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Kennedy v. Astrue

November 23, 2010

GWENDOLYN G. KENNEDY, 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") erred in rejecting the opinion of the non-examining physician; and

2. Whether the ALJ erred in accepting testimony from the vocational expert.

(JS at 4.)

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 DID NOT ERR IN ASSESSING PLAINTIFF'S RESIDUAL FUNCTIONAL CAPACITY

Plaintiff frames her first issue as "whether the ALJ erred in rejecting the opinion of the non-examining physician." (JS at 4.)

Plaintiff is referencing the testimony of the medical examiner ("ME"), Dr. Sparks, who testified at the hearing before the ALJ. (AR 23-43.) Dr. Sparks reviewed the medical evidence, and assessed that Plaintiff has vocal dystonia with weak voice; she has had a Botox vocal cord injection; she has hypertension with fair control; she had asthma, controlled; she has a history of migraine headaches; she has a history of dislocation of the left shoulder; she has a history of back pain, pain in the wrist and fingers and fingers and ankles with no definite diagnosis; she has enlarged fascit in the cervical spine; and she is obese. (JS at 32.) Dr. Sparks indicated that these conditions, singularly or in combination, did not rise to the level of the Listings. He assessed that she had the following exertional ability:

"She could occasionally lift 20 pounds, frequently 10.

Stand and walk six hours, sit for six hours. Postural limits, no ladders, ropes, scaffolding. The rest are all occasional. She should do no over-the-shoulder work with the left arm. Manipulation, there's no impairment according to the internal medicine examiner. And environmental she should avoid concentrated exposure to extreme cold, no exposure to unprotected heights or hazardous machinery. Finally she should not work in a noisy environment or where there is a need for a loud voice." (AR 32-33.)

The ALJ found that Plaintiff has severe impairments of vocal dysphonia with weak voice, hypertension, asthma, history of left shoulder dislocation, history of migraines, obesity, and enlarged facet cervical spine. (AR 17.) The ALJ summarized the testimony of Dr. Sparks concerning Plaintiff's functional abilities, noting his conclusion that she could do "no work in a noisy environment where it is necessary to speak ...


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