Cop v. Commissioner of Social Security , 226 F. App'x 203 ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
4-4-2007
Cop v. Comm Social Security
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-1866
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007
Recommended Citation
"Cop v. Comm Social Security" (2007). 2007 Decisions. Paper 1353.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1353
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 06-1866
____________
JOSEPH J. COP,
Appellant
v.
COMMISSIONER OF SOCIAL SECURITY
____________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 04-cv-05433)
District Judge: Honorable Garrett E. Brown, Jr.
____________
Submitted Under Third Circuit LAR 34.1(a)
March 26, 2007
Before: FISHER, JORDAN and ROTH, Circuit Judges.
(Filed: April 4, 2007)
____________
OPINION OF THE COURT
____________
FISHER, Circuit Judge.
This case involves a claim for disability insurance benefits (“DIB”) and
supplemental security income (“SSI”) under Titles II and XVI of the Social Security Act,
(the “Act”). Joseph J. Cop appeals the District Court’s determination that substantial
evidence supported the Commissioner of Social Security’s (“Commissioner”) decision
that Cop did not qualify for DIB or SSI. For the following reasons, we will affirm the
District Court’s judgment.
I.
As we write only for the parties, who are familiar with the factual context and the
procedural history of the case, we will set forth only those facts necessary to our
analysis.1 Cop filed an application for DIB and SSI on April 16, 2002, claiming disability
since December 21, 2001. Cop claimed that he had hypertension, diabetes, depression,
respiratory problems, headaches, poor eyesight, hearing difficulties, and problems with
his back and neck. After his application was denied, Cop sought reconsideration, and
appealed after his request for benefits was again denied. Cop’s case was then heard by an
administrative law judge (“ALJ”).
At the hearing before the ALJ, Cop was the only witness. He testified that before
becoming disabled he was a taxi driver, but he did not leave the job because of his health.
Rather, he was fired because he was not sufficiently familiar with the area in which he
drove the taxi. Cop also testified that he no longer drives a car because he could not
afford the insurance, but even when he drove he could only drive for short periods of time
as pain required him to shift positions often. Cop’s poor eyesight in his left eye was not a
1
The evidence included in Cop’s appendix related to the Commissioner’s approval
of Cop’s claim for benefits with an onset date of April 29, 2004, is not relevant to these
proceedings and was not part of the record below. Therefore, this evidence is not
considered in our analysis of this case.
2
new problem, and it did not prevent him from driving. However, he testified that he had
no night vision, and that his vision had gotten progressively worse. But, he also testified
that he only wore glasses for reading. Cop testified that he was able to sit for five to
thirty minutes, and could walk approximately one-tenth of a mile with breaks. He also
stated that he could only stand for five minutes, was unable to carry heavy items, had
trouble bending, and that it was painful to get in and out of a car.
Medical evidence was also submitted to and considered by the ALJ. The medical
evidence in the record is extensive, and it is not necessary for us to recite it all to
adjudicate the claims before us. Prior to the alleged onset of the disability, Cop was
diagnosed with, among other things, a generalized anxiety disorder due to his admission
to the hospital for Legionnaires’ disease, possible personality difficulties, diabetes, and
hypertension. Cop also suffered from headaches and pain in his lower back and legs.
After the alleged onset of the disability, Cop complained of abdominal pain but multiple
CT scans produced normal results. It was also determined that Cop had lost some ability
to hear in one ear, and a hearing aid was recommended.
Cop saw a psychologist at the end of June 2002. Although he told the psychologist
that he was depressed, the psychologist noted that there was no current or past psychiatric
treatment and that his affect was bright. Cop informed the psychologist that he engaged
in community service three times a week for four hours each day. He also reported that
he engaged in household chores, and searched for an apartment and a job on a daily basis.
The psychologist diagnosed Cop with adjustment disorder and determined that his global
3
assessment function was sixty-five and had been seventy-five the previous year. In July
2002, a state psychologist determined that Cop’s psychological issues were not severe,
and that he only had minor limitations in activities of daily living.
