The opinion of the court was delivered by: Robert C. Mitchell United States Magistrate Judge
Presently before the Court for disposition are cross motions for summary judgment. For the reasons set forth below, the plaintiff's motion (Docket No. 9) will be denied; the defendant's motion (Docket No. 13) will be granted and the judgment of the Commissioner will be affirmed.
On July 8, 2009, Rosanne J. Hauser by her counsel, filed a complaint pursuant to Sections 205(g) and 1631(c)(3) of the Social Security Act, as amended, 42 U.S.C. §§405(g) and 1383(c)(3) for review of the Commissioner's final determination disallowing her claim for a period of disability or for disability insurance benefits and supplemental security income benefits under Sections 216(i) and 223 of the Social Security Act, as amended, 42 U.S.C. §§416(i) and 423 and 1381 cf.
The plaintiff filed an application for disability and supplemental security income benefits on June 7, 2005 (R.31,49-53). Benefits were denied on August 12, 2005 (R.32-36). On September 7, 2005, the plaintiff requested a hearing (R.37), and pursuant to that request a hearing was conducted on May 15, 2007 (R.271-310). In a decision filed on July 26, 2007, an Administrative Law Judge denied benefits (R.11-23). On September 19, 2007, the plaintiff requested reconsideration of this determination (R.10), and upon reconsideration, and in a decision dated May 29, 2009, the Appeals Council affirmed the prior decision (R.6-8). The instant complaint was filed on July 8, 2009.
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 his/her burden of demonstrating that he/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 hearing held on May 15, 2007 (R.271-310), the plaintiff appeared with counsel (R. 273), and testified that she was born on November 30, 1976 (R.276); that she graduated from high school and had secretarial training (R.276-277); that her husband is on disability (R.280); that she worked as a cashier and video store clerk (R.278) and that she last work in June, 2004 (R.277).
The plaintiff also testified that she experiences neck and back pain and muscle spasms (R.285, 290); that she has been receiving mental health treatment for two years (R.286); that she can walk 20 to 50 feet (R.280-282); that she can stand or sit for ten to fifteen minutes (R.283); that she could possibly lift twenty pounds (R.284); that she takes medication for pain but does not obtain relief (R.285); that she does not see a psychiatrist (R.286); that her depression has lessened (R.304) and that she performs household chores but requires frequent breaks (R.289-290, 292).
At the hearing a vocational expert was called upon to testify (R.306-309). She classified the plaintiff's former work experience as light semi-skilled work (R.307). When asked to assume an individual of the plaintiff's age, education and work experience who was limited to sedentary work, the witness testified that there were a large number of jobs such a person could perform (R.307). However, if the individual incurred excessive absenteeism or required an excessive number of breaks, the witness testified she could not be employed (R.308-309).
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 is 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 expected to last for a continuous period of not less than 12 months....
For purposes of the foregoing, the requirements for a disability determination are provided in 42 U.S.C. Section 423(d)(2)(A):
An 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 ... "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.
A "physical or mental impairment" is "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. Section 423(d)(3). These provisions are also applied for ...