2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-7-2011

Kacee Chandler v. Commissioner Social Security

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-2220

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Recommended Citation

"Kacee Chandler v. Commissioner Social Security" (2011). 2011 Decisions. Paper 93.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 11-2220

____________

KACEE LEE CHANDLER

v.

COMMISSIONER OF SOCIAL SECURITY,

 Appellant

____________

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 10-cv-01047)

District Judge: Honorable Malcolm Muir

____________

Submitted Under Third Circuit LAR 34.1(a)

December 6, 2011

Before: HARDIMAN, BARRY and VAN ANTWERPEN, Circuit Judges.

(Filed: December 7, 2011)

____________

OPINION OF THE COURT

____________

HARDIMAN, Circuit Judge.

The Commissioner of Social Security appeals the District Court’s order remanding 

this case after an administrative law judge (ALJ) denied Kacee Chandler’s claims for 

Social Security Disability Insurance Benefits (DIB) and Supplemental Security Income 
2

(SSI). We will reverse the judgment of the District Court.

I

Because we write for the parties, we recount only the essential facts and procedural 

history.

Kacee Chandler is a mother of two with a GED and two years of business school 

education. In 2006, she developed reflexive sympathetic dystrophy (RSD) after she fell. 

At the time, she was a bookkeeper and part-time receptionist for a law firm, as well as a 

housecleaner. Chandler worked full-time until January 2007, but by October 2007 she 

had reduced her hours to three per day, five days per week. She stopped working 

altogether in April 2008.

Chandler filed for DIB and SSI in October 2007, but her application was denied in 

June 2008. In June 2009, Chandler received a hearing before the ALJ, who denied her 

applications at Steps Four and Five, finding that she was not disabled because she had the 

residual functional capacity (RFC) to perform sedentary work with certain limitations and 

that jobs meeting those criteria were available. See 20 C.F.R. §§ 404.1520, 404.1545(a), 

416.920; see also Hartranft v. Apfel, 181 F.3d 358, 359 n.1 (3d Cir. 1999) (explaining 

RFC as ―that which an individual is still able to do despite the limitations caused by his or 

her impairment(s)‖ (citing 20 C.F.R. § 404.1545(a))). Eight months later, the Appeals 

Council denied Chandler’s request for review of the ALJ determination, making it the 

Commissioner’s final decision. In May 2010, Chandler sought review in the District 
3

Court. The District Court held that the ALJ’s RFC determination was not supported by 

substantial evidence, and the Commissioner appealed.

II

The District Court had jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c)(3), and 

we have jurisdiction under 28 U.S.C. § 1291. We exercise plenary review over legal 

conclusions reached by the Commissioner. See Poulos v. Comm’r of Soc. Sec., 474 F.3d 

88, 91 (3d Cir. 2007). We review the Commissioner’s factual findings for ―substantial 

evidence,‖ 42 U.S.C. § 405(g), which is ―such relevant evidence as a reasonable mind 

might accept as adequate to support a conclusion.‖ Reefer v. Barnhart, 326 F.3d 376, 379 

(3d Cir. 2003) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)) (internal 

quotation marks omitted). Courts are not permitted to re-weigh the evidence or impose 

their own factual determinations. See Richardson, 402 U.S. at 401.

III

 Consistent with her burden to produce evidence supporting her disability claim, 

see 20 C.F.R. § 404.1512; Rutherford v. Barnhart, 399 F.3d 546, 551 (3d Cir. 2005), 

Chandler presented numerous medical records describing treatments and evaluations 

between January 2006 and May 2009. The records detailed her RSD diagnosis and the 

placement and revision of a spinal cord stimulator to help control her pain. Chandler’s 

records also indicated a dependency on prescription painkillers for years after her injury. 

Finally, the record contained several opinions and notations by medical professionals 
4

regarding Chandler’s disability.

