2004 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit

4-19-2004 

# G a r c i a v . C omm S o c i al S ec ur it y P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al D ocke t N o . 03-3775

F o l lo w thi s a nd a dd it ion al w ork s a t : h tt p://d i g it alc ommon s .l a w . v i l l a no va . e du/thir dc ir c uit_2004

Thi s de c i sion i s br ou gh t t o you for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit a t V i l l a no va U niv e r sit y S choo l of L a

w Di g it al Re posit or y

. It h as be e n a c c e pt e d for inclusion in 2004 D e c i sion s b y a n author i z e d a dmini s tr a t or of V i l l a no va U niv e r sit y S choo l of L a

w Di g it al Re posit or y

. F or mor e infor m a t ion, p le as e c on t a ct Be n j a min . C a rl s on@l a

w . v i l l a no va . e du

. Re c omme nde d C it a t ion

" G a r c i a v . C omm S oc i al S e c ur it y " (2004). 2004 D e cisio n s . P ape r 808. h tt p://d i g it alc ommon s .l a

w . v i l l a no va . e du/thir dc ir c uit_2004/808NOT PRE CEDENT IAL

IN THE UNITED STATES COURT

OF APPEALS FO R T HE TH IRD CIR CU IT

NO. 03-3775

AB RA HA M G AR CIA Appellant

v. COMM ISSI ONER OF SOCIAL SECURITY

On A ppeal From the Un ited States

District Cou rt Fo r th e D ist ric t o f N ew Je rse y (D.C. Civi l Action No. 00-cv-05782) Distri ct Judge: Hon. Willi am J. Marti ni

Submitte d Pursuant to Third Circ uit LAR 34.1(a)

April 16, 2004 BEFO RE: REN DELL , STAPLET ON and LA Y,* Circuit Judges (Opinion Fi led : Apri l 19, 2004)

* Hon. Donald P. Lay , Unite d States Circuit Judge for the Eighth Cir cuit, sitting by designation.2 OPINI ON OF THE COURT

ST AP LE TO N, Circuit

Judge : Appellant

Abraham Garcia appeal s the deci sion of the United States Dist rict Court for t

he District of

New Jersey af

firming t he decisi on of the Commissi oner of the Soc ial Sec urity Ad minis tration (“ Co mm issione r”) to d eny G arcia’s c laim f or D isability Insurance Bene fits (“DIB ”) and S upplem ental Secu rity I ncom e (“SSI”) u nder T itles II and XVI of the Social Security Act. The parti es are fami liar with the f

acts and pr ocedural hist ory . Hence, we li mit ours elves t o a brief stat ement of the reason for our decisi on. For the reaso ns that follow , we w ill affirm the decision of the D istrict Court upholding the Com missioner’s denial of benefit s. I. The Distri ct Court ha d juri sdiction to r eview the Commissi oner’s f inal dete rmin ation und er 4 2 U .S.C . § 40 5(g ) an d w e ha ve ju risdi ction und er 2 8 U .S.C . § 12 91. Our review of the Commissi oner’s f inal de cisi on to deny benefit s is l imit ed to a dete rmin ation of w heth er th at de cisio n is s upp orte d by su bsta ntial evid enc e. See, e. g. , Hartranft

v. Apfel , 181 F.3d 358, 360 (3d Cir. 1999). “Subs tanti al evi dence ‘does not mean a large or considerable amount of evidence, but rather such relevant evidence as a3

reasonabl e mind might ac cept as a dequate t o support a conclusi on.’” Id. (quoti ng Pierce v. Underwood , 487 U.S . 552 , 108 S.C t. 25 41, 2 545 , 101 L.E d.2d 490 (19 88) ). II. Bo th type s of ben efits Ga rcia s eek s are onl y ava ilabl e if, inter alia , Garc ia is “disabled. ” In determining whether a claimant is disabl ed, the Commissioner must follow the famili ar five -ste p sequenti al anal ysi s set f orth i n the regul ations promulgate d by the So cial S ecu rity Ad min istrati on. See 20 C .F.R. § § 40 4.152 0, 416 .920. G arcia primari ly object s to the ALJ’s determinati on of his r esidualfuncti onal capaci ty during that pro cess, an d claim s that the AL J did n ot exp licitly state wh y he “reje cted” certain medical test r esult s, i n violat ion of Co tter v. H arris , 642 F.2d 700 (3d Cir. 1981 ) (“ Cotter I”) (“[W]e need fr om the ALJ not onlyan express ion of the evidence s /he consi dered which supports the re sult, but also some indication of the evidence which was rejec ted.”).

