2004 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 11-16-2004 

# M o o dy 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 . 03-3246

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w . v i l l a no va . e du/thir dc ir c uit_2004/133NOT PRE CEDENT IAL UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT No. 03-3246 DARRELL L. MOODY

v. JO ANNE B. BARNHART, COMMISSI ONER D ar re ll M oo dy,

Appellant Ap peal f rom the U nited S tates D istrict Co urt for the Easte rn D istrict of P enns ylvania (Civ. No. 02- cv-08972) Distri ct Judge: Clarence C. Newcomer Submitte d Under Third Circ uit LAR 34.1(a)

June 22, 2004 Before: Nyga ard, McKee and Chertoff

Circuit Judges (Opinion fi led: November 16, 2004)

OPI NION M cK ee, Circuit

Judge
. Darrel Moody appeals hi s denialof Disabil ity Insuranc e Benefits (“DIB”) under Ti tl e I I o f the Soc ia l S ec ur it y Act , 4 2 U. S. C. § § 4 01- 433 . F orth e r ea so ns th at fo ll ow, we wil l a ffi rm.
I.2

Moody file d applic ations with the Soci al Securi ty Administr ation f or Supplementa l Security I ncome benefit s and Disabi lit y I nsurance Benefi ts cl aiming both mental and physi cal di sabil iti es as of Apri l 10, 2000. When the agency denied hi s appli cati on, he file d for an admini strative he aring. After heari ng testimony from a vocationalexpert and a non-treati ng physi cian, the admini strative l aw judge determined that Moody was not disa bled und er 2 0 C .F.R . § 404 .152 0(f ). (R . 8). The ALJ’s decisi on became the fi nal agencydecisi on of the Commissi oner when the A ppe als C oun cil fo und no b asis f or re view ing it. Sims v. Apf el , 530 U.S. 103, 106- 107 (20 00), 20 C.F.R. § § 404. 981, .900( a)(4) -(5). Thereafter , the dist rict court gr anted the Com missioner’s m otion for sum mary judgm ent thereby conclu ding that the A LJ’s decisi on was supported by substant ial e vidence. This appealfollowed. We have juris dicti on under 28 U.S.C. § 1291. We must determine if t he dist rict court was cor

rect i n concludi ng that t he Commissioner’ s decis ion was supported by “sub stantial e viden ce.” S ubsta ntial ev idenc e is that a prop erly reason ing p erson wo uld accept as sufficient t o support a conclusion. It i s more than a scintill a, but somewhat less than a pr epo nde ran ce o f the evid enc e. Ginsburg v. Richardson , 436 F.2d 1146, 1148 (3d Cir . 197 1).

II. “Disability ” is defined as:1 “Sev ere im pairm ent” is d efine d as a ny impa irmen t or com binatio n of impa irmen ts

which significantly limits an individual’s physical or m ental ability to do basic wo rk activities. 20 C.F.R. § 4 04.1520 (c). 3

inabil ity to engage i n any s ubstantial gainful a ctivi ty by reason of any

medicall y determinabl e phys ical or mental impairment

which can be expect ed to res ult i n death or whic h has las ted or can be expected to last for a continuous period of not less t han 12 m ont hs. 42 U.S.C. § 423 (d)(1)(A). In order to be eligibl e for disabili ty benefit s, a clai mant must show that their:

physi cal or ment al impai rment or i mpairments are of such severity

that he is not

only unable t o do his pre vious work but cann ot, considering h is age, educa tion, and w ork experie nce, engage i n any ot her kind of s ubstantial gainful wo rk w hich exis ts in th e na tion al ec ono my . . . 42 U .S.C. § 423 (d)(2)(A).

A f ive- step ana lysis is u sed to d eterm ine d isab ility. Plummer v. Apfel , 186 F.3d 422, 428 (3d Cir . 1999), 20 C.F.R. § 404. 1520(a)( 4). I n Step 1, t he Commissioner determi nes whether t

he clai mant is cur

rentl y engage d in subst antia l gainf ul activit y. If the claimant is notinvolved i n such acti vity , the Commissioner cont inues t o Step 2 and determi nes if t

he clai mant suffer s from a sever e imp airm ent. 1 If the c laimant does, t he Comm issioner willthen evaluate the impairment at Step 3 to see i f it equals or exceeds a lis ted impai rment in Appendi x 1 of the Regulat ions. If the c laimant ’s impai rments are not

