2005 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit 1-6-2005 

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w . v i l l a no va . e du/thir dc ir c uit_2005/1576* Honorable Louis H. Pol lak, Senior Dist rict Judge for t

he United States Dist

rict Co urt o f the Ea stern Dis trict o f Pe nns ylvan ia, sittin g by d esig natio n. NOT PRECEDE NTIAL UNITED STA TES COUR T OF APPEA LS FO R T HE TH IRD CIR CU IT No. 04-1660
SHAR ON K OW ALSK I, Appell ant

v. JO AN NE B. B AR NH AR T, COMM ISSI ONER OF SOCIAL SECURITY
On A ppeal from the Un ited States District Co urt for the M iddle D istrict of P enns ylvania (D.C. Civi l No. 02-cv- 01327) Distric t Judg e: Th e H ono rable W illiam W . Cald we ll

______________ Submitte d Under Third Circ uit LAR 34.1(a)

December 17, 2004
Be for e: N YG AA RD and GA RT H, Circu it Judges
.

an d POL LAK, * Distri ct Judge
. (Fil ed January6, 2005)

______________ OPINI ON OF THE COURT

______________ POLLA K, District J udge. In this case, we are asked to review the opinion of M agistrat e Judge Thom as M.2

Blewitt , adopt ed by J udge Willi am W. Caldwell of the United States District Court for the Middle District of

Pennsyl vania. Magistrate Judge Blewitt affi rmed the opi nion of an Ad minis trative L aw Judg e (A LJ) d enying s ocial se curity ben efits to S haro n K ow alski, appell ant here in.
I. Background

Ms. Kowalski is a

fifty- three y ear old woman who suffers fr om a left knee impairment

that, in May 2000, ne cessi tate d totalreplac ement surger y. Ms. Kowalski fil ed a first ap plication for D isability Insur ance Ben efits an d So cial Se curity Inco me B enef its on October 15, 1997. Th at applicati on was denied on Decem ber 17, 1998, and M s. Kowalski did not

appeal. She file d a second appl ication on April10, 2001, a llegi ng an inabil ity to work sinc e September 1, 1997. As the ALJ found, however, evaluation of her candidacyfor benefi ts coul d date back no further t han December 18, 1998, the dayafter her fir st appl ication was denied. The ALJ found further t hat Ms. Kowalski was i nsured for benefi ts onl y through September 30, 2001. As such, the rel evant period of eval uation spanned from December 18, 1998 t hrough September 30, 2001. The ALJ proceeded through t he five- step se quentia l anal ysi s accordi ng to which1 20 C.F.R. § 404.1520 prov ides:

The sequenti al eval uation pr ocess i s a seri es of five " steps" that we fol low in a set order. If we can find t

hat y ou are dis abled or not disabl ed at a step, we make our determination or decisi on and we do not go on to the next step. If we cannot fi nd that y ou are dis abled or not disabl ed at a step, we go on to the next step. Before we go from step three to step four, we assess y ou r r es i du alfu nc t i on alcapa ci t y . ( Se e p ar ag r ap h ( e) of t hi s s ec t i on . ) We use thi s resi dual functional c apacity as sessment at both s tep four a nd step fi ve whe n we ev al ua te y our cl ai m at th es e s te ps . T he se ar e the fi ve st ep s we fo ll ow: (I) At t he firs t st ep, we conside r y our work acti vity , if any. If y ou are doing substant ial ga inful a ctivi ty , we will find that y ou are not di sabled. (See par agr aph (b) o f this sec tion .) (ii ) At the s econd step, we consider t he medical s everit

y of y our impairment (s). If y ou do not have a se vere medical ly determi nable phy sical or mental impairment

that meet s the dur ation requirement in §§ 404.1509, or a combination of impai rments t hat is severe and meet s the dur ation requir ement, we willfind that y ou are not di sabled. (See paragr aph (c) of this s ectio n.) (ii i) At t he third step, we also consi der the medi cal seve rity of y our impairment (s). If y ou have an impairment(s) that meet s or equal s one of our listings in appe ndix 1 of this sub part an d m eets the dura tion req uirem ent, we wil l find that yo u ar e dis able d. (S ee p arag rap h (d ) of this s ectio n.) (iv) At the fourt

h step, we consider our

assess ment of y our resi dual functional capacityand your past rel evant work. If you can stil l do your past releva nt work, we willfind that y ou are not di sabled. (See paragr aph (f) of this s ectio n an d §§ 404 .156 0(b ).) (v) At the fifth and last

step, we consider our

assess ment of y our resi dual fun ctiona l capa city and you r age, e duca tion, an d w ork e xper ience to see if you can make an a djustment to other work. I f you can make an a djustment to other work, we will fi nd that y ou are not di sabled. If y ou cannot make an adjustment to other work, we willfind that y ou are dis abled.

