Wilson v. Comm Social Security ( 2004 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206 2 Wilson v. Comm’r of Social Security No. 03-1588
ELECTRONIC CITATION: 2004 FED App. 0255P (6th Cir.)
File Name: 04a0255p.06 _________________
COUNSEL
UNITED STATES COURT OF APPEALS
ARGUED: Lewis M. Seward, SEWARD, TALLY &
FOR THE SIXTH CIRCUIT PIGGOTT, Bay City, Michigan, for Appellant. James B.
_________________ Geren, OFFICE OF THE GENERAL COUNSEL, SOCIAL
SECURITY ADMINISTRATION, Chicago, Illinois, for
ROBERT M. WILSON, X Appellee. ON BRIEF: Lewis M. Seward, SEWARD,
Plaintiff-Appellant, - TALLY & PIGGOTT, Bay City, Michigan, for Appellant.
- James B. Geren, OFFICE OF THE GENERAL COUNSEL,
- No. 03-1588 SOCIAL SECURITY ADMINISTRATION, Chicago,
v. - Illinois, for Appellee.
>
, _________________
COMMISSIONER OF SOCIAL -
SECURITY, - OPINION
Defendant-Appellee. - _________________
-
N ROGERS, Circuit Judge. Robert M. Wilson, the
Appeal from the United States District Court plaintiff/appellant, challenges the decision of an
for the Western District of Michigan at Grand Rapids. administrative law judge (the “ALJ”) of the Social Security
No. 02-00197—Wendell A. Miles, District Judge. Administration, which became the final decision of the
Commissioner, denying Wilson’s application for Disability
Argued: June 16, 2004 Insurance Benefits (“DIB”) under Title II of the Social
Security Act. Because the ALJ, by failing to articulate
Decided and Filed: August 2, 2004 reasons for discounting the opinion of Wilson’s treating
physician, violated the agency’s own procedural regulation,
Before: GILMAN and ROGERS, Circuit Judges; we vacate the judgment of the district court affirming the
FORESTER, Chief District Judge.* ALJ’s decision and remand for further proceedings consistent
with this opinion.
Wilson worked as a deputy sheriff from 1960 until 1985,
when he retired because of a heart attack. He then found
employment as a manual laborer with the Howard City Paper
Company, but he resigned from that position in 1986. Wilson
did not engage in any full-time work after leaving the paper
company, but worked part-time as the weekend manager for
*
The Honorable Karl S. Forester, Chief United States District Judge
for the Eastern District of Kentucky, sitting by designation.
1
No. 03-1588 Wilson v. Comm’r of Social Security 3 4 Wilson v. Comm’r of Social Security No. 03-1588
a flea market around 1999. Wilson’s insured status for past relevant work. Fifth, the ALJ determined that, given
purposes of DIB expired on March 31, 1995. Wilson’s residual functional capacity and vocational profile
at the time his coverage expired, there were a significant
Wilson underwent three hernia repair surgeries in 1991, number of jobs in the national economy that Wilson could
1992, and 1994, respectively. Wilson claims that, as a result perform, including a range of semi-skilled clerical jobs.
of the surgeries, he suffers from “entrapment neuropathy,” a Based on this last finding, the ALJ concluded that Wilson was
condition involving a nerve fiber tied up in a scar that causes not “disabled” at any time through the date he was last
intense pain whenever he changes positions. Wilson was insured for benefits.
diagnosed with diabetes in the early 1990s.
The Appeals Council of the Social Security Administration
Wilson applied for DIB on July 21, 1999, claiming denied Wilson’s request for review of the ALJ’s decision, at
disability since December 31, 1993, due to leg and back pain. which point the ALJ’s decision became the final decision of
The Regional Commissioner of the Social Security the Commissioner of Social Security. Miles v. Chater, 84
Administration denied Wilson’s application initially and on F.3d 1397, 1399 (11th Cir. 1996). Wilson then commenced a
reconsideration, finding that Wilson had not become disabled civil action in district court for judicial review of the
on or before March 31, 1995, when his insured status expired. Commissioner’s final decision pursuant to 42 U.S.C.
