Jenkins v. Commissioner of Social Security ( 2006 )

Opinions of the United
2006 Decisions States Court of Appeals
for the Third Circuit
8-18-2006
Jenkins v. Comm Social Security
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-2677
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________________
Case No: 05-2677
____________________
GAIL JENKINS,
Appellant
v.
COMMISSIONER OF SOCIAL SECURITY
On Appeal from the United States District Court
for the District of New Jersey
(Civil Action No. 03-3508)
District Judge: Hon. William J. Martini
Submitted under Third Circuit LAR 34.1(a)
May 18, 2006
Before: SCIRICA, Chief Judge, McKEE and STAPLETON, Circuit Judges
(Opinion filed: August 18, 2006)
OPINION
McKEE, Circuit Judge.
Gail Jenkins appeals from the District Court’s order affirming the decision of the
Commissioner of Social Security denying her application for Supplemental Security
Income (“SSI”) under the Social Security Act. 42 U.S.C. § 423 et seq. The District Court
had jurisdiction pursuant to 42 U.S.C. §§ 405(g) and 1383(g), and we have jurisdiction
pursuant to 28 U.S.C. § 1291. For the reasons that follow, we will affirm.
I.
Inasmuch as we write primarily for the parties who are familiar with this dispute,
we need not reiterate the factual or procedural background of this appeal. The ALJ’s
decision is the final decision of the Commissioner when the Appeals Council denies a
request for review. Hartranft v. Apfel, 181 F.3d 358, 359. Our scope of review is limited
to determining if the Commissioner’s final decision is supported by substantial evidence.
42 U.S.C. §§ 405(g), 1383(g); Hartranft v. Apfel, 181 F.3d at 360. Substantial evidence
is “such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Id. (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)). It is “more
than a mere scintilla but may be somewhat less than a preponderance of the evidence.”
Ginsburg v. Richardson, 436 F.2d 1146, 1148 (3d Cir. 1971) (internal citation omitted).
The standard of substantial evidence includes deference to inferences drawn from the
facts that are supported by substantial evidence. Shaudeck v. Comm’r, 181 F.3d 429, 431
(3d Cir. 1999). A decision by the Commissioner that is supported by substantial evidence
will be upheld, even we might have reached a different conclusion from the facts.
Hartranft, 181 F.3d at 360.
II.
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In order to establish a disability under the Social Security Act, a claimant must
demonstrate a “medically determinable basis for an impairment that prevents him from
engaging in any ‘substantial gainful activity’ for a statutory twelve-month period.”
Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999) (quoting Stunkard v. Sec’y of Health
& Human Servs., 841 F.2d 57, 59 (3d Cir. 1988) and 42 U.S.C. § 423(d)(1)). The
claimant is prevented from engaging in any substantial gainful activity “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.” Id. at 427-28 (quoting 42 U.S.C. § 423(d)(2)(A)).
A disability claim is evaluated pursuant to the five-step procedure set forth by the
Social Security Administration in 20 C.F.R. §§ 404.1520 and 416.920. See Plummer, 186
F.3d at 428. First, the Commissioner must determine if the claimant is currently engaging
in substantial gainful activity. If so, the claim will be denied. Plummer, 186 F.3d at 428.
Second, the Commissioner must determine whether the claimant is suffering from a
severe impairment. If the claimant fails to make this showing, her claim will be denied.
Id. Third, the Commissioner looks at the impairments listed in 20 C.F.R. § 404.1520(d)
and determines whether the claimant’s medical evidence demonstrates one of these
impairments or its equivalent. Id. If the determination is in the negative, the analysis
proceeds to steps four and five. Fourth, the Commissioner must consider whether the
3
claimant possesses the residual functional capacity to perform her past relevant work. Id.
(citing 20 C.F.R. § 404.1520(d)). The claimant has the burden of establishing her
inability to return to her past relevant work. Id. Step Four includes the following three
substeps: (I) “the ALJ must make specific findings of fact as to the claimant’s residual
functional capacity”; (ii) “the ALJ must make findings of the physical and mental
demands of the claimant’s past relevant work”; and (iii) “the ALJ must compare the
residual functional capacity to perform past relevant work to determine whether the
claimant has the level of capability needed to perform the past relevant work.” Burnett v.
