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Claudia Shillingford v. Michael J. Astrue

August 30, 2012

CLAUDIA SHILLINGFORD,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

MEMORANDUM OPINION AND ORDER

Plaintiff filed a Complaint on September 6, 2011, seeking review of the denial by the Social Security Commissioner ("Commissioner") of plaintiff's application for a period of disability, disability insurance benefits ("DIB") and supplemental security income ("SSI"). On October 4, 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 July 6, 2012, in which: plaintiff seeks an order reversing the Commissioner's decision and awarding benefits or, alternatively, remanding for further administrative proceedings; and the Commissioner requests that his decision be affirmed or, alternatively, remanded for further administrative proceedings.

SUMMARY OF ADMINISTRATIVE PROCEEDINGS

On April 15, 2003 and August 11, 2004, it appears plaintiff filed an application for a period of disability, DIB, and SSI, alleging an inability to work since October 17, 2001 (Administrate Record ("A.R.") 100-07, 640), due to "[d]isorders of [m]uscle, [l]igament and [f]ascia" (A.R. 69). Plaintiff has past relevant work experience as a "activity assistant," "caregiver," and "nurse's assistant. (A.R. 847.)

The Commissioner denied plaintiff's application initially and upon reconsideration. (See A.R. 69-71, 72-75.) On April 19, 2005, *fn1 plaintiff, who was represented by counsel, appeared and testified at a hearing before Administrative Law Judge Patti Hunter ("ALJ Hunter"). (A.R. 973-1005.) Edward Bennett, a vocational expert ("VE"), also testified. (Id.) On June 29, 2005, ALJ Hunter issued a partially favorable decision, finding plaintiff disabled from February 22, 2002, through December 8, 2004. (A.R. 670-78.) Plaintiff appealed and requested that the Appeals Council review ALJ Hunter's decision. (A.R. 688-92.) Pursuant to a November 9, 2006 Order, the Appeals Council "vacate[d] the hearing decision, including the part that is favorable to [plaintiff], and remand[ed] this case for further proceedings." (A.R. 686-87.)

On December 5, 2007, plaintiff, who was again represented by an attorney, appeared and testified at a second administrative hearing before ALJ Hunter. (A.R. 1006-38.) Medical expert Michael Gurvey and VE Sharon Spaventa also testified. (Id.) On February 22, 2008, ALJ Hunter again issued a partially favorable decision, finding plaintiff disabled from February 22, 2004, through December 8, 2004. (A.R. 811-21.) Plaintiff appealed and requested review of ALJ Hunter's February 22, 2008 decision. (A.R. 34-36.) Pursuant to a June 25, 2009 Order, the Appeals Council vacated "the hearing decision, including the part that [wa]s favorable to [plaintiff], and remand[]ed]" the case to a new ALJ. (A.R. 823-25.) *fn2

On October 6, 2010, plaintiff, who was again represented by an attorney, appeared and testified at a third administrative before ALJ John Geb (the "ALJ"). (A.R. 1039-90.) Medical experts Diana Sharpe and Harvey L. Alpern, as well as VE Sharon Spaventa, also testified at the hearing. (Id.) On November 19, 2010, the ALJ issued a decision denying plaintiff's claim (A.R. 22-30), and the Appeals Council subsequently denied plaintiff's request for review of the ALJ's decision (A.R. 13-15, 17). That decision is now at issue in this action.

SUMMARY OF ADMINISTRATIVE DECISION

In his November 19, 2010 decision, the ALJ incorporated by reference the evaluation of evidence contained in ALJ Hunter's February 22, 2008 decision. (A.R. 22.) The ALJ found that plaintiff has not engaged in substantial gainful activity since October 17, 2001, her alleged onset date. (A.R. 24.) The ALJ determined that plaintiff has the severe impairments of: "depressive disorder, NOS, rule out past history of anxiety in 2004 [and] 1998; [and] right shoulder pain, and left shoulder and knee pain, with no physical or x-ray findings." (A.R. 25.) He concluded that such impairments, however, did not meet or medically equal the criteria of an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, the Listing of Impairments. (A.R. 26.)

After reviewing the record, the ALJ determined that plaintiff has the residual functional capacity ("RFC") to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b). (A.R. 27.) Specifically, the ALJ found that plaintiff has the ability to:

lift and carry occasionally 20 pounds, and frequently 10 pounds, stand, walk and sit fo[]r at least 6 hours total in an 8-hour workday, moderate limitations in use of the right upper extremity, moderate postural limitations, no overhead use of the right upper extremity, no overhead lifting with both upper extremities; and moderate limitation in relating and interacting with supervisors and co-workers, understanding, remembering and carrying out an extensive variety of technical and/or complex job instructions, dealing with the public, maintaining concentration and attention for at least 2 hour increments, and in withstanding the stress and pressures associated with an 8-hour work day and day-to-day activity.

(A.R. 27.)

The ALJ found that plaintiff's past relevant work ("PRW") as a "recreation aide," as she actually performed it, does not require the performance of work-related activities precluded by plaintiff's RFC. (A.R. 29.) Accordingly, the ALJ concluded that plaintiff has not been under a disability, as defined in the Social Security Act, since October 17, ...


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