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Adam J. Schrader v. Michael J. Astrue

September 28, 2012

ADAM J. SCHRADER, PLAINTIFF
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT



The opinion of the court was delivered by: Judge Caputo

(Complaint Filed 5/12/11)

MEMORANDUM

BACKGROUND

The above-captioned action is one seeking review of a decision of the Commissioner of Social Security ("Commissioner") denying Plaintiff Adam J. Schrader's claim for social security disability insurance benefits.

On December 8, 2008, Schrader filed protectively*fn1 an application for disability insurance benefits. Tr. 12, 64 and 140.*fn2 The application was initially denied by the Bureau of Disability Determination*fn3 on March 13, 2009. Tr. 12 and 73-76. On May 12, 2009, Schrader requested a hearing before an administrative law judge. Tr. 12, 77-78 and 151-158.

After 10 months had elapsed, a hearing was held on March 25, 2010. Tr. 12 and 24-60. On May 13, 2010, the administrative law judge issued a decision denying Schrader's application. Tr. 12-19. On May 26, 2010, Schrader filed a request for review with the Appeals Council and on March 11, 2011, the Appeals Council concluded that there was no basis upon which to grant Schrader's request. Tr. 1-5 and 8.

Schrader then filed a complaint in this court on May 12, 2011. Supporting and opposing briefs were submitted and the appeal*fn4 became ripe for disposition on November 1, 2011, when Schrader filed a reply brief.

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 Schrader met the insured status requirements of the Social Security Act through December 31, 2010. Tr. 12, 14 and 140.

Schrader, who was born in the United States on January 12, 1972,*fn5 graduated from high school in 1996*fn6 and can read, write, speak and understand the English language and perform basic mathematical functions. Tr. 64, 176, 189, 194, 200 and 253-254. During Schrader's elementary and secondary schooling, he attended regular education classes. Tr. 204. Schrader reported that he was an average student. Tr. 253.

Schrader has past relevant employment*fn7 as a delivery person, packager and industrial cleaner. Tr. 17 and 49. Those positions were described by a vocational expert as medium work. Id. *fn8 Records of the Social Security Administration reveal that Schrader had earnings spanning the years 1988 through 2007 as follows; 1988 $2356.25 1989 3040.00 1990 5774.01 1991 7637.36 1992 2395.50 1993 2100.90 1994 0.00 1995 2212.66 1996 7920.00 1997 2640.00 1998 0.00 1999 4933.75 2000 16646.00 2001 18694.00 2002 19722.38 2003 18505.00 2004 5292.00 2005 0.00 2006 6007.77 2007 620.00 Tr. 124. Schrader's total earnings during those years were $113,463.97. Id.

Schrader has a significant history of using illegal drugs (cocaine and marijuana) and criminal behavior, including convictions for forgery and assault. Tr. 30-34, 45 and 252-254. He has been incarcerated for extended periods of times in both the Dauphin and Perry County Prisons. Id. In 2005 Schrader was convicted of a forgery charge and received a sentence of imprisonment of one to three years in the Perry County Prison.

Tr. 44-45. Schrader was incarcerated in 2006 apparently for drug offenses but granted work-release. Tr. 30-34. While on work-release he "threatened to beat the crap out of" his employer and the work-release was revoked. Id. In 2007 Schrader was convicted of assaulting his wife and was sentenced to 10 months in the Dauphin County Prison to be followed by "5 years of probation or parole." Tr. 42. Schrader last worked on May 30, 2007, when his work-release from prison was again revoked this time allegedly for being in possession of cell phone. Tr. 44-45 and 190.

Schrader alleges that he became disabled on July 30, 2004,*fn9 because of the following mental health impairments: bipolar disorder, antisocial personality disorder, attention deficit hyperactivity disorder and depressive disorder. Doc. 15, Plaintiff's Brief, p. 2. In the present appeal Schrader does not contend that he is disabled because of a physical impairment. Id. Schrader testified that he last worked on a consistent basis in 2004 as a delivery person. Tr. 37-38. The reason given by Schrader for terminating that employment was that he became "hooked on crack cocaine and [his] boss basically asked [him] to quit or resign or she was going to fire [him]." Tr. 38. The record further reveals several instances where Schrader while incarcerated engaged in manipulative behavior to obtain drugs. Tr. 303 and 306.

For the reasons set forth below we will affirm the decision of the Commissioner denying Schrader disability insurance benefits.

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 claims. See 20 C.F.R. §404.1520; 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,*fn10 (2) has an impairment that is severe or a combination of impairments that is severe,*fn11 (3) has an impairment or combination of impairments that meets or equals the requirements of a listed impairment,*fn12 (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.*fn13

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; 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

Because Schrader only alleges mental health impairments in the present appeal, we will only address the records which address Schrader's mental health status.

In medical history forms dated February 21 and April 18, 2006, from Perry County Prison there were no psychiatric ...


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