IN THE UNITED STATES DISTRICT COURT

FOR THE

 MIDDLE DISTRICT OF PENNSYLVANIA

TINAMARIE CRUZ, :

 :

 Plaintiff : 

 :

 v. : CIVIL NO. 4:14-CV-00723

 :

CAROLYN W. COLVIN, ACTING : (Judge Brann) 

COMMISSIONER OF SOCIAL :

SECURITY, :

 :

 Defendant :

MEMORANDUM

 

Background

The above-captioned action is one seeking review of a decision of the

Commissioner of Social Security ("Commissioner") denying Plaintiff Tinamarie

Cruz’s claim for social security disability insurance benefits and supplemental

security income benefits. 

Disability 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 Cruz met the

insured status requirements of the Social Security Act through December 31, 2012. 

Case 4:14-cv-00723-MWB-GS Document 11 Filed 03/20/15 Page 1 of 11
Tr. 28, 30 and 184.1

 In order to establish entitlement to disability insurance benefits

Cruz was required to establish that she suffered from a disability2

 on or before that

date. 42 U.S.C. §423(a)(1)(A), (c)(1)(B); 20 C.F.R. §404.131(a)(2008); see Matullo

v. Bowen, 926 F.2d 240, 244 (3d Cir. 1990). 

Supplemental security income is a federal income supplement program

funded by general tax revenues (not social security taxes). It is designed to help aged,

blind or other disabled individuals who have little or no income. Insured status is

irrelevant in determining a claimant’s eligibility for supplemental security income

benefits. 

Under 42 U.S.C. § 405(g) and relevant case law, the court is limited to

reviewing the administrative record to determine whether the decision of the

Commissioner is supported by substantial evidence or infected with an error of law. 

Counsel for the parties are familiar with the five-step sequential evaluation process3

1References to “Tr. ” are to pages of the administrative record filed by the

Defendant as part of the Answer on June 18, 2014.

2A disability is 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. § 432(d)(1)(A). 

3The Commissioner utilizes a five-step process in evaluating disability

insurance benefits claims. See 20 C.F.R. § 404.1520; Poulos v. Commissioner of

Social Security, 474 F.3d 88, 91-92 (3d Cir. 2007). This process requires the

Commissioner to consider, in sequence, whether a claimant (1) is engaging in

2

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that the Commissioner utilizes and the substantial evidence and legal error standard

of review.4

substantial gainful activity, (2) has an impairment that is severe or a combination of

impairments that is severe, (3) has an impairment or combination of impairments that

meets or equals the requirements of a listed impairment, (4) has the residual functional

capacity to return to his or her past work and (5) if not, whether he or she can perform

other work in the national economy. Id. At step five of the sequential evaluation

process, the burden of production temporarily shifts to the Commissioner to produce

vocational evidence demonstrating that there are a significant number of jobs in the

national economy that the claimant, given his or her residual functional capacity, can

perform. Once the Commissioner satisfies this limited burden of production, the

burden shifts back to the claimant to prove that the Commissioner cannot rely on the

vocational evidence. 

4A trial court has plenary review of all legal issues decided by the

Commissioner. Poulos v. Commissioner of Social Security, 474 F.3d 88, 91 (3d Cir.

2007). The trial court’s review of any findings of fact, however, is limited to whether

those findings are supported by “substantial evidence.” Brown v. Bowen, 845 F.2d

1211, 1213 (3d Cir. 1988). The substantial evidence standard is highly deferential,

and is satisfied with “more than a mere scintilla” of evidence. Plummer v. Apfel, 186

F.3d 422, 427 (3d Cir. 1999)(internal citation omitted). “Where the ALJ’s findings of

fact are supported by substantial evidence, we are bound by those findings, even if we

would have decided the factual inquiry differently.” Fargnoli v. Massanari, 247 F.3d

34, 38 (3d Cir. 2001). 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)(quotation omitted). Substantial evidence exists only “in relationship to all the

other evidence in the record,” see Cotter v. Harris, 642 F.2d 700. 704 (3d Cir. 1981),

and therefore a court reviewing the Commissioner’s decision must scrutinize the

record as a whole, including whether the Commissioner adequately developed the

record. Shaw v. Chater, 21 F.3d 126, 131 (2d Cir. 2000). 

3

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Cruz protectively filed5

 an application for disability insurance benefits on

April 2, 2012, and an application for supplemental security income benefits on April

13, 2012. Tr. 27, 115, 175-180 and 184. In those applications Cruz alleged that she

became disabled on March 24, 2011. Tr. 175 and 177. However, as will be

subsequently explained Cruz has not worked since August 27, 2007, when she was

involved in a motor vehicle accident. Cruz claims that she is disabled because of

both physical and mental impairments, including degenerative disc disease of the

cervical and lumbar spine and bipolar disorder. Tr. 203-204. On July 6, 2012, the

Bureau of Disability Determination6

 denied Cruz’s applications. Tr. 27 and 146-155. 

 On August 21, 2012, Cruz requested a hearing before an administrative law judge.

