Garcia v. Comm Social Security , 94 F. App'x 935 ( 2004 )

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
4-19-2004
Garcia v. Comm Social Security
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-3775
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NOT PRECEDENTIAL
IN THE UNITED STATES COURT
OF APPEALS
FOR THE THIRD CIRCUIT
NO. 03-3775
ABRAHAM GARCIA
Appellant
v.
COMM ISSIONER OF SOCIAL SECURITY
On Appeal From the United States
District Court
For the District of New Jersey
(D.C. Civil Action No. 00-cv-05782)
District Judge: Hon. William J. Martini
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 16, 2004
BEFORE: RENDELL, STAPLETON and LAY,* Circuit Judges
(Opinion Filed : April 19, 2004)
* Hon. Donald P. Lay, United States Circuit Judge for the Eighth Circuit, sitting by
designation.
OPINION OF THE COURT
STAPLETON, Circuit Judge:
Appellant Abraham Garcia appeals the decision of the United States District
Court for the District of New Jersey affirming the decision of the Commissioner of the
Social Security Administration (“Commissioner”) to deny Garcia’s claim for Disability
Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles II
and XVI of the Social Security Act. The parties are familiar with the facts and procedural
history. Hence, we limit ourselves to a brief statement of the reason for our decision.
For the reasons that follow, we will affirm the decision of the District Court
upholding the Commissioner’s denial of benefits.
I.
The District Court had jurisdiction to review the Commissioner’s final
determination under 42 U.S.C. § 405(g) and we have jurisdiction under 28 U.S.C. § 1291.
Our review of the Commissioner’s final decision to deny benefits is limited to a
determination of whether that decision is supported by substantial evidence. See, e.g.,
Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999). “Substantial evidence ‘does not
mean a large or considerable amount of evidence, but rather such relevant evidence as a
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reasonable mind might accept as adequate to support a conclusion.’” Id. (quoting Pierce
v. Underwood, 487 U.S. 552, 108 S.Ct. 2541, 2545, 101 L.Ed.2d 490 (1988)).
II.
Both types of benefits Garcia seeks are only available if, inter alia, Garcia
is “disabled.” In determining whether a claimant is disabled, the Commissioner must
follow the familiar five-step sequential analysis set forth in the regulations promulgated
by the Social Security Administration. See 20 C.F.R. §§ 404.1520, 416.920. Garcia
primarily objects to the ALJ’s determination of his residual functional capacity during
that process, and claims that the ALJ did not explicitly state why he “rejected” certain
medical test results, in violation of Cotter v. Harris, 642 F.2d 700 (3d Cir. 1981) (“Cotter
I”) (“[W]e need from the ALJ not only an expression of the evidence s/he considered
which supports the result, but also some indication of the evidence which was rejected.”).
As we later indicated, Cotter I “simply requires that the ALJ indicate that
s/he has considered all the evidence, both for and against the claim, and provide some
explanation of why s/he has rejected probative evidence which would have suggested a
contrary disposition.” Cotter v. Harris, 650 F.2d 481, 482 (3d Cir. 1981) (“Cotter II”).
Garcia suggests that the ALJ provided no indication that he had considered results from
electromyography (“EMG”), nerve conduction velocity (“NCV”), and magnetic
resonance imaging (“MRI”) tests, which, Garcia argues, would have resulted in a
different residual functional capacity assessment if properly credited by the ALJ.
3
The ALJ’s opinion does not explicitly reference these test results. The ALJ
indicated, however, that he considered the “series of 10 reports between October 25, 1996
and December 3, 1997” by Garcia’s treating physician, Roger Behar, M.D. Results from
the EMG/NCV tests are contained in Dr. Behar’s November 20, 1996 report. Those
results indicate that Garcia suffered from “bilateral C7 radiculopathies, worse on the right
than the left.”
Contrary to Garcia’s suggestion, however, that the ALJ implicitly “rejected”
these results, the ALJ ultimately concluded that Garcia suffers from “a severe shoulder
injury” that “restrict[s] his ability to do fine finger manipulation.” Given that the ALJ
clearly considered Dr. Behar’s reports (including the one containing the EMG/NCV test
results) and that, as the District Court noted, the ALJ concluded that Garcia’s shoulder
was severely impaired, we cannot agree that in not specifically referencing the
EMG/NCV test results the ALJ failed to “provide some explanation of why s/he has
rejected probative evidence which would have suggested a contrary disposition.” Cotter
II, 650 F.2d at 482 (emphasis added).
Garcia further suggests that the ALJ ignored a report by Dr. Schonfeld
discussing MRI results that showed a “minimal central atrophy,” “mild cortical atrophy,”
and “chronic deep white matter ischemic change,” thereby again violating Cotter. The
MRI report, however, does not discuss any discernible impairment in light of these test
results, and the record does not show that any physician opined that the MRI scan
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demonstrated any impairment. Furthermore, as the District Court noted, Dr. Behar’s
reports as treating physician do not indicate any change in his diagnosis in light of the
MRI results. Accordingly, we find no Cotter violation here because these M RI results
alone do not amount to probative evidence that would have suggested a contrary
disposition.
