Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
8-6-2007
Ortega v. Comm Social Security
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-1647
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-1647
ROBERTO ORTEGA,
Appellant
v.
COMMISSIONER OF SOCIAL SECURITY
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
D.C. Civil No. 04-cv-05551
District Judge: The Honorable William G. Bassler
Submitted Under Third Circuit LAR 34.1(a)
June 26, 2007
Before: BARRY, FUENTES, and JORDAN, Circuit Judges
(Opinion Filed: August 6, 2007)
OPINION
BARRY, Circuit Judge
Roberto Ortega appeals from a final order of the District Court affirming the
Commissioner of Social Security’s denial of disability insurance benefits. He contends
that the Commissioner’s decision was not supported by substantial evidence in several
respects. For the reasons that follow, we will affirm.
I.
We write only for the parties, and will reprise only those facts necessary to our
analysis. On August 9, 2001, Ortega filed a claim for disability insurance benefits
commencing January 30, 1996 due to alleged depression, diabetes, and a heart condition.
In a decision dated November 19, 2003, an administrative law judge (“ALJ”) found that
Ortega was insured for disability benefits through December 31, 1997, the last date on
which he satisfied the requirements of 42 U.S.C. § 416(i). The ALJ concluded, however,
that Ortega was not disabled within the meaning of the Social Security Act, and was
therefore ineligible for benefits. After the Appeals Council denied review, Ortega sought
review in the District Court, and, on December 23, 2005, the District Court affirmed.
This appeal followed.
The District Court had subject matter jurisdiction pursuant to 42 U.S.C. § 405(g).
We have jurisdiction to review the final order of the District Court under 28 U.S.C. §
1291. We must sustain the Commissioner’s factual findings if they are supported by
substantial evidence. 42 U.S.C. § 405(g); Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir.
1999). Substantial evidence is “‘less than a preponderance of the evidence but more than
a mere scintilla.’” Jones v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004) (quoting Jesurum
v. Sec’y of the United States Dep’t of Health & Human Servs., 48 F.3d 114, 117 (3d Cir.
1995)). It means “‘such relevant evidence as a reasonable mind might accept as adequate
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to support a conclusion.’” Id. (quoting Jesurum, 48 F.3d at 117).
II.
The Commissioner may award disability insurance benefits to an individual who is
under a “disability,” defined in the Social Security Act as the “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §
423(d)(1)(A). An eligible claimant must satisfy the insured status requirements of 42
U.S.C. § 423(c), and must have physical or mental impairments “of such severity that he
is not only unable to do his previous work but cannot, considering his age, education, and
work experience, engage in any other kind of substantial gainful work which exists in the
national economy,” 42 U.S.C. § 423(d)(2)(A). It is undisputed that Ortega satisfied the
insured status requirements only though December 31, 1997.
To determine whether a claimant is disabled, the Commissioner applies a five-step
test. 20 C.F.R. § 404.1520(a)(4). First, the Commissioner must determine whether the
claimant is currently engaging in substantial gainful activity; if so, the claimant is not
eligible for disability benefits. 20 C.F.R. § 404.1520(a)(4)(i), (b); Jones, 364 F.3d at 503.
Next, the Commissioner asks whether the claimant’s impairment is “severe”; a negative
answer results in the denial of benefits. 20 C.F.R. § 404.1520(a)(4)(ii), (c); Jones, 364
F.3d at 503. At step three, the Commissioner asks whether the claimant suffers from a
listed impairment or its equivalent. If so, the claimant is entitled to benefits; if not, the
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Commissioner’s inquiry proceeds to the next step. 20 C.F.R. § 404.1520(a)(4)(iii), (d);
Jones, 364 F.3d at 503. Step four calls for the Commissioner to determine whether the
claimant retains “residual functional capacity” to perform past relevant work; if so, the
claimant is not entitled to benefits. 20 C.F.R. § 404.1520(a)(4)(iv), (e), (f); Jones, 364
F.3d at 503. Finally, at step five, the Commissioner determines whether the claimant, in
light of his or her age, education, and work experience, can transition to other available
work. A positive answer will result in the denial of benefits. 20 C.F.R. §
404.1520(a)(4)(v), (g); Jones, 364 F.3d at 503. The claimant bears the burden of
establishing steps one through four; at step five, the burden shifts to the Commissioner.
