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### No. 03-1332

CYNTH IA MOR RIS,

Appellant

v. * JOANNE B. BARNHART, COMMISS IONE R OF THE SOCI AL SECUR IT Y ADMINI STRAT ION

*{P ursu ant to Ru le 43 (c), F .R.A .P.}

Appeal from the United States District Court for the Middle Dist

rict of Pe nnsylvania (D.C. Civil Action No. 01-cv-01695) District Judge: Honorable Sylvia H. Rambo Submitted Under Third Circuit LAR 34.1(a)

September 16, 2003
Before: AL

ITO, AMBRO and CHERTOFF, Circuit Judges (Opinion filed October 28, 2003)

OPINION

AMBRO, Circu it J udge2

Cynthia Morris appeals the D istrict Court judgment affirming the denial of supplemental security income by

the Commissioner of the Social Security Administration. At issue is whether the Commissioner’s decision is supported by substantial evidence . 42 U.S.C. §§ 405(g), 1383(c) (3); Plummer v. Apfel , 186 F.3d 422, 427 (3d Cir. 1999). Because we c onclude that decision is support

ed by substantia

l evidenc e, we af

firm. I. Facts and Procedural Hist ory Morris appl ied for s upplementalsecuri ty income in 1997, alle ging that she was disabled by a pain d isorder, severe de pression an d anxiety. At that time, she w as 41 years old. An admini stra tive l aw judge (“ALJ”) col lect ed evidence a t two heari ngs, and i ssued a dec is ion deny ing Morri s’ s ap pli cation on Marc h 25, 1999. In h er d eci si on, the ALJ foun d th atthe rec ord as awhole didnotest abl is h th atMorri s was dis abl ed. The ALJ found that medica l evidence e stablished that M orris had dysthem ia and a som atoform disorde r, which were s evere but which did not meet

the cri teri a for anyimpairment lis tings of the Soci al Securi ty Administr ation regulations i mpairment l istings becaus e she was not suffi cient ly rest rict ed in the acti viti es of dail y l iving and s ocial functi oning. Next the ALJ consider ed whether Morris ’s non-l ist ed, serious i mpairments prevente d her from per for ming pas t r el evan t work oranyoth er wor k in the nat ion al econ omy . The ALJ found that , as a r esult

of Morris’s impairment , she was l imit ed in, among other things, her abili ty to sta nd, w alk, a nd s it w itho ut in terru ptio n, an d in the u se o f he r lef t arm . Co nseq uently, the A LJ f oun d that M orris did not h ave re sidua l func tion ca pacity to3

perform her pa st re levant work as a baby sitter. Based on the t esti mony of a vocational expert, the ALJ found that Morris did ha ve the capac ity to perform other jobs in the nat ion al econ omy , i ncl udi ng that of a t uto r, tol l c oll ect or, and p art s as sembl er. The ALJ also found t

hat “the clai mant’s st atements concerni ng her impai rments and t heir i mpact on her abil ity

to work are not

entirely credibl e.” On these grounds, the ALJ denied Morris’s applic ation f

or supple mental se curity i ncome. The Appeals Councilof the Social Sec urity Adminis tration decl ined furt her revi ew, making the ALJ’s decisi on an appealabl e final decisi on. Morris file d an acti on in the United State s Distr ict Court for th e Mi ddl e Di st

ri ct of Pen ns y lv an iase ek in g j udi ci al re vi ew o f the ALJ de ci si on. On December 30, 2002, J udge Rambo of the District Court entere d an order adopt

ing the rep ort o f M agis trate Jud ge M ann ion and den ying M orris ’s ap pea l. II. Standard of Review Although our r eview of the Dis tri ct Court’ s order i s plenary, “our revi ew of the ALJ’s decisi on is more defe renti al as we det ermine whether there i s subst antia l evide nce to support

the deci sion of the Commissioner. ” Fargno li v. Massan ari , 247 F.3d 34, 38 (3d Cir. 2001) (quoti ng Knepp v. Apfel , 204 F.3d 78, 83 (3d Cir. 2000)). Substantial evidence i s “such re levant evidence as a reasonabl e mind might ac cept as a dequate. ” Ve ntura v . Shala la , 55 F.3d 9 00, 901 (3 d Cir. 199 5). If the AL J’s findings of fact are supporte d by subs tanti al evi dence, we are bound by those fi ndings, even if we would have4

dec ided the f actu al inq uiry dif fere ntly. Hartranft v. Apfel , 181 F.3d 358, 360 (3d Cir. 1999). Thus t

he issue before us i s whether the Commission’s decisi on that Morri s was not dis abled, and thus not entitled to s upplementalsecuri ty income, i s support ed by sub stan tial ev iden ce. III. The Disabi li ty Deter minati ons Process Eligi ble dis abled i ndividual s are entitl ed to benefi ts under Titl e XVI of the Social Sec urity A ct, 42 U.S .C. § § 13 81- 138 3f. See 42 U.S.C. § 1381a. “D isabled indivi duals” are “u nable to eng age in any sub stantial g ainfu l activity by reaso n of any me dically determi nable phy sicalor mental impairment which can be expect ed to res ult i n death or which has las ted or ca n be expected t o last for a cont inuous period of not l ess tha n twelve

mon ths” and, bec ause of th is, are “unable to p erform p revious w ork . . . or any other wo rk which exist s in the nati onal economy .” Id. § 13 82c (a)(3 )(A ), (B ). The Social Security

