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Douglas E. Perry v. Michael J. Astrue

January 17, 2013

DOUGLAS E. PERRY, 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 record before the Commissioner. The parties have filed the Joint Stipulation ("JS"), and the Commissioner has filed the certified Administrative Record ("AR").

Plaintiff raises the following issues:

1. Whether the Administrative Law Judge ("ALJ") properly considered the April 5, 2011 opinion of treating physician Adam Ginsberg, D.O., of Lags Spine and Sportscare;

2. Whether the ALJ properly gave greater weight to the August 2009 opinions of orthopedic consultative examiner John Simmonds, M.D.;

3. With regard to Plaintiff's physical impairments, whether the ALJ properly gave greater weight to the September 2009 opinions of non-examining State Agency physician B. Morgan, M.D., as affirmed by A. Resnik, M.D., based on the same evidence;

4. Whether the ALJ properly considered Plaintiff's credibility; 5. Whether the ALJ should have secured an updated orthopedic consultative examination; and

6. Whether the ALJ properly considered Plaintiff's residual functional capacity. (JS at 3-4.)

This Memorandum Opinion will constitute the Court's findings of fact and conclusions of law. After reviewing the matter, the Court concludes that the decision of the Commissioner must be affirmed.

I THE ALJ PROPERLY CONSIDERED THE OPINION OF TREATING PHYSICIAN ADAM GINSBERG, D.O.

The ALJ found that Plaintiff has severe impairments of thoracic cyst, a protrusion with probable nerve root impingement and possible radiculopathy, neural foraminal narrowing, and myofascial pain. (AR 14.) After examining the medical evidence, and finding that Plaintiff does not have a Listing level impairment, the ALJ assessed the following residual functional capacity ("RFC"): Plaintiff can perform a wide range of medium work. He cannot lift or carry more than 50 pounds occasionally or 25 frequently. He cannot sit, stand, or walk longer than six hours in an eight-hour workday. He is limited to frequent, but not constant bending, stooping, crouching, crawling, kneeling, walking on uneven terrain, climbing ladders, and working at unprotected heights. (AR 16.)

Plaintiff's credibility with regard to subjective complaints was discussed and depreciated. (AR 16-17.) A vocational expert ("VE") testified at the hearing and his testimony was cited and relied on in the Decision. (AR 18, 49-69.)

At the last step of the five-step evaluation process, the ALJ found that Plaintiff is capable of performing his past relevant work. (AR 19.) Thus, a finding of non-disability was made.

In his first issue, Plaintiff cites to a one-page letter to his present counsel (who also represented him in the underlying administrative proceedings). (AR 360.) This letter was written by Adam Ginsberg, a doctor of osteopathy working at the Lags Spine and Sportscare facility ("Lags"). Although a portion of the aforesaid letter pertains to possible concerns as to Plaintiff's mental state, Plaintiff has ...


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