2003 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
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w . v i l l a no va . e du/thir dc ir c uit_2003/110NOT PRE CEDENT IAL THE UNITED STATES COURT OF APPEALS

FO R T HE TH IRD CIR CU IT

___________ No. 03-1816

___________ JEFF REY A. E YLER, Appellant
v. *JO ANNE B. BARNHART, COMM ISSI ONER OF SOCIAL SECURITY *(P ursu ant to Ru le 43 (c), F .R.A .P.)

___________ ON APPEAL FROM THE UNI TED STATES DIST RICT COURT FO R T HE MID DL E D ISTR ICT O F PE NN SY LV AN IA

(D.C. Civi l No. 01-cv- 00411) Distri ct Judge: The Honorable Yvette Kane

___________ Submitte d Under Third Circ uit LAR 34.1(a)

October 31, 2003
BE FO RE : SC IRI CA , Chief Judge , NY GA AR D, a nd A M BR O, Circu it Judges
.
(Fil ed : November 13, 2003)2 ___________ OPINI ON OF THE COURT

___________ NY GA AR D, Circu it Judge
.

Appellant

Jeffrey A. Eyle r appeal s from an order entere d in the Dis tri ct Cou rt affirming the d ecision of the Com missioner of Social Sec urity denying Eyler’s applic ation f

or disabili ty insurance benefit s under Title IIof the Soci al Securi ty Act, 42 U.S .C. § § 40 1-4 33. T he D istrict Co urt e xer cise d ju risdi ction pur sua nt to 42 U .S.C . § 405(g) an d we have jurisdiction o n appe al pursuan t to 28 U .S.C. § 129 1. We will affirm the ord er of th e D istrict Co urt. I.

Bec ause we write s olely for th e ben efit of the pa rties, we recou nt the f acts and the proc edural ba ckground of thi s case onl y as theyare rel evant t o the fol lowing discuss ion. I n 1997, Eyl er appli ed for dis abili tyinsurance benefit s on the bas is that he had b een u nable to w ork sin ce N ovem ber 1 5, 199 6 du e to ph ysical prob lems in volv ing h is back , high b lood pressu re, diab etes, pa ncrea titis, a seizur e diso rder an d dea fnes s in his right ear. Aft er revi ewing the medica l evide nce, phy sici ans acti ng on behalf of t he Commissioner conc luded that Eyl er had the capacity t o work. Eyl er’s application for ben efits wa s initia lly den ied a nd w as a gain den ied o n re con side ratio n.3 An A dministrative La w Jud ge thereafter co nducted a hearing o n Eyler’s applic ation at which she heard tes timonyfrom Eyl er, hi s wife, a medi cal expert and a vocati onal expert. The ALJ subsequent ly concluded that Ey ler’ s condition did not meet th e s tan da rd fo r d isa bi lity.

After exhausting his administrative remedies, Eyl er filed an acti on against the Comm issioner i n the District Court for the Middle D istri ct of Pennsylvania. The case was referr ed to an Unit ed State s Magistrate Judge who recommended that the Com missioner’s de cision be aff irmed. Th e District Cou rt adopted the M agistrate Judge’s Report and Recommendation, overrul ing Eyl er’s obj ecti ons. Ey ler timelyappealed. II. We have previousl y se t fort h our standard of revi ew in cases i nvolving an appeal fr om the denialof disabi lit y benefi ts. We have instructed: The role of this C ourt is id entica l to that o f the D istrict Co urt, nam ely to determ ine w hethe r there is s ubsta ntial ev idenc e to support t he Commissioner’ s decis ion. The Court is bound by the ALJ’s fi ndings of fact if the y ar e support ed by s ubstantial evidence i n the rec ord. Subst antia l evide nce has been defi ned as “more tha n a mere sci ntil la. It means s uch rele vant evid enc e as a rea son able min d m igh t acc ept a s ad equ ate.” Plummer v. Apfel , 186 F.3d 422, 427 (3d Cir. 1999) (quoting Ven tura v . Shala la , 55 F.3d 900 , 9 01 ( 3d C ir . 1 995 )) (c er ta in ci tati ons omi tted ). In mak in g thi s d et er mi na ti on, “we are not pe rmitted to weigh the evidence or substi tute our

own conclusions for that of the4

fact- finder. ” Burns v. Barnhart , 312 F.3d 113, 118 (3d Cir. 2002) (ci ting Willi ams v. Sulli van , 970 F.2d 1178, 11 82 (3d C ir. 1982)).

