CHARLES J. SIPES, Plaintiff,
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.
MALACHY E. MANNION, District Judge.
The above-captioned action is one seeking review of a decision of the Commissioner of Social Security ("Commissioner") denying Plaintiff Charles J. Sipes's claim for social security supplemental security income (SSI) benefits.
Sipes protectively filed his application for SSI benefits on January 14, 2009. Tr. 40, 123-128, 133 and 168. The application was initially denied by the Bureau of Disability Determination on July 23, 2009. Tr. 12 and 41-52. On August 5, 2009, Sipes requested a hearing before an (ALJ). Tr. 12 and 53-55. A hearing was held before an ALJ on November 15, 2010. Tr. 23-38. Sipes was represented by counsel at the hearing. Id . On November 23, 2010, the ALJ issued a decision denying Sipes's application. Tr. 12-22. The ALJ, after considering the medical records and the testimony of Sipes and a vocational expert, found that Sipes had no past relevant work but could perform the full range of light work and considering Sipes's age, education and work experience, he was not disabled pursuant to Medical-Vocational Rule 202.20. Tr. 21.
On December 20, 2010, Sipes filed a request for review with the Appeals Council. The Appeals Council on May 14, 2012, concluded that there was no basis upon which to grant Sipes's request for review. Tr. 1-4 and 6-7.
Sipes then filed a complaint in this court on June 11, 2012. Supporting and opposing briefs were submitted and the appeal became ripe for disposition on October 18, 2012, when Sipes filed a reply brief.
Sipes was born on April 20, 1978, and at all times relevant to this matter was considered a "younger individual" whose age would not seriously impact his ability to adjust to other work. 20 C.F.R. §416.963(c). Tr. 34, 62, 130 and 137.
Sipes, who withdrew from school in 1994 after completing the 7th grade and who obtained a General Equivalency Diploma in 2007, can read, write, speak and understand the English language and perform basic mathematical functions such as paying bills, counting change, handling a savings account and using a checkbook and money orders. Tr. 27, 136, 142 and 150. Sipes reported that he attended Central Fulton School District, McConnellsburg, Pennsylvania from the 1980s to 1994 and while attending school had special education classes in English and Math. Tr. 142. He also stated that he completed training in welding in 1995. Id.
Sipes has a very limited work and earnings history. Tr. 129-130, 160 and 179. The records of the Social Security Administration reveal that Sipes had earnings in the years 1994 through 1998. Tr. 129. Sipes's reported annual earnings ranged from a low of $226.50 in 1998 to a high of $2866.64 in 1996. Id . Sipes's total earnings during those 5 years were $7954.56. Id.
Sipes stated that he stopped working on December 31, 1998, because he "[w]as not being paid on time." Tr. 137. However, a "Developmental Summary" contained within the administrative record reveals that Sipes was incarcerated in 1998 and also that he was incarcerated from January, 2004, to June, 2008, at the Pennsylvania State Correctional Institution at Somerset (SCI-Somerset). Tr. 317-318.
In various filings with the Social Security Administration Snipes stated that he worked as a laborer, cook, trail cleaner, tree cutter, painter and built pools. Tr. 130-131, 160 and 179.
The earnings records from the Social Security Administration, however, reveals that Sipes worked for Wendy's and Barony Tree Farms in 1995; he worked for the Commonwealth of Pennsylvania, JLG Industries, Inc., and PAB Roof Truss Fabricators, Inc., in 1996; he worked for Delhaize America, LLC, in 1997; and he worked for David H. Hazard, Swim in the Pool, in 1998. Tr. 130-131. It is not clear when Sipes actually ceased all work because in May of 2009 Sipes told a physician who was evaluating him on behalf of the Bureau of Disability Determination that "he worked as a carpenter up until 2002. Tr. 288. Also, the medical records from SCI-Somerset suggest that while incarcerated he was working as a welder. Tr. 215.
