The opinion of the court was delivered by: Mitchell, M.J.
Presently before the Court for disposition are cross motions for summary judgment. For the reasons that follow, the plaintiff's motion for summary judgment (Docket No.11) will be denied; the defendant's motion for summary judgment (Docket No.13) will be granted; the determination of the Commissioner will be affirmed and judgment entered accordingly.
On December 13, 2007, Janet Winston, by her counsel, filed a complaint pursuant to Section 205(g) of the Social Security Act, as amended, 42 U.S.C. §405(g) for review of the Commissioner's final determination disallowing her claim for a period of disability or for disability insurance benefits under Sections 216(i) and 223 of the Social Security Act, as amended, 42 U.S.C. §§416(i) and 423.
On December 3, 2003, the plaintiff filed an application for disability benefits alleging that she had been disabled since August 1, 1999 (R.70-72A), and benefits were denied on March 3, 2004 (R. 243-246). On April 22, 2004, the plaintiff requested a hearing (R.65, 106-107, 247-248)) and pursuant to that request a hearing was held on August 4, 2005 (R.342-370). In a decision dated November 8, 2005, benefits were denied (R.23-31), and reconsideration was requested (R.11). Upon reconsideration and in a decision dated September 27, 2006, the Appeals council remanded the matter for further consideration (R.239-241). A second hearing was held on January 3, 2007 (R.371-395) and in a decision dated January 31, 2007, benefits were again denied (R.12-22). Upon review and in a decision dated October 17, 2007, the Appeals Council affirmed the prior determination (R.7-9). On December 13, 2007, the instant complaint was filed.
In reviewing an administrative determination of the Commissioner, the question before any court is whether there is substantial evidence in the agency record to support the findings of the Commissioner that the plaintiff failed to sustain his burden of demonstrating that he was disabled within the meaning of the Social Security Act. Richardson v. Perales, 402 U.S. 389 (1971); Adorno v. Shalala, 40 F.3d 43 (3d Cir. 1994).
It is provided in 42 U.S.C. Section 405(g) that:
The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing. The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive....
Substantial evidence is "'more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.' Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)." Richardson v. Perales, supra., at page 401; Plummer v. Apfel, 186 F.3d 422 (3d Cir. 1999).
At the hearings held on August 4, 2005 and January 3, 2007, (R.342-395), the plaintiff appeared with counsel (R.344, 373) and testified that she was born on August 25, 1962 (R.346); that she earned a GED (R.347); that she is a certified nurse's aide (R.367), and that she has not worked since August 1, 1999 (R.347, 375-376).
In addition the plaintiff testified that she is being treated for depression, leg and back pain and asthma (R.349,352, 356, 378, 384); that she takes medication for her asthma and depression (R.351,358); that she had back surgery in February 1999 (R.365); that in June of 2002 she was unable to lift anything, sit more than ten minutes and walk for more than twenty minutes (R.359-360, 386); that her back pain had decreased slightly (R.362); that she had trouble sleeping prior to June, 2002 (R.363-364); that she rests during the day (R.364); that she sleeps poorly and is forgetful (R.380); that she stays at home (R.380, 388); that she has no desire to do anything (R.381); that she is constantly irritable and suffers daily anxiety attacks (R. 382); that she has frequent headaches (R. 382) and that her medication causes drowsiness (R.384).
At the hearings, vocational experts were also called upon to testify. The plaintiff's prior work was categorized as medium to heavy semi-skilled work (R.367, 390). When asked to assume an individual of the claimant's age, education and work history who was restricted to sedentary work. The witnesses testified that she could not return to her prior work as a nurse's aide (R.368, 392). However, the witnesses also testified that there were other jobs such an individual could perform (R.368, 392), but that if she had to rest during the workday, she could not be so employed (R.369, 393).
The issue before the Court for immediate resolution is a determination of whether or not there is substantial evidence to support the findings of the Commissioner that the plaintiff was not disabled within the meaning of the Act.
The term "disability" is defined in 42 U.S.C. Section 423(d)(1)(A) as:
inability 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 12 months....
For purposes of the foregoing, the requirements for a disability determination are provided in 42 U.S.C. Section 423(d)(2)(A):
An individual shall be determined to be under a disability only if his physical or mental impairment or impairments are 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. For purposes of the preceding sentence ... "work which exists in the ...