In order to quali fy for

disabi lit y benefi ts, a person must be disabl ed as that term is de fine d by th e So cial S ecu rity Ac t and acc om pan ying re gul ation s. Burns , 312 F.3d at 118. Disabil ity

is defi ned under the Act as the “ inabil ity to engage i n any substant ial gainful a ctivi ty by r eason of anymedicall y determinabl e phys ical or mental impairment

which can be expect ed to la st for a conti nuous peri od of not le ss than twelve
mo nth s.” 4 2 U .S.C . § 13 82c (a)(3 )(A ) (20 02)
.

The ALJ, in evaluating Ey ler’ s appli cati on for benefi ts, applie d the famil iar five-s tep an alysis, determ ining th at, at steps one th roug h three , Eyler w as no t curren tly employed, an d that his back disorder, hypertension, diab etes, and pan creatitis were seve re impa irmen ts, but tha t they did n ot me et or eq ual an y of the im pairm ents listed in Appendix 1, Subpart

P of Part 404 ( “Listi ng of Impairment s”). 20 C.F.R. § § 416 .920( d), 40 4.152 0(d). T he A LJ m oved on to step fo ur an d dete rmine d that, w hile Eyler did not reta in the re sidua l func tional c apac ity to perfo rm h is past w ork, E yler did retai n the res idual f

unctiona l capaci ty to perform the requi rements of s edentary work. Finall y, at st ep five, the ALJ consulted a vocati onal expert. The ALJ asked t he vocati onal expert a hypothetic al question which took i nto account all of Eyle r’s i mpairments that
we re sup ported by objec tive m edica l evide nce. T he vo cation al exp ert testified that a person with impairment s such as Ey ler’ s ret ained the abil ity to engage i n a signi ficant5

number of simple sedentary and l ight j obs on a nati onwide level . The ALJ concluded that Eyler was not disabled and denied benefits. III.

Eyle r’s primaryargument on appealis that the ALJ erred in not giving
con trollin g ev iden tiary w eigh t to th e tes timo ny an d op inio n of her treat ing physi cian
. Eyle r argues that t

he ALJ’s decis ion not to credit his t reati ng physi cian’s opinions was not based on objec tive, competent medi cal evi dence. A tr eati ng physi cian’s findings and opi nio ns a re, g ene rally, giv en g reat w eigh t. Frankenfi eld v. Bowen , 861 F.2d 405, 408 (3d Cir. 1988) (ci ting Rossi v. Califano , 602 F.2d 55, 57 (3d Cir. 1979)). However, “the medica l judgme nt of the treating p hysician can be rejec ted on the b asis of con tradictory evidence. ” Id. If substantial eviden ce in the record supports a c onclusion th at is contrary to that expressed by the treating physician, the AL J may reject the treating physician’s find ing s. Id. Here, the A LJ prop erly evaluated the m edical opinion s in the record. In fact, the opini ons Eyl er rel ies on, as has been ar gued by t he Commissioner, are opini ons that are not g erma ne to th e natu re and /or sev erity of his im pairm ents. Ins tead, h e calls our attention to the repor t and opini on of Dr. Sici lia and Dr. Eder. Dr. Sici lia’ s opini on was tha t Eyler was “disab led” and D r. Eder noted his belief that Eyler wa s unable to w ork1. C itation s to th e a pp en dix refe r to th e a pp en dix filed by the A pp ellan t. 6 in a “meaningf

ul way. ” (App. 444 and 454) 1 The Distri ct Court noted, “a t reati ng physi cian’s opinion wit h respect to whether or