Garcia also contends that the ALJ violated Sykes v. Apfel, 228 F.3d 259 (3d
Cir. 2000) because he utilized the Medical-Vocational Grids after finding that Garcia
suffers from both exertional and nonexertional impairments. As we noted in Sykes,
[t]he grids establish, for exertional impairments only, that jobs
exist in the national economy that people with those
impairments can perform. When a claimant has an additional
nonexertional impairment, the question whether that
impairment diminishes his residual functional capacity is
functionally the same as the question whether there are jobs in
the national economy that he can perform given his
combination of impairments. The grids do not purport to
answer this question, and thus under [Heckler v. Campbell,
461 U.S. 458, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983)] the
practice of the ALJ determining without taking additional
evidence the effect of the nonexertional impairment on
residual functional capacity cannot stand.
Id. at 270 (emphasis added). Accordingly, we held that in order for the Commissioner “to
meet [her] burden of establishing that there are jobs in the national economy that a
claimant with exertional and nonexertional impairments can perform,” the Commissioner
is required to provide “the testimony of a vocational expert or other similar evidence,
such as a learned treatise. In the absence of evidence in addition to the guidelines . . ., the
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Commissioner cannot establish that there are jobs in the national economy that someone
with the claimant’s combination of impairments can perform.” Id. at 273 (emphasis
added).
While the ALJ did rely in this case upon the grids in determining whether
Garcia is disabled, he did so finding “that the claimant can perform work within the full
range of medium work [even] with the non exertional limitations noted above,” and
suggested that Garcia was capable of working as a “drill press operator, packer [or] scrap
separator.” This determination was reached after the ALJ had noted earlier in his opinion
that he had consulted a vocational expert who “stated that a man similarly situated to the
claimant who was capable of performing medium work with the non exertional limitation
of an inability to do fine fingering manipulation would be able to perform jobs that exist
in significant numbers in the national economy” 1 and indicated that such an individual
could perform jobs such as “a drill press operator, a scrap separator and a packer.” Thus,
the ALJ’s conclusion that Garcia could perform some medium work even with his
nonexertional limitations was expressly based upon the testimony of a vocational expert.
Accordingly, once the ALJ determined that Garcia could perform medium
range work given his exertional limitations, the ALJ here acted entirely in accordance
1
The ALJ’s actual question posed to the vocational expert included the additional
nonexertional limitation of a “slight lack of ability to concentrate,” a limitation that
ultimately was not expressly adopted by the ALJ’s findings. The fact that the vocational
expert considered this additional limitation, however, does not amount to any prejudice to
Garcia because it only served to further limit the available work Garcia could perform
based upon a limitation the ALJ did not ultimately adopt.
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with Sykes by seeking the expertise of a vocational expert to determine whether an
individual capable of medium range work but possessing Garcia’s nonexertional
limitations could still perform jobs available in significant number in the national
economy. We therefore find no Sykes violation.2
Garcia additionally argues that the ALJ failed to properly credit his
testimony of pain. “[A claimant’s] subjective complaints must be substantiated by
medical evidence.” Williams v. Sullivan, 970 F.2d 1178, 1186 (3d Cir. 1992); see also 20
C.F.R. §§ 404.1529(a) and 416.929(a) (ALJ is to consider “the extent to which [a
claimant’s] symptoms [including pain] can reasonably be accepted as consistent with the
objective medical evidence and other evidence”). Garcia has the burden of proving that
medical evidence validates his subjective claims. Williams, 970 F.2d at 1186. “[T]here
must be objective medical evidence of some condition that could reasonably produce
pain,” but “there need not be objective evidence of the pain itself.” Green v. Schweiker,
749 F.2d 1066, 1071 (3d Cir. 1984).
“Once an ALJ concludes that a medical impairment that could reasonably
2
Garcia also suggests that the ALJ erred in formulating his hypothetical question for
the vocational expert to the extent that question assumed that Garcia could perform
medium work (as constrained by his nonexertional limitations) because, Garcia argues,
the record does not support a finding that, in light of his exertional limitations, he could
perform medium work. See Chrupcala v. Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987)
(“A hypothetical question must reflect all of a claimant’s impairments that are supported
by the record; otherwise the question is deficient and the expert’s answer to it cannot be
considered substantial evidence.”). We disagree. The reports of Drs. Sanchez and
Sandler, as discussed infra, constitute substantial evidence in support of that finding.
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cause the alleged symptoms exists, he or she must evaluate the intensity and persistence
of the pain or symptom, and the extent to which it affects the individual’s ability to work.
This obviously requires the ALJ to determine the extent to which a claimant is accurately
stating the degree of pain or the extent to which he or she is disabled by it.” Hartranft v.
Apfel, 181 F.3d 358, 362 (3d Cir. 1999).
The ALJ here noted that Garcia “testified that his back hurts so much that
he can’t sit for more than 10 minutes. He alleviates the pain by standing but he can’t
stand for more than a few minutes either.” The ALJ further acknowledged that Dr.
