The opinion of the court was delivered by: Judge Muir
(Complaint Filed 6/27/08)
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 Kim Ann Blank's claim for social security disability insurance benefits.
Disability insurance benefits 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. The last date that a claimant meets the requirements of being insured is commonly referred to as the "date last insured." The parties are in agreement that December 31, 1997, was the date that Blank was last insured. In order to establish entitlement to disability insurance benefits Blank must establish a disability on or before that date. 42 U.S.C. § 423(a)(1)(A), (c)(1)(B); 20 C.F.R. §404.131(a)(2008); see Matullo v. Bowen, 926 F.2d 240, 244 (3d Cir. 1990).
Blank, who was born on February 15, 1962, claims that she became disabled on June 1, 1987, because of a 100% hearing loss in the right ear, a 30% hearing loss in the left ear, severe arthritis in the knees and chronic back problems. Tr. 27, 43, 100 and 103.*fn1 At the time of the onset of her alleged disability, Blank was employed 40 hours per week as a cook at a nursing home. Tr. 44, 80 and 104. After working at the nursing home, Blank was employed as a cook at a grocery store. Tr. 80 and 104. Blank stopped working on January 6, 1993. Tr. 104.
On August 19, 2005, Blank protectively filed an application for disability insurance benefits. Tr. 40-42 and 100.*fn2 After her claim was denied initially, a hearing was held on September 25, 2007, before an administrative law judge. Tr. 216-226. On January 16, 2008, the administrative law judge issued a decision denying Blank's application for benefits. Tr. 13-18. Blank filed a request for review of the decision with the Appeals Council of the Social Security Administration. Tr. 7. On May 2, 2008, the Appeals Council concluded that there was no basis upon which to grant Blank's request for review. Tr. 4-6. Thus, the administrative law judge's decision stood as the final decision of the Commissioner.
On June 27, 2008, Blank 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 the undersigned but referred it to Magistrate Judge Mannion for preliminary consideration. On June 14, 2008, we retrieved the file for disposition in chambers without reference to Magistrate Judge Mannion.
The Commissioner filed an answer to the complaint and a copy of the administrative record on September 3, 2008. After being granted an extension of time, Blank filed her brief on December 16, 2008, and the Commissioner filed his brief on January 20, 2009. The appeal*fn3 became ripe for disposition on February 6, 2009, when Blank 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, the 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 claims. See 20 C.F.R. §404.1520; Poulos, 474 F.3d at 91-92. This process requires the Commissioner to consider, in sequence, whether a claimant (1) is engaging in substantial gainful activity,*fn4 (2) has an impairment that is severe or a combination of impairments that is severe,*fn5 (3) has an impairment or combination of impairments that meets or equals the requirements of a listed impairment,*fn6 (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.*fn7
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 Blank had engaged in substantial gainful activity from her alleged onset date of June 1, 1987,*fn8 through 1992. However, the administrative law judge found that Blank has not engaged in substantial gainful activity since January, 1993. Tr. 15.
At step two, the administrative law judge found that Blank had the following medically determinable impairments: reduced hearing worse on right than left with history of frequent ear infections and left knee strain with history of arthroscopic surgery. The administrative law judge, however, found that Blank did not have an impairment or combination of impairments that was severe. Tr. 15.
An impairment or combination of impairments is "severe" within the meaning of the social security regulations if it significantly limits an individual's ability to perform basic work activities. 20 C.F.R. § 404.1521; Barnhart v. Thomas, 540 U.S. 20, 24 (2003); Ramirez v. Barnhart, 372 F.3d 546, 550 (3d Cir. ...