Administr ation ha s establis hed a five- step i nquiryto dete rmine wh ether a claim ant is elig ible fo r ben efits un der the Ac t. A cla iman t mus t identify tha t: (1) she is not en gaged in substantially gainful activity; (2) she suffers from a severe medical i mpairment; (3) her impairment

is l ist ed by t

he Administr ation a s one creat ing a presumpti on of disabi lit y; (4) i f the i mpairment i s not l ist ed, that the impairment

non ethele ss prev ents h er fro m d oing her p ast relev ant w ork. If th e claim ant satisf ies this burden, t hen the Commissi oner must gr ant benefi ts unl ess she ca n demonstrate (5) that5

there are jobs in the na tionaleconomy that the clai mant can perform. 20 CFR § 416.920. IV . An alys is of Morris’s Arguments on Appeal Morris argues on appeal that the AL J’s decision is not supported by substantial evidence because (1) the AL

J improperly discounted the opinion of her trea ting psychiatr

ist and (2) the ALJ improperly

discounted those portions of the consulting phy sician’s opinion that were based on Morris’s subjective complaints. We analyze each of these arguments and c onclude that they are both unpersuasive. A. The ALJ Properly Considered Morris’s Treating Psychiatrist’ s Opinion On appeal, Morris argues that the AL J’s decision is not supported by substantial evidence because the ALJ failed to give proper consideration to the opinion of her treating psy chiatrist, Dr. Grossman. Dr. Grossman assigned Morris a Global Assessment of Functioning (“GAF”) scor e of 40, indi cating

“major im

pairmen t in sever al area s such as w ork or school, fam ily r elations, judgment, thinking, or mood.” Morris argue s that , if gi ven proper weight , thi s evidence

wou ld have estab lished that she satisfied the requireme nts for a listed A ffective D isorder, thus endi ng the inqui ry at st ep 3. We disagree. To s atisfy the c riteria fo r an A ffec tive D isorde r or a S om atofo rm D isorde r, M orris must satisfythe cri teri a set forth on both par t A and part B of each respecti ve lis ting. 20 C.F.R. pt . 404, s ubpt. P, app. 1, §§ 12.04, 12. 07. Part B of both §§ 12.04 and 12. 07 requ ire that a c laima int’s imp airme nts (the existen ce of wh ich are not in d ispute in this case) r esult

in at l east two of the foll owing :6

1. Marked restriction of activities of daily living; or 2. Marked difficulties in maintaining social functioning; or 3. Deficiencies of concentration, persistenc e or pace resulting in frequent failure to complete tasks in a timely manner (in work settings or elsewhere); or 4. Repeated episodes of deterioration or decompensation in work or worklike settings which cause the individual to withdraw from that situation or to experience exacerbation. 20 CFR pt. 4 04, subpt. P, app. 1, L isting 12 .04 (1999 ). A mark ed limitati on is one that seriou sly interferes with a claimant’s ability to “function independently, a ppropriately, e

ffectively , and on a sustained basis.” 20 CFR pt. 404, subpt. P, app. 1 § 12.00(C) (1999). Morris ar

gues tha t this opinion is entitled to contr olling we ight bec ause Dr . Grossma n is her treati ng psychiatri st . Under the treating phy sician principle, a treating phy sician’s opinion that is consistent with other substantial evidence should be afforded gr eater weight than other medical o pinions. 20

CFR § 416.9 27(d)(2 ); Mason v. Sh alala , 994 F.2d 1058, 1067 (3d Cir. 1993). This is true especially when the treating phy sician’s opinion “reflect[s] expert judgment based on a continuing observation of the patient’s condition over a prolonged time.” Morales v. Apfel , 225 F.3d

310, 317 ( 3d Cir. 2000); Plummer , 186 F.3d at 429; see also 20 CFR § 416.927(d)(2)(i) (1999) (“Gener ally, the longe

r a treating source has trea ted you and the more times you have bee

n seen by a tr

eating source, the more weig ht we will give to the source’s medical opinion.”). Dr. Grossman saw Morris on only three or four occasions over two or three months (Appellant’s App. at 303), so his opinion does not reflect judgment based on “continuing observation of the patient’s condition over a prolonged time.” T hus, contrary to Morr

is’s argument, his opinion is not entitled to any pre sumption of controlling weight. But even if it was binding on the AL J, Dr. Grossman’s opinion is not dispositive of7

