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Aber v. Commissioner of Social Security

November 30, 2009

PATRICIA ABER, PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Robert C. Mitchell United States Magistrate Judge

MEMORANDUM AND ORDER

Mitchell, M.J.

Presently before the Court for disposition are cross motions for summary judgment. For the reasons set forth below, the plaintiff's motion (Docket No.14) will be denied, the defendant's motion (Docket No. 16) will be granted and judgment will be entered accordingly.

On April 28, 2009, Patricia Aber by her counsel, filed a complaint pursuant to Section 205(g) of the Social Security Act, as amended, 42 U.S.C. §405(g) for review of the Commissioner's final determination disallowing her claim for a period of disability or for disability insurance benefits under Sections 216(i) and 223 of the Social Security Act, as amended, 42 U.S.C. §§416(i) and 423.

On May 3, 2005, the plaintiff filed an application for disability benefits alleging that she had been disabled since October 24, 1997 (R.74-78), and benefits were denied on August 22, 2005 (R.62-65). On September 22, 2005, the plaintiff requested a hearing (R.61) and pursuant to that request hearings were held on September 13, 2007 and November 5, 2007 (R.385-439). In a decision dated November 22, 2007, benefits were denied (R.10-25), and on January 25, 2008, reconsideration was requested (R.9). Upon reconsideration and in a decision dated February 26, 2009, the Appeals Council affirmed the prior determination (R.5-7). On April 28, 2009, the instant complaint was filed.

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 her burden of demonstrating that 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 hearings held on September 13, 2007 and November 5, 2007 (R.385-439), the plaintiff appeared with counsel who clarified that the plaintiff's claim was based on a mental and not a physical disability (R.387, 400, 405).

The plaintiff testified that at the time of the hearing she was fifty years old, had completed high school and attended one year of secretarial school (R.406,416); that she worked in customer service for fifteen years and her position was eliminated in 1997 due to downsizing (R. 410, 411, 418-419); that she performed filing tasks for three months in 1998 and stopped working due to depression (R.412-413) and that she performed housecleaning in 1999 to 2000 (R.415).

The plaintiff also testified that she started receiving counseling and taking medication for depression in July 1997 (R.414, 417, 420); that after being discharged from therapy she experienced emotional up and down cycles (R.422); that even when she was not being treated, she experienced periods of depression (R.424) and that she sleeps a lot (R.429-430).

The plaintiff's husband testified that starting in the period of 1998 to 2000, the plaintiff experienced personality changes (R.433-437).

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 was 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 ...


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