The opinion of the court was delivered by: Davis Stewart Cercone United States District Judge
Wallace Harris ("Plaintiff") brings this action pursuant to 42 U.S.C. § 405(g), seeking review of the final determination of the Commissioner of Social Security ("Defendant" or "Commissioner") denying his application for disability insurance benefits ("DIB") and supplemental security income ("SSI") under Titles II and XVI of the Social Security Act ("the Act"). 42 U.S.C. §§ 401-433, 1381 - 1383f. Currently before the court is defendant's Motion for Summary Judgment. The record has been developed at the administrative level. For the following reasons, Defendant's Motion for Summary Judgment will be granted and the decision of the Commissioner will be affirmed.
Plaintiff filed for DIB on December 6, 2005, claiming an inability to work as of May 25, 1995. (R. at 64 - 68).*fn1 Plaintiff applied for SSI on December 9, 2005, claiming an inability to work as of June 9, 2005. (R. at 333 - 36). Plaintiff's applications initially were denied on February 15, 2006. (R. at 57 - 60, 339 - 43). Plaintiff requested a hearing before an administrative law judge. (R. at 55). A hearing was held on October 25, 2007. Plaintiff appeared, represented by counsel, and testified. (R. at 23, 344). A vocational expert, George J. Starosta, also testified.
(R. at 28 - 30, 344). The ALJ issued a decision on January 10, 2008, finding plaintiff was not disabled. (R. at 8 - 20). Plaintiff filed a request for review with the Appeals Council, which was denied on February 12, 2009, thereby making the decision of the ALJ the final decision of the Commissioner. (R. at 4 - 6).
Proceeding pro se, plaintiff filed his complaint on March 27, 2009. Defendant filed an Answer on July 24, 2009. A scheduling order was issued requiring Plaintiff to file a motion for summary judgment by August 31, 2009. When plaintiff failed to file a motion, an order was issued on October 23, 2010, directing plaintiff to file his motion by November 11, 2009. Plaintiff was advised that "[t]he failure to file [the] motion and brief by that date will result in the Court adjudicating plaintiff's appeal and request for review of the decision below on the basis of the record as it now exists, which will include consideration of defendant's motion and brief." Order of October 23, 2009. (Doc. No. 9). Accordingly, the matter will be adjudicated based on the record as it now exists, including consideration of defendant's motion for summary judgment.
Judicial review of the Commissioner's final decisions on disability claims is provided by statute. 42 U.S.C. §§ 405(g)*fn2 and 1383(c)(3).*fn3 When reviewing a final decision, this court's role is limited to determining whether substantial evidence exists in the record to support the ALJ's findings of fact. Burns v. Barnhart, 312 F.3d 113, 118 (3d Cir. 2002). Substantial evidence is defined as "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate" to support a conclusion. Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir. 1995)(quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). Additionally, if the ALJ's findings of fact are supported by substantial evidence, they are conclusive. 42 U.S.C. § 405(g); Richardson, 402 U.S. at 390. A district court cannot conduct a de novo review of the Commissioner's decision nor re-weigh evidence of record. Palmer v. Apfel, 995 F. Supp. 549, 552 (E.D. Pa. 1998); see also Monsour Medical Center v. Heckler, 806 F.2d 1185, 90-91 (3d. Cir. 1986) ("even where this court acting de novo might have reached a different conclusion . . . so long as the agency's factfinding is supported by substantial evidence, reviewing courts lack power to reverse either those findings or the reasonable regulatory interpretations that an agency manifests in the course of making such findings."). To determine whether a finding is supported by substantial evidence, however, the district court must review the record as a whole. See 5 U.S.C. § 706.
To be eligible for social security benefits under the Act, a claimant must demonstrate that he cannot engage in substantial gainful activity because of a 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 at least 12 months. 42 U.S.C. §423(d)(1)(A); Brewster v. Heckler, 786 F.2d 581, 583 (3d Cir. 1986). A five-step sequential analysis is used to evaluate the disability status of each claimant. 20 C.F.R. § 404.1520. The ALJ must determine: (1) whether the claimant is currently engaged in substantial gainful activity; (2) if not, whether the claimant has a severe impairment or a combination of impairments that is severe; (3) whether the medical evidence of the claimant's impairment or combination of impairments meets or equals the criteria listed in 20 C.F.R., pt. 404 subpt. P., appx. 1; (4) whether the claimant's impairments prevent him from performing his past relevant work; and (5) if the claimant is incapable of performing his past relevant work, whether he can perform any other work which exists in the national economy. 20 C.F.R. § 404.1520(a)(4); see also Barnhart v. Thomas, 540 U.S. 20, 24-25 (2003). If the claimant is determined to be unable to resume his or her previous employment at step four, the burden shifts to the Commissioner at step five to prove that, given plaintiffs's mental or physical limitations, age, education, and work experience, he or she is able to perform substantial gainful activity in the national economy. Doak v. Heckler, 790 F.2d 26, 28 (3d Cir. 1986).
IV. Statement of the Case
Plaintiff was born on December 22, 1958, and was 49 years of age at the time of the hearing. (R. at 18). Plaintiff has an eleventh grade education. (R. at 347). At the time of the hearing, Plaintiff had lived at his younger brother's house for approximately ten years. (R. at 353). Plaintiff's younger brother works full-time. (R. at 353). Plaintiff has been diagnosed with diabetes mellitus, asthma, and hepatitis C. (R. at 125, 129).
Plaintiff's medical history reflects a history of tobacco and alcohol abuse as early as October 29, 2002. (R. at 290). On numerous occasions treating doctors have noted Plaintiff's problems with alcohol, illicit drug, and tobacco use. (R. at 138, 159, 163, 172, 198, 247, 255, 294, 296, 307, 312, 315, 331). As early as February 17, 2003, Derrick Tobias, M.D., noted that Plaintiff did not comply with instructions for treating his diabetes. (R. at 285 - 87). Plaintiff did not maintain a proper diet, and despite receiving medication for his condition, his diabetes was "uncontrolled." (R. at 286 - 87). Even early on, Plaintiff required admission to the emergency room because of noncompliance issues, and his medical records indicated that his condition was a challenge to treat because he did not follow medical advice. (R. at 276). On many occasions Plaintiff simply failed to take his medication. (R. at 273).
Despite claims of compliance with his diet and medication regimens, Plaintiff exhibited little to no control of his diabetes. He experienced numerous diabetes-related hospitalizations, and multiple treating physicians concluded that Plaintiff was not compliant with medical advice.
(R. at 127, 129). While en route to the emergency room on September 4, 2004, for diabetes-related illness, paramedics found that Plaintiff was not even storing his insulin medication properly. (R. at 129). Plaintiff also consistently failed to see an eye doctor to monitor diabetes-related eye issues, or to see a doctor for treatment of his hepatitis C. (R. at 193, 227, 256, 259, 266, 294). At a November 3, 2004 admission to the emergency room, he informed the attending physician that he had not seen an eye doctor in years. (R. at 266). At a September 7, 2006, emergency room visit, Plaintiff admitted his diabetes was poorly controlled and he had not been seeing his primary care provider for diabetes treatment. (R. at 296).
In 2004, Plaintiff was admitted to the emergency room three times for diabetes-related illness. (R. at 125 - 331). On all three occasions, the medical notes indicated that noncompliance with medication regimen and/ or diet was a cause or major contributing factor. (R. at 125 - 331). In 2005, Plaintiff was ...