United States District Court, E.D. Tennessee, Chattanooga Division
REPORT AND RECOMMENDATION
WILLIAM B. MITCHELL CARTER, Magistrate Judge.
This action was instituted pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the final decision of the Commissioner denying the plaintiff a period of disability, disability insurance benefits, and supplemental security income under Title II and Title XVI of the Social Security Act, 42 U.S.C. §§ 416(I), 423, and 1382.
This matter has been referred to the undersigned pursuant to 28 U.S.C. § 636(b) and Rule 72(b) of the Federal Rules of Civil Procedure for a report and recommendation regarding the disposition of Plaintiff's Motion for Summary Judgment (Doc. 15) and Defendant's Motion for Summary Judgment (Doc. 16).
For the reasons stated herein, I RECOMMEND the decision of the Commissioner be AFFIRMED.
Plaintiff's Age, Education, and Past Work Experience
Plaintiff was 49 years of age on the date of the ALJ's decision (Tr. 8, 63). She has a high school education, plus 1 year of college, with additional training as a surgical technician, medical record coder, and massage therapist (Tr. 34, 63, 274). Plaintiff's past work included vacuum cleaner sales, postal worker, and laborer (Tr. 35).
Applications for Benefits
Plaintiff protectively filed applications for a period of disability, disability insurance benefits (DIB), and Supplemental Security Income (SSI) on September 30, 2009, alleging she became disabled on September 23, 2006 (Tr. 93, 225). She alleged disability due to back pain, panic attacks, anxiety, and depression (Tr. 268). Plaintiff later amended her alleged onset date to December 30, 2008 (Tr. 60). Plaintiff's applications were denied initially and on reconsideration (Tr. 86-89). An administrative hearing was held on February 15, 2011 (Tr. 30-55). Subsequently, the Administrative Law Judge ("ALJ") issued an unfavorable decision on February 25, 2011 (Tr. 90-106). Plaintiff filed a subsequent Title II application on March 21, 2011. The Appeals Council granted Plaintiff's request for review of the original decision of the ALJ and remanded the case to the ALJ for further proceedings to assess specifically how much weight the claimant could lift, both frequently, and occasionally; to correct the erroneous date of birth in the record; to give furhter consideration to claimant's maximum residual functional capacity, and provide appropriate retaionale with specific references to evidence of record to support the assessed limitiation; to obtain supplemental evidence from a vocational expert re: transferability of skills and vocational adjustment, to identify examples of appropriated jobs in the national exonomy and to identify and resolve any conflicts between the occupational evidence provided by the VE and information in the Dictionary of Occupational Titles (DOT) and it's companion publication, the Selected Characteristics of Occupations (Tr. 108-109). Both the remanded case and the subsequent Title II application were consolidated and were both before the ALJ in the second hearing (Tr. 11).
The ALJ held the second hearing on August 29, 2012 (Tr. 56-85), and denied Plaintiff's claim on October 5, 2012 (Tr. 8-28). The Appeals Council denied Plaintiff's request for review on November 15, 2013 (Tr. 1-5). This case is now ripe for review pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3).
Plaintiff alleged she could not perform any substantial gainful activity beginning on December 30, 2008 (the amended onset date) due to back pain, panic attacks, anxiety, and depression (Tr. 60). Plaintiff's date last insured for title II purposes is September 30, 2011 (Tr. 251).
Standard of Review - Findings of the ALJ
To establish disability under the Social Security Act, a claimant must establish he/she is unable to engage in any substantial gainful activity due to the existence of "a medically determinable physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 423(d)(1)(A); Abbot v. Sullivan, 905 F.2d 918, 923 (6th Cir. 1990). The Commissioner employs a five-step sequential evaluation to determine whether an adult claimant is disabled. 20 C.F.R. § 404.1520. The following five issues are addressed in order: (1) if the claimant is engaging in substantial gainful activity he/she is not disabled; (2) if the claimant does not have a severe impairment he/she is not disabled; (3) if the claimant's impairment meets or equals a listed impairment he/she is disabled; (4) if the claimant is capable of returning to work he/she has done in the past he/she is not disabled; (5) if the claimant can do other work that exists in significant numbers in the regional or the national economy he/she is not disabled. Id . If the ALJ makes a dispositive finding at any step, the inquiry ends without proceeding to the next step. 20 C.F.R. § 404.1520; Skinner v. Secretary of Health & Human Servs ., 902 F.2d 447, 449-50 (6th Cir. 1990). Once, however, the claimant makes a prima facie case that he/she cannot return to his/her former occupation, the burden shifts to the Commissioner to show that there is work in the national economy which he/she can perform considering his/her age, education and work experience. Richardson v. Secretary, Health and Human Servs., 735 F.2d 962, 964 (6th Cir. 1984); Noe v. Weinberger, 512 F.2d 588, 595 (6th Cir. 1975).
The standard of judicial review by this Court is whether the findings of the Commissioner are supported by substantial evidence. Richardson v. Perales, 402 U.S. 389, 28 L.Ed.2d 842, 92 S.Ct. 1420 (1971); Landsaw v. Secretary, Health and Human Servs ., 803 F.2d 211, 213 (6th Cir. 1986). Even if there is evidence on the other side, if there is evidence to support the Commissioner's findings they must be affirmed. Ross v. Richardson, 440 F.2d 690, 691 (6th Cir. 1971). The Court may not reweigh the evidence and substitute its own judgment for that of the Commissioner merely because substantial evidence exists in the record to support a different conclusion. The substantial evidence standard allows considerable latitude to administrative decision makers. It presupposes there is a zone of choice within which the decision makers can go either way, without interference by the courts. Felisky v. Bowen, 35 F.3d 1027 (6th Cir. 1994) (citing Mullen v. Bowen, 800 F.2d 535, 548 (6th Cir. 1986)); Crisp v. Secretary, Health and Human Servs., 790 F.2d 450 n. 4 (6th Cir. 1986).
After considering the entire record, the ALJ made the following findings:
1. The claimant meets the insured status requirements of the Social Security Act through September 30, 2011.
2. The claimant has not engaged in substantial gainful activity since December 30, 2008, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq. ).
3. The claimant has the following severe impairments: Degenerative disc disease of the cervical and lumbar spine; osteoarthritis of the left knee; chronic obstructive pulmonary disease/bronchitis; a depressive disorder; and anxiety disorder (20 CFR 404.1520(c) and 416.920(c)).
4. The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), ...