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Barney v. Commissioner of Social Security

March 18, 2010

EILEEN K. BARNEY, PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Hon. Robert Holmes Bell

MEMORANDUM OPINION AND ORDER ADOPTING THE REPORT AND RECOMMENDATION

The is an action brought by Plaintiff Eileen K. Barney pursuant to 42 U.S.C. § 405(g), in which she seeks review of a final decision of the Commissioner of Social Security finding that she is not entitled to disability insurance benefits. On January 20, 2010, United States Magistrate Judge Joseph G. Scoville issued a Report and Recommendation ("R&R"), recommending that the decision of the Commissioner be affirmed. (Dkt. No. 13.) Plaintiff filed objections to the R&R on February 3, 2010. (Dkt. No. 14.) For the reasons that follow, Plaintiff's objections are denied and the R&R is adopted as the opinion of the Court.

This Court is required to make a de novo determination of those portions of a R&R to which specific objections are made, and may accept, reject, or modify any or all of the Magistrate Judge's findings or recommendations. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

In 2004, Plaintiff fractured bones in her right arm, requiring surgery and therapy. Plaintiff contends that she is unable to return to her work as a financial advisor, in part, because of limitations in the use of her right hand and arm.*fn1 (Admin. R. at 78-79.) The administrative law judge ("ALJ") determined that Plaintiff retained functional capacity to perform light work but is unable to perform constant gross or fine manipulation with her right hand. (Id. at 4.) The ALJ determined that Plaintiff could return to work as a financial advisor and that the limiting effects of the symptoms reported by Plaintiff were not fully credible. (Id. at 5-6.)

Plaintiff objects to the credibility finding of the ALJ. Plaintiff contends that the ALJ and R&R improperly relied upon a statement of the vocational expert ("VE") who testified that an individual unable to perform constant manipulation (in other words, able to perform frequent manipulation) with one hand could return to work as a financial advisor. (Admin. R. at 382.) The ALJ asked the VE, and the VE responded, as follows:

Q: If we had a 60-year-old hypothetical claimant with education and past work experience that Ms. Barney possesses that was . . . unable to lift and carry more than 10 pounds frequently, 20 pounds occasionally. Unable to climb ladders, ropes and scaffolds. Unable to climb, stoop, crouch, crawl more than occasionally. Unable to perform constant gross, constant gross or fine manipulation with right hand or right upper extremity. Would need to avoid concentrated exposure to vibration on that right extremity. Would such an individual so restricted be able to perform Ms. Barney's past work?

A: Yes. ...

Q: If I dropped the weight restriction to 10 pounds, bring it into the sedentary range, would your answer be the same that she could perform that past work?

A: Yes. (Admin. R. at 382.) In response to questions by Plaintiff's attorney, the VE later testified that an individual unable to perform frequent manipulation with one hand could not perform work as a financial advisor:

Q: Mr. Patrovich, if the claimant's restriction was changed so that she could not even do frequent use of the right hand under the circumstances given here previously, would that change your answers?

A: Yes. . . . It would mean that such a person couldn't perform the claimant's past relevant work. (Id. at 383.) Plaintiff cites the following as testimony by the VE that Plaintiff could not return to work:

Q [ALJ]: Okay. Do you have one-armed stock broker?

A [VE]: Essentially not.

Q: Essentially not and that is due to the current environment as Ms. Barney described of computer ...


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