Comm’r of Soc. Sec. Admin., 220 F.3d 112, 120 (3d Cir. 2000). If the claimant meets her
burden, the burden then shifts to the Commissioner for the fifth and final step. In this
fifth step, the Commissioner must demonstrate that the claimant is able to perform other
available work; otherwise the claim of disability must be granted. Id. (citing 20 C.F.R. §
404.1520(f)).
III.
Dr. E.V. Medrano saw Jenkins in 1992 and 1993 for neck pain. Tr. 112-13. He
completed a report on July 15, 2000, which noted that Jenkins’ neurological examination
was normal. Id. Her extremities also were normal. Id. Dr. F. Brand also saw Jenkins for
neck pain, in 1999. Tr. 120. Dr. Brand diagnosed Jenkins’ pain as cervical radiculopathy
and degenerative disc disease. Tr. 121. He prescribed Indocin, cold compress, and
physical therapy. Id. We do not have any assessment by Dr. Brand concerning Jenkins’
4
response to treatment. Jenkins also had an MRI scan of her cervical spine in October,
1999, which showed a bulging disc with dessication at the C3-4 and C4-5 disc. Tr. 131.
This medical information predates the relevant period.
The period relevant to our analysis is from March 24, 2000 to June 28, 2002. On
June 18, 2001, Jenkins’ MRI of her lumbosacral spine was normal, as were x-rays of her
chest, left shoulder, and lumbosacral spine. Tr. 177, 140.
On June 20, 2001, Jenkins was examined by Dr. Kenneth W. Mahan at the
Commissioner’s request. Jenkins reported that she had suffered an injury to her left
shoulder and left side while moving furniture in 1993. Tr. 149. X-rays at the time had
shown no fracture or dislocation. Id. Despite seeing a chiropractor and physician, she
continued to have pain in her left shoulder and on her left side. Id. Dr. Mahan’s report
states that Dr. Meheta prescribed physical therapy, skeletal muscle relaxants, and
painkillers in 1993. Id. Jenkins still had a recurrent left parascapular pain. Id.
Dr. Mahan noted that Jenkins was 5'4" and 213 pounds. Tr. 150. She could dress
and undress without difficulty. The physician observed a left parascapular pain with
radiculopathy into her left shoulder and down her left arm and left latissimus dorsi muscle
range. Id. He also observed moderate paraspinal muscle spasms bilaterally and loss of
lumbar lordosis. Id. No radicular pain was carried into the lumbosacral and to the sacral
parts, nor was there marked tenderness in the lumbosacral joints. Id. Jenkins had straight
leg raising of 70 degrees bilaterally and her forward flexion of her spine was 60 degrees.
5
Id. Jenkins was able to tiptoe, heel walk, squat, kneel, and bend. Id. Her shoulder
motions were normal, as were the dorsiflexion and palmar flexion of the wrists, elbow,
and hands. Id.
Dr. Mahan diagnosed Jenkins with chronic lumbar strain, trigger point myofascitis
of the left parascapular region and the left shoulder-arm syndrome. Id. He noted that her
MRIs and all radiographs were negative. Id. He found no sensory changes in her upper
extremities involving the radial, ulnar, axillary, or median nerve. Id. Dr. Mahan
determined her status was post jerk injury or over stretch injury, hyperextension injury of
the left shoulder and the left trunk involving the latissimus dorsi muscle group. Id.
On July 5, 2001, State agency physician Dr. Raymond Briski reviewed Jenkins’
medical evidence and found that she did not have a severe functional orthopedic
impairment. Tr. 134.
A physical therapy report of August of 2001 indicates Jenkins reported that she
had injured herself in 1993, but that the pain had become worse in the past three weeks.
