2002 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-13-2002

Cherry v. Comm Social Security

Precedential or Non-Precedential:

Docket 1-3181

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Recommended Citation

"Cherry v. Comm Social Security" (2002). 2002 Decisions. Paper 172.

http://digitalcommons.law.villanova.edu/thirdcircuit_2002/172
 

NOT PRECEDENTIAL 

 UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT 

 

 No. 01-3181 

 

 KIM CHERRY, 

 Appellant 

 v. 

 JO ANNE B. BARNHART, 

 COMMISSIONER OF SOCIAL SECURITY* 

 *Substituted pursuant to Fed. R. App. P. 43(c)(2) 

 

 On Appeal from the United States District Court 

 for the Western District of Pennsylvania 

 (D.C. Civil Action No. 01-cv-00279) 

 District Judge: Hon. Gary L. Lancaster 

 

 Submitted Under Third Circuit LAR 34.1(a) 

 February 7, 2002 

Before: SLOVITER, AMBRO, Circuit Judges, and SHADUR, District Judge 

 (Filed: March 12, 2002) 

 

 OPINION OF THE COURT
SLOVITER, Circuit Judge. 

 Kim Cherry filed a claim for Disability Insurance Benefits with the 

Social Security 

Administration on June 3, 1998. After her application was denied 

administratively, she 

sought a hearing. The Administrative Law Judge ("ALJ") determined that 

Cherry was 

not disabled by finding that Cherry could perform the exertional and nonexertional 

requirements of certain sedentary jobs, which exist in significant numbers 

in the 

economy. The Appeals Council denied Cherry's request for review, 

rendering the ALJ's 

decision final. 

 Cherry then filed suit in the United States District Court for the 

Western District of 

Pennsylvania which granted summary judgment in favor of the Commissioner 

of Social 

Security. Cherry appeals. We will affirm. 

 I. 

 Because we write solely for the parties, we need not set forth a 

detailed recitation 

of the background for this appeal and will limit our discussion to 

resolution of the issues 

presented. 

 Cherry, born on May 1, 1958, is considered a younger individual under 

the 

regulations. 20 C.F.R.  416.963(c) (2001). She graduated from high 

school and 

attended one year of college. She worked as a temporary passport clerk 

for a few weeks, 

and then as a temporary proofreader for a few weeks in 1998 and 1999 

respectively. 

 Cherry has admitted herself for psychiatric treatment several times. 

She has been 

treated on various occasions for depression and alcohol and drug abuse. 

She has been 

diagnosed with obsessive/compulsive disorder. Cherry has tried to commit 

suicide, and 

in at least one report has linked her current depression to childhood 

sexual abuse. She has 

also linked her depression to the stress of single-motherhood. She has, 

however, 

responded well to treatment, and upon various discharges has received GAF 

assessments 

of 70, 65, and 55. GAF scores in the range of 61-70 indicate "some mild 

symptoms [of 

depression] or some difficulty in social, occupational, or school 

functioning." Diagnostic 

and Statistical Manual of Mental Disorders ("DSM IV") 34 (American 

Psychiatric Assoc. 

2000). GAF scores in the 51-60 range indicate moderate impairment in 

social or 
occupational functioning. Id. Cherry has responded positively to 

therapy, as well as 

medication, particularly when she abstains from drug use. 

 In January 1997, Dr. Ismal performed a psychiatric evaluation at the 

request of the 

Commissioner. After some mental testing, Dr. Ismal diagnosed major 

depression 

recurrent and rated Cherry's GAF at 65. In February 1997, Douglas 

Schiller, Ph.D., a 

state agency psychologist, reviewed the evidence of record and found 

Cherry was "not 

significantly limited" in the majority of mental areas related to work, 

and "moderately 

limited" in some areas, such as maintaining concentration for extended 

periods of time, 

accepting criticism, and setting goals. In November 1998, Stephen 

Pacella, Ph.D., a 

psychologist, evaluated Cherry and observed that she was non-psychotic and 

that her 

thinking was clear and coherent. Considering Cherry's history of 

depression and drug 

use, Dr. Pacella doubted her ability to attend to tasks and work at a 

consistent pace. 

However, Dr. Pacella also noted some inconsistencies between what Cherry 

told him and 

what her past medical records reported. He observed that she seemed 

"overly-concerned 

that [he] accept the gravity and authenticity of her complaints," and that 

she made a "poor 

effort" on the mental status exam. App. at 239-40. In December 1998, a 

state agency 

psychologist reviewed the record evidence, including Dr. Pacella's report, 

and concluded 

that Cherry had no significant limitation to moderate limitation of 

psychological 

functioning, and that she was not precluded from performing substantial 

gainful work by 

her depressive disorder or substance abuse. 

 Cherry has also had persistent back problems. She has been treated 

for disc 

herniation, and was recovering from that surgery (a discectomy) in 1999. 

However, she 

states that she still experiences constant pain. Cherry testified that up 

to twice a day she 

performs exercises for 15 minutes at a time for her back problems. In 

September 1996, 

Dr. Antin, a treating physician, estimated that Cherry could stand or walk 

between 2 to 6 

hours in an 8 hour day, and sit for 6 or more hours in an 8 hour day. Dr. 

