2003 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-25-2003

Myers v. Comm Social Security

Precedential or Non-Precedential: Non-Precedential

Docket 02-2747

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Recommended Citation

"Myers v. Comm Social Security" (2003). 2003 Decisions. Paper 791.

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 NOT PRECEDENTIAL 

 UNITED STATES COURT OF APPEALS 

 FOR THE THIRD CIRCUIT 

 

 No: 02-2747 

 KENNETH MYERS, 

 Appellant 

 v. 

 JO ANNE B. BARNHART, COMMISSIONER 

 OF SOCIAL SECURITY 

 

 Appeal from the United States District Court 

 for the Eastern District of Pennsylvania 

 (Civil No. 01-cv-2653) 

 District Court: Honorable Robert F. Kelly 

 

 Submitted Pursuant to Third Circuit LAR 34.1(a) 

 February 11, 2003 

 

 (Filed : February 25, 2003) 

 Before: ALITO and McKEE, Circuit Judges, 

 and SCHWARZER, Senior District Judge 

 

 OPINION 

McKEE, Circuit Judge. 

 Kenneth J. Myers appeals the district court=s decision affirming the final decision 

of the Commissioner of Social Security that Myers is not entitled to supplemental security 

income (ASSI@) under title XVI of the Social Security Act, 42 U.S.C. ’’ 1381- 1383f. 

For the reasons that follow, we will affirm. 

 I. 

 Myers filed for SSI on December 3, 1993, alleging disability due to scoliosis. The 

agency denied his claim initially and upon reconsideration. After a first hearing was 

rescheduled so that Myers could obtain representation, Myers and his representative (a 

paralegal) appeared before an ALJ and submitted additional medical evidence regarding 

Myers= alleged substance abuse. On April 9, 1996, the ALJ remanded the case for 

reconsideration of new evidence. After reconsideration, the agency denied his claim. 

 At Myers= request, an ALJ held an administrative hearing on November 19, 1998, 

at which Myers, now represented by counsel, appeared and testified. A vocational expert 

also testified. On July 30, 1999, the ALJ issued a decision in which he found that Myers 

was not disabled because Myers had the residual functional capacity to perform unskilled 

medium work, and therefore could return to his past relevant work as a cleaner. 

 The Appeals Council considered Myers= objections to the ALJ=s decision and 

found no basis on which to amend the ALJ=s decision. Accordingly, it denied Myers= 

request for review. The ALJ=s decision thus became the final decision of the 

Commissioner pursuant to 42 U.S.C. ’ 405(g). 

 After exhausting his administrative remedies, Myers filed suit in the district court 

seeking judicial review of the Commissioner=s final decision. Following the filing of 

cross-motions for summary judgment, a Magistrate Judge issued a Report and 

Recommendation (AR&R@) recommending that the district court grant the Commissioner=s 

motion for summary judgment and affirm the Commissioner=s final decision. After 

considering Myers= objections, the district court adopted the R&R and affirmed the 

Commissioner=s final decision. This appeal followed. 
 II. 

 Myers, who was fifty-one years old at the time of the ALJ=s decision, is a highschool graduate and worked in the past as a cleaner. During the relevant time period, 

Myers was treated at the Philadelphia Center for Osteopathic Medicine (APCOM@). 

According to the treatment notes, Myers complained of back pain in December 1993, but 

stated that he had it for many years. He was diagnosed with low back pain secondary to 

scoliosis, and was told to go to an orthopedist for an evaluation. 

 Myers underwent a consultative examination in March 1994 with Dr. Neil Cutler 

in connection with his application for SSI. Myers reported that he smoked one pack of 

cigarettes a day and drank Scotch whiskey daily. Upon examination, Dr. Cutler noted that 

Myers was well-developed, well-nourished, and was in no acute distress. Dr. Cutler 

noted that Myers had a thoracoscoliosis extending into the lumbar region with a primary 

curve to the right, but he was able to get on and off the examining table without problem, 

could walk across the room without significant difficulty, and did not show any loss of 

equilibrium. His reflexes, motor and sensory testing were intact. 