Tr. 179. The report also relays that Jenkins had attended school from 9 a.m. to 5 p.m.
each day for the past three weeks. Tr. 180. The report indicates that Jenkins had had
trouble with stairs in the past three weeks and the pain in her left hip and side had
worsened. Id. The report states that Jenkins reported being unable to walk far distances
on some days and that she could not do a lot of housework because it caused too much
pain afterwards. Id. Also noted on the report were asthma, anemia, and obesity, and the
6
medications that were being used to treat those conditions. Id. On August 18, 2001,
Jenkins had a chest x-ray that was normal and an x-ray of her lumbar spine revealing mild
narrowing of the L5-S1 space, but no fracture or listhisis. Tr. 178.
Jenkins attended three sessions of physical therapy, but she was dismissed from
further sessions after twice failing to attend. Tr. 173. However, she had experienced
some improvement in her previous visits. Tr. 174.
At the hearing, Dr. Albert G. Mylod, an orthopedic surgeon, testified after
reviewing Jenkins’ medical records. He reiterated that the x-rays all were normal and
most of the other evidence was normal, although he did state that a Dr. Brant had said one
x-ray showed degenerative disc disease at C6-7. Tr. 44, 49. He stated that because the
MRI was not entirely readable, “[w]e know the cervical is not normal, we just don’t know
to what extent it is because we can’t read it all.” Tr. 49. The MRI of the lumbar spine
was normal. Tr. 49.
V.
The ALJ concluded that Jenkins had not suffered from a disability under the Social
Security Act at any time through the date of his decision. Following the five-step analysis
required, the ALJ first found that Jenkins had not engaged in substantial gainful activity
since her alleged onset date of March 24, 2000. Second, he determined that Jenkins has a
severe orthopedic condition relating back to her 1993 injury. The ALJ then examined
Jenkins’ impairments. He found that an October 15, 1999 MRI of her cervical spine
7
revealed anterior bulging of the C5-C6 disc and dessication of the C3-C4 and C4-C5
discs, and a left internal component of a herniated C4-C5 disc, with left nerve
compression. He found that Jenkins had had chiropractic treatment from July 26, 1999
through December 1, 1999, but remained symptomatic. X-rays taken on June 19, 2000 of
Jenkins’ chest, left shoulder, and lumbosacral spine were normal.
The ALJ found that Dr. Medrano, Jenkins’ treating physician since March 3, 1992,
indicated in a July 15, 2000 report that Jenkins had infrequent visits and that she suffered
from URI, neck pain, and low back pain from 1993. He had seen Jenkins last on
February 6, 1993. A subsequent treating physician, Dr. Brunt, indicated in a July 11,
2000 report that he had last seen Jenkins on June 1, 1999 and that she had a six-year
history of neck pain radiating to her arms. He observed neck pain, spasm of the
scapualae, and, from the x-ray images, degenerative disc disease at the C6-C7 level. He
diagnosed cervical radiculopathy and degenerative disc disease. He noted Jenkins had
undergone physical therapy and taken cold compresses and Indocin, but that the results
were unknown.
As noted above, the ALJ noted that the MRI performed on June 18, 2001 on
Jenkins’ lumbosacral spine was normal, although Jenkins continued to have pain. The
ALJ recounted that based on his consultative evaluation on June 20, 2001, Jenkins
reported to Dr. Mahan, the state agency physician, that she had sustained a jerk injury to
her left shoulder and side while moving heavy furniture in 1993. She also reported
8
having developed a “stinger” in her left shoulder and neck, and that her x-rays at the time
of the injury were normal. Chiropractic treatment had not been successful, and she
continued to have pain on her left side. The ALJ restated Dr. Mahan’s conclusions,
which we have recited above.
The ALJ also noted that the Mckenzie Institute Lumbar Spine Assessment form,
dated August 23, 2001, indicated that Jenkins had been laid off from her job as a desk
clerk in 1999, that her symptoms included left hip pain, particularly when climbing stairs,
and that she had had pain in her left side since 1993. It also noted that Jenkins suffered
from asthma, hypertension, anemia, and obesity.
