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Istik v. Astrue

February 13, 2009

DAN ISTIK, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: McVerry, J.

MEMORANDUM OPINION AND ORDER OF COURT

I. Introduction

Plaintiff, Dan Istik, brought this action pursuant to 42 U.S.C. § 1383(c), for judicial review of the final determination of the Commissioner of Social Security ("Commissioner") which denied his application for supplemental security income ("SSI") under title XVI of the Social Security Act ("Act"), 42 U.S.C. §§ 1381-1383(f).

II. Background

A. Facts

Plaintiff was born on February 17, 1953, and is classified as an "individual closely approaching advanced age" pursuant to 20 C.F.R. § 416.963. (R. at 19.) He has the equivalent of a high school education and has no past relevant work experience. (R. at 19.)

Plaintiff alleges disability as of January 1, 2003, due to hepatitis C, tuberculosis, arthritis of the spine, neck, and right shoulder, and a cataract in his right eye. The record reflects that Plaintiff has not engaged in substantial gainful work activity since July 12, 2005, when he protectively filed for SSI.

B. Procedural History

Plaintiff filed an application for SSI on July 12, 2005, in which he claimed total disability since January 1, 2003. An administrative hearing was held on April 25, 2007, before Administrative Law Judge Elliott Bunce ("ALJ"). Plaintiff was represented by counsel and testified at the hearing. William Houston Reed, Ph.D., an impartial vocational expert, also testified at the hearing.

On July 12, 2007, the ALJ rendered an unfavorable decision and found plaintiff not disabled. The ALJ found that Plaintiff's hepatitis C, tuberculosis, arthritis of the spine, neck, and right shoulder, and the cataract in his right eye did not meet or medically equal the criteria of an impairment listed in Appendix 1 (20 C.F.R. 416.920(d). (R. at 15.) The ALJ determined that Plaintiff retained "the residual functional capacity to perform work that does not require: exertion above the light level; or more than occasional climbing, balancing, stooping, kneeling, crouching, or crawling; or more than simple, routine, repetitious tasks, with one- or two-step instructions; or strict production quotas; or more than occasional contact with co-workers, supervisors, or the public" and, therefore, was not "disabled" within the meaning of the Act. (R. at 16.)

The ALJ's decision became the final decision of the Commissioner on August 31, 2007, when the Appeals Council denied Plaintiff's request to review the decision of the ALJ.

On November 5, 2007, Plaintiff filed his Complaint in this Court in which he seeks judicial review of the decision of the ALJ. The parties have filed cross-motions for summary judgment. Plaintiff contends that the ALJ failed to take into consideration that he was only seven months shy of the next age category in the Medical Vocational Guidelines ("the Grids") and that the ALJ, despite this borderline situation, mechanically applied the Grids. The Commissioner contends that the decision of the ALJ should be affirmed as it is supported by substantial evidence.

After a careful review of the entire record, the Court finds that the ALJ failed to address or consider the borderline grid situation present in Plaintiff's case and, therefore, will remand the matter to the Commissioner for reconsideration, rehearing, and/or further proceedings consistent with this Memorandum ...


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