Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
10-30-2008
Jones v. Comm Social Security
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-4433
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2008
Recommended Citation
"Jones v. Comm Social Security" (2008). 2008 Decisions. Paper 295.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/295
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2008 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 07-4433
____________
CHAWNIE JONES,
Appellant
v.
COMMISSIONER OF SOCIAL SECURITY
____________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 06-cv-00790)
District Judge: Honorable Alan N. Bloch
____________
Submitted Under Third Circuit LAR 34.1(a)
October 2, 2008
Before: FISHER, CHAGARES and HARDIMAN , Circuit Judges.
(Filed: October 30, 2008)
____________
OPINION OF THE COURT
____________
HARDIMAN, Circuit Judge.
Chawnie Jones appeals an order of the District Court affirming the decision of an
Administrative Law Judge (ALJ) denying her application for Disability Insurance
Benefits and Supplemental Security Income. We will affirm.
I.
The procedural history of this case is convoluted. Therefore, we will explain the
proceedings despite the fact that we write only for the parties in this not precedential
opinion.
Jones’s first hearing was held before ALJ Elliott Bunce on November 8, 2001. In
a decision dated January 23, 2002, ALJ Bunce ruled in favor of Jones and held that she
was disabled as of October 4, 2000. This decision was vacated by the Appeals Council
on March 22, 2002, however. The Appeals Council held that the ALJ’s decision was not
supported by substantial evidence because: (1) the ALJ’s conclusion that Jones lacked the
residual functional capacity (RFC) to perform a full range of sedentary work did not
address how Jones’s problem with drowsiness causes that limitation; and (2) the ALJ did
not explain how Jones’s moderate difficulty maintaining concentration, persistence, and
pace precluded all work activity.1
1
By letter dated July 3, 2002, the Appeals Council revised its determination of
March 22, 2002 to correct a typographical error, and granted Jones an additional 30 days
to respond.
2
By order dated September 5, 2002, the Appeals Council remanded the case,
ordering the ALJ to: (1) evaluate Jones’s subjective complaints; (2) give further
consideration to Jones’s maximum RFC with specific reference to record evidence; (3)
obtain evidence from a medical expert; and (4) obtain testimony from a vocational expert
(VE).
Upon remand, ALJ Bunce held a second hearing on February 3, 2003 at which
Jones and a medical expert testified. This time, by decision dated March 26, 2003, ALJ
Bunce ruled against Jones. After making an adverse credibility determination regarding
Jones’s claimed limitations, the ALJ held that Jones had the RFC to perform a significant
range of light work, with certain restrictions.
Once again, the Appeals Council vacated and remanded the case by order dated
March 26, 2004. The Appeals Council found that the ALJ’s decision neither contained
“sufficient rationale with specific reference to evidence in support of the assessed
limitations” nor evaluated the evidence from Mitchell S. Felder, M.D. (the examining
source), which was inconsistent with Jones’s RFC. The Appeals Council also faulted the
decision for not including an adequate evaluation of Jones’s subjective complaints
consistent with 20 C.F.R. §§ 404.1529 and 416.929 and Social Security Ruling 96-7p.
Because the case had been heard twice already by ALJ Bunce, the Appeals Council
assigned a new ALJ to hear the case on remand.
3
After the second remand order, the case was assigned to ALJ William Kenworthy,
who held a hearing on September 9, 2004, at which Jones and a VE testified. By decision
dated October 15, 2004, ALJ Kenworthy found that Jones was not disabled because she
retained the RFC to perform a significant range of light work, with certain restrictions.
Like ALJ Bunce in the second hearing, ALJ Kenworthy found that Jones’s allegations
regarding her limitations were not entirely credible. As part of his decision, ALJ
Kenworthy noted that Jones’s representative had requested time to submit a statement
from Jones’s treating physician, Dr. Laton, but failed to do so. Because such information
had in fact been submitted by express mail, however, ALJ Kenworthy issued an amended
decision on March 17, 2005. After considering the information submitted by Jones’s
representative after the third hearing, ALJ Kenworthy reaffirmed his prior decision,
finding that Dr. Laton’s opinion suffered from two deficiencies: (1) it was essentially an
opinion that Jones cannot work, which is a decision reserved to the Commissioner under
20 C.F.R. § 404.1527(e); and (2) it was inconsistent with the medical record.
Jones again requested review by the Appeals Council. This time, on April 14,
2006, the Appeals Council issued a notice denying the request for review.
