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Heather Reese, O/B/O J.R v. Michael J. Astrue

October 17, 2011

HEATHER REESE, O/B/O J.R., 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 considered the consultative examiner's opinion;

2. Whether the ALJ properly assessed Plaintiff's residual functional capacity;

3. Whether the ALJ posed incomplete hypothetical questions to the vocational expert; and

4. Whether the ALJ's Step Five determination that Plaintiff is capable of performing the jobs of bench assembler and inspector/hand packager is supported by substantial evidence.

(JS at 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 and the matter remanded.

I

THE ALJ DID NOT PROPERLY CONSIDER THE PSYCHOLOGICAL CONSULTATIVE EXAMINER'S OPINION REGARDING THE EFFECTS OF PLAINTIFF'S HUNTINGTON'S DISEASE

This matter originally proceeded to an administrative hearing before the ALJ on August 28, 2007. (AR 375-400.) At that hearing, which occurred after the death of Jason Reese, testimony was taken from Dr. Laudau, a medical expert ("ME"), in addition to testimony from a vocational expert ("VE"), and from Heather Reese, Jason Reese's daughter. Heather Reese testified that in the two-year period prior to Jason Reese's death, which occurred on February 19, 2007 (AR 404), she observed that he had problems with physical activities, such as getting in and out of his truck; with gripping and handling things (he would drop things "all the time"); and with fatigue. (AR 389-390.) Significantly, she testified that he had problems concentrating. For example, he had historically braided his daughter's hair, but could no longer focus enough to do it any more. He could no longer sit and concentrate enough to read a book or work on a computer. Heather Reese indicated that she observed these events in the latter part of 2005. (AR 390-391.)

In the first decision in this matter issued by the ALJ on September 21, 2007 (AR 10-18), the credibility of Heather Reese's observations was depreciated as being not supported by the "mild objective findings." (AR 14.) The ALJ made reference to a normal neurological examination on June 28, 2004; and another neurological consultative examination ("CE") on September 30, 2005, in addition to an internal medicine CE which was conducted on June 17, 2006. (AR 14-15.) The ALJ relied upon these examinations to support his conclusion that Jason Reese's physical abilities and concentration were not as impaired as Heather Reese's testimony indicated. Reliance was also placed on the ME, who testified that Jason Reese's condition worsened toward the end of 2006. (AR 15-16.) Little attention was focused on a CE conducted by clinical psychologist Dr. Riahinejad on September 27, 2005. (AR 322-326.) Although the testifying ME likely reviewed Dr. Riahinejad's report (see AR at 378), he made no mention of it in his testimony at the first administrative hearing. (See AR at 378-388.)

In the ALJ's first decision, he found that Jason Reese had severe impairments, including Huntington's Disease. (AR 12.) The ALJ acknowledged that Jason Reese had been found to carry the Huntington's Disease mutation gene in October 2004. (AR 14.) At the first hearing, the ME described Huntington's Disease as "a congenital degenerative disease of the brain, ..." (AR 386.) As to its symptomology, part of the ME's testimony included the following: "And you develop dementia ...


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