com parab le to tho se listed in the R egula tions, the Co mm issione r will go on to Step 4 to2 In order for a cl aimant t o be enti tled to DIB, he/she must show that hi s impairment became disabl ing pri or to hi s last insure d date. 42 U.S.C. § 423(a )(1)( A), (c) (1)(B), 20 C.F.R. § 4 04.101(a ), .131(a) (2001 ). 4 determi ne if the clai mant is capable of performing his /her pas t rel evant work (“residual functi onal capaci ty ”) consi dering t he impairment. I f the cl aimant i s deemed notcapa ble of performi ng his/

her past work, the Commissi oner moves on to Step 5 to det ermine i f the clai mant is capable of performing othe r avail able work consi stent with the c laimant ’s age,

me dica l imp airm ents , resid ual f unc tion al ca pac ity and pas t wo rk e xpe rien ce. The ALJ found that Moody had two severe phys ical impairment s but no mental impairment

at Step 2 of

the proce ss. Moody’ s impair ments were not c ontaine d in any listings at Step 3, but the AL J determined that Moody could not perform any of his past relevant work at Step 4. At Ste p 5 the ALJ concluded t hat Moody was capabl e of performing s ustai ned work as a data entryworker and cust omer servi ce worker and was theref ore not be di sabled. III. Moody was 48 year s old on June 30, 2000, the date he was l ast i nsured. 2 He was hon orab ly discharg ed fro m the marin es afte r servin g fro m 1 970 to 19 74. F ollow ing h is discharge, M oody held va rious positions includ ing telephon e operator, a state store clerk for the Pen nsylvan ia Liq uor C ontro l Boa rd, and a part tim e assista nt in the Philad elphia Comm unity Coll ege computer lab. He received an associates degree in business programming i n 1992. Immediatelyprior to his disabi lit

y cl aim he was a part

time stock5

clerk f or Eckerd Drugs where he l ifte d boxes and occasi onally mopped. He stopped working after he developed severe pain in his lower back and left leg. Moody also has a history of drug an d alcoho l abuse. (R. 16 0). A. Phy sical impa irmen ts Moody was first

seen for hi s back and le g pain at a hospit al emergency

room on April 10, 2001. A couple of weeks l ater, he was seen by his pri mary care phy sici an, Ant one tte Kr uc, D.O. , wh o pr es cr ib ed Vo lt ar en, Zy don e, andSoma . A s ubs equ ent MRI of Moody’s l umbar and thora cic spi ne showed a “lar ge paramidl ine herni ated nucl eus pulposus ( ruptur ed or prol apsed intervete bral di sk) at L5-S1 and a small disc bul ge at L4- L5
. Moody applie d for dis abili ty benefit s on July 28, 2000 al leging di sabil ity as of April 14, 2000. On October 31, 2000 Pushpa Thakarar M.D., a state agency consulting physi cian, examined Moody. Dr. Thakarar found t hat Moody had a ful l range of motion, and good sitting and s tanding ba lance, but diagnos ed him with chr onic low back pai n, hist ory of sciat

ica and post -tr aumatic s tres s disor der. Dr. Thakarar concluded on a Medical Source St atement of Cl aimant’ s Abili ty to Perform Work Related Phys ical Activit ies t hat Moody coul d frequent ly lift , and occas ionall y car ry , 20 pounds. The doctor also concluded that Moody could stand and walk for 3-4 hou rs and sit for 8 hours, had limited ab ilityto push an d pull in the low er extremities, and co uld frequ ently perform postural activities, but should avoid hu midity and w etness. (R. 171 -173).3 Subseq uent me dical records fro m O ctober 25, 20 01 to the A pril 2002 he aring are

missi ng (Appellant ’s Br. 8) and were not part of t he record. 6 In May, 2001, Moody was diagnosed with diabet es melli tus, aspir ation pne umonia, hypertensi on and bipolar disorder duri ng a hospit aliz ation. (R. 210). He also tes ted positive for opi ates, and was relea sed on June 7 for acute r ehabil itat

ion. When rel eased, M ood y was in structed abou t long-te rm ca re of h is diabe tes and told to f ollow up f or his blood p ressure. (R. 265 ). 3

