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Lisa L. Morris v. Michael J. Astrue

March 28, 2013

LISA L. MORRIS, 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 issue:

1. Whether the Administrative Law Judge ("ALJ") properly considered the medical evidence as contained in the treating opinion of Elise Orzeck, DPM. (JS at p. 5)

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 EVIDENCE

FROM TREATING DPM, DR. ORZECK

On January 16, 2006, Plaintiff fell from a ladder, severely injuring her ankle. She went to physical therapy, and also began seeing podiatrist Felice Orzeck.*fn1

After her applications for disability insurance benefits and Social Security Insurance ("SSI") were administratively denied, Plaintiff*fn2 proceeded to a hearing before the ALJ (AR 23-61), following which an unfavorable decision was issued. (AR 10-19.) Plaintiff takes issue with the ALJ's evaluation of the opinion of her treating podiatrist, Dr. Orzeck.

After reviewing the evidence, the ALJ determined that Plaintiff's Residual Functional Capacity ("RFC") enables her to lift 20 pounds occasionally and 10 pounds frequently; she can stand and walk, withnormal breaks, for a total of two hours in an eight-hour workday, and she can sit, with normal breaks, for a total of six hours in an eight-hour workday. She has some exertional limitations. (AR 14.)

In arriving at the RFC, the ALJ considered Dr. Orzeck's opinion, along with the opinions of other examining and non-examining sources. This analysis is reflected in the Decision at AR 14-16. Among the opinions considered by the ALJ was that of Dr. Tom, who performed an orthopedic consultative examination ("CE") on September 4, 2009 at the request of the Department of Social Services. (AR 213-219.) Following Dr. Tom's examination, which included what appears to be complete objective testing (see, AR 214-218), he assessed that Plaintiff can lift and carry 20 pounds occasionally and less than 10 pounds frequently; can stand and walk six hours in an eight-hour day with the appropriate breaks and orthopedic braces for the right foot; can sit six hours out of an eight-hour day with appropriate breaks; and, that there are no upper extremity or left leg, neck, or lumbar spine fractures that would affect her functional ability to a significant extent. (AR 218.) Dr. Tom's report was summarized by the ALJ (AR 14-15), who concluded that Plaintiff's examination was "essentially normal and with only limited range of motion of [Plaintiff's] right foot." (AR 14.) Plaintiff does not dispute the ALJ's summary of Dr. Tom's examination, nor does she argue that Dr. Tom's examination was faulty, or that his conclusions were incorrect.

Plaintiff also had extensive physical therapy, and, again, the ALJ made substantial reference to that in his Decision. (AR 15-16.) Summarizing the physical therapy treatment notes, the ALJ concluded that they indicate that Plaintiff had good balance, and she had "improved gait activity, increased push off, decreased pain symptoms [and] tolerated exercise well." (AR 14-16, 199, 204, 218.)

The ALJ also relied upon, and in fact agreed with the physical RFC assessment of the State Agency physician, ...


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