Coppola v. Comm Social Security , 99 F. App'x 365 ( 2004 )

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
5-14-2004
Coppola v. Comm Social Security
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-3293
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
Recommended Citation
"Coppola v. Comm Social Security" (2004). 2004 Decisions. Paper 705.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/705
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 2004 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NOT PRECEDENTIAL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. 03-3293
DEBRA K. COPPOLA,
Appellant
v.
JO ANNE B. BARNHART,
COMM ISSIONER OF SOCIAL SECURITY
____________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
(D.C. Civ. No. 02-cv-00784 )
District Judge: Honorable Terrence F. McVerry
____________
Submitted Under Third Circuit L.A.R. 34.1(a)
May 11, 2004
Before: NYGAARD, McKEE, and WEIS, Circuit Judges.
(Filed May 14, 2004)
_______________
OPINION
WEIS, Circuit Judge.
The claimant in this Social Security Disability case was a legal secretary for
some 27 years. She was age 47 at the time of her hearing before an ALJ in 2001.
Claimant asserts that she has been unable to work in her previous capacity since
1
December 1998 as a result of injuries to her right shoulder incurred in an automobile
accident in July of that year.
Claimant underwent surgical procedures to her right shoulder in 1998, 1999
and 2000 and received other forms of treatment including physiotherapy, pain control and
various other regimens.
After a hearing, the ALJ found that the claimant’s “allegations regarding
her limitations are not totally credible.” He further found that while “the claimant is
unable to perform any of her past relevant work,” she nevertheless has the “residual
functional capacity to perform a significant range of light work . . . [of which] there are a
significant number of jobs in the national economy.” Accordingly, the ALJ concluded
that the claimant was not entitled to benefits.
After the Appeals Council had affirmed the ALJ’s decision, claimant
appealed to the United States District Court for the Western District of Pennsylvania.
The court entered summary judgment for the defendant, citing the ALJ’s conclusion that
“Plaintiff could perform light exceptional work with no repetitive right arm use, no
overhead reaching, and no extensive writing.” Coppola v. Barnhart, No. 02-0784, at 5
(W.D. Pa. filed June 18, 2003).
The District Court noted that the “ALJ found that Plaintiff’s statements and
testimony concerning her pain and its impact on her ability to work were not entirely
credible in that her stated limitations were far in excess of the supporting medical
2
evidence.” Id. at 9. Acknowledging that the claimant had a severe impairment, the court
nevertheless concluded that, in deference to the credibility determination by the ALJ and
the evidence of record, claimant was not disabled within the meaning of the Social
Security Act.
In the course of his review, the district judge agreed with the ALJ that
claimant did not meet the requirements of Social Security listing 1.13, 20 C.F.R. Pt. 404,
subpt. P, App. 1. At the time of the administrative hearing, that listing addressed soft
tissue injuries of an upper or lower extremity “requiring a series of staged surgical
procedures within 12 months after onset . . ..” Although there were three surgeries in this
case, we conclude that the District Court did not err in holding that they did not constitute
“staged procedures.” The claimant’s interpretation of the regulation would, in effect,
remove the term “staged” from the regulation – a critical requirement for its application.
After the ALJ’s decision, however, listing 1.13 was deleted and a new
listing, 1.08 was substituted. Rather than “staged surgical procedures,” the amendment
discusses soft tissue injury of an upper or lower extremity “under continuing surgical
management” and refers to section 1.00 (M) for the definition of that term. See 20 C.F.R.
Pt. 404, subpt. P, App. 1, Part A § 1.08. According to that section, “[u]nder continuing
surgical management . . . refers to surgical procedures and any other associated treatments
related to the efforts directed toward the salvage or restoration of functional use of the
affected part. It may include such factors as post-surgical procedures, surgical
3
complications, infections, or other medical complications, related illnesses, or related
treatments that delay the individual’s attainment of maximum benefit from therapy.” 20
C.F.R. Pt. 404, subpt. P, App. 1, Part A § 1.00M.
The change in language was made after the ALJ decided the case, but
before the Appeals Council reviewed the claim. The Council did not, however, discuss
the issue or even indicate that it believed the amendment was relevant. We believe that
the deletion of “staged surgical procedures” and the substitution of more general language
is significant, and might possibly be read by the Social Security Administration to entitle
the claimant to benefits.
Thus, we are presented with a regulation whose application to the case
before us has not been considered by the agency. If it is determined that the new
regulation is more favorable to the claimant than the original version, she should be
entitled to rely on the more expansive construction. See Niesse v. Shalala, 17 F.3d 264,
267 (8 th Cir. 1994); Dean v. Gardner, 393 F.2d 327, 330 (9 th Cir. 1968).
In these circumstances, and giving due deference to the administrative process, we will
direct that the case be remanded to the Social Security Administration for its
interpretation of section 1.08. We intimate no view on how the issue should be
determined.
Accordingly, the judgment of the District Court will be reversed and the
matter will be remanded with directions to remand to the Social Security Administration.
4