3 eligi bility fo r disa bility be nef its is e valu ated
. See 20 C.F.R. § 404. 1520. 1 At step t hree, the A LJ f oun d that M s. Ko wa lski’s im pairm ent did not m eet or e qual a listed im pairm ent.4

Moving on to step four , the ALJ determined t hat Ms. Kowalski coul d not perform her past wo rk but, at step five, the A LJ ado pted the testimon y of a vocationa l expert that there existed a sign ifican t num ber o f jobs in the n ationa l econ om y that M s. Ko wa lski cou ld perform despi te her kne e problems. As such, the ALJ found that Ms. Kowalski was not disabl ed and he denied he r appli cati on. Ms . Kow alski requested tha t the Social Sec urity Appeals C ouncil review the AL J’s decisi on, and the Council deni ed her reque st, renderi ng the ALJ’s deci sion the final dec ision of th e C om mis sion er fo r pu rpo ses o f jud icial r evie w, see Sims v. Apfel , 530 U. S. 103 , 106 ( 200 0). M s. Ko wa lski then filed a com plaint in the U nited S tates D istrict Co urt. Her case was revi ewed initiall y byMagistrate Judge Blewitt, who authored a Report and Reco mm endations (R & R ) that was ad opted by Judg e Caldw ell of the D istrict Court despit e Ms. Kowalski’s obj ecti ons. This timel y appea l foll owed.

II. Discussi on

“W e revie w th e A LJ’s d ecision und er the s ame stand ard as the D istrict Co urt, to determine w hether there is sub stantial evidence o n the record to suppo rt the AL J’s decisi on.” Burnett v. Commissioner , 220 F.3 d 11 2, 11 8 (3 d C ir. 20 00)
. See 42 U .S.C . § 405(g). “Substantial e vidence has been defined as more than a mere s cinti lla. It means such rel evant evi dence as a r easonable mind might acc ept as ade quate. ” Plummer v.5

Apfel , 186 F.3d 422, 427 (3d Cir. 1999) (ci ting Ve ntura v . Shala la , 55 F.3d 900, 901 (3d Cir. 1995 ) ). On appeal, Ms. Kowalski firs t conte nds that the Magistr ate Judge e rred when he concluded that the ALJ had fullyexplai ned his r easoning at step 3, where he found that M s. Ko wa lski’s im pairm ent did not m eet or e qual a ny listed im pairm ents tha t wo uld render her

disabl ed per se. Second, Ms. Kowalski ar gues that the Magistr ate Judge e rred when he made his own comparison of t he evidence to the li sted i mpairments , rat her than remanding the case for f urther fact- finding by

the ALJ. Thir d, Ms. Kowalski maint ains that t he Magistrate Judge err ed in concl uding that the ALJ considered all of the evi dence and in affi rming the ALJ’s finding t hat Ms. Kowalski was not entitled to a

closed period of disabi lit

y fr om December 18, 1998 to May 1, 2000. Final ly , Ms. Kowalski ar gues that the Magistrate Judge erred when he engag ed in his own analysis as t o whether M s. K ow als ki w as en titl ed to a c lo se d p er io d o f d isa bi lity. A. Step Three: Whether the ALJ Adequatel y Supported His Findi ng that Ms. Kowalski Was Not Per Se Disabled As M s. Ko wa lski cor rectly notes , an A LJ m ust do mo re than just state h is conclusi on; “he must s et fort h the rea sons for hi s decis ion,” Bu rnett , 220 F.3d at 119. Thus, in Bu rnett , thi s court vacated a de cisi on by the ALJ containi ng no more than the conclusi on from his step three analy sis; the court remanded the ca se for a di scussi on of the evi dence and an expl anati on of reasoni ng supporti ng the ALJ’s step three6

determi nation. 220 F.3d at 120. Ms. Kowalski mainta ins that the ALJ’s step t hree det ermination suffer s from the same defect a s did the determinati on at is sue in Bu rnett , and that remand i s thus appropri ate. In Bu rnett , the ALJ’s enti re st ep three analy sis cons ist ed of the fol lowing statement: “‘A lthough [B urnett] has established that she suff ers from a severe musculoskel etal [impairment], said i mpairment fai led to e qual the level of severi ty of any disabl ing condit

