1994 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

11-9-1994

Adorno v. Shalala, Sec'y HHS

Precedential or Non-Precedential:

Docket 94-5085

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Recommended Citation

"Adorno v. Shalala, Sec'y HHS" (1994). 1994 Decisions. Paper 182.

http://digitalcommons.law.villanova.edu/thirdcircuit_1994/182
 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 ___________ 

 No. 94-5085 

 ___________ 

 EVELYN ADORNO, 

 Appellant 

 v. 

 DONNA SHALALA, SECRETARY OF 

 HEALTH AND HUMAN SERVICES, 

 Appellee 

 ___________ 

 Appeal from the United States District Court 

 for the District of New Jersey 

 (D.C. Civil Action No. 92-cv-01783) 

 ___________ 

 Submitted Under Third Circuit LAR 34.1(a) 

 August 10, 1994 

 PRESENT: HUTCHINSON and NYGAARD, Circuit Judges, 

 and KATZ, District Judge* 

 (Filed November 9, 1994) 

 ____________ 

Dennis P. McGlinchy, Esquire 

Ocean-Monmouth Legal Services, Inc. 

27 Washington Street 

Toms River, NJ 08753 

 Attorney for Appellant 

_______________ 

* Hon. Marvin Katz, United States District Judge for the 
 Eastern District of Pennsylvania, sitting by designation. 
Faith S. Hochberg, Esquire 

 United States Attorney 

John Jeannopoulos, Esquire 

 Special Assistant United States Attorney 

United States Department of Justice 

Room 502 

970 Broad Street 

Newark, NJ 07102 

 Attorneys for Appellee 

 ____________ 

 OPINION OF THE COURT 

 ____________ 

HUTCHINSON, Circuit Judge. 

 Appellant, Evelyn Adorno ("Adorno"), appeals two orders 

of the United States District Court for the District of New 

Jersey in favor of appellee, the Secretary of Health and Human 

Services ("Secretary"). In its orders, the district court 

affirmed the Secretary's final decision to deny Adorno disability 

benefits and denied Adorno's motion for reconsideration. Because 

the findings of fact on which the Administrative Law Judge 

("ALJ") based its decision are logically inconsistent and 

contradictory, we will vacate the district court's order 

affirming the Secretary's decision and remand for further 

proceedings consistent with this opinion. On remand, the ALJ 

should reconcile the contradictions based on all the evidence in 

the record, including Adorno's claimed inability to tolerate 

exposure to dust and fumes, and any additional relevant evidence 

the parties may produce and, if he again elects to reject the 
medical opinions of Adorno's treating physicians, state his 

reasons for doing so. 

I. 

 In April, 1990, Adorno filed applications with the 

Social Security Administration ("SSA") for disability benefits 

or, in the alternative, supplemental security income ("SSI") 

under Titles II and XVI of the Social Security Act. She alleged 

that she had been disabled by the combined effects of asthma, 

arthritis, and hypertension since June 15, 1989. Adorno's 

applications for benefits were denied by the SSA initially and 

upon reconsideration. 

 On December 24, 1990, Adorno filed a request for a 

hearing before an ALJ. It was granted, and the hearing was held 

on February 13, 1991. Represented by counsel, she appeared and 

testified on her own behalf through an interpreter. 

 On May 29, 1991, the ALJ determined that Adorno was not 

disabled and, therefore, could not receive either disability 

benefits or SSI. The ALJ's decision became final on May 27, 1992 

when the Appeals Council denied Adorno's request for review. 

Adorno then filed a complaint in the district court, pursuant to 

42 U.S.C.A. § 405(g) (West 1991), asking the court to review and 

set aside the Secretary's decision. On October 7, 1993, the 

district court affirmed the Secretary's final decision finding 
Adorno not disabled. On December 6, 1993, the district court 

denied Adorno's motion for reconsideration.1 

 Adorno came to the continental United States from 

Puerto Rico. When asked by the ALJ how long she had "been in 

this country," she replied 30 years. Administrative Record 

("Admin. Rec.") at 30. She was 49 years of age on the date of 

the ALJ's hearing. In Puerto Rico, she completed only the second 

grade and has had no other formal education. She testified that 

she cannot speak or read English. 

 From 1968 to 1989, Adorno worked for Excell Wood as a 

machine operator and general laborer. She claims that the dust 

and fumes encountered at work required her to use asthma 

medicine. After leaving Excell Wood, Adorno worked briefly as a 

packer at Papco Industries, but claims that she had to stop 

working after only four weeks because of her asthma condition. 

Most recently, Adorno worked at Fluid Chemicals but after one 

week its factory closed because of poor ventilation. She has not 

engaged in substantial gainful employment since June 15, 1989. 

