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Hubbard v. Commissioner of Social Security

May 21, 2010

KIM HUBBARD, PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: George H. Lowe, United States Magistrate Judge

REPORT-RECOMMENDATION*fn1

I. BACKGROUND

A. Procedural History

On May 10, 2006, pro se Plaintiff Kim Hubbard applied for disability insurance benefits ("DIB") and supplemental security income ("SSI"). Administrative Transcript ("T") 41, 50-54, 181. On July 11, 2006, her applications were denied by the Social Security Administration. T 20, 42-46. On July 9, 2008, a hearing was held before an Administrative Law Judge ("ALJ"). T 195-206. On August 18, 2008, the ALJ determined that Plaintiff was not disabled. T 17-26.

Plaintiff appealed to the Appeals Council. On November 14, 2008, the Appeals Council denied Plaintiff's request for review. T 8-10. On January 14, 2009, Plaintiff commenced this action.

On February 13, 2009, the Appeals Council vacated its earlier decision when the Appeals Council learned that some evidence in the record pertained to an individual other than Plaintiff. T 4. On June 22, 2009, the Appeals Council issued a final decision, adopting the ALJ's finding that Plaintiff was not disabled. T 210-11.

B. The Contentions

Plaintiff requests that the Court review MRI reports, notes from Gregory Shankman, M.D. (treating orthopaedic surgeon), and notes from Elaine Leach (massage therapist), which she claims will show that she is disabled. Dkt. No. 19.

Defendant disagrees, and argues that the decision finding Plaintiff not disabled should be affirmed. Dkt. No. 22.

II. APPLICABLE LAW

A. Standard for Benefits

To be considered disabled, a plaintiff seeking disability insurance benefits or supplemental security income benefits must establish that he is "unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 1382c(a)(3)(A). In addition, the plaintiff's physical or mental impairment or impairments [must be] of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.

42 U.S.C. § 1382c(a)(3)(B).

Acting pursuant to its statutory rulemaking authority (42 U.S.C. §§ 405(a), 1383(d)(1)), the Social Security Administration ("SSA") has promulgated regulations establishing a five-step sequential evaluation process to determine disability. 20 C.F.R. § 404.1520. "If at any step a finding of disability or non-disability can be made, the SSA will not review the claim further." Barnhart v. Thomas, 540 U.S. 20, 24 (2003).

At the first step, the agency will find non-disability unless the claimant shows that he is not working at a "substantial gainful activity." [20 C.F.R.] §§ 404.1520(b), 416.920(b). At step two, the SSA will find non-disability unless the claimant shows that he has a "severe impairment," defined as "any impairment or combination of impairments which significantly limits [the claimant's] physical or mental ability to do basic work activities." [20 C.F.R.] §§ 404.1520(c), 416.920(c). At step three, the agency determines whether the impairment which enabled the claimant to survive step two is on the list of impairments presumed severe enough to render one disabled; if so, the claimant qualifies. [20 C.F.R. §§] 404.1520(d), 416.920(d). If the claimant's impairment is not on the list, the inquiry proceeds to step four, at which the SSA assesses whether the claimant can do his previous work; unless he shows that he cannot, he is determined not to be disabled.[] If the claimant survives the fourth stage, the fifth, and final, step requires the SSA to consider so-called "vocational factors" (the claimant's age, education, ...


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