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Pandolfo v. Colvin

United States District Court, M.D. Pennsylvania

August 15, 2014



CHRISTOPHER C. CONNER, Chief District Judge.


The above-captioned action seeks review of a decision of the Commissioner of Social Security ("Commissioner") denying Plaintiff Michael A. Pandolfo's claim for social security disability insurance benefits and supplemental security income benefits. Under 42 U.S.C. § 405(g) and relevant case law, the court is generally limited to reviewing the administrative record to determine whether the decision is supported by substantial evidence.

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 Pandolfo meets the insured status requirements of the Social Security Act through December 31, 2015. Tr. 22 and 24.[1]

Supplemental security income is a federal income supplement program funded by general tax revenues (not social security taxes). It is designed to help aged, blind or other disabled individuals who have little or no income. Insured status is irrelevant in determining a claimant's eligibility for supplemental security income benefits.

On October 4, 2010, Pandolfo protectively filed[2] an application for disability insurance benefits and an application for supplemental security income benefits. Tr. 22, 104-103, 165-171, and 315. On February 11, 2011, the Bureau of Disability Determination[3] denied Pandolfo's applications. Tr. 22, 48, 79-102 and 107-129. On March 10, 2011, Pandolfo filed a request for a hearing before an administrative law judge. Tr. 22 and 131-132. The request was granted and a hearing was held on January 19, 2012. Tr. 22 and 45-78. Pandolfo was represented by counsel at the hearing. Id.

Pandolfo in his applications for disability insurance benefits and supplemental security income benefits alleged that he became disabled on July 31, 2010. Tr. 22, 165 and 293. In documents filed with the Social Security Administration and at the administrative hearing, Pandolfo claimed that he was disabled because of both physical and mental impairments, including depression, spinal stenosis, bulging discs and osteoarthritis. Tr. 54, 296 and 317. Pandolfo claims that he has difficulty sitting, standing and walking, and concentrating and focusing, for long periods of time. Tr. 317.

On June 25, 2012, the administrative law judge issued a decision denying Pandolfo's applications. Tr. 22-40. The administrative law judge found that Pandolfo failed to prove that he met the requirements of a listed impairment or suffered from work-preclusive functional limitations. Id . The administrative law judge concluded that Pandolfo had the ability to engage in a limited range of unskilled work "at all exertional levels."[4] Tr. 28.

On July 13, 2012, Pandolfo filed a request for review with the Appeals Council. Tr. 18 and 349-351. On April 25, 2013, the Appeals Council concluded that there was no basis upon which to grant Pandolfo's request for review. Tr. 1-7. Pandolfo filed the instant complaint in this court on June 24, 2013.

Pandolfo, who was born in the United States on July 29, 1953, [5] graduated from high school in 1971, and can read, write, and converse in English and perform basic mathematical functions. Tr. 82, 295, 297 and 307. During his elementary and secondary schooling, Pandolfo attended regular education classes. Tr. 297. After graduating from high school Pandolfo did not complete "any type of specialized job training, trade or vocational school." Id.

Pandolfo's work history covers 44 years and at least 3 different employers. Tr. 176-184, 324 and 340. The records of the Social Security Administration reveal that Pandolfo had earnings in the years 1967 through 2010. Tr. 184. Pandolfo's annual earnings range from a low of $268.03 in 1967 to a high of $63, 235.88 in 1998. Id . The sum of Pandolfo's earnings during those 44 years is $913, 600.99. Id . Pandolfo reported that he worked as (1) a hotel manager from January, 1999, to July 31, 2010; (2) a road foreman for the Pennsylvania Turnpike Commission from December, 1973 to April, 1999; and (3) as a home repairman from January, 1996, to December, 1999. Tr. 324 and 340. Pandolfo reported that he quit working on July 31, 2010, because of his condition. Tr. 296. In a letter dated May 16, 2012, Pandolfo stated that prior to July 31, 2010, he was a cook/kitchen manager at a hotel and that after that date he was "just an owner/investor."[6] Tr. 343.

A vocational expert identified Pandolfo's past relevant employment[7] as (1) a hotel manager which the vocational expert described as skilled, medium work as generally performed in the economy and very heavy work as actually performed by Pandolfo; (2) a home repairer described as skilled, medium work as generally performed and skilled, very heavy work as actually performed; and (3) a maintenance foreman described as skilled, heavy work as generally performed but very heavy work as actually performed. Tr. 70.

I. 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.").

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).

II. 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 and 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, [8] (2) has an impairment that is severe or a combination of impairments that is severe, [9] (3) has an impairment or combination of impairments that meets or equals the requirements of a listed impairment, [10] (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.[11]

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 and 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).").

III. Medical Records

Before we address the administrative law judge's decision and the arguments of counsel, we will review Pandolfo's pertinent medical records and we will commence with records from early, 2010, which predate Pandolfo's alleged disability onset date of July 31, 2010.

On March 15, 2010, Ana Velez, a Master's degree level and licensed social worker, commenced counseling Pandolfo for "severe depression and anxiety caused by his business and personal conflicts in his life." Tr. 419. At that initial therapy session Pandolfo was moderately depressed with suicidal ideation. Id . Over the next six months Pandolfo had 12 sessions with Ms. Velez. Tr. 419-421. The notes of those sessions reveal that the impetus for some of Pandolfo's depression was the difficulties he was experiencing with a business partner. Id . At the last therapy session on September 7, 2010, Ms. Velez noted that Pandolfo was "severely depressed with suicidal ideation." Tr. 420. Her diagnostic assessment ...

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