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Jennifer Grimm Cherkaoui v. Commissioner of Social Security

February 27, 2012

JENNIFER GRIMM CHERKAOUI, PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



MEMORANDUM OF DECISION

Jennifer Grimm Cherkaoui (the "Claimant"), appeals to the District Court from a final decision of the Commissioner of Social Security (the "Commissioner") denying her application for benefits. Doc. No. 1. Claimant argues that the final decision of the Commissioner should be reversed and remanded for an award of benefits because the Administrative Law Judge (the "ALJ") erred by: 1) failing to state with particularity the weight given and the reasons therefor to the opinion of Claimant‟s treating endocrinologist, Dr. Arnold Vera; 2) overlooking the opinion of Dr. Michael Zelenka, a non-examining psychologist; 3) giving controlling weight to the opinion of a non-examining physician, Dr. Griffon; 4) failing to apply the correct legal standards to the side-effects of Claimant‟s medications; 5) lacking substantial evidence to find Claimant not credible; 6) failing to ask the vocational expert (the "VE") a hypothetical question which includes all of Claimant‟s limitations; and 7) finding Claimant does not meet Listing 1.04. Doc. No. 17 at 1-20. The Claimant also argues that the Appeals Council failed to apply the proper legal standards to the new and material evidence presented by Claimant after the ALJ‟s decision.

Doc. No. 17 at 20-21. In the alternative to reversing for an award of benefits, Claimant requests reversal and remand for further proceedings. Doc. No. 17 at 21-24. If the case is remanded for further proceedings, Claimant requests that the case be assigned to another ALJ due to the "ALJ‟s conduct at the hearing and the tone of his decision indicate strong feelings against a finding of disability." Doc. No. 17 at 23. For the reasons set forth below, the final decision of the Commissioner is REVERSED and REMANDED for further proceedings because the ALJ erred by failing to state with particularity the weight given, and the reasons therefor, to the opinion of Dr. Vera.

I. BACKGROUND.

Claimant was born on March 23, 1968. R. 53. On January 12, 2007, Claimant filed an application for benefits alleging an onset of disability as of October 2, 2006, due to cervicalgia, lumbar radiculopathy, edema, fibromyalgia, lumbago, obesity, sleep apnea, myalgia, hepatic hemangioma, allergic asthma, hyperlipidemia, polycsystic ovarian diseases, incontinence, anal fissure, rectal bleeding, hirsutism, fatigue, palpitations, and headaches. R. 27, 102, 159. Claimant‟s application was denied initially and upon reconsideration. R. 107, 112.

The record contains treatment records from Claimant‟s treating endocrinologist, Dr. Arnold Vera, who treated Claimant for "serious abnormalities of the hypothalamic-pituitary-adrenal axis and hypothalamic-pituitary ovarian axis" from 2006 through August 29, 2007. R. 578-583. On August 29, 2007, Dr. Vera offered the following opinion:

The patient has been seen in our office since 2006 with a history involving the endocrine system, metabolic status, and significant stress in her life leading to serious abnormalities of the hypothalamic-pituitary-adrenal axis and hypothalamic-pituitary-ovarian axis. These issues are from the standpoint of psychoneuroendocrine problems and metabolic status having significant impact on the quality of life, therefore, interfering with any physical activity, work activity, and/or intellectual activity, such as being a student.

R. 583 (emphasis added). Thus, Dr. Vera opines that Claimant‟s endocrine system impairments interfere with any physical, work, and/or intellectual activity. R. 583.

On August 5, 2009, a hearing was held before the ALJ. R. 41-98. At the hearing, Claimant, the VE, and a non-examining internist, Dr. Edmund Griffon, testified. R. 41-98. In his testimony before the ALJ, Dr. Griffon briefly mentions Dr. Vera‟s treatment of Claimant, but he does not discuss Dr. Vera‟s opinion. R. 47. In response to questioning from the ALJ, Claimant testified that she was being treated by Dr. Vera. R. 68.

On December 15, 2009, the ALJ issued a decision finding Claimant not disabled. R. 20-31. 17-24. The ALJ found that Claimant has the following severe impairments: cervicalgia; lumbar radiculopathy; lumbago morbid obesity; sleep apnea; myalgia; hemangioma, hepatic; allergic asthma; hyperlipidemia and polycystic ovarian disease. R. 22. The ALJ determined Claimant retains the following residual functional capacity (the "RFC"):

To perform some kinds of light work . . . with additional limitations. She can lift 20 pounds occasionally and 10 pounds or less more frequently. She has the ability to sit for six hours in an eight hour work day and stand or walk one hour at [sic] time for a total of six hours in an eight hour day. Prior to her gastric bypass surgery and subsequent weight loss, she could occasionally bend, stoop, squat, crouch, crawl and kneel. She could occasionally climb ramps and stairs. She was unable to climb ropes, scaffolds or ladders. After her surgery, she is able to perform all postural activities of bending, stooping, squatting, crouching, crawling and kneeling on a frequent basis. She has no limitations with the use of her upper extremities. She has no limitations with her fine or gross dexterity or manipulation or for pushing or pulling within the limits indicated above. She should avoid concentrated exposure to atmospheric pollutants, extreme heat and cold. She has no mental impairment which would further reduce her limitation for light work activity.

R. 23-24. Thus, the ALJ determined that Claimant retains the RFC for a reduced range of light work. R. 23-24.

In the decision, the ALJ gives controlling weight to the opinions of Dr. Griffon, the non-examining physician, who testified at the hearing based upon a review of the record. R. 28. The ALJ states:

The [C]laimant has many chronic medical problems. . . . However, the majority of these problems do not constitute an obstacle to her working. She has the problems noted above and these were all reviewed by the medical expert, Dr. Griffin [sic]. Dr. Griffin [sic] noted the [c]laimant could do a reduced range of at least light work prior to her bariatric surgery in March 2008 with only occasional ...


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