 In March 1994, Fred Myers, M.D., a state agency doctor, thoroughly reviewed the 

medical evidence of record and opined that Myers could lift fifty pounds occasionally and 

twenty-five pounds frequently, could stand for six hours and sit for six hours in an eight 

hour day, could only occasionally stoop, and had no other limitations. In August 1995, 

another state agency physician thoroughly reviewed the record and affirmed this opinion 

with the added limitations of occasional kneeling and crouching. 

 Myers did not return to PCOM until April 1994, when he again complained of 

back pain. Treatment notes indicate that Myers never followed up with treatment or with 

an orthopedist. Myers did report that he needed a cane to walk and he was again 

diagnosed with scoliosis and given pain medication. 

 In May 1994, Myers returned and underwent a lumbar x-ray which showed lumbar 

convexity and rotation to the left. The x-ray also showed narrowing of the disc space 

between L4-5 and that his right leg was shorter than his left by 3/16 of an inch. He was 

again diagnosed with scoliosis and referred to an orthopedist. 

 In August 1994, Myers underwent a consultative examination with internist Mark 

Orlow, M.D. Myers reported that he had scoliosis which had become worse and that he 

could not lift more than thirty pounds. He also reported that he had been using a cane. 

Dr. Orlow examined Myers and administered a pulmonary functioning test. Dr. Orlow 

noted that Myers= spirograms were within normal limits and showed no restrictive 

ventilatory defect. However, Myers did have a marked curvature of his thoracic and 

lumbar spine and a marked left shoulder drop. Dr. Orlow diagnosed marked 

thoracolumbar scoliosis. 

 Myers presented to PCOM in August 1994 complaining that he experienced loss of 

motor control in his lower extremities while taking a walk. Treatment notes indicated that 

Myers did not follow up with the orthopedist in May 1994. Myers reported that he was 

applying for SSI. Once again Myers was referred to an orthopedist to determine his level 

of functioning. 

 Myers returned again in November 1994, and treatment notes indicated that he 

missed another appointment with the orthopedist. Myers complained of pain radiating 

down both legs and requested pain medications. Upon examination, straight leg raising 

was positive bilaterally, and Myers= appointment with an orthopedist was rescheduled. 

 Myers did not return for almost a year, until August 1995. He then complained of 

pain and stated that he was out of Ibuprofen. He was again diagnosed with scoliosis and 

referred for physical therapy and x-rays. In November, 1995, Myers returned and 

reported that he was not going to physical therapy because Ahe could not get to the van.@ 

Tr. 138. He was given a prescription for Ultram for pain and told to return in two 

months. 

 However, Myers once again failed to return to PCOM for almost a year. When he 

finally did return in October 1996, he reported that his pain and stiffness were worse in 

the morning, but it was usually Acompletely improved@ after he was awake for about one 

hour. Tr. 312. He was told to return to the clinic as needed for pain. 

 Myers did not return for another year, until October 1997. He then complained of 

dizziness and was diagnosed with hypertension. Myers returned in a week and was 

diagnosed with controlled hypertension. 

 Myers was reevaluated by Dr. Cutler in June 1997. Dr. Cutler noted that Myers 
was not using any pain medication, but was walking with a cane. Upon examination, Dr. 

Cutler observed a Amoderate scoliotic curvature primary curve to the right with secondary 

curve at lower thoracic area to the left.@ Tr. 206. Myers had minimal tenderness along 

the regions of his spine. No neurological deficits were noted. Dr. Cutler reported that 

Myers Awas able to transfer off the table and walk relatively normally down my hallway 

corridor without using a cane, which he brought.@ Tr. 206. He diagnosed Myers with 

chronic scoliosis. 

 Myers did not return to PCOM until August 1998. He then complained of back 

pain and feeling Alike he was going to pass out.@ Tr. 310. He admitted that he drank 

occasionally. In October 1998, Myers returned to PCOM and stated that he had been in 

the hospital for detoxification. His hypertension was well controlled and he was referred 

to an orthopedist for an evaluation of his scoliosis. 

