

April 13, 2009

GERMAN VASQUEZ, 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. Whether the Administrative Law Judge ("ALJ") properly considered the treating psychologist's findings;

2. Whether the ALJ properly developed the record;

3. Whether the ALJ properly considered the type, dosage, effectiveness, and side effects of Plaintiff's medication;

4. Whether the ALJ properly rated the severity of Plaintiff's mental impairment;

5. Whether the ALJ properly considered the severity of Plaintiff's mental impairment; and

6. Whether the ALJ properly considered the mental and physical demands of Plaintiff's past relevant work.

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.

PROCEDURAL BACKGROUND

Following this Court's issuance of a Memorandum Opinion and Order pursuant to Sentence Four, filed on November 27, 2006 (AR 218-222), and Judgment (AR 218), the Appeals Council remanded the case for further hearing. (AR 224.) That hearing occurred on June 19, 2007, with supplemental hearings on September 10, 2007 and January 28, 2008. (AR 242-245, 246-251, 252-259.) An unfavorable decision issued (AR 194-201), and Plaintiff commenced the instant litigation.

I. THE ALJ PROPERLY EVALUATED THE TREATING PSYCHOLOGIST'S FINDINGS. FURTHER, THE ALJ WAS UNDER NO DUTY TO DEVELOP THE RECORD

On the date of the first hearing, June 19, 2007, Plaintiff's counsel (the same counsel who represents him in this litigation), submitted a two-page document entitled "Treating Physician's Progress Report" prepared for Plaintiff's worker's compensation attorney and claims administrator. (AR 239-241.) The document is a report from David J. Lopata, Ph.D., a clinical psychologist. As the Commissioner correctly asserts, it is the only evidence in the record regarding any mental health treatment. Moreover, Plaintiff testified he received no treatment of any kind, including for mental health purposes, since 2005. (AR ...


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