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Thao v. Astrue

May 3, 2010


The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge


Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") terminating plaintiff's previously granted Disability Insurance Benefits under Title II of the Social Security Act ("Act") and Supplemental Security Income under Title XVI of the Act.*fn1 In his motion for summary judgment, plaintiff contends that the Administrative Law Judge Peter Belli ("ALJ Belli"), who affirmed the decision to terminate benefits, erred in two respects. First, plaintiff contends that ALJ Belli erred by finding that plaintiff had improved medically without reviewing the evidence that supported the initial decision in 2002, entered by Administrative Law Judge Mark Ramsey ("ALJ Ramsey"), that found plaintiff to be disabled within the meaning of the Act. Second, plaintiff argues that, even assuming a proper finding of medical improvement, ALJ Belli erred by determining plaintiff's present residual functional capacity without consideration of evidence in the administrative record that plaintiff had alleged mental impairments. (See Dkt. No. 17.) The Commissioner filed an opposition to plaintiff's motion for summary judgment.*fn2 (Dkt. No. 19.)

For the reasons stated below, the court grants plaintiff's motion for summary judgment in part and remands this matter for further proceedings.


Plaintiff initially filed an application seeking Disability Insurance Benefits on May 31, 2000, and an application seeking Supplemental Security Income on April 28, 2000, both alleging that he had been disabled since March 22, 2000. (Def.'s Opp'n to Mot. for Summ. J., Ex. 1, Doc. No. 19-2 at 5*fn3; see also Administrative Transcript ("AT") 14.) On March 20, 2002, ALJ Ramsey found that plaintiff was disabled within the meaning of the Act as of March 22, 2000. (Doc. No. 19-2 at 7.) This favorable determination was premised on plaintiff's severe impairments: "lumbar disc disease and right shoulder internal derangement." (Doc. No. 19-2 at 6.) ALJ Ramsey's decision noted that "[t]he claimant shall undergo a continuing disability review within three years following the date of this decision." (Def.'s Opp'n to Mot. for Summ. J., Ex. 1, Doc. No. 19-2 at 8.)

As noted above, although the Commissioner filed a copy of ALJ Ramsey's March 20, 2002 written decision with his opposition brief, he has not lodged with this court the administrative transcript that relates to plaintiff's prior favorable disability determination.

On June 10, 2005, the Social Security Administration determined that plaintiff's disability ceased as of June 1, 2005, and terminated plaintiff's benefits effective August 1, 2005, having determined that plaintiff had experienced "medical improvement" that rendered him no longer disabled within the meaning of the Act. (See AT 48; see also AT 50-64 (notice of disability hearing decision and Disability Hearing Officer's Report of Disability Hearing).) Plaintiff, who is represented by counsel, requested a hearing before an administrative law judge. (AT 65.) On March 29, 2007, ALJ Belli conducted a hearing at which plaintiff and David Dettmer, a vocational expert, testified. (AT 24-47.)

In a written decision dated April 25, 2007, ALJ Belli affirmed the agency's cessation of benefits decision. (AT 14-23.) This decision does not reference plaintiff's alleged mental impairments that are the subject of much of the briefing before the court, ostensibly because plaintiff did not submit those records until after ALJ Belli issued his decision.

In summarizing the favorable disability decision from 2002, referred to as the "comparison point decision" or "CPD," ALJ Belli stated:

2. At the time of the CPD, the claimant had the following medically determinable impairments: back disorder and right shoulder derangement. These impairments were found to result in the residual functional capacity to perform sedentary work. This was compromised by from [sic] performing prolonged sitting, standing, walking, bending, and lifting 10 pounds or more.

At the time of the CPD, the claimant was being treated for right-sided rotator cuff tendonosis and disc disease of the lumbar spine secondary to a work injury on March 18, 2000. He failed conservative therapy and was referred to an orthopedic specialist who performed a series of injections to the right shoulder, all of which provided only temporary relief. X-rays were performed on January 26, 2001 with abnormal findings at the L4-5 and L5-S1 disc levels. Orthopedic testing revealed severe back spasms and limited range of motion, positive straight leg raising and back pain radiating into the lower extremities. An orthopedic exam was performed on January 19, 2002 and findings revealed that claimant was using crutches and he was unable to sit or stand unsupported due to back pain. There was decreased neck and back movement with poor effort noted by the examining physician. The right shoulder arm revealed decrease [sic] range of motion and a lot of guarding and fairly diffuse pain. An examination of the lumbar spine revealed diffuse guarding, decreased range of motion, and some tenderness.

(AT 16 (emphasis in original).) This summary does not include citations to the administrative transcript related to the CPD, reference the nature or state of the record before ALJ Belli, or reveal what evidence, if any, ALJ Belli specifically considered in drafting this summary.

ALJ Belli's decision became final after the Appeals Council denied plaintiff's request for review. (AT 3-6 (notice of denial), 8-9 (request for review).) In its notice of denial of review, the Appeals Council noted that it had considered additional evidence submitted by plaintiff, which consisted of a cover letter dated August 25, 2008, and 36 pages of attachments. (AT 3, 7, 174-209.) That newly submitted evidence consisted of medical records and other evidence related to plaintiff's alleged mental impairments: major depressive disorder and post-traumatic stress disorder. The Appeals Council concluded that the evidence ...

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