ion conta ined in Appendi x 1, Subpart P of Social Sec urity Regulations No . 4.’” 22 0 F.3 d at 11 9 (citing the A LJ o pinion ). The AL J did n ot list the sp ecific impairments with which he had com pared Ms. Bu rnett’s i mpairment, nor did he discuss the evi dence in l ight of t he lis ted impai rments. The court r eferred to the ALJ’s anal ysi s as “ho pele ssly ina deq uate ” sin ce it p rov ided the c our t wi th n oth ing to re view
. Id. At 120. Confronting c halle nges to step three analy ses in t he wake of Bu rnett , thi s court has bee n at p ains to cir cum scrib e its h old ing
. See, e. g. , Jones v. B arnhart , 364 F.3d 501, 505 (3d Cir. , 2004). In Jones , the co urt stated that “ Bu rnett does not require the ALJ to use parti cular l anguage or adher e to a particul ar format in conducting his analy sis. Rather, the functi on of Bu rnett is t o ensure that the re is suffici ent devel opment of the r ecord and explanation of fi ndings t o permit meani ngful revi ew.” 364 F.3d at 505. The ALJ’s decisi on in thi s case i s suffi ciently reasoned t o allow for meani ngful judici al revi ew. Unlike i n Bu rnett , the ALJ here did li st the secti ons describing the impairment s to which he compar ed Ms. Kowalski’s condi tion. Moreover, he devot ed over2 It is also w orth n oting, a s app ellees u rge u s to do , that K ow alski fa ils to indic ate

w hi ch of th e li ste d i m pa irm en ts s he w ou ld all eg ed ly sa tis fy. 7 two pages of his opinion t o a discus sion of the evidence, focusing i n parti cular on t he range of moti on of Ms. Kowalski’s l eft knee, impairment of which is a prerequis ite f or
one of th e liste d di sab ilities, see Appendix 1, Section 1.02. Finall y, the ALJ stated that “[i]t i s important to note that no treating phys ician has determined the clai mant [M s. Kow alski] to be disabled .” AR at 16. Sub stantial evidence thu s suppo rted the AL J’s determi nation t

hat Ms. Kowalski di d not have an i mpairment t hat met or

equaled one of the li sted i mpairments , and the ALJ presented t his evi dence in the course of hi s opini on. Accordingly , his step t

hree det ermination was not bas ed upon a conclus ory stat ement and the Magistr ate Judge di d not err in upholdi ng this determi nation. 2 B. T he M agistrate Judg e’s R eview of the AL J’s Step Thre e A nalysis Ms. Kowalski contends that, to res pond to her at tack on the ALJ’s inadequate step three reasoning, the Magistr ate Judge c onducted hi s own step three analy sis, thereby contra venin g the b asic pr inciple that distric t courts may no t mak e find ings o f fac t to sup plem ent th ose of th e C om mis sion er, see, e. g. , Gra nt v. Sh alala , 989 F.2d 1332 ( 3d Cir., 1993). Yet, while i t is t rue that the dist

rict court (or the magistrat e judge whose findings the dis tri ct court adopts) may not e ngage in fact -findi ng, it is commonplace for the distric t court to go b eyond th e A LJ’s d ecision and lo ok to the rec ord in orde r to dete rmin e w heth er su bsta ntial evid enc e su ppo rted the A LJ’ s fin din gs. See, e. g. , McCrea8

v. Comm'r of Soc. Sec. , 370 F .3d 35 7 (3d Cir., 20 04); Jones v. B arnhart , 364 F.3d 501 (3d Cir ., 200 4). In dee d, th is is ju st w hat s ubs tanti al ev iden ce re view req uire s. See, e. g. , Mathews v. Weber , 423 U.S. 261, 263 (U.S., 1976) (hol ding that “the Feder al Magistr ates Act, 28 U.S. C. §§ 631 et se q., pe rmits a United States di stri ct court to refe r allSocial Security benefi t cases to magist rate j udges for pr elimi nary review of the administ rati ve record, oral ar gument, and pr eparation of a re commended decision a s to whether the record cont ains subs tanti al evi dence to suppor t the a dminist

