United States District Court, M.D. Pennsylvania
REPORT AND RECOMMENDATION TO DENY PLAINTIFF'S
APPEAL DOC. 1, 15, 16, 17, 18, 19, 20, 21, 22, 23
REPORT AND RECOMMENDATION
B. COHN UNITED STATES MAGISTRATE JUDGE.
above-captioned action is one seeking review of a decision of
the Commissioner of Social Security (“Defendant”)
denying the application of Plaintiff for supplemental
security income (“SSI”) under the Social Security
Act, 42 U.S.C. §§401-433, 1382-1383 (the
“Act”), and Social Security Regulations, 20
C.F.R. §§404 et seq., 416 et seq.
was developmentally delayed, and began receiving child
disability benefits when she was two years old. Doc. 16. By
eighth grade, she functioned “commensurate with her
chronological age” and her IQ tested in the average
range. (Tr. 303, 310). The Bureau of Disability Determination
terminated Plaintiff's benefits when it redetermined her
eligibility under adult rules after she turned eighteen years
old. Doc. 16. The relevant period runs from June 20, 2012
through May 15, 2014, the date of the administrative law
judge (“ALJ”) decision, when she was twenty years
old. Doc. 16.
carried diagnoses of asthma and kidney stones, but received
no treatment for asthma or kidney stones and made no
complaints to medical providers about asthma or kidney stones
during the relevant period. Doc. 16. The ALJ reasonably found
that neither asthma nor kidney stones disabled Plaintiff
between June of 2012 and May of 2014. Doc. 16. Plaintiff
treated with a psychiatrist for medication management on a
declining dose of medications through May of 2013 for
attention deficit-hyperactivity disorder
(“ADHD”), obsessive-compulsive disorder
(“OCD”), and learning disorder by history. Doc.
16. She reported few symptoms, exhibited normal mental
findings, and stopped treating entirely for a year. Doc. 16.
She stopped taking Adderall for ADHD at the beginning of the
relevant period and denied obsessions and compulsions at
every visit. Doc. 16. She reported stable moods, denied
anxiety and depression, and indicated that she got along well
with friends, family, and her long-term boyfriend. Doc. 16.
Her psychiatrist typically assessed a global assessment of
functioning (“GAF”) of 60, which indicates only
mild symptoms or functional impairment, and two expert
psychiatrists who reviewed Plaintiff's file indicated
that she could perform simple, unskilled work. Doc. 16.
Plaintiff reported in support of her claims for benefits that
she had severe symptoms and additional diagnoses, like
bipolar disorder and schizophrenia, but these reports were
contradicted by the diagnoses in her medical records, her
reports in the medical records, normal observations on mental
status examination, conservative treatment with no
hospitalizations throughout and no treatment whatsoever for
one year of the relevant period, and the two medical experts
who opined she could do light work. Doc. 16. No medical
opinion supports Plaintiff's claims. Doc. 16.
statements Plaintiff made in support of her application for
benefits support her claim, but the Regulations do not
require the ALJ to accept those statements. See 20
C.F.R. §404.1529. If the ALJ identifies factors that
contradict those statements, then the ALJ may reject them.
Id. The Regulations allow the ALJ to find that
conservative treatment, an absence of complaints in medical
records, normal mental status findings and average IQ, and
multiple medical expert opinions contradict Plaintiff's
statements to the agency and to the Court. Id.
Plaintiff had diagnosed medical impairments, but those
impairments do not mean she is disabled. See Jones v.
Sullivan, 954 F.2d 125, 128 (3d Cir. 1991) (There is no
“presumption that a mere diagnosis…renders an
applicant eligible for benefits under the Social Security
Act”). Plaintiff bears the burden to produce evidence
that demonstrates she is disabled, and the only evidence that
she was disabled are statements made to the agency and the
Court, which the ALJ properly discounted. 42 U.S.C.A. §
1382c(a)(3)(H)(i). Plaintiff failed to produce credible
evidence of disability.
Court is not unsympathetic. Plaintiff suffers from medical
conditions which limit her and make it more difficult for her
to find a job. Townsend v. Sec'y of Health, Ed. &
Welfare, 325 F.Supp. 982, 986 (E.D. Ky. 1971) (despite
“sympathy for claimants who have worked as laborers for
many years and who have physical ailments which cause them
discomfort, ” claimants bear the “burden,
however, of proving their entitlement to benefits under the
Act”). However, the Act does not award disability
benefits to individuals who cannot get hired for a job.
Reed v. Comm'r of Soc. Sec., No. 08-2072, 2009
WL 1106576, at *1 (C.D. Ill. Apr. 3, 2009), report and
recommendation adopted, No. 08-CV-2072, 2009 WL 1106577
(C.D. Ill. Apr. 23, 2009) (“one can sympathize with
Plaintiff's difficulties with finding a job, ” but
if “jobs exist which a claimant could perform, he will
not be entitled to disability benefits”) (internal
citations omitted); Fields v. Celebrezze, 218
F.Supp. 334, 337 (E.D. Ky. 1963) (“impairments and
injuries of great severity have been held insufficient to
establish entitlement to the benefits of the Act. The
definition of disability for the present purpose is a narrow
one and this court is constantly mindful of its obligation to
apply the statute as it is drawn, not according as its
natural sympathies may lie”). The Act only awards
benefits to individuals who cannot perform a job, even the
easiest, least demanding job in the economy. Reefer v.
