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Gonzalez v. Astrue

July 24, 2009

RUBY JO ANN GONZALEZ, 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 established that Plaintiff could perform her past relevant work on a full-time basis;

2. Whether the ALJ properly considered the treating psychiatrist's opinion; and

3. Whether the ALJ posed a complete hypothetical question to the vocational expert.

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 PROPERLY EVALUATED PLAINTIFF'S RESIDUAL FUNCTIONAL CAPACITY

Plaintiff asserts that the ALJ did not assess a residual functional capacity ("RFC") which provides for full-time work, defined as eight hours a day for five days a week. (See Social Security Ruling ["SSR"] 96-8p.) In the decision, the ALJ, in part, assessed that Plaintiff can stand and walk for two hours out of a six-hour workday, and she can sit for four hours out of an eight-hour workday. (AR 11.) If, as Plaintiff asserts, this constituted the relevant portion of the ALJ's RFC assessment, it would indeed be error, as it does not provide for standing, walking and sitting during a full workday. The issue, however, is a red herring. The ALJ adopted the functional assessments of Dr. Sean To rendered on November 1, 2007. (AR 12-13, 301-308.) As part of the functional assessment, Dr. To assessed that Plaintiff could sit, stand, and walk at one time, without interruption, as follows: sit for four hours; stand for two hours; walk for one hour. What Plaintiff omits is the next part of Dr. To's functional assessment, which concerns the total amount of time that Plaintiff can do these functions in an eight-hour workday. Here, Dr. To assessed that in a workday, Plaintiff could sit for a total of eight hours; stand for six hours; and walk for four hours.

Since the ALJ explicitly adopted Dr. To's findings with regard to Plaintiff's functional abilities, the portion of the decision cited by Plaintiff is at most nothing but a typographical error, or an incomplete recitation of the ALJ's actual findings. Plaintiff's issue thus has no merit.

II. THE ALJ PROPERLY EVALUATED DR. ANDERSON'S OPINION

In Plaintiff's second issue, she contends that the ALJ failed to accord proper weight to the opinion of her physician, Dr. Anderson.*fn1

In the decision, the ALJ found that fibromyalgia is one of Plaintiff's severe impairments (AR 10). He did not, ...


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