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Pollard v. Astrue

March 6, 2008


The opinion of the court was delivered by: Simandle, District Judge


This matter comes before the Court pursuant to Section 205(g) of the Social Security Act, as amended, 42 U.S.C. § 405(g) (2006), to review the final decision of the Commissioner of the Social Security Administration denying the application of Claimant Thomas Pollard ("Mr. Pollard or "Claimant") for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under Title II and Title XVI of the Social Security Act. See 42 U.S.C. §§ 401-34 (2006). He filed for DIB and SSI benefits on September 22, 2003, alleging his disability onset date as September 15, 2002, due to blindness in one eye, diabetes and high blood pressure. (R. at 80.) Claimant urges this Court to vacate the administrative decision and remand the case to the Commissioner for an award of benefits.

At issue in this case is whether there is substantial evidence in the record to support the Administrative Law Judge's ("ALJ") determination that Claimant's impairments are not severe enough to qualify him as "disabled" under the Social Security Act. This Court must determine whether the ALJ properly evaluated the severity of Claimant's impairments by considering and weighing all the medical and non-medical evidence in the record, as well as assessing the credibility of Claimant's subjective complaints.

The Court has considered the submissions of the parties pursuant to Local Civil Rule 9.1. Because the ALJ's decision fails to adequately consider Claimant's fatigue, a symptom related limitation of his impairments, and the accompanying medical evidence in support of it, the Court shall remand to the ALJ to reconsider his reasoning, perform a proper evaluation, and provide adequate explanations.


A. Standard for Judicial Review

Under 42 U.S.C. § 405(g), Congress provided for judicial review of the Commissioner's decision to deny a claimant's application for Disability Insurance Benefits. See Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir. 1995). A reviewing court must uphold the Commissioner's factual decisions where they are supported by "substantial evidence." 42 U.S.C. §§ 405(g), 1383(c)(3); Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001). Substantial evidence means more than "a mere scintilla." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). It means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. The inquiry is not whether the reviewing court would have made the same determination, but whether the Commissioner's conclusion was reasonable. See Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988). Indeed, the "substantial evidence standard is deferential and includes deference to inferences drawn from the facts if they, in turn, are supported by substantial evidence." Shaudeck v. Comm'r of Soc. Sec., 181 F.3d 429, 431 (3d Cir. 1999).

A reviewing court has a duty to review the evidence in its totality. See Daring v. Heckler, 727 F.2d 64, 70 (3d Cir. 1984). "[A] court must 'take into account whatever in the record fairly detracts from [a particular piece of evidence's] weight.'" Schonewolf v. Callahan, 972 F. Supp. 277, 284 (D.N.J. 1997) (quoting Willbanks v. Sec'y of Health & Human Servs., 847 F.2d 301, 303 (6th Cir. 1988) (quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951))).

The ALJ has a duty "to develop the record fully and fairly."*fn1 Thompson v. Sullivan, 878 F.2d 1108, 1110 (8th Cir. 1089). The ALJ must set out a specific factual basis for each finding. Baerga v. Richardson, 500 F.2d 309 (3d Cir. 1974), cert. denied, 420 U.S. 931 (1975); Boot v. Heckler, 618 F. Supp. 76, 79 (D. Del. 1985). Simply referring to the "record" is insufficient. Abshire v. Bowen, 662 F. Supp. 8 (E.D. Pa. 1986). Additionally, the ALJ "must adequately explain in the record [the] reasons for rejecting or discrediting competent evidence," Ogden v. Bowen, 677 F. Supp 273, 278 (M.D. Pa. 1987) (citing Brewster v. Heckler, 786 F.2d 581 (3d Cir. 1986)), including medical evidence and all non-medical evidence presented. Burnett v. Comm'r of Soc. Sec., 220 F.3d 112, 122 (3d Cir. 2000).

The Third Circuit has held that access to the Commissioner's reasoning is indeed essential to a meaningful court review: Unless the [Commissioner] has analyzed all evidence and has sufficiently explained the weight he has given to obviously probative exhibits, to say that his decision is supported by substantial evidence approaches an abdication of the court's duty to scrutinize the record as a whole to determine whether the conclusions reached are rational.

Gober v. Matthews, 574 F.2d 772, 776 (3d Cir. 1978). A district court is not "empowered to weigh the evidence or substitute its conclusions for those of the fact-finder." Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992). However, an ALJ need not explicitly discuss every piece of relevant evidence in his or her decision. See Fargnoli, 247 F.3d at 42.

In a Title II case, the claimant has the burden of producing medical and other evidence necessary to establish disability. In a Title XVI case, the Commissioner is expected to secure sufficient evidence to make a "sound determination," Ferguson v. Schweiker, 765 F.2d 31, 36 n.4 (3d. Cir. 1985). The ALJ has this obligation even when the claimant is represented by counsel. Boyd v. Sullivan, 960 F.2d 733, 736 (8th Cir. 1992). Claimant seeks benefits under both Titles in this case.

B. Standard for Disability Insurance Benefits under Titles II and XVI of the Social Security Act

The Social Security Act defines "disability" for purposes of entitlement to DIB and SSI benefits as the 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), 1382c(a)(3)(B) (2006). Under this definition, "a claimant qualifies as disabled only if [that claimant's] physical or mental impairments are of such severity that [the claimant] is not only unable to do his [or her] previous work, but cannot, considering [the claimant's] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. . ." 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B) (2006). Impairments must be considered in combination when making disability determinations. Burnam v. Schweiker, 682 F.2d 456, 458 (3d. Cir. 1982).

