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Thomas Koerner v. Michael J. Astrue

January 21, 2011

THOMAS KOERNER, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

FINDINGS AND RECOMMENDATIONS

INTRODUCTION AND SUMMARY

Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying his applications for Supplemental Security Income ("SSI") and Disability Insurance Benefits ("DIB") under Titles XVI and II, respectively, of the Social Security Act ("Act"). This case involves the all too familiar situation in Social Security cases where there are no treatment records of any long-term significance, but the case is decided at the administrative level based upon a one-shot consultative examination, and on an even less probative, a State Agency (SA) reviewer's analysis.*fn1 The undersigned is less than confident that a correct determination either way can be made with respect to "permanent" disability. But a determination must be made, and it must be made on the little evidence on the record, not on a patent misinterpretation of the evidence by the ALJ. For the reasons that follow, this court recommends that plaintiff's Motion for Summary Judgment be granted, the Commissioner's Cross Motion for Summary Judgment be denied, the matter be remanded under sentence four of 42 U.S.C. § 405(g) for payment of benefits, and the Clerk be directed to enter judgment for plaintiff.*fn2

BACKGROUND

Plaintiff, born May 25, 1963, applied on August 10, 2007 for disability benefits. (Administrative Transcript "Tr." at 24-26, 108-114.) Plaintiff alleged he was unable to work since August 15, 2004*fn3 due to hearing voices and foot, shoulder, knee and abdominal pain. (Tr. at 18, 24, 40, 135, 190.) In a decision dated February 13, 2009, ALJ L. Kalie Fong determined that plaintiff was not disabled. (Id. at 14-23.) The ALJ made the following findings:*fn4

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

2. The claimant has not engaged in substantial gainful activity since August 15, 2004, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.).

3. The claimant has the following severe impairments: ankle pain due to possible posttraumatic arthritis, recurrent, severe; major depression with psychosis; and hallucinatory psychosis, possibly depression (20 CFR 404.1521 et seq. and 416.921 et seq.).

4. The 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 404.1525, 404.1526, 416.920(d), 416.925 and 416.926).

5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform medium work as defined in 20 CFR 404.1567(c) and 416.967(c) except mentally limited to simple, routine, repetitive tasks with limited contact with the public and others.

6. The claimant is unable to perform any past relevant work (20 CFR 404.1565 and 416.965).

7. The claimant was born on May 25, 1963 and was 41 years old, which is defined as a younger individual age 18-49, on the alleged disability onset date (20 CFR 404.1563 and 416.963).

8. The claimant has at least a high school education and is able to communicate in English (20 CFR 404.1564 and 416.964).

9. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job ...


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