Tr. 27 and 156-157. After about 12 months had passed, a hearing was held on August

5, 2013. Tr. 71-93. On October 16, 2013, the administrative law judge issued a

decision denying Cruz’s applications. Tr. 27-39. The administrative law judge found

that Cruz had the residual functional capacity to perform a limited range of sedentary

5Protective filing is a term for the first time an individual contacts the Social

Security Administration to file a claim for benefits. A protective filing date allows an

individual to have an earlier application date than the date the application is actually

signed. 

6The Bureau of Disability Determination is an agency of the state which

initially evaluates applications for disability insurance benefits and supplemental

security income benefits on behalf of the Social Security Administration. Tr. 147 and

152.

4

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work and based on that residual functional capacity she had the ability to engage in

her past relevant employment as a “vaccine producer.” 3

 Tr. 32 and 38-39. On

November 1, 2013, Cruz requested that the Appeals Council review the

administrative law judge’s decision and on February 10, 2014, the Appeals Council

concluded that there was no basis upon which to grant Cruz’s request for review. Tr. 

6-10 and 22. Thus, the administrative law judge’s decision stood as the final decision

of the Commissioner.

Cruz then filed a complaint in this court on April 14, 2014. Supporting

and opposing briefs were submitted and the appeal4

 became ripe for disposition on

September 22, 2014, when Cruz elected not to file a reply brief. 

For the reasons set forth below we will remand the case to the

Commissioner for further proceedings. 

Discussion

Cruz was born in the United States on May 3, 1971, and at all times

3Past relevant employment in the present case means work performed by Cruz

during the 15 years prior to the date her claim for disability was adjudicated by the

Commissioner. 20 C.F.R. §§ 404.1560 and 404.1565. 

4Under the Local Rules of Court “[a] civil action brought to review a decision

of the Social Security Administration denying a claim for social security disability

benefits” is “adjudicated as an appeal.” M.D.Pa. Local Rule 83.40.1.

5

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relevant to this matter was considered a “younger individual”5

 whose age would not

seriously impact her ability to adjust to other work. 20 C.F.R. §§ 404.1563(c) and

416.963(c); Tr. 76, 143-144 and177. 

Cruz has the equivalent of a high school education and can, read, write,

speak and understand the English language and perform basic mathematical functions

such as paying bills, counting change, handling a savings account and using a

checkbook and money orders. Tr. 202, 204 and 222. During her elementary and

secondary schooling, Cruz attended regular education classes. Tr. 204. 

Cruz in the present appeal raises basically the following two issues: (1) 

the administrative law judge erred in finding that she had the capacity to perform

work as a “vaccine producer,”6

 and (2) the administrative law judge erred in

evaluating the medical and non-medical evidence, particularly the opinions of treating

5The Social Security regulations state that “[t]he term younger individual is

used to denote an individual 18 through 49.” 20 C.F.R., Part 404, Subpart P,

Appendix 2, § 201(h)(1). At the time of the administrative hearing and the

administrative law judge’s decision Cruz was 42 years old. 

6Cruz contends, inter alia, that the job identified by the vocational expert does

not exist in the Dictionary of Occupational Titles (“DOT”) issued by the Department

of Labor and the position apparently identified by the vocational expert is actually one

referred to as an egg processor, DOT # 559.687-034, which involves using an electric

saw to remove the ends of eggs and then using tweezers to break the sac containing

the viral fluid. That job, however, according to Cruz bears no resemblance to the

position she held which required cleaning under machines and lifting and moving

trays of eggs to and from carts and pushing the carts containing those trays. 

6

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medical providers.

 This is the second time that Cruz has filed an appeal from an adverse

decision of the Commissioner. The period of disability covered by that prior case 

was August 27, 2007, when she was involved in a motor vehicle accident through

March 22, 2011. The DIB and SSI applications in that prior case were filed with the

Social Security Administration on August 18 and 19, 2009, respectively. An

administrative law judge denied those prior applications on March 22, 2011. The

Appeals Council denied review, a complaint was filed in this court, and on September

17, 2013, this court remanded that prior case to the Commissioner for further

proceedings. Cruz v. Astrue, Civil No. 12-135, slip op., (M.D. Pa. Sept. 17,

2013)(Caldwell, J.)(Doc. 13). 

The record in that prior case revealed that Cruz had past relevant

employment as a (1) cleaner of laboratory equipment which was described as

unskilled, medium work by a vocational expert, (2) loader and unloader at a Walmart

Distribution Center which was described as semi-skilled, heavy work, and (3) 

production line worker which was described as unskilled, heavy work.7

 Id., slip op.

7

The terms sedentary, light, medium and heavy work are defined in the

regulations of the Social Security Administration as follows:

(a) Sedentary work. Sedentary work involves lifting no

 more than 10 pounds at a time and occasionally lifting or carrying

7

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at 4-5. Cruz also worked as a waitress for various restaurants. Id. The administrative

law judge in that prior case found that Cruz’s past relevant work was medium to

heavy work and since that determination Cruz has not engaged in any additional

articles like docket files, ledgers, and small tools. Although a sedentary

job is defined as one which involves sitting, a certain amount of walking

and standing is often necessary in carrying out job duties. Jobs are

sedentary if walking and standing are required occasionally and other

sedentary criteria are met. 

