2010 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-14-2010

Becker v. Comm Social Security

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-2517

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Recommended Citation

"Becker v. Comm Social Security" (2010). 2010 Decisions. Paper 95.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 10-2517

_____________

CAROLYN BECKER, 

 Appellant

v.

COMMISSIONER OF THE

SOCIAL SECURITY ADMINISTRATION

 

_______________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. No. 2-08-cv-01873)

District Judge: Hon. Gene E.K. Pratter

_______________

Submitted Under Third Circuit LAR 34.1(a)

December 13, 2010

Before: RENDELL, JORDAN and HARDIMAN, Circuit Judges.

(Filed: December 14, 2010)

_______________

OPINION OF THE COURT

_______________

JORDAN, Circuit Judge.

Carolyn Becker appeals from an order of the United States District Court for the 

Eastern District of Pennsylvania affirming the decision of an Administrative Law Judge 
2

(“ALJ”) to deny Becker‟s claim for disability insurance benefits. For the following 

reasons, we will affirm.

I. Background

On September 1, 2005, Becker filed for benefits under Titles II and XVI of the 

Social Security Act, 42 U.S.C. §§ 401-433, 1381-1383f, based on her alleged inability to 

work since March 17, 2005. After her initial claim was denied, Becker requested a 

hearing, which was held before an ALJ on May 3, 2007. 

The administrative record sets forth Becker‟s employment and medical history. 

She was a high school graduate who had worked as a waitress, a reservation clerk, and, 

most recently, as a telephone operator. Her job as a telephone operator mostly entailed 

sitting for seven hours while responding to phone calls, with about one hour of 

intermittent standing and walking in connection with routine office tasks like retrieving 

faxes. During the five years that she worked as a telephone operator, Becker reported 

frequently missing work because of difficulty with sitting or standing for long periods of 

time. Becker was laid off from that job in March 2005. 

In April 2005, Becker had her knees x-rayed, which revealed mild to moderate 

osteoarthritis in both knees. Later in April 2005, after complaining of difficulty with

prolonged standing and walking, Becker was found to have a cartilage click and medial 

joint line pain in her right knee. A subsequent MRI of Becker‟s right knee in May 2005 
3

showed severe degenerative changes and evidence of chondromalacia involving the 

patella.1 

In June 2005, Becker was evaluated by Dr. Randall Smith, an orthopedic surgeon. 

Becker complained to Dr. Smith of pain in both her knees and lower back, and Dr. Smith 

noted that Becker‟s right knee was swollen and was painful and noisy during joint 

movement. Dr. Smith also reviewed Becker‟s x-ray and MRI studies and noted in the 

right knee the same extensive degenerative changes and chondromalacia that had been 

observed before, along with milder versions of the same conditions in Becker‟s left knee. 

In a post-evaluation letter to Becker‟s primary care physician, Dr. Melanio Aguire, Dr. 

Smith described Becker as “very active, working, caring for her 6-year-old child, and so 

forth” and recommended that Becker exercise, lose weight, and “find a sit-down type 

job.” (App. 2 at 18, 125, 239, 240.) Dr. Smith also suggested that Becker might benefit 

from knee joint injections or arthroscopic knee surgery, though he thought that simpler 

means like pain medication and supportive knee braces would enable Becker to function 

at a “decent” level. (App. 2 at 125, 240.) 

The next month, in July 2005, Becker had follow-up examinations with Dr. Smith, 

during which she reported that she had been working on her feet and experiencing pain in 

her lower back, knees, and feet, none of which was relieved by the medication she had 

 

1

“Chondromalacia patella is the softening and breaking of the tissue (cartilage) 

that lines the underside of the kneecap (patella).” Medline Plus, A service of the U.S. 

National Library of Medicine and National Institutes of Health, 

http://www.nlm.nih.gov/medlineplus/ency/article/000452.htm (last visited Nov. 19, 

2010).
4

been taking. Dr. Smith performed knee injections, encouraged Becker to exercise and 

lose weight, prescribed Oxycontin and Percocet for the pain, and suggested that Becker 

have arthroscopic surgery on her right knee if the pain continued. Dr. Smith also noted 

that Becker should be able to perform “limited duty” work. 