 On November 18, 1999, a day before Myers’ hearing, B. Williams, D.O., a doctor 

at PCOM, opined that Myers could lift three pounds frequently and ten pounds 

occasionally, could stand/walk for one hour; could sit for six hours; had limited ability to 

push/pull in upper and lower extremities; could only occasionally bend, kneel, stoop, 

crouch or balance; and had difficulty reaching. 

 On a disability report, Myers stated that he cooked daily, cleaned now and then, 

swam, and visited with friends and relatives. In a 1997 disability report, Myers stated that 

he was disabled due to mental illness. At the administrative hearing in November 1998, 

Myers testified that he had last used crack cocaine in 1998, but, prior to that time, he had 

an $80 per month habit. Myers also testified that he does not intend to reenter the 

workforce. 

 Myers testified further that, as a cleaner in 1991-92, he primarily mopped floors 

and sometimes buffed floors. Myers drew unemployment for a year and a half after he 

stopped working. The ALJ asked Myers if he realized that by collecting unemployment 

payments he has Aholding [himself] out as able to work.@ Tr. 45. Myers responded, ANo, 

I didn=t know that.@ Tr. 45. The ALJ confronted Myers with the fact that he stated on his 

SSI application that he was not receiving any income while he was receiving SSI. The 

ALJ also asked Myers about his statement that he had not worked since 1992. Myers 

admitted that he had worked for Pathmark for two months in 1995-96 where he primarily 

ran a buffer. 

 Myers testified that he was disabled because he could not lift very much and could 

not sit or stand very long in one position. He also stated that he used a cane, but did not 

have it with him at the hearing. According to Myers, a doctor had prescribed the cane. 

 When the ALJ asked Myers why he waited a year between doctors= visits, he 

replied, AThe only time I went to see my physician is if like my stomach bothered me or 

when death occurred in my family that upset my stomach. Other than that I really didn=t 

go.@ Tr. 65. 

 The vocational expert testified that Myers= past jobs were both classified as 

Acleaner@ at the unskilled, medium level. The ALJ then asked whether Myers could 

perform his past relevant work with the following limitations: able to life twenty-five 

pounds frequently and fifty pound occasionally, stand for six hours in an eight hour 

workday, perform simple tasks, and relate well with supervisors and coworkers. The 

vocational expert responded that Myers could perform his past relevant work as a cleaner. 

 III. 

 Our scope of review is limited to determining if the Commissioner’s decision is 

supported by substantial evidence. 42 U.S.C. ’’ 405(g), 1383(c)(3); Monsour Medical 

Ctr. v. Heckler, 806 F.2d 1185, 1190 (3d Cir. 1986). Substantial evidence refers to that 

evidence that "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)). Substantial evidence is "more than a mere scintilla but 

may be somewhat less than a preponderance of the evidence." Ginsberg v. Richardson, 

436 F.2d 1146, 1148 (3d Cir. 1971). 

 IV. 

 The Social Security Act defines disability as an inability to work because of a 

medically determinable physical or mental impairment expected to result in death or to 

last at least twelve months. 42 U.S.C. ’ 1382c(a)(3)(A); see Heckler v. Campbell, 461 

U.S. 458, 459-60 (1983). The Act further requires that a claimant for disability benefits 

show that he has physical or mental impairment 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, regardless of whether such works exists 

 in the immediate area in which he lives, or whether a specific 

 job vacancy exists for him, or whether he would be hired if he 

 applied for work. 

42 U.S.C. ’ 1382(a)(3)(B). A five-part sequential process is used to evaluate claims of 

disability. 20 C. F. R. ’ 416.920. The evaluation process requires the Commissioner to 

consider, in sequence, whether the claimant: (1) is working, (2) has a severe impairment, 

(3) has an impairment that meets or equals the requirements of a listed impairment; (4) 

can return to his or her past relevant work, and (5) if not, whether he or she can perform 

other work in the national economy. 20 C. F. R. ’ 416.920(a). If a definitive decision 

can be reached at any stage in the sequential evaluation process, further evaluation is not 

necessary. 20 C. F. R. ’ 416.920(a). 