Cop was also examined by a medical doctor in August 2002. That doctor observed
that although Cop complained of difficulty in stooping or bending and walking up stairs,
he only had minimal difficulties with getting on and off the examination table. Further,
the doctor stated that Cop appeared to “ambulate without difficulty and without the aid of
an assisted device.” He also found Cop’s visual acuity to be 20/20 in his right eye and
20/200 in his left eye. Cop had decreased muscle strength on his left side, was not able to
walk on his heels or toes, and had some difficulty maintaining his balance.
Cop was seen by a state agency medical doctor in August 2002. That doctor
determined that Cop had the functional capacity to occasionally lift and carry up to fifty
pounds, frequently carry and lift up to twenty-five pounds, and stand, walk or sit-up for
about six hours a day. He also noted that Cop had limited depth perception and field of
vision, as well as a mild hearing loss. Finally, the doctor stated that these impairments
did not meet or equal a listing.
In March 2003, Cop was diagnosed with acute sciatica, which improved with
medication. In April 2003, an MRI of Cop’s lumbar spine demonstrated that he had a
posterior disc protrusion. A vascular surgeon examined Cop in August 2003 regarding
his complaints that he had trouble walking. The surgeon diagnosed Cop with only mild
coronary disease, and did not recommend bypass surgery.
4
After hearing Cop’s testimony and reviewing all of the medical evidence, the ALJ
denied Cop’s claim finding that although Cop had “a severe impairment or combination
of impairments [he] retain[ed] the residual functional capacity to return to the work he
performed in the past.” The ALJ determined that Cop’s diabetes, hearing loss,
hypertension, headaches and back problems were severe impairments, but that none of
Cop’s impairments were within the listings. Because Cop retained a residual functional
capacity and could return to past relevant work, the ALJ found that Cop was not disabled
as defined by the Act and was not eligible to receive DIB or SSI.
Cop appealed the ALJ’s decision to the Appeals Council, which found no grounds
for review.2 Cop then filed suit in the District Court. The District Court affirmed the
Commissioner’s decision and dismissed the appeal finding that substantial evidence
supported the decision. Finally, Cop brought this timely appeal.
II.
We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the ALJ’s findings
to determine whether they were supported by substantial evidence. Podedworny v.
Harris, 745 F.2d 210, 217 (3d Cir. 1984); 42 U.S.C. § 405(g). Substantial evidence is
“such relevant evidence as a reasonable mind might accept as adequate.” Ventura v.
Shalala, 55 F.3d 900, 901 (3d Cir. 1995) (internal quotation marks and citation omitted).
2
The Appeals Council’s denial of Cop’s request for review made the ALJ’s
decision the final decision of the Commissioner.
5
It is “less than a preponderance of the evidence but more than a mere scintilla.” Jessurum
v. Sec’y of U.S. Dep’t of Health & Human Servs., 48 F.3d 114, 117 (3d Cir. 1995).
III.
An individual must be disabled in order to qualify for benefits under the Act and
the accompanying regulations. Disability is defined as “the inability 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.
§§ 423(d)(1)(A), 1382c(a)(3)(A). A five-step test is used to determine whether an
individual qualifies for DIB or SSI. See Sullivan v. Zebley, 493 U.S. 521, 525 (1990).
Steps one through three require the claimant to prove (1) that he is not currently engaging
in substantial gainful activity, (2) that he suffers from a severe impairment,3 and (3) that
his disability meets or equals a listed impairment. See Plummer v. Apfel, 186 F.3d 422,
428 (3d Cir. 1999).
If a claimant does not suffer from a listed impairment or its equivalent, the
analysis proceeds to steps four and five. Step four requires the ALJ to
consider whether the claimant retains the residual functional capacity[4] to
perform h[is] past relevant work. The claimant bears the burden of
demonstrating an inability to return to [his] past relevant work.
3
If the claimant fails to prove step one or two, he is ineligible for SSI or DIB. See
Plummer v. Apfel, 186 F.3d 422, 428 (3d Cir. 1999).
