1999 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

6-25-1999

Schaudeck v. Comm Social Security

Precedential or Non-Precedential:

Docket 98-5463

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Recommended Citation

"Schaudeck v. Comm Social Security" (1999). 1999 Decisions. Paper 168.

http://digitalcommons.law.villanova.edu/thirdcircuit_1999/168
Filed June 25, 1999 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 98-5463 

LISA SCHAUDECK, 

 Appellant 

v. 

COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION 

APPEAL FROM THE 

UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF NEW JERSEY 

(D.C. No. 97-cv-02718) 

District Judge: The Honorable Jerome B. Simandle 

ARGUED March 9, 1999 

BEFORE: MANSMANN, SCIRICA, and NYGAARD, 

Circuit Judges. 

(Filed June 25, 1999) 

 Glenn B. Carey, Esq. (Argued) 

 Agnes S. Wladyka, Esq. 

 Abromson & Carey 

 10 Park Place 

 Newark, NJ 07102 

 Attorneys for Appellant 

 Peter G. O'Malley, Esq. (Argued) 

 Office of United States Attorney 

 970 Broad Street 

 Room 700 

 Newark, NJ 07102 

 Attorney for Appellee 
OPINION OF THE COURT 

NYGAARD, Circuit Judge. 

An Administrative Law Judge held that Lisa Schaudeck 

did not prove that she was disabled for a continuous 

twelve-month period by Hodgkin's Disease, and the District 

Court affirmed this decision. See Schaudeck v. Apfel, No. 

Civ.A.97-2718 (D.N.J. Aug. 3, 1998). Schaudeck argues 

that the ALJ improperly determined that her impairment 

did not meet the criteria of an impairment listed in 

Appendix 1 to 20 C.F.R. Part 404, Subpart P, of the

regulations and failed to properly consider the effects of her 

chemotherapy treatments and her substantive testimony. 

We will reverse and remand the cause for a rehearing. 

I. 

Schaudeck was first diagnosed with Hodgkin's Disease in 

1990. She was treated and the disease went into remission. 

Her symptoms recurred in 1993, and in early 1994, she 

began a year-long course of chemotherapy. She alleges 

that, on February 7, 1994, she became disabled by the 

disease and treatment and thereafter met the insured 

status requirements of the Social Security Act until June 

30, 1998. Although she worked as a hairdresser from 1981 

until 1992 and as a waitress for three to five months in 

1993, Schaudeck has not worked since. 

At her hearing before the ALJ, Schaudeck testified to 

significant problems resulting from her chemotherapy 

treatments. She testified that, among other things, they 

caused fatigue, sickness and nausea. App. at 162. She also 

testified to residual effects that continued after the 

chemotherapy, such as having very little energy, tiring 

easily, and having to take regular naps. App. at 150, 153, 

155, 164. In addition, she stated that she had frequent 

stomach, leg and chest cramps and that the bottom of one 

leg was numb. App. at 151-52. 

The ALJ found that Schaudeck had been disabled from

February 7, 1994, until approximately August 31, 1994, 

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but that she was not disabled thereafter. In reaching this 

conclusion, the ALJ relied on a consulting doctor's report 

indicating that Schaudeck's Hodgkin's Disease was 

"responding to" the chemotherapy treatments. The ALJ 

thus denied her claim, holding that she had not shown a 

period of disability continuing for more than twelve months. 

The Appeals Council denied her request for review, and the 

District Court affirmed the ALJ's decision. 

