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David A. Pollack v. Commissioner of Social Security

June 16, 2011

DAVID A. POLLACK, PLAINTIFF
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Mitchell, M.J.:

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 (Docket No.10) will be denied; the defendant=s motion (Docket No.12) will be granted and the decision of the Commissioner will be affirmed.

On December 8, 2010, David A. Pollack, by his 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 his 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 April 4, 2008 alleging that he had been disabled since December 31, 1996 (R.93-97). Benefits were denied on August 5, 2008 (R.64-72). On October 2, 2008, the plaintiff requested a hearing (R.76-77), and pursuant to that request a hearing was conducted on January 20, 2010

(R.26-41). In a decision filed on February 4, 2010, an Administrative Law Judge denied benefits (R.6-25). On April 13, 2010, the plaintiff requested reconsideration of this determination (R.4), and upon reconsideration, and in a decision dated October 18, 2010, the Appeals Council affirmed the prior decision (R.1-3). The instant complaint was filed on December 8, 2010.

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.

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). The court may not set aside a decision supported by substantial evidence. Hartranft v. Apfel, 181 F.3d 358 (3d Cir.1999).

Presently before the Court for 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.

At the hearing held on January 20, 2010 (R.26-41), the plaintiff appeared with counsel

(R.38) and testified that he completed high school although he was in learning disabled classes for math and reading (R.31,32,38); that he lives alone (R.29) and that he worked as a supermarket bagger and in his father=s household goods business (R.33).

The plaintiff also testified that he takes long walks during the day but occasionally experiences shortness of breath due to his asthma (R.29-30); that he watches television (R.31); that he takes medication for high blood pressure and a blood thinner (R.34) and that he often does not feel like doing anything (R.35-36).

At the hearing a vocational expert was called upon to testify (R.38-40). The witness testified that based on the plaintiff=s testimony he could not be employed (R.38). However, when asked to assume an individual who could perform light work with a sit/stand option there were a large number of jobs such an individual could engage in (R.38-39). The witness also testified that if such an individual had to elevate his legs to ninety degrees for two hours during the work day, he would not be employable (R.39-40).

The issue before the Court is whether or not the decision of the Commissioner is supported by substantial evidence.

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 purposes of establishing a period of disability. 42 U.S.C. Section 416(i)(2)(A).

It is provided in 42 U.S.C. Section 1382c(a)(3) that: (A)... an individual shall be considered to be disabled for purposes of this subchapter if he is unable 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 twelve months.

(B) For purposes of subparagraph (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.

(D) For purposes of this paragraph, a physical or mental impairment is an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically ...


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