As we later ind icate d, Cotter I “simply requir es that

the ALJ indic ate that s/ he h as con si der ed a llth e ev id enc e, both fo r a nd a gai nst th e cl ai m, a nd p ro vi de s ome explanation of why s /he has r eject ed probati ve evidence whic h would have suggest ed a contrary di sposition.” Co tter v. H arris , 650 F.2d 481, 482 (3d Cir. 198 1) (“ Cotter II ”). Garcia sugges ts that the ALJ provided no indi cati on that he had considered resul ts fr om electro myog raph y (“EM G” ), nerve cond uction veloc ity (“NC V” ), and m agne tic resonance i maging (“MRI”) tes ts, which, Garci a argues, would have resul ted in a different resi dual functional capacityassessment if properlycredited by t he AL J.4 The ALJ’ s opi nio n doe s not expl ic itlyref

ere nce t hes e t est res ult s. The ALJ indicated, however, that he consi dered the “seri es of 10 reports between October 25, 1996 and December 3, 1997” byGarcia’s treat ing phy sici an, Roger Behar, M.D. Results fr om the EM G/NC V tests are contained in Dr. Behar’s November 20, 1996 report. Those resul ts i ndicat e that

Garcia suffe red from “bi late ral C7 radi culopathies, worse on the right than the left .”

Contraryto Garcia ’s sugges tion, however, that the ALJ impl icitly “reje cted” these r esult s, the ALJ ultimat ely concluded that Garci a suffers from “a sever e shoulder inj ury ” t hat

“re stri ct [s] his abi li tyto d o fi ne fi nger mani pul at ion .” Give n th atthe ALJ clearlyconsidered Dr. Behar’s reports (incl uding the one containing the EM G/NC V test resul ts) a nd that, as the Dis tri ct Court noted, the ALJ concluded that Garcia’s shoulder was severel y i mpaired, we cannot agree t hat in not

specifi call y r eferenci ng the EMG /NCV test res ults the ALJ fail ed to “provi de some explanation of why s /he has reject edprobati ve evidence whic h would have suggest ed a contrary disposi tion. ” Cotter II , 650 F.2d at 482 (em phasis add ed).

Ga rcia fu rther su gges ts that the AL J igno red a re port b y Dr. Sc hon feld disc uss ing M RI r esu lts tha t sho we d a “ min ima l cen tral a trop hy,” “ mild cor tical a trop hy,” and “chroni c deep white matter i schemic change, ” there by agai n violat ing Cotter . The MR I report, however, does not discuss anydiscernible i mpairment in light of these tes t resul ts, and the re cord does not show that anyphysi cian opi ned that the MRI scan5

demo nstrated any impairm ent. Furtherm ore, as the D istrict Court noted, D r. Behar’s report s as treati ng physi cian do not indicate anychange in hi s diagnosi s in l ight of t he MR I resul ts. Accordingly , we find no Cotter violatio n her e bec ause these M RI re sults alone do not amo unt to proba tive evidence that wou ld have su ggested a c ontrary disposi tion. Garcia al so contends that t he ALJ violat ed Sykes v. Apfel , 228 F.3d 259 ( 3d Cir. 20 00) b ecau se he utilized th e M edica l-Vo cation al Gr ids afte r findin g that G arcia suffers f rom both exert

ional a nd nonexerti onal impai rments. As we noted in Sykes , [t]he grids est ablis h, for exe rti onal impai rments onl y, that j obs exist in t he national economy that people with those impairment s can perform. When a claimant has an addit