The Commissioner has promulgated regulations for determining disability that require application of a five-step sequential analysis. 20 C.F.R. § 404.1520 (2006). The analysis is the same for both DIB and SSI claims. See Barnhart v. Thomas, 540 U.S. 20, 21-24 (2003). This process is summarized as follows:

1. If currently is engaged in substantial gainful employment, the claimant will be found "not disabled."

2. If not suffering from a "severe impairment," the claimant will be found "not disabled."

3. If the severe impairment meets or equals a listed impairment in 20 C.F.R. Part 404, Subpart P, Appendix 1 and has lasted or is expected to last for a continuous period of at least twelve months, the claimant will be found "disabled."

4. If able to still perform work done in the past despite the severe impairment, the claimant will be found "not disabled."

5. Finally, the Commissioner will consider the claimant's ability to perform work, age, education, and past work experience to determine whether or not the claimant is capable of performing other work which exists in the national economy. If incapable, the claimant will be found "disabled." If capable, the claimant will be found "not disabled."

20 C.F.R. § 404.1520(b)-(f). Entitlement to benefits is therefore dependent upon finding the claimant is incapable of performing work in the national economy.

This five-step process involves a shifting burden of proof. Wallace, 722 F.2d at 1153. In the first four steps of the analysis, the burden is on the claimant to prove every element of his claim by a preponderance of the evidence. Id. In the final step, the Commissioner bears the burden of proving that work is available for the claimant: "Once a claimant has proved that he is unable to perform his former job, the burden shifts to the Commissioner to prove that there is some other kind of substantial gainful employment he is able to perform." Kangas v. Bowen, 823 F.2d 775, 777 (3d Cir. 1987) (citing Chicager v. Califano, 574 F.2d 161 (3d Cir. 1978)). In Singletary v. Bowen, 798 F.2d 818 (5th Cir. 1986), the Fifth Circuit held that a determination of substantial gainful employment requires a finding that the claimant would be able to "hold whatever job he has for a significant period of time." Id. at 822.


A. Procedural History

On September 22, 2003, Claimant filed applications for Disability Insurance Benefits and Social Security Insurance Benefits (R. at 67-69, 247-49) alleging disability due to diabetes, blindness in one eye, and high blood pressure (R. at 87). The SSA denied both applications initially (R. at 28-29) and on reconsideration (R. at 30-35, 38-41, 251-55). Claimant subsequently filed a Request for an Administrative Hearing, (R. at 42-43), which was held on August 10, 2006 (R. at 256-86). Mr. Pollard, who was represented by counsel, testified at the hearing. (R. at 11.) Mr. Pollard's sister, Bertha Hyman, and Ted Montegna, an impartial Vocational Expert ("VE") also testified at the hearing. (R. at 11.)

B. ALJ's Findings

On September 21, 2006, ALJ Daniel W. Shoemaker, Jr. issued a decision ruling that Claimant was not entitled to DIB or SSI because he was not disabled. (R. at 8-25.) The ALJ noted that Claimant was not engaged in substantial gainful activity since his alleged date of disability, September 15, 2002. (R. at 24.)

He found that although Claimant suffers from limited left eye vision and mild mental retardation, impairments that are severe, these impairments did not meet or equal any of the impairments listed in Appendix 1, Subpart P, Regulations as set forth in 20 C.F.R. §§ 404.1521 and 416.921. (Id.) He further found that Claimant's allegations with regard to his limitations were not entirely credible. (Id.) The ALJ next determined that Claimant retained the Residual Functional Capacity ("RFC") to perform the exertional demands of light work as is set forth in 20 C.F.R. §§ 404.1567 and 416.967. (Id.) However, the ALJ acknowledged that Claimant's ability to perform light work is limited in that he can only lift/carry ten pounds frequently and twenty pounds occasionally, walk for six hours in an eight-hour workday, stand for six hours in an eight-hour workday, and sit for six hours in an eight-hour workday. (Id.) He also determined that Claimant is restricted to work that involves simple, repetitive tasks and simple instructions in a low stress environment, which takes into consideration his lack of left eye vision. (Id.) Finally, the ALJ concluded that because Claimant's past work as a security guard did not require the performance of any functions precluded by his impairments, such impairments did not prevent him from performing his past relevant work as a security guard (id.), nor would they prevent him from performing other work that exists in significant numbers in the national economy (R. at 23).

Therefore, the ALJ determined that, at Steps Four and Five, Claimant was not disabled.

Claimant requested review by the Appeals Council on September 26, 2006 (R. at 8-25), which denied the request for further review on November 9, 2006 (R. at 4-6). The ALJ's decision therefore became the final decision of the Commissioner. On January 16, 2007, Plaintiff timely filed the present action with this Court, seeking review of the Commissioner's determination. [Docket Item No. 1.]

C. Evidence in the Record

1. Claimant's Testimony

Claimant, who was fifty-three years old at the time of the administrative hearing in August 2006, lives with his friend in an apartment in Salem, New Jersey. (R. at 249, 251.) He testified that he is five feet and three inches tall*fn2 ...

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