NOT PRECEDENTIAL
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UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
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No. 11-4584
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GAIL E. JOHNSON,
Appellant
v.
COMMISSIONER OF SOCIAL SECURITY
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On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 2-10-cv-05862)
District Judge: Honorable Susan D. Wigenton
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Submitted Under Third Circuit LAR 34.1(a)
September 18, 2012
Before: SLOVITER, RENDELL, and HARDIMAN, Circuit Judges
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(Filed: September 19, 2012)
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OPINION
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SLOVITER, Circuit Judge.
Gail Johnson appeals from the decision of the District Court affirming the
administrative denial of her application for Social Security Disability Insurance
(“SSDI”). We will affirm.
I.
Because we write primarily for the parties, who are aware of the relevant facts, we
discuss them only briefly. Additionally, because Johnson was denied SSDI for October
2002 through June 2005, we limit the factual background to that time period (“the
insurance period”).
Johnson‟s disability claim is based on degenerative disk disease with additional
consideration for, inter alia, obesity, asthma, diabetes, previous injuries to joints in her
extremities, and the side effects of various pain medications. According to Johnson,
these ailments limited her ability to sit, stand, or walk for extended periods, use fine
finger motions, reach above her head, concentrate, and carry objects over ten to fifteen
pounds. Medical reports from numerous hospitals and doctors differ on the presence and
the severity of Johnson‟s alleged impairments throughout the insurance period.
Prior to October 2002, Johnson was a secretary and had also worked in customer
service and food preparation. During the insurance period, Johnson cared for herself and
her children, did some household chores, shopped for groceries with the use of a
motorized cart, and sometimes cooked. She reported spending much of the day in bed
with back pain.
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Johnson first applied for SSDI in November, 2003, claiming disability since
October, 2002. Johnson‟s initial application was denied and, after a hearing on appeal,
the denial was affirmed by an Administrative Law Judge (“ALJ”) in September, 2006.
The District Court reversed this ruling and remanded the matter for failure to “properly
consider all the medical evidence,” including Johnson‟s obesity. App. at 28-30.
On remand, Johnson‟s claim was again denied by the ALJ who found that,
notwithstanding the effects of her obesity, Johnson‟s condition did not meet a listed
impairment and that she could perform sedentary work that was available in the region.
The District Court affirmed the ALJ‟s denial.
II.
Discussion
This court has jurisdiction under 42 U.S.C. § 405(g). The review of the ALJ‟s
decision is “limited to determining whether that decision is supported by substantial
evidence.” Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999). Substantial evidence is
less than a preponderance of the evidence, but “more than a mere scintilla”; it 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). In determining whether
substantial evidence exists, this court cannot re-weigh the evidence or substitute its
judgment for that of the ALJ. Burns v. Barnhart, 312 F.3d 113, 118 (3d Cir. 2002). Thus,
we will uphold the ALJ‟s decision even if there is contrary evidence that would justify
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the opposite conclusion, as long as the “substantial evidence” standard is satisfied.
Simmonds v. Heckler, 807 F.2d 54, 58 (3d Cir. 1986).
Johnson argues that the ALJ and District Court improperly evaluated her reports of
pain when determining that she could perform sedentary work. In an SSDI evaluation,
the ALJ must consider all symptoms and pain that “can reasonably be accepted as
consistent with the objective medical evidence and other evidence.” 20 C.F.R. §
404.1529(a). Moreover, the claimant must show an underlying impairment that may
“reasonably be expected to produce [the] alleged symptoms.” Id. § 404.1529(b).
Although there is proof of some abnormalities that create discomfort, Johnson‟s
condition was not so extreme that debilitating pain was reasonably expected.
Specifically, Johnson‟s spinal disks were bulging but had not herniated, she had not
compromised nerve roots, or demonstrated other conditions considered debilitating by
SSDI list of impairments in appendix 1 to subpart P of part 404. See 20 C.F.R. §
416.920(a)(iii). Furthermore, the ALJ discussed inconsistencies in Johnson‟s testimony
and her objective medical report, thereby expressly limiting Johnson‟s credibility. The
ALJ cited doctors‟ notes contrasting Johnson‟s reported limitations with her apparent
ability to lift her children, stand and walk without assistance, and sit for extended periods
while shopping in a motorized cart.