Wilson then filed a timely request for a hearing before an § 405(g). A magistrate judge issued a Report and
ALJ. Following the hearing, the ALJ issued a decision Recommendation recommending that the district court affirm
finding that Wilson had not become disabled on or before the ALJ’s decision. The district court adopted the Report and
March 31, 1995, because, taking into account his limitations, Recommendation, and Wilson timely appealed.
there were a significant number of jobs in the national
economy that Wilson could perform. Although substantial evidence otherwise supports the
decision of the Commissioner in this case, reversal is required
In finding that Wilson had not become disabled while because the agency failed to follow its own procedural
insured, the ALJ performed the required five-step analysis. regulation, and the regulation was intended to protect
See Heston v. Comm’r of Soc. Sec., 245 F.3d 528, 534 (6th applicants like Wilson. The regulation requires the agency to
Cir. 2001). First, the ALJ found that Wilson has not engaged “give good reasons” for not giving weight to a treating
in any substantial gainful activity since his disability onset physician in the context of a disability determination.
date. Second, the ALJ determined that Wilson suffered from 20 C.F.R. § 404.1527(d)(2) (2004). This requirement is part
severe impairments on the last date he was of the “treating source” regulation adopted by the Social
insured—specifically, insulin dependent diabetes mellitus Security Administration in 1991. See generally Schaal v.
with neuropathy in the lower extremities, lumbar spondylosis Apfel, 134 F.3d 496, 503 (2d Cir. 1998).
and facet arthritis, coronary artery disease, entrapment
neuropathy, and sympathetic mediated pain syndrome. Third, Pursuant to this regulation, an ALJ must give more weight
the ALJ concluded that Wilson’s impairments did not meet or to opinions from treating sources since
medically equal any of the listed impairments. Fourth, the
ALJ found that, when his coverage expired, Wilson retained these sources are likely to be the medical professionals
the residual functional capacity to perform a significant range most able to provide a detailed, longitudinal picture of
of light work, but that Wilson could not perform any of his [the claimant’s] medical impairment(s) and may bring a
No. 03-1588 Wilson v. Comm’r of Social Security 5 6 Wilson v. Comm’r of Social Security No. 03-1588
unique perspective to the medical evidence that cannot be physician rule and permits meaningful review of the ALJ’s
obtained from the objective medical findings alone or application of the rule. See Halloran v. Barnhart, 362 F.3d
from reports of individual examinations, such as 28, 32-33 (2d Cir. 2004).
consultative examinations or brief hospitalizations.
It is an elemental principle of administrative law that
20 C.F.R. § 404.1527(d)(2). An ALJ must give the opinion agencies are bound to follow their own regulations. As the
of a treating source controlling weight if he finds the opinion Ninth Circuit well summarized in applying this principle:
“well-supported by medically acceptable clinical and
laboratory diagnostic techniques” and “not inconsistent with The Supreme Court has long recognized that a federal
the other substantial evidence in [the] case record.” Id. If the agency is obliged to abide by the regulations it
opinion of a treating source is not accorded controlling promulgates. See Vitarelli v. Seaton, 359 U.S. 535, 545
weight, an ALJ must apply certain factors—namely, the (1959); Service v. Dulles, 354 U.S. 363, 372 (1957);
length of the treatment relationship and the frequency of Accardi v. Shaughnessy, 347 U.S. 260, 267 (1954). An
examination, the nature and extent of the treatment agency's failure to follow its own regulations “tends to
relationship, supportability of the opinion, consistency of the cause unjust discrimination and deny adequate notice”
opinion with the record as a whole, and the specialization of and consequently may result in a violation of an
the treating source—in determining what weight to give the individual's constitutional right to due process. Where a
opinion. Id. prescribed procedure is intended to protect the interests
of a party before the agency, “even though generous
Importantly for this case, the regulation also contains a beyond the requirements that bind such agency, that
clear procedural requirement: “We will always give good procedure must be scrupulously observed.” Vitarelli, 359
reasons in our notice of determination or decision for the U.S. at 547 (Frankfurter, J., concurring); see also Note,
weight we give [the claimant’s] treating source’s opinion.” Violations by Agencies of Their Own Regulations, 87
Id. A Social Security Ruling explains that, pursuant to this Harv. L. Rev. 629, 630 (1974) (observing that agency
provision, a decision denying benefits “must contain specific violations of regulations promulgated to provide parties
reasons for the weight given to the treating source’s medical with procedural safeguards generally have been
opinion, supported by the evidence in the case record, and invalidated by courts).