Schaudeck alleges that the ALJ erred by: (1) holding that 

her impairment did not meet or equal a listed impairment 

in 20 C.F.R. Part 404, Subpart P, Appendix 1; (2) failing to 

properly evaluate the medical evidence and her subjective 

complaints of pain; and (3) failing to consider her nonexertional impairments. We have plenary review of all legal 

issues, see Krysztoforski v. Chater, 55 F.3d 857, 858 (3d 

Cir. 1995), and review the ALJ's findings of fact to 

determine whether they are supported by substantial

evidence. See 42 U.S.C. S 405(g). Overall, the substantial 

evidence standard is deferential and includes deference to 

inferences drawn from the facts if they, in turn, are 

supported by substantial evidence. See Monsour Med. Ctr. 

v. Heckler, 806 F.2d 1185, 1190-91 (3d Cir. 1986). To 

determine whether a finding is supported by substantial 

evidence, we must review the record as a whole. See 5 

U.S.C. S 706. 

II. 

A social security insurance benefits claimant must 

demonstrate an "inability to engage in any substantial 

gainful activity by reason of any medically determinable 

physical or mental impairment which . . . has lasted or can 

be expected to last for a continuous period of not less than 

12 months." 42 U.S.C. S 423(d)(2)(A). The Commissioner 

evaluates each case according to a five-step process until a 

finding of "disabled" or "not disabled" is made. See 20 

C.F.R. S 404.1520(a). The sequence is essentially as follows: 

(1) if the claimant is currently engaged in substantial 

gainful employment, she will be found not disabled; (2) if 

the claimant does not suffer from a "severe impairment," 

she will be found not disabled; (3) if a severe impairment 

meets or equals a listed impairment in 20 C.F.R. Part 404, 

 3 
Subpart P, Appendix 1 and has lasted or is expected to last 

continually for at least twelve months, then the claimant 

will be found disabled; (4) if the severe impairment does not 

meet prong (3), the Commissioner considers the claimant's 

residual functional capacity ("RFC") to determine whether 

she can perform work she has done in the past despite the 

severe impairment - if she can, she will be found not 

disabled; and (5) if the claimant cannot perform her past 

work, the Commissioner will consider the claimant's RFC, 

age, education, and past work experience to determine 

whether she can perform other work which exists in the 

national economy. See id. S 404.1520(b)-(f). 

Schaudeck was not engaged in substantial gainful 

employment. At the second step, the ALJ determined that 

Schaudeck had established the existence of a "severe 

impairment" related to the Hodgkin's Disease and its 

"residual effects." At the third step, however, the ALJ found 

that the impairment did not meet or equal in severity any 

of those listed in Appendix 1 to Subpart P of Regulation 

404. At step four, the ALJ considered Schaudeck's RFC and 

found that she could perform her past work of hairdressing 

and waitressing. ALJ's Decision at 3-4; app. at 127-28. 

Thus the ALJ did not reach step five. 

A. The listed impairments in 20 C.F.R. Part 404, Subpart P, 

 Appendix 1 

Schaudeck alleges that the ALJ erred when he found that 

her Hodgkin's Disease did not meet or equal in severity any 

of the impairments listed in Appendix 1 to Subpart P of 

Part 404 of the regulations. The list includes "Hodgkin's 

Disease . . . not controlled by prescribed therapy." 20 C.F.R. 

Pt. 404, Subpt. P, App. 1, S 13.06A (emphasis added).1 The 

_________________________________________________________________ 

1. The full definition in the regulations is:"Hodgkin's Disease or nonHodgkin's lymphoma with progressive disease not controlled by 

prescribed therapy." 20 C.F.R., Pt. 404, Subpt. P, App. 1, S 13.06A. We 

read the clause "with progressive disease" as describing "non-Hodgkin's 

lymphoma" because Hodgkin's Disease is by definition the "progressive 

enlargement of the lymph nodes, spleen, and general lymphoid tissue." 

Dorland's Illustrated Medical Dictionary 487 (27th ed. 1988). Thus, for 

our purposes, the relevant term is "Hodgkin's Disease . . . not controlled 

by prescribed therapy." 

