Kenney v. Commissioner of Social Security , 232 F. App'x 183 ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
5-18-2007
Kenney v. Comm Social Security
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-2269
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-2269
ANNE KENNEY,
Appellant
v.
COMMISSIONER OF SOCIAL SECURITY
On Appeal from the United States District Court
for the District of New Jersey
D.C. Civil Action No. 03-cv-2952
(Honorable Dennis M. Cavanaugh)
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 23, 2007
Before: SCIRICA, Chief Judge, FUENTES and ALARCÓN*, Circuit Judges.
(Filed: May 18, 2007)
OPINION OF THE COURT
*
The Honorable Arthur L. Alarcón, United States Circuit Judge for the Ninth Judicial
Circuit, sitting by designation.
SCIRICA, Chief Judge.
Petitioner Anne Kenney appeals the District Court’s Order affirming the
Commissioner’s decision to deny Supplemental Security Income benefits prior to April 1,
2000. We will affirm.
I.
Anne Kenney was born on May 14, 1946. She attended one year of college and
performed a variety of jobs in the past, but she does not qualify as having any past
relevant work experience under 20 C.F.R. § 416.956(a). Kenney contends she suffers
from severe orthopedic, pulmonary, and psychiatric conditions. These conditions include
lower back, hand, and knee pain, asthma, depression, and anxiety.
Kenney first applied for SSI benefits on February 23, 1996. Her initial application
for benefits was denied. After a hearing, the ALJ denied Kenney’s application, and
Kenney timely appealed to the Appeals Council. On April 25, 2000, Kenney filed
another application for SSI, and the state agency found she was under a disability starting
April 1, 2000. The Appeals Council then vacated the ALJ’s decision, consolidated both
claims, and remanded the consolidated case to the ALJ for adjudication. The ALJ found
Kenney under a disability as of April 1, 2000, but not before that date. After the Appeals
Council denied review, the ALJ’s decision became final. The District Court affirmed,
finding “that the Commissioner’s decision that Plaintiff was not disabled in 1996 [was]
based on a complete analysis, supported by substantial evidence.” Kenney v. Comm’r of
Soc. Sec., No. 03-2952 (D.N.J. Feb. 21, 2000). Kenney timely appealed.
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II.
The District Court had jurisdiction under 42 U.S.C. § 405(g) and we have appellate
jurisdiction under 28 U.S.C. § 1291. We employ a substantial evidence standard to
review a Commissioner’s final denial of SSI benefits. Substantial evidence is “such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Morales v. Apfel, 225 F.3d 310, 316 (3d Cir. 2000) (internal quotations and
citations omitted). Despite this deference, we have the “responsibility to scrutinize the
entire record and to reverse or remand if the [Commissioner]’s decision is not supported
by substantial evidence.” Id. at 317 (quoting Smith v. Califano 637 F.2d 968, 970 (3d Cir.
1981)).
Evidence is not substantial if the Commissioner or the ALJ failed to consider all
relevant evidence or failed to explain the resolution of conflicting evidence. See Burnett
v. Comm’r of Soc. Sec., 220 F.3d 112, 121 (3d Cir. 2000). The ALJ is not “require[d] . . .
to use particular language or adhere to a particular format in conducting his analysis.
Rather, [there must be] . . . sufficient development of the record and explanation of
findings to permit meaningful review.” Jones v. Barnhart, 364 F.3d 501, 505 (3d Cir.
2004). “In the absence of such an . . . [explanation], the reviewing court cannot tell if
significant probative evidence was not credited or simply ignored.” Cotter v. Harris, 642
F.2d 700, 705 (3d Cir. 1981). Additionally, evidence is not substantial if it is
overwhelmed by other evidence, such as that of a treating physician, which is accorded
great weight. See Morales, 225 F.3d at 317.
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III.
To be eligible for disability benefits, a claimant has the burden to demonstrate that
she is “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 twelve
months.” 42 U.S.C. § 1382c(3)(A). There is a five-step sequential evaluation process to
determine whether a claimant is disabled: (1) whether the claimant is currently engaged in
substantial gainful activity; (2) whether she has a severe impairment; (3) whether her
impairment meets or equals a listed impairment; (4) whether the claimant’s impairment
prevents her from performing her past-relevant work; and (5) whether the claimant can
perform any other work which exists in the national economy, in light of her age,
education, work experience, and residual functional capacity.1 20 C.F.R. §
404.1520(a)(4); see also Newell v. Comm’r of Soc. Sec., 347 F.3d 541, 545–46 (3d Cir.
2003). The claimant bears the burden of proof with respect to the first four steps, then the
burden shifts to the Commissioner at step five. Ramirez v. Barnhart, 372 F.3d 546,
550–51 (3d Cir. 2004).
The ALJ performed the five-step analysis and determined that Kenney had not
engaged in substantial gainful activity since 1996, and she has had severe asthma and
1
Under 20 C.F.R. § 404.1545(a), residual functional capacity is defined as the most
work a claimant may continue to perform in spite of physical or mental impairments and
related symptoms.
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orthopedic conditions, which do not meet or equal a listed impairment. Kenney does not
dispute these findings. But Kenney contends the ALJ erred in finding she had a residual
functional capacity “to perform light work in an environment free of excessive pulmonary
irritants” through March 2000, and only finding a residual functional capacity of
sedentary work after April 1, 2000.