must be sufficiently specific to make clear to any subsequent
reviewers the weight the adjudicator gave to the treating Sameena, Inc. v. United States Air Force, 147 F.3d 1148,
source’s medical opinion and the reasons for that weight.” 1153 (9th Cir. 1998) (parallel citations and circuit court
Soc. Sec. Rul. 96-2p, 1996 WL 374188, at *5 (1996). “The citations omitted). Consistent with this principle, courts have
requirement of reason-giving exists, in part, to let claimants remanded the Commissioner’s decisions when they have
understand the disposition of their cases,” particularly in failed to articulate “good reasons” for not crediting the
situations where a claimant knows that his physician has opinion of a treating source, as § 1527(d)(2) requires. See,
deemed him disabled and therefore “might be especially e.g., Newton v. Apfel, 209 F.3d 448, 456 (5th Cir. 2000);
bewildered when told by an administrative bureaucracy that Snell, 177 F.3d at 134; see also Halloran, 362 F.3d at 33
she is not, unless some reason for the agency’s decision is (“We do not hesitate to remand when the Commissioner has
supplied.” Snell v. Apfel, 177 F.3d 128, 134 (2d Cir. 1999). not provided ‘good reasons’ for the weight given to a treating
The requirement also ensures that the ALJ applies the treating physician’s opinion and we will continue remanding when we
No. 03-1588 Wilson v. Comm’r of Social Security 7 8 Wilson v. Comm’r of Social Security No. 03-1588
encounter opinions from ALJ’s that do not comprehensively rejected his assertion that Wilson suffered from the identified
set forth the reasons for the weight assigned to a treating limitations while insured. If, in fact, the latter is the case, the
physician’s opinion.”). ALJ did not give good reasons for this conclusion. In
particular, the ALJ failed to clarify whether DeWys’s opinion
In the instant case, the ALJ has violated § 1527(d)(2) by was not “well-supported by medically acceptable clinical and
failing to give good reasons for his rejection of Dr. DeWys’s laboratory diagnostic techniques” or was “inconsistent with
opinion. According to Wilson, DeWys treated him from the other substantial evidence in [the] case record,” 20 C.F.R.
January of 1993 through at least May of 2000. Wilson § 404.1527(d)(2), did not identify the evidence supporting
submitted DeWys’s opinion to the ALJ. The DeWys opinion such a finding, and did not explain its application of the
identified greater restrictions on Wilson’s ability to work than factors listed in 20 C.F.R. § 404.1527(d)(2) to determine the
those ultimately found by the ALJ, and stated that these weight given to DeWys’s opinion. Reversal is therefore
deficits had been in effect since December 31, 1993. The required.
opinion also contains what Wilson claims are notes made by
DeWys contemporaneous with his treatment of Wilson. The The ALJ’s failure to give “good reasons” for not crediting
ALJ stated in his ruling that he had “considered” DeWys’s DeWys does not constitute harmless error, notwithstanding
opinion, but concluded that while “this opinion may be an the district court’s reasoning and the Commissioner’s
accurate assessment of [Wilson’s] current limitations, the argument on appeal. The district court stated that it “appears”
undersigned must assess the claimant’s limitations on that “the ALJ may have incorrectly interpreted Dr. DeWys’s
March 31, 1995, the date he was last insured for benefits.” opinion as articulating only those limitations from which
[Wilson] was then suffering, rather than recognizing that Dr.
The ALJ’s summary dismissal of DeWys’s opinion fails to DeWys had determined that such limitations originated on
meet the requirement that the ALJ “give good reasons” for December 31, 1993.” However, the court found that
not giving weight to a treating physician. It is uncontested DeWys’s opinion was not supported by the record, and thus
that Dr. DeWys was Wilson’s treating physician, and the concluded that “there exists substantial evidence supporting
record appears to make clear that Dr. DeWys treated Wilson the ALJ’s determination, intentional or otherwise, to give
during the period that he alleged he was disabled. See e.g., little weight to Dr. DeWys’s opinion.” Echoing the district
J.A. at 176, 329. To state that Dr. DeWys’s opinion “may be court, the Commissioner contends that, assuming for
an accurate assessment,” followed by a bald statement of the argument’s sake that the ALJ misread DeWys’s opinion, this
issue that the ALJ must ultimately resolve, can hardly amount mistake qualifies as harmless error. The Commissioner
to “giving good reasons” for rejecting Dr. DeWys’s opinion. asserts that the ALJ’s rejection of DeWys’s opinion is
supported by substantial evidence, as the ALJ “could” have
The sentence in the ALJ’s ruling might mean that, on the relied on evidence in the record—namely, Wilson’s testimony
ALJ’s reading, DeWys’s opinion offered only a current and the opinions of two consulting physicians, which,
assessment of Wilson’s condition. If so, the ALJ’s according to the Commissioner, contradict DeWys’s
determination in this regard is not supported by substantial opinion—to reject the opinion.
