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Lynette F. Ortez v. Commissioner of Social Security

August 23, 2012

LYNETTE F. ORTEZ,
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. 15) and defendant's cross-motion for summary judgment (Doc. 18). 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 October 29, 2002, alleging an onset of disability on April 1, 2001, due to disabilities including lumbar disc disease, crushed ankles, asthma, dyslexia, depression and anxiety disorder. (Certified administrative record ("CAR") 44, 82, 96-105). Plaintiff's claim was denied initially and upon reconsideration. Plaintiff requested an administrative hearing, which was held on July 6, 2004, before Administrative Law Judge ("ALJ") Antonio Acevedo-Torres. In a July 22, 2004, decision, ALJ Acevedo-Torres concluded that plaintiff was not disabled. Plaintiff requested the Appeals Council review the ALJ's unfavorable decision. The Appeals Council vacated the ALJ's decision, and remanded the matter for a new hearing with specific instructions. A supplemental hearing was held on September 15, 2005, before ALJ Mark C. Ramsey. In a March 7, 2006, decision, ALJ Ramsey also concluded that plaintiff was not disabled. The Appeals Council denied plaintiff's request for review on July 20, 2006. Plaintiff then filed a timely action for judicial review in this court. On July 13, 2007, the undersigned determined that the ALJ failed to adequately support his credibility finding related to both plaintiff's testimony and that of her sister, and that the ALJ erred in relying, at least in part, on the Medical Vocational Guidelines (Grids). The court remanded the matter to the Commissioner for further consideration (case number 2:06-cv-1748-CMK, "Ortez I").

On remand, the Appeals Council vacated the final decision of the Commissioner, and instructed the ALJ to conduct further proceedings consistent with this court's order, and instructed the ALJ to offer plaintiff the opportunity for a hearing, take further action as needed to complete the administrative record, and issue a new decision. (CAR 590). A further supplemental hearing was held on October 11, 2007, before ALJ Ramsey. In a March 25, 2008, decision, ALJ Ramsey again concluded that plaintiff was not disabled*fn2 based on the following findings:

1. The claimant has not engaged in substantial gainful activity since October 29, 2002, the application date (20 CFR 416.920(b) and 416.971 et seq.).

2. The claimant has the following severe impairments: affective disorder, anxiety disorder, personality disorder, and degenerative lumbar disk disease (20 CFR 416.920(c)).

3. 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 416.920(d), 416.925 and 416.926).

4. 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 416.967(c) except she is limited to simple, unskilled work where she must be given precise instructions with no work with the public or work in unison with other employees, though she can work in the presence of other employees.

5. The claimant has no past relevant work (20 CFR 416.965). 6. The claimant was born on October 24, 1958 and was 43 years old, which is defined as a younger individual age 18-49, on the date the application was filed (20 CFR 416.963).

7. The claimant has a limited education and is able to communicate in English (20 CFR 416.964).

8. Transferability of job skills is not an issue because the claimant does not have past relevant work (20 CFR 416.968).

9. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform (20 CFR 416.960(c), and 416.966).

10. The claimant has not been under a disability, as defined in the Social Security Act, since October 29, 2002, the date the application was filed (20 CFR 416.920(g)).

(CAR 579-87). After the Appeals Council denied further review on April 13, 2010, ...


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