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Jeffrey J. Bliss v. Michael Astrue

October 28, 2010

JEFFREY J. BLISS, PLAINTIFF
v.
MICHAEL ASTRUE, COMMISSIONER OF
SOCIAL SOCIAL SECURITY, DEFENDANT



The opinion of the court was delivered by: Judge Caputo

MEMORANDUM AND ORDER

BACKGROUND

The above-captioned action is one seeking review of a decision of the Commissioner of Social Security ("Commissioner") denying Plaintiff Jeffrey J. Bliss's claim for social security disability insurance benefits and supplemental security income benefits. For the reasons set forth below we will affirm the decision of the Commissioner.

Disability insurance benefits are paid to an individual if that individual is disabled and "insured," that is, the individual has worked long enough and paid social security taxes. The last date that a claimant meets the requirements of being insured is commonly referred to as the "date last insured." It is undisputed that Bliss meets the insured status requirements of the Social Security Act through December 31, 2014 Tr. 9 and 11.*fn1

Supplemental security income is a federal income supplement program funded by general tax revenues (not social security taxes). It is designed to help aged, blind or other disabled individuals who have little or no income.

Bliss was born in the United States on January 26, 1971. Tr. 129. Bliss graduated from high school in 1989 and can read, write, speak and understand the English language and perform basic mathematical functions. Tr. 29, 259, 268 and 310-311. After graduating from high school he completed some college courses. Tr. 311 and 337.

Bliss has prior work experience as a customer service person (November, 2008 to "the present"),*fn2 a restaurant supervisor (May 2008-September 2008), retail store manager (March 2007 -July 2007), night auditor*fn3 (May 2006-December 2006), front desk clerk at an Econo Lodge (August 2005-January 2006), office assistant (August 2003-April 2004), and a flight attendant (January 1992 to August 2003). Tr. 52 , 271-272 and 310-311. A vocational expert described Bliss's past relevant employment*fn4 as semi-skilled to skilled, sedentary to medium work.*fn5 Tr. 52.

Bliss also worked as an animal control officer from November 2007 to May 2008. Tr. 271-272. The vocational expert when testifying did not address the work performed by Bliss as an animal control officer. Id. Bliss stated that in that position he frequently lifted 50 pounds or more and was on his feet "most of if not all of" an 8-hour workday. Tr. 273. This description is consistent with the definition of heavy work.

Records of the Social Security Administration reveal that Bliss had earnings from 1987 through 2008, as follows:

1987 $2027.95 1988 4326.72 1989 5827.97 1990 8191.96 1991 9099.84 1992 13086.34 1993 19014.29 1994 17756.02

1995 19572.02 1996 10159.62 1997 15152.23 1998 17945.75 1999 22176.93 2000 28620.97 2001 29000.39 2002 15365.06 2003 12448.41 2004 15197.18 2005 8414.99 2006 12229.66 2007 11142.17 2008 16123.83

Tr. 157. Bliss's total earnings from 1987 through 2008 were $312,880.30. Id.

Bliss alleges that he became disabled on September 30, 2008, because of an HIV infection, gastroesophageal reflux disease, cyclothymia*fn6 and a panic disorder. Tr. 27, 60-61, 125, 129 and 260. Bliss contends that because of fatigue and the side-effects of HIV medications he cannot work full-time. Tr. 27. The record reveals that Bliss "was first diagnosed as being HIV positive in 1996." Tr. 345.

In 2008, Bliss's earnings from working as an animal control officer for a humane society were $5831.28, as a restaurant supervisor $9414.74, and as a customer service person at Giant Food Stores, Inc., $835.81. Tr. 164, 271-272 and 310. Bliss's personnel file from Giant Food Stores, Inc., reveals that he was hired on November 9, 2008. Tr. 212 and 244. On his application for employment, Bliss stated that he was seeking full-time employment and that he could work any hours, seven days per week. Tr. 213. At the administrative hearing held in this case on April 7, 2010, Bliss testified that he had been working at Giant Food Stores, Inc., for one year and five months and that he was currently working at the customer service desk. Tr. 28-29. Bliss stated that he was a check-out coach in front of the store who supervises the cashiers and that he was currently working 3 to 4 days per week, 6 1/2 to 8 hours per day. Id. He also stated that he was on his feet constantly and was able to lift items such as a 40 pound bag of dog food. Id. Bliss claimed that he could not work more than part-time because he gets mentally drained. Tr. 31. When asked whether he had the stamina to work 8 hours per day, five days per week, in a position where he would be mostly sitting and not dealing with the public he stated that he did not believe he could engage in that type of work because of his "mental issues." Tr. 36. Bliss did not claim that his physical ailments would prevent him from engaging in that type of sedentary work activity. Id.