 4 
ALJ apparently relied on the report of Dr. Wilchfort, a 

nontreating physician, who wrote that Schaudeck seemed 

to be "responding to" her treatment. From this statement, 

the ALJ found that the Hodgkin's Disease was "controlled 

by" the chemotherapy.2 The issue is whether the ALJ erred 

by concluding that the term "responding to" was equivalent 

to "controlled by." 

We conclude that the terms are not synonymous and that 

Schaudeck's disease was not "controlled by" her 

chemotherapy simply because it was "responding to" the 

treatment. We hold that "control," as used here, means that 

the treatment has been so successful that the disease can 

be considered effectively neutralized. Webster's Dictionary 

supports our holding. It defines "to control" as: "to exercise 

restraining or directing influence over . . . to have power 

over . . . to reduce the incidence or severity of especially to 

innocuous levels." Webster's Ninth New Collegiate 

Dictionary 285 (1988) (emphasis added). 

In addition, the context in which the phrase "controlled 

by" appears in the Appendix is further reinforcement for 

our conclusion that the phrase should signify something 

more than that a treatment is merely affecting the disease. 

Indeed, section 13.06C of the CFR Appendix, which lists 

the various impairments, also lists "[e]pidermoid carcinoma 

in a lymph node in the neck not responding to prescribed 

therapy," 20 C.F.R. Pt. 404, Subpt. P, App. 1,S 13.06C 

(emphasis added), thus distinguishing between diseases 

that are "responding to" treatment and those "controlled by" 

it. Each term clearly means something different. Thus, 

simply because Schaudeck's cancer was responding to the 

chemotherapy does not mean that the disease was 

controlled by the treatment. 

Because the ALJ considered only evidence indicating that 

Schaudeck's disease was "responding to" treatment, we will 

remand the cause to give the ALJ an opportunity, using 

this definition, to reassess whether Schaudeck's Hodgkin's 

Disease meets or equals in severity the listed impairment of 

_________________________________________________________________ 

2. This finding was not explicit in the ALJ's Decision but can be inferred 

from the ALJ's finding at step three of the evaluative process. 

 5 
"Hodgkin's Disease . . . not controlled by prescribed 

therapy." 20 C.F.R. Pt. 404, Subpt. P, App. 1,S 13.06A. 

B. Evaluating the medical evidence 

On remand, should the ALJ again find that Schaudeck's 

Hodgkin's Disease did not meet or equal a listed 

impairment, the ALJ will need to reassess his 

determination that Schaudeck was capable of doing her 

past relevant work despite her severe impairment and make 

more explicit the reasoning behind his conclusion. 

An ALJ must give great weight to a claimant's subjective 

testimony of the inability to perform even light or sedentary 

work when this testimony is supported by competent 

medical evidence. See Dobrowolsky v. Califiano, 606 F.2d 

403, 409 (3d Cir. 1979). Although the ALJ can reject such 

claims if he does not find them credible, see Baerga v. 

Richardson, 500 F.2d 309, 312 (3d Cir. 1974), when 

assessing a claimant's credibility: 

 [i]n instances in which the adjudicator has observed 

 the individual, the adjudicator is not free to accept or 

 reject that individual's complaints solely on the basis of 

 such personal observations. Rather, in all cases in 

 which pain or other symptoms are alleged, the 

 determination or decision rationale must contain a 

 thorough discussion and analysis of the objective 

 medical and the other evidence, including the 

 individual's complaints of pain or other symptoms and 

 the adjudicator's personal observations. The rationale 

 must include a resolution of any inconsistencies in the 

 evidence as a whole and set forth a logical explanation 

 of the individual's ability to work. 

Social Security Ruling ("S.S.R.") 95-5P, 1995 WL 670415, at 

*2 (emphasis added). 

