2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-12-2010

Kevin Knox v. Comm Social Security

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-1358

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 09-1358

_____________

KEVIN KNOX, 

 Appellant

v.

COMMISSIONER OF SOCIAL SECURITY

On Appeal From the United States District Court 

for the District of New Jersey

(07-cv-6081)

District Judge: Honorable Stanley R. Chesler

Submitted Under Third Circuit LAR 34.1(a)

November 19, 2009

Before: RENDELL, BARRY, and CHAGARES, Circuit Judges.

(Filed: February 12, 2010)

_____________

OPINION OF THE COURT

_____________

CHAGARES, Circuit Judge.

Kevin Knox appeals from a District Court order affirming the denial of Disability

Insurance Benefits and Supplemental Security Income under the Social Security Act by
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the Commissioner of Social Security (the “Commissioner”). We will affirm.

I.

Because we write solely for the benefit of the parties, we will only briefly

summarize the essential facts. On June 3, 2003, Knox filed an application for Disability

Insurance Benefits and Supplemental Security Income under the Social Security Act,

alleging disability since March 16, 2002 due to HIV and pulmonary hypertension. The

Commissioner denied his claims, both initially and upon reconsideration. Knox requested

a hearing before an administrative law judge (“ALJ”), which was held on December 7,

2006. In a decision issued February 9, 2007, the ALJ found that Knox was not disabled

for purposes of receiving Social Security benefits. The Appeals Council denied review,

making the ALJ’s February 9, 2007 decision the final decision of the Commissioner. On

December 21, 2007, Knox filed a complaint in District Court challenging the denial. The

District Court found that the Commissioner’s decision was supported by substantial

evidence. By order entered December 9, 2008, the District Court dismissed the action. 

Knox timely appealed.

II.

The District Court had subject matter jurisdiction pursuant to 42 U.S.C. § 405(g). 

We have jurisdiction to review the District Court's decision under 28 U.S.C. § 1291. Our

review is limited to determining whether substantial evidence supports the ALJ's finding

that Knox was not disabled. 42 U.S.C. §§ 405(g), 1383(c); Rutherford v. Barnhart, 399
3

F.3d 546, 552 (3d Cir.2005). “‘Substantial evidence’ has been defined as ‘more than a

mere scintilla. It means such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.’” Smith v. Califano, 637 F.2d 968, 970 (3d Cir.1981)

(quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).

III.

The Social Security Act authorizes the Commissioner to pay social security

benefits to disabled persons. 42 U.S.C. §§ 423(d), 1382. Disability is defined 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 individual is not disabled unless “his physical or

mental impairment or impairments are 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).

The Commissioner applies a five-step test to determine whether a claimant is

disabled. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The first two steps require the

claimant to demonstrate that he is not currently engaging in substantial gainful activity,

and that he is suffering from a severe impairment. Id. If the claimant progresses to step

three, then the question becomes “‘whether the impairment is equivalent to one of a
4

number of Listed Impairments [articulated in 20 C.F.R. Pt. 404, Subpt. P, App. 1] that the

Commissioner acknowledges are so severe as to preclude substantial gainful activity.’” 

Knepp v. Apfel, 204 F.3d 78, 84 (3d Cir.2000) (quoting Bowen v. Yuckert, 482 U.S. 137,

141 (1987)); see also 20 C.F.R. § 404.1520(a)(4)(iii). If the claimant's specific

impairment is not a Listed Impairment, the ALJ must consider whether the claimant's

impairment or combination of impairments is “medically equivalent” to a Listed

Impairment. See 20 C.F.R. § 404.1526(a). An impairment or combination of

impairments is “medically equivalent” to a Listed Impairment if it is “at least equal in

severity and duration to the criteria of any [L]isted [I]mpairment.” Id. In other words, the

claimant's impairment “‘must meet all of the specified medical criteria. An impairment

that manifests only some of those criteria, no matter how severely, does not qualify.’” 

Williams v. Sullivan, 970 F.2d 1178, 1186 (3d Cir.1992) (quoting Sullivan v. Zebley, 493

U.S. 521, 530 (1990)). A claimant who satisfies step three “is conclusively presumed to

be disabled.” Knepp, 204 F.3d at 84 (citation and quotation marks omitted). A claimant

who fails at step three must continue to steps four and five.