To complete the third step, the ALJ evaluated the severity of Jenkins’ “orthopedic
condition or impairments” under the Listing of Impairments in Appendix 1, Subpart P,
Regulations No. 4, section 1.00, however, he determined that the record did not merit a
finding at this level.
In undertaking the fourth step, the ALJ examined whether Jenkins had the residual
functional capacity to perform her past relevant work. The ALJ concluded that, although
Jenkins had worked until September 30, 1999, when the Army base where she was
working closed, she did not seek work thereafter once the base closed. However, she
continued to live with her ten-year-old son without receiving help from anyone to assist in
maintaining the household. Moreover, the ALJ was skeptical about Jenkins’ subjective
complaints. The ALJ concluded that Jenkins did not stop working because of her
9
orthopedic injuries or pain. Rather, the ALJ concluded that she stopped because her job
no longer existed. That is consistent with the fact that, although she returned to work as a
hotel clerk only one month after her 1993 injury, she did not file her disability claim or
seek treatment for her left shoulder until immediately after she was laid off.
In evaluating the extent to which Jenkins’ shoulder condition prevents her from
working, the ALJ considered an October 15, 1999 MRI that showed a problem with
Jenkins’ cervical spine, and the fact that chiropractic treatment had not been very
successful. However, the ALJ also pointed to the normal x-rays of the left shoulder,
lumbosacral spine, and chest of June 20, 2001. He also noted that Jenkins’ infrequent
visits to Dr. Medrano were consistent with her ability to work during that time, and her
visits to Dr. Brunt occurred after the base closed. The ALJ also discussed Dr. Mahan’s
findings.
The ALJ concluded that Jenkins probably would still be working as a hotel desk
clerk if the base had not closed. Nothing in the record indicated that she could not lift
weight that did not exceed 20 pounds, or that perform other activity expected of a hotel
clerk such as frequent reaching and pushing or pulling using the left upper extremities.
Accordingly, the ALJ determined that Jenkins had the residual functional capacity to
perform her past relevant work as a hotel desk clerk, and that she was not disabled.
VI.
As stated above, we must determine whether substantial evidence supports the
10
decision of the ALJ. Thus, we must decide whether the record as a whole would allow a
reasonable fact finder to accept the conclusions reached by the Commissioner.
In arguing against the ALJ’s conclusion, Jenkins first claims that she suffers from
twelve severe impairments, and that the ALJ did not clarify which he found severe at step
two of his inquiry. However, nine of these impairments are subsumed into the ALJ’s
determination that Jenkins suffered from a severe orthopedic condition relating to her
1993 injury. Moreover, in making that determination, the ALJ did specifically mention
the nine impairments. The fact that a severity determination was not made as to each of
the nine impairments comprising the ultimate determination that Jenkins had a severe
orthopedic condition is not significant. See 20 C.F.R. §§ 404.1520©), 416.920©). Nor is
it significant that the ALJ failed to link restrictions with impairments.
Jenkins argues that the ALJ erred in not explaining why the three impairments that
were clearly not part of the severe orthopedic condition – asthma, anemia, and obesity –
were not severe. However, an impairment is not severe if it does not significantly limit
the claimant’s physical ability to do basic work activities, including walking, standing,
sitting, lifting, pushing, pulling, reaching, carrying, or handling. 20 C.F.R. §§
404.1520(c), 404.1521(a); Newell v. Comm’r of Soc. Sec., 347 F.3d 541, 546 (3d Cir.
2003). It was Jenkins’ burden to establish that any impairment results in work-related
limitations. She failed to do so with regard to her claims of asthma, anemia, or obesity.
Next, Jenkins argues that the ALJ’s determination violates our directive in Burnett
11
v. Commissioner of Social Security, 220 F.3d 112 (3d Cir. 2000). There, we found the
ALJ’s step three determination was nothing more than a bare conclusion and thus could
not be meaningfully reviewed. 220 F.3d at 119. We directed the ALJ there to fully
develop the record and explain his step three findings, including an analysis of why the
claimant’s impairments were not equivalent in severity to those listed. Id. at 120.
