Acosta v. Comm Social Security , 142 F. App'x 613 ( 2005 )

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
8-9-2005
Acosta v. Comm Social Security
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-4203
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 04-4203
ELIZABETH ACOSTA,
Appellant
v.
JO ANNE BARNHART, COMMISSIONER OF
THE SOCIAL SECURITY ADMINISTRATION
On Appeal from the United States District Court
for the District of Delaware
(D.C. No. 02-cv-01492)
District Judge: Honorable Kent Jordan
Submitted Under Third Circuit LAR 34.1(a)
July 11, 2005
Before: SLOVITER, McKEE, Circuit Judges, and FULLAM, District Judge *
(Filed August 9, 2005)
OPINION
_______________
* Hon. John P. Fullam, Senior Judge, United States District Court for the Eastern
District of Pennsylvania, sitting by designation.
SLOVITER, Circuit Judge.
Elizabeth Acosta appeals from the District Court’s entry of summary judgment in
favor of the Commissioner of Social Security (“Commissioner”). The District Court had
jurisdiction pursuant to 42 U.S.C. § 405(g), and we have appellate jurisdiction under 28
U.S.C. § 1291. For the reasons that follow, we conclude that the Commissioner’s
determination that Acosta was not disabled within the meaning of the Social Security Act
is supported by substantial evidence, and thus affirm.
Because we write primarily for the benefit of the parties, we will only recite the
pertinent facts. In 1993, Acosta was involved in a car accident and, as a result, began
experiencing back pain. In June 1995, she had surgery to correct a small to moderate size
disc herniation. Thereafter, she returned to work full time. Four years later, Acosta again
began to experience pain. In October 1999, she was treated for a central disc herniation.
Her doctor, Michael Sugarman, performed surgery to remove an extruded disc fragment
and install a cervical stabilization plate. In March 2000, Acosta returned to work, but she
continued to experience pain. As a result, in November 2000, Dr Sugarman performed
further surgery. On March 26, 2001, after monitoring her progressive improvement in the
months following the surgery, Dr. Sugarman found Acosta was no longer disabled and
declared that she could resume full-time work.
Acosta first filed an application for disability insurance benefits in May 2000 when
she was forty years old. In response to this application, the administrative law judge
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(“ALJ”) granted Acosta disability benefits for the closed period between September 29,
1999 and March 26, 2001. The present appeal concerns Acosta’s second application for
disability benefits and specifically, whether Acosta was disabled after March 26, 2001.
On July 19, 2001, three months after Acosta returned to work, she met with Dr.
Sugarman and informed him that her back pain had again worsened. During this visit, Dr.
Sugarman administered strength tests. These tests demonstrated that Acosta’s strength in
her lower extremities was normal and although Dr. Sugarman’s notes describe her pain as
“debilitating,” he nevertheless concluded that she was able to work. On September 4,
2001, Acosta visited Dr. Jill Mackey, her family doctor, seeking treatment for pain in her
neck and back. According to Dr. Mackey, Acosta complained of pain that lasted all day
and made it difficult for her to engage in her daily activities. On September 10, 2001,
after these visits, Acosta requested a medical note indicating that she could only work
part-time. On September 14, 2001, Acosta stopped working.
She made another visit to Dr. Sugarman on September 20, 2001, complaining of
neck pain. Dr. Sugarman found that her neck had a limited range of motion, but could not
find a reason for her pain. On October 10, 2001, Acosta underwent an MRI (magnetic
resonance image) of her spine, but the MRI showed no evidence of any lesions in her
neck or disc abnormality. An MRA (magnetic resonance angiogram) was also performed
that same day and the MRA similarly showed no significant abnormality in her neck.
A few weeks later, on November 1, 2001, Acosta underwent a Residual Functional
3
Capacity Assessment. The physician who performed the assessment concluded that
Acosta was able to occasionally lift 20 pounds, frequently lift 10 pounds, stand or walk
two hours in an eight-hour workday and sit for six hours in an eight-hour workday. On
November 29, 2001, Acosta underwent cervical and lumbar myelograms and computed
tomography scans of her cervical and lumbar spine. All of these tests came back
negative. On December 6, 2001, Acosta was re-examined by Dr. Sugarman who noted no
evidence of any neural compression throughout her cervical or lumbar regions. Unable to
find a physical cause of her pain, Dr. Sugarman recommended that Acosta attempt
physical therapy as treatment for her symptoms. However, despite being unable to find
any physical reason for her pain, Dr. Sugarman described Acosta as “totally disabled”
when filling out her private disability insurance form. App at 5.
