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Debora E. Lescoe v. Michael J. Astrue

January 8, 2013

DEBORA E. LESCOE, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: VICTOR B. Kenton United States Magistrate Judge

MEMORANDUM OPINION AND ORDER (Social Security Case)

This matter is before the Court for review of the decision by the Commissioner of Social Security denying Plaintiff's application for disability benefits. Pursuant to 28 U.S.C. §636(c), the parties have consented that the case may be handled by the Magistrate Judge. The action arises under 42 U.S.C. §405(g), which authorizes the Court to enter judgment upon the pleadings and transcript of the Administrative Record ("AR") before the Commissioner. The parties have filed the Joint Stipulation ("JS"), and the Commissioner has filed the certified AR.

Plaintiff raises the following issues:

1. Whether the Administrative Law Judge ("ALJ") properly considered the examining physician's opinion; and

2. Whether the ALJ properly considered Dr. Perez' treating opinion.

(JS at 4.)

This Memorandum Opinion will constitute the Court's findings of fact and conclusions of law. After reviewing the matter, the Court concludes that for the reasons set forth, the decision of the Commissioner must be reversed and the matter remanded.

I

THE ALJ'S FAILURE TO DISCUSS RELEVANT FINDINGS OF THE CONSULTATIVE PSYCHOLOGIST MANDATES REMAND FOR FURTHER HEARING

This Court's Opinion pertains to a Decision of the ALJ dated September 3, 2010. (AR 21-28.) That Decision followed a hearing held on August 19, 2010 pursuant to an Order of the Appeals Council vacating the ALJ's prior Decision and remanded for further proceedings. (AR 83-87, 45-64.) At that second hearing, Plaintiff was represented by the same counsel who presently represents her in this litigation. Testimony was taken from a vocational expert ("VE").

At the request of the Department of Social Services, Dr. Riahinejad, a clinical psychologist, conducted a psychological evaluation ("CE") on April 7, 2010. This resulted in his report (AR 778-782), along with his completing a Medical Source Statement of Ability to do Work-Related Activities (Mental), a form supplied by the Social Security Administrative Office of Hearings and Appeals. (AR 783-785.)

The ALJ found that Plaintiff has the following severe impairments: "right shoulder impingement syndrome, degenerative disc disease of the thoracolumbar spine with scoliosis, cervical myofascial pain, polysubstance dependence in remission and borderline intellectual functioning." (AR 23.)

Citing the report of Dr. Riahinejad, the ALJ concluded that the psychologist "found [Plaintiff] capable of understanding, remembering and carrying out simple, repetitive instructions." (AR 25.) Two paragraphs later, the ALJ stated, "I give significant weight to the conclusions of [Dr. Riahinejad] because he examined ...


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