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Katherine Slack v. Michael J. Astrue

February 14, 2011

KATHERINE SLACK, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



FINDINGS AND RECOMMENDATIONS

Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act. For the reasons discussed below, the court will recommend that plaintiff's motion for summary judgment or remand be granted, that the Commissioner's cross-motion for summary judgment be denied, and that this matter be remanded under sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this opinion.

I. BACKGROUND

Plaintiff filed an application for disability benefits on February 18, 2005, alleging a disability onset date of September 2, 2003. Administrative Record ("AR") 84-86. Her application was denied initially and upon reconsideration. Id. at 67-71, 56-60. A hearing was held on February 28, 2008 before Administrative Law Judge ("ALJ") Peter Belli. Id. at 413-460. In a decision dated May 29, 2008, the ALJ determined plaintiff was not disabled.*fn1 Id. at 16-24.

The ALJ made the following specific findings:

1. The claimant has not engaged in substantial gainful activity since February 18, 2005, the application date (20 CFR 416.920(b) and 416.971 et seq.)

2. The claimant has the following severe impairments: degenerative joint disease and degenerative disc disease at L3-4, mild bilateral degenerative facet arthropathy at L4-5; degenerative changes at L5-S1;and history of Methicillin Resistant Staphylococcus aureus (MRSA) (20 CFR 416.920(c)). ...

3. The claimant does not have an impairment or combination of impairments that meets of medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 416.920(d), 416.925 and 416.926). ...

4. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except lift/carry/push/and/or pull 20 pounds occasionally and ten pounds frequently; sit for 8/8 hours with normal work breaks; stand/walk for 6/8 hours with normal breaks; no climbing ladders, ropes or scaffolds; and occasionally stoop, kneel, crouch or kneel. ...

5. The claimant is capable of performing past relevant work as a housekeeper (motel), food server, and companion (elder facility). This work does not require the performance of work-related activities precluded by the claimant's residual functional capacity

(20 CFR 416.965). ...

6. The claimant has not been under a disability, as defined in the Social Security Act, since February 18, 2005 (20 CFR 416.920(f)), the date the application was filed.

Id. at 17-24.

Plaintiff requested that the Appeals Council review the ALJ's decision. However, on February 23, 2009, the Appeals Council denied review, leaving the ALJ's decision as the final decision of the Commissioner of Social Security. Id. at 4-6.

This appeal followed. Among other assertions of error, plaintiff contends the ALJ improperly found that plaintiff's Methicillin Resistant Staphylococcus Aureus ("MRSA") infection was not a severe impairment at step two of the sequential analysis. Dckt. No. 22. Plaintiff further contends that because of this error, the ALJ improperly found she could perform her past relevant ...


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