Behar’s reports contained complaints of pain. The ALJ concluded, however, that “[t]he
reports of Drs. Sanchez and particularly Sandler paint the picture of a man whose stated
complaints do not match the physical findings.” Accordingly, the ALJ determined that
there was insufficient objective medical evidence of Garcia’s pain, and that Garcia’s
claims of pain were not entirely credible.
Garcia argues that the ALJ should have credited his testimony as to pain,
and should have recognized his medications and the side effects of those medications as
objective evidence of a medical condition that could reasonably produce pain. We have
held that “[t]estimony of subjective pain . . . is entitled to great weight, particularly when
it is supported by competent medical evidence.” Kent v. Schweiker, 710 F.2d 110, 115
(3d Cir. 1983) (alterations omitted). Nonetheless, an ALJ may reject a claim of disabling
pain where “he [has] consider[ed] the subjective pain and specif[ied] his reasons for
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rejecting these claims and [has] support[ed] his conclusion with medical evidence in the
record.” Matullo v. Bowen, 926 F.2d 240, 245 (3d Cir. 1990).
The ALJ’s determinations with respect to objective medical evidence and
Garcia’s credibility are supported by substantial evidence. The July 1996 report by Dr.
Sanchez relied upon by the ALJ indicated that “[t]he patient has not been noted to have
any problems with walking, sitting, lifting, or handling objects or hearing, speaking or
traveling. There are no disorders of mental activities such as understanding, or memory
loss. There [are] no problem[s] with sustained concentration or persistence [that] have
been noted.” Dr. Sandler’s December 1996 report acknowledged Garcia’s complaints of
pain, but found that muscle strength was “essentially normal, or, at worst, 4/5 on the right
side,” and that Garcia had a “normal range of motion” and normal gait. The report further
suggested that “[e]xamination reveals a gentlemen who walks with a cane but obviously
can walk without the cane” and that when Dr. Sandler asked Garcia to do a knee bend,
“[e]ven with my holding his hands . . . he managed to fall over backward. From what I
could see, there was absolutely no reason for this.” Given these reports, we cannot say
that the ALJ erred in rejecting Garcia’s subjective complaint of pain where the ALJ
supported his conclusion with medical evidence suggesting no basis for that pain.3
3
We note that Garcia has filed multiple applications for disability benefits over the
past 15 years. The relevant time span for purposes of the application we are currently
reviewing is the two-year period from December 1995, when Garcia stopped working,
through December 1997, when his application for benefits was denied. While it is true
that Garcia received benefits from sometime in 1991 until early 1993, and it is also true
that he is currently receiving benefits for a period beginning on December 21, 1997,
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Lastly, Garcia objects to the ALJ having made observations as to Garcia’s
demeanor during testimony. The ALJ in his opinion stated that Garcia
followed the entire proceeding without [apparent] difficulty.
[He also] sat for the entire hearing, which lasted over an hour,
without once appearing to be in any discomfort whatsoever.
[A]t one point he reached into his back pocket with his right
hand, took out a cloth handkerchief, unfolded it, blew his nose
and carefully refolded it and replaced it into his back pocket.
All the while he was doing this with his right hand.
As Garcia suggests, we have held, on numerous occasions, that an “ALJ may not
substitute his personal reaction to [a] Claimant’s responses or physical appearance for the
opinion of the treating physicians.” Gilliland v. Heckler, 786 F.2d 178, 184 (3d Cir.
1986); see also, e.g., Morales v. Apfel, 225 F.3d 310, 318 (3d Cir. 2002) (“Although an
ALJ may consider his own observations of the claimant and this Court cannot
second-guess the ALJ’s credibility judgments, they alone do not carry the day and
override the medical opinion of a treating physician that is supported by the record. . . .
The ALJ cannot . . . disregard [a] medical opinion based solely on his own amorphous
impressions, gleaned from the record and from his evaluation of the claimant’s
credibility.”) (internal alterations and quotations omitted); Frankenfield v. Bowen, 861
F.2d 405, 408 (3d Cir. 1988).
medical reports from those periods of time are not helpful in determining the severity of
his condition during the relevant time span. Limiting our review to the reports describing
his impairments between late 1995 and late 1997, as the ALJ did, we cannot conclude that
the ALJ overlooked any objective medical evidence thAt would corroborate or explain
Garcia’s subjective complaints.
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The ALJ here, however, did not disregard one medical opinion based solely
on his own impressions. Instead, the ALJ relied on the reports of Drs. Sanchez and
Sandler in support of his conclusions. See Jones v. Sullivan, 954 F.2d 125, 128-29 (3d
Cir. 1991) (where claimant alleged that ALJ substituted his own lay observations of
claimant’s condition for the findings of the treating physician, and treating physician’s
opinions were contradicted by findings of two state agency physicians, ALJ did not err in
determining that treating physician’s opinions were not controlling). Having reviewed
the reports of Drs. Sanchez and Sandler, we cannot say that the ALJ’s conclusions were
not supported by substantial evidence in light of those reports.
III.
For the reasons stated, the judgment of the District Court will be affirmed.
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