Marshall v. Comm Social Security , 69 F. App'x 557 ( 2003 )

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
7-14-2003
Marshall v. Comm Social Security
Precedential or Non-Precedential: Non-Precedential
Docket No. 02-3984
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NOT PRECEDENTIAL
THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 02-3984
___________
MARY A. MARSHALL
Appellant,
v.
JO ANNE B. BARNHART,
COMMISSIONER OF SOCIAL SECURITY.
___________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Civil No. 01-cv-5031)
District Judge: The Honorable Berle M. Schiller
___________
Submitted Under Third Circuit LAR 34.1(a)
July 11, 2003
BEFORE: NYGAARD and SMITH, Circuit Judges and IRENAS,* Senior District Judge.
(Filed July 14, 2003)
* Honorable Joseph E. Irenas, Senior District Judge for the United States District
Court for the District of New Jersey, sitting by designation.
___________
OPINION OF THE COURT
___________
IRENAS, Senior District Judge.
Appellant, Mary A. Marshall (“Marshall”), appeals from an order entered in
the District Court on August 28, 2002, affirming the decision of the Commissioner of
Social Security (“Commissioner”) denying Marshall’s application for supplemental
security income (“SSI”) under Title XVI of the Social Security Act (“Act”). The District
Court exercised jurisdiction pursuant to 42 U.S.C. § 405(g), and we have jurisdiction on
appeal pursuant to 28 U.S.C. § 1291. We will reverse and remand the cause for further
proceedings.
We need not burden the record by setting forth a detailed recitation of the
background for this appeal and will therefore limit our discussion to resolution of the
issues presented. Marshall filed her third application for disability on April 18, 1996,
alleging disability since January 1, 1993, due to diabetes, high blood pressure, and
chronic lymphedema. Marshall’s application was denied initially on May 29, 1996, and
upon reconsideration on November 2, 1996. The appeal to the Administrative Law Judge
(“ALJ”) was heard on June 2, 1998, and on June 26, 1998, the ALJ denied Marshall’s
request for benefits. On July 15, 1998, Marshall sought review of the ALJ’s decision
before the Appeals Council, which three years later, denied review. Marshall then filed
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suit in the District Court, which affirmed the administrative denial and Marshall now
appeals.
Marshall alleges that the Commissioner committed several errors in
rejecting her application. Although we have plenary review of all legal issues, see
Krysztoforski v. Chater, 55 F.3d 857, 858 (3d Cir. 1995), “our review of the ALJ’s
decision is more deferential as we determine whether there is substantial evidence to
support the decision of the Commissioner.” Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir.
2000). “We will not set the Commissioner’s decision aside if it is supported by
substantial evidence, even if we would have decided the factual inquiry differently.”
Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999). We have defined “substantial
evidence” as “such relevant evidence as a reasonable mind might accept as adequate.”
Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir. 1995) (quoting Richardson v. Perales, 402
U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971)). As we have explained on
numerous occasions, “our decisions make clear that determination of the existence vel
non of substantial evidence is not merely a quantitative exercise. A single piece of
evidence will not satisfy the substantiality test if the [Commissioner] ignores, or fails to
resolve, a conflict created by countervailing evidence. Nor is evidence substantial if it is
overwhelmed by other evidence--particularly certain types of evidence (e.g., that offered
by treating physicians)--or if it really constitutes not evidence but mere conclusion.”
Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000). Despite the deference due in
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disability benefit cases we retain a responsibility to scrutinize the entire record and to
reverse or remand if the Commissioner’s decision is not supported by substantial
evidence. Id.A claimant, in order to qualify for SSI, 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 12 months.” 42
U.S.C. § 1382c(a)(3)(A); Burns v. Barnhart, 312 F.3d 113, 118 (3d Cir. 2002). The
Commissioner evaluates each case according to a five-step sequential evaluation process
until a finding of “disabled” or “not disabled” is made. See 20 C.F.R. § 416.920. The
process is as follows: (1) if the claimant is currently engaging in substantial gainful
activity, the claimant will be found not disabled and his application for disability benefits
will be automatically denied; (2) if the claimant is not suffering from a “severe”
impairment or combination of impairments the claimant will be found not disabled; (3) if
a severe impairment meets or equals a listed impairment in 20 C.F.R. pt. 404, subpt. P,
app. 1, and has lasted or is expected to last continually for at least twelve months, then the
claimant will be found disabled; (4) if the claimant is not suffering from an impairment
that either meets or equals a listed impairment the Commissioner considers the claimant’s
residual functional capacity (“RFC”) to determine whether the claimant can perform work
the claimant has done in the past despite the severe impairment. If the claimant can
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perform his or her past work, the claimant will be found not disabled; and (5) if the
claimant cannot perform his or her past work, the Commissioner will consider the
claimant’s RFC, medical impairments, age, education, and past work experience to
determine whether the claimant can perform other jobs existing in significant numbers in
the national economy. 20 C.F.R. § 416.920; Plummer v. Apfel, 186 F.3d 422, 428 (3d
Cir. 1999). The Claimant must prove steps one through four. If the claimant meets this
burden, the burden of proof shifts to the Commissioner in step five to show that the
claimant is capable of attaining substantial gainful employment that exists in the national
economy. Id. In the instant case, the ALJ concluded that Marshall did not have a severe
mental impairment, and although she cannot perform her past relevant work, which
requires continuous standing and walking, other jobs exist in the national economy that
she can perform considering her RFC, age, education, and work experience.
