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. e du/thir dc ir c uit_1999/136Filed May 18, 1999

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 98-1626

WAYNE R. HARTRANFT, Appellant

v.

KENNETH S. APFEL, Commissioner Social Security Administration

On Appeal from the United States District Court for the Eastern District of Pennsylvania
Civil Action No. 97-cv-04039 District Judge: Hon. J. Curtis Joyner

Submitted Under Third Circuit LAR 34.1(a) February 12, 1999

Before: Becker, McKee, Circuit Judges Lee, District Judge*

(Filed: May 18, 1999)

___________________________________________________ ______________

*The Honorable Donald J. Lee, United States Distric t Court for the Western District of Pennsylvania, sitting by design ation.OPINION OF THE COURT

McKEE, Circuit Judge.

Wayne R. Hartranft, appeals the District Court's affirmance of the Commissioner of Social Security's
conclusion that Hartranft is not entitled to disabi lity insurance benefits (DIB) under Title II of the Soci al Security Act, 42 U.S.C. SS 401-433. For the reasons that fol low, we
will affirm.

I. Procedural History and Standard of Review

Hartranft applied for DIB on May 3, 1994, alleging disability since January 29, 1990, due to numerous incidences of pain related to a back injury he suff ered while working as a truck driver. In his application, he a lleged disability due to back injury, neck pain, hernia, a nxiety and depression. His application was initially denied, a nd denied again upon reconsideration.

Hartranft appealed the denial and was afforded a de novo hearing before an Administrative Law Judge. The ALJ found that Hartranft had residual functional capacity 1 f or the full range of light work,2 diminished by his inability t o bend repeatedly. The ALJ thus concluded that, although Hartranft had been injured, he was not "disabled" w ithin the meaning of the Act at any time through December 31, 1995, the date his insured status expired.

On April 25, 1997, the Appeals Council denied Hartranft's request for review of the ALJ's decisio n, concluding that the ALJ's findings were supported b y substantial evidence and that the ALJ committed no abuse of discretion or error of law. Consequently, the AL J's

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1. "Residual functional capacity" is defined as tha t which an individual is still able to do despite the limitations caused by his or her impairment(s). 20 C.F.R. S 404.1545(a).

2. "Light work" is defined as work that involves li fting no more than 20 pounds at a time with frequent lifting or carrying of objects that weigh up to 10 pounds. 20 C.F.R. S 404.1567(b).

2decision was the Commissioner's final decision on

Hartranft's DIB claim.

Having exhausted his administrative remedies, Hartr anft brought an action in the United States District Cou rt for the Eastern District of Pennsylvania, seeking judic ial review
of the Commissioner's final decision. The matter wa s initially referred to a Magistrate Judge who issued a Report
and Recommendation in favor of the Commissioner. Thereafter, the District Court adopted that Report and Recommendation and granted summary judgment in favo r of the Commissioner. This appeal followed.

Our review of the Commissioner's final decision is limited to determining whether that decision is supported b y substantial evidence. See 42 U.S.C. S 405 (g); Mons our Medical Ctr. v. Heckler, 806 F.2d 1185, 1190 (3d. C ir. 1986). Substantial evidence "does not mean a large or considerable amount of evidence, but rather such re levant evidence as a reasonable mind might accept as adequ ate to support a conclusion." Pierce v. Underwood , 108 S. Ct. 2541, 2545 (1988). See also, Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992). We will not set the Commissioner's decision aside if it is supported by substantial evidence, even if we would have decided the factual inquiry differently. See 42 U.S.C.S 405 (g) ; Monsour Medical Center, 806 F.2d at 1190-91.

II. Facts

Hartranft sustained a work-related injury on Novemb er 20, 1989, while employed as a long-haul trucker by Ashland Chemical Company. Thereafter, Hartranft was examined by Raymond D. LaBarre, D.C., a chiropracto r, because of complaints of lower back pain. LaBarre diagnosed Hartranft as having "acute sciatic neural gia of L4, L5." (R. 101, 111). During a follow-up examinat ion on December 27, 1989, LaBarre advised Hartranft "not t o do anything heavy or any long distance truck driving a s is his normal occupation." (R. 101). LaBarre also opined t hat Hartranft could work "relatively light duty." Id.

