United States District Court, M.D. Pennsylvania
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 Michelle Margo Sturges's claim for social security disability insurance benefits.
Sturges protectively filed her application for disability insurance benefits on November 24, 2008. Tr. 97-104 and 113. The application was initially denied by the Bureau of Disability Determination on June 23, 2009. Tr. 12 and 65-69. On August 12, 2009, Sturges requested a hearing before an administrative law judge. Tr. 12 and 72-73. After about 13 months had passed, a hearing was held on September 8, 2010. Tr. 38-62. Sturges was represented by counsel at the hearing. Id . On October 27, 2010, the administrative law judge issued a decision denying Sturges's application. Tr. 12-26. As will be explained in more detail infra the administrative law judge found that Sturges failed to prove that she met the requirements of a listed impairment or suffered from work-preclusive functional limitations. Id . Instead Sturges had the ability to perform a limited range of light work,  including as a ticket taker, locker room or check room attendant, photocopy clerk and order filler. Tr. 26. On December 22, 2010, Sturges filed a request for review with the Appeals Council and after about 18 months had elapsed the Appeals Council on June 26, 2012, concluded that there was no basis upon which to grant Sturges's request for review. Tr. 1-8.
Sturges then filed a complaint in this court on August 17, 2012. Supporting and opposing briefs were submitted and the appeal became ripe for disposition on March 14, 2013, when Sturges elected not to file 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 Sturges met the insured status requirements of the Social Security Act through December 31, 2012. Tr. 23-24 and 138.
Sturges was born in the United States on September 22, 1971, and at all times relevant to this matter was considered a "younger individual" whose age would not seriously impact her ability to adjust to other work. 20 C.F.R. § 404.1516(c); Tr. 42, 64, 97 and 106.
Sturges, who obtained a General Equivalency Diploma (GED) in March 1991, can read, write, speak and understand the English language and perform basic mathematical functions. Tr. 43, 124 and 133. During her schooling, Sturges attended regular education classes. Tr. 134. After obtaining a GED, Sturges in 1992 received training in emergency medical technology. Id.
Sturges's work history covers 14 years and at least 8 different employers. Tr, 107-111. The records of the Social Security Administration reveal that Sturges had earnings in the years 1988 through 1993 and 2001 through 2008. Tr. 107. Sturges's annual earnings range from a low of $1413.71 in 1993 to a high of $20, 924.20 in 2006. Id . Sturges's total earnings during those 14 years were $148, 877.19. Id.
Sturges in a document filed with the Social Security Administration stated that she worked as a waitress for a country club from April, 2001 to August, 2001 (8 hours per day, 5 days per week); as a child care assistant for a day care center from August, 2001 to February, 2002 (8 hours per day, 5 days per week); as an office worker for a construction company from February, 2002 to May, 2002 (8.5 hours per day, 5 days per week); as a sales associate/stock person for Wal-Mart Associates, Inc. ("Wal-Mart"), from July, 2002 to October, 2003 (8 hours per day, 5 days per week); as a department manager for Wal-Mart from October, 2003 to October, 2006 (8 hours per day, 5 days per week); as an assistant manager trainee for Wal-Mart from October, 2006 to March, 2007 (8 hours per day, 5 days per week); as an assistant store manager for Wal-Mart from March, 2007 to September, 2007 (11.5 hours per day, 6 days per week); and as a receptionist for C & L Marketing, Inc., a travel agency, from February, 2008 through May, 2008 (30 hours per week). Tr. 43-44, 110-111, 118-119 and 136-146.
Sturges has past relevant employment as (1) a telemarketer which was described as semi-skilled, sedentary work by a vocational expert; (2) a department store manager which was described as skilled, sedentary work as normally performed in the economy but medium work as actually performed by Sturges; (3) a child care attendant described as semi-skilled, light work; (4) a waitress described as semi-skilled, light work; and (5) a sales/stock person described as unskilled, medium work. Tr. 54.
Sturges contends that she became disabled on September 29, 2007, because of physical impairments, including severe neck and spine pain, fibromyalgia, headaches, vomiting, shoulder blade pain, radiating pain down her arms, involuntary spasms and movements of the legs, weakness in the arms, vertigo, dizziness, black out spells, muscular spasms in the neck and back, and loss of urinary and bowel function. Tr. 125. Subsequently, in August, 2009, she claimed that she suffered from "dead" arms and legs; her "shooting pains" had "all gotten worse;" and she suffered from disabling depression. Tr. 176. In the brief submitted in support of the present appeal Sturges asserts that she had cervical spine surgery in 2009 and that after the surgery she continued to have radiating pain in her arms, elbows, wrists and fingers; she drops things because of lack of sensation in her hands and arms; she has difficulty lifting her arms and hands; she can only write for a short amount of time without experiencing shooting pains in the elbows, wrists and fingers; she cannot grasp a carton of milk; she drags her left leg; and she has debilitating headaches which occur everyday and cause her to vomit and lose vision. Doc. 8, Plaintiff's Brief, pp. 3-4.
For the reasons set forth below we will affirm the decision of the Commissioner denying Sturges'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).
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,  (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 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.
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 ...