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McCarty v. Astrue

November 13, 2008

DEBORAH K. MCCARTY, PLAINTIFF
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT



The opinion of the court was delivered by: Judge Muir

(Complaint Filed 3/7/08)

ORDER

THE BACKGROUND OF THIS ORDER IS AS FOLLOWS:

The above-captioned action is one seeking review of a decision of the Commissioner of Social Security ("Commissioner") denying Plaintiff Deborah K. McCarty's claim for social security disability insurance benefits and supplemental security income benefits.

Disability insurance benefits (DIB) are paid to an individual if that individual is disabled and is "insured," that is, the individual has worked long enough and paid social security taxes to qualify therefor. In order to be eligible for disability insurance benefits, an individual must be disabled and also insured. The last date that a claimant meets the requirements of being insured is commonly referred to as the "date last insured." It is undisputed that McCarty meets the insured status requirements of the Social Security Act through December 31, 2010. In order to establish entitlement to disability insurance benefits McCarty must establish a disability on or before that date. 42 U.S.C. § 423(a)(1)(A), ()(1)(B); 20 C.F.R. §404.131(a)(2008); see Matullo v. Bowen, 926 F.2d 240, 244 (3d Cir. 1990). Supplemental security income (SSI) is a federal income supplement program funded by general tax revenues (not social security taxes). It is designed to help aged, blind and disabled individuals who have little or no income. Insured status is irrelevant in determining a claimant's eligibility for supplemental security income benefits.

McCarty, who was born on February 25, 1958, claims that she became disabled on April 19, 2006, because of arthritis, osteoporosis, Turner's Syndrome, high blood pressure, morbid obesity, depression, restless leg syndrome and diabetes. Tr. 85 and 90.*fn1 At the time of the onset of her alleged disability, Taylor was employed as a receptionist or appointment clerk for H&R Block Tax Services, 202 N. 3rd Street, Clearfield, Pennsylvania. Tr. 77, 91, 97, and 101. From January through April, 2006, McCarty worked at H&R Block 40 hours per week and from May through December 2006, she worked 6 hours per week. Tr. 91, 101 She also had prior employment as a cashier and a group home aide. Tr. 97.

On April 24, 2006, McCarty protectively filed applications for disability insurance benefits and supplemental security income benefits.*fn2 After her claims were denied initially, a hearing was held on August 7, 2007, before an administrative law judge. Tr. 284-313. On August 20, 2007, the administrative law judge issued a decision denying McCarty's applications for benefits. Tr. 13-24. McCarty filed a request for review of the decision with the Appeals Council of the Social Security Administration. Tr. 9 and 283. On January 23, 2008, the Appeals Council concluded that there was no basis upon which to grant McCarty's request for review. Tr. 5-7. Thus, the administrative law judge's decision stood as the final decision of the Commissioner.

On March 7, 2008, McCarty filed a complaint in this court requesting that we reverse the decision of the Commissioner denying her disability benefits. The Clerk of Court assigned responsibility for this case to Judge Caputo but referred it to Magistrate Judge Blewitt for preliminary consideration.

The Commissioner filed an answer to the complaint and a copy of the administrative record on April 16, 2008. By order of September 12, 2008, the case was reassigned to the undersigned judge for disposition. After being granted two extensions of time, McCarty filed her brief on August 7, 2008, and the Commissioner after being granted an extension of time filed his brief on October 7, 2008. The appeal became ripe for disposition on October 27, 2008, when McCarty elected not to file a reply brief.

When considering a social security appeal, we have plenary review of all legal issues decided by the Commissioner. See Poulos v. Commissioner of Social Security, 474 F.3d 88, 91 (3d Cir. 2007); Schaudeck v. Commissioner of Social Sec. Admin., 181 F.3d 429, 431 (3d Cir. 1999); Krysztoforski v. Chater, 55 F.3d 857, 858 (3d Cir. 1995). However, our review of the Commissioner's findings of fact pursuant to 42 U.S.C. § 405(g) is to determine whether those findings are supported by "substantial evidence." Id.; Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988); Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993). Factual findings which are supported by substantial evidence must be upheld. 42 U.S.C. §405(g); Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001)("Where the ALJ's findings of fact are supported by substantial evidence, we are bound by those findings, even if we would have decided the factual inquiry differently."); Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981)("Findings of fact by the Secretary must be accepted as conclusive by a reviewing court if supported by substantial evidence."); Keefe v. Shalala, 71 F.3d 1060, 1062 (2d Cir. 1995); Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001); Martin v. Sullivan, 894 F.2d 1520, 1529 & 1529 n.11 (11th Cir. 1990).