evidence, given the presence in the administrative record of
treatment notes by DeWys for the earlier, relevant period. On The argument is not persuasive in the context of this case.
the other hand, the sentence in the ALJ’s ruling might mean A court cannot excuse the denial of a mandatory procedural
that the ALJ understood DeWys’s opinion and simply protection simply because, as the Commissioner urges, there
No. 03-1588 Wilson v. Comm’r of Social Security 9 10 Wilson v. Comm’r of Social Security No. 03-1588
is sufficient evidence in the record for the ALJ to discount the Morton v. Ruiz, 415 U.S. 199, 235 (1974); see also Vitarelli
treating source’s opinion and, thus, a different outcome on v. Seaton, 359 U.S. 535, 540 (1959); United States ex rel.
remand is unlikely. “[A] procedural error is not made Accardi v. Shaughnessy, 347 U.S. 260, 267 (1954). In
harmless simply because [the aggrieved party] appears to contrast, in the case of procedural rules “adopted for the
have had little chance of success on the merits anyway.” orderly transaction of business,” an agency has the discretion
Mazaleski v. Treusdell, 562 F.2d 701, 719 n.41; see also “to relax or modify its procedural rules” and such action “is
Ingalls Shipbuilding, Inc. v. Dir., Office of Workers’ Comp. not reviewable except upon a showing of substantial prejudice
Programs, 102 F.3d 1385, 1390 (5th Cir. 1996). To hold to the complaining party.” Am. Farm Lines, 397 U.S. at 539
otherwise, and to recognize substantial evidence as a defense (quotation omitted). Section 1527(d)(2) falls in the former
to non-compliance with § 1527(d)(2), would afford the category, creating an important procedural safeguard for
Commissioner the ability the violate the regulation with claimants for disability benefits. Snell, 177 F.3d at 134.
impunity and render the protections promised therein illusory.
The general administrative law rule, after all, is for a That is not to say that a violation of the procedural
reviewing court, in addition to whatever substantive factual or requirement of § 1527(d)(2) could never constitute harmless
legal review is appropriate, to “set aside agency action . . . error. We do not decide the question of whether a de minimis
found to be . . . without observance of procedure required by violation may qualify as harmless error. For instance, if a
law.” Administrative Procedure Act, 5 U.S.C. § 706(2)(D) treating source’s opinion is so patently deficient that the
(2001). Commissioner could not possibly credit it, a failure to observe
§ 1527(d)(2) may not warrant reversal. Cf. NLRB v. Wyman-
Our conclusion is consistent with the statement in Connor Gordon, 394 U.S. 759, 766 n.6 (1969) (plurality opinion)
v. United States Civil Service Commission, 721 F.2d 1054, (where “remand would be an idle and useless formality,”
1056 (6th Cir. 1983), that “an agency’s violation of its courts are not required to “convert judicial review of agency
procedural rules will not result in reversible error absent a action into a ping-pong game”). There is also the possibility
showing that the claimant has been prejudiced on the merits that if the Commissioner adopts the opinion of the treating
or deprived of substantial rights because of the agency’s source or makes findings consistent with the opinion, it may
procedural lapses” (emphasis added). A procedural right be irrelevant that the ALJ did not give weight to the treating
must generally be understood as “substantial” in the context physician’s opinion, and the failure to give reasons for not
of this statement when the regulation is intended to confer a giving such weight is correspondingly irrelevant. Or perhaps
procedural protection on the party invoking it. The Supreme a situation could arise where the Commissioner has met the
Court has recognized the distinction between regulations goal of § 1527(d)(2)—the provision of the procedural
“intended primarily to confer important procedural benefits safeguard of reasons—even though she has not complied with
upon individuals” and regulations “adopted for the orderly the terms of the regulation. However, none of these
transaction of business before [the agency].” Am. Farm Lines possibilities is present in the instant case, and the ALJ
v. Black Ball Freight Serv., 397 U.S. 532, 538-39 (1970) committed reversible error by depriving Wilson of the
(internal quotation marks omitted). In the former case, the procedural right given to him by the agency’s regulation.
