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Stark v. Astrue

August 28, 2009

RANDALL K. STARK, 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 THEREON

Plaintiff Randall K. Stark ("Plaintiff") filed a Complaint on November 27, 2002, by and through her counsel, pursuant to 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3), seeking review of the Commissioner of Social Security's ("Commissioner") decision that she was not entitled to Supplemental Security Income ("SSI") benefits under Title II of the Social Security Act ("Act"). Plaintiff seeks reversal of the Commissioner's decision, or in the alternative, for the Court to remand the matter for a new hearing.

The parties have consented to proceed before United States Magistrate Judge Victor B. Kenton, pursuant to 28 U.S.C. § 636(c). The Commissioner has filed the certified Administrative Record ("AR").

On July 14, 2009, pursuant to this Court's case management Order, the parties filed a Joint Stipulation ("JS"). The Court then took the matter under submission. This Memorandum Opinion shall constitute the Court's findings of facts and conclusions of law.

I. BACKGROUND

Plaintiff filed his application for SSI on November 27, 2002. (AR 105-107, 133-142.) Plaintiff alleged an onset date of disability of September 10, 1997. (AR 105, 134.) Plaintiff alleged disabling conditions of nerve damage to the left wrist and both elbows, a herniated disc and PARS defect in the lower back, and a hernia in the left stomach. (AR 134.) Two prior claims had been filed by Plaintiff. The first, filed on or about April 23, 1999 (AR 171-180) was denied. The second, filed on April 24, 2002 (AR 101-103) was denied June 24, 2002. (AR 84-87.) Plaintiff did not request reconsideration for either claim.

Plaintiff's application at bar was denied initially, and again upon reconsideration on August 15, 2003. (AR 88-91, 95-99.) Plaintiff requested a hearing before an Administrative Law Judge ("ALJ") on November 22, 2003 (AR 100), which occurred in Orange, California on August 31, 2004 before ALJ Steven L. Chaffin. (AR 38-42.) Plaintiff appeared and testified and was represented by counsel, and testimony was also taken from a Vocational Expert ("VE"). (AR 63-80.)

On November 22, 2004, the ALJ issued a decision finding Plaintiff to be not disabled under the Act. (AR 29-36.) Plaintiff's request for review by the Appeals Council was granted on June 3, 2005, as the ALJ's decision did not address Plaintiff's complaints of pain and functional loss, nor did it contain an evaluation of the non-medical factors as required by Social Security Ruling 96-7p. (AR 24-26.) The ALJ's decision was vacated and remanded for a supplemental hearing and further consideration of Plaintiff's residual functional capacity ("RFC") and to evaluate all medical opinions, stating the weight given to each. (Id.)

The second hearing occurred in Orange, California on June 13, 2006 before ALJ Barry S. Brown. (AR 20-23.) Plaintiff appeared and testified and was represented by counsel. (AR 47-62.) On April 10, 2007, the ALJ issued a decision finding Plaintiff to be not disabled under the Act. (AR 7-19.) Plaintiff's request for review by the Appeals Council was denied on September 26, 2008 (AR 4-6), thus rendering the ALJ's decision the final decision of the Commissioner.

In the Joint Stipulation, Plaintiff raises the following issues:

(1) The ALJ failed to properly consider the treating physician's opinion regarding Plaintiff's limitations, namely his required use of a cane to ambulate, and his absence from work more than three times per month due to his impairments and treatment;

(2) The ALJ failed to properly consider Dr. Steiger's opinion that Plaintiff was restricted against repetitive gripping, pushing, pulling or lifting with the upper left extremity;

(3) The ALJ failed to properly consider the Plaintiff's RFC by improperly rejecting his treating physician's opinion that Plaintiff required use of a cane to ambulate and required absence from work more than three times per month, and improperly rejecting Dr. Steiger's restriction against repetitive gripping, pushing, pulling or lifting with the upper left extremity; and

(4) The ALJ posed an incomplete hypothetical to the vocational expert by not including his required use of a cane to ambulate, his required absence from work more than three times per month, and his restriction against repetitive gripping, pushing, pulling or lifting.

II. DISCUSSION

The Court, pursuant to 42 U.S.C. § 405(g), has the authority to review the Commissioner's decision denying Plaintiff's disability benefits to determine whether his findings are supported by substantial evidence and whether the Commissioner used the proper legal standards in reaching his decision. Meanel v. Apfel, 172 ...


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