In September 2007, nurse practitioner Lisa DeWees wrote that Chandler was 

―permanently disabled‖ but that she could still work at a ―very low physical stress job‖ 

twenty to twenty-five hours per week. In April 2009, DeWees also noted that Chandler 

―cannot work and earn money in any capacity due to her . . . [RSD] . . . and cannot sit, 

stand, or walk for greater than 30 minutes at a time.‖

State agency psychologist Dr. Karen Weitzner opined on June 25, 2008, that 

Chandler had an ―adjustment disorder‖ but that it did not satisfy the regulations’ 

diagnostic criteria and was not a severe impairment; it only mildly limited her social 

functioning and concentration and did not impede her daily activities.

On July 1, 2008, State agency medical consultant Dr. Vrajlal Popat issued a 

Physical Residual Functional Capacity Assessment after reviewing Chandler’s medical 

records through June 2008. He acknowledged, among other things, that Chandler had

―pain which [was a] sharp, stabbing ice pick sensation,‖ and confirmed that ―the medical 

evidence establishe[d] a medically determinable impairment of [RSD].‖ Ultimately, Dr. 

Popat concluded that Chandler retained the ability to occasionally lift or carry ten pounds, 

climb stairs, balance, stoop, kneel, crouch, and crawl, and that she had no manipulative, 

visual, communicative, or environmental limitations.

After the ALJ’s decision, Chandler submitted to the Appeals Council two 

additional opinions: one from DeWees’s colleague, Dr. Christopher Echterling, and one 
5

from her former supervisor at the law firm, N. Christopher Menges. Dr. Echterling 

simply ―concur[red]‖ with DeWees’s April 2009 diagnosis. Menges explained 

Chandler’s poor concentration and accuracy in the workplace after her injury.

IV

The District Court rejected the ALJ’s decision because ―there was no timely and 

relevant opinion by a medical expert which support[ed] the [RFC] determination.‖ 

Chandler v. Astrue, No. 4:10-cv-01047, slip op. at 19 (M.D. Pa. Mar. 8, 2011). Essential 

to this holding was the District Court’s rejection of Dr. Popat’s report as no longer useful 

to the ALJ determination because Dr. Popat had only reviewed the medical records 

through June 2008. As we shall explain, the District Court committed legal error in 

disregarding Dr. Popat’s report.1

Preliminarily, we must distinguish between the new records and DeWees’s April 

2009 notes, which arose after Dr. Popat’s report but before the ALJ’s decision, and the 

opinions of Dr. Echterling and Menges, which were never before the ALJ. As to the 

latter, remand cannot be justified based on the ALJ’s failure to consider those documents. 

―[A]lthough evidence considered by the Appeals Council is part of the administrative 

 

1

The District Court also noted that Dr. Weitzner ―only reviewed the medical 

records through June 25, 2008.‖ Chandler, No. 4:10-cv-01047, slip op. at 16. Although 

Chandler has not focused her appeal on the ALJ’s Step Two determination that her 

depression was not severe, for the reasons explained herein, this was no basis for 

discrediting Dr. Weitzner’s report, which provided substantial evidence for the ALJ’s 

determination.
6

record on appeal, it cannot be considered by the District Court in making its substantial 

evidence review . . . .‖ Matthews v. Apfel, 239 F.3d 589, 593 (3d Cir. 2001). Moreover, 

remand based on new evidence is only appropriate where the claimant shows good cause 

why that evidence was not procured or presented before the ALJ’s decision, id. at 594, 

and Chandler has failed to do so here because she has not explained ―why she did not 

attempt to obtain [the] evaluation[s] at a time when [they] could be considered by the

ALJ,‖ id. at 595.

With respect to the records arising after Dr. Popat’s review but before the ALJ’s 

decision, a few salient points emerge. First, the records presented to the ALJ in this case 

were, at most, a few years old. They tracked Chandler’s injury and deterioration during 

the time periods surrounding her disability onset date.2 We have permitted reliance on 

records much older than those presenting in this case. See, e.g., Morales v. Apfel, 225 

F.3d 310, 312–13 (3d Cir. 2000) (upholding a 1997 ALJ decision based on records from 

1989 through 1994); Hartranft, 181 F.3d at 360–61 (finding substantial evidence where 

the ALJ relied on six-year-old medical records).