Poulos v. Comm’r of Soc. Sec., 474 F.3d 88, 92 (3d Cir. 2007).
The ALJ made findings adverse to Ortega at steps three and five, and Ortega
challenges these findings on appeal. With respect to step three, the ALJ found that
Ortega’s “severe” cardiac and mental impairments did not meet or equal an impairment
listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1 (the “Listings”), including § 12.04, the
applicable Listing on depression. The ALJ did not credit Ortega’s obesity and diabetes as
being severe impairments, and Ortega challenges this alleged oversight. Ortega retained
the residual functional capacity to perform sedentary work, however, and the ALJ found,
at step five, that he was able to perform jobs that existed in significant numbers in the
national economy. Ortega specifically challenges the ALJ’s decisions to discount the
testimony of his treating physician, his various complaints of pain, and vocational
evidence that purportedly validated his disability.
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We easily conclude, as did the District Court, that the ALJ did not err by failing to
credit Ortega’s obesity, diabetes mellitus, and diabetic peripheral neuropathy as severe
impairments. Wholly aside from the fact that when applying for benefits, Ortega did not
even allege disability based on obesity, the record shows that his obesity did not develop
until well after his insured status expired. See De Nafo v. Finch, 436 F.2d 737, 739 (3d
Cir. 1971) (concluding that impairment which was not disabling until after expiration of
claimant’s insured status did not establish claimant’s entitlement to benefits); Manzo v.
Sullivan, 784 F. Supp. 1152, 1156 (D.N.J. 1991) (same). Ortega likewise submitted no
evidence that he was diagnosed with diabetes until after his last insured date. See Bowen
v. Yuckert, 482 U.S. 137, 146 n.5 (1987) (noting claimant’s burden at step two). The
evidence, rather, suggests an onset of diabetes mellitus sometime in 1998 or 1999, and
shows that Ortega first complained of diabetic neuropathy in November 2003.
There is also substantial evidence to support the ALJ’s finding that Ortega failed to
demonstrate that his cardiac and mental impairments met or equaled an impairment in the
Listings. We do not require the ALJ “to use particular language or adhere to a particular
format” when evaluating a claimant’s proof at step three, Jones, 364 F.3d at 505, as long
as the decision permits “meaningful judicial review,” Burnett v. Comm’r of Soc. Sec.
Admin., 220 F.3d 112, 119 (3d Cir. 2000). Here, the ALJ specifically discussed 20 C.F.R.
Pt. 404, Subpt. P, App. 1, § 12.04, the Listing for affective disorders such as depression,
and found that Ortega’s evidence satisfied neither “B” nor “C” of the Listing. The ALJ
also noted the absence of any clinical findings relating to Ortega’s cardiac condition prior
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to December 31, 1997, but nevertheless considered his post-insured medical records
before concluding that his condition did not meet or equal any of the Listings. We have
carefully reviewed the record and are satisfied that substantial evidence supports each of
these findings.
Ortega contends that the ALJ “refused to comply” with regulatory guidelines for
evaluating subjective complaints of pain, but we again find no error. Contrary to Ortega’s
patently false statement that the ALJ’s pain evaluation amounted to a single paragraph of
boilerplate language, the ALJ, in fact, identified the applicable factors in 20 C.F.R. §
404.1529, the Commissioner’s pain evaluation guidelines, and gave “serious
consideration” to Ortega’s subjective complaints. Smith v. Califano, 637 F.2d 968, 972
(3d Cir. 1981). Significant among the ALJ’s reasons for discounting Ortega’s complaints
were his admissions that he was able to live by himself and take care of his basic needs,
take public transportation, visit friends, and travel to Florida to visit family. These
activities, the ALJ found, “are not limited to the extent one would expect, given the
complaints of disabling symptoms and limitations.” (App. at 18.) There must also be
objective medical evidence of some condition that could reasonably cause the pain, 20
C.F.R. § 404.1529(b); Hartranft v. Apfel, 181 F.3d 358, 362 (3d Cir. 1999), and the only
evidence of a medical condition existing before December 31, 1997 was a depressive
episode in October 1996, unaccompanied by any complaints of disabling pain. We find
substantial evidence to support the ALJ’s finding that Ortega’s subjective complaints
were not entirely credible prior to his last insured date.
