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Silla v. Commissioner of Social Security

May 17, 2010

JACK SILLA, PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

REPORT AND RECOMMENDATION

I. Recommendation

It is respectfully recommended that the plaintiff's motion for summary judgment (Docket No.10) be denied; that the defendant's motion for summary judgment (Docket No. 12) be granted, and that the decision of the Commissioner be affirmed.

II. Report

Presently before the Court for disposition are cross motions for summary judgment.

On November 6, 2009, Jack Silla by his 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 his claim for Supplemental Security Income benefits under Sections 1614 and 1631 of the Act, as amended, 42 U.S.C. §1381 cf.

The instant application for Supplemental Security Income Benefits was filed on January 7, 2004 alleging that the plaintiff had been disabled since July 30, 1995. However, the onset date was amended at the hearing to January 7, 2004 (R.109-111, 914). On June 8, 2004, benefits were denied (R.103-107). On August 2, 2004, the plaintiff requested a hearing (R.102) and pursuant to that request a hearing was held on August 24, 2005 (R.903-918). In a decision filed on October 7, 2005, an Administrative Law Judge awarded benefits (R.60-65). On February 24, 2006 , the Appeals Council reversed the prior determination and remanded the matter to the administrative law judge for a "hearing to determine if there was evidence to support a finding of mild mental retardation or cognitive impairments in Claimant's childhood and early adulthood which would support a re-opening of Claimant's 1998 Title II claim." (R.20, 73-77; 78-81). On January 31, 2007 another hearing was conducted (R.919-990) and benefits were denied on February 15, 2007 (R.25-44). On April 11, 2007, the plaintiff requested reconsideration of this determination (R.18) and upon reconsideration and in a decision dated September 2, 2009, the Appeals Council affirmed the denial of benefits (R.14-17). The instant complaint was filed on November 6, 2009.*fn1

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).

The purpose of the Supplemental Security Income Program is to provide additional income to persons of limited resources who are aged, blind or disabled persons. 42 U.S.C. §1381; Chalmers v. Shalala, 23 F. 3d 752 (3d Cir. 1994). To be eligible for such benefits, an individual's income must not exceed a certain established maximum and he/she must fulfill certain eligibility requirements.

As set forth in 20 C.F.R. § 416.905(a) disability is defined as: the inability to do 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. In addition, a person will be considered disabled if he/she is

(a) ... permanently and totally disabled as defined under a State plan approved under title XIV or XVI of the Social Security Act, as in effect for October 1972; (b) ... received aid under the State plan ... for the month of December 1973 and for at least one month prior to July 1973; and © ... continue[s] to be disabled as defined under the State plan.

20 C.F.R. § 416.907.

A physical or mental impairment is defined in 20 C.F.R. §416.908 as an:

impairment [which] result[s] from anatomical, physiological, or psychological abnormalities which [are demonstrated] by medically acceptable clinical and laboratory diagnostic techniques.

For purposes of determining whether or not the plaintiff met the eligibility requirements, certain evidence was considered by the Commissioner.

At the hearings held on August 24, 2005 and January 31, 2007 (R.903-918, 919-990), the plaintiff appeared with counsel ®. 905,921) and testified that he was born on May 10, 1955 (R.906, 926); that he completed eighth grade partially in special education (R.907, 927-929); that he is right handed (R.908,927,959) and that he is receiving Public Assistance and food stamps (R.902,976).

The plaintiff also testified that he worked as a laborer in heavy construction (R.908.933) and that he was injured at work and has settled his compensation claim (R.909,931-934-935).

The plaintiff also testified that he becomes tired and fatigued (R.910,967); that he watches television most of the day (R.910,974); that he has experienced a heart attack and several strokes (R.911); that he also suffers from diabetes (R.913), experiences constipation (R.913) and memory problems (R.936); that he is short tempered (R.937) and that he is not being treated for any mental conditions (R.937-938); that he could probably lift twenty-five pounds (R.967); that he takes medication to control his diabetes, blood pressure and cholesterol (R.969,971); that he has had stints placed in his legs to prevent clotting (R.970); that he experiences chest pains (R.972) and that he can only walk for short distances, stand for up to twenty minutes and sit for up to an hour (R.982-973).

A neuropathologist testified that he reviewed the plaintiff's medical records, heard his testimony and concluded that there was no evidence of any significant psychological problem and that the plaintiff had an average intellectual ability (R.940-965).

At the hearing a vocational expert was also called upon to testify (R.979-989). He classified the plaintiff's prior work as heavy and unskilled (R.980). When asked to assume a person of the plaintiff's age, education and work experience who is restricted to light or sedentary work with the ability to change positions, he responded that there were a large number of such positions available both nationally and regionally (R.980-981; 985). However, he testified that repeated absences would not be tolerated (R.982).

In addition, certain other evidence was considered.

A left shoulder MRI performed on July 25, 1995 revealed possible tendinitis or tendonopathy or a partial tear resulting from lifting (R.638-642).

The plaintiff was treated for pain by Dr. R.K. Wadhwa on November 21, 1995. A nerve block and medication were prescribed. The plaintiff was advised to return to work in two months (R.643-647).

The plaintiff had a shoulder manipulation performed on February 1, 1996 for adhesive capsulitis (R.648-654).

The plaintiff was treated at the Canonsburg General Hospital emergency room on February 5, 1996 for left shoulder pain. ...


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