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Joann Garcia Trefcer v. Michael J. Astrue

June 26, 2012

JOANN GARCIA TREFCER, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Gregory G. Hollows United States Magistrate Judge

ORDER

Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her application for Disability Insurance Benefits ("DIB") under Title II of the Social Security Act ("Act"). For the reasons that follow, plaintiff's Motion for Summary Judgment is GRANTED IN PART, the Commissioner's Cross Motion for Summary Judgment is GRANTED in part and DENIED in part, and this matter is remanded to the ALJ for further findings as directed in this opinion. The Clerk is directed to enter judgment for plaintiff.

BACKGROUND

Plaintiff, born November 10, 1953, applied on April 14, 2008, for disability benefits, with a protective filing date of March 31, 2008. (Tr. at 57, 120.) In her application, plaintiff alleged she was unable to work since December 15, 2007, due to her need to walk with a cane, memory loss, stomach problems and "limited ability to move around." (Id. at 120, 142.) Plaintiff also alleged mental health problems. In a decision dated April 28, 2010, ALJ William C. Thompson, Jr., determined that plaintiff was not disabled. (Id. at 14-24.) The ALJ made the following findings:*fn1

1. The claimant last met the insured status requirements of the Social Security Act on June 30, 2008.

2. The claimant did not engage in substantial gainful activity during the period from her alleged onset date of December 15, 2007 through her date last insured of June 30, 2008 (20 CFR 404.1571 et seq.).

3. Through the date last insured, the claimant had the following severe impairments: degenerative disc disease of the cervical spine; minimal degenerative spurring of the shoulder; cognitive disorder; bipolar disorder, depressive type; and history of drug and alcohol abuse in purported remission (20 CFR 404.1520©).

4. Through the date last insured, the claimant did not have an impairment or combination of impairments that met or medically equaled 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, I find that, through the date last insured, the claimant had the residual functional capacity to perform medium work as defined in 20 CFR 404.1567©. She could lift 50 pounds occasionally and 25 pounds frequently. She could stand and walk in combination at least 6 hours in a workday and sit at least 6 hours in a workday. She should not have been required to climb ladders, ropes, or scaffolding. She should not have worked at heights or around hazardous machinery. She would be limited to work involving simple instructions.

6. Through the date last insured, the claimant was unable to perform any past relevant work (20 CFR 404.1565).

7. The claimant was born on November 10, 1953 and was 54 years old, which is defined as an individual "closely approaching advanced age," on the date last insured. The claimant subsequently changed category to "advanced age" (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. Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is "not disabled," whether or not the claimant has transferable job skills (See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2).

10. Through the date last insured, considering the claimant's age, education, work experience, and residual functional capacity, there were jobs that existed in significant numbers in the national economy that the claimant could have performed (20 CFR 404.1569 and 404.1569(a)).

11. The claimant was not under a disability, as defined in the Social Security Act, at any time from December 15, 2007, the alleged onset date, through June 30, 2008, the date last insured (20 CFR 404.1520(g)).

(Tr. at 16-24.)

ISSUES PRESENTED

Plaintiff has raised the following issues: A. Whether the Commissioner's Finding that Plaintiff Retained the Residual Functional Capacity for Medium Work Prior to the Expiration of Her Insured Status, is not Based on Substantial Evidence and is Speculative Without Analytical Foundation; B. Whether the Commissioner Failed to Explain Why he Selectively Relied on Dr. Richwerger's Opinion or the State Agency Psychologist's Opinion; and ©, ...


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