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Hernandez v. Astrue

January 13, 2010

LINDA HERNANDEZ, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



The opinion of the court was delivered by: Patrick J. Walsh United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

Before the Court is Plaintiff's appeal of a decision by Defendant Social Security Administration ("the Agency"), denying her application for Disability Insurance Benefits ("DIB"). Plaintiff claims that the Administrative Law Judge ("ALJ") erred when he failed to properly consider the treating doctor's opinion regarding her limitations, including the fact that she needed a cane to walk, and to include those limitations in the hypothetical question to the vocational expert. (Joint Stip. at 3-5, 7-9, 13-18.) She also argues that the ALJ erred when he found that she was not credible. (Joint Stip. at 9-11.) For the reasons discussed below, the Agency's decision is REVERSED and the case is REMANDED for further proceedings.

II. SUMMARY OF PROCEEDINGS

Plaintiff applied for DIB on April 28, 2004. (Administrative Record ("AR") 62.) The Agency denied the claim initially and on reconsideration. (AR 34-40, 48-52.) Plaintiff then requested and was granted a hearing before an ALJ. (AR 53-57.) On July 20, 2006 and December 7, 2006, Plaintiff appeared with counsel and testified. (AR 416-72, 473-515.) On March 2, 2007, the ALJ issued a decision denying Plaintiff's application. (AR 13-23.) He found that Plaintiff was unable to perform her past work, but that she had the residual functional capacity to do other work existing in the national economy. (AR 22-23.) After the Appeals Council denied review of the ALJ's decision, (AR 6-8), Plaintiff commenced the instant action.

III. DISCUSSION

In her first claim of error, Plaintiff contends that the ALJ failed to properly consider treating physician Patricia McGhee's June 2006 residual functional capacity assessment. (Joint Stip. at 3-5.) For the following reasons, the Court agrees.

In her June 2006 assessment, Dr. McGhee opined that Plaintiff could lift or carry less than ten pounds occasionally, but could lift or carry ten pounds frequently;*fn1 could stand or walk for no more than two hours in an eight-hour workday; needed the assistance of a cane for stability; needed to alternate standing and sitting at least once every hour to relieve pain; and could only occasionally kneel, crouch, or crawl. (AR 396-97.)

At the July 20, 2006 hearing, the ALJ asked testifying medical expert Dr. Sami Nafoosi about Plaintiff's functional limitations. (AR 433-34.) Dr. Nafoosi opined that Plaintiff could "on occasion lift 20 pounds, [ten] pounds frequently. She can sit for eight hours in an eight hour day. Stand or walk for four hours of an eight hour day provided she's allowed to change positions briefly each hour." (AR 434.) The ALJ then asked Dr. Nafoosi about Dr. McGhee's June 2006 residual functional capacity assessment:

ALJ: Okay, for lifting and carrying occasionally, as I said, [Dr. McGhee] indicated less than 10 pounds. And then said increased pain in the feet.

ME: Right, right, that's, that's where I got the impression that it was mostly with feet.

ALJ: Okay. And something lifting but I can't read the rest of it. But then inconsistently [Dr. McGhee] has ten pounds which makes no sense.

ME: Yeah, that's inconsistent.

ALJ: Yeah, that wouldn't make any sense . . . Yeah, [Dr. McGhee] said [Plaintiff] could frequently lift ten but only occasionally could lift less than ten. That doesn't make sense. [She] apparently missed something there. All right. And then standing and walking [she] has less than two in an eight hour day and ...


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