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Jackson v. Astrue

July 2, 2009


The opinion of the court was delivered by: Terrence F. McVerry United States District Court Judge


I. Introduction

Plaintiff, Jailance Jackson, brought this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), for judicial review of the final determination of the Commissioner of Social Security ("Commissioner") which denied his application for supplemental security income ("SSI") under title XVI of the Social Security Act ("Act"), 42 U.S.C. 1381-1383(f).

II. Background

A. Facts

Plaintiff was born on October 10, 1964. The extent of Plaintiff's education includes the completion of eleventh grade, and as such Plaintiff has not received his high school diploma or general equivalency diploma. Plaintiff has held various jobs including past work experience as a dishwasher (classified as a medium exertional level, unskilled job), a resident aide at a nursing home (classified as a medium exertional level, semi-skilled job), and a stocker at a grocery store (classified as a heavy exertional level, semi-skilled job).

Plaintiff alleges disability as of August 15, 2002, due to back problems and a learning disability. The record reflects that Plaintiff has not engaged in substantial gainful work activity since alleging disability.

B. Procedural History

Plaintiff initially filed an application for SSI on May 30, 2003. That application was denied on June 24, 2005, by an Administrative Law Judge ("ALJ"). On September 1, 2005, the decision of the ALJ became the final decision of the Commissioner when the Appeals Council denied Plaintiff's request for review. Plaintiff did not further pursue an appeal of the Commissioner's decision.

Plaintiff filed his second application for SSI on July 30, 2005, in which he claimed total disability since August 15, 2002. An administrative hearing was held on January 3, 2008, before ALJ James Pileggi. Plaintiff was represented by counsel and testified at the hearing. George J. Starosta, an impartial vocational expert, also testified at the hearing.

On January 23, 2008, ALJ Lamar W. Davis rendered an unfavorable decision to Plaintiff in which he found that Plaintiff was not disabled from July 30, 2005, through the date of his decision. The ALJ found that Plaintiff was capable of performing work at the light exertional level, subject to various limitations. These limitations include the requirement of a sit/stand option, an ability to perform postural activities on only an incidental basis, and an ability to perform simple, routine, repetitive tasks, involving only incidental independent judgment, discretion, and incidental change in the work process. Additionally, Plaintiff cannot work with hazards, such as dangerous machinery, cannot perform work which requires piece work production rate pace, and cannot perform work which requires reading, writing, or math calculations for text content, message recordation, or instruction compliance. The ALJ found that these limitations would not prevent Plaintiff from performing light exertional work, which exists in significant numbers in the national economy. The ALJ's decision became the final decision of the Commissioner on August 8, 2008, when the Appeals Council denied Plaintiff's request to review the decision of the ALJ.

On October 7, 2008, Plaintiff filed his Complaint in this Court in which he seeks judicial review of the decision of the ALJ. The parties have filed cross-motions for summary judgment. Plaintiff contends that the ALJ erred in (1) his determination that Plaintiff did not have an impairment that meets or equals a listed impairment; (2) his determination that Plaintiff's testimony was not entirely credible; and (3) his determination that Plaintiff could perform a significant number of jobs in the national economy. The Commissioner contends that the decision of the ALJ should be affirmed as it is supported by substantial evidence.

After a careful review of the entire record, the Court finds that the hypothetical question posed to the Vocational Expert that was accepted and relied upon by the ALJ in his step five determination is not consistent with the ALJ's determination of Plaintiff's residual functional capacity ("RFC"). Therefore, the Court will remand the matter to the Commissioner for reconsideration, rehearing, and/or further proceedings consistent with this Memorandum Opinion. 42 U.S.C. § 405(g); Benton v. Bowen, 820 F.2d 85, 89 (3d Cir. 1987).

