Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
10-30-2008
Hughes v. Comm Social Security
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-3656
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 07-3656
_____________
PATRICIA B. HUGHES,
Appellant
v.
COMMISSIONER OF SOCIAL SECURITY
On Appeal from the United States District Court
for the Middle District of Pennsylvania
District Court No. 06-cv-01649
District Judge: The Honorable A. Richard Caputo
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
October 23, 2008
Before: RENDELL and SMITH, Circuit Judges,
and POLLAK, District Judge *
(Filed: October 30, 2008)
OPINION
SMITH, Circuit Judge.
*
The Honorable Louis H. Pollak, Senior District Judge for the United States District
Court for the Eastern District of Pennsylvania, sitting by designation.
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Patricia B. Hughes appeals from the judgment of the United States District Court
for the Middle District of Pennsylvania, which affirmed the denial by the Commissioner
of Social Security of Hughes’ application for disability insurance benefits. The District
Court had jurisdiction pursuant to 42 U.S.C. § 405(g). We exercise appellate jurisdiction
under 28 U.S.C. § 1291. Our review is limited to determining whether there is substantial
evidence to support the Commissioner’s decision. 42 U.S.C. § 405(g). Substantial
evidence is “such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal
quotation marks and citation omitted). We will affirm.
Hughes sustained an injury to her right hip when she slipped at work in January of
2002. Although a battery of diagnostic studies were performed, and several diagnoses
were ruled out, no definitive diagnosis was made. In April of 2003, Dr. Gibson
documented that treatment “has not been terribly successful.” He expressed his belief
that she had a total disability and opined that he still felt that “her diagnosis is likely
consistent with muscle ligamentous capsular tear . . . .”
In October of 2003, Dr. Gibson documented that the results of several diagnostic
studies were negative and that he thought “that she is permanently and totally disabled.”
In May of the following year, Dr. Gibson opined that Hughes’ right hip was “the same. . .
. She is left with a permanent disability about her right hip which is significant. I feel
there is no other treatment available at this time.” He prescribed pain medication and
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noted that he would see her as needed. In response to a request by the Social Security
Administration for information about Hughes’ medical status, Dr. Gibson documented
that Hughes complained of pain in her right groin and that an exhaustive work up had
been negative for any objective findings. Dr. Gibson opined that she had a chronic soft
tissue injury of the right hip, and that her prognosis was poor. In addition, Dr. Gibson
completed a form regarding Hughes’ ability to do physical work-related activities, and
reported that she was unable to perform the full range of sedentary work because of
limitations in her ability to lift, to carry, to sit, to stand, to walk, and to perform postural
maneuvers.
On December 15, 2005, Hughes testified during a hearing before an
Administrative Law Judge (ALJ). She described the origin of her injury and explained
that she was unable to work because of limitations arising from her injury.
In January of 2006, Dr. Gibson again responded to a request from the Social
Security Administration. He documented that he had last treated Hughes in September of
2005, and that she continued to complain of chronic inflammatory type pain in her right
groin. Objective findings, however, were negative. Dr. Gibson’s diagnosis of Hughes’
condition changed slightly from chronic soft tissue injury of the right hip to “chronic
strain right groin, unrelenting and unimproved.” Her prognosis, Dr. Gibson opined, was
still poor, and she remained unable to perform the full range of sedentary work.
In a decision dated January 27, 2006, the ALJ denied Hughes’s application for
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benefits. The ALJ applied the five step sequential analysis set forth in 20 C.F.R. §
404.1520. At step one, he found that Hughes had not engaged in any substantial gainful
activity. Step two required the ALJ to determine if Hughes had a severe impairment. Id.
at § 404.1520(a)(4)(ii). He concluded that she did not have severe impairment and was
not disabled for purposes of Social Security.
The ALJ explained that Hughes had to prove that she had a physical impairment by
offering “medical evidence, consisting of signs, symptoms, and laboratory findings.”
Although the ALJ acknowledged Hughes’ complaints of chronic pain in her right hip,
groin, and leg, he pointed out that “despite an exhaustive diagnostic work up, no
medically determinable impairment has been established that would account for these
symptoms.” He also considered the medical evidence, including the documentation from
her treating physician Dr. Gibson. He gave little weight to Dr. Gibson’s opinion,
however, as his progress notes failed to “set forth any objective basis for the assigned
physical limitations.” The ALJ specified that “the only clinical finding [Dr. Gibson]
describes is ‘pain (right) groin,’ which is a subjective symptom and not a finding and he
specifically admits that exhaustive work up was negative for objective findings.” In the
absence of any objective findings, the ALJ concluded that Hughes had failed to meet her
burden of proof at step two in the analysis.
Hughes’ appeal to the District Court was unsuccessful. This appeal followed. She
argues that the ALJ erred because the burden at step two is de minimis and the evidence
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she adduced was sufficient to demonstrate that she had a severe impairment.
Regulation § 404.1508 specifies that an individual’s
impairment must result from anatomical, physiological, or psychological
abnormalities which can be shown by medically acceptable clinical and
laboratory diagnostic techniques. A physical . . . impairment must be
established by medical evidence consisting of signs, symptoms, and
laboratory findings, not only by your statement of symptoms.
20 C.F.R. § 404.1508. Regulation 404.1528 explains that “[s]igns are anatomical,
physiological, or psychological abnormalities which can be observed, apart from your
statements (symptoms). . . . They must also be shown by observable facts that can be
medically described and evaluated.” 20 C.F.R. § 404.1528(b). Laboratory findings can
be shown by medically acceptable laboratory diagnostic techniques, chemical tests,
electrophysiological studies, and x-rays. 20 C.F.R. § 404.1528(c). Examples of objective
medical findings are set forth in 20 C.F.R. § 404.1529(c)(2), including “reduced joint
motion, muscle spasm, sensory deficit, or motor disruption.”
We are sympathetic to Hughes’ predicament, but we do not find any error in the
ALJ’s application of these regulations to the medical evidence of record. As the ALJ
noted, Dr. Gibson’s assessments were unsupported by objective findings. Dr. Gibson
acknowledged this very fact in responding to the Social Security Administration’s two
requests for information. Noticeably absent from this record is any documentation
regarding the examples of objective medical findings cited in regulation § 404.1529(c)(2).
We conclude that there is substantial evidence to support the ALJ’s determination that
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Hughes did not have a medically determinable severe impairment that meets the 12-
month duration requirement. Accordingly, we will affirm the judgment of the District
Court.
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