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Kemerer v. Commissioner of Social Security

August 6, 2008

DARLENE J. KEMERER, PLAINTIFF
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Mitchell, M.J.

MEMORANDUM AND ORDER

Presently before the Court for disposition are cross motions for summary judgment. For the reasons set forth below, the plaintiff's Motion for Summary Judgment (Docket No.11) will be denied; the defendant's Motion for Summary Judgment (Docket No.14) will be granted; the decision of the Commissioner of Social Security will be affirmed and judgment will be entered accordingly.

On February 6, 2008, Darlene J. Kemerer, by her counsel, filed a complaint pursuant to Sections 205(g) and 1631(c)(3) of the Social Security Act, as amended, 42 U.S.C. §§405(g) and 1383(c)(3) for review of the Commissioner's final determination disallowing her claim for a period of disability or for disability insurance benefits and supplemental security income benefits under Sections 216(i) and 223 of the Social Security Act, as amended, 42 U.S.C. §§416(i) and 423 and 1381 cf.

The plaintiff filed an application for disability and supplemental security income benefits on February 18, 2005 (R.56-58, 378-381). Benefits were denied on September 12, 2005 (R30-34). On November 9, 2005, the plaintiff requested a hearing (R.37), and pursuant to that request a hearing was conducted on August 22, 2006,(R.388-444). In a decision filed on January 26, 2007, an Administrative Law Judge denied benefits (R.11-28). On March 1, 2007, the plaintiff requested reconsideration of this determination (R.10A), and upon reconsideration, and in a decision dated January 11, 2008, the Appeals Council affirmed the prior decision (R.6-8). The instant complaint was filed on February 6, 2008.

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/her burden of demonstrating that he/she 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 hearing held on August 22, 2006 (R.388-444), the plaintiff appeared with counsel (R.390), and testified that she was forty-seven years old (R.392); that she graduated from high school and completed three and a half years of college (R.392-393); that she is married and her husband receives disability benefits (R.395); that she worked as a school bus driver and housekeeper (R.396, 415) and that she received unemployment benefits until February 2004 (R.395).

The plaintiff also testified that she is being treated for depression, diabetes, fibromyalgia and diabetic neuropathy (R.397, 399, 400); that she takes medication for her conditions which make her sleepy and that she sleeps for about eighteen hours a day (R.403, 406, 407, 421-423); that she cannot walk a block and can lift about five pounds (R.410, 413); that she does not leave her home (R.411) and that she requires help attending to her personal needs (R.412, 418).

The plaintiff's husband testified (R.428-439) that his wife had been an active person (R.428-429); that she does very little around the house; that he helps with household chores (R.430-433) and that the plaintiff sleeps a lot (R.430).

At the hearing a vocational expert was called upon to testify (R.439-443). He characterized the plaintiff's prior work as semiskilled medium work with no transferable skills (R.440). The witness was asked to assume an individual with the plaintiff's education, training and prior work experience who was limited to light work activity and testified that there were a large number of positions such an individual could perform (R.440-441). The same was true if that individual was limited to sedentary work (R.441-442). However, if there were a number of absences, he testified such an individual could not be employed (R.442).

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 is 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 national economy" means work which exists in significant numbers either in the region where such individual lives or in several regions of the country.

A "physical or mental impairment" is "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. Section 423(d)(3). These provisions are also applied for purposes of establishing a period of disability. 42 U.S.C. Section 416(i)(2)(A).

It is provided in 42 U.S.C. Section 1382c(a)(3) that:

(A)... an individual shall be considered to be disabled for purposes of this subchapter if 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.

(B) For purposes of subparagraph (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 ...


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