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Nuno v. Astrue

November 3, 2010

ROSA NUNO, 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 treating physician's opinion regarding the need for Plaintiff to avoid repetitive twisting;

2. Whether the ALJ properly considered the treating physician's opinion regarding Plaintiff's need for a ten-minute break every hour;

3. Whether the ALJ properly evaluated Plaintiff's residual functional capacity; and

4. Whether the ALJ posed a complete hypothetical question to the vocational expert.

(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 CONSIDERED THE OPINION OF DR. STEIGER

In her first issue, Plaintiff asserts that the ALJ failed to properly consider the opinion of her "treating physician," Dr. Steiger. (JS at 3-12.)

Following an on-the-job injury which she suffered on April 2, 2004 (AR 162), Plaintiff was evaluated by Dr. Steiger on September 24, 2004 (AR 162-68), then referred out for an MRI, following which she was examined by Dr. Steiger for a second time on November 1, 2004. (AR 155-61.) Plaintiff was not again seen by Dr. Steiger. The primary purpose of Plaintiff's examinations by Dr. Steiger was in connection with her workers' compensation case. Dr. Steiger diagnosed musculoligamentous sprain, lumbar spine, with left lower extremity radiculitis; a disc bulge at L5-S1 of 5-6 mm, and at L4-5 of 3 mm; and bilateral facet hypertrophy, at L4-5 and L5-S1. (AR 158.) Based on his examinations, and the MRI findings, Dr. Steiger recommended restrictions from heavy lifting or repeated bending and stooping, and advised that Plaintiff should avoid repetitive twisting and prolonged sitting. (AR 159.)

On August 28, 2007, at the request of the Department of Social Services, Plaintiff received a complete orthopedic evaluation ("CE") from Dr. Sophon. (AR 180-84.) Based on his evaluation, Dr. Sophon opined that Plaintiff is able to lift and carry 50 pounds occasionally, 25 pounds frequently, and that ...


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