 Since March 1987, Jose R. Sanchez-Pena, M.D. has been 

Adorno's treating physician. On Adorno's initial visit, Dr. 

Sanchez-Pena performed a pulmonary function test and concluded 

that Adorno was suffering from a "moderate asthmatic condition." 

After eighteen visits, Dr. Sanchez-Pena added the afflictions of 

arthritis, bursitis, pneumonia and kidney stones to the asthma, 

 

1. Although Adorno lists incorrect dates in her brief, it 

appears that she appeals both of these orders. 
which he now found to be acute. In a letter dated March 30, 

1990, Dr. Sanchez-Pena stated that Adorno was permanently and 

totally disabled. 

 Adorno also provided a note dated March 29, 1990 from 

another treating physician, Alfonso Polanco, M.D. It stated that 

Adorno "has been a patient at this office for acute bronchial 

asthma." Admin. Rec. at 100. In response to a request from the 

Division of Disability Determinations ("DDD"), Dr. Polanco sent a 

copy of his office notes. They showed that Adorno was seen on 

four occasions in 1989 and 1990 and was treated with Proventil 

Inhaler, Proventil Repetabs, Theo-Dur and Vasotec for acute 

bronchial asthma. Id. at 98-99.2 Neither the ALJ nor the 

district court referred to this evidence. 

 In February 1989, Adorno visited a physician named 

Leslie Aufseeser, D.P.M., for treatment of bone spurs in her 

heel. Dr. Aufseeser noted in her report that Adorno wanted to 

undergo surgery but postponed it because of uncertainty over 

insurance coverage. 

 On July 11, 1990, the DDD referred Adorno to a 

consulting physician named Santangelo for a physical 

 

2. Proventil Inhaler is used "for the prevention and relief of 

bronchospasm in patients with reversible obstructive airway 

disease and for the prevention of exercise-induced bronchospasm." 

Physicians' Desk Reference 2211 (47th ed. 1993). Proventil 

Repetabs are "for the relief of bronchospasm in patients with 

reversible obstructive airway disease." Id. at 2213. Theo-Dur 

is "[f]or relief and/or prevention of symptoms from asthma and 

reversible bronchospasm associated with chronic bronchitis and 

emphysema." Id. at 1192. Vasotec is "for treatment of 

hypertension." Id. at 1621. 
examination.3 Based on an examination and a pulmonary function 

test, Dr. Santangelo diagnosed Adorno as suffering from a 

fifteen-year history of asthma and uncontrolled hypertension. 

Dr. Santangelo's report indicated however that the pulmonary 

function tests administered to Adorno were within normal limits. 

In Dr. Santangelo's opinion, Adorno could perform any type of 

work except work in heavy fumes or dusty environments. Dr. 

Santangelo disagreed with Dr. Sanchez-Pena's and Dr. Polanco's 

conclusion that Adorno suffered from acute asthma. Adorno was 

also treated in hospital emergency rooms on several occasions, 

including two visits on March 19, 1987 and October 10, 1988 for 

asthma attacks.4 

 Although Dr. Sanchez-Pena's initial diagnosis of 

moderate asthma was based on objective scientific data provided 

by a pulmonary function test, the ALJ concluded this doctor's 

later diagnosis of "acute asthma" lacked objective data to 

support it. The ALJ found Dr. Santangelo's medical report more 

reliable than Dr. Sanchez-Pena's later diagnosis because it was 

based on a later pulmonary functions test and a physical 

examination. 

 

3. Dr. Santangelo's full name is not in the record. Adorno v. 

Shalala, Civ. No. 92-1783, slip op. at 3 n.2 (D.N.J. Oct. 7, 

1993). 

4. One other incident involved what the district court labeled a 

"perturbed, overly-aggressive pet rooster." Adorno, slip op. at 

3. 
II. 

 The district court had subject matter jurisdiction to 

review the final decision of the Secretary denying Adorno's 

application for disability benefits under 42 U.S.C.A. § 405(g) 

(West 1991) and 42 U.S.C.A. § 1383(c)(3) (West 1992). We have 

jurisdiction over this appeal from the district court's final 

judgment in favor of the Secretary under 28 U.S.C.A. § 1291 (West 

1993). 

 "Our standard of review, as was the district court's, 

is whether the Secretary's decision is supported by substantial 

evidence in the record." Allen v. Bowen, 881 F.2d 37, 39 (3d 

Cir. 1989). Substantial evidence is "such relevant evidence as a 

reasonable mind might accept as adequate to support a 

conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) 

(quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 

(1938)). 

III. 

