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Jean Whitley v. Michael J. Astrue

February 15, 2011

JEAN WHITLEY, PLAINTIFF,
v.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



ORDER

Plaintiff seeks judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying applications for Disability Income Benefits ("DIB") and Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act ("Act"), respectively. For the reasons discussed below, the court grants plaintiff's motion for summary judgment or remand, denies the Commissioner's cross-motion for summary judgment, and remands this matter under sentence four of 42 U.S.C. § 405(g) for further proceedings consistent with this opinion.

I. BACKGROUND

Plaintiff filed an application for disability benefits on February 1, 2006, alleging a

disability onset date of August 17, 2004. Administrative Record ("AR") 74-83, 111. Her application was denied initially and upon reconsideration. Id. at 55-58. A hearing was held on August 19, 2008 before Administrative Law Judge ("ALJ") L. Kalie Fong. Id. at 25-52. In a decision dated December 30, 2008, the ALJ determined plaintiff was not disabled.*fn1 Id. at 16-24.

The ALJ made the following specific findings:

1. The claimant meets the insured status requirements of the Social Security Act through December 31, 2009.

2. The claimant has not engaged in substantial gainful activity since August 17, 2004, the alleged onset date (20 CFR 404.1571 et seq., and 416.971 et seq.)

3. The claimant has the following severe impairments: status post microdiskectomy and chronic low back pain(20 CFR 404.1521 et seq. and 416.921 et seq. ...

4. The claimant does not have an impairment or combination of impairments that meets of medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1525 and 404.1526, 416.925 and 416.926). ...

5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except occasional climbing, balancing, stooping, kneeling, crouching, and crawling; and avoid concentrated exposure to extreme heat and cold. ...

6. The claimant is capable of performing past relevant work as a receptionist. 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). ...

7. The claimant has not been under a disability, as defined in the Social Security Act, from August 17, 2004 through the date of this decision (20 CFR 404.1520(f) and 416.920(f)).

Id. at 18-24.

Plaintiff requested that the Appeals Council review the ALJ's decision. However, on May 13, 2009, the Appeals Council denied review, leaving the ALJ's decision as the final decision of ...


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