B. Mental Health History According to hi s disabi lit y r eport, Moody was treated for depres sion at The Wedge two and a half y ears before he appli ed for dis abili ty benefit s. ( R. 117). On Jul y 27, 2000 during a vi sit

to his primary

care phy sici an, Dr. Kruc, Moody report ed that he was depr essed , anxio us an d had hom icidal tho ugh ts. Dr. K ruc p rescrib ed Z oloft a nd X anax to treat pos t trau ma tic stre ss d isord er. (R . 151 ). Charles J ohnson, a s tate agency psyc hologis t, e valuat ed Moody on October 25, 2000 and diagnosed hi m as having an Adjustment Disorder with depres sed mood and Impulse Contr ol Disorde r (provi sional ). I n an acti viti es asses sment, Dr. Johnson noted that Mo ody had fair ab ilityto perform most w ork related activities. Acc ording to D r. Johnson, Moody had poor or no abil ity

to interact

with supervisors , dealwith work rel ated stress, or understand , remem ber, and carry out co mplex jo b instructions. (R. 16 3-64).7

Roger K. Fretz, Ph.D, a st ate agency psyc hologis t, c ompleted a Psy chiatric Revi ew Technique Form on November 20, 2000. Dr. Fret z found that Moody had an adjust

ment disorder with depressed mood (R. 176), and noted his historyof post traumatic stress disorder. (R. 178). When rating Moody’s functional li mitations in l ight of these disorde rs, he concluded Moody had mi ld res tri ction of “acti viti es of dail y l iving” and moderate di fficul ties in maint aining s ocial functi on and concentr ating. However, none of these l imit ations sati sfied t he functi onal cri teri on. (R. 183) . Dr. Fr etz not ed that many of M ood y’s co nce rns w ere p hysica l and con clud ed th at M ood y wa s no t “w hol ly cred ible.” (R. 186). D r. Fretz did not ag ree with D r. Johnson’s c onclusions regarding M oody’s limi tati ons (his abili ty to handle authori ty and work stre sses) : Dr. Fr etz concl uded that “the record d oes not sup port a severe lim itation of func tion in these areas.” (R . 189). Moody began tre atment i n January2001. Dr. Leon Robins on completed an i niti al evalu ation o f M ood y and dia gno sed a bi-po lar diso rder an d an a void ant pe rsona lity disorde r (R. 208) . Dr. Robins on stated that Moody descri bed sy mptoms that met the descri ption of mani a and major depression. (R. 204-205) . He prescribed three different medica tions. The do sage w as adjusted thro ughou t the year.

C. Administ rati ve Heari ng Testi mony At Moody’s admini strative he aring, Richard W. Cohen, M.D. te sti fied as a n indepen dent me dical advisor b ased on his review of the m edical eviden ce in M oody’s medical records. Dr. Cohen testifie d that Moody di d not have anysevere ment al8

impa irmen ts. (R. 65 ). Spe cifically, D r. Coh en co nclud ed tha t:

• he could not

diagnose bi polar di sorder be cause the re was insuf fici ent evidence of ma nic episode s and m ajor depression . (R. 55,60);

• the evi dence of ir rit abili ty could be caus ed by t he medicati ons that

Moody was tak ing. (R. 55, 58 , 59);

• he also coul d not diagnos e a major affe ctive disorde r, periodic e xplosi ve disorde r, pos t tr aumatic s tres s disor der (no symptoms) or par anoia. (R. 56, 62);

• an adjustment disorder is not an axi s one psy chiatric di agnosis; there i s no place to pu t it on the disability form. (R. 56, 58);

• Mo ody has no m arked fu nctional limitations (R. 59 ) A vocationalexpert a lso t esti fied and concluded that Moody’s ski lls would be tran sfe rab le to s ede ntar y posi tion s su ch a s da ta en try or c usto me r serv ice. IV. DIS CUSS ION Moody assert s that : 1) t here is insuffi cient

evidence t o support t

he ALJ’s findi ng of no mental i mpairment at Step 2; 2) the ALJ erred i n assess ing the medi cal and test amentaryevidence; 3) the ALJ err ed in ass essing Moody’ s resi dual functional capacity; and 4) the Commissi oner did not meet the bur den of proof at Step 5 of the sequenti al eval uation process. We disagree. The ALJ did not conclude that Moody ha d a mental i mpairment because she was rely ing on Dr. Cohen’s evaluation of the Moody’s medicalrecords . Dr. Cohen t esti fied that af ter eva luating the m edica l evide nce, h e cou ld no t diagnose any categ orically recognize d severe m ental impairm ent. The A LJ con sidered the “d iagnoses” of M oody’s treati ng physicians ci ted in his bri ef (App. Br. 21-22), but she dismissed them because they we re no t supp orted b y sufficie nt evid ence of a m ental im pairm ent.9

