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Edward Valdez v. Michael J. Astrue

February 14, 2011

EDWARD VALDEZ, 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") properly evaluated the medical evidence in assessing Plaintiff's residual functional capacity ("RFC"); and

2. Whether the ALJ properly evaluated Plaintiff's subjective pain complaints.

(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 FAILING TO DETERMINE THAT NON-EXERTIONAL LIMITATIONS IN PLAINTIFF'S RIGHT UPPER EXTREMITY DID NOT CONSTITUTE A SEVERE IMPAIRMENT

Plaintiff sustained multiple gunshot wounds in April 2007. (AR 62, 380, 22.) In a progress note made a few weeks after these injuries were sustained, on May 23, 2007, it was reported that Plaintiff complained increasing pain in his right shoulder, and that he was awaiting a call from "LAC/USC."*fn1

Following the gunshot wounds, Plaintiff was hospitalized for two weeks. According to a progress note dated April 22, 2008 by the occupational therapist ("OT"), Sherry Shaffer, after being discharged, Plaintiff, who did not have medical insurance, was not followed up by physicians. (AR 298.) In that same report, the OT noted that Plaintiff had deficits throughout his right upper extremity secondary to a brachial plexus injury, gunshot wounds, and humerus fracture. It was indicated that Plaintiff would benefit from occupational therapy services "to attempt to [increase] ROM [range of motion] and function of right upper extremity." (Id.) The OT noted that Plaintiff "has never been followed up for brachial plexus injury nerve damage." (Id.)

A progress note by the OT of May 5, 2008 indicates the extent of damage from a bullet which entered Plaintiff's right medial clavicle and exited his right shoulder. It was noted that Plaintiff had major brachial plexus injury, and presently experienced pain on a level of 6/10 most of the time and also, Plaintiff had decreased sensation throughout his right upper extremity. (AR 297.)

On June 19, 2008, the OT noted that Plaintiff had continued limitations with range of motion distally in the right upper extremity, with poor fine motor coordination in that area as well as limitations in his gross motor skills. He had temperature changes in his right upper extremity, ...


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