Second, because state agency review precedes ALJ review, there is always some 

time lapse between the consultant’s report and the ALJ hearing and decision. The Social 

 

2 Chandler revised her disability onset date several times. In her original disability 

application, Chandler alleged an onset date of January 2006. In proceedings before the 

ALJ, she amended it to January 2007. Finally, in her request to the Appeals Council, she 

revised her onset date to January 2008.
7

Security regulations impose no limit on how much time may pass between a report and 

the ALJ’s decision in reliance on it. Only where ―additional medical evidence is received 

that in the opinion of the [ALJ] . . . may change the State agency medical . . . consultant’s 

finding that the impairment(s) is not equivalent in severity to any impairment in the 

Listing,‖ is an update to the report required. SSR 96-6p (July 2, 1996) (emphasis added). 

The ALJ reached no such conclusion in this case.3

Contrary to the District Court’s view, the ALJ was entitled to rely on Dr. Popat’s 

opinion. The ALJ—not treating or examining physicians or State agency consultants—

must make the ultimate disability and RFC determinations. See 20 C.F.R. 

§§ 404.1527(e)(1), 404.1546(c). Although treating and examining physician opinions 

often deserve more weight than the opinions of doctors who review records, see, e.g., 20 

C.F.R. § 404.1527(d)(1)–(2), ―[t]he law is clear . . . that the opinion of a treating 

physician does not bind the ALJ on the issue of functional capacity,‖ Brown v. Astrue, 

 

3

 Although the District Court found that the ALJ’s explanation for its Step Three 

determination that Chandler’s impairments did not match or equal a listing was 

―inadequate,‖ Chandler, No. 4:10-cv-01047, slip op. at 17, it clearly stated that its remand 

was based primarily on the ―lack of substantial evidence supporting the [ALJ’s] [RFC] 

assessment,‖ Memorandum Pursuant to Local Appellate Rule 3.1 at 4, Chandler, No. 

4:10-cv-01047 (M.D. Pa. May 6, 2011).

Moreover, Chandler does not argue that her new records or DeWees’s additional 

notes would have altered the ALJ’s or Dr. Popat’s decisions at Step Three. She contends 

that ―it is likely, if not expected that the opinions proffered by Dr. Echterling would have 

a substantial effect on the outcome of the disability determination,‖ but, as explained 

above, neither the District Court nor this Court may consider Dr. Echterling’s opinion 

with respect to whether the ALJ had substantial evidence to deny Chandler’s application.
8

649 F.3d 193, 197 n.2 (3d Cir. 2011). State agent opinions merit significant consideration 

as well. See SSR 96-6p (―Because State agency medical and psychological consultants

. . . are experts in the Social Security disability programs, . . . 20 C.F.R. §§ 404.1527(f) 

and 416.927(f) require [ALJs] . . . to consider their findings of fact about the nature and 

severity of an individual’s impairment(s) . . . .‖).

We also note that the ALJ did not merely rubber stamp Dr. Popat’s RFC 

conclusion. Cf. 20 C.F.R. § 404.1527(f)(1)(i) (clarifying that the RFC findings of nonexamining State agency consultants are ―based on the evidence . . . but are not in 

themselves evidence‖). Instead, the ALJ found persuasive and incorporated DeWees’s 

opinion that Chandler cannot sit for more than thirty minutes at a time, even though the 

ALJ was not required to consider DeWees’s opinion at all because, as a nurse 

practitioner, she is not an ―acceptable medical source[].‖ See 20 C.F.R. § 404.1513(a). 

The ALJ also added restrictions Dr. Popat did not deem necessary.4

 

4

 The ALJ’s complete RFC finding was:

[T]he claimant has the residual functional capacity to perform sedentary 

work . . . except that the claimant is limited to standing and walking for 15 

minutes at a time and no more tha[n] 2 hours per day. The claimant is able to 

sit for 6 hours in an 8 hour day. The claimant needs to be able to 

sit/stand/walk at will. She is limited to lifting and carrying 5 pounds 

frequently and 10 pounds occasionally. She has no limitation on pushing and 

pulling up to 10 pounds. She is precluded from using foot controls with her 

right foot. She has no limitation on foot controls with her left foot. She has no 

limitation on overhead reaching, bending or manipulation. The claimant is 

precluded from climbing, balancing, crawling, using vibrating tools, 

unprotected heights and hazardous conditions. She is limited to occasional 
9

The District Court also suggested that the ALJ’s explanation in support of its 

decision was insufficient for meaningful review. We disagree that the ALJ failed in this 

respect. An ALJ must explain the weight given to physician opinions and the degree to 

which a claimant’s testimony is credited. See 20 C.F.R. § 404.1527(f)(2)(ii); Rutherford, 

