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Maurillo Vargas Juarez v. Michael J. Astrue

February 9, 2011

MAURILLO VARGAS JUAREZ, 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 Administrative Record ("AR") before the Commissioner. The parties have filed the Joint Stipulation ("JS"), and the Commissioner has filed the certified AR.

Plaintiff raises the following issues:

1. Whether the Administrative Law Judge ("ALJ") erred in the assessment of Plaintiff's physical residual functional capacity;

2. Whether the ALJ erred in finding that Plaintiff did not have a "severe" mental impairment; and

3. Whether the ALJ erred in the credibility findings. (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 for the reasons set forth, the decision of the Commissioner must be reversed.

I THE ALJ ERRED IN REJECTING THE RESIDUAL FUNCTIONAL CAPACITY

ASSESSMENT OF PLAINTIFF'S TREATING PHYSICIAN WITHOUT PROVIDING SPECIFIC AND LEGITIMATE REASONS

A. Introduction.

Plaintiff's treating physician, Dr. Capen, is an orthopedic surgeon. Plaintiff was first evaluated by Dr. Capen on October 10, 2006, based on injuries Plaintiff sustained during industrial accidents connected to his work as a laborer. (AR 210-226.) These injuries were sustained from accidents which occurred on May 30, 2002; June 20, 2005; February 28, 2006; and March 6, 2006. (AR 215-217.) Plaintiff treated with Dr. Capen, or another physician in his office (Dr. Jarminski) until December 11, 2007. (AR 184-206, 394-414.) In Dr. Capen's report of December 11, 2007, he diagnosed Plaintiff with left shoulder impingement; lumbar sprain - strain syndrome; L4-5 disc protrusion with annular tear; and L5-S1 right-sided radiculopathy per EMG. (AR 396.) On April 30, 2008, Dr. Capen provided the following exertional limitations: Plaintiff could occasionally lift and carry 20 pounds, and frequently lift and carry less than ten pounds.*fn1 (AR 393.)

Plaintiff was also seen in a one-time consultative examination performed at the request of the Department of Social Services by orthopedist Dr. Bleecker. (AR 335-338.) After Dr. Bleecker's examination of May 15, 2007, he diagnosed Plaintiff with impingement syndrome left shoulder; and, degenerative disc disease lumbar spine. He rendered an impression that Plaintiff can lift 25 pounds occasionally, and ten pounds frequently. (AR 338.)

Dr. Geiger, a neurologist, examined Plaintiff at the request of Dr. Capen on February 8, 2007. (AR 156-182.) Dr. Geiger reviewed extensive medical treatment records, but it is apparent that his examination was not done for the purpose of testing Plaintiff's exertional abilities. Indeed, Dr. Geiger rendered no opinion in that regard.

Finally, the State Agency physician, Dr. Halpern, completed a Physical Residual Functional Capacity Assessment on May 25, 2007 (AR 347-352), and concluded that Plaintiff could occasionally lift 20 pounds, and frequently could lift ten pounds. (AR 348.) Dr. Halpern, however, did not ...


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