Barnhart, 326 F.3d 376, 379 (3d Cir. 2003). There may
not be any job openings in the easiest, least demanding
position, but that is an issue for unemployment programs, not
disability. Schmiedigen v. Celebrezze, 245 F.Supp.
825, 827 (D.D.C 1965) (Social Security benefits “are
not gratuities or matters of grace; they are not public
assistance; they are not welfare payments”); Evans
v. Celebrezze, 237 F.Supp. 1021, 1023 (E.D. Ky. 1965)
(“Despite our natural sympathy for the plight of the
plaintiff, we have no power or authority to award
unemployment compensation under the guise of disability
insurance under the provisions of the Social Security Act
here involved”); Flaten v. Sec'y of Health
& Human Servs., 44 F.3d 1453, 1465 (9th Cir. 1995)
(“Although we sympathize with individuals like Flaten
who earnestly believe that their disability prevented their
return to work, we cannot disregard the Social Security
Act's eligibility requirements”). Unless
Plaintiff's medical conditions would make her incapable
of performing the easiest, least demanding job in the
economy, if she was offered the job, she is not entitled to
specifically, the Court must determine whether substantial
evidence supports the ALJ's denial of benefits. See
Reed v. Bowen, 833 F.2d 1005 (4th Cir. 1987) (“As
is not infrequently the case, an appeal of a Social Security
case in which the district court has upheld the
Secretary's denial of Social Security Disability
Insurance benefits wends its way to us heavily laden with
sympathetic considerations in favor of the Social Security
petitioner. Fortunately or unfortunately, it is not our
function to decide appeals as we would have preferred to see
them decided if we had been the finder of fact. The
fact-finder is the Secretary; if substantial evidence
supports the conclusion of the Secretary, the decision should
be affirmed”) (internal citation omitted); Bowman
v. Heckler, 706 F.2d 564, 566-67 (5th Cir. 1983)
(“Like many of the social security disability benefit
cases that come before us, Ms. Bowman's case evokes our
sympathy… But our role in reviewing disability
determinations by the Secretary is circumscribed by the
statute. 42 U.S.C. § 405(g) (Supp. V 1981)…While
we need not be hard hearted, we must be cool tempered: if the
Secretary's findings are supported by substantial
evidence, they are conclusive”) (internal citations
omitted). Substantial evidence is a low standard.
Id. Even if the Court would have decided
differently, the Court must uphold the decision unless it was
so unreasonable that the Court would direct a verdict in
Plaintiff's favor if the issue were before a jury.
Reefer v. Barnhart, 326 F.3d 376, 379 (3d Cir.
2003). Here, the Court would not direct a verdict in
Plaintiff's favor if the issue before a jury.
Id. The Court recommends that Plaintiff's appeal
be denied, the decision of the Commissioner be affirmed, and
the case closed.
began receiving disability benefits in 1996, when she was two
years old. (Tr. 61-68). Her benefits were redetermined under
adult rules in June of 2012, and a new application was
consolidated with the redetermination. (Tr. 61-68). On June
20, 2012, her benefits ceased. (Tr. 61-68). Plaintiff
requested reconsideration, which was denied on June 3, 2013.
(Tr. 77-84). Plaintiff requested a hearing. (Tr. 85-87). On
November 26, 2013, an ALJ held a hearing at which
Plaintiff-who was not represented by an attorney-appeared.
(Tr. 55-60). The ALJ continued the hearing to January 30,
2014 so that Plaintiff could obtain counsel. (Tr. 55-60,
166). Plaintiff obtained counsel, who was unable to attend
the January 30, 2014 hearing, so the hearing was continued.
(Tr. 166). On April 2, 2014, the state agency notified
Plaintiff of a hearing scheduled for April 22, 2014, and
Plaintiff acknowledged receiving the notice on April 14,
2014. (Tr. 53, 167- 86). On April 22, 2014, Plaintiff failed
to appear at the hearing, although counsel was present, and
the ALJ obtained testimony from a vocational expert. (Tr.
47-52). The ALJ issued a Notice to Show Cause for Failure to
Appear, and Plaintiff responded on April 24, 2014 indicating
that her mother had surgery on April 22, 2014, she had no
transportation or gas money, and her mental impairments
prevented her from attending. (Tr. 207). The ALJ found that
Plaintiff failed to show good cause, noting that Plaintiff
did not report transportation difficulties when she
acknowledged she would be at the hearing a week earlier, did
not contact her representative or the state agency to inform
them she was unable to attend, and that she had attended a
previous hearing despite alleged mental difficulties, which
were also unsupported by the medical records. (Tr. 38). On
May 15, 2014, the ALJ found that Plaintiff was not disabled
and not entitled to benefits. (Tr. 28-46). On November 10,
2015, the Appeals Council declined review, rendering the ALJ
decision the “final decision” of the
Commissioner. (Tr. 1-9). See Sims v. Apfel, 530 U.S.