not a plainti ff is di sabled fr om employment

is not entitled to a ny spe cial deference. The responsi bili ty of determining whether the plaint

iff i s disabl ed for purpos es of recei ving DIB lies with the ALJ. ” (App. 4). We agree. Neither Dr. Sicil ia’s nor Dr. Eder’ s opini ons concern any medical diagnosi s. I nstead, these opi nions, in real ity , refl ect a l egal concl usion nei ther phy sici an was competent t o make. We agree with t he District Court

that t he ALJ’s decis ion was supporte d by subs tanti al evi dence in the record.

Eyler’s se cond argu men t on ap peal is th at the D istrict Co urt imp rope rly relied o n the o pinion of the voca tional e xper t beca use th at opin ion d id no t take in to
cons ideratio n the e ffec ts Eyler’s m edica tion w ould have on h is ability to w ork. T his arg ument

is without

meri t. As th e Dis tric t Cou rt foun d, t he hypothetic al that the ALJ present ed to the vocati onal expert requi red that the vocational e xpert as sume a hypothetic al indi vidual who is “[a]ffect [ed] by
. . . medicati on.” (App. 5) . Further, t hat hypothetical individual w as affected by limitations that included the ef fects of E yler’s
me dica tion , e.g. fati gue, an i nabili ty to st and for long pe riods of time, occasiona l
conc entratio n pro blem s. W e agre e w ith the D istrict Co urt that th is hypoth etical “‘f airly set[s ] forth everycredibl e limi tati on establ ished bythe phy sicalevidence. ’”(App. 4) (quoti ng Plummer , 186 F.3d at 431).7 Finally , Eyler

argues that the ALJ failed to take account of his subjective sympt oms, including pain, in determining that he could still perform the full range of light work. The

ALJ det ermined that Ey ler had a discern ible medic al condit

ion that c ould caus e his pain, but that his statements concerning his pain and its impact on his ability to work were not entirely cr

edible in light of the entire record. Al le ga ti on s o f p ai n a nd ot he r s ub je ct iv e s ymp to ms mu st be su pp or te d b y objective medical evidence. See 20 C.F.R. § 404.1529. Once an ALJ concludes that a medic al impairment that could reasonably

cause th e alleged sy

mptoms exists,he or she

must evalu ate the in

tensity and pers istence

of the pa in or sy mptom, and

the extent t

o which it a

ffects t he individ

ual's a bility to work. T

his obvious ly r

equiresthe AL

J to determine the exte

nt to which

a claima nt is accurately

stating the degree of pain or the extent to which he or she is disabled by it. See 20 C.F .R. § 404.1529(c)
.

Here, th e AL J concluded that Ey

ler had a discern ible medic al condit

ion that c ould reasonably

cause the pain of which he complained. Howeve r, although the ALJ determined that his testimony was “ge

nerally cr edible,” the ALJ thought that Ey ler’s testimony about the extent of his pain was exaggerated. (A pp. 26) The ALJ noted that the record a lso contained testimony of one physician’ s concern that Ey ler was engaging

in “drug seeking behavior.”(App. 18) The ALJ determined that Ey

ler could perform light duty work despite his complaints of incapacitating pain. That ruling is clearly supported by substantial evidenc e in this record. The ALJ cited specific instances where Ey ler's complaints about pain and other subjective sy mptoms were inconsiste nt with: 1)the objective medic al evide nce of r ecord; 2 ) Eyler’s te stimony as to his rehabilitation and medica tion reg imen; and 3) Ey ler’s own descri

ption of hi s daily

activitie s.8 IV. In conclusion, we are

satisfied that the ALJ undertook a comprehensive examination of the evidentia ry record and that substantia

l evidence in the r

ecord su pports bot

h her and the Commissioner’s decision.

For the f oregoing reasons, we will affir m the judgment of the

District C ourt._________________________

TO THE C LERK: Please fi le the foregoing opi nion.

/s/ Richard L. Ny gaard Circuit Judge

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