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Cheryl Carreira v. Michael J. Astrue

March 29, 2011

CHERYL CARREIRA, PLAINTIFF,
v.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



ORDER

Due to an oversight, the court previously docketed a portion of this order on March 25, 2011. That partial order is hereby vacated and superseded by this order.

Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security denying her application for disability benefits under Title II and XVIII of the Social Security Act. For the reasons discussed below, the court grants defendant's motion for summary judgment and denies plaintiff's motion for summary judgment.

I. BACKGROUND

Plaintiff filed an application for disability insurance benefits on July 21, 2006, alleging disability since April 25, 2003. Administrative Record ("AR") 9. Her application was denied initially and upon reconsideration. Id. A hearing was held on February 26, 2008, before Administrative Law Judge ("ALJ") Daniel J. Heely. Id. at 20-42. Plaintiff was represented by attorney Robert Kolber. Id. at 22. Plaintiff and vocational expert George Meyers testified. Id. In a decision datedMay 29, 2008, the ALJ determined plaintiff was not disabled.*fn1 Id. at 6-19.

The ALJ made the following specific findings:

1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2010.

2. The claimant has not engaged in substantial gainful activity since April 28, 2003, the alleged onset date (20 CFR 404.1520(b) and 404.1571 et seq.) ...

3. The claimant has the following severe impairments: left foot fracture, status post multiple surgeries, degenerative joint disease/back strain and depression (20 CFR 404.1520(c)). ...

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 404.1520(d), 404.1525 and 404.1526). ...

5. After careful consideration of the entire record, the undersigned finds that the claimant has a residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) except she should push and/or pull only occasionally with the left lower extremity. The claimant can occasionally climb ramps, stairs, ladders, ropes or scaffolds, stoop, kneel, crouch or crawl. She can balance frequently. She is limited to reaching occasionally with the bilateral extremities. The client retains the ability to understand, remember and carry out simple job instructions but is limited in her ability to respond appropriately to the general public and should have only occasional public contact. ...

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

7. The claimant was born on April 29, 1966 and was thirty-six years old, which is defined as a younger individual age 18-44, on the alleged disability date (20 CFR 404.1563).

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

9. The claimant has acquired job skills from past relevant work (20 CFR 404.1568). ...

10. Considering the claimant's age, education, work experience, and residual functional capacity, the claimant has acquired work skills from past relevant work that are transferable to other occupations with jobs existing in significant numbers in the national economy (20 CFR 404.1560(c), 404.1566 and 404.1568(d)). ...

11. The claimant has not been under a disability, as defined in the Social Security Act, from April 28, 2003 through the date of this decision (20 CFR 404.1520(g)).

Id. at 12-19.

Plaintiff requested that the Appeals Council review the ALJ's decision. However, on April 15, 2009, the Appeals Council denied review, leaving the ALJ's decision as the final decision of the Commissioner of Social Security. Id. at 1-5.

This appeal followed. Plaintiff contends that the ALJ erred in failing to find that plaintiff's reactive airway disease was a severe impairment; rejecting the opinion of plaintiff's treating physician without a legitimate basis for doing so; failing to credit plaintiff's testimony and third party statements as to the nature and extent of her functional limitations; and failing to properly assess plaintiff's RFC and failing to credit the testimony ...


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