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Vinnedge v. Astrue

February 4, 2010

JAMES R. VINNEDGE, 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 Administrative Record ("AR") before the Commissioner. The parties have filed the Joint Stipulation ("JS"), and the Commissioner has filed the certified AR.

Plaintiff raises the following issues:

1. Whether the Administrative Law Judge ("ALJ") properly considered the treating physician's opinion regarding Plaintiff's diagnosed schizophrenia;

2. Whether the ALJ properly considered Plaintiff's testimony;

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

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

(JS at 2.)

This Memorandum Opinion will constitute the Court's findings of fact and conclusions of law. After reviewing the matter, the Court concludes that for the reasons set forth, the decision of the Commissioner must be reversed.

I. NO ERROR WAS COMMITTED BY THE ALJ CONCERNING PLAINTIFF'S ASSERTED DIAGNOSIS OF SCHIZOPHRENIA

In his Decision (AR 8-14), the ALJ found that Plaintiff has severe impairments of HIV, Hepatitis C virus, irritable bowel syndrome and diarrhea and asthma (AR 10); however, the ALJ found no mental impairment. Plaintiff asserts this is error, because he suffers from schizophrenia. (JS at 3, et seq.) Plaintiff traces this diagnosis to a physician's assistant note of January 6, 2009 from the Arrowhead Regional Medical Center emergency room. (AR 284-285.) There, the physician's assistant noted, "HIV, Hep C, schizophrenia." (AR 284.)

There are numerous fatal errors in Plaintiff's analysis. First, the physician's assistant is not a recognized and acceptable medical source as defined under 20 C.F.R. §§416.902, 416.913(a). Next, contrary to Plaintiff's assertion, this was not a diagnosis of a treating source. It is clear that the physician's assistant saw Plaintiff on a one-time basis in the emergency room. In any event, the assertion of schizophrenia is based on literally one word in an entire medical record. There are absolutely no treatment or diagnostic records which would support a conclusion that Plaintiff suffers from schizophrenia. Even Plaintiff's own testimony at the hearing before the ALJ does not support such a diagnosis. At most, Plaintiff believes he was diagnosed with ADD (Attention Deficit Disorder). (AR 36.) Finally, any supposed symptoms of schizophrenia, which Plaintiff characterizes as extreme exhaustion and "feelings of lifelessness," are at most traceable as side effects of his medications, not as symptoms of schizophrenia. (AR 34-35.) Plaintiff's own testimony was that he sometimes "hallucinate(s) a little bit) as side effects of the medications, not as a result of schizophrenia. (AR 35.)

All in all, there is simply not a shred of credible evidence in the record that Plaintiff is suffering from schizophrenia or any other mental ...


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