The opinion of the court was delivered by: A. Richard Caputo United States District Judge
(Complaint Filed 11/3/11)
The above-captioned action is one seeking review of a decision of the Commissioner of Social Security ("Commissioner") denying Plaintiff Joan M. Reedy's claim for social security disability insurance benefits.
On April 1, 2009, Reedy filed protectively*fn1 an application for disability insurance benefits. Tr. 53, 149, 177-180 and 187.*fn2 The application was initially denied by the Bureau of Disability Determination*fn3 on July 15, 2009. Tr. 53 and 150-153. On August 24, 2009, Reedy requested a hearing before an administrative law judge. Tr. 53 and 154- 156. After about 15 months had passed, a hearing was held on November 15, 2010. Tr. 68-110. On December 15, 2010, the administrative law judge issued a decision denying Reedy's application. Tr. 53-62. On February 14, 2011, Reedy filed a request for review with the Appeals Council and on September 13, 2011, the Appeals Council concluded that there was no basis upon which to grant Reedy's request. Tr. 1-6 and 39-40. Thus, the administrative law judge's decision stood as the final decision of the Commissioner.
Reedy then filed a complaint in this court on November 3, 2011. Supporting and opposing briefs were submitted and the appeal*fn4 became ripe for disposition on April 9, 2012, when Reedy 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 Reedy met the insured status requirements of the Social Security Act through September 30, 2010. Tr. 53, 55, 181 and 187. In order to establish entitlement to disability insurance benefits Reedy 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).
Reedy, who was born in the United States on May 23, 1963, withdrew from high school in 1979 after completing the 11th grade and can read, write, speak and understand the English language and perform basic mathematical functions. Tr. 75, 149, 191, 196, 209 and 250. After withdrawing from high school, Reedy did not obtain a General Equivalency Diploma. Tr. 102. During Reedy's elementary and secondary schooling, she attended regular education classes. Tr. 196. Reedy stated that she did not complete any type of special job training, trade or vocation school. Id.
Reedy has past relevant employment*fn5 as a phlebotomist which was described as semi-skilled, light work by a vocational expert.*fn6 Tr. 102-103. The record reveals that Reedy worked as a phlebotomist for Geisinger Medical Center in Danville, Pennsylvania, for at least two years.*fn7 Tr. 102-103, 184-185 and 193. In a document filed with the Social Security Administration Reedy without specifying the dates stated that she worked for (1) Home Depot in the lawn and garden department, (2) a coffee shop where she served coffee, (3) a company that sealed driveways where she cleaned the driveways, and (4) as a phlebotomist for Geisinger Medical Center. Tr. 217-221. With respect to the company that sealed driveways, Reedy stated this was her husband's business and that she would use a "backpack blower" and at times "lift some equipment" weighing 50 pounds Tr. 221. In another document Reedy also reported without specifying the dates that she worked for Panera Bread in Bloomsburg, Pennsylvania, and for a CVS pharmacy in Danville as a pharmacy technician.*fn8 Tr. 251.
Records of the Social Security Administration reveal that Reedy had reported earnings in the years 1978 through 1981, 1983, 1984, 1986, 1989 and 1999 through 2007. Tr. 182. Reedy's highest annual reported earnings were in 2006 ($15,300.00) and her lowest in 1978 ($77.52). Id. Reedy's total reported earnings during those years were $49,933.11. Id. The earnings records reveal that Reedy worked for Geisinger Medical Center in 2000 (earning $2469.75), 2002 (earning $3330.68) and 2003 (earning $4942.34). Tr. 184-185. Reedy worked for Home Depot in 2003 (earning $1534.50), 2004 (earning $9527.15) and 2006 (earning $15,300.00) and for Panera Bread in 2005 (earning $391.05). Tr. 185. The earnings records also reveal that Reedy worked for the following entities: (1) Rea & Derick, Inc., in 1999 earning $2515.69, (2) ICT Group, Inc., in 2000 and 2003, earning $1190.67 and $5.00, respectively, (3) Johnny Foods, Inc., in 2000 earning $337.13, (3) Trinity United Methodist Church in 2001 and 2002, earning $1579.51 and $1719.27, respectively, (4) Muffin Man, Inc., in 2001 earning $259.50, and (5) Home Team Lending, LLC, in 2007 earning $1160.00. Tr 184-185. Reedy also worked in 2009 for Bath & Body Works, LLC, apparently for one day (the day after Thanksgiving)) and earned $72.00. Tr. 183 and 243.
Reedy alleged that she became disabled on June 15, 2006, because of failed back surgery, rheumatoid arthritis, fatigue and concentration problems, degenerative disc disease, radiculopathy and severe musculoskeletal pain, including joint pain. Tr. 75-76, 99, 192 and 215-216. In documents filed with the Social Security Administration Reedy stated that she has constant severe pain as the result of a long history of back problems. Tr. 192. She also contends that she cannot bend, stretch or reach and has an inability to use her hands because of arthritis. Tr. 76. Ready alleged that she stopped working on June 15, 2006, the disability onset date because she was in "too much pain to continue working." Tr. 192.
For the reasons set forth below we will remand the case to the Commissioner for further proceedings.
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 and supplemental security income 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,*fn9 (2) has an impairment that is severe or a combination of impairments that is severe,*fn10 (3) has an impairment or combination of impairments that meets or equals the requirements of a listed impairment,*fn11 (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.*fn12
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).").
Before we address the administrative law judge's decision and the errors committed by him, we will review some of Reedy's medical records. Although Ready's alleged disability onset date is June 15, 2006, the impetus for her alleged present disability is rheumatoid arthritis, a progressive condition, and back surgeries performed in 1994 and 1995. ...