Having exhausted her administrative remedies, Jones filed a civil action in the
District Court, which granted the Commissioner’s motion for summary judgment on
September 25, 2007. Jones filed a timely appeal and we have jurisdiction pursuant to 28
U.S.C. § 1291.
4
II.
Jones raises various arguments on appeal. She focuses primarily on the handling
of the testimony of Dr. Daniel Nackley, who testified at the second administrative hearing
that Jones met Listing 11.03 (Epilepsy). Jones claims that the ALJ’s rejection of Dr.
Nackley’s opinion is not supported by substantial evidence. In addition, Jones claims that
ALJ Kenworthy erred in relying upon Dr. Nackley’s testimony at the second hearing
without ensuring that he reviewed 120 pages of records that were submitted thereafter.
Finally, Jones argues that ALJ Kenworthy’s decision misrepresents Dr. Nackley’s
testimony because he never retracted his opinion that Jones met Listing 11.03. For the
reasons that follow, we find these arguments unpersuasive.
A.
Dr. Nackley testified at the second administrative hearing held by ALJ Bunce. In
her brief, Jones aptly notes that Dr. Nackley’s testimony was “somewhat confusing.”
Indeed, when ALJ Bunce asked Dr. Nackley whether Jones met a Listing, he responded:
“[h]er condition does not meet or equal the text of the impairments listed in the
Commissioner’s listing.” (R. 607). After the ALJ’s next question, Dr. Nackley
responded that Jones has a diagnosis of narcolepsy and “I think her condition meets an
equivalency of one of the listings.” Id. When ALJ Bunce asked which Listing, Dr.
Nackley responded “11.03, which is the listing for epilepsy.” Id. at 608. When asked for
support in the record for this opinion, Dr. Nackley referenced tests from April, May, and
5
September of 1999, all of which predated Jones’s alleged onset date as she was working
regularly during those months. Id. at 609-10. Dr. Nackley then noted that “there is some
divergence in some of the medical exhibits” and observed that Jones had been working,
did not request adjustments in her schedule, and sustained employment. Id. at 610-611.
Dr. Nackley concluded by stating that Jones’s condition required further evaluation and
that she should be seen by a neurologist. Id. at 612.
In light of the foregoing, at step three of the five-step evaluation process, ALJ
Bunce rejected Dr. Nackley’s conclusion that Jones met Listing 11.03 as unsupported by
the record. Id. at 361. We have carefully reviewed ALJ Bunce’s conclusions and find
them supported in the record for the reasons mentioned in his decision at pages 361-62.
B.
Jones also claims procedural error, asserting that ALJ Kenworthy violated the
Hearings and Appeals Law Manual (HALLEX) I-2-539(A), which requires medical
examiners to address all medical evidence of record. Here, Dr. Nackley did consider all
medical evidence of record as of the second hearing. Thus, the question becomes whether
ALJ Kenworthy erred by reviewing and considering Dr. Nackley’s testimony at the
second hearing without recalling him to evaluate the 120 pages of medical records Jones
submitted thereafter. Jones has not cited, and cannot cite, anything in that submission to
change the fact that Dr. Nackley reversed course after he learned that the 1999 records
upon which he relied predated Jones’s onset date and were created while she was
6
gainfully employed. In light of this fact, ALJ Kenworthy was under no duty to recall Dr.
Nackley and Jones’s request for remand must fail. See Rutherford v. Barnhart, 399 F.3d
546, 553 (3d Cir. 2005).
C.
Jones also claims that ALJ Kenworthy erred by relying upon Dr. Nackley’s
testimony at the second hearing without explaining the nature of his review. We disagree
because we take the ALJ at his word when he wrote that he reviewed Dr. Nackley’s
testimony and concurred in “the reasons expressed by Judge Bunce for rejecting that
opinion in view of the equivocation by Dr. Nackley concerning the copious consumption
of caffeinated beverages and the absence of an adequate program of sleep hygiene.”
(R. 31). For the same reasons expressed relative to ALJ Bunce’s decision, the record
contains substantial evidence to support ALJ Kenworthy’s conclusion.
III.
We conclude by addressing two points. First, contrary to a concern expressed by
Jones in her brief, the Commissioner has conceded that her date last insured for purposes
of DIB is December 31, 2005, not December 31, 2004. (R. 402-03). Second, we would
be remiss if we did not acknowledge the frustration and disappointment that Jones
undoubtedly experienced in light of the convoluted procedural history of the case. But
our task on appeal is to consider whether the agency’s decision is supported by substantial
evidence. For the reasons stated herein, we find no error and will affirm.
7