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Wiesinger v. Commissioner Social Security

United States District Court, Western District of Pennsylvania

September 2, 2014

THEODORE WIESINGER, Plaintiff
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

REPORT AND RECOMMENDATION

Robert C. Mitchell United States Magistrate Judge.

I. Recommendation

It is respectfully recommended that the plaintiff’s motion for summary judgment (ECF No.9) be denied; that the defendant’s motion for summary judgment (Docket No.12) be granted, and that the decision of the Commissioner of Social Security be affirmed..

II. Report

Presently before the Court for disposition are cross motions for summary judgment.

On January 10, 2014, Theodore Wiesinger, by his counsel, filed a complaint pursuant to Sections 205(g) and 1631(c)(3) of the Social Security Act, as amended, 42 U.S.C. §§405(g) and 1383(c)(3) for review of the Commissioner's final determination disallowing his claim for a period of disability or for disability insurance benefits and supplemental security income benefits under Sections 216(i) and 223 of the Social Security Act, as amended, 42 U.S.C. §§416(i) and 423 and 1381 cf.

The plaintiff filed an application for disability and supplemental security income benefits on July 9, 2010 (R.143-153). Benefits were denied on November 9, 2010 (R.88-97). On January 7, 2011, the plaintiff requested a hearing (R.98-99), and pursuant to that request a hearing was conducted on March 15, 2012 (R.36-84). In a decision filed on May 16, 2012, an Administrative Law Judge denied benefits (R.18-30). On June 4, 2012, the plaintiff requested reconsideration of this determination (R.14), and upon reconsideration, and in a decision dated November 12, 2013, the Appeals Council affirmed the prior decision (R.1-3). The instant complaint was filed on January 10, 2014.

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..

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. Comm'r. 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)

Presently before the Court for resolution is a determination of whether or not there is substantial evidence to support the findings of the Commissioner that the plaintiff is not disabled within the meaning of the Act.

At the hearing held on March 15, 2012 (R.36-84), the plaintiff appeared with counsel (R.38), and testified that he was born on March 18, 1952 (R.39); that he graduated from college (R.51); that he worked selling appliances and as a mortgage broker (R.42); that he is unable to work due to his inability to concentrate (R.43) and that he is receiving public assistance (R.46).

The plaintiff also testified that he suffers from depression and back pain due to sciatica and a torn right rotator cuff as well as degenerative disc disease and high blood pressure (R.43-44, 56); that he also suffers from anxiety (R.53); that he takes over the counter medication as well as prescription medication for his blood pressure and receives physical therapy (R.46, 56); that he does not take any medication for his mental health (R.53) that he can sit for about twenty minutes, has no problem standing and can lift ten to twenty pounds (R.47, 49); that he experiences difficulty concentrating and is not computer literate (R.51-53); that he performs chores for his mother-in-law and his parents as well as church volunteer work (R.54-56); that he has an alcohol problem (R.58) and that he experiences memory difficulties (R.66).

At the hearing a vocational expert was called upon to testify (R.67-81). She characterized the plaintiff’s past work as skilled to semi-skilled in nature which was sedentary to light in physical demands (R.68); when asked to assume an individual of the plaintiff’s age, education and work experience who could lift ten to twenty pounds, the witness indicated that such an individual could perform some of the plaintiff’s past work if he had maintained his license and of which there were many jobs (R.68-69, 74); however, if the individual was off task about fifteen percent of the time, she responded he could not be employed (R.69-70); however, she also testified that if he could not obtain the necessary licensing, he still had transferrable skills which he could apply to a large number of jobs (R.76). Additionally, she testified that if the individual had to take frequent work breaks he would not be employable (R.81).

The issue before the Court is whether or not the decision of the Commissioner is supported by substantial evidence.

The term "disability" is defined in 42 U.S.C. Section 423(d)(1)(A) as:

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....

For purposes of the foregoing, the requirements for a disability determination are provided in 42 U.S.C. Section 423(d)(2)(A):

An 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 ... "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.

A "physical or mental impairment" is "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. Section 423(d)(3). These provisions are also applied for purposes of ...


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