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Tomblinson v. Astrue

April 29, 2010

TERRY TOMBLINSON, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



The opinion of the court was delivered by: Marc L. Goldman United States Magistrate Judge

MEMORANDUM OPINION AND ORDER

Plaintiff Terry Tomblinson ("Plaintiff") seeks judicial review of the Commissioner's final decision denying her application for disability insurance benefits ("DIB") pursuant to Title II of the Social Security Act. For the reasons stated below, the Commissioner's decision is reversed, and this action is remanded for further proceedings.

I. Factual and Procedural Background

Plaintiff was born on October 17, 1959. (Administrative Record ("AR") at 16). She has a high school education and relevant work experience as a forklift operator. (AR at 16).

Plaintiff filed an application for DIB on May 26, 2006, alleging disability beginning on February 19, 1999, due to neck and shoulder injuries, headaches, wrist numbness, and an inability to sit or stand for long periods. (AR at 12, 14, 35, 95). Plaintiff's application was denied at the initial and reconsideration levels of review. (AR at 10).

An administrative hearing was held on March 4, 2009, before Administrative Law Judge Thomas J. Gaye ("the ALJ"). (AR at 27-58). Plaintiff was not represented by counsel. Plaintiff and a vocational expert testified at the hearing. (AR at 27-58). On April 27, 2009, the ALJ issued a decision finding that Plaintiff was not under a disability, as defined in the Social Security Act. (AR at 10-17).

The ALJ evaluated Plaintiff's claim of disability using the five-step sequential evaluation process for disability required under federal regulations. See 20 C.F.R. § 404.1520. The ALJ found that Plaintiff: (1) did not engage in substantial gainful activity from her alleged onset date of February 19, 1999, through her date last insured of December 31, 2004 (step 1); (2) suffers from the severe impairments of chronic neck pain with occipital/cervogenic headaches, status post anterior cervical discectomy fusion, and right shoulder pain (step 2); (3) does not have any impairments that meet or equal a listed impairment (step 3); (4) has the residual functional capacity ("RFC") to perform a range of sedentary work,*fn1 as defined in C.F.R. § 404.1567(a); (5) is unable to perform her past relevant work; but (6) is capable of performing other work that exists in significant numbers in the economy, including work as an information clerk, order clerk, and general office clerk. (AR at 12-13, 17). Therefore, the ALJ concluded that Plaintiff was not disabled at any time from her alleged onset date through her date last insured. (AR at 17).

On September 2, 2009, the Appeals Council denied review and the ALJ's decision became the final decision of the Commissioner. (AR at 1-3). Plaintiff then commenced this action for judicial review.

The parties filed a joint statement of disputed issues on April 19, 2010. Plaintiff raises the following arguments:

1. The ALJ improperly rejected the opinion of an examining physician. (Joint Stipulation at 3-4, 6-7).

2. The ALJ failed to properly assess Plaintiff's residual functional capacity. (Joint Stipulation at 7-10).

3. The ALJ failed to pose a complete hypothetical question to the vocational expert. (Joint Stipulation at 10-13).

4. The ALJ erred in finding that Plaintiff was capable of performing the jobs of order clerk and general office clerk. (Joint Stipulation at 13-14, 16-17).

Plaintiff seeks remand for a payment of benefits or, in the alternative, remand for a new administrative hearing and further development of the record. (Joint Stipulation at 17). The Commissioner requests that the ALJ's Decision be affirmed. (Joint Stipulation at ...


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