 "The Social Security Act defines disability in terms of 

the effect a physical or mental impairment has on a person's 

ability to function in the workplace." Heckler v. Campbell, 461 

U.S. 460, 460 (1983); 42 U.S.C.A. § 423(c) (West 1991). 

Disability benefits are provided for individuals unable "to 

engage in any substantial gainful activity by reason of any 

medically determinable physical or mental impairment which can be 

expected to result in death or which has lasted or can be 

expected to last for a continuous period of not less than 12 
months." 42 U.S.C.A. § 423(d)(1)(A) (West 1991); Campbell, 461 

U.S. at 460. A person is determined to be disabled only if "his 

physical or mental impairment or impairments are of such severity 

that he is not only unable to do his previous work but cannot, 

considering his age, education, and work experience, engage in 

any other kind of substantial gainful work which exists in the 

national economy." 42 U.S.C.A. § 423(d)(2)(A); Campbell, 461 

U.S. at 460. 

 The regulations promulgated by the Secretary to 

implement these definitions recognize that certain impairments, 

called listed impairments, are so severe that they are presumed 

to prevent a person from pursuing any gainful work without 

further proof of occupational disability. Campbell, 461 U.S. at 

460 (citing 20 C.F.R. § 404.1520(d) (1982)). Thus, a claimant 

who establishes that she suffers from a listed impairment is 

deemed disabled without further inquiry. Id. If a claimant can 

pursue her former occupation, she is not entitled to disability 

benefits. Id. If a claimant suffers from a severe, but unlisted 

impairment, or a combination of impairments, the Secretary must 

consider the individual's particular limitations to determine 

whether the claimant retains the ability to perform either her 

former work or some less demanding employment. Id.

 Adorno, in her first hearing, introduced evidence of 

only three episodes of asthma over 3-1/2 years. This does not 

meet the level of severity required for a listed impairment. See

20 C.F.R., pt. 404, subpt. P, app. 1, § 3.03B. For asthma, the 
listings require acute episodes at least once every two months or 

on average at least six times a year. Id.

 Adorno thus had the initial burden of proving that she 

could not pursue her former occupation. Once a claimant 

establishes her inability to pursue her former occupation, the 

burden shifts to the Secretary to prove that she retains the 

capacity to pursue less demanding work. See id. (citing 20 

C.F.R. § 404.1520(f)(1)). 

 Adorno argues that the district court erred in 

affirming the Secretary's decision to deny her disability 

benefits because the ALJ did not make findings of fact concerning 

the nature and demands of her former occupation. Because her 

undisputed testimony shows her former job exposed her to fumes 

and heavy dust, and uncontradicted medical evidence shows her 

asthma precludes such exposure, Adorno contends that the ALJ's 

determination that she can return to her former job, but not one 

that exposes her to dust and fumes, is logically inconsistent. 

 The Secretary, in an effort to make sense of the ALJ's 

decision seeks to recharacterize Adorno's prior job as a 

cabinetmaker. Brief of Appellee at 18-19. The Dictionary of 

Occupational Titles does not list dust and fumes as hazards which 

accompany a cabinetmaker's job. This attempt to redefine 

Adorno's former occupation is unsupported by substantial evidence 

on the whole record. Both the ALJ and the district court 

describe Adorno's work as a machine operator, which may describe 

Adorno's former work more aptly. See Admin. Rec. at 11, 14; 
Adorno, slip op. at 2.5 The contradiction between this finding 

and Adorno's uncontradicted testimony about her exposure to dust 

and fumes must be reconciled. 

 If it appears that Adorno cannot return to her former 

occupation of machine operator, the ALJ must then determine what 

type of work Adorno can do in order to see whether her case fits 

into one of the so-called "grids" designed mechanically to take 

into account the factors of education, age, skills, and physical 

ability which affect an impaired claimants employability. See

Campbell, 461 U.S. at 461-62. On this question, the ALJ found 

that "within these restrictions the claimant is able to perform 

her prior work as a machine operator or the full range of light 

work activity." Admin. Rec. at 14. 

 The job of a machine operator is listed as medium work 

in the Dictionary of Occupational Titles. Appellant's Appendix 

("App.") at 1. Accordingly, it is impossible to tell whether 

Adorno is limited to light or medium work. The ALJ failed to 

make an unambiguous finding about the kind of work Adorno could 

do, and whether such work is available. Such finding is a 

prerequisite to the proper application of the "grids." 