We have reemphasized the need for such specificity,

holding that the ALJ must indicate in his decision which 

evidence he has rejected and which he is relying on as the 

basis for his finding. See Cotter v. Harris, 642 F.2d 700, 

705-06 (3d Cir. 1981); see also S.S.R. 96-7P, 1996 WL 

374186, at *4 ("The reasons for the credibility finding must 

be grounded in the evidence and articulated in the 

 6 
determination or decision."). This explanation provides us 

with a basis on which to assess whether "significant 

probative evidence was not credited or [was] simply

ignored." Cotter, 642 F.2d at 705. Here, the need for 

specificity and articulation is strong because Schaudeck's 

history of chemotherapy supports her subjective claims. 

In particular, two flaws in the ALJ's analysis of the 

evidence require reconsideration on remand. First, the ALJ 

failed to consider the support for Schaudeck's testimony 

provided by the numerous medical reports detailing her 

chemotherapy regimen. In the section of the Decision titled 

"The Evidence," the ALJ noted that on December 29, 1994, 

February 9 and March 9, 1995, Schaudeck told her doctors 

that she was "feeling fine" and had no problems. App. at 

126. In addition, the ALJ cited Dr. Wilchfort's report stating 

that Schaudeck was "responding to" the treatment. This, 

however, was the extent of the ALJ's discussion of the 

medical evidence. 

The ALJ's complete discussion of Schaudeck's complaints 

was as follows: 

 The claimant's subjective complaints of disabling 

 pain and other symptoms and limitation precluding all 

 significant work activity are not credible or consistent 

 with Social Security Ruling 95-5p and Regulations 20 

 CFR 404.1529 and 416.929. Such complaints, beyond 

 a limited period of acute distress at the onset of the 

 disease, cannot reasonably be accepted as consistent 

 with the laboratory findings, medical reports, and daily 

 activities. The above-summarized medical evidence 

 reveals objective findings that, in my opinion, could not 

 reasonably produce the subjective complaints after an 

 acute period of distress lasting six to seven months. 

ALJ's Decision at 3 (emphasis added). Of course, the 

"above-summarized medical evidence" consisted solely of 

the two findings noted above and included no discussion 

whatsoever of Schaudeck's medications or their side effects. 

It is undisputed that Schaudeck suffered from Hodgkin's 

Disease and that the medications used to treat the disease 

can have numerous side effects. When considering the side 

effects of treatment, the regulations instruct: 

 7 
 Effects of therapy. Significant posttherapeutic 

 residuals, not specifically included in the category of 

 impairments for malignant neoplasms, should be 

 evaluated according to the affected body system. 

 Where the impairment is not listed in the Listing of 

 Impairments and is not medically equivalent to a listed 

 impairment, the impact of any residual impairment 

 including that caused by therapy must be considered. 

 The therapeutic regimen and consequent adverse 

 response to therapy may vary widely; therefore, each 

 case must be considered on an individual basis. It is 

 essential to obtain a specific description of the 

 therapeutic regimen, including the drugs given, dosage, 

 frequency of drug administration, and plans for 

 continued drug administration. It is necessary to obtain 

 a description of the complications or any other adverse 

 response to therapy such as nausea, vomiting, diarrhea, 

 weakness, dermatologic disorders, or reactive mental 

 disorders. 

20 C.F.R. Pt. 404, Subpt. P, App. 1, S 13.00D (emphasis 

added). 

The record demonstrates that Schaudeck's chemotherapy 

regimen consisted of several drugs, including, 

Mechlorethamine (also known as Mustard), Oncovin (or 

Vincristine), Procarbazine, Prednisone, Kytril, Ativan, 

Decadron, Compazine, and G-CSF (granulocyte colony 

stimulating factor). App. 239, 280-99. The known side 

effects of these drugs are severe,3 thus Schaudeck's 

treatment coincided with the pain and weakness to which 

she testified. 

