United States District Court, M.D. Pennsylvania
HARRIET DERIGO, On Behalf of Albert Anthony DeRigo, Jr. (deceased) Plaintiff
COMMISSIONER OF SOCIAL SECURITY, Defendant
REPORT & RECOMMENDATION
William I. Arbuckle, U.S. Magistrate Judge.
Harriet DeRigo (“Plaintiff”), seeks judicial
review of the final decision of the Commissioner of Social
Security (“Commissioner”) denying her deceased
son, Claimant Albert Anthony DeRigo, Jr.'s
(“Claimant”) application for disability insurance
benefits under Title II of the Social Security Act.
Jurisdiction is conferred on this Court pursuant to 42 U.S.C.
matter has been referred to me to prepare a Report and
Recommendation pursuant to 28 U.S.C. § 636(b) and Rule
72(b) of the Federal Rules of Civil Procedure. After
reviewing the parties' briefs, the Commissioner's
final decision, and the relevant portions of the certified
administrative transcript, I find the Commissioner's
final decision is not supported by substantial evidence.
Accordingly, I recommend that the Commissioner's final
decision be VACATED and this case be REMANDED to the
Commissioner to conduct a new administrative hearing pursuant
to sentence four of 42 U.S.C. § 405(g).
BACKGROUND & PROCEDURAL HISTORY
February 11, 2014, Claimant protectively filed an application
for disability insurance benefits under Title II of the
Social Security Act. (Admin. Tr. 17; Doc. 10-2, p. 18). In
this application, Claimant alleged he became disabled as of
September 1, 2009, when he was forty-five (45) years old, due
to the following conditions: cirrhosis of the liver, and
chronic lower back pain. (Admin. Tr. 132; Doc. 10-6, p. 6).
Claimant alleged that the combination of these conditions
affected his ability to stand on his feet for more than ten
to fifteen minutes, and that he was unable to do any heavy
lifting. (Admin. Tr. 142; Doc. 10-6, p. 16). Additionally,
Claimant alleged that these conditions affected his ability
to walk, kneel, climb stairs, squat, bend, or reach. (Admin.
Tr. 147; Doc. 10-6, p. 21). Claimant had at least a high
school education and was able to communicate in English.
(Admin. Tr. 27; Doc. 10-2, p. 28). Before the onset of his
impairments, Claimant worked as a barber. (Admin. Tr. 26;
Doc. 10-2, p. 27).
April 16, 2014, Claimant's application was denied at the
initial level of administrative review. (Admin. Tr. 64; Doc.
10-4, p. 4). On April 22, 2014, Claimant requested an
administrative hearing. (Admin. Tr. 68; Doc. 10-4, p. 8).
April 19, 2015, Claimant died, with the immediate cause of
death identified as complications of alcoholism and morbid
obesity. (Admin. Tr. 17; Doc. 10-2, p. 18). On November 18,
2015, a Notice Regarding Substitution of a Party upon the
Death of a Claimant was received, filed by Plaintiff,
Claimant's mother. (Admin. Tr. 77; Doc. 10-4, p. 17).
January 12, 2016, Plaintiff, assisted by her counsel,
appeared and testified during a hearing before Administrative
Law Judge Theodore Burock (the “ALJ”). (Admin.
Tr. 32; Doc. 10-2, p. 33). On April 4, 2016, the ALJ issued a
decision denying Plaintiff's application for benefits.
(Admin. Tr. 17; Doc. 10-2, p. 18). On May 27, 2016, Plaintiff
requested review of the ALJ's decision by the Appeals
Council of the Office of Disability Adjudication and Review
(“Appeals Council”). (Admin. Tr. 115; Doc. 10-4,
13, 2017, the Appeals Council denied Plaintiff's request
for review. (Admin. Tr. 1; Doc. 10-2, p. 2).
August 25, 2017, Plaintiff initiated this action by filing a
Complaint. (Doc. 1). In the Complaint, Plaintiff seeks
judicial review pursuant to 42 U.S.C. §405(g).
Id. Plaintiff requests that the Court grant such
relief as may be proper. Id.
November 3, 2017, the Commissioner filed an Answer. (Doc. 9).
In the Answer, the Commissioner asserts that the ALJ's
decision holding that Plaintiff is not entitled to disability
insurance benefits was made in accordance with the law and
regulations and is supported by substantial evidence. (Doc.
9, p. 2). Along with her Answer, the Commissioner filed a
certified transcript of the administrative record. (Doc. 10
Brief (Doc. 11), and the Commissioner's Brief (Doc. 16),
have been filed. Plaintiff chose not to file a reply. (Doc.
17). This matter is now ripe for decision.
STANDARDS OF REVIEW
Substantial Evidence Review - the Role of This Court
reviewing the Commissioner's final decision denying a
claimant's application for benefits, this Court's
review is limited to the question of whether the findings of
the final decision-maker are supported by substantial
evidence in the record. See 42 U.S.C. § 405(g);
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, 565 (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). But 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).
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 this Court,
therefore, is not whether Claimant is disabled, but whether
the Commissioner's finding that Claimant 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 Secretary'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 . . . .”).
Standards Governing the ALJ's Application of The
Five-Step Sequential Evaluation Process
receive benefits under the Social Security Act by reason of
disability, 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 twelve months.” 42 U.S.C. §
423(d)(1)(A); see also 20 C.F.R. §
404.1505(a). To satisfy this requirement, a claimant
must have a severe physical or mental impairment that makes
it impossible to do his or her previous work or any other
substantial gainful activity that exists in the national
economy. 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. §
404.1505(a). To receive benefits under Title II of the Social
Security Act, a claimant must show that he or she contributed
to the insurance program, is under retirement age, and became
disabled prior to the date on which he or she was last
insured. 42 U.S.C. § 423(a); 20 C.F.R. §
making this determination at the administrative level, the
ALJ follows a five-step sequential evaluation process. 20
C.F.R. § 404.1520(a). Under this process, the ALJ 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; (4) whether
the claimant is able to do his or her past relevant work; and
(5) whether the claimant is able to do any other work,
considering his or her age, education, work experience and
residual functional capacity (“RFC”). 20 C.F.R.
steps three and four, the ALJ must also assess a
claimant's RFC. RFC is defined as “that which an
individual is still able to do despite the limitations caused
by his or her impairment(s).” Burnett v. Comm'r
of Soc. Sec., 220 F.3d 112, 121 (3d Cir. 2000)
(citations omitted); see also 20 C.F.R. §
404.1520(e); 20 C.F.R. § 404.1545(a)(1). In making this
assessment, the ALJ considers all the claimant's
medically determinable impairments, including any non-severe
impairments identified by the ALJ at step two of his or her
analysis. 20 C.F.R. § 404.1545(a)(2).
steps one through four, the claimant bears the initial burden
of demonstrating the existence of a medically determinable
impairment that prevents him or her in engaging in any of his
or her past relevant work. 42 U.S.C. § 423(d)(5); 20
C.F.R. § 404.1512; Mason, 994 F.2d at 1064.
Once this burden has been met by the claimant, it shifts to
the Commissioner at step five to show that jobs exist in
significant number in the national economy that the claimant
could perform that ...