103, 107 (2000).
December 22, 2015, Plaintiff filed the above-captioned action
pursuant to 42 U.S.C. § 405(g) to appeal the decision of
the Commissioner. (Doc. 1). On February 25, 2016, the
Commissioner filed an answer and administrative transcript of
proceedings. (Docs. 15, 16). On April 7, 2016, May 27, 2016,
October 18, 2016, and November 3, 2016, Plaintiff filed
pro se briefs in support of the appeal (“Pl.
Briefs”). (Docs. 17, 18, 20, 21, 23). On May 11, 2016
and October 25, 2016, Defendant filed briefs in response
(“Def. Briefs”). (Docs. 19, 22). On November 11,
2016, the case was referred to the undersigned Magistrate
Judge. The matter is now ripe for review.
Standard of Review and Sequential Evaluation Process
receive DIB or SSI, a claimant 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. §
423(d)(1)(A); 42 U.S.C. § 1382c(a)(3)(A). The Act
requires that a claimant for disability benefits show that he
has a physical or mental impairment of such a 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.
42 U.S.C. § 423(d)(2)(A); 42 U.S.C. §
Commissioner uses a five-step evaluation process to determine
if a person is eligible for disability benefits. See
20 C.F.R. § 404.1520. If the Commissioner finds that a
Plaintiff is disabled or not disabled at any point in the
sequence, review does not proceed. Id. The
Commissioner must sequentially determine: (1) whether the
claimant is engaged in substantial gainful activity; (2)
whether the claimant has a severe impairment; (3) whether the
claimant's impairment meets or equals a listed impairment
from 20 C.F.R. Part 404, Subpart P, Appendix 1
(“Listing”); (4) whether the claimant's
impairment prevents the claimant from doing past relevant
work; and (5) whether the claimant's impairment prevents
the claimant from doing any other work. Id. Before
step four, the ALJ must also determine Plaintiff's
residual functional capacity (“RFC”).
disability determination involves shifting burdens of proof.
The claimant bears the burden of proof at steps one through
four. If the claimant satisfies this burden, then the
Commissioner must show at step five that jobs exist in the
national economy that a person with the claimant's
abilities, age, education, and work experience can perform.
See Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir.
1993). The ultimate burden of proving disability within the
meaning of the Act lies with the claimant. See 42 U.S.C.
§ 423(d)(5)(A). Specifically, the Act provides that:
An individual shall not be considered to be under a
disability unless he furnishes such medical and other
evidence of the existence thereof as the Commissioner of
Social Security may require. An individual's statement as
to pain or other symptoms shall not alone be conclusive
evidence of disability as defined in this section; there must
be medical signs and findings, established by medically
acceptable clinical or laboratory diagnostic techniques,
which show the existence of a medical impairment that results
from anatomical, physiological, or psychological
abnormalities which could reasonably be expected to produce
the pain or other symptoms alleged and which, when considered
with all evidence required to be furnished under this
paragraph (including statements of the individual or his
physician as to the intensity and persistence of such pain or
other symptoms which may reasonably be accepted as consistent
with the medical signs and findings), would lead to a
conclusion that the individual is under a disability.
42 U.S.C. § 423(d)(5)(A); 42 U.S.C.A. §
reviewing the denial of disability benefits, the Court must
determine whether substantial evidence supports the denial.
Johnson v. Commissioner of Social Sec., 529
F.3d 198, 200 (3d Cir. 2008). Substantial evidence is a
deferential standard of review. See Jones v.
Barnhart, 364 F.3d 501, 503 (3d Cir. 2004). 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.
NLRB, 305 U.S. 197, 229 (1938)). Substantial evidence is
“less than a preponderance” and “more than
a mere scintilla.” Jesurum v. Sec'y of U.S.
Dep't of Health & Human Servs., 48 F.3d 114, 117
(3d Cir. 1995) (citing Richardson v. Perales, 402
U.S. 389, 401 (1971)). “Stated differently, this
standard is met if there is sufficient evidence ‘to
justify, if the trial were to a jury, a refusal to direct a
verdict.'” Reefer v. Barnhart, 326 F.3d
376, 379 (3d Cir. 2003) (quoting Universal Camera Corp.
v. NLRB, 340 U.S. 474, 477, 71 S.Ct. 456, 95 L.Ed. 456
Relevant Facts in the Record
was born developmentally delayed in 1994, and began receiving
child disability benefits when she was two years old. Doc.
16. The Regulations classify Plaintiff as a younger
individual throughout the relevant period. (Tr. 40); 20
C.F.R. § 404.1563. Plaintiff has a limited education and
no past relevant work. (Tr. 40). Plaintiff was determined to
be disabled through June 20, 2012, shortly after she turned
eighteen years-old. (Tr. 61-68). The disability determination
is different for children than adults, and when she was
reevaluated under the adult rules, the state agency
determined that she was not disabled. (Tr. 61-68). An ALJ