The opinion of the court was delivered by: Judge Muir
(Complaint Filed 8/19/08)
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 Joanne M. Meckley'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 Meckley was last insured. In order to establish entitlement to disability insurance benefits Meckley 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).
Meckley, who was born on August 2, 1950, claims that she became disabled on November 25, 1996, because of fibromyalgia, degenerative disc disease, and arthritis. Tr. 128.*fn1 Also, in documents filed with the Social Security Administration on July 11, 1999, and September 28, 2000, Meckley claimed that she was seeing a psychiatrist for panic attacks and was suffering from depression. Tr. 130 and 154-157.*fn2 At the time of the onset of her alleged disability which was the last day she worked, Meckley was employed as a home health care aide. Tr. 137 and 142.*fn3 She also had worked as a nurse's aide, waitress and a sewing machine operator. Tr. 137-139. The nurse's aide position is considered medium exertional work*fn4 and the waitress and sewing machine operator positions are considered light exertional work.*fn5 Tr. 837.
On August 14, 1998, Meckley protectively filed an application for disability insurance benefits. Tr. 123.*fn6 After her claim was denied initially and upon reconsideration, a hearing was held on June 28, 2000, before an administrative law judge.
Tr. 565-571. After that hearing the case was remanded to the state agency for further consideration of Meckley's mental disorders. The state agency further developed the record and on May 3, 2001, again denied Meckley's claim. Meckley then requested another administrative hearing. On May 2, 2003, a second hearing was held before an administrative law judge. Tr. 572-604. On May 29, 2003, the administrative law judge issued a decision denying Meckley's application for benefits. Tr. 636-641. Meckley filed a request for review of the decision with the Appeals Council of the Social Security Administration. Tr. 651. On March 16, 2005, the Appeals Council concluded that there was no basis upon which to grant Meckley's request for review. Tr. 652-654.
Meckley then filed an action in this court. Meckley v. Barnhart, Civil No. 3:CV-05-1031 (M.D.Pa.). The case was assigned to the Honorable Christopher C. Conner and referred to Magistrate Judge Blewitt for preliminary consideration. On April 12, 2006, Magistrate Judge Blewitt issued a report rejecting Meckley's claims that the administrative law judge erred in failing to discuss Meckley's alleged impairment of fibromyalgia, finding that Meckley's mental impairments were not severe during the period under review, and finding Meckley not fully credible regarding her limitations. Magistrate Judge Blewitt did find that the administrative law judge's discussion of Meckley's mental residual functional capacity (RFC) was inadequate and recommended that the case be remanded for further proceedings. Specifically, Magistrate Judge Blewitt stated as follows:
Here, it appears that the ALJ focused only on the Plaintiff's physical impairments when determining the Plaintiff's RFC. The ALJ relied on the physical RFC assessment from Dr. Hill and on the Plaintiff's description of the physical demands of her past relevant work in a factory in determining Plaintiff's RFC. While the ALJ did mention earlier in his decision that while the Plaintiff's mental impairments resulted in no "more than slight functional limitations" during the period under review, the ALJ did not discuss what those limitations were.
Tr. 669 (citations to the prior administrative record omitted). No objections were filed to the report of Magistrate Judge Blewitt and on May 11, 2006, Judge Conner adopted the report of Magistrate Judge Blewitt in toto and remanded the case to the Commissioner for further proceedings. Tr. 673.
In accordance with Judge Conner's order adopting Magistrate Judge Blewitt's report and remanding the case for further proceedings, the Appeals Council on December 9, 2006, vacated the Commissioner's decision relating to Meckley's disability insurance benefits claim and remanded the case to the administrative law judge for further proceedings consistent with Judge Conner's order. Tr. 713-714. A hearing was then held before an administrative law judge on March 13, 2007, at which Meckley and a vocational expert testified. Tr. 803-843. Thereafter, on May 23, 2007, the administrative law judge issued a decision finding that Meckley had not proven that her impairments prevented her from performing a range of unskilled sedentary work on or before December 31, 1997. Tr. 844-858. On June 23, 2007, Meckley requested that the Appeals Council review the administrative law judge's decision and on June 20, 2008, the Appeals Council found no basis to grant review. Tr. 605-613. Thus, the administrative law judge's decision of May 23, 2007, stood as the final decision of the Commissioner.
On August 19, 2008, Meckley 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.
The Commissioner filed an answer to the complaint and a copy of the administrative record on October 27, 2008. On December 23, 2008, the Commissioner supplemented the administrative record with a document that was inadvertently omitted from the initial submission. In accordance with the Local Rules of Court, Meckley filed her brief on December 15, 2008, and the Commissioner filed his brief on January 23, 2009. The appeal*fn7 became ripe for disposition on February 9, 2009, when Meckley 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,*fn8 (2) has an impairment that is severe or a combination of impairments that is severe,*fn9 (3) has an impairment or combination of impairments that meets or equals the requirements of a listed impairment,*fn10 (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.*fn11
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 Meckley had not engaged in substantial gainful activity from November 25, 1996, through her date last insured of December 31, 1997. Tr. 847.
At step two, the administrative law judge found that Meckley had the following medically determinable severe impairments: degenerative disc disease and depression. Tr. 847. The administrative law judge found that although Meckley had been diagnosed with fibromyalgia and arthritis those impairments were not diagnosed until 1998 after Meckley's date last insured. Tr. 847.*fn12
At step three, the administrative law judge found that Meckley's impairments did not individually or in combination meet or equal a listed impairment. Tr. 847.
At step four, the administrative law judge found that Meckley from November 25, 1996 through December 31, 1997, could not perform her past relevant work as a nurse's aid, waitress and sewing machine operator but that she had the residual functional capacity to perform the exertional demands of a limited range of sedentary work.*fn13 Tr. 856-857.
The administrative law judge limited Meckley to lifting or carrying 10 pounds frequently and occasionally, standing or walking up to 2 hours in an 8-hour workday and sitting up to 6 hours in an 8-hour workday with a sit/stand option. The administrative law judge directed that Meckley would only be required to occasionally climb, balance or stoop and would never be required to climb ladders, kneel, crouch, crawl or engage in bilateral overhead reaching. The work would have to allow for the avoidance of temperature extremes, humidity, vibration and hazards, and be limited to simple routine, repetitive tasks. Also, the work would have to be low stress, defined as no decision making required and no changes in the work setting.
In light of these limitations, the administrative law judge took testimony from a vocational expert to determine whether or not jobs existed in the national economy for an individual of Meckley's age, education, work experience and residual functional capacity. The vocational expert testified that Meckley could not perform her past work, but could perform the unskilled, sedentary jobs of an assembler, hand packer and visual inspector. and that there were significant numbers of such jobs in the regional and local economies. Tr. 857. The administrative law judge concluded that based on Meckley's residual functional capacity she was not disabled at any time from November 25, 2006, through December 31, 1997. Tr. 857.
We have thoroughly reviewed the administrative record and for the reasons outlined below have concluded that the decision of the administrative law judge at step five of the sequential evaluation process is not supported by substantial evidence. There was an error committed during the administrative hearing which requires a remand for a limited purpose as will be explained in this order. We, however, find no fault with the administrative law judge's rulings relating to steps one through four of the sequential evaluation process.
The administrative record reveals that Meckley was forty-seven years of age at the time her insured status expired on December 31, 1997, and was considered a younger individual under the Social Security regulations. Tr. 123, 685 and 856. Meckley has an eighth grade education and, as previously stated, work experience as a nurse's aide, waitress, and sewing machine operator. Tr. 129, 137-144, 686 and 856. She commenced working at a very young age. 687.*fn14 Earning records from the Social ...