Substantial evidence "does not mean a large or considerable amount of evidence, but 'rather such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Pierce v. Underwood, 487 U.S. 552, 565 (1988)(quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)); Johnson v. Commissioner of Social Security, 529 F.3d 198, 200 (3d Cir. 2008); Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999). Substantial evidence has been described as more than a mere scintilla of evidence but less than a preponderance. Brown, 845 F.2d at 1213. In an adequately developed factual record substantial evidence may be "something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence." Consolo v. Federal Maritime Commission, 383 U.S. 607, 620 (1966).

Substantial evidence exists only "in relationship to all the other evidence in the record," Cotter, 642 F.2d at 706, and "must take into account whatever in the record fairly detracts from its weight." Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 488 (1971). A single piece of evidence is not substantial evidence if the Commissioner ignores countervailing evidence or fails to resolve a conflict created by the evidence. Mason, 994 F.2d at 1064. The Commissioner must indicate which evidence was accepted, which evidence was rejected, and the reasons for rejecting certain evidence. Johnson, 529 F.3d at 203; Cotter, 642 F.2d at 706-707. Therefore, a court reviewing the decision of the Commissioner must scrutinize the record as a whole. Smith v. Califano, 637 F.2d 968, 970 (3d Cir. 1981); Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d Cir. 1979).

To receive disability benefits, a plaintiff must demonstrate an "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." 42 U.S.C. § 432(d)(1)(A). Furthermore,

[a]n 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 (with respect to any individual), "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.

42 U.S.C. § 423(d)(2)(A).

The Commissioner utilizes a five-step process in evaluating disability insurance and supplemental security income claims. See 20 C.F.R. §404.1520 and 20 C.F.R. § 416.920; Poulos, 474 F.3d at 91-92. This process requires the Commissioner to consider, in sequence, whether a claimant (1) engaged in substantial gainful activity after the onset of the alleged disability,*fn3 (2) has an impairment that is severe or a combination of impairments that is severe,*fn4 (3) has an impairment or combination of impairments that meets or equals the requirements of a listed impairment,*fn5 (4) has the residual functional capacity to return to his or her past work and (5) if not, whether he or she can perform other work in the national economy. Id. As part of step four the administrative law judge must determine the claimant's residual functional capacity. Id.*fn6

Residual functional capacity is the individual's maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis. See Social Security Ruling 96-8p, 61 Fed. Reg. 34475 (July 2, 1996). The residual functional capacity assessment must include a discussion of the individual's abilities. Id; 20 C.F.R. § 404.1545; Hartranft, 181 F.3d at 359 n.1 ("'Residual functional capacity' is defined as that which an individual is still able to do despite the limitations caused by his or her impairment(s).").

In this case the administrative law judge at step one found that McCarty had not engaged in substantial gainful activity since April 19, 2006. The administrative law judge noted that McCarty "worked after April 19, 2006, as a receptionist, but for wages earned which did not qualify as substantial gainful employment[.]" Tr. 14.

At step two, the administrative law judge found that McCarty suffered from the following severe impairments: arthritis, osteoporosis, non-insulin-dependent diabetes mellitus, Turner's Syndrome,*fn7 hypertension, obesity and a depressed mood. Tr. 15. The administrative law judge also found that McCarty suffered from obstructive sleep apnea, restless leg syndrome, and vertigo but that those impairments were not severe. Tr. 16.

At step three, the administrative law judge found that McCarty's impairments did not individually or in combination meet or equal a listed impairment. Tr. 16.

At step four, the administrative law judge, after considering all of McCarty's medically determinable impairments both severe and non-severe, found that McCarty has the residual functional capacity to perform the exertional demands of sedentary work, with certain modifications. Sedentary work involves lifting no more than ten pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. 20 C.F.R. §§ 404.1567(a), 416.967(a). Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Id. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met. Id.

The administrative law judge concluded that McCarty could not lift more than 10 pounds and sit more than 6 hours during an 8 hour workday. Tr, 21. McCarty was limited to occasional walking and standing and could not balance, stoop, kneel, crouch, crawl or climb. Tr. 21. Furthermore, McCarty was to be afforded the option to sit and stand during the workday every 30 minutes or so and was limited to low stress work activity. Tr. 21. Based on the testimony of vocational expert a who took into account the above exertional limitations, the administrative law judge found that McCarty had the ability to perform her past work as a receptionist or appointment clerk. Consequently, McCarty was not disabled and it was unnecessary to consider step five of the sequential evaluation process.

