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Molter v. Astrue

June 8, 2010

SHEILA PAULETTE MOLTER, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF AND SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Gregory G. Hollows U.S. Magistrate Judge

ORDER AND FINDINGS RECOMMENDATIONS

Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("Act"). For the reasons that follow, the court recommends that Plaintiff's Motion for Summary Judgment and/or Remand be granted in part, and this matter be remanded to the ALJ for further findings pursuant to sentence four of 42 U.S.C. §405(g) as directed in this opinion. The Clerk should be directed to enter judgment for plaintiff.

BACKGROUND

Plaintiff, born October 23, 1954, protectively applied on January 27, 2006 for disability benefits. (Tr. at 135.) Plaintiff alleged she was unable to work due to neck, back, arms, hands, and leg problems. (Tr. at 95.)

In a decision dated October 7, 2008, ALJ Charles D. Reite determined plaintiff was not disabled. The ALJ made the following findings:*fn1

1. Claimant meets the insured status requirements of the Social Security Act through December 31, 2009.

2. Claimant has not engaged in substantial gainful activity since November 8, 2004, the alleged disability onset date (20 CFR 303.1520(b) and 404.1571 et seq). 3. The claimant has the following severe impairments: mild multilevel degenerative disk disease of the lumbar spine (20 CFR § 404.1520(c)). 4. Claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526).

5. After careful consideration of the entire record, I find the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) except with limitation to occasional postural limitations, the need for a sit-stand option and preclusion from working at heights and around fast moving equipment. In addition, claimant has a mild limitation in maintaining concentration, persistence and pace secondary to chronic pain (up to 10% of the time).

6. Claimant is capable of performing past relevant work as a general office clerk. This work does not require the performance of work-related activities precluded by claimant's residual functional capacity (20 C.F.R. 404.1565).

7. Claimant has not been under a disability, as defined in the Social Security Act, from November 8, 2004 through the date of this decision (20 CFR § 404.1520(g)).

(Tr. at 12-17.)

ISSUES PRESENTED

Plaintiff has raised the following issues: A. Whether the ALJ Failed to Follow Precedent in Evaluating Plaintiff's Pain Testimony; B. Whether the ALJ Failed to Include All Limitations in the Hypothetical Questions to the Vocational Expert; and C. Whether the ALJ ...


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