4
Residual functional capacity is “what [the claimant] can still do despite his
limitations.” 20 C.F.R. § 416.945(a).
6
Id. (internal citations and quotations omitted). If the ALJ determines that the claimant
cannot resume his prior occupation, the burden shifts to the Commissioner at step five to
show that the claimant is capable of performing other work.5 Id. (internal citations
omitted).
On appeal, Cop attacks the ALJ’s determinations at steps two through four. As for
step two, Cop claims that there was not substantial evidence to support the ALJ’s
determination that his psychiatric and visual impairments were not severe. An
impairment is severe if it “significantly limits [the claimant’s] physical or mental ability
to do basic work activities.” 20 C.F.R. § 404.1520. Basic work activities include
“abilities and aptitudes necessary to do most jobs.” Newell v. Comm’r of Soc. Security,
347 F.3d 541, 546 (3d Cir. 2003) (internal quotation marks and citations omitted). We
have explained that the claimant’s burden is to show that the impairment has more than a
minimal effect on his or her ability to work. See id. (internal citations omitted). Although
the standard of review remains the same, courts should give close scrutiny to a
determination that a claimant fails to meet his or her burden at step two. McCrea v.
Comm’r of Soc. Security, 370 F.3d 357, 360-61 (3d Cir. 2004).
5
Other work means that “[t]he ALJ must show that there are other jobs existing in
significant numbers in the national economy which the claimant can perform, consistent
with h[is] medical impairments, age, education, past work experience, and residual
functional capacity.” Plummer, 186 F.3d at 428. Often the ALJ seeks assistance from a
vocational expert at this step. Id. (internal citations omitted).
7
Cop argues that he met this burden. However, the record demonstrates that there is
substantial evidence to support the ALJ’s determination. The medical evidence does not
suggest that Cop had a severe mental impairment which would limit his ability to work,
nor did he provide testimony of such an impact. Similarly, the record does not reflect that
his vision problem limited his ability to work. The medical evidence explains that he had
limited depth perception and field of vision, but there is no explanation of how this
impacted his ability to work. Cop’s testimony did not provide an explanation either. He
testified that he was able to drive, and although his sight was getting progressively worse,
the only problem he had was due to his lack of night vision. But, this problem existed
before the alleged onset of the disability, including when Cop was employed as a taxi
driver. Even under close scrutiny, there is substantial evidence to support the conclusion
that Cop’s mental and visual impairments were not severe.
Cop’s next claim is that the ALJ failed to compare the listings to Cop’s
impairments as required at step three. Cop relies on Burnett v. Commissioner of Social
Security Administration, 220 F.3d 112, 119-20 (3d Cir. 2000), in support of his claim that
the ALJ’s step three analysis is so inadequate that it cannot be given a meaningful judicial
review. Cop is correct that “this Court requires the ALJ to set forth the reasons for his
decision.” Id. at 119 (internal citation omitted). However, this is not a case where the
ALJ failed to identify the relevant listings, discuss the evidence or explain his reasoning.
Id. (internal citation omitted). Rather, the ALJ identified the relevant listings in his
opinion, discussed the medical evidence and Cop’s testimony, and explained that the
8
evidence demonstrated that Cop’s impairments do not meet or equal the listing
requirements. See, e.g., Knepp v. Apfel, 204 F.3d 78, 84-86 (3d Cir. 2000). The fact that
the ALJ included the medical evidence in his discussion of residual functional capacity
(and stated that he was doing so), instead of including it twice, does not change this
result. The ALJ’s determination is supported by substantial evidence and therefore Cop’s
claim is without merit.
Cop also claims that the ALJ failed to compare the combination of his impairments
to the listings. Cop is incorrect. The ALJ stated that there was no evidence in the record
that Cop’s “condition” met or equaled any listing requirement, and found that despite his
impairments or combination thereof he retained a residual functional capacity to engage
in “medium work.” As discussed above, the ALJ properly analyzed whether the
impairments met the listing requirements. The ALJ’s decision that none of Cop’s
impairments equaled a listing is also supported by substantial evidence as Cop produced
no medical evidence of the equivalence. A decision about whether impairments are a
medical equivalent is based on “medical evidence only.” 20 C.F.R. § 404.1526(c).
