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Garland v. Astrue

February 8, 2010

CRAIG GARLAND II, 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 considered the school psychologist's findings;

2. Whether the ALJ properly determined that Plaintiff did not meet or medically equal Listing 12.05C;

3. Whether the ALJ properly considered the Plaintiff's testimony and made proper credibility findings;

4. Whether the ALJ properly considered the lay witness's testimony; and

5. Whether the ALJ correctly determined that Plaintiff is capable of performing the jobs of cleaner, hand packer, and linen room attendant.

(JS at 2-3.)

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 DETERMINED THAT PLAINTIFF DID NOT MEET OR MEDICALLY EQUAL LISTING 12.05C

In Plaintiff's second issue, he asserts that the ALJ erred by not finding that he meets or medically equals Listing 12.05C. Related to that, and to be discussed concurrently, is Plaintiff's first issue, in which he asserts the ALJ did not properly consider the findings of his school psychologist.

Included in the record is a "Psycho-Educational Study" prepared by the Apple Valley Unified School District on April 13, 1999, signed by Susan Zapasnik, M.A., District Psychologist. As part of the results of that test, Plaintiff was found to have a Full Scale IQ of 68 (AR 118), a Verbal IQ of 74, and a Performance IQ of 67. (AR 118.) The ALJ's decision does not specifically address these findings. The Commissioner asserts that the ALJ could not have considered this information because it was submitted to the Appeals Council after the decision was issued. (JS at 4.) The Appeals Council did consider the information but found that it was rendered six years before the alleged onset date and "does not provide a basis for changing the Administrative Law Judge's decision." (AR 2.) The Court cannot conclude ...


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