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Lawrence E. Saiz v. Michael J. Astrue

April 6, 2012


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


Plaintiff filed a Complaint on February 22, 2011, seeking review of the denial of plaintiff's application for a period of disability, disability insurance benefits ("DIB"), and supplemental security income ("SSI"). On March 23, 2011, 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 on February 1, 2012, 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; and the Commissioner requests that his decision be affirmed or, alternatively, remanded for further administrative proceedings.

On March 6, 2012, this Court issued a minute order ("Minute Order") requesting that the Commissioner submit: "(1) an improved transcript of the hearing, if possible, which establishes that all appropriate limitations were included in the hypothetical question to the vocational expert; and/or (2) supplemental briefing that supports the claim of harmless error." (Minute Order at 1-2.) On April 2, 2012, the parties stipulated to withdraw Disputed Issue I ("Whether The ALJ Properly Propounded A Complete Hypothetical To the Vocational Expert") from their February 1, 2012 Joint Stipulation. (Docket No. 26.) The Court thereafter took the remaining issue presented under submission without oral argument.


On January 24, 2008, plaintiff filed an application for a period of disability, DIB, and SSI. (Administrative Record ("A.R.") 18.) Plaintiff, who was born on September 7, 1958 (A.R. 28),*fn1 claims to have been disabled since December 18, 2007 (A.R. 18, 149), due to colon cancer and depression (A.R. 88, 92).

After the Commissioner denied plaintiff's claim initially and upon reconsideration (A.R. 18, 88-96), plaintiff requested a hearing (A.R. 100). On October 27, 2009, plaintiff, who was represented by counsel, appeared and testified at a hearing before Administrative Law Judge Mason Harrell, Jr. (the "ALJ"). (A.R. 18, 37-83.) Plaintiff's brother- in-law, Frank Chavez, and a vocational expert, Sandra Fioretti, also testified. (Id.) On December 9, 2009, the ALJ denied plaintiff's claim (A.R. 18-30), and the Appeals Council subsequently denied plaintiff's request for review of the ALJ's decision (A.R. 4-6). That decision is now at issue in this action.


The ALJ found that plaintiff meets the insured status requirements of the Social Security Act through December 31, 2011. (A.R. 20.) The ALJ also found that plaintiff has no past relevant work experience*fn2 (A.R.

28) and has not engaged in substantial gainful activity since December 18, 2007, the alleged onset date (A.R. 20). The ALJ determined that plaintiff has the following severe impairments: "depression, not otherwise specified; antisocial traits; alcohol abuse and a history of methamphetamine abuse, but not since December 2007; colon cancer; and status post hernia operation." (A.R. 20.) He also determined that plaintiff does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525, 404.1526, 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 a limited range of light work, as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), with the following limitations:

[plaintiff can] lift and/or carry 20 pounds occasionally and 10 pounds frequently; walk three to four blocks; stand and/or walk for four hours out of an eight-hour workday; and perform simple repetitive tasks in a nonpublic setting. [Plaintiff] is precluded from intense interactions with co-workers and supervisors; jobs that require hypervigilance; and jobs that have safety operations.

(A.R. 21.)

Based on his RFC assessment and after having considered plaintiff's age, education,*fn3 work experience, and the testimony of the vocational expert, the ALJ found that jobs exist in the national economy that plaintiff could perform, including bench assembler and small products assembler II. (A.R. 29-30.) In so finding, the ALJ specifically noted that, because plaintiff could not perform the full range of light work, the testimony of a vocational expert was necessary to determine the extent to which plaintiff's limitations eroded the occupational base for light work. (A.R. 29.) Even with a 50 percent erosion of that occupational base, the vocational expert testified that an individual with plaintiff's limitations could perform the above-listed jobs. (Id.) She further testified that her testimony was consistent with the Dictionary of ...

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