Moody also as sert s that the ALJ erred at Step 2 of t he sequenti al eval uation process be cause she did not prop erly evaluate the med ical evidence , including M oody’s sympt oms and the li miti ng effects of his i mpairments . However, the absence of an exha ustive listin g of all of M ood y’s symptom s in the A LJ’s o pinion does not co nstitute

revers ible e rror. The regulation that Moody himself c ites states that “[a] phy sicalor mental impairment must be established by medicalevidence consisting of signs, symp tom s, an d lab ora tory fin din gs, not only your statement of symptoms. 20 C .F.R . § 404.1508 (emphasi s added). The ALJ relied on t he Dr. Cohen’s evaluation of the medical evidence, includi ng Moody’s sy mptoms. Dr. Cohen concluded that there were no marked fun ctiona l limitation s (R. 5 9), and that som e of M ood y’s symptom s we re likely attrib utab le to h is pre scrib ed m edic ation s. (R . 55)
. Moo dy cites Bailey v. Sulli van, 885 F.2d 52 (3d Cir . 1989), for the pr oposition that a clai mant need only

make a d e m inim is showing of a sever e impairment at St ep 2 of the sequential evaluati on. 885 F.2d at 57. How ever, the language Moody relies upon is dicta. Moreover, even i f it were not, we would stillfind that Moody fai led to s atis fy hi s burden. M ood y also arg ues th at the A LJ sh ould have cons idered the co mb ination of h is impairment s to fi nd a severe ment al impai rment. Applicabl e regulations and case l aw cite d by Moody r efers t o the det ermination of the resi dual functional c apacity at Step 4 of the seq uentia l evalu ation p roces s, and not to th e find ing o f a sev ere im pairm ent. Moody next ass erts that t he ALJ did not properly assess the medicaland10

testamentaryevidence. How ever, the record suggests ot herwise. The AL J did refer to Moody’s weeklytherapy sessi ons and to hi s prescribed medicat ions, (R. 21), and she did describe find ings from some o f M oody’s treating source s (the Con sortium and Dr. John son) in her o pinion . (R. 20 ). The rema ining s ourc es that M ood y lists to supp ort his contention that

the ALJ “fail ed to dis cuss, ”(Appellant’s brief 30-32) , is not the t ype of “objective medicalevidence” t hat was dis cussed i n Burnett v. Comm issioner, 220 F.3d 112, 122-23. There, t

he ALJ neglected to include the appropriate diagnoses . We agree that t he ALJ could have been more expl icit regardi ng Moody’s treati ng physi cian. She merelystated: “I ha ve considered Dr. Johnson’ s asses sment but Ido not accor d it much weight. ” (R. 20). Neverthel ess, we do not engage in de novo review and th ere is substant ial e vidence t o support he r conclus ion. Moody also as sert s that the ALJ did not properlyweigh and conside r his ment al health treatm ent an d she shou ld no t have relied u pon Dr. C ohen . Ho we ver, the AL J did not err in rel yi ng upon Dr. Cohen’s prof essiona l opini on. Although i t is true t hat treati ng physi cians are general ly given more weight , an ALJ is not forecl osed from rel yi ng upon a non-examini ng physi cian’s opinion. 20 C.F.R. § 404. 1527(d). The Regulati ons all ow the ALJ to relyupon medical opi nions and spe cifi call y pr ovide that “al l evide nce from nonexamining sources [is ] opini on evidence. ” 20 C.F.R. § 404. 1527(f). Moody cite s M orale s v. Ap

fel for the pr oposition that “[a] si ngle pie ce of evidencewill not sati sfy the substant iali ty test if the [Commissioner] ignores , or fai ls t o resol ve, a confl ict c reate d by11

coun terveilin g evid ence .” 225 F.3d at 317 (3d C ir. 2000 ). Ho we ver, M ood y fails to reali ze that

there was a c ontradi ction among his t reati ng sources (speci fical ly Dr. Johnson and D r. Fretz), and the A LJ hea rd and ac cepted D r. Cohen ’s evaluation o f M oody’s

me dica l reco rd. Apfelalso st ates: “[w]here . . . t he opinion of

a treating phy sici an conflicts with that

of a non-treating, non-examining physi cian, the ALJ may choose whom to credit

but “cannot

rejec t evide nce for no rea son or for t he wrong reason. ” Id. Here, theALJ did not rej ect Moody’s treat ing sourc es for no r eason or the wrong reason as was the cas e in Apfe l wh ere th e A LJ r elied on h er o wn per cep tion s of the c laim ant. Inste ad the ALJ here r elie d upon Dr. Cohen’s opi nion. Dr. Cohen’s opini on considered the “pertinent

