2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-28-2009

Peggy Morrison v. Comm Social Security

Precedential or Non-Precedential: Non-Precedential

Docket No. 08-3565

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Recommended Citation

"Peggy Morrison v. Comm Social Security" (2009). 2009 Decisions. Paper 375.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

 

No. 08-3565

 

PEGGY J. MORRISON, 

 Appellant

v.

MICHAEL J. ASTRUE, 

Commissioner of Social Security

 

On Appeal from the United States District Court

for the Middle District of Pennsylvania

(D.C. No. 1-07-cv-01912)

District Judge: Honorable Christopher C. Conner

 

Submitted Under Third Circuit LAR 34.1(a)

October 26, 2009

Before: SLOVITER, FUENTES, and HARDIMAN, Circuit Judges.

(Filed: October 28, 2009)

____

 

OPINION

 
 We have jurisdiction pursuant to 28 U.S.C. § 1291, from 1

the final order issued by the District Court. The District Court had

jurisdiction based on 42 U.S.C. §§ 401-33. 

2

SLOVITER, Circuit Judge.

I.

Peggy J. Morrison appeals from the District Court’s order affirming the denial by

the Administrative Law Judge (“ALJ”) of Morrison’s application for Social Security

Disability benefits. 

II.

Judicial review is limited to determining whether there was substantial evidence to

support the Commissioner’s decision. 42 U.S.C. § 405 (g); Knepp v. Apfel, 204 F.3d 78,

83 (3d Cir. 2000) (citing Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999)).

Substantial evidence is “such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Pierce v. Underwood, 487 U.S. 552, 564-65 (1988). 

If the Commissioner’s findings of fact are supported by substantial evidence, such

findings are binding. Knepp, 204 F. 3d at 83.1

Because we write primarily for the parties, who are aware of the relevant facts, we

discuss them only briefly. Morrison, who was forty-seven years old with a 12th grade

education at the time of her application for disability benefits, is considered a “younger

person” under the Social Security Administration (“SSA”) regulations. 20 C.F.R. §

404.1563(c). Her prior experience included work in food service, as a cashier, machine
3

fastener, and hand packager. She was last employed on February 14, 2006, as a machine

operator at a printing company. 

She initially filed her SSA application with an onset date of February 15, 2006 but

amended that to October 31, 2005, because of an unsuccessful work attempt in the

interim. Morrison’s disability claim is directed primarily to her claim of back impairment

which she contends meets or equals § 1.04 of the List of Impairments. If she were

correct, it would qualify as a severe impairment.

Morrison first contends that the ALJ erred in failing to find that she had an

impairment severe enough to meet the requirements of § 1.04C of the SSA’s Listing

Impairments. Section 1.04C requires a documented diagnosis of lumbar spinal stenosis

that results in an inability to ambulate effectively. 20 C.F.R. Pt. 404, Subpt. P, App. 1 

§ 1.04C. Although the medical documentation shows that Morrison was diagnosed with

lumbar spinal stenosis, the ALJ concluded that the impairment did not result in her

inability to ambulate effectively, as defined by the regulations. See 20 C.F.R. Pt. 404,

Subpt. P, App. 1 § 1.00B2b(2). 

The pertinent evaluation shows that Morrison had a negative straight leg-raising

test, normal strength in lower extremities, and a normal range of motion. These

observances are further supported by the notes made by Dr. Balint Balog stating that

Morrison walked without an assistive device and could “heel walk and toe walk.” Tr. at

135. Dr. Balog also observed that Morrison had a negative straight leg-raising test, no
4

atrophy in her lower extremities, no restricted hip rotation and no true neural

impingement. Moreover, Dr. Barry B. Moore, Morrison’s treating physician, noted that

Morrison had no weakness in walking. Thus, there was substantial medical evidence to

support the ALJ’s finding that Morrison did not meet the requirements of § 1.04.C. 

Morrison next challenges the ALJ’s finding that her urinary incontinence was not

a severe impairment because it did not significantly limit her from doing basic work

activity. Morrison correctly argues that an impairment which precludes return to past

relevant work is a severe impairment. See 20 C.F.R. § 404.1520(b)(c). However, the

evidence shows that Morrison’s incontinence goes back to 2003, at a time when she was

still performing past work. Moreover, no evidence exists to suggest that Morrison

sought a medical evaluation from a urologist, even though she claimed she would do so. 