On October 30, 2008, Bliss filed protectively*fn7 an application for disability insurance benefits and on November 4, 2008, an application for supplemental security income benefits. Tr. 9, 60-61 and 125-135. On March 30, 2009, the Bureau of Disability Determination*fn8 denied Bliss's applications. Tr. 60-61 and 63-74. On April 7, 2009, Bliss requested a hearing before an administrative law judge. Tr. 75-76. After 12 months had passed, a hearing before an administrative law judge was held on April 7, 2010. Tr. 24-59. On June 30, 2010, the administrative law judge issued a decision denying Bliss's applications. Tr. 9-18. On July 21, 2010, Bliss requested that the Appeals Council review the administrative law judge's decision and on October 1, 2010, the Appeals Council concluded that there was no basis upon which to grant Bliss's request for review. Tr. 1-5. Thus, the administrative law judge's decision stood as the final decision of the Commissioner.

On October 28, 2010, Bliss filed a complaint in this court requesting that we reverse the decision of the Commissioner denying him social security disability insurance and supplemental security income benefits. The Commissioner filed an answer to the complaint and a copy of the administrative record on December 30, 2010. Bliss filed his brief on February 11, 2011, and the Commissioner filed his brief on April 15, 2011. The appeal*fn9 became ripe for disposition on April 28, 2011, when Bliss filed a reply brief.

STANDARD OF REVIEW

When considering a social security appeal, we have plenary review of all legal issues decided by the Commissioner. See Poulos v. Commissioner of Social Security, 474 F.3d 88, 91 (3d Cir. 2007); Schaudeck v. Commissioner of Social Sec. Admin., 181 F.3d 429, 431 (3d Cir. 1999); Krysztoforski v. Chater, 55 F.3d 857, 858 (3d Cir. 1995). However, our review of the Commissioner's findings of fact pursuant to 42 U.S.C. § 405(g) is to determine whether those findings are supported by "substantial evidence." Id.; Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988); Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993). Factual findings which are supported by substantial evidence must be upheld. 42 U.S.C. §405(g); Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001)("Where the ALJ's findings of fact are supported by substantial evidence, we are bound by those findings, even if we would have decided the factual inquiry differently."); Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981)("Findings of fact by the Secretary must be accepted as conclusive by a reviewing court if supported by substantial evidence."); Keefe v. Shalala, 71 F.3d 1060, 1062 (2d Cir. 1995); Mastro v. Apfel, 270 F.3d 171, 176 (4th Cir. 2001); Martin v. Sullivan, 894 F.2d 1520, 1529 & 1529 n.11 (11th Cir. 1990).

Substantial evidence "does not mean a large or considerable amount of evidence, but 'rather such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Pierce v. Underwood, 487 U.S. 552, 565 (1988)(quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)); Johnson v. Commissioner of Social Security, 529 F.3d 198, 200 (3d Cir. 2008); Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999). Substantial evidence has been described as more than a mere scintilla of evidence but less than a preponderance. Brown, 845 F.2d at 1213. In an adequately developed factual record substantial evidence may be "something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence." Consolo v. Federal Maritime Commission, 383 U.S. 607, 620 (1966).

Substantial evidence exists only "in relationship to all the other evidence in the record," Cotter, 642 F.2d at 706, and "must take into account whatever in the record fairly detracts from its weight." Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 488 (1971). A single piece of evidence is not substantial evidence if the Commissioner ignores countervailing evidence or fails to resolve a conflict created by the evidence. Mason, 994 F.2d at 1064. The Commissioner must indicate which evidence was accepted, which evidence was rejected, and the reasons for rejecting certain evidence. Johnson, 529 F.3d at 203; Cotter, 642 F.2d at 706-707. Therefore, a court reviewing the ...


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