Here, however, the ALJ specifically indicated that he had considered section 1.00,
which pertains to all impairments related to the musculoskeletal system. 20 C.F.R. Part
404, Subpart P, App. 1, § 1.00. The MRI and radiographs of the relevant areas were
negative. Additionally, Jenkins had to show that she was unable to perform fine and
gross movements effectively. Id.
Section 1.04 relates to disorders of the spine resulting in compromise of a nerve
root or the spinal cord. 20 C.F.R. Part 404, Subpart P, App. 1, § 1.04. For the reasons
explained by the ALJ, Jenkins simply does not meet all the criteria listed in section 1.04.
The ALJ properly found that “[t]here were no significant findings with respect to the
lumbosacral area or neurological deficits.” Tr. 16. Jenkins had no sensory changes in the
upper extremities and could perform her straight leg raising test to 70 degrees. She could
tiptoe, heel walk, squat, kneel, and bend without apparent difficulty and had normal
reflexes in the upper extremities with full grip strength.
Accordingly substantial evidence supports the ALJ’s determination that Jenkins’
impairments did not match any of those listed. Although the ALJ did not specifically
12
state which subsections he considered in making his determination, his findings are
sufficiently explained to allow meaningful judicial review, and that is what Burnett
requires. 220 F.3d at 119.
Jenkins next argues that the ALJ improperly found she could perform her past
relevant work. We have already mentioned the three substeps that are relevant to an
inquiry at step four. See Burnett, 220 F.3d at 120. “Residual functional capacity” is what
the claimant is “still able to do despite the limitations caused by his or her impairment(s).”
Id. at 121 (quoting Apfel, 181 F.3d at 359 n.1).
The ALJ determined that Jenkins’ only limitations were in lifting or carrying more
than 20 pounds and frequent reaching and pushing or pulling involving the left upper
extremity. He also found that Jenkins’ past relevant work as a hotel desk clerk did not
require her to perform any work-related activities that were precluded by these
limitations. These findings are supported by substantial evidence, specifically, the
opinions of Drs. Mahan and Briski, as well as Dr. Mylod, as discussed above.
Furthermore, in Jenkins’ initial application for benefits, she indicated that her hotel desk
clerk job had entailed walking, standing, and sitting for four hours each, and lifting less
than ten pounds. Tr. 76. The Dictionary of Occupational Titles identifies the job of hotel
clerk as light work, which involves lifting no more than twenty pounds at a time, with
frequent lifting or carrying of objects weighing up to ten pounds. Dictionary of
Occupational Titles, I. Code Nos. 238.367-038, Vol. 1, p.209 (4th ed. Rev. 1991).
13
As stated above, it is the claimant’s burden to establish that she is unable to return
to her past relevant work. Plummer, 186 F.3d at 428. On this record, it was reasonable
for the ALJ to conclude that Jenkins could perform the requirements of her past relevant
work. Moreover, the ALJ doubted the veracity of Jenkins’ subjective complaints. It was
Jenkins’ burden to demonstrate by medical indications or findings that an underlying
condition existed, which would reasonably be expected to produce the symptoms
complained of. 42 U.S.C. § 423(d)(5)(A); 20 C.F.R. §§ 404.1529(b), 416.929(b). If the
symptoms suggest a greater functional restriction than is demonstrated by the objective
evidence alone, the Commissioner considers evidence such as the claimant’s statements,
daily activities, duration and frequency of pain, medication, and treatment. 20 C.F.R. §§
404.1529(c)(3), 416.929(c)(3). The Commissioner has discretion to evaluate the
credibility of the claimant’s complaints and draw a conclusion based upon medical
findings and other available information.
The ALJ’s rejection of Jenkins’ subjective complaints is consistent with the
medical evidence in this record.
V.
Accordingly, for all the reasons set forth above, the order of the District Court
affirming the ALJ’s rejection of Jenkins’ claim will be affirmed.