Adorno v. Shalala, Sec'y HHS ( 1994 )

Opinions of the United
1994 Decisions 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Precedential or Non-Precedential: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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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.