United States District Court, M.D. Pennsylvania
KELLY J. DILLOW-LOPEZ, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social SecurityDefendant.
MALACHY E. MANNION United States District Judge.
above-captioned action is one seeking review of a decision of
the Acting Commissioner of Social Security
(“Commissioner”), denying Plaintiff Kelly J.
Dillow-Lopez's (“Dillow-Lopez”) application
for Social Security Disability Insurance Benefits
(“DIB”) and Supplemental Security Income
(“SSI”) under Title II and Title XVI. For the
reasons set forth below, we will vacate the decision of the
Commissioner and remand the case for further proceedings.
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
Plaintiff met the insured status requirements of the Social
Security Act through December 31, 2013. (Tr.
was born on December 3, 1963 (Tr. 29, 46). Plaintiff has her
GED (Tr. 47), and has past work experience as a cashier and
sales associate. (Tr. 28, 162). Plaintiff has testified that
she stopped working in February 2010 after a slip and fall in
her then employer's parking lot, resulting in lumbar
spine pain and nerve damage to her left leg. (Tr.
She suffers from the following severe impairments: disc
herniation at ¶ 4-5; obesity; anxiety disorder; panic
disorder; generalized anxiety disorder; major depressive
disorder; and non-ST elevation myocardial infraction
(cardiovascular disease). (Tr. 19; Doc. 15, Ptf.'s Br.,
protectively filed for DIB on June 3, 2013, and SSI on June
11, 2013, alleging disability beginning February 10, 2010.
(Tr. 16). These claims were initially denied on September 4,
2013. (Id.). Plaintiff requested a hearing before
the Administrative Law Judge (“ALJ”) Office of
Disability and Adjudication and Review of the Social Security
Administration, and one was held on January 12, 2015.
(Id.). At the hearing, Plaintiff was represented by
counsel and a vocational expert testified. (Id.).
February 6, 2015, the ALJ issued a decision denying
Plaintiff's applications. (Tr. 16-30). On March 25, 2015,
Plaintiff filed a request for review with the Appeals
Council. (Tr. 12). The Appeals Council denied Plaintiff's
request for review on May 12, 2016. (Tr. 1-7). Thus, the
ALJ's decision stood as the final decision of the
Plaintiff filed a complaint in this Court on July 12, 2016.
(Doc. 1). The Commissioner filed an answer on September 21,
2016. (Doc. 11). After supporting and opposing briefs were
submitted (Docs. 15, 18, 19), the appeal became ripe for
Standard of Review
considering a social security appeal, the Court has plenary
review of all legal issues decided by the Commissioner.
See Poulos v. Comm'r of Soc. Sec., 474 F.3d 88,
91 (3d Cir. 2007); Johnson v. Comm'r of Soc.
Sec., 529 F.3d 198, 200 (3d Cir. 2008). 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. The factual findings of the Commissioner,
“if supported by substantial evidence, shall be
conclusive . . . .” 42 U.S.C. §405(g).
“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.” Johnson, 529 F.3d at
200 (3d Cir. 2008) (quoting Hartranft v. Apfel, 181
F.3d 358, 360 (3d Cir. 1999)) (internal quotations and
citations omitted). Substantial evidence has been described
as more than a mere scintilla of evidence but less than a
preponderance. Brown v. Bowen, 845 F.2d 1211, 1213
(3d Cir. 1988). “It means such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” Plummer v. Apfel, 186 F.3d 422,
427 (3d Cir. 1999) (citing Ventura v. Shalala, 55
F.3d 900, 901 (3d Cir. 1995)) (quoting Richardson v.
Perales, 402 U.S. 389, 401 (1971) (internal citations
omitted)). The Court of Appeals for the Third Circuit has
[O]ur decisions make clear that determination of the
existence vel non of substantial evidence is not
merely a quantitative exercise. A single piece of evidence
will not satisfy the substantiality test if the
[Commissioner] ignores, or fails to resolve, a conflict
created by countervailing evidence. Nor is evidence
substantial if it is overwhelmed by other evidence -
particularly certain types of evidence (e.g., that offered by
treating physicians) - or if it really constitutes not
evidence but mere conclusion.
Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000)
(citing Kent v. Schweiker, 710 F.2d 110, 114 (3d
Cir. 1983); Gilliland v. Heckler, 786 F.2d 178, 183
(3d Cir. 1986)). Therefore, a court reviewing the decision of
the Commissioner must scrutinize the record as a whole.
Id. (citing Smith v. Califano, 637 F.2d
968, 970 (3d Cir. 1981)).
Sequential Evaluation Process
plaintiff must establish that there is some “medically
determinable basis for an impairment that prevents him from
engaging in any substantial gainful activity for a statutory
twelve-month period.” Fargnoli v. Massanari,
247 F.3d 34, 38-39 (3d Cir. 2001) (quoting Plummer,
186 F.3d at 427) (internal quotations omitted). “A
claimant is considered unable to engage in any substantial
gainful activity ‘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 . . . .'” Fargnoli, 247 F.3d at 39
(quoting 42 U.S.C. §423(d)(2)(A)). The Commissioner
follows a five-step inquiry pursuant to 20 C.F.R.
§404.1520 to determine whether the claimant is disabled.
In Plummer, the Third Circuit set out the
In step one, the Commissioner must determine whether the
claimant is currently engaging in substantial gainful
activity. 20 C.F.R. § [404.]1520(a). If a claimant is
found to be engaged in substantial activity, the disability
claim will be denied. Bowen v. Yuckert, 482 U.S.
137, 140 (1987) . . . . In step two, the Commissioner must
determine whether the claimant is suffering from a severe
impairment. 20 C.F.R. §404.1520(c). If the claimant
fails to show that her impairments are “severe, ”
she is ineligible for disability benefits.
In step three, the Commissioner compares the medical evidence
of the claimant's impairment to a list of impairments
presumed severe enough to preclude any gainful work. 20
C.F.R. §404.1520(d). If a claimant does not suffer from
a listed impairment or its equivalent, the analysis proceeds
to steps four and five. Step four requires the ALJ to
consider whether the claimant retains the residual functional
capacity to perform her past relevant work. 20 C.F.R.
§404.1520(d). The claimant bears the ...