In August 2005, Becker had MRIs on her back and left knee. The back MRI 

revealed a small annular disc bulge and central disc protrusion but no lateral disc 

herniation. The left knee MRI revealed mild chondromalacia and a small cyst but no 

internal derangement of the knee joint or signs of a ligament or meniscus tear. 

Another month later, in September 2005, Dr. Smith found that Becker was still 

suffering from chrondomalacia of the knees, with swelling and noisy joint movement, but 

noted that Becker had “decent” range of motion and good stability in her knees. (App. 2 

at 226.) He also noted that the pain control regimen of Oxycontin and Percocet was 

helping. Dr. Smith nevertheless concluded that Becker should perform “no work” for an 

unspecified period. Having learned of Becker‟s condition from Dr. Smith, Dr. Aguire 

completed a form certifying that Becker was eligible for public welfare benefits due to 

temporary incapacity resulting from her knee problems. 

In mid-October 2005, Dr. Aguire reported to the Social Security Administration 

that Becker exhibited full motor power and normal range of motion in her arms and legs

and no symptoms of any emotional or cognitive disorders. Becker herself reported to the 

Social Security Administration that she had given up bike riding, jogging, aerobics, and 

basketball but that she could still do household chores such as laundry, dishes, and light 

cleaning. While noting that knee pain required her to change positions frequently from 
5

sitting to standing, Becker also reported being able to climb a flight of stairs four or five 

times per day, walk two blocks, and lift 10 pounds. 

Around that same time, Dr. Smith reported to Dr. Aguire that Becker was still 

experiencing pain in her knees and back and was also suffering from cramps in her calves 

that disrupted her sleep. Dr. Smith further reported that Becker had painful range of 

motion in both of her knees and great difficulty in ambulation. Dr. Smith indicated that 

he had completed social security paperwork for Becker, having concluded that, in her 

then-condition, Becker “obviously [could] not be working.” (App. 2 at 222.) 

In late-October 2005, Dr. Yasser Gouda examined Becker‟s knees, calves, and 

feet. During Dr. Gouda‟s examination, Becker demonstrated normal leg muscle strength 

and was able to ambulate without any assistive device and to do toe-walking, heelwalking, and squatting without limitations. 

In November 2005, Dr. Smith reported to Dr. Aguire that he was going to 

prescribe anti-depressants for Becker, and he recommended that she receive counseling to 

deal with her chronic pain. Dr. Smith also shared that, while he believed that exercise, 

weight loss, and medication could be somewhat helpful, he did not think that Becker 

would be able to return to work, then or in the future, and that, due to her chronic back 

and leg problems, she would “have to be careful about her activity levels.” (App. 2 at 

210.) 

In December 2005, a state physician reviewed Becker‟s medical records, including 

Becker‟s MRI studies and the report from Dr. Aguire, along with Becker‟s reported daily 

functionality. From that review, the physician concluded that Becker could lift no more 
6

than 20 pounds occasionally and less than 10 pounds frequently; stand and walk for at 

least two hours in an eight-hour day; and sit for about six hours in an eight-hour day. 

In March 2006, Dr. Smith reported to Dr. Aguire that Becker‟s previouslydiagnosed conditions were still causing her pain in her knees and back. Dr. Smith noted, 

however, that the pain medication, used in conjunction with knee braces and a walking 

exercise program, seemed to be working and that Becker still had “decent range of 

motion and good stability” in her knees. (App. 2 at 197.) Dr. Smith noted similar 

findings in June and September 2006, describing the pain medication as “improving and

stabilizing overall activity levels,” even though Becker‟s physical condition was 

“unchanged.” (App. 2 at 184.) 

In August 2006, Becker met with mental health professionals. She reported that 

she had started to feel depressed three months earlier and anxious about one year earlier. 

