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Jodey Galvan Sulllivan v. Commissioner of Social Security

March 29, 2013

JODEY GALVAN SULLLIVAN,
PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Craig M. Kellison United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

Plaintiff, who is proceeding with retained counsel, brings this action under 42 U.S.C. § 405(g) for judicial review of a final decision of the Commissioner of Social Security. Pursuant to the written consent of all parties, this case is before the undersigned as the presiding judge for all purposes, including entry of final judgment. See 28 U.S.C. § 636(c). Pending before the court are plaintiff's motion for summary judgment (Doc. 16) and defendant's cross-motion for summary judgment (Doc. 18).

I. PROCEDURAL HISTORY

Plaintiff applied for social security benefits on December 23, 2003. In the application, plaintiff claims that disability began on December 19, 2003. Plaintiff's claim was initially denied. Following denial of reconsideration, plaintiff requested an administrative hearing, which was held on January 28, 2005, before Administrative Law Judge ("ALJ") F. Keith Varni. In a September 15, 2006, decision, the ALJ concluded that plaintiff is not disabled based on the following relevant findings:

1. The claimant has the following severe impairment(s): "a very questionably severe impairment in the musculoskeletal system from minimal degenerative changes and from a presumptive diagnosis of fibromyalgia and a questionably severe mental impairment from a variety of diagnoses";

2. The claimant does not have an impairment or combination of impairments that meets or medically equals an impairment listed in the regulations;

3. The claimant has the following residual functional capacity: physically, light work; mentally, unskilled entry level work permitting work with the general public and interacting with co-workers and supervisors;

4. Considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform.

On June 8, 2007, the Appeals Council issued a decision remanding the matter. The Appeals Council identified the following defects in the ALJ's September 15, 2006, hearing decision:

1. The ALJ failed to address the medical Dr. Mohr's opinion that the claimant was incapable of even low stress jobs and could only sit three hours and stand two hours in an eight-hour day (Exhibit 11F);

2. The ALJ failed to address Dr. Frausto's opinion that the claimant was unable to work (Exhibit 23F);

3. The ALJ failed to provide a rationale for omitting the claimant's diagnosed obesity from the sequential evaluation; and

4. The ALJ failed to address statements provided by the claimant's mother.

On remand, the ALJ was instructed to "obtain all available updated medical records from the claimant's treating sources," evaluate plaintiff's obesity, and, if warranted, obtain evidence from a medical expert and/or vocational expert.

A second hearing was held before the same ALJ on January 23, 2008. In a March 10, 2008, decision, the ALJ concluded that plaintiff is not disabled based on the following relevant findings:

1. The claimant has the following severe impairment(s): "a very questionably severe impairment in the musculoskeletal system from minimal degenerative changes and from a presumptive diagnosis of fibromyalgia";

2. The claimant does not have an impairment or combination of impairments that meets or medically equals an impairment listed in the regulations;

3. The claimant has the following residual functional capacity: medium work except she is able to frequently climb, balance, stoop, kneel, crouch, and crawl;

4. Considering the claimant's age, education, work experience, residual functional capacity, and vocational expert testimony, plaintiff can perform her ...


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