Mark Muschko v. Commissioner Social Security ( 2021 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 20-2771
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MARK W. MUSCHKO,
Appellant
v.
COMMISSIONER SOCIAL SECURITY
________________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 2-19-cv-09361)
District Judge: Claire C. Cecchi
________________
Submitted Pursuant to Third Circuit L.A.R. 34.1
on April 16, 2021
Before: CHAGARES, JORDAN, and SCIRICA, Circuit Judges.
(Filed: August 18, 2021)
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OPINION *
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*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
SCIRICA, Circuit Judge
We must decide whether the District Court erred in affirming the Social Security
Commissioner’s denial of Mark Muschko’s claim for disability insurance benefits under
Title II of the Social Security Act (“the Act”). Because substantial evidence supports the
Administrative Law Judge’s decision that Muschko is not entitled to disability insurance
under the Act and the District Court made no errors of law, we will affirm.
I1
In reviewing a denial of social security disability insurance benefits, “[o]ur review
of legal issues is plenary,” Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir. 2000), but “[w]e
review the Agency’s factual findings only to determine whether the administrative record
contains substantial evidence supporting the findings,” Allen v. Barnhart, 417 F.3d 396,
398 (3d Cir. 2005). Substantial evidence “means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Smith v. Comm’r of Soc. Sec.,
631 F.3d 632, 633 (3d Cir. 2010) (quoting Reefer v. Barnhart, 326 F.3d 376, 379 (3d Cir.
2003)). The standard is deferential and is satisfied by the presence of evidence in the
record that is “more than a mere scintilla but . . . somewhat less than a preponderance.”
Zirnsak v. Colvin, 777 F.3d 607, 610 (3d Cir. 2014) (quoting Rutherford v. Barnhart, 399
F.3d 546, 552 (3d Cir. 2005)).
1
The District Court had jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3). We have
jurisdiction under 28 U.S.C. § 1291.
2
II
In the agency proceeding, Muschko had the burden of establishing that he became
disabled at some point between the onset date of disability, December 31, 2002, and his
date last insured, December 31, 2007. See id. at 612; see also 42 U.S.C § 423(a)(1)(A);
20 C.F.R. § 404.131. The ALJ examined the evidence and followed the five-step
evaluation process used to determine whether a claimant is disabled. See 20 C.F.R.
§ 404.1520(a)(4). 2 The ALJ found Muschko did not satisfy the criteria for per se
disability and remained capable of performing a reduced range of work activities. And
after questioning a vocational expert, the ALJ concluded Muschko was not disabled
because a significant number of jobs existed in the national economy for an individual
with his vocational profile and residual functional capacity. In this appeal, Muschko
contends the ALJ (1) improperly evaluated the evidence, and (2) failed to provide the
vocational expert with an accurate description of Muschko’s limitations. We address
these contentions in turn.
A
Muschko’s main contention is that the ALJ improperly evaluated the evidence.
First, he argues there is not substantial evidence supporting the ALJ’s finding that
2
Under the five-step evaluation process, the ALJ determines (1) whether the claimant
engaged in gainful activity during the alleged period of disability; (2) whether he has a
severe impairment that limits his ability to work; (3) if he has such an impairment,
whether the impairment is listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, such that
there is a per se disability, or, if not, how much residual functional capacity he retains in
spite of his impairment; (4) whether his residual functional capacity is sufficient to
perform his past relevant work; and (5) whether there is other work in the national
economy that he can perform. Sykes, 228 F.3d at 262–63.
3
Muschko did not establish per se disability under Listing 11.14. 3 Second, he argues that
the ALJ’s residual functional capacity determination is not supported by substantial
evidence. We disagree on both counts.
i
Muschko contends the ALJ erred in finding he did not satisfy the standard for
establishing per se disability under Listing 11.14 (peripheral neuropathy). To meet
Listing 11.14A, a claimant must establish that he has “[d]isorganization of motor function
in two extremities.” 20 C.F.R. pt. 404, subpt. P, app. 1, Listing 11.14. This can be an
impairment to the lower extremities resulting in an inability “to stand up from a seated
position, [or] balance in a standing position and while walking . . . without the assistance
of another person or the use of an assistive device.” 20 C.F.R. pt. 404, subpt. P, app. 1,
Listing 11.00D(2)(a), (b). Or it can be an impairment to the upper extremities resulting in
a loss of function “that very seriously limits your ability to independently initiate, sustain,
and complete work-related activities involving fine and gross motor movements.” 20
C.F.R. pt. 404, subpt. P, app. 1, Listing 11.00D(2)(c).