III. Legal Analysis

A. Standard of Review

The Act limits judicial review of disability claims to the Commissioner's final decision. 42 U.S.C. §§ 405(g)/1383(c)(3). If the Commissioner's finding is supported by substantial evidence, it is conclusive and must be affirmed by the Court. 42 U.S.C. § 405(g); Schaudeck v. Comm'n of Soc. Sec. Admin., 181 F.3d 429, 431 (3d Cir. 1999). The Supreme Court has defined "substantial evidence" as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389 (1971); Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999). It consists of more than a scintilla of evidence, but less than a preponderance. Stunkard v. Secretary of Health & Human Servs., 841 F.2d 57, 59 (3d Cir. 1988).

When resolving the issue of whether an adult claimant is or is not disabled, the Commissioner utilizes a five-step sequential evaluation. 20 C.F.R. §§ 404.1520 and 416.920 (1995). This process requires the Commissioner to consider, in sequence, whether a claimant (1) is working, (2) has a severe impairment, (3) has an impairment that meets or equals the requirements of a listed impairment, (4) can return to his or her past relevant work, and (5) if not, whether he or she can perform other work. See 42 U.S.C . § 404.1520; Burnett v. Commissioner of Social Security, 220 F.3d 112, 118-19 (3d Cir. 2000) (quoting Plummer v. Apfel, 186, F.3d 422, 428 (3d Cir. 1999)).

To qualify for disability benefits under the Act, a claimant must demonstrate that there is some "medically determinable basis for an impairment that prevents him or her from engaging in any substantial gainful activity for a statutory twelve-month period."

Kangas v. Bowen, 823 F.2d 775, 777 (3d Cir. 1987); 42 U.S.C. § 423 (d)(1) (1982). This may be done in two ways:

(1) by introducing medical evidence that the claimant is disabled per se because he or she suffers from one or more of a number of serious impairments delineated in 20 C.F.R. Regulations No. 4, Subpt. P, Appendix 1. See Heckler v. Campbell, 461 U.S. 458 (1983); Stunkard, 841 F.2d at 59; Kangas, 823 F.2d at 777; or,

(2) in the event that claimant suffers from a less severe impairment, by demonstrating that he or she is nevertheless unable to engage in "any other kind of substantial gainful work which exists in the national economy . . . ." Campbell, 461 U.S. at 461 (citing 42 U.S.C. § 423 (d)(2)(A)).

In order to prove disability under the second method, a claimant must first demonstrate the existence of a medically determinable disability that precludes plaintiff from returning to his or her former job. Stunkard, 841 F.2d at 59; Kangas, 823 F.2d at 777. Once it is shown that claimant is unable to resume his or her previous employment, the burden shifts to the Commissioner to prove that, given claimant's mental or physical limitations, age, education and work experience, he or she is able to perform substantial gainful activity in jobs available in the national economy. Stunkard, 842 F.2d at 59; Kangas, 823 F.2d at 777; Doak v. Heckler, 790 F.2d 26, 28 (3d Cir. 1986); Rossi v. Califano, 602 F.2d 55, 57 (3d Cir. 1979).

Where a claimant has multiple impairments which may not individually reach the level of severity necessary to qualify any one impairment for Listed Impairment status, the Commissioner nevertheless must consider all of the impairments in combination to determine whether, collectively, they meet or equal the severity of a Listed Impairment. Bailey v. Sullivan, 885 F.2d 52 (3d Cir. 1989) ("in determining an individual's eligibility for benefits, the Secretary shall consider the combined effect of all of the individual's impairments without regard to whether any such impairment, if considered separately, would be of such severity.")

In this case, the ALJ determined that Plaintiff was not disabled within the meaning of the Act at the fifth step of the sequential evaluation process. In making this determination, the ALJ concluded that (1) although Plaintiff had chronic back pain and borderline intellectual functioning, which were severe, these impairments were not attended, singly or in combination, with the specific clinical signs and diagnostic findings required to meet or equal any of the musculoskeletal system listings or Listing 12.05, mental retardation; (2) Plaintiff's statements concerning the intensity, persistence, and limiting effects of his back pain were not entirely credible; and ...

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