regulation bestows a “substantial right” on parties before the
agency, and “it is incumbent upon agencies to follow their Our decision in Heston v. Commissioner of Social Security,
own procedures . . . even where the internal procedures are 245 F.3d 528 (6th Cir. 2001), cited by the Commissioner,
possibly more rigorous than otherwise would be required.” does not compel a contrary result. In that case, the court held
No. 03-1588 Wilson v. Comm’r of Social Security 11 12 Wilson v. Comm’r of Social Security No. 03-1588
that the ALJ’s failure to discuss the report of the claimant’s relevant work, in which case the claimant is not disabled. Id.
treating physician constituted harmless error, without § 404.1520(a)(4)(iv). Fifth, the ALJ determines whether,
discussing § 1527(d)(2). Despite his failure to address the based on the claimant’s residual functional capacity, as well
treating physician’s opinion, the ALJ in Heston had as his age, education, and work experience, the claimant can
considered the limitations described by that physician in make an adjustment to other work, in which case the claimant
determining whether the claimant could find other work at the is not disabled. Id. § 404.1520(a)(4)(v).
relevant step of the sequential analysis. Id. at 536. There was
no reason to remand the case because, wittingly or not, the The claimant bears the burden of proof during the first four
ALJ attributed to the claimant limitations consistent with steps, but the burden shifts to the Commissioner at step five.
those identified by the treating physician. Id. In contrast, Walters v. Comm’r of Soc. Sec., 127 F.3d 525, 529 (6th Cir.
Wilson has invoked § 1527(d)(2), and the ALJ explicitly 1997). At step five, the Commissioner must identify a
rejected DeWys’s opinion and found that Wilson had significant number of jobs in the economy that accommodate
limitations less severe than those described by DeWys. the claimant’s residual functional capacity and vocational
Because the basis for the ALJ’s dismissal of DeWys’s profile. Jones v. Comm’r of Soc. Sec., 336 F.3d 469, 474
opinion is unclear, and because DeWys’s opinion is not (6th Cir. 2003). In many cases, the Commissioner may carry
inadequate as a matter of law, we cannot deem the ALJ’s this burden by applying the medical-vocational grid at 20
failure to “give good reasons” for its rejection of DeWys’s C.F.R. Pt. 404, Subpt. P, App. 2, which directs a conclusion
opinion harmless error. Brueggemann v. Barnhart, 348 F.3d of “disabled” or “not disabled” based on the claimant’s age
689, 695-96 (8th Cir. 2003). and education and on whether the claimant has transferable
work skills. Wright v. Massanari, 321 F.3d 611, 615 (6th Cir.
While the foregoing analysis requires reversal, Wilson’s 2003); Burton v. Sec’y of Health & Human Servs., 893 F.2d
alternative argument does not. The ALJ did not err when, in 821, 822 (6th Cir. 1990). However, if a claimant suffers from
the course of finding that Wilson could perform other work, a limitation not accounted for by the grid, the Commissioner
the ALJ did not identify the transferable skills that Wilson may use the grid as a framework for her decision, but must
had acquired during his work as a deputy sheriff. rely on other evidence to carry her burden. Id. In such a case,
the Commissioner may rely on the testimony of a vocational
In making a determination as to disability, an ALJ expert to find that the claimant possesses the capacity to
undertakes a five-step sequential evaluation process mandated perform other substantial gainful activity that exists in the
by regulation. Heston, 245 F.3d at 534. First, the claimant national economy. Heston, 245 F.3d at 537-38; Cline v.
must demonstrate that he has not engaged in substantial Comm’r of Soc. Sec., 96 F.3d 146, 150 (6th Cir. 1996).
gainful activity during the period of disability. 20 C.F.R.