Acosta began physical therapy on December 11, 2001. She discontinued her
therapy on February 5, 2002 because she told her therapist that she felt she was not
making progress. On January 18, 2002, Acosta completed a second Residual Functional
Capacity Assessment. Acosta’s results were similar to the first test. She was found to be
able to occasionally lift 20 pounds, frequently lift 10 pounds, and to stand or walk two
hours in an eight-hour work day.
Acosta’s current application for Social Security disability benefits was filed on
October 1, 2001. In her application, she claims that she is disabled and that she is entitled
to disability benefits due to her inability to work as of September 14, 2001. Shortly
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thereafter, Acosta also filed a claim for supplemental income. The Social Security
Administration denied both claims initially and upon reconsideration. Acosta then
requested a hearing before an ALJ. However, although she was fully apprised of her right
to an oral hearing and the right to be represented by counsel, she elected to have her case
decided on the written evidence in the record without an oral hearing.
The ALJ denied both claims, concluding that based on the results of her Residual
Functional Capacity Assessment, Acosta was able to perform her previous work as a
hospital billing clerk and was therefore not disabled under the Social Security Act (“the
Act”), 42 U.S.C. §§401-434, 1381-1383. The Social Security Administration’s Appeals
Council declined review and the decision of the ALJ thus became the final administrative
decision. Acosta then filed an action in the District Court, but that Court agreed with the
ALJ’s determination and granted summary judgment to the Commissioner. The District
Court found that substantial evidence supported the ALJ’s determination that Acosta
could perform her previous work.
We review the District Court’s decision to grant summary judgment de novo, but
review the Commissioner’s final denial of social security disability benefits using a
substantial evidence standard. Richardson v. Perales, 402 U.S. 389, 390 (1971). In
Morales v. Apfel, we defined substantial evidence as “‘such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.’” 225 F.3d 310, 316
(3d Cir. 2000) (quoting Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999)). However,
5
we have the “‘responsibility to scrutinize the entire record and to reverse or remand if the
[Commissioner]’s decision is not supported by substantial evidence.’” Morales, 225 F. 3d
at 317 (quoting Smith v. Califano, 637 F.2d 968, 970 (3d Cir. 1981)). In disability
determinations, evidence offered by a treating physician must be accorded great weight,
but an ALJ is allowed to reject a treating physician’s conclusions so long as the rejection
is based on other medical evidence, not on personal inferences or speculation. Id. at 317-
18.
To be eligible for social security disability benefits, a claimant must demonstrate
that s/he is unable “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). A claimant’s disability determination must
be reached by using the “five-step sequential evaluation process” delineated in 20 C.F.R.
§ 404.1520.
The five step inquiry examines whether the claimant is currently engaged in
substantial, gainful activity; if not, whether the impairment is contained or equivalent to
one in the list of impairments set out in 20 C.F.R. § 404, subpt. P, app. 1. If the
claimant’s disability is on the list or is equivalent to a disability on the list, s/he will be
found disabled. 20 C.F.R. § 404.1520. If the claimant’s disability does not meet or equal
one on the list, the Commissioner must consider whether the claimant could return to her
6
past relevant work. If s/he cannot, the Commissioner must assess whether based on the
claimant’s age, education, and work experience, and residual functional capacity,1 s/he
can engage in other work available in the national economy. Id. It is the claimant’s
burden to show that she cannot return to her past work experience as a result of her
physical and/or mental impairment. Morales, 225 F. 3d at 316.
As noted, if there is substantial evidence in the record to support the
Commissioner’s findings, we are bound by such determination. We conclude that there
is substantial evidence to support the findings of the ALJ, that Acosta, despite her
repeated back and neck problems, retained sufficient residual functional capacity to
perform her previous employment and consequently, was not disabled under the statute.
The ALJ fully explained the reasoning behind his decision. He noted the
information he relied upon and the information he rejected as well as the reasons for
rejecting such evidence. The ALJ considered the evidence documenting Acosta’s history
of severe back problems, but reasonably found that despite these problems, substantial
evidence demonstrated that Acosta retained the residual functional capacity to perform
the requirements of her past relevant work. Specifically, the ALJ relied upon the fact that
the October 2001 MRI and MRA showed no disc abnormality, the November 1, 2001
1
Pursuant to 20 C.F.R. § 404.1545(a), “residual functional
capacity” is defined as any work one may continue to perform in
spite of physical or mental impairments and related symptoms.