Morris’s disability. He indicated Morr is’s GAF score as “40-40.” Morris ar gues that this means “40 at the time of the evaluation and 40 for the y ear prior to the evaluation.” (Appellant’s Br . at 6). But, as the District Court points out, according to the Diagnostic & Statistical Manual of Mental Di sorders (4th ed. 2000) (“ DS M-IV ”), GAF scores are re ported with a parenthetical notation of the time period reflected, such as “(cur rent)” or “(highest level in the past y ear)” or “(at discharge).” DS M-IV at 35. Because no such parenthetica l notation appeared in Dr. Grossman’s report, it was appropriate for the AL J to determine that she could not infer that Dr. Grossman was assigning Morris a GAF score of 40 for any

twelve-month period. And as the District C ourt noted, Dr. Gr ossman re

ndered h is diagnosis afte

r his firs t evalua

tion of Mor

ris, and thus could not have been providing an historical view of he r level of functioning. (Appellant’s Br. at 77). Further more, to th

e extent tha

t Grossma

n’s opinion is relev ant to Mor ris’s ability

to function, it is inconsistent with other evidence in the record. Prior to Dr. Grossman’s eva luation, Dr. Buenaventura, Morris’s long- term treating psychiatrist ) assigned Morris a GAF score of 60, which indicates only moder ate functional limitations. Also, the Administration’s consulting physician, Dr. Picciotto, found that Morr is has moderate limitations on activities of daily living due to fa tigue a nd pain, but that she

was able to carr y ou t instruct ions, ge t along with others , perform activities within a schedule, and make decisions. Morris argues that Dr. Grossman’s opinion is consistent with that of Dr. Har ig, a psychologist who re

ported Morris’s responses to the Beck Depre ssion Inventory indicated major depression in the severe range . While relevant to the conclusion that Morris has a serious impairment, this evidence does not indicate the extent to which her depression restricts her life8

activities as Dr. Grossman’s opinion does. Because it does not corr oborate Dr. Grossman’s opinion, the ALJ properly factored Dr. Harig’s opinion into her c onclusion that Dr. Grossman’s opinion is inconsistent with the other medical evidence in the record. Because Dr. Grossman’s opinion is not entitled to controlling weig ht, is not dispositive of a listed impairment, and is not inconsistent with other medical evidence in the record, we find that the ALJ gave it proper we ight. B. The ALJ properly discounted medical evidence based on subjective complaints. Morris next argues that ALJ erred in discounting the opinion of a consulting phy sician, Dr. Picciotto, who, based on Morris’s subjective complaints, concluded that she would have difficulty sustaining wor

k activity. Ag ain we disagree. “[T]he extent to which an individual’s statements about symptoms can be relied upon a s probative evidence in det ermining whether the individ

ual is disa bled depe nds on the c

redibilit y of those s tatements.” Socia l Security Ruling 96 -7. Her

e the AL J found that

Morris was “less than credible” and thus assigned limited weight to those aspects of Dr. Picciotto’s opinion that were based on Morris’s subjective complaints. The District Court found that the AL J’s credibility finding w as supported by the f act that other doctors’ opinions, all part of the administrative record, demonstrated that “the plaintiff sought r eferrals from doctor after doctor, and when it became

clear to her that a particular doctor was not going to cooper

ate in he r quest for a statement that she was disabled, she moved on to the next doctor.” (Appellant’s B r. at 83). Morris does not challenge the AL J’s underlying credibility finding. Rather, she a rgues that Dr. Picciotto’s medical opinion cannot be discounted because it is based on her subjec tive9

complain ts. In support, she cites Reddick v. Chater , 157 F.3d 715, 726 (9th Cir. 1998), in which the Ninth Circuit determined that the ALJ inappropriately rejected the opinions of treating and consulting physicians on the pr emise that they wer

e based on the claimant’s subjective complaints. But highly r

elevant to the Reddick

court was the fact chronic fatig ue syndrome, by definition a “self-reported” impairment, was at issue. Id. at 726; see also id. at 725 (concluding that the ALJ’s rejection of the phy sicians’ opinions on the premise that they were based on the claimant ’s subjective comp laints “isill-suited to this CFS case ” (emphasis added )). I n this context, Reddick

is inapplicable to Morris’s case. Furthermore, the mere memorialization of a claimant’s subjective statements in a medical report does not elevate those statements to a medical opinion. Craig v. Chater , 76 F.3d 585, 590 n.2 (4th Cir. 1996). An ALJ may discredit a physician’ s opinion on disability that was premised largely on the claimant’s own accounts of her sy mptoms and limitations when the claimant’s complaints are properly

discounted. Fair v. Bowen , 88 5 F. 2d 5 97, 605 (9t h C ir. 198 9) ( “Th e ALJ thus disregarded Dr. Bli ss’ opinion becau se it was p remised on Fair’ s own subjective complaints, which the ALJ had already properly discounted. T

his constitutes a specific, legitimate reason for rejecting the opinion of a treating physician.”). Thus we find that the AL J properly discounted those aspects of Dr. Picciotto’s opinion that were based on Morris’s subjective c omplaints. V. Conclusion For these reasons, we find that the Commission’s decision was supported by substantial evidence in the record and aff irm the District Court’s opinion.10

TO THE CLERK: Please file the foregoing Opinion.

By the Court,

/s/ T homas L. Ambro , Cir cuit J udge11