§ 404.1520(a)(4)(i). Second, the claimant must show that he The ALJ found that Wilson suffered from limitations
suffers from a severe medically determinable physical or beyond those accounted for by the grid, and therefore used the
mental impairment. Id. § 404.1520(a)(4)(ii). Third, if the grid merely as a “framework” in determining whether Wilson
claimant shows that his impairment meets or medically equals could perform other work. The ALJ relied on the testimony
one of the impairments listed in 20 C.F.R. Pt. 404, Subpt. P, of Paul W. Delmar, a vocational expert, in determining that,
App. 1, he is deemed disabled. Id. § 404.1520(a)(4)(iii). as of March 31, 1995, there were a significant number of jobs
Fourth, the ALJ determines whether, based on the claimant’s in the national economy that Wilson could perform. Delmar
residual functional capacity, the claimant can perform his past testified that an individual with Wilson’s profile could
No. 03-1588 Wilson v. Comm’r of Social Security 13 14 Wilson v. Comm’r of Social Security No. 03-1588
perform work existing in the regional economy (the State of Social Security Regulations.1 Even assuming that they are,
Michigan) as of March 31, 1995, in any of 50,000 semi- an agency’s interpretation of its own regulation is entitled to
skilled clerical jobs, such as order clerk, information clerk, substantial deference and will be upheld unless plainly
account information clerk, stock and inventory clerk, and erroneous or inconsistent with the regulation. Auer v.
shipping and receiving clerk. Delmar testified that Wilson Robbins, 519 U.S. 452, 461 (1997); United States v.
had acquired transferable skills while working as a deputy Cinemark USA, Inc., 348 F.3d 569, 578 (6th Cir. 2003). In
sheriff, but did not identify these skills. Likewise, the ALJ relevant part, SSR 82-41 reads, “When the issue of skills and
found that Wilson had transferable skills, but did not identify their transferability must be decided, the adjudicator or ALJ
these skills in his opinion. is required to make certain findings of fact and include them
in the written decision,” and “When a finding is made that a
Wilson contends that the ALJ’s failure to identify Wilson’s claimant has transferable skills, the acquired work skills must
transferable skills constitutes reversible error. He argues that be identified.” Soc. Sec. Rul. 82-14, 1982 WL 31389, at *7
the absence of such a finding makes it impossible for a court (1982). The Commissioner insists that these passages apply
to review an ALJ’s conclusion that a claimant could perform only when an ALJ relies solely on the grid, in which cases the
other work. He further contends that 20 C.F.R. § 404.1568 ALJ must ascertain whether the claimant has transferable
and SSR 82-41, a ruling promulgated by the Social Security skills in order to apply the grid. Wilson offers only a muddy
Administration, require such a finding. and conclusory response to this argument, and, from our
review of the relevant materials, the Commissioner’s
Wilson’s arguments are unpersuasive. This court has held interpretation of SSR 82-41 appears reasonable. We therefore
repeatedly that the testimony of a vocational expert defer to the Commissioner’s view.
identifying specific jobs available in the regional economy
that an individual with the claimant’s limitation could For the foregoing reasons, we VACATE the judgment of
perform can constitute substantial evidence supporting an the district court with instructions to REMAND to the
ALJ’s finding at step 5 that the claimant can perform other Commissioner for further proceedings consistent with this
work. See, e.g., Wright, 321 F.3d at 616; Cline, 96 F.3d at opinion.
150; Sias v. Sec’y of Health & Human Servs., 861 F.2d 475,
481 (6th Cir. 1988). With respect to transferable skills, 20
C.F.R. § 404.1568 defines transferable skills, states how the
agency determines that skills are transferable to other jobs,
and describes a range of degrees of transferability of skills.
The regulation does not explicitly mandate the enumeration
of transferable skills at step 5. Wilson’s conclusory argument
does not supply a basis for reading such a requirement into
the regulation.
1
According to a regulation, Social Security Rulings “represent
Finally, contrary to Wilson’s argument, SSR 82-41 does precedent final opinions and o rders and statements of policy and
not require the identification of transferable skills in the interpretations” adopted by the Social Security Administration and “are
instant case. We need not decide whether Social Security bind ing on all components of the Social Security Administration.” 20
Rulings are binding on the Commissioner in the same way as C.F.R. § 402.35(b)(1) (20 04); see also Sykes v. Apfel, 228 F.3d 259, 271
(3d Cir. 2000).