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Residual Functional Capacity Assessment indicated that Acosta could perform sedentary
work, the November 29, 2001 CT scans were negative, the November 29, 2001 cervical
and lumbar myelograms were negative, the December 2001 physical therapy notes
indicated no cervical spine tenderness as well as the ability to sit unsupported, and the
office notes of Dr. Mackey indicated no mass lesions or disc abnormalities. Based upon
the medical evidence outlined above, the ALJ found that Acosta’s complaints were “not
fully credible, as they [we]re exaggerated and inconsistent with the objective medical
evidence.” App at 17.
Despite this significant medical evidence, Acosta argues that the ALJ drew
incorrect conclusions from some of the evidence and ignored other pieces of evidence.
The fact that a different conclusion could have been drawn from Acosta’s request
for a doctor’s note does not mean the ALJ’s interpretation regarding that evidence was
not supported by the record or, more importantly, that the ALJ’s overall decision was not
supported by substantial evidence. Similarly, the omission of evidence regarding the
February 2001 diagnosis of a herniated lumbar disc is not problematic. This diagnosis
occurred before the relevant time period and was never observed thereafter.
The District Court noted that the ALJ clearly considered the evidence supporting
Acosta’s position, but rejected it due to conflicting medical evidence and a lack of
credibility. Although we might have reached a different conclusion if we were reviewing
the evidence de novo, such speculation is unnecessary. Substantial evidence supports the
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ALJ’s conclusion that Acosta is not disabled because she retained the residual functional
capacity to perform her previous work as a billing clerk.
On appeal, Acosta also contends that the ALJ erred in evaluating the demands of
her past relevant work according to the Dictionary of Occupational Titles (“DOT”),
because the DOT does not include an entry for her type of employment. Although it is
true that the ALJ should have made clear the job position in the DOT on which he relied,
it is incorrect to state that a hospital billing clerk position is not included in the DOT.
Section 214.362-022 of the DOT describes the position of a hospital insurance clerk and
therefore the use of the DOT definition was appropriate.2 The DOT describes hospital
billing work as sedentary and because the evidence demonstrated that Acosta could
perform sedentary work, the ALJ’s conclusion that Acosta could work in her former
2
The DOT states that a person who performs this job:
Verifies hospitalization insurance coverage, computes
patients’ benefits, and compiles itemized hospital bills:
Type insurance assignment form with data, such as names
of insurance company and policy holder, policy number,
and physician’s diagnosis. Telephones, writes or wires
insurance company to verify patient’s coverage and to
obtain information concerning extent of benefits.
Computes total hospital bill showing amounts to be paid
by insurance company and by patient, using adding and
calculating machines. Answers patient’s questions
regarding statements and insurance coverage. Telephones
or writes companies with unpaid insurance claims to
obtain settlement of claim. Prepares forms outlining
hospital expenses for governmental, welfare, and other
agencies paying bill of specified patient.
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position was supported by substantial evidence.
It follows that the District Court did not err in granting summary judgment for the
Commissioner.
FULLAM, District Judge, dissenting
I believe that the Administrative Law Judge failed to conduct the proper inquiry
into the circumstances of this unrepresented person’s claim and would remand the case
for a full exploration of Ms. Acosta’s condition. There is no dispute that Ms. Acosta
suffers from significant back problems, and she was awarded benefits for the period from
September 29, 1999 until March 26, 2001, when her treating physician cleared her to
return to work. Ms. Acosta filed the application under review after attempting to work
for several months, but she did not have an attorney at the administrative level and
waived a hearing.
After reviewing the record, I am convinced that the ALJ did not assume the more
active role required when the claimant is unrepresented and did not meet the heightened
duty of care and responsibility that attends in such instances. See Livingston v. Califano,
614 F.2d 342, 345 (3d Cir. 1980). The ALJ acknowledged that the “medical evidence
reveals that the claimant has severe discogenic and degenerative disorders of the spine,
with back sprains and strains. She is status post fusion with instrumentation from C4 to
C6 with pain and physical restriction.” A.16. Although the medical records detail
consistent complaints of pain from Ms. Acosta and her treating physician assessed her
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condition as totally disabled, the ALJ, without speaking to or observing Ms. Acosta,
discredited her subjective complaints of pain as unsupported by the record, because
medical scans did not reveal the source of her pain. Instead of fulfilling his obligation to
seek to corroborate the evidence of pain, Smith v. Harris, 644 F.2d 985, 990 (3d Cir.
1981), the ALJ highlighted evidence that he found contradicted her subjective complaints.
The ALJ “had a duty to consider seriously [the claimant’s] subjective complaints of pain
and to probe further.” Reefer v. Barnhart, 326 F.3d 376, 381 (3d Cir. 2003). I believe the
ALJ did not do so, and I respectfully dissent.
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