She acknowledged that anti-depressant and anti-anxiety medication prescribed by 

Dr. Aguire had helped her. Becker denied experiencing any symptoms of depression or 

anxiety at that time and, despite being intermittently tearful during the meeting, her affect 

was full and appropriate. She was diagnosed at that time with major depressive disorder, 

single episode, in partial remission, with her psychological functioning rated as only 

moderately impaired.2 The psychiatrist who conducted Becker‟s initial evaluation, 

 

2 Becker was assessed using the Global Assessment of Functioning (“GAF”) and 

received a score of 60. A GAF score from 51 to 60 indicates moderate symptoms (e.g., 

flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in 

social, occupational, or school functioning (e.g., few friends, conflicts with peers or 

coworkers). 
7

Dr. Neal Gansheroff, prescribed anti-depressant and anti-anxiety medications. It does not 

appear that Dr. Gansheroff modified those prescriptions during the course of Becker‟s 

treatment. 

Becker had a follow-up visit with Dr. Gansheroff in September 2006. He reported 

that Becker exhibited mild anxiety and some tearfulness but otherwise had a full affect 

and situationally-appropriate emotions, with judgment, insight, and memory intact. He 

diagnosed Becker with major depressive disorder, generalized anxiety disorder, and posttraumatic stress disorder, and again rated Becker‟s psychological functioning as only 

moderately impaired.3 

In December 2006, Dr. Smith and Dr. Gansheroff responded to interrogatories 

from Becker in connection with her disability claim, with Dr. Gansheroff also providing a 

medical source statement rating Becker‟s impairment under the Social Security 

Administration‟s listing for affective disorders.

4

 Noting chronic pain in Becker‟s knees 

and lumbar spine, Dr. Smith opined that Becker could sit with her knees bent at a 90 

degree angle for 30 minutes at a time for a total of two hours and could stand for 30 

minutes at a time for a total of 30 to 60 minutes in an eight-hour day without severe pain. 

Dr. Smith estimated that Becker could lift and carry 10 pounds several times an hour 

throughout the course of an eight-hour day but noted that prolonged standing, walking, or 

 

3 Becker‟s GAF score from that examination was 55. 

4

The interrogatories concerning Becker‟s mental condition were directed to 

Dr. Gansheroff and therapist Jennifer Cummings, who identified herself as a student 

intern. For brevity‟s sake, we treat the interrogatories and the responses thereto as being 

directed to and answered by Dr. Gansheroff. We likewise treat the medical source 

statement as being created by Dr. Gansheroff. 
8

sitting would cause moderate to severe pain. He concluded that Becker would be likely 

to miss more than two days per month at a simple, unskilled, sedentary job and opined 

that Becker‟s prognosis for improvement was poor. 

Dr. Gansheroff indicated in his response to the interrogatories that Becker reported 

being slightly better in December 2006 than she was in April 2005 after the loss of her 

job but that she nevertheless met four of the criteria for a manic syndrome diagnosis. He 

also indicated that Becker would be likely to miss more than two days per month at a 

simple unskilled sedentary job and that her prognosis for improvement was uncertain. In 

the medical source statement, Dr. Gansheroff checked boxes indicating that Becker was 

“Markedly Limited”5in various areas affecting her ability to work, including 

remembering locations and work-like procedures; understanding and remembering 

detailed instructions; maintaining attention and concentration for extended periods; 

interacting appropriately with the general public; traveling to unfamiliar places or using 

public transportation; and setting realistic goals or making plans independent of others. 

Dr. Gansheroff further opined that Becker had a substantial loss of ability to understand, 

remember, and carry out simple instructions; to respond appropriately to supervision, 

coworkers, and usual work situations; and to deal with changes in the routine work 

 

5

The medical source statement defines “Markedly Limited” as “[a]n impairment 

which precludes the individual‟s ability to function independently, appropriately, and 

effectively in the designated area on a regular and sustained basis, i.e., 8 hours a day, 5 

days a week, or an equivalent work schedule.” (App. 2 at 258.) “Moderately Limited” is 

defined as “[a]n impairment which seriously interferes with, and in combination with one 

or more other restrictions assessed, may preclude the individual‟s ability to perform the 

designated activity on a regular and sustained basis, i.e., 8 hours a day, for 5 days a week, 

or an equivalent work schedule.” (Id.)
9

setting. He indicated that Becker had had, or could at least be expected to have, those 

limitations for 12 continuous months. 

At the May 3, 2007 hearing before the ALJ, Becker testified that her daily 

activities were limited to house cleaning. She indicated that she could walk two blocks, 

stand for 30-60 minutes, sit for 30 minutes, and lift 8-10 pounds but that she needed to lie

down periodically throughout the day. 

