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Rosemary P. v. Commissioner of Social Security

United States District Court, W.D. Pennsylvania

July 25, 2018

ROSEMARY P., Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant,

          MEMORANDUM AND ORDER

          Robert C. Mitchell United States Magistrate Judge

         Presently before the Court for disposition are cross motions for summary judgment. For the reasons set forth below, the defendant's motion (ECF No. 13) will be granted, the plaintiff's motion (ECF No. 10) will be denied, and the decision of the Commissioner will be affirmed.

         On January 8, 2018, Rosemary P. by her counsel, filed a complaint pursuant to Section 205(g) of the Social Security Act, as amended, 42 U.S.C. §405(g) for review of the Commissioner's final determination disallowing her claim for a period of disability or for disability insurance benefits under Sections 216(i) and 223 of the Social Security Act, as amended, 42 U.S.C. §§416(i) and 423.

         On September 27, 2014 the plaintiff filed an application for disability benefits alleging that she had been disabled since August 12, 2014 (R.142-143) and benefits were denied on January 15, 2015 (R.85-89). On January 28, 2015, the plaintiff requested a hearing (R.90-91) and pursuant to that request a hearing was held on December 1, 2016 (R.32-67). In a decision dated May 9, 2017, benefits were denied (R.12-27) and on May 12, 2017, reconsideration was requested (R.139-140). Upon reconsideration and in a decision dated November 24, 2017, the Appeals Council affirmed the prior determination (R.1-3). On January 8, 2018, the instant complaint was filed.

         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 burden of demonstrating that he 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).

         At the hearing held on December 1, 2016, (R.32-67), the plaintiff appeared with counsel (R.34) and testified that she was fifty-four years old (R. 34), that she worked for twenty-five years as a dental assistant but the job became too strenuous (R.38-39) and that she last worked in November 2015 as a shoe salesperson (R.37).

         In addition, the plaintiff testified that she has fibromyalgia (R.40); that she experiences chronic pain all over her body (R.41); that she has very poor memory or concentration ability and forgets what she is doing (R.42, 54, 56); that she sustained whiplash in a car accident (R.45); that she suffers from depression and does nothing for about a week every three or four months (R.47), and that she experiences irritable bowel syndrome (R.51). The plaintiff also testified that she receives some relief from Oxycontin (R.41); that she is receiving mental health care (R.43); that she can stand or walk for less than an hour (R.43-44); that she cannot carry anything heavy (R.44); that she sometimes walks with a cane (R.46), and that she uses a TENS unit once or twice a week (R.55).

         At the hearing a vocational expert was also called upon to testify (R.60-65). The witness classified the plaintiff's prior work as unskilled to skilled light work (R.60). When asked to assume an individual of the plaintiff's age, education and work history who was limited to performing light work who must work in a static, low stress environment that involves only simple decisions, he testified that the such a person could not perform the plaintiff's past work but that there were a large number of other jobs such an individual could perform (R.60-61, 64). However, if the individual had to be reinstructed for every shift, he testified that such an individual could not be employed (R.63).

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

         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 establishing a period of disability. 42 U.S.C. Section 416(i)(2)(A).

         While these statutory provisions have been regarded as "very harsh," nevertheless, they must be followed by the courts. NLRB v. Staiman Brothers, 466 F.2d 564 (3d Cir. 1972); Choratch v. Finch, 438 F.2d 342 (3d Cir. 1971); Woods v. Finch, 428 F.2d 469 (3d Cir. 1970). Thus, it must be determined whether or not there is substantial evidence in the record to support the conclusion of the Commissioner that the plaintiff was not disabled within the meaning of the Social Security Act.

         For this purpose, certain medical evidence was reviewed.

         In a report of an eye examination conducted on November 1, 2013, no impairments were noted although ...


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