Marshall argues that (1) the ALJ’s conclusion that she does not suffer from
a severe impairment is unsupported by substantial evidence; (2) the ALJ’s conclusions
regarding her RFC were not supported by substantial evidence because no consultative
examination was conducted; and (3) the ALJ improperly evaluated her credibility in
concluding that her testimony regarding the intensity, persistence, and functionally
limiting effects of her impairments was not fully credible. The primary issue before this
Court is whether the ALJ had a sufficient basis to conclude that Marshall’s RFC for the
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full range of medium work was limited only by partial limitations on prolonged standing
or walking.
In the instant case, the ALJ found that despite her borderline intellectual
functioning, dysthymia, and diabetes Marshall has no significant physical or non-
exertional limitations such as would limit her occupational base. (ALJ’s Decision at 6,
Tr. 16; App. Br. at 7-8). However, the ALJ erred in applying the diagnosis of the
consulting psychologist, Dr. Sol Barenbaum, Ph.D., who explained that Marshall “is
capable of carrying out normal routines and activities and may work at a consistent, but
slow, pace.” (ALJ’s Decision at 3, Tr. 13; App. Am. Rep. Br. at 1). Here the ALJ clearly
took the term “pace” out of context in reaching the conclusion that Marshall has no
significant limitations with regard to the pace at which she may work. The ALJ also
failed to give serious consideration to the observations drawn by several of M arshall’s
doctors and the Social Security interviewer, all of whom commented on the slow pace at
which Marshall operates. In addition, despite the ALJ’s conclusion that Marshall’s
lymphedema was severe, there is no evidence in the record of the correlation between the
medical evidence related to her lymphedema and her RFC. Lastly, although it is well
settled that “[a]n ALJ must give serious consideration to a claimant’s subjective
complaints of pain, even where those complaints are not supported by objective
evidence,” Mason v. Shalala, 994 F.2d 1058, 1067 (3d Cir. 1993) (citing Ferguson v.
6
Schweiker, 765 F.2d 31, 37 (3d Cir. 1985)), the record reveals that there has been no
serious evaluation of Marshall’s lymphedema or her claims of depression.
Therefore, since the ALJ had no sufficient basis upon which to conclude
that Marshall’s RFC for the full range of medium work was limited only by partial
limitations on prolonged standing or walking, we conclude that the ALJ’s decision is not
supported by substantial evidence. Accordingly, we will reverse the District Court’s
order and remand the cause to the District Court with instructions to remand to the
Commissioner of Social Security, for further proceedings not inconsistent with this
opinion.
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TO THE CLERK:
Please file the foregoing opinion.
/s/ Joseph E. Irenas_______________
Senior District Judge
8
THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 02-3984
___________
MARY A. MARSHALL
Appellant,
v.
JO ANNE B. BARNHART,
COMMISSIONER OF SOCIAL SECURITY.
___________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Civil No. 01-cv-5031)
District Judge: The Honorable Berle M. Schiller
___________
Submitted Under Third Circuit LAR 34.1(a)
July 11, 2003
BEFORE: NYGAARD and SMITH, Circuit Judges and IRENAS,** Senior District Judge.
___________
JUDGMENT
___________
** Honorable Joseph E. Irenas, Senior District Judge for the United States District
Court for the District of New Jersey, sitting by designation.
This cause came to be considered on the record from the United States
District Court for the Eastern District of Pennsylvania and was submitted pursuant to
Third Circuit LAR 34.1(a) on July 11, 2003.
On consideration whereof, it is now here ORDERED AND ADJUDGED by
this Court that the order of the said District Court entered on August 28, 2002, be
reversed, and is hereby remanded.
All of the above in accordance with the opinion of this Court.
ATTEST:
______________________________
Clerk
Date: July 14, 2003
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