Also at the hearing, the ALJ asked a vocational expert to testify regarding the 

work prospects of a hypothetical person resembling Becker. The hypothetical person was 

between 39 and 41 years old; had a high school education; had worked as waitress, 

reservation clerk, and telephone operator; could do no more than sedentary work; 

required occasional postural changes; and needed to avoid crawling, kneeling, and 

temperature extremes. The vocational expert testified that there were hundreds of jobs 

regionally and thousands of jobs nationally that the hypothetical person could perform. 

That held true, the vocational expert said, even if it was assumed that the hypothetical 

person required a job that allowed for a sit/stand option; had a low stress work-setting; 

featured routine, repetitive tasks; and required understanding, remembering, and 

following only simple instructions. 

After considering the foregoing, the ALJ denied Becker‟s claim on May 21, 2007. 

Working through the five-step regulatory analysis,6the ALJ found that Becker had not 

 

6 At step one, the ALJ considers whether the claimant is engaged in substantial 

gainful activity. If so, the claimant is not disabled, and the inquiry ends. At step two, the 

ALJ considers whether the claimant suffers from a severe medical impairment. If not, the 

claimant is not disabled, and the inquiry ends. At step three, the ALJ considers whether 
10

engaged in substantial gainful activity since her alleged onset date and that she had 

impairments, including bilateral degenerative joint disease/chondromalacia 

patella/arthritis, degenerative disc disease in her lumbar spine, obesity, depression, and 

anxiety. However, the ALJ also found that Becker‟s impairments were not equivalent to 

those listed under the regulations; that her residual functional capacity of being able, with 

periodic breaks, to walk, sit, stand, and lift 10 pounds enabled her to perform sedentary 

work with occasional postural changes; and that jobs of that kind were available in the 

regional and national economy. In reaching that conclusion, the ALJ noted that 

Dr. Gansheroff‟s assessing of Becker as “Markedly Limited” was neither explained nor 

supported by the treatment records, which indicated that Becker‟s psychological 

impairments were only moderate. The ALJ further noted that the pain medications had 

helped Becker without any material side effects and that she still was able to perform 

tasks requiring limited sitting, standing, and walking. The ALJ gave only limited weight 

to Dr. Smith‟s interrogatory responses, reasoning that they were not supported by his 

treatment records. Becker‟s request for further review was denied on March 27, 2008. 

 

the impairment is equivalent to those listed in 20 C.F.R. Part 404, subpart P, Appendix 1. 

If it is, the claimant is considered presumptively disabled, and the inquiry ends. If not, 

the inquiry moves on to step four. At step four, after assessing the claimant‟s residual 

functional capacity (“RFC”), the ALJ considers whether that RFC enables the claimant to 

perform past relevant work. If it does, the claimant is not disabled, and the inquiry ends. 

Finally, at step five, the ALJ considers whether, based on the claimant‟s RFC, age, 

education, and work experience, there is sufficient work available in the national 

economy. If so, the claimant is not disabled. Otherwise, the claimant is disabled. 20 

C.F.R. ' 404.1520(a)(4).
11

On April 21, 2008, Becker sought review in the District Court. The District Court 

assigned the matter to a magistrate judge, who issued a report and recommendation in 

January 2009, recommending that the ALJ‟s decision be affirmed. On July 17, 2009, the 

District Court adopted in part and rejected in part the report and recommendation and 

referred the matter back to the magistrate judge for further consideration of Dr. Smith‟s 

assessments and conclusions regarding Becker‟s functional limitations. After considering 

Dr. Smith‟s assessments and conclusions, the magistrate judge concluded that they were 

too inconsistent to be “afforded controlling weight” (App. 1 at 50) and issued a 

supplemental report and recommendation again recommending that the ALJ‟s decision be 

affirmed. On March 22, 2010, the District Court approved and adopted the supplemental 

report and recommendation and ordered the case closed. 

Becker timely appealed. 

II. Discussion7

When reviewing a District Court‟s affirmance of an ALJ‟s denial of benefits, we 

exercise plenary review of the District Court‟s legal decisions. Allen v. Barnhart, 417 

F.3d 396, 397 (3d Cir. 2005). Like the District Court, we review the ALJ‟s factual 

findings only to determine if they are supported by substantial evidence. Plummer v. 