rati ve determinati on”). The Ma gistrate Judge’s us e of the reco rd here, for pu rposes of determining whe ther the AL J’s step t hree anal ysi s was support ed by s ubstantial e vidence, was thus entirel y appr opriate. C. The ALJ’s Determinat ion that Ms. Kowalski Was Not Entit led to a Closed Peri od of Disa bility In the pr oceedings be low, Ms. Kowalski ar gued that the ALJ’s anal ysi s was wanting si nce, according to her , the ALJ considered onl y the evidence pe rtai ning to her limi tati ons in the period a fter he r knee repl acement sur gery , on May 1, 2000. Since the ALJ i s r equ ir ed t o wei gh a llof t he r el eva nt , p ro bativ e an d av ai labl e ev id enc e be for e hi m,
see Dobrowolsky v. Califano , 606 F.2d 403, 407 (3d Cir. 1979), Ms. Kowalski argued that t he ALJ’s (al leged) f

ailure to do so her e consti tuted e rror. The Magistrat e Judge disagr eed, ar guing that

“none of the fi ndings pertaini ng to the relevant time period appear to suggest an y findings other than those already cited by the A LJ regard ing the Plaintiff’s treat ment foll owing totalknee repl acement, ” Kowalski v. Barnhart, No. 02-1327 at 103 The M agistrate Judge is co rrect that the record relates that M s. Kow alski’s

conditi on from December 18, 1998 to May 1, 2000, was not signi ficantly differe nt from that a fter he r surgery – i n the cl osed peri od in question, Ms. Kowalski was found to have a good range of moti on, AR 364, and could eve n walk one to t wo miles without diffi culty , AR 262. Nonetheles s, the presence of this information in t he record would not justify the ALJ’s fai lure t o referenc e it i n his opi nion, i f the ALJ had in fact fail ed to do so. The Magistrat e Judge’s c ontenti on that t he ALJ found that Ms. Kowalski ha d overst ated her

sympt oms is unhel pful becaus e the ALJ’s fi nding was indexed to the testimony Ms. Kowalski gave regar ding her s ymptoms at the ti me of the heari ng, and not dur ing the p erio d fr om De cem ber 18, 1 998 to M ay 1, 2 000
. 9 (M.D. Pa. fi led Dec. 22, 2003). The Magist rate J udge furthe r defended the ALJ’s opini on by ci ting t o the portion of that opini on in which the ALJ stated t hat “the Plaint

iff overst ated her

sympt oms of pain and [] her complai nts were i nconsistent with t he diagnostic fi ndings. ” Id. On appeal, Ms. Kowalski maintai ns (without argument) t

hat the Magistrate Judge err ed. While the Magist

rate J udge’s re asoning is flawed, 3 the un derlying A LJ d ecision is defensibl e. The ALJ recited Ms. Kowalski’s medi cal hi story beginning on Oct ober 26, 1996. He described her condition on January 23, 1997 and on M arch 17, 1999. He also stat ed that

“[i]t is i mportant to note that no tr eati ng physi cian has de termine d the cl aimant to be dis abled” – a s tate ment that refle cted the medical opi nions of the phys icia ns tre ating Ms. Kowalski thr oughout the pe riod of al leged di sabil ity . Final ly , as t he Magistrate Judge argued, s ubstantial e vidence suppor ted the ALJ’s determinati on that at no ti me from December 18, 1998 thr ough September 30, 2001 did Ms. Kowalski qual ify as disabled.10

D. The Magistrat e Judge’s Revi ew of the ALJ’s Determi nation t hat Ms. Kowalski Was No t Entitled to A Clos ed P eriod o f D isability Ms. Kowalski argues t

hat the Magistrate Judge err ed by maki ng his own findi ngs of fact and conc luding t hat she was not

entitled to a

closed period of dis abili ty . While t he Magistrate Judge did r ecit e record e ntri es tendi ng to show that Ms. Kowalski was not disab led be twee n D ecem ber 1 , 1998 and M ay 1, 200 0, this rec itation w as inten ded to demonstrate, and di d demonstrate, that subst antia l evide nce support ed the ALJ’s deci sion. As suc h, there wa s nothing ina ppropriate ab out the M agistrate Judge’s u se of the reco rd here. III. Conclusion

The ALJ’s decisi on was well-r easoned and supported by substant ial e vidence. Since the Magistrate Judge so found, the deci sion of the District Court adopting t

he Rep or t a nd R ec omme ndati ons of th e Mag is tr at e J udg e s ha llbe AFFI RMED.