 At step four, the ALJ is required to evaluate whether the claimant is able to return 

to his past work. 20 C.F.R. ’ 416.920(a). At this step, the claimant bears the burden of 

establishing that he is incapable of performing past relevant work due to a medically 

determinable physical or mental impairment. Dorf v. Bowen, 794 F.2d 896, 900 (3d Cir. 

1986). Because Myers did not show that he had a medical condition that made him 

incapable of performing his past relevant work as a cleaner, the ALJ determined that he 

was not disabled. Thus, the ALJ found that Myers was not under a disability at any time 

through the date of his decision. 

 We believe that substantial evidence supports the Commissioner=s final 

determination that Myers retained the residual functional capacity to perform his past 

relevant work as a cleaner. That decision was supported by the opinions of two state 

agency physicians who are experts in the field of social security disability evaluations, 

Social Security Ruling (SSR) 96-6p; see also 20 C.F.R. ’ 416.927(f), and whose opinions 

are treated as expert opinion evidence. 20 C.F.R. ’ 416.927(f)(2)(I); SSR 96- 6p. The 

Commissioner=s decision was also supported by the findings of Dr. Cutler, a consultative 

examiner. 

 Myers argues that the ALJ improperly accepted the opinions of the two state 

agency doctors and Dr. Cutler over the opinion of his treating physician, Dr. Williams. 

We disagree. Even if Myers= characterization of Dr. Williams as his treating physician is 

accepted, it affords only limited support to Myers= claim. Dr. Williams examined Myers 

very infrequently and opined that Myers was disabled only one day before Myers= 

disability hearing. Dr. Williams= opinion was neither consistent with the other evidence 

of record, nor well-supported by objective evidence. Moreover, the two state agency 

doctors opined that Myers could perform medium work. Consequently, Dr. Williams= 

opinion was not persuasive in demonstrating that Myers was incapable of performing a 

modified range of medium work. As we have previously held, an ALJ can choose to 

accept the findings of evaluating, non-examining state agency physicians over the 

opinions of treating physicians where the treating physicians= opinions were Aconclusory 

and unsupported by the medical evidence@ and contradictory to other medical evidence of 

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

 In addition, as we have noted, Dr. Cutler=s findings support the ALJ=s decision. 

Dr. Cutler evaluated Myers on several occasions and did not find him disabled. Although 

Dr. Cutler diagnosed Myers with scoliosis, he noted that Myers was well- developed, 

well-nourished, and in no acute distress. Dr. Cutler noted that Myers was able to get off 

and on the examining table without problems, could walk across the room without 

significant difficulty, and without any loss of equilibrium. He also noted that Myers= 

reflexes, motor and sensory testing were intact. Finally, Dr. Cutler noted that Myers was 

not using any pain medication, had minimal tenderness along the regions of his spine and 

had no neurological deficits. 

 Myers next argues that the ALJ did not properly assess his subjective complaints 

of pain or his credibility. Again, we disagree. The Social Security regulations provide 

the authoritative standard for the evaluation of a claimant=s subjective complaints, 

including pain. Hartranft v. Apfel, 181 F.3d 358, 362 (3d Cir. 1999). The regulations 

governing the evaluation of pain and other subjective complaints provide that a claimant=s 
statements about his or her impairments need not always be sufficient to establish 

disability. 20 C.F.R. ’ 416.929(a). Instead, a claimant must first establish a medical 

impairment which could reasonably be expected to produce the pain or other symptoms 

alleged and which, when considered with all other evidence, could lead to a conclusion of 

disability. 20 C.F.R. ’ 416.929(a). 