ional nonexerti onal impai rment, the question whether t hat impa irmen t dimin ishes h is residu al fun ctiona l capa city is fun ctiona lly the sam e as the ques tion w hethe r there a re jobs in the na tional e cono my that h e can perfo rm g iven h is com binatio n of impa irmen ts. The grids d o no t purp ort to answ er this question, and thus und er [ He ckler v . Cam pbell , 461 U.S. 458, 103 S. Ct. 1952, 76 L.Ed.2d 66 (1983) ] the practi ce of the ALJ deter mining without taki ng additi onal evidence the effect

of the nonexertionalimpairment on resi dual functional c apacity cannot stand. Id. at 270 (emp hasis a dded ). Acc ordin gly, we h eld tha t in orde r for th e Co mm issione r “to

mee t [her] b urde n of establish ing tha t there a re jobs in the n ationa l econ om y that a clai mant with exertionaland nonexertional i mpairments can perform, ” the Commissi oner is re quired t o provide “t he testimony of a

vocati onal expert or ot her si milar e vidence, such as a l earned treati se. I n the absenc e of evidence in addit ion to t he guidel ines

. . . , the1 The ALJ’s actual questi on posed to t he vocati onal expert included the addi tional nonexerti onal li mitation of a “sl ight l ack of abil ity to concent

rate, ” a li mitation that ulti matelywas not expres slyadopted bythe ALJ’s fi ndings. The fact that the vocati onal expe rt cons idered this add itional lim itation, ho we ver, do es no t amo unt to a ny prejud ice to Garcia b ecause it only served to further limit the available w ork G arcia could p erform base d up on a lim itation the AL J did n ot ultim ately ado pt. 6 Commissioner ca nnot est ablis h that t here are jobs i n the national e conomy that someone with the c laimant ’s combination of impai rments can pe rform.” Id. at 273 (emp hasis added ). While the ALJ did r ely in thi s case upon the grids in dete rmining whethe r Ga rcia is dis abled , he did so fin ding “that th e claim ant ca n per form wo rk w ithin the full range of medium work [even] wit h the non exertionallimi tati ons noted above, ” and suggeste d that Garc ia was capabl e of working as a “dr illpress oper ator, packer [or] scrap separat or.” Thi s determinati on was reached aft er the ALJ had not ed earl ier i n his opi nion that he had consulted a vocati onal expert who “stated that a man simil arlysituated t o the clai mant who was capable of perf orming medium work with the non exertional l imit ation of an inability

to do fine fingering manipulation would be able to perform jobs that exist in sig ni fic an t n um be rs i n t he na tio na l ec on om y” 1 and indic ated that such an i ndividual could perform jobs such as “a drill press operat or, a scrap separator and a packer.” Thus, the A LJ’s c onclu sion th at Ga rcia co uld p erfor m so me m edium wo rk ev en w ith his

non exe rtion al lim itatio ns w as e xpr essly b ase d up on t he te stim ony o f a v oca tion al ex per t.

Accordingly , once the ALJ determined t hat Garci a could per form medium range work given hi s exertional l imit ations , the ALJ here acted ent irel y i n accordance2 Garcia al so suggest s that the ALJ erred i n formulating his hypothetic al question for the vocation al expert to the ex tent that question assu med tha t Garcia co uld perfo rm medium w ork (as constrained by his nonexertional li mitations) because, Garcia ar gues, the rec ord d oes n ot sup port a f inding that, in ligh t of his exertio nal lim itations, h e cou ld per for m m ediu m w ork

. See Chrupcala v. Heckler , 829 F.2d 1269, 1276 (3d Cir. 1987) (“A hypothetic al question must r eflect all of a clai mant’s i mpairments that are supported by the record; otherwis e the quest ion is defici ent and the expert ’s answer t o it ca nnot be consider ed substa ntialevidence. ”). We dis agree. The report s of Drs. Sanche z and Sandler, as disc ussed infra , constitute substa ntialevidence i n support of that f inding. 7 with Sykes by se eking the experti se of a vocational e xpert t o determi ne whether an indivi dual capabl e of medium range work but pos sessi ng Garcia’s nonexerti onal limi tati ons could st