At this point we will review McCarty's employment history, her educational background, her daily activities and the medical evidence relevant to McCarty's disability claim.

From 1992 through 1998, McCarty worked as a cashier for Kentucky Fried Chicken and Hardee's. Tr. 97. When answering a written questionnaire which was submitted to the Social Security Administration, McCarty stated that she used a cash register and a deep frier and that she "just handed the customers there (sic) orders." Tr. 99. McCarty indicated that she worked 5 hours per day, 5 day per week and that during a 5 hour workday she would walk, stand, sit, stoop, crouch, handle, grab or grasp big objects, reach, and write, type or handle small objects. 99.*fn8 In the questionnaire she also stated that the heaviest weight she lifted was 10 pounds and that she frequently lifted 5 pounds. Tr. 99. "Frequently" was defined as meaning from 1/3 to 2/3 of the workday.

From January, 1999 through December 2006, McCarty worked as a receptionist for H&R Block. Tr. 97 and 101. When answering a written questionnaire which was submitted to the Social Security Administration, McCarty stated that she would greet people, answer phones and schedule appointments. Tr. 101. McCarty stated she "used machines, toosl or equipment," she did not "use technical knowledge or skill," and she did "writing, complete reports, or perform [similar] duties." Tr. 101. McCarty indicated that she worked 8 hours per day, 5 day per week and that during an 8 hour workday she would walk, stand, sit and reach, and write, type or handle small objects. Tr. 101. In the questionnaire she also stated that the heaviest weight she lifted was 5 pounds and that she frequently lifted 5 pounds. Furthermore, as earlier noted in this order McCarty stated that from May through December 2006, she only worked 6 hours per week at H&R Block. Tr. 101.*fn9

In addition to her work for H&R Block, McCarty from 1999 through 2000 worked as a cashier for Rite Aid and Giant Stores and during 2001 she worked as an aide at Raystown Developmental Services, a mentally retarded group home. Tr. 97 and 292

With regard to the cashier positions at Rite Aid and Giant Stores, McCarty stated that she used a cash register and "packed customers bags and put [the bags] in grocery cart[s]." Tr. 100. In the written questionnaire, McCarty stated that she "used machines, tools or equipment," she did "use technical knowledge or skill," and she did "writing, complete reports, or perform [similar] duties." Tr. 100. McCarty indicated that she worked 5 hours per day, 5 day per week and that during a 5 hour workday she would walk, stand, crouch, handle and grab big objects, reach, and write, type or handle small objects. Tr. 100. In the questionnaire she also stated that the heaviest weight she lifted was 10 pounds and she frequently lifted 10 pounds.

With regard to the aide position at the mentally retarded group home, McCarty stated she "used machines, tools or equipment," she did not "use technical knowledge or skill," and she did "writing, complete reports, or perform [similar] duties." Tr. 98. McCarty indicated that she worked 8 hours per day, 5 days per week and that during an 8 hour workday she would walk, stand, sit, stoop, crouch, handle, grab or grasp big objects, reach, and write, type or handle small objects. Tr. 98. In the questionnaire she also stated that the heaviest weight she lifted was 10 pounds and was not sure how much she frequently lifted.

Tr. 98. McCarty stated that she used a dishwasher and a washer and dryer and had to have knowledge of CPR and first aid. Tr. 98.

At the hearing before the administrative law judge on August 7, 2007, McCarty testified that she could not work because of osteoporosis, sleep apnea, and back problems, and because she did not feel like doing anything because of depression. Tr. 295. McCarty also testified that she had never seen a psychiatrist or counselor, and was taking Prozac, which made her feel better and happier. Tr. 293.

McCarty stated that she has a driver's license and that she drives to town "maybe two times a week." Tr. 289. McCarty testified that she has a high school education and does not have difficulty reading. 289-290. McCarty's daily activities include watching television in the "morning and afternoon and evening." Tr. 290. McCarty told the administrative law judge that she was able to watch a television program and then tell someone else what occurred during the program. Tr. 290.

McCarty testified that she is approximately 5 feet tall and weighs 281 pounds, that she does housework, including washing the dishes and doing the laundry, that she can walk 100 yards without taking a break, and even with a walker she could not go much farther. Tr. 290 and ...


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