Apfel, 186 F.3d 422, 427 (3d Cir. 1999). Substantial evidence is defined as “more than a 

mere scintilla. It means such relevant evidence as a reasonable mind might accept as 

 

7

The District Court had jurisdiction to review the Social Security Administration=s 

decision pursuant to 42 U.S.C. § 405(g), and we have jurisdiction pursuant to 28 U.S.C. 

§ 1291. 
12

adequate.” Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir. 1995) (quoting Richardson v. 

Perales, 402 U.S. 389, 401 (1971) (internal quotation marks omitted)). To ensure 

meaningful review, the ALJ must discuss “the evidence he considered which supports the 

result” and “the evidence which was rejected,” Cotter v. Harris, 642 F.2d 700, 705 (3d 

Cir. 1981), and should give his reasons for accepting only some evidence while rejecting 

other evidence, see id. (noting that the ALJ should “explain[] the weight he has given to 

obviously probative exhibits”). Where the ALJ‟s findings of fact are supported by 

substantial evidence, a court is bound by those findings, even if the court would have 

decided the factual inquiry differently. Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 

1999). The court looks at the whole record in making such determination. See Smith v. 

Califano, 637 F.2d 968, 970 (3d Cir. 1981) (noting that the court “must scrutinize the 

record as a whole”).

Becker‟s principal contention on appeal is that the ALJ‟s decision was not 

supported by substantial evidence because the ALJ improperly rejected the opinions of 

Dr. Smith and Dr. Gansheroff regarding Becker‟s residual functional capacity.8 We 

disagree.

“A cardinal principle guiding disability determinations is that the ALJ accord 

treating physicians‟ reports great weight, especially „when their opinions reflect expert 

judgment based on continuing observation of the patient‟s condition over a prolonged 

 

8 Becker also argues that the District Court erred by affirming the ALJ‟s decision 

based on facts that the ALJ did not cite and that, when viewed as part of the whole 

record, did not amount to substantial evidence. We need not address that argument, 

however, because we are independently reviewing the ALJ‟s decision. 
13

period of time.‟” Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000) (quoting Plummer 

v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999)). However, “where ... the opinion of a 

treating physician conflicts with that of a non-treating, non-examining physician, the ALJ 

may choose whom to credit” and may reject the treating physician‟s assessment if such 

rejection is based on contradictory medical evidence. Id. Similarly, under 20 C.F.R. 

§ 416.927(d)(2), the opinion of a treating physician is to be given controlling weight only 

when it is well-supported by medical evidence and is consistent with other evidence in 

the record. 

Here, the ALJ rejected Dr. Gansheroff‟s opinion of marked limitation because it 

contradicted his own treatment records, which indicated Becker‟s mental limitations as 

only moderate. Likewise, the ALJ rejected Dr. Smith‟s interrogatory responses and 

conclusions regarding Becker‟s ability to work because they contradicted his own 

treatment records, which indicated that Becker had responded positively to medication 

and treatment and could sit, stand, walk, and lift to some degree. Dr. Smith‟s 

interrogatory responses were also contradicted by Dr. Gouda, Dr. Aguire, and even 

Becker herself, all of whom either documented or testified that Becker was able to 

ambulate and perform various light activities for periods of time without severe pain. 

Thus, the ALJ could properly reject parts of the opinions of Dr. Smith and 

Dr. Gansheroff. 

We also conclude that the ALJ‟s decision regarding residual functional capacity is 

supported by substantial evidence. The physicians‟ treatment records, along with 

Becker‟s own statements, indicate that medication had stabilized and improved Becker‟s 
14

overall activity levels and that, with periodic breaks, she could sit, stand, and walk and 

could lift and carry 10 pounds. The ALJ did not err, then, in finding that Becker had the 

residual functional capacity to perform sedentary work.

9

 

III. Conclusion

For the foregoing reasons, we will affirm the District Court‟s order upholding the 

ALJ‟s decision denying Becker‟s claim for disability insurance benefits.

 

9 Becker does not challenge the other aspects of the ALJ‟s decision.