Therefore, there was substantial evidence to support the ALJ’s determination that none of
Cop’s impairments or the combination of his impairments equaled a listing because Cop
produced no medical evidence regarding the equivalence of his impairments to a listing.
Cop next claims that the ALJ failed to provide an adequate analysis for his
determination of Cop’s residual functional capacity and that the determination lacks
evidentiary support. At step four, the ALJ must determine the claimant’s residual
9
functional capacity and whether it enabled him to perform past relevant work. In
determining a claimant’s residual functional capacity, the ALJ must consider all of the
evidence before him. Burnett, 220 F.3d at 120. An ALJ “may weigh the credibility of
the evidence, [but] he must give some indication of the evidence which he rejects and his
reason(s) for discounting such evidence.” Id. (internal citations omitted). This is true for
non-medical evidence as well; even if a claimant’s testimony of pain or other subjective
symptoms is not supported by objective medical evidence, the ALJ “must still explain
why he is rejecting the testimony.” Id. at 122 (internal citations omitted).
In this case, the record demonstrates that the ALJ considered all of the medical and
non-medical evidence before him in determining Cop’s residual functional capacity.
There was no medical evidence that contradicted the ALJ’s finding and therefore there
was nothing for the ALJ to reject. Cop’s testimony regarding his pain and symptoms was
not supported by objective medical evidence and the ALJ did reject his testimony.
However, as required, the ALJ also explained his reasons for rejecting the testimony: the
extensive medical evidence in the record contradicted Cop’s subjective claims and the
subjective claims were not credible to the extent alleged. The ALJ’s determination that
Cop could engage in “medium work” was reached by a proper analysis of the entire
record and is supported by substantial evidence.
Cop’s final claim is that the ALJ’s determination that Cop could engage in past
relevant work was improper and not supported by substantial evidence. In making a
determination of past relevant work, an ALJ determines the “physical and mental
10
demands of jobs a claimant has performed in the past.” Burnett, 220 F.3d at 123 (internal
quotation marks and citation omitted). “The claimant is the primary source for vocational
documentation, and statements by the claimant regarding past work are generally
sufficient for determining the skill level, exertional demands and nonexertional demands
of such work.” Id. (internal quotation marks and citation omitted). Whether the claimant
can still perform such work is determined based on the claimant’s testimony about the
past work requirements he or she can no longer perform, medical evidence regarding the
claimant’s impairments, and sometimes supplementary information including the
Dictionary of Occupational Titles. Id. The past relevant work determination “must be
based on evidence drawn from the[se] . . . three categories.” Id. (internal citation
omitted).
In this case, Cop testified that he could no longer perform his past jobs of a taxi
driver or courier because he had trouble carrying things and walking long distances. He
explained that a taxi driver often has to carry a customer’s luggage or groceries and
couriers often use special parking which is located far from the building. The ALJ
consulted the Dictionary of Occupational Titles which describes the position of a taxi
driver as a position requiring medium exertional levels. As the ALJ found in his
discussion regarding residual functional capacity, Cop’s testimony regarding his
impairments is not supported by objective medical evidence. An ALJ is not required to
give great weight to a claimant’s subjective testimony when the testimony is not
supported by medical evidence. See Schaudeck v. Comm’r of Soc. Security, 181 F.3d
11
429, 433 (3d Cir. 1999) (internal citations omitted). Additionally, Cop did not offer any
evidence or testimony regarding whether the position of taxi driver requires more than a
medium exertional level. Cf. Burnett, 220 F.3d at 123. Because the ALJ relied on the
Dictionary of Occupational Titles and the medical evidence in the record, there is
substantial evidence to support his determination that Cop can return to his relevant past
work.
IV.
For the foregoing reasons, we will affirm the District Court’s judgment that
substantial evidence supports the ALJ’s determination that Cop was not eligible for SSI
or DIB during the relevant time period.
12