Richard K. White, M.D., an orthopedic surgeon, exam ined Hartranft on February 28, 1990. Dr. White's examina tion

3revealed limited motion of the lumbar spine. Howeve r,

Hartranft's station, stance, and gait were normal, and Hartranft had no specific abnormalities associated with his gait. He did experience some problems with his feet and raising his leg, but his toe and heel walking were normal
and showed no evidence of muscle weakness. No other
abnormalities were noted.

At the request of LaBarre, Hartranft was also exami ned by Charles R. Reina, M.D., Board-certified orthoped ic surgeon, on May 25, 1990. Dr. Reina's report stated that Hartranft was able to walk without limp or complain t, and with a normal gait. His range of motion in both hip s was full and without pain, and his neurological examina tion was normal. Upon re-examination on December 10, 199 0, Dr. Reina again found no neurological abnormalities . The medical opinions of Dr. Reina do not "corroborate" LaBarre's findings, as Hartranft alleges. (Appellan t's Br. at 24-25). To the contrary, Dr. Reina stated in his re port that, based on his examinations of Hartranft, he couldfin d none of the neurological abnormalities found by LaBarre. (R. 135).

LaBarre issued a report dated March 21, 1991, summarizing Hartranft's treatment to date, and indi cating a "final diagnosis" of degenerative changes of the disc at L4- L5 and L5-S1, slight central disc bulging at L4-L5, and a small central disc herniation at L5-S1. (R. 118). I n his report LaBarre opined that Hartranft would be unabl e to work "in any occupation where he has to bend, twist or lift, or in any occupation where he would have to stand o r sit for any protracted period of time." (R. 119). LaBar re also opined that, "the accident of November 20, 1989, wa s the cause and is presently the cause of Mr. Hartranft's disability and injuries." Id.

On May 20, 1994, Frederick D. Burton, M.D. examined Hartranft at the request of LaBarre. Dr. Burton recommended that Hartranft continue with chiropract ic care until his pain decreased and that he not retur n to his pre-injury job without restriction.

LaBarre continued to provide chiropractic care to Hartranft through November 1995. On February 10, 19 96,

4Hartranft returned to LaBarre's office complaining that he

had experienced increased pain and discomfort since concluding his treatment three months earlier. LaBa rre found some muscle weakness and continued degenerati ve disc disease, and urged Hartranft to continue chiro practic

care.

At the hearing before the ALJ, Hartranft testified that he
continued to work for more than two months followin g his November 1989 injury. (R. 32). He stated that he to ok only non-prescription Tylenol for his pain, adding that he did not like to take "pain killers" because they were a ddictive. (R. 28, 37, 39). He testified that he had a prescri ption from Dr. Burton for his "nerves" but nothing for pain. H e also testified that LaBarre had him walking for exercise and doing light back strengthening exercises, but that he did not walk or exercise once worker's compensation sto pped paying his medical bills.

Hartranft further testified that, despite his injur ies, he attempted to go back to light duty work with his em ployer but was told they could not use him anymore. He als o testified about a daily routine that included walki ng his daughter to the bus stop, helping his wife with the dishes, grocery shopping, driving a car, bathing, and dress ing himself without assistance. (R. 48). In his May 3, 1994, Disability Report, Hartranft gave a similar descrip tion of the level of activity he was capable of engaging in, in cluding visiting friends and relatives, walking, exercising , and helping with cooking.

The ALJ found that Hartranft did have a severe lumb ar disc impairment and was unable to return to his pas t relevant work as a truck driver. (R.18, Findings No s. 3, 6).
The ALJ further found that Hartranft had the residu al functional capacity for the full range of light wor k, diminished by his inability to bend repeatedly, and was thus not disabled under the Act. (R. 18-19, Finding s Nos. 7, 11, 12).

III. Discussion

Hartranft relies, in part, upon evidence he introdu ced regarding his chiropractor's opinion of Hartranft's disability

5to argue that the ALJ's determination is not suppor ted by

substantial evidence, and that the ALJ did not give the chiropractor's opinion adequate weight.