The medical experts agreed that Kenney’s orthopedic problems progressively
deteriorated during the period at issue, but they set forth conflicting opinions as to the
date of debilitation from Grade I spondylolisthesis, evident on the 1996 X-ray, to Grade II
spondylolisthesis, shown in the 2000 X-ray. Dr. Albert Mylod, Jr., a board certified
orthopedic surgeon without an examining or treating relationship to Kenney, but engaged
and paid by Kenney, testified that the July 2000 X-ray showed progression in Kenney’s
orthopedic conditions and “with the benefit of hindsight,” Dr. Mylod assessed her
disability date as 1996. Dr. Mylod acknowledged Kenney did not have X-rays or MRI
scans completed between 1996 and 2000 to support his assessment of the onset date.
In contrast, Dr. Fetchner, an internist without an examining or treating relationship
to Kenney, testified at the post-remand hearing that “[t]here’s nothing in the record really
that pinpoints exactly” when Kenney’s residual functional capacity progressed from light
to sedentary due to her orthopedic deterioration. Dr. Fetchner agreed with Dr. Mylod that
Kenney’s condition progressed throughout the period, and did not suddenly deteriorate in
2000, but he testified “it wouldn’t necessarily go all the way back to 1996” and “I would
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have problems doing that with the lumbar sacral spine X-ray not as severe and who
knows when that started.”
Kenney contends the ALJ improperly discredited Dr. Mylod’s expert testimony.
The ALJ must “explain his reasons for discounting all of the pertinent evidence before
him in making his residual functional capacity determination.” Burnett, 220 F.3d at 121.
The ALJ did so here, and we find his conclusion supported by substantial evidence. The
ALJ noted Dr. Mylod’s opinion should be given less weight because he was a non-
examining, non-treating witness, and any weight given to his testimony depended on the
degree to which it was supported by objective evidence. See 20 C.F.R. 416.927(d)
(“[T]he more a medical source presents relevant evidence to support an opinion,
particularly medical signs and laboratory findings, the more weight we will give that
opinion.”). Dr. Mylod repeatedly acknowledged in his testimony that there were no X-
rays or MRI scans for the period between 1996 and 2000 from which to make a
conclusive determination of the onset of Kenney’s disability. Additionally, as late as
October 1999, Dr. Ronald Robinson, a treating physician at the Center for Family Health
at St. Mary Hospital, assessed a mild spinal condition. The ALJ “note[d] the dearth of
objective medical evidence regarding the claimant’s orthopedic impairment prior to July
2000” and found Dr. Mylod’s opinion not reasonable after considering the lack of
objective evidence to support his conclusion. The ALJ also noted Dr. Mylod’s potential
bias because he was retained and paid by Kenney, but made no finding on the issue.
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Because the ALJ considered the evidence presented, and provided a reasoned rejection of
Dr. Mylod’s testimony, we find the ALJ’s opinion supported by substantial evidence.
Kenney also contends the ALJ impermissibly rejected the opinion of her treating
physician, Dr. George Ciechanowski. “A cardinal principle guiding disability eligibility
determinations is that the ALJ accord treating physicians’ reports great weight, especially
‘when their opinions reflect expert judgment based on a continuing observation of the
patient’s condition over a prolonged period of time.’” Morales, 225 F.3d at 317 (quoting
Plummer, 186 F.3d at 429). But here, the ALJ rejected the opinion of Dr. Ciechanowski,
in part because he treated her infrequently, and also because he made his determination
that Kenney exhibited daily chronic symptoms in the period after she had suffered an
acute asthma attack. Additionally, the ALJ found Dr. Ciechanowski’s opinion
unsupported by objective medical evidence. Dr. Ciechanowski’s treatment notes
repeatedly describe Kenney’s asthma as stable. Dr. Fetchner testified that many
“patients[’ asthma] become[s] controlled and whether it was originally moderate or even
severe doesn’t mean anything[—]it’s the control.” In 1996, Dr. Sam Wilchfort found
Kenney had “mild restrictive disease.” In 1997, Dr. Gilbert Melnick found Kenney’s
“lungs show good aeration with no focal disease.” In 1999 and 2000, Dr. Robinson
described Kenney’s asthma as well-controlled. Considering the totality of the evidence,
we find the ALJ’s rejection of Dr. Ciechanowski’s opinion supported by substantial
evidence.
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Kenney contends the ALJ erred by not appointing a medical expert that specialized
in the field of the purported disability. An ALJ may appoint a medical expert when the
ALJ must determine the onset of an impairment. See Newell, 347 F.3d at 548 (internal
citations omitted). Although HALLEX I-2-5-36(D) states “[t]he ALJ or designee must
select the [Medical Examiner] whose expertise is most appropriate to the claimant’s
diagnosed impairment(s),” we do not find the ALJ erred in appointing Dr. Fetchner in
light of Kenney’s contention she suffers under a disability in three separate specialities,
pulmonary, psychiatric, and orthopedic. See Social Security Administration, Office of
Hearings and Appeals, Hearings, Appeals and Litigation Law Manual, at I-2-5-36(D)
(updated, Sept. 28, 2005), available at
http://www.ssa.gov/OP_Home/hallex/I-02/I-2-5-36.html. We note that the HALLEX
section cited by Kenney in her brief, HALLEX I-2-434(A), does not exist. Additionally,
the cases cited by Kenney, Newell v. Comm’r of Social Security, 347 F.3d 541(3d Cir.
2003), and Walton v. Halter, 243 F.3d 703 (3d Cir. 2001), and Social Security Ruling 83-
20, do not provide for the appointment of a medical expert within a particular specialty.
We find this claim lacks merit.
IV.
For the foregoing reasons, we will affirm.
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