Also, in neither her testimony nor her application did Morrison describe any significant

functional limitations due to incontinence, and she provided no evidence that this

condition significantly limited her performance of basic activities. On appeal, Morrison

contends that she requires close proximity to a bathroom yet she never produced any

documentation verifying this. The burden of proof lies with Morrison at this step of the

evaluation process, 20 C.F.R. § 404.1520(c), and her failure to provide documentation is

thus fatal to her claim regarding urinary incontinence.

Third, Morrison argues that the ALJ erred in finding that she could perform a

limited range of light or sedentary work. As she points out, the ALJ so found even
5

though Dr. Moore limited her daily work activity to four hours a day, a limitation that

would preclude her from substantial gainful activity. This was not error, however,

because the reason for the ALJ’s failure to consider such evidence was that it came in the

form of a letter from Dr. Moore written on June 20, 2007 - almost two weeks after the

ALJ had issued her final decision. Evidence that was not before the ALJ cannot be used

to argue that the ALJ’s decision was not supported by substantial evidence. Jones v.

Sullivan, 954 F.2d 125, 128 (3d Cir. 1991). Furthermore, for the additional evidence to

be considered after the hearing, it must satisfy 42 U.S.C. § 405(g), which requires

Morrison to show that the evidence is new, material, and that there was good cause for

failing to provide it prior to the ALJ hearing. Matthews v. Apfel, 239 F.3d 589, 594 (3d

Cir. 2001). Morrison has failed to show how Dr. Moore’s letter met these requirements.

Next, Morrison contends that the ALJ erred in two ways. First, by substituting her

medical opinion for that of the treating physician, Dr. Moore, and, second, by accepting

the opinion of Dr. Balog over that of Dr. Moore. However, the ALJ did not substitute

her medical opinion for that of Dr. Moore. Instead, the ALJ simply made observations

regarding the time of total incapacity after the surgery based on the entire medical record

and Morrison’s testimony of her pain and limitations. Moreover, Morrison misinterprets

Dr. Moore’s estimate that she would need approximately two years to recover

neurological function to mean that she would be completely disabled and unable to work

for that duration. The ALJ evaluated the post-surgical notes of Dr. Moore against
6

Morrison’s complaint and considered the lack of additional diagnostic studies in

concluding that Morrison was only incapacitated for about six weeks after surgery. 

Rather than being a substitution of the ALJ’s medical opinion, this is a finding that was

supported by the weight of the evidence. 

Furthermore, we reject Morrison’s contention that the ALJ erred by accepting Dr.

Balog’s assessment over that of her treating physician. The ALJ may consider the

opinion of a source who has examined the claimant, and give more weight to a medical

opinion that is supported by relevant evidence, such as medical signs or laboratory

findings. 20 C.F.R. § 404.1527(d)(1), (d)(3). Nothing in the record, moreover, shows

that the ALJ afforded more weight to Dr. Balog’s opinion or used it to discount Dr.

Moore’s opinion. Accordingly, the ALJ properly considered all medical documentation,

including Dr. Balog’s opinion, that was supported by medical evidence. 

Finally, Morrison contends that the ALJ erred in failing to find her testimony

credible in relating her limitations both before and after the surgery. The ALJ may not

find an individual disabled based solely on his or her subjective complaints alone. 20

C.F.R. § 404.1529(a). Rather, those complaints must be supported by medical

documentation to show that the individual has an impairment that could reasonably

produce the alleged pain or symptoms. Id. The documentation that Dr. Moore provided,

however, showed that Morrison did not have a nerve impingement or other source for the

numbness in her toes and that she was able to walk without weakness. In light of the
7

medical record, the ALJ did not err by determining that the evidence did not support

Morrison’s testimony.

III.

After reviewing the record, we conclude that the District Court did not err in

holding that the decision of the ALJ was supported by substantial evidence. We will

therefore affirm the decision of the District Court.