399 F.3d at 557. The ALJ’s six-page ―Findings of Fact and Conclusions of Law‖ detailed 

Chandler’s medical history and the state agency opinions. The ALJ explained that he 

gave ―significant weight‖ to Dr. Popat’s opinion and that, other than DeWees’s opinion,

―there [we]re no other treating or examining medical source statements which addressed 

the claimant’s physical capabilities.‖ The ALJ explained that he ―considered and 

evaluated‖ DeWees’s opinion even though it purported to make the ultimate disability 

determination, which is reserved to the Commissioner.5 The ALJ also explained why he 

discredited some of Chandler’s testimony.

Chandler argues that ―error occurred when the ALJ reviewed or, more properly 

stated, ignored, the intervening developments in the record and, applying his own lay 

opinion, extrapolated from the medical opinion he obtained one year previous, from Dr. 

Popat, and determined that Chandler continued to have a virtually identical RFC.‖ The 

 

stooping, kneeling and crouching. Due to her use of pain medication, she is 

limited to simple 1-2 step repetitive tasks without a high pace or production 

quotas.

5 Although the ALJ’s findings only noted DeWees’s September 2007 opinion that 

Chandler was ―permanently disabled‖ but could still work twenty to twenty-five hours per 
10

District Court likewise concluded that the ALJ had reached its decision based on its own 

improper lay opinion regarding medical evidence. But the ALJ is not precluded from 

reaching RFC determinations without outside medical expert review of each fact 

incorporated into the decision. Although reliance on State consultants’ and treating 

physicians’ opinions is common and ALJs are required to consider any existing State 

consultant reports, see 20 C.F.R. §§ 404.1519, 404.1527(f), the regulations do not require 

ALJs to seek outside expert assistance, see 20 C.F.R. §§ 404.1546(c), 404.1527(e); SSR 

96-5p (July 2, 1996). Therefore, the ALJ did not err in this regard.

V

Having found that Dr. Popat’s report was properly considered by the ALJ, we 

readily conclude that the ALJ’s decision was supported by substantial evidence for the 

reasons we have stated. The new medical evidence generated after Dr. Popat’s review did

not undermine his conclusion. Chandler’s September 2008 Progress Note says: ―[H]er 

foot pain has improved. They gave her a new antenna for her spinal cord stimulator and 

things have improved. . . . She really feels comfortable with her medications at this time 

and does not want to change anything. . . . She has stopped smoking marijuana.‖ Just 

before the ALJ hearing, in May 2009, Chandler’s fentanyl patch was ―tak[ing] the edge 

off,‖ and ―she [was] able to do her activities of daily living.‖ Chandler was experiencing 

some new hand pain but was able to ―use a computer frequently.‖

 

week at a ―very low physical stress job,‖ the sit/stand limitation in the RFC demonstrates 
11

Nor did Chandler’s own subjective complaints of pain and limitations cast doubt 

on Dr. Popat’s report. Although ―any statements of the individual concerning his or her 

symptoms must be carefully considered,‖ SSR 96-7p (July 2, 1996), the ALJ is not 

required to credit them, see 20 C.F.R. § 404.1529(a). Chandler had reported extreme pain 

to doctors and claimed that she had to lie down most of the day, but she also testified that 

she managed to shop several times per week, cook dinner, care for her two children, and 

visit with friends. The ALJ thus had substantial evidence to conclude Chandler was not 

―credible regarding the intensity and extent of her limitations, especially her need to lie 

down most of the day due to pain,‖ and was entitled to rely instead on Dr. Popat’s 

opinion.

VI

For the foregoing reasons, we will reverse the District Court’s judgment and affirm 

the decision of the ALJ.

 

that the ALJ factored in DeWees’s April 2009 opinion as well.