Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
9-15-2006
Hernandez v. Comm Social Security
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-4275
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
NO. 05-4275
KATHLEEN HERNANDEZ,
Appellant
v.
COMMISSIONER OF SOCIAL SECURITY
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 04-cv-01926)
District Judge: Hon. Stanley R. Chesler
Submitted Under Third Circuit LAR 34.1(a)
September 14, 2006
Before: SLOVITER, WEIS, and GARTH, Circuit Judges
(Filed September 15, 2006)
OPINION
SLOVITER, Circuit Judge.
Introduction
Kathleen Hernandez appeals from the decision of the District Court affirming the
final decision of the Commissioner of Social Security that Hernandez was not entitled to
disability insurance benefits under the Social Security Act. Because the District Court
thoroughly reviewed the record, we will not repeat its analysis in its entirety, choosing
instead to focus only on the highlights.
I.
Hernandez filed an application for disability insurance benefits on October 19,
1994, alleging disability since September 16, 1993 when she sustained injuries to her
head, neck, left shoulder and arm in a motor vehicle accident. The application was denied
initially and on reconsideration. Following a hearing, the Administrative Law Judge
(“ALJ”) found that Hernandez was not disabled. There followed a series of procedural
steps, including an appeal, remand, a second hearing before an ALJ, who also found that
Hernandez was not disabled, additional procedures and finally yet another hearing before
a new ALJ, who evaluated the evidence pursuant to the five-step sequence set forth in 20
C.F.R. § 404.1520, and who concluded Hernandez was not disabled. The Appeals
Council denied Hernandez’s request for review, making the ALJ’s May 30, 2003 decision
the final decision of the Commissioner.
Hernandez filed an action in the United States District Court for the District of
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New Jersey challenging the Commissioner’s final decision. The District Court affirmed
and Hernandez appeals.
II.
This Court has jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary
review of legal issues in reviewing an appeal from the district court affirming the
Commissioner’s denial of Social Security benefits, but review factual findings to
determine whether the administrative record provides substantial evidence to support the
Commissioner’s findings. 42 U.S.C. § 405(g); Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir.
2000).
The Social Security Administration has promulgated a five-step sequential
evaluation process to determine whether an individual is disabled. See 20 C.F.R. §
404.1520; Plummer v Apfel, 186 F.3d 422, 428 (3d Cir. 1999). The parties agree that
Hernandez satisfies step one because Hernandez did not engage in substantial gainful
activity for the period at issue, September 16, 1993 through June 30, 1999 when
Hernandez’s disability insurance benefits expired. 20 C.F.R. § 404.1520(a). In step two,
the Commissioner determines whether the claimant is suffering from a severe
impairment. 20 C.F.R. § 404.1520(c). The Commissioner found that the herniated discs
of Hernandez’s cervical spine constituted a “severe” impairment within the meaning of
the Regulations, but that she did not establish a severe mental impairment, gastritis, or
spastic colon. In step three, the Commissioner evaluates whether the evidence establishes
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that the claimant suffers from a listed impairment. If so, the claimant is automatically
eligible for benefits. If the claimant does not suffer from a listed impairment or its
equivalent, however, the Commissioner proceeds to the next step. 20 C.F.R. §
404.1520(d). Although the Commissioner found that Hernandez’s cervical spine injuries
were severe, he found they were not severe enough to meet or medically equal any of the
impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“Listings”).
In step four, the Commissioner reviews whether the claimant retains the “residual
functional capacity” to perform his or her past relevant work. If so, the claimant is not
eligible for disability benefits. 20 C.F.R. § 404.1520(e). The Commissioner found and
the ALJ agreed that Hernandez retained the residual functional capacity to perform
sedentary work that did not require frequent lifting with the left, non-dominant arm. See
20 C.F.R. § 404.1567(a). Finally, in step five the Commissioner considers whether work
exists in significant numbers in the national economy that the claimant can perform given
his or her medical impairments, age, education, past work experience, and “residual
function capacity.” If so, the claimant is not eligible for benefits. 20 C.F.R. §
404.1520(f). In this final step, “the burden of production shifts to the Commissioner, who
must demonstrate the claimant is capable of performing other available work in order to
deny a claim of disability.” Plummer, 186 F.3d at 428. The ALJ agreed that Hernandez
could not perform her past relevant work as a food handler or assembly line worker, but
that, using the Medical-Vocational Guidelines Rule 201.27, Hernandez could perform the
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jobs of parts inspector, parts sorter, parts cleaner and coil inspector.