At step four, the question is “whether the claimant retains the residual functional

capacity to perform [his] past relevant work.” Plummer, 186 F.3d at 428. It is the

claimant's burden to establish an inability to return to his past relevant work. See id. If

the claimant satisfies this burden, then the burden of production shifts to the

Commissioner to show, at step five, that “there are other jobs existing in significant
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numbers in the national economy which the claimant can perform, consistent with her

medical impairments, age, education, past work experience, and residual functional

capacity.” Plummer, 186 F.3d at 428. This step requires the ALJ to consider the

claimant's residual functional capacity, age, education, and past work experience to

determine whether the cumulative effect of all of the claimant's impairments renders him

capable of working. See 20 C.F.R. § 404.1520(g).

IV.

On appeal, Knox argues that the ALJ’s decision is not supported by substantial

evidence. Knox argues specifically that the ALJ erred: at step three by failing to find that

his conditions met the Listed Impairments; at step four by improperly evaluating the

medical evidence; and at step five by posing an inadequate hypothetical to the vocational

expert. We agree with the District Court that none of these arguments has merit.

A.

Knox argues that the ALJ erred at step three by failing to find that Knox’s

conditions met, individually or in combination, one of the Listed Impairments,

specifically 1.04 for “Disorders of the Spine” and 12.06 for “Anxiety related disorders.” 

For both of these Listed Impairments, the ALJ recognized that aggravating factors must

be present for the condition to meet the requirements of the Listings. For Listing 12.06,

the ALJ concluded that Knox’s “alleged anxiety related disorder (panic disorder with

partial agoraphobia) is not accompanied by a ‘marked’ restriction of the activities of daily
6

living, or ‘marked’ difficulties in maintaining social functioning, or ‘marked’ difficulties

in maintaining concentration, or ‘repeated’ episodes of decompensation, or the complete

inability to function independently outside the area of his home.” Appendix (“App.”) 16-

17 (citations omitted). Knox argues that he suffers from a panic disorder with

agoraphobia and phobias of elevators, Knox Br. 50, but the ALJ concluded that the

medical evidence did not support Knox’s assertion that his condition was sufficiently

debilitating within the meaning of the Listings. The ALJ’s determination is supported by

substantial evidence.

With respect to Listing 4.04, the ALJ found that Knox’s “musculoskeletal

disorders of the cervical and lumbar spine have not resulted in compromise of a nerve

root with evidence of nerve root compression characterized [by] neuro-anatomic

distribution of pain, marked limitation of motion of the spine, motor loss, [or] sensory or

reflex loss.” App. 17. Knox cannot demonstrate his claimed spine disorders were

sufficiently aggravated to meet the definition supplied by the regulations. The evidence

of “mild bilateral median nerve entrapment neruopathy [sic] (carpal tunnel syndrome)

affecting sensory components,” Certified Administrative Record (“Tr.”) 422, reduced

range of motion in the neck and lower back, Tr. 251, and “limitations due to osteoarthritis

and neuropathy,” Tr. 271, does not compel a conclusion that Knox meets the requirements

of the Listings. The ALJ’s evaluation of this Listed Impairment is supported by

substantial evidence.
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B.

Knox raises two challenges to the ALJ’s determination at step four. First, Knox

argues that the ALJ improperly evaluated the medical evidence, contending that the ALJ

“failed to give proper credence to the complaints of Mr. Knox concerning his pain,

limitation of motion and function, weakness, . . . numbness, shortness of breath,

headaches, dizziness and fatigue, mental impairments including anxiety, panic attacks,

phobias and depression, and cardiac condition and chest pains.” Knox Br. 31-32

(citations omitted). If the medical evidence suggests a claimant “has an impairment

which is reasonably expected to produce some pain, [the ALJ] must consider all of the

evidence relevant to the individual’s allegations of pain, even if the alleged pain is more

severe or persistent than would be expected.” Sykes v. Apfel, 228 F.3d 259, 266 n.9 (3d

Cir. 2000) (citations omitted). The ALJ “must explicitly weigh the evidence and explain

a rejection of the evidence.” Id. (citations omitted).

