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Alice Cunningham v. Michael J. Astrue

August 25, 2011

ALICE CUNNINGHAM,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Margaret A. Nagle United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

Plaintiff filed a Complaint on May 7, 2010, seeking review of the denial by the Social Security Commissioner (the "Commissioner") of plaintiff's application for supplemental security income ("SSI"). On May 24, 2010, the parties consented, pursuant to 28 U.S.C. § 636(c), to proceed before the undersigned United States Magistrate Judge. The parties filed a Joint Stipulation ("Joint Stip.") on January 5, 2011, in which: plaintiff seeks an order reversing the Commissioner's decision and remanding this case for the payment of benefits or, alternatively, for further administrative proceedings;*fn1 and defendant requests that the Commissioner's decision be affirmed or, alternatively, remanded for further administrative proceedings. The Court has taken the parties' Joint Stipulation under submission without oral argument.

SUMMARY OF ADMINISTRATIVE PROCEEDINGS

On January 28, 2003, plaintiff filed an application for SSI. (Administrative Record ("A.R.") 520.) Plaintiff, who was born on January 12, 1963 (A.R. 530),*fn2 claims to have been disabled since August 31, 2001 (A.R. 520), due to depression, affective mood disorder, asthma, emphysema, joint pain and cramps, back disorders, reflex sympathetic dystrophy, gastroesophageal reflux disease, and an ulcer (see, e.g., A.R. 34, 42; Joint Stip. at 2). Plaintiff has past relevant work experience as a child care provider, custodian, and general clerk. (A.R. 530.)

After the Commissioner denied plaintiff's claim initially and upon reconsideration (A.R. 34-38, 42-46, 520), plaintiff requested a hearing (A.R. 47). On November 15, 2004, plaintiff, who was represented by counsel, appeared and testified at a hearing before Administrative Law Judge Frederick J. Graf ("ALJ Graf"). (A.R. 503-16.) On December 13, 2004, ALJ Graf denied plaintiff's claims (A.R. 11-17), and the Appeals Council subsequently denied plaintiff's request for review of ALJ Graf's decision (A.R. 4-6). On May 24, 2005, plaintiff sought review in this Court, which remanded the case for further proceedings based upon the parties' February 7, 2006 Stipulation To Voluntary Remand Pursuant to Sentence Four of 42 U.S.C. § 405(g) ("Stipulation"). (A.R. 520.)

On March 18, 2006, the Appeals Council effectuated the Court's Order, vacated ALJ Graf's December 13, 2004 decision, and remanded the matter for further action consistent with the parties' Stipulation. (A.R. 520, 558-60.) The Appeals Council also directed that a subsequent, duplicative SSI application filed by plaintiff on December 29, 2005, be consolidated with the remanded case. (A.R. 520, 559.)

Pursuant to the Orders of the District Court and Appeals Council, plaintiff, who was represented by counsel, testified before Administrative Law Judge Lowell Fortune (the "ALJ") on September 13, 2006, and April 13, 2007. (A.R. 520, 599-631, 640-682.) On June 29, 2007, the ALJ denied plaintiff's claim (A.R. 686-96), and the Appeals Council subsequently denied plaintiff's request for review of the ALJ's decision (A.R. 520). Plaintiff again sought review in this Court, which, on January 10, 2008, remanded the case for further administrative proceedings ("January 10, 2008 Order") based upon the parties' Stipulation To Voluntary Remand Pursuant to Sentence Four of 42 U.S.C. § 405(g) and To Entry of Judgment. (A.R. 697-700.) On February 29, 2008, the Appeals Council vacated the ALJ's June 29, 2007 decision and remanded the case for further action consistent with the January 10, 2008 Order. (A.R. 520, 706.)

On October 7, 2009, plaintiff, who was represented by counsel, testified at a hearing before the ALJ. (A.R. 1472-1503.) Vocational expert Sandra Fioretti and plaintiff's daughter, Amber Cunningham, also testified. (1497-1502.) On February 5, 2010, the ALJ denied plaintiff's claim. (A.R. 520-32.) That decision is now at issue in this action.

SUMMARY OF ADMINISTRATIVE DECISION

The ALJ found that plaintiff has not engaged in substantial gainful activity since January 28, 2003, the application date. (A.R. 523.) The ALJ determined that plaintiff has the following severe impairments: "status post injury to right hand; migraine headaches; mood disorder, not otherwise specified (NOS); depression; and alcohol dependence." (Id.) The ALJ also determined that plaintiff does not have an impairment or a combination of impairments that meets or equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. § 416.920(d), 416.925, 416.926). (Id.)

After reviewing the record, the ALJ determined that plaintiff has the residual functional capacity ("RFC") to perform "light work" as follows:

[plaintiff] can lift and carry 20 pounds occasionally and 10 pounds frequently; she can stand and/or walk for 6-hours out of an 8-hour work day; and she can sit for 6 hours out of an 8-hour work day. She cannot climb ladders, scaffolds, or ropes, but she can frequently climb ramps and stairs. She can frequently balance, bend, stoop, crouch, and kneel; she can occasionally crawl. She is limited to simple, repetitive tasks. She cannot perform work requiring hypervigilance; she cannot perform work involving safety operations or be responsible for the safety of others; and she cannot work on an assembly line. (A.R. 524.)

The ALJ concluded that plaintiff is unable to perform her past relevant work. (A.R. 530.) However, having considered plaintiff's age, education, work experience, RFC, and the testimony of the vocational expert, the ALJ found that jobs exist in the national economy that plaintiff could perform, including cleaner, toy assembler, and "cafeteria attendance [sic]." (A.R. 531.) Accordingly, the ALJ concluded that plaintiff has not been under a disability, ...


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