On appeal, Hernandez argues that the ALJ and District Court erred in their
findings with respect to steps two, three, four and five of the sequential analysis. As part
of her argument, Hernandez alleges that the ALJ omitted evidence, distorted testimony,
and was motivated by “unmistakable bias.” Appellant’s Br. at 3. The Government
responds by arguing that each of the ALJ’s findings were supported by substantial
evidence and that Hernandez’s ad hominem attacks on the ALJ are unwarranted.
III.
Under the applicable regulations, an impairment or combination of impairments is
not severe if it does not significantly limit a claimant’s physical or mental ability to do
basic work activities. 20 C.F.R. § 404.1521(a). Basic mental work activities include
understanding, carrying out, and remembering simple instructions; use of judgment;
responding appropriately to supervision, co-workers and usual work situations; and
dealing with changes in a routine work setting. 20 C.F.R. § 404.1521(b). A claimant’s
symptoms, defined as her own description of the impairment, are not alone sufficient to
establish a mental impairment. 20 C.F.R. § 404.1528(a). Instead, psychiatric signs are
indicated, as provided in the version of the Regulations applicable in this proceeding, by
“medically demonstrable phenomena which indicate specific abnormalities of behavior,
affect, thought, orientation, and contact with reality.” 20 C.F.R. § 404.1528(b).
In finding that Hernandez did not have a severe mental impairment, the ALJ
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discussed the regulatory provisions governing his decision as well as the evaluations of
Drs. Latimer, Fischer, and Makhija. The ALJ noted that while Dr. Latimer described
Hernandez as severely depressed at his initial evaluation in April 1994, the only
medications prescribed as of September 1994 were Zantac and Lomotil, which treat
gastrointestinal disorders. These findings are supported by the record. He also explained
that there was no evidence that Hernandez sought the care of a mental health professional
aside from her few visits to Dr. Latimer in 1994. Specifically, Dr. Latimer only saw
Hernandez on April 4, 11, 18, and 28, 1994.
In addition, the ALJ mentioned that Drs. Latimer and Fischer described Hernandez
as “pleasant,” a term that he did not find was generally associated with individuals
suffering from major depression. He also noted that Drs. Latimer and Makhija
documented fully intact orientation and alertness, and normal memory, concentration,
attention span, judgment and insight. These findings are also supported by the record.
Furthermore, he mentioned that neither doctor found psychotic trends, delusions,
obsessive-compulsive behaviors, looseness of associations or flights of ideas. Likewise,
the record supports these findings. Because there was no objective chronicling of any
concentration/cognitive disturbance, the ALJ gave little weight to Dr. Makhija’s findings
of psychomotor retardation and withdrawn appearance, Dr. Latimer’s conclusion of
permanent and total disability, or state agency psychological consultants finding moderate
restrictions.
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He concluded by finding that, while Hernandez had a depressive disorder and post-
traumatic stress disorder, they resulted in no more than slight limitations in daily living,
social functioning, concentration, persistence, and pace. Therefore, he found that the
evidence did not substantiate a severe mental impairment.
Despite the fact that these findings are supported by the record, Hernandez argues
at length that the ALJ simply should not have discredited the conclusions of all these
reports. However, the observations contained within these reports do not explicitly
indicate how Hernandez would be unable to perform work activities because of any
mental impairment that may be present. Although Dr. Latimer’s report concluded that
Hernandez was disabled, the ALJ determined this conclusion to be unsupported, noting
that Hernandez only received treatment on four occasions, that she was only prescribed
gastrointestinal medications, that the body of the report did not support the conclusion,
and that Dr. Latimer had a history of consistently declaring claimants to be disabled
regardless of his objective findings. The ALJ also stated that, while Dr. Makhija’s report
found psychomotor retardation, nothing indicated that Hernandez’s mental impairment
prevented her from doing basic work activities.
We will not disturb the District Court’s holding that approved the ALJ’s finding
that Hernandez failed to prove her mental impairment to be severe.
IV.
Hernandez next argues that her cervical disc impairment is the medical equivalent
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of Section 1.04 of the Listings and therefore entitled to presumptive disability.
Hernandez bears the burden of presenting medical findings showing that her impairment
meets or equals a listed impairment. Burnett, 220 F.3d at 120 n.2. “For a claimant to
show that his impairment matches a listing, it must meet all of the specified medical
criteria. An impairment that manifests only some of those criteria, no matter how
severely, does not qualify.” Sullivan v. Zebley, 493 U.S. 521, 530 (1990).