In this case, the ALJ explained in detail the reasons for partially discrediting

Knox’s testimony regarding his claimed chest pain, diarrhea, weakness, fatigue, neck, low

back and bilateral knee pain. See App. 18-19. Specifically, the ALJ found the scope of

Knox’s claimed impairments to be inconsistent with his choice of pain medication, the

lack of frequent inpatient admissions, emergency room visits, or protracted physical

therapy, and the clinical findings regarding his claimed impairments. App. 18. The ALJ

also explained the inconsistencies in Knox’s testimony regarding his claimed psychiatric
8

conditions that led him to discount this testimony. See App. 19-20. We agree with the

District Court that the ALJ’s evaluation of the medical evidence in arriving at the residual

functional capacity assessment, including the evaluation of Knox’s subjective complaints,

was supported by substantial evidence.

Knox further argues that the ALJ erred in improperly relying “on an unsupported

opinion of a non examining doctor, Dr. Fechner, based on a misinterpretation of the

record” to “supplant the medical opinion of a treating physician.” Knox Br. 56-57. Knox

correctly points out that the reports of treating physicians are to be afforded “great

weight,” id. 57 (quoting Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000)), but Knox

mischaracterizes the ALJ’s assessment. The ALJ cited Dr. Fechner’s testimony that Knox

could perform light work, see App. 20, but the residual functional capacity assessment did

not ignore the other medical evidence cited in Knox’s brief. The ALJ discussed the

reports from each of Knox’s treating physicians, Dr. Mangia, Dr. Dungo, and Dr. Hriso,

see App. 17, and discussed their opinions – along with the objective medical evidence –

in detail. See App. 17-18. He concluded that Knox’s HIV infection has been largely

asymptomatic, based on Dr. Mangia’s questionnaire. App. 17. He further noted that

Knox’s CD-4 count has been high, his viral load relatively low, and that Knox has not

exhibited secondary complications that often arise from more debilitating HIV infections. 

App. 18. The ALJ concluded that Knox’s pulmonary hypertension was not aggravated by

any “significant secondary complications or target end-organ damage,” based on the
9

numerous diagnostic imaging results in the record. App. 17-18. The ALJ found that

Knox’s orthopedic impairments did not result in debilitating pain or limitation in

function, based on several imaging studies. App. 18. The ALJ evaluated the evidence

regarding Knox’s mental impairments and concluded that they would impose only limited

restrictions on his possible working environments. App. 19. The ALJ discounted the

“check-list” questionnaire prepared by Dr. Hriso, see Tr. 482-84, because these

conclusions “are not supported by objective narrative mental status findings of any

specificity.” App. 19; accord App. 20 (discounting this check-list form because Dr. Hriso

“essentially checked off every non-exertional limitation on the form, even some that were

not alleged”). The ALJ’s residual functional capacity assessment is explained in detail

and supported by substantial evidence.

C.

Knox’s final argument is that the ALJ erred at step five by relying on a

hypothetical posed to the vocational expert that failed to account for his “limitations as to

the need to avoid wetness, fumes, gases, temperature extremes, heights, inability to push,

pull, kneel, bend or stoop” based on Knox’s “pulmonary and bilateral knee impairments.” 

Knox Br. 59-60 (citing Tr. 489-96). However, an ALJ is not required “to submit to the

vocational expert every impairment alleged by a claimaint.” Rutherford, 399 F.3d at 554

(emphasis in original). Rather, “the hypotheticals posed must accurately portray the

claimant’s impairments and . . . the expert must be given an opportunity to evaluate those
10

impairments as contained in the record.” Id. (quotation marks omitted). In other words,

“the ALJ must accurately convey to the vocational expert all of a claimant’s credibly

established limitations.” Id. (emphasis in original) (citation omitted). Here, the ALJ

posed a hypothetical that mirrored Knox’s functional limitations that the ALJ determined

had been established by the medical evidence. Compare Tr. 593-94 (hypothetical posed

to vocational expert) with App. 19 (ALJ’s residual functional capacity assessment);

accord App. 21 (explaining that Knox’s other proposed limitations “were totally lacking

in credibility”). We agree with the District Court that the ALJ incorporated the credibly

established limitations in the hypothetical, leading the ALJ to conclude that Knox could

perform work existing in significant numbers in the national economy. The ALJ’s

determination that Knox was not disabled for purposes of receiving Disability Insurance

Benefits and Supplemental Security Income under the Social Security Act is supported by

substantial evidence.

V.

For the foregoing reasons, we will affirm the judgment of the District Court.