The opinion of the court was delivered by: (Judge Caputo)
(Complaint Filed 11/19/10)
The above-captioned action is one seeking review of a decision of the Commissioner of Social Security ("Commissioner") denying Plaintiff Michele Nicely's claim for social security disability insurance benefits and supplemental security income benefits. For the reasons set forth below we will remand the case to the Commissioner for further proceedings.
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 Nicely met the insured status requirements of the Social Security Act through December 31, 2003. Tr. 20, 23 and 255.*fn1 In order to establish entitlement to disability insurance benefits Nicely was required to establish that she suffered from a disability on or before that date. 42 U.S.C. § 423(a)(1)(A), (c)(1)(B); 20 C.F.R. §404.131(a)(2008); see Matullo v. Bowen, 926 F.2d 240, 244 (3d Cir. 1990).
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. Insured status is irrelevant in determining a claimant's eligibility for supplemental security income benefits.
Nicely was born in the United States on July 8, 1949. Tr. 183 and 684. Nicely graduated from high school in 1967 and can read, write, speak and understand the English language. Tr. 237 and 684. After graduating from high school Nicely attended college for several years but never obtained a degree. Tr. 183, 186, 684 and 788. Nicely has past relevant employment*fn2 as a postal clerk which was described by a vocational expert as semi-skilled, light work as generally performed but that Nicely did engage in some heavy exertional duties.*fn3 Tr. 786.
Nicely commenced employment in 1968. Tr. 197. Records of the Social Security Administration reveal that Nicely had employment in 1968 through 1977, 1980 and 1981, 1984 through1995, and 1997 through 2000. Tr. 214. There are no earnings reported in the years 1978, 1979, 1982 and 1983. Id. During the 15 years from 1986 through 2000, Nicely's earnings were as follows:
1986 $18566.27 1987 20538.89 1988 21375.90
1989 23923.84 1990 25654.06 1991 28372.83 1992 30196.30
1994 27713.67 1995 19634.91 1996 0.00 1997 33670.11 1998 14964.98 1999
5985.31 2000 209.00
Id. Nicely's total earnings from 1968 through 2000 were $340,874.90.
Id. There are no earnings reported after the year 2000.*fn4
Nicely claims that she became disabled on April 30, 1999, because of both physical and mental impairments. Tr. 183-185 and 238. The record reveals that Nicely complained of headaches, low back and leg pain, fatigue, anxiety and depression. Tr. 261, 365, 380 and 384-385.
This case has a long and tortuous procedural history. On October 29, 2001, Nicely filed protectively*fn5 an application for disability insurance benefits and an application for supplemental security income benefits.*fn6 Tr. 19, 183-185, 217 and 255. On May 7, 2002, the Bureau of Disability Determination*fn7 denied Nicely's applications. Tr. 19, 41 and 75-78. On June 27, 2002, Nicely requested a hearing before an administrative law judge. Tr. 79. A hearing before an administrative law judge was held on November 20, 2002. Tr. 19, 109 and 115. The transcript of that hearing is missing from the administrative record. On January 30, 2003, the administrative law judge issued a decision denying Nicely's applications. Tr. 47-54. The administrative law judge found that Nicely was not disabled because Nicely had the residual functional capacity to perform a limited range of sedentary work*fn8 and that Nicely's "past relevant work as mail clerk did not require the performance of work related activities precluded by her residual functional capacity[.]" *fn9 Tr. 54. On February 5, 2003, Nicely requested that the Appeals Council review the administrative law judge's decision. Tr. 117-118. After 18 months had passed, the Appeals Council on August 6, 2004, issued a decision remanding the case to the administrative law judge for further proceedings. Tr. 125-127. The Appeals Council noted that (1) the administrative law judge's decision did not contain an evaluation of Nicely's past relevant work as a mail handler and the record was insufficient to determine whether Nicely could perform her past relevant work , and (2) the hearing tape was partially inaudible making the record incomplete. Tr. 126.