The record reveals that Sipes has a history of alcohol and drug abuse as well as criminal convictions. Tr. 124, 186, 288, 317-318. Sipes also reported smoking one-half pack of cigarettes per day for 13 years. Tr. 228.
Sipes in his application for SSI benefits and other documents filed with the Social Security Administration claims that he became disabled on January 1, 2006. Tr. 123 and 137. Sipes claimed that he was unable to work solely because of a "[l]ower back bone problem." Tr. 137. He stated that he could not sit or stand for any length of time, he had trouble picking things up, he could "barely bend over to lift up [his] kids" and he had "trouble sleeping at night as well because of [the] pain." Id . Sipes testified at the administrative hearing that the causes of his lower back condition were two falls that occurred in 2006. Tr. 27. He stated that he "fell once" and "then a couple days later" he "was at work and [he] went down two flights of steps." Id . Sipes alleges that he developed back pain after these incidents. Id.
Sipes also reported that he lives in a house by himself but that his stepson stays with him during the week and despite his reported impairments he is able to attend to his personal care without difficulty, prepare simple meals, engage in some housework and laundry, go out side "about every other day, " drive, shop for groceries, and "read [and] watch TV  everyday." Tr. 147-151. Sipes stated that he needs no special reminders to take care of his personal needs and grooming or reminders to take his medicines. Tr. 149. He also needs no reminders "to go places." Tr. 151. In the "Function Report-Adult" completed by Sipes, he alleged that his impairments impacted the following: lifting, squatting, bending, standing, walking, sitting, kneeling and stair climbing. Id . Sipes reported that he finishes what he starts such as a conversation, chores, reading and watching a movie; he is "good" at following written and oral instructions and getting along with authority figures; he has never been fired from a job because of problems getting along with other people; he is "good" at handling stress and changes in routine; and he has not "noticed any unusual behavior or fears." Tr. 152-153. Sipes claims that he has "constant pain" and that it controls his life. Tr. 154.
At the administrative hearing, Sipes described his pain as presently being a 10 on a scale of 1 to 10; that the pain shoots up his spine and into the back of his head and that he gets severe headaches during the day; he stated that he has a headache at least once a day and that his treating physicians told him that they "probably com[e] from [his] lower back;" he reported that he takes pain medications and that the medications make him "drowsy" and sometimes "confused." Tr. 28-29. Sipes's medications at the time of the administrative hearing were Tramadol and Flexeril. Tr. 30. With respect to everyday activities, Sipes testified that he has raked leaves but that he has to do "a little bit" then stop and that he cannot stand for more than 15 minutes because his legs start going numb and that at times he stumbles. Id . Sipes described sharp, shooting, burning pain down the right side of his right leg into his knee. Tr. 31. He also reported having difficulty playing with his three children, difficulty driving and sitting for long periods of time because of back pain and headaches. Tr. 31-32.
In a pre-hearing cover-sheet submitted to the administrative law judge, Sipes stated that his severe impairments were as follows: "Lumbar facet syndrome at L4/L5, L5/S1 with L4/5 radiculopathy" and he contended that his residual functional capacity (RFC) was less than sedentary based on a medical source statement prepared by his treating physician, William L. Milroth, M.D. Tr. 183.
For the reasons set forth below we will affirm the decision of the Commissioner denying Sipes's application for SSI 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. Cellophane , 637 F.2d 968, 970 (3d Cir. 1981); Dobrowolsky v. Cellophane , 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 SSI claims. See 20 C.F.R. §416.920; 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,  (2) has an impairment that is severe or a combination of impairments that is severe,  (3) has an impairment or combination of impairments that meets or equals the requirements of a listed impairment,  (4) has the RFC 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 ALJ must determine the claimant's RFC. Id.
RFC 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 RFC assessment must include a discussion of the individual's abilities. Id; 20 C.F.R. §416.945; 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 addressing the ALJ's decision and the arguments of counsel, it is important to summarize some of the pertinent ...