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Marilyn Alarcon v. Michael J. Astrue

March 27, 2013


The opinion of the court was delivered by: Irma E. Gonzalez United States District Judge



(2) GRANTING DEFENDANT'S 15] CROSS-MOTION FOR Commissioner of Social Security, SUMMARY JUDGMENT [Doc. No.

Plaintiff Marilyn Alarcon ("Plaintiff") seeks review of the Commissioner's final decision denying her application for social security benefits under Title II of the Social Security Act. Plaintiff filed a motion for summary judgment, requesting the Court reverse the final decision of the Commissioner and order the payment of benefits, or remand for further proceedings. [Doc. No. 11.] The Commissioner filed a cross-motion for summary judgment. [Doc. No. 15.] The motions raise a single issue: whether the administrative law judge's ("ALJ") determination that Plaintiff could perform her past work was based on legal error or was unsupported by substantial evidence. [Doc. Nos. 11, 15.] For the reasons stated below, the Court DENIES Plaintiff's motion for summary judgment and GRANTS the Commissioner's cross-motion for summary judgment.


On April 19 and 20, 2010, Plaintiff filed applications for social security disability benefits and supplemental security income under Titles II and XVI of the Social Security Act. [Administrative Record ("AR") at 40, 178-82.] Her application was denied both initially and on reconsideration. [AR at 40.] On March 10, 2011, Plaintiff appeared at a hearing before an ALJ. [AR at 56-93.] Plaintiff was represented by counsel and testified on her own behalf. A VE also testified. [AR at 57-58.] On July 13, 2011, the ALJ issued a decision determining that Plaintiff was not disabled within the meaning of the Social Security Act. [AR at 37-49.] On February 9, 2012, the Appeals Council denied Plaintiff's request for review. [AR at 6-8.] Plaintiff filed this action seeking judicial review under 42 U.S.C. § 405(g) on July 11, 2012. [Doc. No. 1, Compl.]


A. Hearing Testimony

Plaintiff first testified about her basic biographical information, including date of birth, education, and citizenship. [AR at 59-61.] Plaintiff then testified about her work history and described her duties at each job. [Id. at 62-73.] The ALJ subsequently asked Plaintiff why she could not currently work, and Plaintiff responded by discussing various ailments that she stated prevent her from working, including pain in her hands, shoulders, and neck. [Id. at 76-81, 84.] Plaintiff next discussed the household activities that she was unable to perform due to her ailments. [Id. at 81-84.]

The ALJ then received testimony from the vocational expert ("VE"). The ALJ first confirmed that the VE was familiar with the exhibits and that she heard Plaintiff's testimony regarding her work history. [Id. at 88.] He then requested that if the VE has any differences of opinion with the Dictionary of Occupational Titles ("DOT") during her testimony, that she explain her reasons. [Id. at 89.] The ALJ asked the VE to hypothetically assume Plaintiff's characteristics and limitations, including her inability to reach or work above shoulder height with either of her extremities. The ALJ asked the VE if Plaintiff, with those limitations, is able to return to any of her past relevant work. The VE answered that Plaintiff is able to perform her past relevant work as an assembler, printed circuit boards ("assembler") both as actually done and as generally done in the national economy. [Id. at 48, 90-91.]Plaintiff's attorney did not challenge any of the VE's responses or opinions during the hearing. [Id. at 92.]

B. ALJ's Decision

The ALJ ultimately found that Plaintiff was not disabled. [AR at 47-49.] The ALJ first found that Plaintiff had the following impairments which in combination are considered "severe" under the Social Security Act and regulations: breast cancer, status post right masectomy and chemotherapy but not radiation in November 2002, without metastasis or recurrence; Stage IIB melanoma, status post excision of lesion on right buttock in November 2008, without metastasis or recurrence; remote viral cardiomyopathy in December 2001, without persisting congestive heart failure; non-insulin dependent diabetes mellitus, well controlled; tendinitis, both shoulders; flexor tendinitis, both thumbs; borderline carpal tunnel syndrome, right hand, and possible diabetic sensory neuropathy in both hands, per electrodiagnostic testing in September 2010; and osteopenia in the hips but not the spine. [Id. at 43.]

The ALJ then found that these impairments did not meet or medically equal a listed impairment. [Id.] The ALJ next determined that Plaintiff had the residual functional capacity to perform work activity at, inter alia, the sedentary exertional level, with some limitations, including no reaching or working above shoulder height with either upper extremity. [Id.] Finally, the ALJ determined that Plaintiff could perform her previous job as an assembler, both as actually and generally done. [Id. at 48.]The ALJ concluded that ...

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