 Moreover, the ALJ's discussion of age and education is 

in only the most conclusory terms and is also tied to his 

conclusion that Adorno can do a full range of light work. Absent 

from the ALJ's decision is any mention of Adorno's physical 

 

5. At one point, however, the district court also calls Adorno a 

"general laborer." Adorno, slip op. at 2. 
abilities. A full inquiry into Adorno's skills and limitations, 

followed by an assessment of alternate work options in light of 

those abilities and limitations, is crucial to any logical 

analysis of her case. The ALJ failed to conduct that inquiry and 

also failed clearly to relate Adorno's physical impairment(s) to 

her prior occupation. On remand, the Secretary must determine, 

on the basis of substantial evidence, what Adorno's prior 

occupation was and what types of work her abilities and 

limitations permit. "The regulations divide this last inquiry 

into two stages." Campbell, 461 U.S. at 460. The Secretary must 

first assess each claimant's present job qualifications in light 

of the various factors Congress has identified as relevant: 

physical ability, age, education, and work experience. Id. The 

regulations then require the Secretary to make an individual 

assessment of each claimant's abilities and limitations. Id. 

This generally requires an opinion from a vocational expert, 

given in response to a hypothetical question incorporating the 

physical and occupational limitations that the record shows the 

claimant suffers from. 

 The ALJ did consider some of Adorno's particular 

limitations. He found that Adorno has "the residual functional 

capacity to perform work-related activities except for work 

involving heavy exposure to dust and fumes," and that her "past 

relevant work as a machine operator did not require the 

performance of work-related activities precluded by the above 

limitation." Admin. Rec. at 14-15. We have already mentioned 

the problem with this finding. It does not appear to be 
supported by substantial evidence. The Dictionary of 

Occupational Titles lists "Machinist, wood" as work accompanied 

by fumes and dust. App. at 2. 

 We also note the ALJ's failure to weigh appropriately 

the testimony of both of Adorno's attending physicians. In 

considering a claim for disability benefits, greater weight 

should be given to the findings of a treating physician than to a 

physician who has examined the claimant as a consultant. See, 

e.g., Mason v. Shalala, 994 F.2d 1058, 1067 (3d Cir. 1993). We 

recognize, of course, that a statement by a plaintiff's treating 

physician supporting an assertion that she is "disabled" or 

"unable to work" is not dispositive of the issue. Wright v. 

Sullivan, 900 F.2d 675, 683 (3d Cir. 1990). The ALJ must review 

all the medical findings and other evidence presented in support 

of the attending physician's opinion of total disability. Id. 

In doing so, the ALJ must weigh the relative worth of a treating 

physician's report against the reports submitted by other 

physicians who have examined the claimant. See Cotter v. Harris, 

642 F.2d 700, 705, reh'g denied, 650 F.2d 481 (3d Cir. 1981). 

 The record indicates that Dr. Sanchez-Pena and Dr. 

Polanco are Adorno's treating physicians. The ALJ and the 

district court addressed only the opinion of Dr. Sanchez-Pena, 

and concluded it was not entitled to significant weight. See

Jones v. Sullivan, 954 F.2d 125, 129 (3d Cir. 1991) (an 

unsupported diagnosis is not entitled to significant weight). 

Adorno, however, also points to the testimony of Dr. Polanco and 

argues that the Secretary failed to give it the weight it 
deserved. In the ALJ's decision, he states that he made his 

findings "[a]fter careful consideration of the entire record," 

Admin. Rec. at 14, but the ALJ did not otherwise explain his 

reasons for not mentioning Dr. Polanco's note indicating that 

Adorno was treated for "acute asthma." 

 Adorno relies primarily on the proposition that the 

Secretary must "explicitly" weigh all relevant, probative and 

available evidence. Dobrowolsky v. Califano, 606 F.2d 403, 407 

(3d Cir. 1979); see also Brewster v. Heckler, 786 F.2d 581, 584 

(3d Cir. 1986); Cotter, 642 F.2d at 705. The Secretary must 

provide some explanation for a rejection of probative evidence 

which would suggest a contrary disposition. Brewster, 786 F.2d 

at 585. The Secretary may properly accept some parts of the 

medical evidence and reject other parts, but she must consider 

all the evidence and give some reason for discounting the 

evidence she rejects. Stewart v. Secretary of H.E.W., 714 F.2d 

287, 290 (3d Cir. 1983). 

 For these reasons, we will vacate the district court's 

order and remand for further proceedings. On remand, if Adorno 

has carried her initial burden of establishing an impairment so 

severe that she cannot perform the kind of work in which she was 

previously engaged, the Secretary has the burden of supplying 

substantial evidence, usually in the form of a vocational 

expert's opinion, that establishes Adorno's ability to perform 

other substantial gainful activity despite her physical problems, 

limited education, her difficulties with English and her limited 

occupational skills. 
IV. 

 The order of the district court granting summary 

judgment to the Secretary will be reversed and the case remanded 

for further proceedings consistent with this opinion.