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Allen v. Astrue

October 7, 2009

CYNTHIA ALLEN, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Rosalyn M. Chapman United States Magistrate Judge

OPINION AND ORDER

Plaintiff Cynthia Allen filed a complaint on August 18, 2008, seeking review of the Commissioner's decision denying her application for disability benefits. On January 13, 2009, the Commissioner answered the complaint, and the parties filed a joint stipulation on March 11, 2009.

BACKGROUND

I.

On March 25, 2005 (protective filing date), plaintiff applied for disability benefits under the Supplemental Security Income program ("SSI") of Title XVI of the Social Security Act ("Act"), 42 U.S.C. § 1382(a), claiming an inability to work since November 1, 2004, due to hearing loss, back pain, osteoarthritis, stress, migraine headaches, and severe breathing problems. Certified Administrative Record ("A.R.") 72, 74-76, 121-22. The plaintiff's application was initially denied on June 14, 2005, A.R. 40-45, and was denied again on August 17, 2005, following reconsideration. A.R. 46-52. The plaintiff then requested an administrative hearing, A.R. 54, which was held before Administrative Law Judge Bernard A. Trembly ("ALJ Trembly") on March 19, 2007. A.R. 358-80. On June 7, 2007, ALJ Trembly issued a decision finding plaintiff is not disabled. A.R. 30-37.

The plaintiff appealed the decision to the Appeals Council, A.R. 29, which granted review on September 21, 2007, vacated ALJ Trembly's decision, and remanded the case to an ALJ to:

* Obtain additional evidence concerning the claimant's musculoskeletal, asthma and mild hearing loss conditions in order to complete the administrative record in accordance with the regulatory standards regarding consultative examinations and existing medical evidence (20 CFR [§] 416.912-913). The additional evidence should include updated records from High Desert, and may include, if warranted and available, a consultative orthopedic examination and medical source statements about what the claimant can still do despite the impairments.

* Further evaluate the claimant's subjective complaints and provide rationale in accordance with the disability regulations pertaining to evaluation of symptoms (20 CFR [§] 416.929) and Social Security Ruling 96-7p.

* Give further consideration to the claimant's maximum residual functional capacity and provide appropriate rationale with specific references to evidence of record in support of the assessed limitations (20 CFR [§] 416.945 and Social Security Ruling 96-8p).

* If warranted by the expanded record, obtain evidence from a vocational expert to clarify the effect of the assessed limitations on the claimant's occupational base (Social Security Rulings 83-14, 85-15 and 96-6p). The hypothetical questions should reflect the specific capacity/limitations established by the record as a whole. . . .

A.R. 27-28.

On May 5, 2008, ALJ F. Keith Varni ("the ALJ") held a new administrative hearing, A.R. 381-89, and on May 28, 2008, the ALJ issued a decision finding plaintiff is not disabled. A.R. 8-16. The plaintiff appealed this decision to the Appeals Council, A.R. 7, which denied review on July 8, 2008. A.R. 4-6.

II.

The plaintiff, who was born on September 10, 1955, is currently 54 years old. A.R. 74, 363. She has a tenth-grade education, A.R. 127, and has previously worked as a janitor and waitress, A.R. 122, 146, ...


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