Antin found no 

impairment in Cherry's ability to push or pull, no environmental 

limitations, and found 

that Cherry could occasionally make various postural changes. 
 On May 19, 1999, shortly after Cherry's discectomy, Dr. Eric Minde 

diagnosed 

her with "low back derangement" and radiculopathy. He opined Cherry could 

not be 

gainfully employed and did not anticipate a change in her prognosis for 

several months. 

Dr. Ike, Cherry's treating physician, assessed her progress for recovery 

around the same 

time as "good." Further, Dr. Ike completed a physical assessment that 

Cherry could lift 

and carry 10 pounds, and stand and walk for one to two hours. Dr. Ike did 

not limit 

Cherry's ability to sit or push and pull. 

 A vocational expert viewed all the evidence of record and was present 

for Cherry's 

testimony. The ALJ asked the vocational expert to consider Cherry's age, 

education and 

work history, and to assume that Cherry was limited to sedentary work 

without balancing, 

stooping, kneeling, crouching, or climbing. Based upon this hypothetical, 

the expert 

opined that the worker would be able to perform the sedentary occupations 

of assembler, 

records clerk, and stock and inventory clerk, which exist in significant 

numbers in the 

economy. 

 II. 

 This court reviews the ALJ's findings of fact and affirms the 

Commissioner's 

decision if the factual findings are substantially supported by evidence 

in the record. See 

42 U.S.C.  405(g) (2001); Richardson v. Perales, 402 U.S. 389, 401 

(1971). Substantial 

evidence is "more than a mere scintilla. It means such relevant evidence 

as a reasonable 

mind might accept as adequate to support a conclusion." Id. (citation and 

quotation 

omitted); Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999). The ALJ 

found that there 

are a broad range of sedentary positions which Cherry can perform. These 

findings are 

substantially supported by the evidence presented. 

 The ultimate conclusion of disability is reserved for the 

Commissioner. 20 C.F.R. 

 404.1527(e)(1). The Regulations provide a five-step analysis process to 

be followed 

when reviewing the question of whether a claimant is disabled. 20 C.F.R. 

 404.1520; 

Welch v. Heckler, 808 F.2d 264, 268-69 (3d Cir. 1986). At step three, the 

ALJ found that 

Cherry does not have an impairment or combination of impairments that 

satisfies any of 

the listed impairments in the Listing of Impairments, Appendix 1. At step 

four, the ALJ 
found that Cherry would be able to meet the exertional and mental demands 

of the 

sedentary jobs of assembler, 156,000 jobs nationwide, records clerk, 

36,000 jobs 

nationwide, and stock and inventory clerk, 31,000 jobs nationwide. The 

ALJ concluded 

that based on these findings, Cherry is not disabled within the meaning of 

the Social 

Security Act. 

A. Step three 

 The evidence substantially supports the ALJ's finding that Cherry 

does not have an 

impairment or combination of impairments that satisfies the listed 

impairments in the 

Listing of Impairments, Appendix 1. Cherry presented no clinical proof 

that she has a 

musculoskeletal or psychiatric impairment satisfying the criteria of any 

section within 

Listing Sections 1.00 or 12.00. Therefore, the record substantially 

supports the ALJ's 

findings on this point. 

B. Step four 

 The evidence substantially supports the ALJ's finding that Cherry is 

able to 

perform certain sedentary jobs. The ALJ considered the reports of both 

examining and 

non-examining physicians, and relied upon the opinion of Dr. Ike (a 

treating physician) 

that Cherry is capable of sedentary work. Although Dr. Pacella, a 

psychologist who saw 

Cherry only once, had concerns about Cherry's ability to function in 

competitive 

employment, Dr. Pacella also noted that Cherry made "little effort to 

maintain 

concentration and attention,"and seemed "overly concerned that [he] accept 

the gravity 

and authenticity of her complaints." Based on Dr. Pacella's observations, 

and the ALJ's 

own observations of Cherry on the witness stand, the ALJ properly relied 

on the record as 

a whole in reaching the conclusion that Cherry is able to perform certain 

sedentary jobs. 

 The remainder of the evidence supported the ALJ's finding on this 

point because it 

presented the following information and opinions: (1) Cherry could 

maintain a daily 

routine and perform tasks like shopping, cooking, cleaning, taking the bus 

and 

maintaining her hygiene; (2) though experiencing chronic pain, Cherry 

could lift and 

carry 10 pounds, could sit for extended periods of time, could stand or 

walk for 2 hours at 

a time, and could push and pull; (3) Cherry was functional, despite her 

depression, and 
responded well to therapy; (4) when Cherry remained drug-free she 

responded well to 

therapy; and, (5) Cherry had access to antidepressant medication. This is 

evidence that, 

in the language of Perales, a "reasonable mind might accept as adequate to 

support [the 

ALJ's] conclusion." 402 U.S. at 401. 

 III. 

 For the reasons set forth above, we will affirm the judgment of the 

District Court. 

 

TO THE CLERK: 

 Please file the foregoing opinion. 

 /s/ Dolores K. Sloviter 

 Circuit Judge