evidence” i ncluding opi nions of Moody’ s tre ating phy sici an as well a s other e xam ining s ourc es. 20 C.F .R. § 4 04.15 27(d )(3). In f act, D r. Coh en sp ecifica lly refe rred to su ppo rting info rma tion in M ood y’s me dica l file d urin g hi s test imo ny. Moody next argue s that the ALJ should have c ontact ed Moody’s treati ng psy chi atri st , Dr . Rob ins on. We dis agr ee. 20 C. F.R. § 404. 1512( e)( 1) s ta te s that an ALJ should cont act a medic al sour ce when their report “contai ns a confli ct or ambi guity that must be res olved, ” or when “the r eport does not contain allthe neces saryinformation.” This is not the c ase here be cause the re was suffi cient evidence i n the medicalrecords for the A LJ t o m ake her dec ision
. Moody also as sert s that the ALJ erred i n Step 4 of the sequenti al eval uation process and the res idual f unctiona l capaci ty finding. Specifi call y, Moody argues that the4 Sed entary w ork in volv es lifting no m ore tha n 10 pou nds a t a time a nd o ccasio nally

lifting or carrying articles like docket files, ledgers, an d small tools. A lthough a se dentary job is d efine d as o ne w hich in volv es sitting, a certain amo unt o f w alking and s tandin g is often nec essary in carrying out job duties. 20 C .F.R. §§ 40 4.1567(a ) and 41 6.967(a). 12 re sid ua l fu nc tio na l ca pa cit y th at t he A LJ ad op ted w as im pr op er be ca us e it w as m ad e b y a non-phy sici an (nonexamini ng disabi lit y cl aim adjudi cator) , and i t deviated from the residual func tional capacity comp leted by the state agency treating ph ysician Dr. Thakarar. We again disagree. The AL J con clude d that, b ased on h is residu al fun ctiona l capa city, Mo ody cou ld not perfo rm his past relev ant wo rk. Mo ody could, how ever, perform some se dentary work 4 given his vocati onal profi le and the avail abili ty of sedentary jobs i n the national and local job market. In fa ct, the AL J was m ore gene rous in her fin dings of M oody’s limi tati ons than Dr. Thakarar. The ALJ concluded that Moody could occas ionall y l ift 10 pou nds, sta nd an d w alk fo r 2 ho urs a d ay, sit for 6 h ours a day, had an un limited a bility to push and p ull and could occa siona lly climb, ba lance , stoop and k neel a lthoug h he c ould not cro uch or c raw l. (R . 22) . Dr . Th aka rar re por ted th at M ood y wa s ca pab le of mo re. Dr. T haka rar tho ugh t M ood y could f requ ently lift up to 20 p oun ds, co uld stan d and wa lk three to four hours pe r day , and si t for ei ght hours a day. Moody wants us to a ccept other limi tati ons not i ncluded i n the examiner ’s repor t such as the need t o alte rnate s itting and standi ng, li mits on pus hing with t he lower extremiti es, and ce rtai n environment al limi tati ons. However, t hose li mitations do not

negate the substantialevidence t hat5 M ood y was n ot fou nd to have a sub stantial m ental im pairm ent. 13 Moo dy can perform sedentary j obs. 5 Finall y, Moody assert s that the Commissione r did not meet his burden of proof at Step 5 because the ALJ’s vocational hypotheti cal quest ions were “l egall y i nsuffici ent. ” The ALJ noted and recogni zed thi s burden i n her opini on. (R. 22) . Moody cites Bu rns v. B arn har t, 312 F .3d 113 (3 d Cir. 200 2), to suppo rt his claim that the A LJ’s hypothetical questions w ere improp er becaus e they failed to include all of Mo ody’s physi cal and menta l impai rments. In Burns we noted that if “ undisputed evidence of specifi c impairments not i ncluded i n a hypot hetic al question to a voc ationa l expert , the expert’s respo nse is not con sidered sub stantial evidence.” 3 12 F.3d 113, 123 (3d Cir. 2002) (emphasi s added). In addition, i n Chrupcala v. Heckler , 829 F.2d 1269, 1276 (3d Cir. 1987) , we noted that the ALJ need only i nclude those li mitations that are supporte d by evidence o f record. T his record co ntains substantial evide nce to sup port the A LJ’s conclusion that Mo ody did not hav e a severe m ental impairm ent. Theref ore, the AL J’s hypothetical questions w ere not imp roper. V. CONCLU SI ON For the r easons set

forth above , we will affirm the dist rict court’ s order up ho ld in g t he C om m iss io ne r’s de ter m in ati on of no di sa bi lity.