 Once this threshold showing is met, the ALJ must then evaluate the intensity and 

persistence of the symptoms to determine whether they limit the claimant=s capacity to 

work. 20 C.F.R. ’ 416.92(c)(1). Thus, the ALJ is required to assess the degree to which 

the claimant is accurately stating his or her subjective symptoms or the extent to which 

they are disabling. Hartranft, 181 F.3d at 362; 20 C.F.R. ’ 416.929. Because a 

claimant=s subjective complaints can sometimes suggest a greater severity of impairment 

than can be shown by the objective medical evidence, the following factors may be 

considered in assessing the credibility of a claimant=s statements: (1) daily activities; (2) 

duration, location, frequency, and intensity of the pain and other symptoms; (3) 

precipitating and aggravating factors; (4) medication taken to alleviate pair or other 

symptoms; (5) treatment other than medication; (6) any other measures used to relieve the 

symptoms; and (7) other factors concerning functional restrictions or limitations due to 

pain or other symptoms. 20 C.F.R. ’’ 416.929(c)(3)(i)-(vii). Here, consideration of these 

additional factors undermines Myers= assessment of the severity of any pain he may have 

had. 

 Myers argues that the ALJ did not properly address his credibility because the ALJ 

based his decision on the fact that Myers collected unemployment benefits and had 

worked for two months as a cleaner at Pathmark. However, it was entirely proper for 

the ALJ to consider that Myers= receipt of unemployment benefits was inconsistent with a 

claim of disability during the same period. See, e.g., Johnson v. Chater, 108 F.3d 178, 

180 (8th Cir. 1997) (application for unemployment compensation benefits can adversely 

affect a claimant=s credibility because of admission of ability to work required for 

unemployment benefits). Moreover, it is clear that Myers= receipt of unemployment 

benefits was not the only reason for the ALJ=s credibility assessment. Specifically, the 

ALJ concluded that Myers was not fully credible because his complaints were Anot 

corroborated by the objective medical evidence, and [were] belied by the paucity of 

regular medical treatment and lack of adherence to a regular medical regimen.@ Tr. 23. 

That finding is clearly supported by the record. After 1994, Myers was only treated 

approximately once a year at PCOM. Although he was scheduled for an appointment 

with an orthopedist on approximately six occasions, he never kept the appointments. 

Clearly, it was reasonable to conclude that this lack of serious commitment to treatment 

and Myers= refusal to keep his medical appointments was suggestive of Myers= level of 

pain. 

 Moreover, the objective medical evidence does not support Myers= subjective 

complaints of disabling pain. Admittedly, Myers has scoliosis; however, he was treated 

conservatively. In fact, in 1997, Dr. Cutler noted that Myers was not using any pain 

medications. Dr. Cutler=s observations also cast doubt upon Myers= credibility. Dr. 

Cutler noted that Myers walks with a cane Abut seems to have no problem locomoting and 

does not give evidence of any stiffness or difficulty staying seated during the course of 

this evaluation which lasts the best part of an hour.@ Tr. 198. In addition, Dr. Cutler 

observed that Myers Awas able to transfer off the table and walk relatively normally down 

my hallway corridor without using a cane, which he brought.@ Tr. 206. 

 Finally, Myers= own admissions cast doubt on his own credibility. Myers told Dr. 

Orlow that he could lift thirty pounds, but he testified at the hearing that he could only lif

fifteen pounds. Treatment notes from October 1996 indicate that Myers reported that 

although he had stiffness in the morning, it was Acompletely resolved@ within one hour of 

waking up. Tr. 312. Moreover, Myers worked at Pathmark for two months in 1996 as a 

cleaner. And, although he testified that he needed a cane, Myers did not bring a cane with 

him to the hearing. 

 V. 

 For all of the above reasons, we find that the Commissioner’s final 

determination that Myers was not disabled and that, within the limitations described, 

Myers could perform his past relevant work as a cleaner, is supported by substantial 

evidence in the record. Accordingly, we will affirm the decision of the district court. 

 
TO THE CLERK OF THE COURT: 

 

 Please file the foregoing Opinion. 

 /s/ Theodore A. McKee 

 Circuit Judge