(b) Light work. Light work involves lifting no more than 20 pounds at a

time with frequent lifting or carrying of objects weighing up to 10

pounds. Even though the weight lifted may be very little, a job is

in this category when it requires a good deal of walking or standing, or

when it involves sitting most of the time with some pushing and pulling

of arm or leg controls. To be considered capable of performing a

full or wide range of light work, you must have the ability to do

substantially all of these activities. If someone can do light work, we

determine that he or she can also do sedentary work, unless there are

additional limiting factors such as loss of fine dexterity or inability to sit

for long periods of time.

(c) Medium work. Medium work involves lifting no more than 50 pounds

at a time with frequent lifting or carrying of objects weighing up to 25

pounds. If someone can do medium work, we determine that he or she

can do sedentary and light work.

(d) Heavy work. Heavy work involves lifting no more than 100 pounds 

at a time with frequent lifting or carrying of objects weighing up to 50

pounds. If someone can do heavy work, we determine that he or she

can also do medium, light, and sedentary work.

20 C.F.R. §§ 404.1567 and 416.967. 

8

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work. Tr. 30 and 398. That prior case was remanded for the Commissioner to

appropriately consider the opinions of treating physicians and the credibility of Cruz. 

 The record does not reveal the disposition of the prior case after being remanded to

the Commissioner.8

In the present case as noted above the DIB and SSI applications were filed

on April 2 and 13, 2012, respectively, and the administrative law judge was aware of

the prior applications filed by Cruz and the decision of the administrative law judge

who handled that case. With respect to the prior case the administrative law judge 

stated as follows in the decision of October 16, 2013:

The claimant previously filed a Title II application for a period of

disability and disability insurance benefits, as well as a Title XVI 

application for supplemental security income on August 18, 2009,

and August 19, 2009, respectively. These applications were 

initially denied and upon request for hearing, an unfavorable decision

was issued by Administrative Law Judge Therese A. Hardiman on

March 22, 2011 []. The undersigned Administrative Law Judge

does not find a basis for reopening the claimant’s prior Title II or

Title XVI applications[]. . . . Accordingly, there is no new and material

evidence thus the undersigned finds that res judicata is applicable for 

period of time through March 22, 2011, based on the unfavorable

decision issued by Judge Hardiman. As the matter has already been

adjudicated and a final decision was made, the claimant is not able to

continue to re-litigate (sic) issues already decided by the court. Therefore,

the previous decision is final and binding. 

8Cruz’s attorney did suggest to the Appeals Council that the cases should be

merged or consolidated. Tr. 266. 

9

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Tr. 27. 

Records of the Social Security Administration reveal that Cruz had

earnings in the years 1987, 1988 and 1991 through 2008, a total of 20 years. Tr. 185.

Cruz’s average earnings during those years were $10,386.46. Id. Cruz’s earnings

ranged from a low of $841.97 in 2008 to a high of $25,955.09 in 2004. Id. Cruz’s

total earnings were $207,732.93. Id. However, according to the testimony of Cruz

at the administrative hearing held on February 9, 2011, before the administrative law

judge Hardiman, the earnings in 2008 - $841.97 - were from a disability plan and she

was not employed during that year. Cruz v. Astrue, Civil No. 12-135 (M.D.

Pa.)(Docs. 5-2, at 52 & 5-6, at 124); Tr. 629. As stated above, Cruz was involved in

an automobile accident on August 27, 2007, and has not worked since that date. Id.

The administrative law judge in the present case as noted above rendered

her decision on October 16, 2013, and the Appeals Council denied review on

February 10, 2014. The prior case was remanded to the Commissioner for further

proceedings by this court on September 17, 2013. In light of that remand, the

administrative law judge’s determination in her decision of October 16, 2013, that

there was no basis to reopen the prior case was erroneous. Moreover, as pointed out

by Cruz in her brief the administrative law judge in the prior case found that all of

Cruz’s past relevant employment was at least medium work and it was error for the

10

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administrative law judge in the decision of October 16, 2013, to find that Cruz’s work

as a “vaccine producer”9

 was sedentary work and that she had the ability to perform

that work. It was inappropriate for the administrative law judge to relitigate the issue

of Cruz’s past relevant employment in light of the administrative law judge’s refusal

to reopen the prior case and the fact that Cruz had no further employment after

August, 2007. Under the circumstances presented, the administrative law judge

erroneously relitigated the issue of past relevant employment. 

 Our review of the administrative record reveals legal error which renders

the decision of the Commissioner defective and unsupported by substantial evidence. 

We will, therefore, pursuant to 42 U.S.C. § 405(g) vacate the decision of the 

Commissioner.

An appropriate order will be entered. 

 s/Matthew W. Brann 

 Matthew W. Brann

 United States District Judge 

Dated: March 20, 2015

9This work appears to be what is described in the prior case as unskilled,

medium work as a cleaner of laboratory equipment or as unskilled, heavy work as a

production line worker.

11

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