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Florence M. Alloway v. Commissioner of Social Security

March 7, 2011

FLORENCE M. ALLOWAY, 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

Presently before the Court for disposition are cross motions for summary judgment. For the reasons set forth below, the plaintiff's motion for summary judgment (Dkt # 32) will be denied; the defendant's motion for summary judgment (Dkt # 34) will be granted and the determination of the Commissioner will be affirmed.

On September 2, 2009, Florence M. Alloway, 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 July 8, 2005, the plaintiff filed an application for disability benefits alleging that she had been disabled since January 31, 2004 (R.31-33, 36-39), and benefits were denied on October 6, 2005 (R. 26-30). On December 2, 2005 , the plaintiff requested a hearing (R.26-30) and pursuant to that request a hearing was held on January 30, 2007 (R.185-226). In a decision dated March 29, 2007, benefits were denied (R.7-18), and on June 1, 2007, reconsideration was requested (R.6). Upon reconsideration and in a decision dated March 28, 2009, the Appeals Council affirmed the prior determination (R.3-5). On September 2, 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.

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, Johnson v. Comm'r. 529 F.3d 198 (3d Cir.2008), and the court may not set aside a decision supported by substantial evidence. Hartranft v. Apfel, 181 F.3d 358 (3d Cir.1999).

At the hearing held on January 30, 2007 (R.185-226), the plaintiff appeared with counsel (R.187) and testified that she was thirty years old and had a college degree in secondary education (R.188-189); that she worked as a secretary, dermatology technician and Avon saleswoman (R.197); that she was fired from her secretarial work in January 2004 (R.197,202) and that she is receiving medical assistance (R.190).

The plaintiff also testified that she can walk for five to ten minutes, stand for an hour and sit for twenty minutes (R.192); that she is being treated for high blood pressure, fibromyalgia, depression, stomach pain and a sinus condition for all of which she takes medication (R.193-194); that she is unable to work due to her fibromyalgia and diarrhea (R.199); that she experiences balance difficulties which require her to return to bed two or three times a week (R.204); that she does very little around the house (R.204,208-211); that she attends a pain clinic (R.205) and that her medications make her sleepy (R.207).

The plaintiff's boyfriend testified that he had been the plaintiff's co-worker; that her performance was stellar and then began to decline (R.213) and that the plaintiff does very little around the house (R.214,217).

At the hearing, Judy Scholleart was called upon to testify as a vocational expert (R.221-225). She characterized the plaintiffs past work as sedentary to light in nature (R.22). When asked to assume an individual of the plaintiff's age, education and training who was limited to light work with postural limitations and avoiding production environments, the witness testified that such an individual could not perform the plaintiff's prior work (R.222-223), but that there were a large number of other jobs which such an individual could perform (R.223). The same was said to be true if the individual was limited to sedentary work (R.223-224). However, the witness also testified that if the individual had to take excessive frequent breaks, she could not be employed (R.225).

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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