Johnson claims that the ALJ wrongfully disregarded the report by Dr. Rajapakse
that Johnson was credible in her complaints of extreme pain. A treating physician‟s
report should be accorded great weight “when the opinion reflects an expert judgment
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based on a continuing observation of the patient‟s condition over a prolonged period of
time.” Podedworny v. Harris, 745 F.2d 210, 217 (3d Cir. 1984). “An ALJ may reject a
treating physician‟s opinion outright only on the basis of contradictory medical
evidence.” Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999) (citing Newhouse v.
Heckler, 753 F.2d 283, 286 (3d Cir.1985)).
Here, the ALJ considered Dr. Rajapakse‟s report but concluded that it was not
credible because the supporting examination notes reflected only medication refills and
Dr. Rajapakse‟s conclusions were substantially different than those reached by all the
other doctors. In light of the considerable medical evidence contradicting Dr.
Rajapakse‟s opinion, his contrary report does not defeat the substantial evidence
supporting the ALJ‟s ruling.
Johnson next asserts that the ALJ and District Court erred in finding that she did
not meet a listed impairment because the ALJ failed to consider her “multiple
impairments in combination,” namely, her orthopaedic and pulmonary impairments and
obesity. Johnson Brief at 47. When making determinations, the ALJ “must consider all
evidence before him” and “must give some indication of the evidence which he rejects
and his reason(s) for discounting such evidence.” Burnett v. Comm’r of Soc. Sec. Admin.,
220 F.3d 112, 121 (3d Cir. 2000). “„In the absence of such an indication, the reviewing
court cannot tell if significant probative evidence was not credited or simply ignored.‟”
Id. (quoting Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981)).
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Here, ALJ O‟Leary did consider Johnson‟s obesity in combination with her other
impairments, but found that the obesity did not deprive Johnson of the ability to ambulate
effectively. Indeed, the principal factor in the ALJ‟s determination of listed impairments
was Johnson‟s ability to ambulate effectively, and he explicitly “considered obesity in
context of the overall record evidence.” App. at 339. With respect to Johnson‟s
orthopaedic and pulmonary deficiencies, the ALJ made it clear that he considered “all of
the claimant‟s impairments, including impairments that are not severe.” App. at 336-37.
He thus noted that Johnson “has had asthma all her life” and considered her orthopaedic
limitations. App. at 340. Moreover, in evaluating Johnson‟s impairments, the ALJ
discussed in detail the limits of her credibility based on the objective medical evidence
and conflicts in her statements, thereby satisfying the requirements of Burnette.
Finally, Johnson asserts that the District Court and ALJ wrongfully relied upon the
testimony of the vocational expert because the hypothetical questions posed did not
include Johnson‟s depression, insomnia and obesity. Hypothetical questions posed by the
ALJ to the vocational expert must include all undisputed impairments in order to support
a disability determination. See Podedworny, 745 F.2d at 218. “Where there exists in the
record medically undisputed evidence of specific impairments not included in a
hypothetical question to a vocational expert, the expert‟s response is not considered
substantial evidence.” Burns, 312 F.3d at 123.
Here, the ALJ did, in fact, pose and consider hypothetical questions about the
effects of Johnson‟s obesity. Specifically, the hypothetical included assumptions that
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“the individual is restricted to sedentary work . . . [and] jobs that would . . . allow her to
alternate sitting and standing at her election.” App. at 521. To this and Johnson‟s other
impairments, the vocational expert responded that there were appropriate positions
available in the area, including document prep worker, surveillance system monitor, and
registration clerk. Moreover, there is no evidence to support Johnson‟s claims of
depression and insomnia during the relevant period.
III.
The ALJ had substantial evidentiary support for the conclusion that, between
October 2002 and June 2005, Johnson was able to ambulate effectively and perform some
sedentary work and that she was therefore not disabled. The ALJ adequately evaluated
the record as a whole and explained his reasoning for his findings. Accordingly, we will
affirm the judgment of the District Court.
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