The opinion of the court was delivered by: Judge Caputo
(Complaint Filed 7/29/2011)
The above-captioned action is one seeking review of a decision of the Commissioner of Social Security ("Commissioner") denying Plaintiff Kenneth E. Kaumans's claim for social security disability insurance benefits.
On July 20, 2009, Kaumans filed protectively*fn1 an application for disability insurance benefits. Tr. 10, 27, 54 and 129.*fn2 The application was initially denied by the Bureau of Disability Determination*fn3 on February 23, 2010. Tr. 56-60. On March 8, 2010, Kaumans requested a hearing before an administrative law judge. Tr. 10 and 61-62. After about 10 months had elapsed, a hearing was held on January 3, 2011. Tr. 25-46. On March 7, 2011, the administrative law judge issued a decision denying Kaumans's application. Tr. 10-20. On April 1, 2011, Kaumans filed a request for review with the Appeals Council and on June 7, 2011, the Appeals Council concluded that there was no basis upon which to grant Kaumans's request. Tr. 1-6 and 102. Kaumans was not represented by counsel during the administrative proceedings.
Kaumans then obtained counsel and filed a complaint in this court on July 29, 2011. Supporting and opposing briefs were submitted and the appeal*fn4 became ripe for disposition on December 27, 2011, when Kaumans 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 Kaumans meets the insured status requirements of the Social Security Act through December 31, 2012. Tr. 10, 112, 123 and 129.
Kaumans, who was born in the United States on January 19, 1961, withdrew from secondary school in 1977 after completing the 9th grade. Tr. 32-33, 115, 139 and 353. Testing when Kaumans was attending school revealed that he had a learning disability. Tr. 170. During his schooling he attended special education classes. Tr. 139. Kaumans attempted to obtain a General Equivalency Diploma but failed the test, even though he had a tutor. Tr. 33 and 337
Kaumans has past relevant employment*fn5 as a tile helper which was described by a vocational expert as unskilled, very heavy work, and as a boiler room operator described as skilled, medium work. Tr. 43-44 and 134. *fn6 Records of the Social Security Administration reveal that Kaumans had earnings spanning the years 1977 through 2007 as follows;
1977 $667.59 1978 699.62 1979 1148.45 1980 1253.95 1981 1819.06 1982 1239.50 1983 1848.60 1984 4065.76 1985 3081.99 1986 7774.30 1988 10577.05 1988 14215.75 1989 7178.31 1990 10739.61 1991 3426.88 1992 10786.14 1993 9368.50 1994 12272.16 1995 13915.29 1996 14612.05 1997 14512.52 1998 16635.78 1999 19116.99 2000 19750.79 2001 18972.52 2002 18559.25 2003 17386.47 2004 26107.77 2005 30870.80 2006 30198.18 2007 26467.93
Tr. 124. Kaumans's total earnings during those years were $369,269.20. Id.
Kaumans alleges that he became disabled on April 30, 2009, because of both physical and psychiatric problems, including diabetes and depression. Tr. 133. Kaumans has not worked since April 30, 2009. Id.
Because there were legal errors committed during the administrative proceedings we will remand this case to the Commissioner for further consideration.
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).
Another critical requirement is that the Commissioner adequately develop the record. Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000)("The ALJ has an obligation to develop the record in light of the non-adversarial nature of benefits proceedings, regardless of whether the claimant is represented by counsel."); Rutherford v. Barnhart, 399 F.3d 546, 557 (3d Cir. 2005); Fraction v. Bowen, 787 F.2d 451, 454 (8th Cir. 1986); Reed v. Massanari, 270 F.3d 838, 841 (9th Cir. 2001); Smith v. Apfel, 231 F.3d 433. 437 (7th Cir. 2000); see also Sims v. Apfel, 530 U.S. 103, 120 S.Ct. 2080, 2085 (2000)("It is the ALJ's duty to investigate the facts and develop the arguments both for and against granting benefits[.]"). If the record is not adequately developed, remand for further proceedings is appropriate. Id. 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,*fn7 (2) has an impairment that is severe or a combination of impairments that is severe,*fn8 (3) has an impairment or combination of impairments that meets or equals the requirements of a listed impairment,*fn9 (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.*fn10
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 ...