With respect to Muschko’s lower extremities, there is evidence that throughout the
relevant time period he retained a normal stance and gait, as well as an ability to tandem
walk, get up from kneeling on either leg, rise on his heels and toes, and hop on either leg.
3
The Listings, 20 C.F.R. pt. 404, subpt. P., app. 1, are a regulatory device used to
streamline the decision-making process by identifying those claimants whose medical
impairments are so severe that they would be found disabled regardless of their
vocational background—i.e., establishing per se disability for certain impairments. 20
C.F.R. § 404.1525(a); Sullivan v. Zebley, 493 U.S. 521, 532 (1990).
4
Regarding Muschko’s upper extremities, there is evidence that he retained full muscle
power and reflexes in his arms, as well as intact fine finger movements bilaterally.
Accordingly, as the District Court correctly held, substantial evidence supports the ALJ’s
finding that Muschko did not satisfy the high standard for establishing per se disability
under Listing 11.14A.4
ii
Muschko challenges the ALJ’s determination regarding his residual functional
capacity (“RFC”). The ALJ determined Muschko’s impairments significantly limited his
ability to perform basic work activities, but that he retained sufficient RFC to perform a
significantly reduced range of work activities. 5 Muschko contends that, in making his
4
“[Muschko] specifically refers to Listing 11.14A when discussing the medical
evidence . . . .” To the extent he also contends he satisfied Listing 11.14B’s requirements,
he failed to establish that he suffered the requisite difficulties understanding,
remembering, applying information, interacting with others, concentrating, or managing
himself. See 20 C.F.R. pt. 404, subpt. P, app. 1, Listing 11.14B. Although Muschko self-
reported tiredness and decreased short-term memory, the ALJ considered these self-
reports together with medical records indicating Muschko did not exhibit deficits in
understanding, concentrating, or remembering. Because Muschko’s alleged symptoms
were never confirmed by any examinations and other record evidence shows Muschko
retained his mental faculties, Listing 11.14B does not provide a basis for reversing the
District Court.
5
Specifically, Muschko could perform work that required lifting and carrying no more
than 10 pounds; standing and walking no more than four hours in an eight-hour day, with
an additional allowance for alternating between sitting and standing at-will, so long as he
was not off-task more than 10% of the workday; occasional climbing of ramps and stairs;
no climbing of ladders, ropes, or scaffolds; frequent (but not constant) balancing;
occasional stooping, kneeling, crouching, and crawling; frequent (but not constant)
handling, fingering, and feeling; no operation of foot controls; occasional pushing and
pulling with the lower extremities; no exposure to hazards such as machinery, heights,
excessive vibration, extreme temperatures, wetness, and humidity; and no work that
required use of a keyboard.
5
RFC decision, the ALJ (1) lacked supporting medical evidence, (2) impermissibly
discounted Muschko’s subjective complaints of pain, and (3) failed to adequately credit
certain doctors’ opinions.
First, there is substantial medical evidence in the record supporting the ALJ’s RFC
finding. Examinations by treating neurologists Norman Latov, M.D., Ph.D., and Eric B.
Geller, M.D., as well as consulting neurologist Andrew Pachner, M.D., showed that,
despite moderately impaired vibration in the large toes and mildly impaired sensation at
the ankles, Muschko had normal strength and a normal gait, could tandem walk, perform
fine finger movements, rise on his heels and toes, hop on either foot, and get up from a
kneeling position with either leg. In terms of cognitive ability, Dr. Geller indicated
Muschko possessed normal memory, concentration, and attention, while Dr. Pachner did
not feel the need to perform a formal mental status examination because Muschko’s
“conversational content . . . was not consistent with an obvious cognitive disorder,”
Admin. Tr. 346. This medical evidence amounts to substantial evidence supporting the
ALJ’s RFC finding. Accordingly, we must affirm the RFC finding, even if, as Muschko
contends, there is some contrary evidence in the record. Cf. Fargnoli v. Massanari, 247
F.3d 34, 38 (3d Cir. 2001) (“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.”).
