The opinion of the court was delivered by: Judge Caputo
(Complaint Filed 2/24/11)
The above-captioned action is one seeking review of a decision of the Commissioner of Social Security ("Commissioner") denying Plaintiff Jennifer M. Dubuisson's claim for supplemental security income benefits.*fn1 For the reasons set forth below we will affirm the decision of the Commissioner.
On August 22, 2008, Dubuisson filed protectively*fn2
an application for supplemental security income benefits. Tr. 10,
82-88, 93, 95, 116 and 122.*fn3 The application was
initially denied by the Bureau of Disability Determination*fn4
on November 12, 2008. Tr.
64-68 and 95. On January 13, 2009, Dubuisson requested a hearing
before an administrative law judge. Tr. 70-71. After about 11 months
had passed, a hearing was held on December 8, 2009. Tr. 24-44. On
January 25, 2010, the administrative law judge issued a decision
denying Dubuisson's application. Tr. 10-20. On February 24, 2010,
Dubuisson filed a request for review with the Appeals Council and on
January 29, 2011, the Appeals Council concluded that there was no
basis upon which to grant Dubuisson's request. Tr. 1-6. Thus, the
administrative law judge's decision stood as the final decision of the
Dubuisson then filed a complaint in this court on February 24, 2011. Supporting and opposing briefs were submitted and the appeal*fn5 became ripe for disposition on October 3, 2011, when Dubuisson elected not to file a reply brief.
Dubuisson who was born in the United States on February 19, 1976,*fn6 has an 11th grade education and can read, write, speak and understand the English language and perform basic mathematical functions. Tr. 29, 40, 82, 126, 132 and 151. During her elementary and secondary schooling, Dubuisson attended regular education classes. Tr. 132. Dubuisson has an extremely limited work and earnings history. Tr. 40, 118, 128 and 137. Her prior work consisted of unskilled, light work *fn7 as an assembly worker and laborer. Tr. 40 and 128. Dubuisson had earning in the years 1992 through 1998 and 2004. Tr. 118. Her total earnings for those years were $7221.40. Id. Dubuisson has not worked since August 1, 2004. Tr. 127.
Dubuisson alleges that she became disabled on January 1, 2005, because of morbid obesity, an HIV infection, degenerative joint disease of the left knee, diabetes mellitus, sleep apnea, asthma and depression. Tr. 5 and 127; Doc. 12, Plaintiff's Brief, p.
1. Dubuisson contends that she can not work because she "get[s] sick all the time" and has "a lot of trouble with [her] knees." Tr. 30. She claims that she "can't stand very long or sit very long." Id. She further contends she is "afraid to go around people to get sick" and has "severe depression." Id.
Dubuisson's alleged disability onset date of January 1, 2005, has no impact on Dubuisson's application for supplemental security income benefits because supplemental security income is a needs based program and benefits may not be paid for "any period that precedes the first month following the date on which an application is filed or, if later, the first month following the date all conditions for eligibility are met." See C.F.R. § 416.501. Dubuisson as stated above filed her application on August 22, 2008. Consequently, Dubuisson is not eligible for SSI benefits for any period prior to September 1, 2008. 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 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. . § 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,*fn8 (2) has an impairment that is severe or a combination of impairments that is severe,*fn9 (3) has an impairment or combination of impairments that meets or equals the requirements of a listed impairment,*fn10 (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.*fn11
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. § 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
The medical records reveal that Dubuisson was treated for both physical and psychological problems.
On October 28, 2005, Dubuisson was admitted to the Troy Community Hospital, Troy, Pennsylvania, "with a several-day history of right upper quadrant epigastric pain, getting worse." Tr. 192. Physical examinations and testing revealed that she had a problem with her gallbladder and on October 31, 2005, her gallbladder was surgically removed. Id. Dubuisson was discharged from the hospital on November 5, 2005. Id. At the time of discharge it was noted that she had no complications during her hospital stay, her condition was excellent, and she would have a follow-up appointment in two weeks. Id.
The medical records of this hospital stay reveal several items of importance.
On October 28, 2005, Dubuisson was asked whether she had any prolonged periods greater than 2 weeks of trouble sleeping, depression, or feelings of guilt, worthlessness or hopelessness. Dubuisson answered "no to all questions." Tr. 239. When a hospital nurse or attending physician reviewed her systems on October 28, 2005, she denied any cardiovascular, respiratory, musculoskeletal, neurological or psychiatric problems.*fn12 Tr. 175.
Dubuisson's mental status, skin, head, neck/spine, and extremities were all noted to be ...