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Hernandez v. Astrue

March 10, 2010

GLORIA AGUILAR HERNANDEZ, 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 determined that Plaintiff does not suffer from a medically determinable left shoulder impairment; and

2. Whether the ALJ properly considered the opinion of the treating physician.

(JS at 3.)

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. THIS MATTER MUST BE REMANDED FOR DETERMINATION OF WHETHER PLAINTIFF SUFFERS A SEVERE IMPAIRMENT CONCERNING HER LEFT SHOULDER

The ALJ determined that Plaintiff has certain severe impairments; however, with regard to her left shoulder, the ALJ found that her condition did not persist for more than 12 consecutive months. Therefore, a severe impairment of Plaintiff's left shoulder was not found. (AR 28.) Plaintiff contends that this conclusion was erroneous, because her left shoulder impairment did persist for more than 12 months.

A. Summary of Evidence.

At the hearing, Plaintiff testified as to her left shoulder impairment in the following interchange with her counsel:

"By Attorney: Q What problems were you having prior to the surgery with respect to your left shoulder?

A It was bothering me --- I was getting really bad pain on it. It happened like right after my surgery. I was walking with a cane going up the stairs and I must have did something with the cane or something. But my arm --- that's the only thing I could think of that did it. ...


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