However, a chiropractor's opinion is not "an accept able medical source" entitled to controlling weight. C.F .R. S 416.913 defines "acceptable source" for purposes of our inquiry as:

(1) Licensed physicians;

(2) Licensed osteopaths;

(3) Licensed or certified psychologists;

(4) Licensed optometrists for the measuremen t of visual acuity and visual fields . . . . and

(5) Persons authorized to send . . . a copy or summary of the medical records of a hospital , clinic, sanitorium, medical institution, or health c are facility.

. . .

(6) A report of an interdisciplinary team th at contains the evaluation and signature of an acceptabl e medical source is also considered acceptable medical evidence.

See also Diaz v. Shalala, 59 F.3d 307, 313 (2d Cir. 1995); Wolfe v. Shalala, 997 F.2d 321, 327 (7th Cir. 1993) ; Walker v. Shalala, 993 F.2d 630, 632 n.2 (8th Cir. 1993); Lee v. Sullivan, 945 F.2d 687, 691 (4th Cir. 1991) (per cu riam). Although DIB eligibility can not rest upon the opin ion of a chiropractor, a hearing examiner can consider a chiropractor's opinion, along with all of the other evidence that a claimant may present insofar as it is deemed relevant to assessing a claimant's disability. See 20 C.F.R. S 416.913(e)(3) ("information from other sources ma y also help us to understand how your impairment(s) affect s your ability to work. Other sources include, . . . (3) O ther practitioners for example, chiropractors") (interna l parentheses omitted).

Here, examinations by three board certified physici ans failed to corroborate LaBarre's opinion of the exte nt of Hartranft's disability. None of these doctors ident ified the neurological abnormalities reported by LaBarre. Mor eover, Hartranft's own account of the activities he was ab le to

6perform was consistent with the medical observation s of

those three board certified physicians, and inconsi stent with the degree of limitation that LaBarre reported . 3

Hartranft cites a report from Dr. Richard K. White, in
which Dr. White stated that Hartranft should not be released for any kind of work. This report, however , was made in connection with Hartranft's workers compens ation claim, not his DIB claim. We have previously recogn ized the different standards for determining disability unde r these two programs. See Coria v. Heckler, 750 F.2d 245, 2 47 (3d Cir. 1984) (noting that "the ALJ could reasonably d isregard so much of the physicians' reports as set forth the ir conclusions as to worker compensation claims."). He re, the ALJ recognized the limited significance of Dr. Whit e's report.

Finally, Hartranft argues that the ALJ failed to ta ke account of his subjective symptoms, including pain, in determining that he could still perform the full ra nge of light work. The ALJ determined that Hartranft had a
discernible medical condition that could cause his pain, but that his statements concerning his pain and its imp act on his ability to work were not entirely credible in l ight of the
entire record.

Allegations of pain and other subjective symptoms m ust be supported by objective medical evidence. See 20 C.F.R.
S 404.1529. Once an ALJ concludes that a medical impairment that could reasonably cause the alleged symptoms exists, he or she must evaluate the intens ity and persistence of the pain or symptom, and the extent to which it affects the individual's ability to work. This obviously requires the ALJ to determine the extent to which a claimant is accurately stating the degree of pain or the extent to which he or she is disabled by it. See 20 C.F.R. S 404.1529(c).

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3. Hartranft concedes that the ALJ need not be boun d by the chiropractor's opinion, but argues that the ALJ err ed in not relying upon the chiropractor's evaluation to corroborate the op inions of Dr. Reina and Dr. Burton. Appellant's Br. at 24. However, for the reasons we have recounted, we do not believe that the ALJ's treatme nt of the chiropractor's opinion was inappropriate.

7Here, the ALJ concluded that Hartranft had a discer nible

medical condition that could reasonably cause the p ain Hartranft complained of. However, the ALJ thought t hat Hartranft's testimony about the extent of his pain was exaggerated, and that Hartranft could perform light duty work despite his complaints of incapacitating pain. That ruling is clearly supported by substantial evidence in this record. The ALJ cited specific instances where Hart ranft's complaints about pain and other subjective symptoms were inconsistent with: 1) the objective medical evidenc e of record; 2) Hartranft's testimony as to his rehabili tation and medication regimen; and 3) Hartranft's own descript ion of his daily activities.

IV.

Accordingly, we will affirm the order of the Distri ct Court upholding the ALJ's decision.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

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