illperform jobs avail able i n signi ficant number in the nationa l economy. We therefore fi nd no Sykes violat ion. 2 Ga rcia ad ditiona lly argues th at the A LJ f ailed to prop erly credit h is testimony of pa in. “ [A claimant’ s] subj ecti ve complaint s must be subs tanti ated by medical evi dence.” Willi ams v. Sull ivan , 970 F .2d 11 78, 11 86 (3 d C ir. 1992 ); see also 20 C.F.R. §§ 404. 1529(a) and 416. 929(a) ( ALJ is to consi der “the extent to which [a clai mant’s] sympt oms [includi ng pain] ca n reasonabl y be ac cepted as consistent with t he objective medicalevidence and ot her evide nce”). Garcia has t he burden of provi ng that

me dica l evid enc e va lidat es h is su bjec tive c laim s. Wil li ams , 970 F.2d at 1186. “[T ]here must be objec tive medi cal evi dence of some condit ion that could rea sonablyproduce pain, ” but “there need not be objective evi dence of the pai n its elf. ” Green v. Schweike r , 749 F .2d 1066 , 1071 (3d Cir. 1984 ).

“O nce a n A LJ co nclud es that a med ical imp airme nt that c ould reaso nably8

cause the alle ged sy mptoms exist s, he or she must eval uate the inte nsity and per sistence of th e pa in o r symp tom , and the e xten t to w hich it aff ects the in div idu al’s a bility to w ork

. This obv iously req uires th e A LJ to determ ine the exten t to w hich a claim ant is ac curate ly stating the de gree of pai n or the extent to whic h he or she i s disabl ed by i t.” Hartranft v. Apfel , 181 F.3d 358, 362 (3d Cir. 199 9).

The ALJ here noted tha t Garcia “testifie d that hi s back hurt s so much that he can’t sit for m ore than 10 minutes. H e alleviates the pain b y standing but he c an’t stand for m ore than a f ew m inutes either.” The AL J further ack now ledged tha t Dr. Behar’s r eports contai ned complaint s of pain. The ALJ concluded, however, that “ [t]he report s of Drs. Sanche z and particularlySandler pai nt the pi cture of a man whose state d complaint s do not match t he phys ical findings .” Accordi ngly , the ALJ determined t hat there wa s insufficient ob jective med ical evidence of G arcia’s pain, and tha t Garcia’s clai ms of pain were not entirely credibl e. Garcia ar gues that

the ALJ should have c redited his t esti mony as t o pain, and should have recognized hi s medications and t he side ef

fects of t hose medications as objective evi dence of a medicalconditi on that c ould reas onably produce pai n. We have held that “[t ]estimony of s ubjective pai n . . . is entitl ed to great weight, parti cularl y when it i s support ed by compet ent medicalevidence. ” Kent v. Schwei ker , 710 F.2d 110, 115 (3d Cir. 1983) (al terat

ions omitted). Nonetheless , an ALJ may re ject a clai m of disabli ng pain where “he [has ] consi der[ed] t he subject

ive pai n and specif [ied] hi s reasons for3 We note that Garc ia has fi led multiple applications for dis abili ty benefit s over the

past 1 5 years. T he rele vant tim e spa n fo r purp oses o f the a pplica tion w e are c urren tly reviewing i s the two-year period fr om December 1995, when Garcia st opped working, through December 1997, when his appli cati on for benefi ts was deni ed. While i t is true that Garc ia rec eived benefi ts fr om sometime in 1991 until early1993, and i t is also t rue that he is cur

rentl y r eceivi ng benefit s for a period beginni ng on December 21, 1997, 9 rejec ting t

hese cla ims and [has] support[ ed] his conclusi on with medicalevidence i n the record. ” Matullo v. Bowen , 926 F.2d 240, 245 (3d Cir. 199 0).

