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Diaz v. Astrue

August 30, 2010

DELLA DIAZ, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge

ORDER REGARDING PLAINTIFF'S SOCIAL SECURITY COMPLAINT

(Doc. 1)

BACKGROUND

Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security (the "Commissioner" or "Defendant") denying her application for Supplemental Security Income ("SSI") pursuant to Title XVI of the Social Security Act. 42 U.S.C. §§ 405(g), 1383(c)(3). The matter is currently before the Court on the parties' briefs, which were submitted, without oral argument, to the Honorable Sheila K. Oberto, United States Magistrate Judge.*fn1

FACTUAL BACKGROUND

Plaintiff was born in 1964, has either a ninth or tenth grade education, and has no past relevant work. (Administrative Record ("AR") 112, 122, 174, 574.)

On March 28, 2003, Plaintiff filed an application for SSI, alleging disability beginning January 30, 1991, due to thyroid dysfunction, diabetes, and back pain. (AR 31, 157-60.) Following the Commissioner's denial of her application initially and on reconsideration, Administrative Law Judge ("ALJ") Patricia Flierl held a hearing at Plaintiff's request on January 5, 2005, and issued a decision on January 18, 2005, finding Plaintiff not disabled. (AR 28-36, 52-108.) ALJ Flierl found that Plaintiff had the residual functional capacity ("RFC") to occasionally lift up to 20 pounds, frequently lift and carry up to 10 pounds, and sit, stand, or walk for six hours in an eight-hour day.*fn2

(AR 35.) ALJ Flierl also found that Plaintiff did not have any significant non-exertional limitations. (AR 35.) The Appeals Council denied review on July 15, 2005, and Plaintiff did not further appeal. (AR 23-25.)

On April 11, 2005, Plaintiff filed a new application for SSI, alleging disability beginning March 28, 2002, due to thyroid removal, diabetes, back problems, low blood pressure, and high cholesterol. (AR 13, 509-12.)

On October 7, 2005, J. Stanley Bunch, Ph.D., a licensed clinical psychologist, performed a consultative psychological evaluation of Plaintiff. (AR 697-702.) Testing revealed that Plaintiff's "general cognitive ability is in the Extremely Low range of intellectual functioning, as measured by the Full Scale IQ (Full Scale IQ = 65). Her overall thinking and reasoning abilities exceed those of approximately 1% of adults her age." (AR 699.) "As a result, [Plaintiff] may experience great difficulty in keeping up with her peers in a wide variety of situations that require age-appropriate thinking and reasoning abilities." (AR 699.)

Dr. Bunch ultimately opined that Plaintiff's "reported history and performance on cognitive testing suggests that [Plaintiff] is of Borderline Intellectual Functioning." (AR 701.) "Although [Plaintiff] is functioning at the Borderline range of intellectual functioning, she related she is able to manage her own finances, so long as she is able to operate on a cash basis. She indicated she also managed the finances for her business which she ran without assistance." (AR 701.) "However, while [Plaintiff] may be able to understand and carry out simple instructions, her cognitive limitations will prohibit her from understanding and processing tasks that are expected to be completed simultaneously[;] therefore it is unlikely she will be able to multitask." (AR 701.) "This may in turn cause problems for [Plaintiff] in the workplace with both supervisors and co-workers." (AR 701.)

On December 8, 2005, Dr. Mallare, a state agency psychiatrist, completed a psychiatric review technique form pursuant to 20 C.F.R. § 416.920a(e). (AR 673-86.) Dr. Mallare assessed Plaintiff's functional limitations due to borderline intellectual functioning and opined that Plaintiff's activities of daily living were mildly restricted. She had mild difficulties in maintaining social functioning, but had moderate difficulties in maintaining concentration, persistence, or pace. (AR 683.)

On that same date, Dr. Mallare also assessed Plaintiff's mental RFC. (AR 668-71.) Dr. Mallare opined that Plaintiff's ability to understand and remember detailed instructions was moderately limited, but her understanding and memory were not otherwise significantly limited. (AR 668.) Plaintiff was moderately limited in her ability: (1) to carry out detailed instructions; (2) to maintain attention and concentration for extended periods; and (3) "to complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods." (AR 668-69.) Plaintiff's capacity to sustain concentration and maintain persistence was not otherwise significantly limited. (AR 668-69.) Plaintiff's social interaction and adaptation were also not significantly limited. (AR 669.) In assessing Plaintiff's mental RFC, Dr. Mallare opined that Plaintiff had adequate memory, understanding, and concentration to perform simple, repetitive tasks. (AR 670.)

The Commissioner denied Plaintiff's application initially and again on reconsideration; consequently, Plaintiff requested a hearing before an ALJ. (AR 488-506.) On January 18, 2008, ALJ Stephen Webster held a hearing where a vocational expert ("VE") testified that a hypothetical person of Plaintiff's age, education, and work history could perform light, unskilled jobs such as a bagger or a garment sorter if such a person could (1) lift 20 pounds occasionally and 10 pounds frequently; (2) sit/stand and/or walk for six hours in an ...


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