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Romanoskey v. Berryhill

United States District Court, M.D. Pennsylvania

March 27, 2018

TRACY L. ROMANOSKEY, Plaintiff,
v.
NANCY BERRYHILL, [1] Defendant.

          MANNION, J.

          REPORT AND RECOMMENDATION

          JOSEPH F. SAPORITO, JR. United States Magistrate Judge

         Plaintiff, Tracy L. Romanoskey, is seeking judicial review of the final decision of the Commissioner of Social Security (ACommissioner@) denying her claims for disability insurance benefits and supplemental security income under Titles II and XVI of the Social Security Act. Jurisdiction is conferred on this Court pursuant to 42 U.S.C. § 405(g) and 42 U.S.C. §1383(c)(3).

         This matter has been referred to the undersigned United States Magistrate Judge to prepare a report and recommended disposition pursuant to the provisions of 28 U.S.C. § 636(b) and Rule 72(b) of the Federal Rules of Civil Procedure. For the reasons expressed herein, we have found that the final decision of the Commissioner of Social Security is supported by substantial evidence. Accordingly, it is recommended that the final decision of the Commissioner denying Romanoskey's claims for benefits be AFFIRMED, and that Romanoskey's request for a new hearing or award of benefits be DENIED.

         I. Background and Procedural History

         Romanoskey, is an adult individual, born on April 9, 1976. Romanoskey was twenty-six years of age at the time of her alleged onset of disability, which made her a “younger person” under the Commissioner's regulations whose age generally does not affect his ability to adjust to other work.

         On June 3, 2013, Romanoskey protectively filed her application for benefits under Titles II and XVI of the Social Security Act. In both applications, she alleged that she became disabled on January 1, 2003. (Tr.17). Romanoskey's alleged impairments included: post-traumatic stress disorder, depression, anxiety, panic disorder, bipolar, arthritis in back and shoulder, and degenerative joint disease.

         Her claims were initially denied on September 20, 2013. On November 12, 2013, Romanoskey filed a written request for an administrative hearing. Her request was granted. On March 17, 2015, Romanoskey appeared and testified at a hearing before Administrative Law Judge (“ALJ”) Gerard W. Langan in Wilkes-Barre, Pennsylvania. Romanoskey was represented by Thomas Sutton, Esquire. Additionally, Vocational Expert (“VE”) Carmine Abraham also appeared and testified. (Tr. 17).

         On April 20, 2015, the ALJ issued an unfavorable decision in which he concluded that, considering Romanoskey's age, education, work experience, and residual functional capacity, there are jobs that she can perform that exist in significant numbers in the national economy. Romanoskey then filed a timely complaint on December 27, 2016, in this court. (Doc. 1). The Commissioner's timely answer to the complaint was filed March 8, 2017. (Doc. 9).

         II. Statement of Facts

         Romanoskey completed her GED. (Tr.172). Romanoskey previously worked as a table busser, cashier, telemarketer, and waitress. (Tr. 172). She stopped working on May 13, 2011.

         Romanoskey lives with her boyfriend in Pittston, Pennsylvania, which is in the Middle District of Pennsylvania. (Tr. 65). She has one child over the age of eighteen. (Tr. 66).

         Romanoskey stated that she has held jobs such as: (1) table busser; where the heaviest thing she lifted was a tray of dishes weighing approximately five to six pounds; (2) telemarketer; where she was making outgoing telephone calls and reading from a script with some data input. (Tr. 67-69).

         At the time of the administrative hearing, she testified that she was on probation and was incarcerated for approximately eight months prior for retail theft. Prior to that incarceration she was incarcerated for a violation of probation while out on a furlough for her brother's funeral. (Tr. 76).

         Romanoskey stated that she does not work because she has a problem with going in stores, panic attacks, bipolar, and difficulty sleeping. (Tr. 71). She stated she goes to work with her boyfriend and assists him because she has depression and panic attacks, and he does not want to leave her alone while he is at work. (Tr. 71).

         Romanoskey stated that her panic attacks are debilitating. She experiences the sensation that her legs are kicking, and she cannot breathe. She starts to sweat, her chest hurts, and her mind goes numb. She stated she loses all function. She stated that there was a time when she would self-medicate for the panic attacks. (Tr. 73).

         Romanoskey stated that she does not have a valid driver's license. (Tr. 74). She stated that she watches television and reads. (Tr. 75).

         Carl Bittenbinder, her boyfriend, testified at the hearing. He stated that he takes her to work with him because of her panic attacks., He described the panic attacks as heavy breathing while her legs kick requiring him to hold them down. He testified that while he was at work, she would call him because she was having a panic attack. He would have to leave work. (Tr. 79-80). He stated that she has them approximately two to three times a month. (Tr. 80).

         He testified that at times she gets up and dresses for the day and other days where she does not come out of her bedroom. (Tr. 82).

         III. Standard of Review

          When reviewing the denial of disability benefits, the Court's review is limited to determining whether those findings are supported by substantial evidence in the administrative record. See 42 U.S.C. § 405(g) (sentence five); id. § 1383(c)(3); Johnson v. Comm'r of Soc. Sec., 529 F.3d 198, 200 (3d Cir. 2008); Ficca v. Astrue, 901 F.Supp.2d 533, 536 (M.D. Pa. 2012). 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 (1988). Substantial evidence is less than a preponderance of the evidence but more than a mere scintilla. Richardson v. Perales, 402 U.S. 389, 401 (1971). A single piece of evidence is not substantial evidence if the ALJ ignores countervailing evidence or fails to resolve a conflict created by the evidence. Mason v. Shalala, 994 F.2d 1058, 1064 (3d Cir. 1993). 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 [the ALJ's decision] from being supported by substantial evidence.” Consolo v. Fed. Maritime Comm'n, 383 U.S. 607, 620 (1966). “In determining if the Commissioner's decision is supported by substantial evidence the court must scrutinize the record as a whole.” Leslie v. Barnhart, 304 F.Supp.2d 623, 627 (M.D. Pa. 2003). The question before the Court, therefore, is not whether the claimant is disabled, but whether the Commissioner's finding that he or she is not disabled is supported by substantial evidence and was reached based upon a correct application of the relevant law. See Arnold v. Colvin, No. 3:12-CV-02417, 2014 WL 940205, at *1 (M.D. Pa. Mar. 11, 2014) (“[I]t has been held that an ALJ's errors of law denote a lack of substantial evidence.”) (alterations omitted); Burton v. Schweiker, 512 F.Supp. 913, 914 (W.D. Pa. 1981) (“The [Commissioner]'s determination as to the status of a claim requires the correct application of the law to the facts.”); see also Wright v. Sullivan, 900 F.2d 675, 678 (3d Cir. 1990) (noting that the scope of review on legal matters is plenary); Ficca, 901 F.Supp.2d at 536 (“[T]he court has plenary review of all legal issues . . . .”).

         To receive disability benefits, 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); id. § 1382c(a)(3)(A); see also 20 C.F.R. § 404.1505(a); id. § 416.905(a). To satisfy this requirement, a claimant must have a severe physical or mental impairment[2] that makes it impossible to do his or her previous work or any other ...


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