Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
3-20-2006
Whitten v. Comm Social Security
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-2320
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"Whitten v. Comm Social Security" (2006). 2006 Decisions. Paper 1411.
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-2320
PATRICIA A. WHITTEN,
Appellant
v.
COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 02-cv-4603)
District Judge: Honorable Dennis M. Cavanaugh
Submitted Under Third Circuit LAR 34.1(a)
February 27, 2006
Before: SLOVITER, FUENTES, and BECKER, Circuit Judges.
(Filed March 20, 2006)
OPINION
BECKER, Circuit Judge.
Patricia Whitten appeals the District Court’s entry of summary judgment in favor
of the Commissioner of Social Security on her claim for disability insurance benefits
under Title II of the Social Security Act. Whitten suffers from a variety of ailments –
primarily Hepatitis C, HIV, depression, and anxiety. The principal manifestation of these
ailments is fatigue, accompanied by muscle ache. The ALJ took account of these
conditions but concluded that Whitten’s impairments – either individually or in
combination – were not, when properly evaluated, of such severity as to preclude her
from engaging in substantial gainful activity. Our review of the ALJ’s conclusion is
deferential – for substantial evidence. See Ramirez v. Barnhart, 372 F.3d 546, 550 (3d
Cir. 2004). The record is quite extensive and we have reviewed it with great care.
However, we write for the parties who are familiar with the facts of this case. Hence, we
limit our discussion to our ratio decidendi. For the reasons that follow, we affirm.
This case largely turns on the merits of the medical controversy relating to the
significance of laboratory tests. It is not disputed that Whitten’s HIV viral loads were
high, but there was substantial evidence that they did not cause a functional limitation.
Although the report of Dr. Al-Haddadin, Whitten’s treating physician, indicates that
Whitten’s HIV was not suppressed, as the ALJ noted, the report also reflects no evidence
of opportunistic disease or manifestations of the disease itself (App. 15). Dr. Al-
Haddadin’s examinations in January 2001 also revealed that Whitten’s heart, chest, lungs,
and abdomen were all normal (Tr. 330). Moreover, Whitten’s neurologic examination
was also normal and her liver biopsy revealed only mildly active chronic hepatitis, and no
fibrosis (Tr. 329-30). Dr. Lo Biondo, who examined Whitten for the State of New Jersey,
could detect no mental disorder and concluded that the psychiatric prognosis was at least
“fair.”
This case is unusual in that no less than five state agency physicians reviewed
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Whitten’s medical records. They were all qualified reviewers and all concluded that
Whitten had no severe impairment or combination of impairments. More specifically,
one of the reviewers, Dr. Druskin, concluded, based on laboratory tests (or the lack
thereof): that there was no evidence of active liver disease; that Whitten’s HIV was in
good control and was “non-severe”; and that her putative breathing obstruction problem
was also non-severe. Dr. Berger, a Board certified internist, concurred. In terms of
Whitten’s symptoms and complaints, the state examiners concluded that they were not
justified by the levels of disease found; i.e. non-severe Hepatitis C, non-severe HIV, and
non-severe obstructive airway disease – either alone or in combination. Coincidentally,
consultative examiner Dr. Vastesaeger’s findings are consistent with the ALJ’s findings.
Whitten’s reliance is on Dr. Vastesaeger’s reporting on Whitten’s personal complaints,
not on the doctor’s diagnosis.
To be sure, Whitten adduced evidence, including evidence from treating
physicians, that supports her claims. However, the countervailing evidence was
sufficiently strong that the ALJ was entitled to credit it and to reject the treating
physicians’ opinions as unsupported by the medical evidence. See Morales v. Apfel, 225
F.3d 310 (3d Cir. 2000). The burden of proving severity is, of course, on the plaintiff. Id.
at 315. Whitten’s contentions that the ALJ failed to properly consider Whitten’s
objective complaints and her non-exertional impairments are baseless.
Despite Whitten’s submission to the contrary, once the ALJ concluded that
Whitten did not have a severe impairment, a listings analysis was not required. See 20
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C.F.R § 404.1520(c). At all events, there are insufficient objective symptoms and
laboratory findings to support a listings claim.
The judgment of the District Court will be affirmed.
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