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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE AT CHATTANOOGA JOHANNA DETERDING, ) ) Plaintiff, ) ) v. ) Case No:1:11-CV-13 ) Collier/Carter MICHAEL S. ASTRUE, ) Commissioner of Social Security, ) ) Defendant. ) REPORT AND RECOMMENDATION 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. 1 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 judgment on the pleadings (Doc. 11) and defendant=s motion for summary judgment (Doc. 17 ). For the reasons stated herein, I RECOMMENDED the Commissioner=s decision be REVERSED and REMANDED pursuant to Sentence Four of 42 U.S.C. ' 405(g). 1Since the relevant DIB and SSI regulations cited herein are virtually identical, citations will only be made to the DIB regulations, found at 20 C.F.R. '' 404.1500-404.1599. The parallel SSI regulations are found at 20 C.F.R. '' 416.900-416.999, corresponding to the last two digits of the DIB cites (e.g., 20 C.F.R. ' 404.1545 corresponds with 20 C.F.R. ' 416.945). 1 Case 1:11-cv-00013-CLC-WBC Document 19 Filed 02/02/12 Page 1 of 25 PageID #: <pageID> + Plaintiff's Age, Education, and Past Work Experience Plaintiff had a high-school education, along with three years of college, and was 40 years old at the time of her February 2009 hearing (Tr. 25) Plaintiff testified she was in a car accident in September 2007, but suffered no permanent injuries (Tr. 26). Her primary complaint was facial pain, but she also had problems with her neck and left hand (Tr. 26-27). She said her pain medication caused her to be constipated, groggy, and sleepy, and it was mainly the pain that kept her from returning to work (Tr. 26-27). The facial pain started after a root canal where chemicals burned a nerve in her tooth (Tr. 28). She said she was fired from two jobs after the root canal because she could not maintain a schedule and had trouble talking due to the pain (Tr. 28-29). Plaintiff said she relieved her pain by taking medication along with napping for longer than 30 minutes (Tr. 29). Applications for Benefits Plaintiff applied for Social Security Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI) in April 2007, alleging disability since February 28, 2007,2 due to a A[c]hemically damaged nerve in [her] mouth@ (Tr. 9, 85-93, 101). After her applications applications were denied initially and upon reconsideration, Plaintiff requested an administrative hearing (Tr. 58-63, 67-74). The administrative law judge (ALJ) held a hearing on February 11, 2009, at which Plaintiff appeared with counsel and testified, along with a vocational expert (Tr. 22-32). In a decision dated July 2, 2009, the ALJ found that Plaintiff was not disabled because she could perform her past relevant work despite the limitations caused by her impairments (Tr. 2 Through her representative=s pre-hearing memorandum, Plaintiff later amended her alleged onset date of disability to November 1, 2007 (Tr. 9, 96). 2 Case 1:11-cv-00013-CLC-WBC Document 19 Filed 02/02/12 Page 2 of 25 PageID #: <pageID> 9-21). On November 23, 2010, the ALJ=s decision became the Commissioner=s final decision when the Appeals Council denied Plaintiff=s request for review (Tr. 1). See 20 C.F.R. '_ 404.955, 404.981.3 Under 42 U.S.C. __ 405(g) and 1383(c)(3), Plaintiff initiated this civil action action for judicial review of the Commissioner=s final decision. Plaintiff seeks judicial review under 42 U.S.C. ' 405(g). Standard of Review - Findings of the ALJ Disability is defined as the inability to engage in any substantial gainful activity by reason of a medically determinable physical or mental impairment which has lasted or can be expected to last for a continuous period of not less than 12 months. 42 U.S.C. '423(d)(1)(A). The burden of proof in a claim for Social Security benefits is upon the claimant to show disability. Barnes v. Secretary, Health and Human Servs., 743 F.2d 448, 449 (6th Cir. 1984); Allen v. Califano, 613 F.2d 139, 145 (6th Cir. 1980); Hephner v. Mathews, 574 F.2d 359, 361 (6th Cir. 1978). Once, however, the plaintiff makes a prima facie case that he/she cannot return to his/her former occupation, the burden shifts to the Commissioner to show 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 3 The regulations governing DIB and SSI are codified independently, but those relevant to this case are virtually identical. Therefore, we cite solely to the regulations governing DIB, found at 20 C.F.R. '' 404.900-.999 and 20 C.F.R. '' 404.1500-.1599. The parallel SSI regulations may be found at 20 C.F.R. '' 416.1400-.1499 and 20 C.F.R. '' 416.900-.999. 3 Case 1:11-cv-00013-CLC-WBC Document 19 Filed 02/02/12 Page 3 of 25 PageID #: <pageID> 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. At the same time, Athe substantiality of evidence must take into account whatever in the record fairly detracts from its weight.=@ Garner v. Heckler, 745 F.2d 383, 388 (6th Cir. 1984); Hurst, 753 F.2d at 519 (6th Cir. 1985). The substantial evidence standard allows 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). As the basis of the decision of July 2, 2009 that plaintiff was not disabled, the ALJ made the following findings: 1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2012. 2. The claimant has not engaged in substantial gainful activity since November 1, 2007, the amended alleged onset date of disability (20 CFR 404.1571 et seq., and 416.971 et seq). 3. The claimant has the following Asevere@ impairments: a history of degenerative disc disease of the cervical spine with radiculopathy; a history of facial pain attributable to trigeminal neuralgia; and an adjustment disorder with depressed mood (20 CFR 404.1520(c) and 416.920(c)). 4. Applying the function-by-function analysis required by SSR 96-8p and 20 CFR 404.1545 and 416.945 and after careful consideration of the entire record including all Asevere@ and Anon-severe@ impairments substantiated in the medical and other evidence of record, I find that the 4 Case 1:11-cv-00013-CLC-WBC Document 19 Filed 02/02/12 Page 4 of 25 PageID #: <pageID> claimant has the residual functional capacity to perform sedentary work, with the ability to lift/carry up to 10 pounds and stand and/or walk up to 1-2 hours and/or sit 6-8 hours during an 8-hour period with normal breaks. She has adequate fine and gross coordination/manipulation of the upper extremities with the ability to push/pull, grasp, reach, finger, handle, and feel. She has adequate ability to balance and maneuver the spine to bend, stoop, kneel, and crouch. She should not climb or crawl. There is adequate ability to see, hear, and speak. There is adequate ability to understand, remember and carry out job instructions, interact appropriately with supervisors, coworkers and the general public (to the minimal extent consistent with competitive work), use judgment, and deal with ordinary changes in a routine work setting. Although somewhat limited by pain and other symptoms, there nevertheless is an adequate ability to perform activities within a schedule, maintain regular attendance, and be punctual with customary tolerances. (20 CFR 404.1567(a)). The claimant should not speak for extended periods of time. 5. The claimant is capable of performing past relevant work as a data entry clerk. This work does not require the performance of work-related activities precluded by the claimant=s residual functional capacity (20 CFR 404.1565 and 416.965). 6. The claimant has not been under a Adisability,@ as defined in the Social Security Act, from November 1, 2007, through the date of this decision (20 CFR 404.1520(a)-(g) and 416.920(a)-(g)).