A second administrative hearing was held before the same administrative law judge on April 21, 2005. Tr. 19, 128 and 142. The transcript of this hearing is also missing from the administrative record. On October 25, 2005, the administrative law judge issued a decision denying Nicely's application for disability insurance benefits and granting Nicely's application for supplemental security income benefits as of July 19, 2005. Tr. 55-68. The administrative law judge found that from April 30, 1999, her alleged disability onset date through and including December 31, 1999, Nicely had engaged in substantial gainful activity and was not disabled during that period. Tr. 67. He further found that since January 1, 2000, Nicely had a severe impairment*fn10 but that from that date through and including July 18, 2005, Nicely retained the residual functional capacity necessary to perform a limited range of light work and retained the capacity to perform her past relevant work as a mail handler and sorter. Id. Consequently, she was not entitled to disability insurance benefits because the date last insured was December 31, 2003.*fn11 However, commencing on July 19, 2005, the day that Nicely underwent an evaluation by William Jamack, D.O., a state agency psychiatrist, the administrative law judge found that Nicely was disabled based upon the application of GRID Rule 202.06*fn12 and was eligible for supplemental security income benefits. Tr. 67.
On November 4, 2005, Nicely requested that the Appeals Council review the portion of the administrative law judge's decision which found that she was not disabled between April 29, 1999, and July 19, 2005, but asked that the Social Security Administration process the SSI benefits that were approved. Tr. 143-144. After 26 months had passed, the Appeals Council on January 9, 2009, granted Nicely's request for review and remanded the case to a different administrative law judge for further proceedings. Tr. 69-74. The Appeals Council directed, inter alia, that the new administrative law judge (1) consider whether Nicely engaged in substantial gainful activity after her alleged onset date of April 30, 1999, (2) give further consideration to Nicely's maximum residual functional capacity during the entire period, and (3) give further consideration to treating source opinions and examining source opinions, and explain the weight given to such opinions. Tr. 73.
A third hearing was held on May 21, 2009, before a different administrative law judge. Tr. 770-792. At that hearing Nicely testified and also a vocational expert Peter Manzi testified. Id. On June 18, 2009, the administrative law judge issued a decision denying Nicely's application for disability insurance benefits and granting Nicely's application for supplemental security income benefits commencing on July 8, 2004. Tr. 19-37. On August 3, 2009, Nicely requested that the Appeals Council review the administrative law judge's decision. Tr. 15 and 769. After more than a year had passed, the Appeals Council on October 8, 2010, concluded that there was no basis upon which to grant Nicely's request for review. Tr. 9-12. Thus, the administrative law judge's decision stood as the final decision of the Commissioner.
On November 19, 2010, Nicely filed a complaint in this court requesting that we reverse the decision of the Commissioner denying her disability insurance benefits. The Commissioner filed an answer to the complaint and a copy of the administrative record on February 4, 2011. After being granted one extension of time, Nicely filed her brief on May 5, 2011, and the Commissioner filed his brief on June 7, 2011. The appeal*fn13 became ripe for disposition on June 8, 2010, when Nicely filed a reply brief.
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 decision of the Commissioner must scrutinize the record as a whole. Smith v. Califano, 637 F.2d 968, 970 (3d Cir. 1981); Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d Cir. 1979). SEQUENTIAL EVALUATION PROCESS
To receive disability benefits, the plaintiff must demonstrate an "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." 42 U.S.C. § 432(d)(1)(A). Furthermore,
[a]n 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 (with respect to any individual), "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.
42 U.S.C. § 423(d)(2)(A).
The Commissioner utilizes a five-step process in evaluating disability insurance and supplemental security income claims. See 20 C.F.R. §404.1520 and 20 C.F.R. § 416.920; Poulos, 474 F.3d at 91-92. This process requires the Commissioner to consider, in sequence, whether a claimant (1) is engaging in substantial gainful activity,*fn14 (2) has an impairment that is severe or a combination of impairments that is severe,*fn15 (3) has an impairment or combination of impairments that meets or equals the requirements of a listed impairment,*fn16 (4) has the residual functional capacity to return to his or her past work and (5) if not, whether he or she can perform other work in the national economy. Id. As part of step four the administrative law judge must determine the claimant's residual functional capacity. Id.*fn17
Residual functional capacity is the individual's maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis. See Social Security Ruling 96-8p, 61 Fed. Reg. 34475 (July 2, 1996). A regular and continuing basis contemplates full-time employment and is defined as eight hours a day, five days per week or other similar schedule. The residual functional capacity assessment must include a discussion of the individual's abilities. Id; 20 C.F.R. §§ 404.1545 and 416.945; Hartranft, 181 F.3d at 359 n.1 ("'Residual functional capacity' is defined as that which an individual is still able to do despite the limitations caused by his or her impairment(s).").
MEDICAL RECORDS AND OTHER EVIDENCE
Before we address the administrative law judge's decision and the arguments of counsel, we will review Nicely's activities of daily ...