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Gregory M. Kubis v. Michael J. Astrue

January 15, 2013

GREGORY M. KUBIS, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: John E. Mcdermott United States Magistrate Judge

MEMORANDUM OPINION AND ORDER REVERSING DECISION OF THE COMMISSIONER OF SOCIAL SECURITY AND REMANDING FOR FURTHER PROCEEDINGS

PROCEEDINGS

On March 8, 2012, Gregory M. Kubis ("Plaintiff" or "Claimant") filed a complaint seeking review of the decision by the Commissioner of Social Security ("Commissioner") denying Plaintiff's application for Social Security Disability Insurance benefits. The Commissioner filed an Answer on June 11, 2012. On December 17, 2012, the parties filed a Joint Stipulation ("JS"). The matter is now ready for decision.

Pursuant to 28 U.S.C. § 636(c), both parties consented to proceed before this Magistrate Judge. After reviewing the pleadings, transcripts, and administrative record ("AR"), the Court concludes that the Commissioner's decision must be reversed and remanded for further proceedings in accordance with this Memorandum Opinion and Order and with law.

BACKGROUND

Plaintiff is a 49 year old male who applied for Social Security Disability Insurance benefits on October 27, 2008, alleging disability beginning June 15, 2007. (AR 25.) The ALJ determined that Plaintiff has not engaged in substantial gainful activity since June 15, 2007, the alleged onset date. (AR 27.)

Plaintiff's claim was denied initially on February 5, 2009, and on reconsideration on April 9, 2009. (AR 25.) Plaintiff filed a timely request for hearing, which was held before Administrative Law Judge ("ALJ") Michael D. Radensky on April 9, 2010, in San Bernardino, California. (AR 25.) Claimant appeared at the hearing and testified and was represented by counsel. (AR 25.) Vocational expert ("VE") Sandra M. Fioretti also appeared and testified at the hearing. (AR 25.)

The ALJ issued an unfavorable decision on May 28, 2010. (AR 25-34.) The Appeals Council denied review on February 2, 2012. (AR 1-7.)

DISPUTED ISSUES

As reflected in the Joint Stipulation, Plaintiff raises the following disputed issues as grounds for reversal and remand:

1. Whether the ALJ erred as a matter of law by finding substance abuse a material factor.

2. Whether the ALJ erred as a matter of law by failing to find that Plaintiff refuted a finding of substance abuse.

3. Whether the ALJ erred as a matter of law by failing to find fibromyalgia a severe impairment.

4. Whether the ALJ erred as a matter of law by failing to include symptoms of chronic fatigue and chronic pain in his hypothetical.

5. Whether the ALJ erred as a matter of law by failing to make clear and convincing credibility findings.

6. Whether the ALJ erred as a matter of law by failing to give adequate weight to ...


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