Section 1.04 requires:
Disorders of the spine (e.g., herniated nucleus pulposus, spinal
arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet
arthritis, vertebral fracture), resulting in compromise of a nerve root . . . or
the spinal cord. With:
A. Evidence of nerve root compression characterized by neuro-anatomic
distribution of pain, limitation of motion of the spine, motor loss (atrophy
with associated muscle weakness or muscle weakness) accompanied by
sensory or reflex loss and, if there is involvement of the lower back,
positive straight-leg raising test (sitting or supine); or
B. Spinal arachnoiditis . . . or
C. Lumbar spinal stenosis resulting in pseudoclaudication . . . .
20 C.F.R. Pt. 404, Subpt. P, App. 1.
Hernandez argues that her condition satisfies the Listings if she merely establishes
“pain, spasm, limitation of motion, sensory and reflex loss,” Appellant’s Br. at 26, and
she appears only to be arguing that she fits within the description of “A,” nerve root
compression. She does not, however, direct the court to any report or other evidence
specifically indicating nerve root compression as characterized by motor or sensory loss,
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nor has any such evidence been found in a review of the record. It follows that the ALJ’s
finding that Hernandez did not meet the requirements of the Listings is supported by
substantial evidence.
Hernandez further argues that the ALJ failed in his duty to fully explain this
finding. Hernandez cites Burnett v. Commissioner, 220 F.3d 113, 120 (3d Cir. 2000), for
his argument that “the ALJ must recite evidence which contradicts his finding and explain
the basis for its rejection as well as explain[] the evidentiary basis for each finding at each
level of the sequential evaluation.” Appellant’s Br. at 25. However, in Burnett, we only
held that a bare conclusory statement by the ALJ that an impairment did not match the
Listings was insufficient for us to conduct a meaningful review. Burnett, 220 F.3d at
119–20.
Hernandez complains that at this step the ALJ merely stated that “there is no
documentation of any nerve root compression as characterized by motor or sensory loss,
spinal arachnoiditis, or lumbar spinal stenosis resulting in pseudoclaudication, as required
by medical listings 1.04A, B and C, pertaining to spinal disorders.” Tr. 303. However, if
the ALJ found no documentation of these signs, there is nothing more he could have
discussed. In fact, the ALJ thoroughly discussed the medical evidence relating to
Hernandez’s cervical spine injuries later in his opinion, and went to great length in
explaining the weight given to each medical report and his reason for rejecting some of
the evidence.
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Therefore, his opinion as a whole indicates that the ALJ considered the appropriate
evidence and factors in determining that Hernandez’s impairment did not meet the
requirements for any listing. The ALJ satisfied the Burnett requirement of sufficient
explanation of the step three determination.
V.
Hernandez again asserts that the ALJ offered insufficient explanation for his
residual function capacity determination and argues that the ALJ was too optimistic in his
findings regarding her ability to move her neck. However, in his thorough explanation of
the medical evidence that he rejected the ALJ explained why he did not accept
Hernandez’s neck movement complaints, citing the cervical range of motion findings of
Dr. Qualter and physical therapist Abood-Bruno. Therefore the ALJ provided substantial
evidence and sufficient explanation for his findings regarding Hernandez’s neck.
VI.
Hernandez also argues that the ALJ’s finding that there are jobs in the economy
that she can perform is not supported by substantial evidence. Because the ALJ
determined that some of Hernandez’s impairments prevented her from doing the full
range of sedentary work, he consulted a vocational expert to determine if there were jobs
that she could perform based upon her age, education, work experience, and residual
function capacity. The vocational expert considered these factors and determined that
Hernandez could perform the jobs of parts inspector, parts sorter, video monitor, coil
10
inspector, components inspector and parts cleaner. The expert also testified that such jobs
existed in sufficient numbers in the regional economy.
The ALJ’s discussion of medical reports, reasons why many were rejected, and the
vocational expert’s testimony provide more than “a mere scintilla” of evidence supporting
the ALJ’s decision. Plummer, 186 F.3d at 427. There was substantial evidence for the
ALJ’s determination as to step five and his conclusion that Hernandez is not disabled.
VII.
We note our displeasure with the conclusory and unprofessional assertions that
pervade Hernandez’s brief. We have previously reprimanded this counsel for his
“pejorative and unfounded arguments. They ill serve his client and adversely affect his
credibility.” Neal v. Comm’r, 57 Fed. Appx. 976, 978 n.2 (3d Cir. 2003). That comment
is equally appropriate in the present case.
VIII.
For the reasons discussed above, we will affirm the District Court’s conclusion
that there was substantial evidence to support the ALJ’s decision.
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