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Ortega challenges, next, the ALJ’s rejection of the opinion of his treating
cardiologist, Dr. Carducci, that he “was unable to perform any type of work.” (App. at
19, 322.) As the ALJ noted, Dr. Carducci based his 2003 assessment on four visits in
2001, nearly four years after Ortega’s insured status expired. The ALJ also noted that Dr.
Carducci’s opinion was unsupported by his own objective findings that Ortega could lift
up to ten pounds and had no limitations on sitting—findings that were consistent with an
ability to perform sedentary work. See 20 C.F.R. § 404.1567(a). Dr. Carducci’s findings,
moreover, were inconsistent with those of Dr. Patel, who evaluated Ortega in November
2002 and concluded that there was “no evidence of heart failure,” “normal” gait, reflexes,
and grip, and an ability to do “both fine and gross movements with both hands.” (App. at
283-84.) There is, in short, substantial evidence to support the ALJ’s rejection of Dr.
Carducci’s assessment.
Finally, Ortega contests the ALJ’s omission of certain vocational evidence that, he
posits, validated his claim for disability benefits. This argument need not detain us for
the simple reason that the supposedly omitted evidence documented Ortega’s medical
condition more than four years after his last insured date and could not have supplied the
basis of his entitlement to disability insurance benefits. See De Nafo, 436 F.2d at 739.
Although we need not address his distinct argument concerning Social Security Ruling
83-20, an argument not raised in the District Court, see Krysztoforski v. Chater, 55 F.3d
857, 860-61 (3d Cir. 1995), we find it to be without merit. Social Security Ruling 83-20,
which requires an ALJ to call a medical expert when the ALJ is unable to determine the
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onset date of a slowly progressing disease, is inapplicable where, as here, the claimant’s
medical records are unambiguous. Cf. Walton v. Halter, 243 F.3d 703, 709-10 (3d Cir.
2001) (citing cases for the proposition that an ALJ must call on medical expert when
medical evidence is ambiguous and it is necessary to infer claimant’s onset of disability).
Having carefully reviewed the record, we find substantial evidence to support the ALJ’s
conclusion that Ortega was capable of performing a significant number of jobs existing in
the national economy.
III.
For the reasons discussed, we will affirm the final judgment of the District Court.1
1
We express our displeasure with the overheated rhetoric and ad hominem attacks on
the ALJ that Abraham S. Alter, Esq., has seen fit to inject into Appellant’s brief. (See,
e.g., Appellant’s Br. at 7 (referring to the “ALJ’s mistakes, all of them intentional and
goal-directed”); 25 (accusing the ALJ of conducting a “goal-directed analysis” that was
“premeditatedly wrong”); 27 (promising that “the ALJ’s motives will become . . . much
more clear”); 29 (referring to the ALJ’s decision as “a parody of reality”).) In another
case before this very panel, we referred Mr. Alter to the Court’s Standing Committee on
Attorney Discipline
so that the Committee may make a recommendation to the Court as to
whether Mr. Alter should be disciplined for his repeated violations of Local
Rule 28.1(c), his consistent disregard of the many reprimands he has
received for those violations, and for conduct unbecoming a member of the
bar of this court. See Rule 4.2, Third Circuit Rules of Attorney Disciplinary
Enforcement.
Cruz v. Comm’r of Soc. Sec., No. 06-2808, slip op. at 17-18 (3d Cir., July 30, 2007). We
refer Mr. Alter to the Committee in this case as well.
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