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Draina v. Colvin

United States District Court, Third Circuit

December 30, 2013

DONNA L. DRAINA, Plaintiff


ROBERT D. MARIANI, District Judge.


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

Draina protectively filed her application for disability insurance benefits on November 20, 2008. Tr. 22, 95, 125-131 and 137.[1] The application was initially denied by the Bureau of Disability Determination[2] on April 23, 2009. Tr. 22 and 99-104. On May 21, 2009, Draina requested a hearing before an administrative law judge. Tr. 22 and 111-112. After about 12 months had passed, a hearing was held on May 12, 2010, before an administrative law judge. Tr. 22 and 39-73. Draina was represented by counsel at the hearing. Id . On June 22, 2010, the administrative law judge issued a decision denying Draina's application.[3] Tr. 22-34. As will be explained in more detail infra the administrative law judge found that Draina could perform the full range of work from an exertional standpoint[4] but had some non-exertional limitations. Tr. 27. On July 19, 2010, Draina filed a request for review with the Appeals Council and after about 20 months had elapsed the Appeals Council on March 6, 2012, concluded that there was no basis upon which to grant Draina's request for review. Tr. 1-6 abd 16-18.

Draina then filed a complaint in this court on May 4, 2012. Supporting and opposing briefs were submitted and the appeal[5] became ripe for disposition on October 15, 2012, when Draina 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 Draina met the insured status requirements of the Social Security Act through December 31, 2010. Tr. 23-24 and 138.

Draina, who was born in the United States on October 5, 1959, [6] graduated from high school and can read, write, speak and understand the English language and perform basic mathematical functions such as counting change and using a checkbook and money orders. Tr. 149, 154, 160 and 268. During her elementary and secondary schooling, Draina attended regular education classes. Tr. 154. After graduating from high school, Draina did not complete "any type of special job training, trade or vocational school" but did attend college for one year. Id.

Draina's work history covers 22 years and at least 7 different employers. Tr. 139 and 151. The records of the Social Security Administration reveal that Draina had earnings in the years 1977 through 1980, 1984 through 1991, and 1997 through 2006.[7] 139. Draina's annual earnings range from a low of $329.44 in 1977 to a high of $12, 427.85 in 1990. Id . Draina's total earnings during those 22 years were $136, 110.65. Id.

Draina in a document filed with the Social Security Administration stated that she worked (8 hours per day, 5 days per week) as a computer coder in the garment industry from October, 1978, to June, 1979; as the head of sales for a department store (8 hours per day, 5 days per week) from July, 1985 to August, 1988; as a credit and collections agent for a gas company (8 hours per day, 5 days per week) from August, 1996 to January, 1998; as a dispatcher for a gas company (4 hours per day, 5 days per week) from January, 1998 to February, 2000;[8] as a secretary for a non profit organization (8 hours per day, 5 days per week) from September, 1999 to September, 2000;[9] as a school van driver for the handicapped (5 hours per day, 5 days per week) from October, 2001 to January, 2006;[10] and as a kitchen helper for a school district (8 hours per day, 5 days per week) from October, 2006 to November, 2006.[11] Tr. 151 (Disability Report - Adult - Form SSA - 3368).

Draina has past relevant employment[12] as (1) a collection worker which was described as skilled, sedentary work by a vocational expert, (2) a dispatcher which was described as skilled, sedentary work, (3) a driver described as semi-skilled, medium work as generally performed in the economy but light work as actually performed by Draina, and (4) a secretary described as semi-skilled, sedentary work. Tr. 68.

Draina in her application for disability insurance benefits claimed that she became disabled on January 2, 2006. However, because there was a prior application asserting the same onset date and a decision dated November 14, 2008, the disability onset date for purposes of review of the Commissioner's decision is November 15, 2008, which we will refer to as the "effective disability onset date." Draina claims that she is unable to work because of mental and physical impairments. Tr. 149. Draina identified agoraphobia, panic attacks, anxiety and depression as her mental health impairments and high blood pressure and irritable bowel syndrome as her physical impairments. Id . Draina alleges that she gets fatigued "fast and often, " that she has to "use the bathroom frequently and often, " she cannot "concentrate or focus for long period[s] of time, " and she "suffer[s] from mood swings and panic attacks" with associated "difficulties working around others." Tr. 178. She claims that her condition has gradually worsened over time. Id.

Although Draina has alleged some physical impairments, her main disabling impairments relate to her mental functioning. In a "Function Report - Adult" completed by Draina when asked to check items which are affected by her illnesses or conditions did not check the following: lifting, squatting, bending, standing, reaching, walking, sitting, kneeling, hearing, stair climbing, seeing and using hands. Tr. 162. Instead Draina alleged that her impairments impacted the following: talking, memory, completing tasks, concentration, understanding, following instructions and getting along with others. Id.

For the reasons set forth below we will affirm the decision of the Commissioner denying Draina's application for 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).

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 ...

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