_________________________________________________________________ 

3. Among the numerous common side effects for these drugs are: for 

mechlorethamine, severe nausea, bone marrow depression and 

gastrointestinal symptoms; for Oncovin, neuritic pain (due to nerve 

inflammation) and muscle wasting; for Ativan, somnolence (unnatural 

drowsiness); for Decadron, muscle weakness and loss of muscle mass; 

for Compazine, drowsiness; for G-CSF, bone pain. See Dorland's 

Illustrated Medical Dictionary 535 (Neupogen, a G-CSF), 990 

(mechlorethamine) (1988); Physician's Desk Reference 1625 (Oncovin), 

1771 (Decadron), 3038 (Compazine), 3269 (Ativan), (53d ed. 1999). 

 8 
Schaudeck was taking the numerous drugs that made up 

her chemotherapy regimen well after the date on which the 

ALJ found her no longer disabled. Yet, the ALJ did not 

indicate why he believed that Schaudeck's condition could 

have improved when she was continuing to take the same 

debilitating drugs.4 

Second, the ALJ failed to explain why he would rely on 

the post-August 31, 1994 doctors' reports that Schaudeck 

was feeling fine, see ALJ's Decision at 2, when similar 

statements appeared in doctors' reports throughout her 

treatment, including during the period that the ALJ found 

Schaudeck was suffering from a severe impairment. There 

is no obvious logical reason to differentiate between these 

similar statements that appear throughout her medical 

treatment, and the ALJ offered none. 

The ALJ's failure in this regard is particularly troubling 

in light of the fact that Schaudeck testified that she always 

told the doctors that she was feeling fine because 

"everybody [at the clinic] knows what the problems are. . . . 

They know being sick is just normal . . . Those problems 

are all normal in that situation. Everybody is sick like that. 

That's the normal thing. . . . [W]hen you say okay, it's just 

okay for what you're going through." App. at 165-66. 

Although we normally defer to the ALJ's decision not to 

credit a claimant, here, that decision is logically unsound. 

There was no reason for the ALJ to accept some of 

Schaudeck's statements as proof that she was not disabled 

while ignoring identical statements made during the time 

period that the ALJ determined that she was disabled. 

Where competent evidence supports a claimant's claims, 

the ALJ must explicitly weigh the evidence, see 

_________________________________________________________________ 

4. Schaudeck also asserts that the ALJ's finding that she had sought 

"only limited modalities of treatment for the alleged pain and limitation, 

and does not take medication for the impairment," app. 127, was 

erroneous. Here, the ALJ may have been referring to Schaudeck's 

decision not to seek treatment beyond the chemotherapy, but he did not 

explain this. It is clear that Schaudeck declined to seek certain 

treatment after her chemotherapy ended. However, this is another 

instance in which the ALJ did not make clear what evidence he was 

relying on to form his conclusion. 

 9 
Dobrowolski, 606 F.2d at 407, and explain a rejection of the 

evidence. See Benton ex rel. Benton v. Bowen, 820 F.2d 85, 

88 (3d Cir. 1987). By failing to consider the drugs that 

Schaudeck was taking throughout her chemotherapy 

treatment and make "a thorough discussion and analysis of 

the objective medical . . . evidence" S.S.R. 95-5P, 1995 WL 

670415, at *2, the ALJ erred. On remand, the ALJ must 

give a clear and logical statement of the facts supporting 

his conclusions.5 

III. 

We conclude that the ALJ applied an erroneous definition 

of "controlled by" and that he erred by failing to properly 

consider the evidence of record and adequately explain his 

decision. As a result, we will reverse the District Court's 

order and remand the cause to the District Court with 

instructions to remand to the Commissioner of Social 

Security, for further proceedings not inconsistent with this 

opinion. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

_________________________________________________________________ 

5. Schaudeck also asserts that the ALJ erred by failing to consider her 

non-exertional impairments. These are impairments that do not affect a 

claimant's physical strength but may nevertheless prevent them from 

engaging in gainful employment. See, e.g., Stunkard v. Secretary of 

Health & Human Servs., 841 F.2d 57, 60 (3d Cir. 1988). Because we are 

remanding the cause for the reasons discussed, we need not reach this 

issue. 

 10