The ALJ’s determi nations with res pect t o objective medicalevidence and Garcia’s cre dibility are supported by substantial eviden ce. The Ju ly 1996 report by D r. Sanchez rel ied upon by the ALJ indic ated that “[t ]he pati ent has not been noted t o have any pr oblems with walki ng, si tti ng, li fting, or handli ng object s or hearing, s peaking or traveling. There are no diso rders of m ental activities such as un derstanding , or mem ory loss. There [are] no problem[s] with sust ained concent rati on or persi stence [ that] have been noted. ” Dr. Sandler ’s December 1996 repor t acknowledged Garci a’s complai nts of pain, but found that muscle s trengt h was “essentiall y normal, or , at worst, 4/5 on the right side, ” and that

Garcia had a “normal range of moti on” and normal gai t. The r eport further sugg ested th at “[e ]xam ination revea ls a gen tleme n w ho w alks w ith a ca ne bu t obv iously can walk without

the cane” a nd that when Dr. Sandl er asked Garci a to do a knee bend, “[e]v en w ith my ho lding h is han ds . . . he m anag ed to f all ove r back wa rd. Fro m w hat I could see, there was abs olutel y no r eason for t his. ” Given these report s, we cannot s ay tha t the ALJ e rr ed i n re

je ct ing Garc ia ’s subj ective compl ai nt o f pai n wher e t he ALJ supporte d his concl usion with medical evi dence suggesting no basi s for that pai n. 3medical r eports from those periods of time are not helpful in dete rmining t he severi ty of his condi tion during the relevant time span. Limiti ng our revi ew to the re ports de scri bing his i mpairments between late 1995 and lat e 1997, as t he ALJ did, we cannot conc lude that the A LJ o verloo ked a ny objec tive m edica l evide nce th At w ould corro bora te or ex plain Garcia’s subjective complaints. 10

Lastly, Garcia objects to the AL J having m ade ob servations as to G arcia’s dem eano r durin g testim ony. Th e A LJ in his op inion s tated th at Ga rcia

follo we d th e en tire p roc eed ing wit hou t [ap par ent] diff icult y. [He a lso] sat for the entire hea ring, which lasted over an hour, wit hou t on ce a ppe arin g to be in any d isco mf ort w hats oev er. [A]t one point

he reached i nto his back pocket wit h his ri ght hand, took out a cloth handkerchief, unfolded it, blew his nose and care fully re fold ed it a nd r epla ced it into his b ack poc ket. All the whil e he was doing thi s with hi s right hand. As Garcia suggest s, we have hel d, on numerous occ asions, that a n “ALJ may not substi tute hi s personalreaction to [a ] Claimant ’s res ponses or phy sicalappearance for the opinion of t

he treating phy sici ans.” Gilli land v. Heckler , 786 F.2d 178, 184 (3d Cir. 198 6); see als o, e. g. , Morales v. Apf el , 225 F.3d 310, 318 (3d Cir. 2002) (“Although an ALJ may consider

his own observat

ions of the clai mant and thi s Court cannot second-gues s the ALJ’s credibil ity judgments, they alone do not carrythe dayand

ove rride the m edic al op inio n of a trea ting physi cian that i s su ppo rted by the reco rd. . . . The ALJ cannot . . . dis regard [a] medical opi nion based s olely on his own amorphous impressions , gleaned fro m the reco rd and fro m his eva luation of the c laimant’s credib ility.”) (internal alte rations and q uotatio ns om itted); Frankenfi eld v. Bowen , 861 F.2 d 40 5, 40 8 (3 d C ir. 19 88)

.11 The AL J here , how ever, d id no t disreg ard o ne m edica l opinio n bas ed so lely on his own impress ions. Inste ad, the ALJ relie d on the repor ts of Drs. Sanchez and San dler in su ppo rt of his c onc lusio ns. See Jones v. Sulli van , 954 F.2d 125, 128-29 (3d Cir. 1991) (where cla imant al leged that ALJ substi tuted hi s own lay observations of claimant’s con dition for the find ings of the treating physician, and treating ph ysician’s opin ions w ere co ntradic ted by fin ding s of tw o state a genc y physicians , AL J did n ot err in determi ning that

treat ing phy sici an’s opi nions were not control ling) . Having revi ewed the reports of D rs. Sanchez and Sa ndler, we c annot say that the A LJ’s con clusions w ere not supported by substanti al evidence in light of those reports. III. For the r easons st ated, the judgment of the Dist

rict Court willbe affirmed.