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Mark A. Evans v. Commissioner of Social Security

March 16, 2012

MARK A. EVANS,
PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

ORDER

Plaintiff, who is proceeding with retained counsel, brings this action for judicial review of a final decision of the Commissioner of Social Security under 42 U.S.C. § 405(g). Pursuant to the written consent of all parties, this case is before the undersigned as the presiding judge for all purposes, including entry of final judgment. See 28 U.S.C. § 636(c). Pending before the court are plaintiff's motion for summary judgment (Doc. 18) and defendant's cross-motion for summary judgment (Doc. 19). For the reasons discussed below, the court will deny plaintiff's motion for summary judgment or remand and grant the Commissioner's cross-motion for summary judgment.

I. PROCEDURAL HISTORY*fn1

Plaintiff applied for social security benefits protectively on March 14, 2008, alleging an onset of disability on October 2, 2007, due to disabilities including back pain, depression, sleep apnea, fibromyalgia, and headaches (Certified administrative record ("CAR") 53-54, 107-08, 115-125). Plaintiff's claim was denied initially and upon reconsideration. Plaintiff requested an administrative hearing, which was held on November 16, 2009, before Administrative Law Judge ("ALJ") Gerardo Mariani. In a December 8, 2009 decision, the ALJ concluded that plaintiff is not disabled*fn2 based on the following findings:

1. The claimant meets the insured status requirements of the Social Security Act at least though December 31, 2012.

2. The claimant has not engaged in substantial gainful activity since October 2, 2007, the alleged onset date (20 CFR 404.1571 et seq.).

3. The claimant has the following severe impairments: fibromyalgia and obesity (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 the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b)[FN] except that he can engage in postural activities only occasionally and must avoid concentrated exposure to extreme cold and vibration.

[FN: Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job in this category requires a good deal of walking or standing, or it involves sitting most of the time with some pushing and pulling of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long periods of time.]

6. The claimant is capable of performing past relevant work [FN] as a counter clerk, auto parts - a light (performed as medium) and skilled, SVP5, job. This work does not require the performance of work-related activities precluded by claimant's residual functional capacity (20 CFR 404.1565).

[FN: Other past relevant work, according to the credible testimony of the vocational expert, consisting of a ranch hand (heavy and semiskilled, SVP 4) and a gas attendant (medium and semiskilled, SVP 3), the claimant is not capable of performing because exertional demands exceed the residual functional capacity.]

7. The claimant has not been under a disability, as defined in the Social Security Act, from October 2, 2007 through the date of this decision (20 CFR 404.1520(f)).

(CAR 16-25). After the Appeals Council declined review on August 20, 2010, ...


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