Second, Muschko contends the ALJ did not adequately address his subjective
complaints of pain. The ALJ noted Muschko’s subjective complaints but discounted them
to the extent they were contradicted by the medical evidence discussed above and
6
Muschko’s own reports of activities he performed on a regular basis. This evidence
included Muschko’s representations that he drove, ran errands, went grocery shopping,
and performed yard work. 6 We conclude that the ALJ rightfully considered medical
evidence and evidence of Muschko’s regular activities and adequately explained how
they contradicted Muschko’s statements about his pain and the limiting effects of his
symptoms. See, e.g., 20 C.F.R. § 404.1529(c)(3)(i) (stating the agency will consider
claimant’s daily activities in evaluating subjective complaints); Burns v. Barnhart, 312
F.3d 113, 129–30 (3d Cir. 2002) (holding ALJ appropriately considered claimant’s
contradictory activities and the lack of medical evidence in finding claimant was not fully
credible).
Third, Muschko challenges the ALJ’s discounting of certain medical opinions. The
ALJ explained that two doctors’ opinions were entitled to some weight because the
doctors had examined and treated Muschko, but their opinions were discounted to the
extent they contained conclusory statements contradicted by evidence. So, while the ALJ
factored into his RFC analysis Muschko’s symptoms as outlined by the doctors, he did
not credit their conclusory statements about Muschko’s ability to maintain gainful
employment where those statements were not supported by a function-by-function
6
Muschko also reported that he performed his own personal hygiene, prepared meals,
sent emails, cleaned, made small home repairs, blew snow off of his driveway, washed
his car, shopped for other necessities, and attended a weekly 3-hour professional support
group function. The ALJ explained that these activities were not consistent with the
alleged severity of Muschko’s physical symptoms. And although Muschko contends
these activities do not support the RFC determination, he relies on our opinion in Nazario
v. Comm’r Soc. Sec., 794 F. App’x 204 (3d Cir. 2019), which, in addition to being
distinguishable, we need not address due to its non-precedential status.
7
assessment of Muschko’s abilities and were contradicted by record evidence. The ALJ
was required to determine how much weight to afford the medical opinions, see 20
C.F.R. § 404.1527(c), and was well within his discretion to not credit the doctors’
conclusory statements, see Brown v. Astrue, 649 F.3d 193, 196 n.2 (3d Cir. 2011) (stating
that a physician’s opinion “does not bind the ALJ on the issue of [RFC]”); see also 20
C.F.R. § 404.1527(d)(1) (explaining that “[a] statement by a medical source that you are
‘disabled’ or ‘unable to work’ does not mean that we will determine that you are
disabled”). Moreover, the ALJ adequately explained his reasoning for giving only partial
weight to the doctors’ opinions. See Zirnsak, 777 F.3d at 614 (“[T]he ALJ is free to
accept some medical evidence and reject other evidence, provided that he [or she]
provides an explanation for discrediting the rejected evidence.”); Chandler v. Comm’r of
Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011) (explaining that a treating physician’s opinion
may be outweighed by other evidence). Accordingly, the ALJ’s handling of the medical
opinion evidence does not provide a basis for reversal.
The ALJ properly considered the medical, subjective, and opinion evidence in
making his RFC determination, which we conclude is supported by substantial evidence.
B
Muschko also contends the ALJ did not give an accurate portrait of his
impairments to the vocational expert, and thus the District Court erred as a matter of law
in affirming the ALJ’s decision. Muschko essentially argues that the ALJ did not convey
every alleged impairment to the vocational expert. But “[w]e do not require an ALJ to
submit to the vocational expert every impairment alleged by a claimant.” Johnson v.
8
Comm’r of Soc. Sec., 529 F.3d 198, 206 (3d Cir. 2008) (quoting Rutherford, 399 F.3d at
554). Instead, a vocational expert’s testimony is “as valid as the limitations that the ALJ
[includes] in the hypothetical.” Allen, 417 F.3d at 407. We have already concluded that
substantial evidence supports the ALJ’s decision as to Muschko’s limitations and
corresponding RFC. See supra Part II.A.ii. And the ALJ included all those limitations in
the hypotheticals posed to the vocational expert. Accordingly, “[n]othing about the
hypothetical[s] requires reversal.” Johnson, 529 F.3d at 206.
III
For the reasons provided, we will affirm the District Court’s order.
9