MEMORANDUM and ORDER
ROBERT C. MITCHELL, Magistrate Judge.
Presently before the Court for disposition are cross motions for summary judgment.
On December 3, 2012, Charles Richard Koslovic Jr., by his counsel, filed a complaint pursuant to Section 205(g) of the Social Security Act, as amended, 42 U.S.C. §405(g) for review of the Commissioner's final determination disallowing his claim for Supplemental Security Income benefits under Sections 1614 and 1631 of the Act, as amended, 42 U.S.C. §1381 cf. For the reasons set forth below, the plaintiff's motion for summary judgment (ECF 11) will be denied; the defendant's motion for summary judgment (ECF 13) will be granted and the determination of the Commissioner will be affirmed.
The instant application for Supplemental Security Income Benefits was filed on June 4, 2009 (R.172-178). On September 1, 2009, benefits were denied (R.89-93). On October 8, 2009, the plaintiff requested a hearing (R.94) and pursuant to that request a hearing was held on March 30, 2011 and continued to July 11, 2011 (R.30-80). In a decision filed on August 17, 2011, an Administrative Law Judge denied benefits (R.12-25). On October 15, 2012, the Appeals Council affirmed the prior determination (R.1-3). The instant complaint was filed on December 3, 2012.
In reviewing an administrative determination of the Commissioner, the question before any court is whether there is substantial evidence in the agency record to support the findings of the Commissioner that the plaintiff failed to sustain his/her burden of demonstrating that he/she was disabled within the meaning of the Social Security Act. Richardson v. Perales , 402 U.S. 389 (1971); Adorn v. Shalala , 40 F.3d 43 (3d Cir. 1994).
It is provided in 42 U.S.C. Section 405(g) that:
The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing. The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive....
Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Johnson v. Camber. 529 F.3d 198 (3d Cir. 2008) and the court may not set aside a decision supported by substantial evidence. Hartranft v. Apfel , 181 F.3d 358 (3d Cir. 1999)
The purpose of the Supplemental Security Income Program is to provide additional income to persons of limited resources who are aged, blind or disabled persons. 42 U.S.C. §1381; Chalmers v. Shalala , 23 F.3d 752 (3d Cir. 1994). To be eligible for such benefits, an individual's income must not exceed a certain established maximum and he/she must fulfill certain eligibility requirements.
As set forth in 20 C.F.R. § 416.905(a) disability is defined as:
The inability to do 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.
In addition, a person will be considered disabled if he/she is
(a)... permanently and totally disabled as defined under a State plan approved under title XIV or XVI of the Social Security Act, as in effect for October 1972; (b)... received aid under the State plan... for the month of December 1973 and for at least one month prior to July 1973; and (c)... continue[s] to be disabled as defined under the State plan.
20 C.F.R. § 416.907.
A physical or mental impairment is defined in 20 C.F.R. §416.908 as an: impairment [which] result[s] from anatomical, physiological, or psychological abnormalities which [are demonstrated] by medically acceptable clinical and laboratory diagnostic techniques.
For purposes of determining whether or not the plaintiff met the eligibility requirements, certain evidence was considered by the Commissioner.
At the hearing held on March 30, 2011 and continued to July 11, 2011 (R.30-80), the plaintiff appeared with counsel (R.40) and testified that he was born on February 21, 1971 (R.45); that he completed high school (R.48); that he worked in heavy construction (R.48); that he last worked in 2004 (R.52) and that he is receiving public assistance (R.46).
The plaintiff also testified that he experiences back, neck and leg pain (R.57); that his back has gotten worse (R.51); that he takes pain medication and attends therapy (R.53, 54-55); that he can sit for about twenty minutes (R.57); that he spends most of his day in bed and occasionally cannot get out of bed (R.58, 69); that he does not perform any household chores (R.60); that in 2003 he was diagnosed with a bi-polar disorder (R.62) and that he experiences anxiety attacks and anger management problems (R.62).
At the hearing a vocational expert was called upon to testify (R.76-79). He characterized the plaintiff's past work as heavy skilled labor (R.77). When asked to assume an individual of the plaintiff's age, education and past work experience who is limited to sedentary work activity the witness responded that such an individual could not perform the plaintiff's prior work but would be capable of participating in a large number of other gainful activities (R.78). However, he further testified that if the individual was "off task" at least fifteen to twenty percent of the workday, he ...