Horodenski v. Commissioner of Social Security , 215 F. App'x 183 ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
2-7-2007
Horodenski v. Comm Social Security
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-1813
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 06-1813
____________
MARY E. HORODENSKI
Appellant
v.
COMMISSIONER OF SOCIAL SECURITY
____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(No. 03-cv-00539)
District Judge: Hon. Timothy J. Savage
Submitted Under Third Circuit LAR 34.1(a)
January 25, 2007
Before: SCIRICA, Chief Judge, FUENTES, and CHAGARES, Circuit Judges.
____________
(Filed February 7, 2007 )
OPINION OF THE COURT
CHAGARES, Circuit Judge.
Appellant Mary Horodenski appeals a District Court decision upholding an
Administrative Law Judge’s determination that Horodenski was not entitled to Disability
Insurance Benefits (DIB) under the Social Security Act, 42 U.S.C. § 401, et seq. In this
appeal, we consider the same question the District Court did; namely, whether the
Administrative Law Judge’s decision was supported by substantial evidence. Because we
find that it was, we will affirm.
I.
As we write only for the parties, our summary of the facts is brief. On December
1, 1998, Horodenski filed a DIB application with the Social Security Administration
(SSA), in which she alleged that she had been totally disabled since July 1, 1974 due to
her multiple sclerosis. Her application was denied, and a hearing on Horodenski’s
application was held before an Administrative Law Judge (ALJ) on May 2, 2000. By
Opinion dated May 1, 2002, the ALJ denied Horodenski’s claims for disability benefits,
holding that she was not disabled within the meaning of the Social Security Act.
Horodenski appealed the ALJ’s decision to the Social Security Administration Appeals
Council, which rejected her appeal on January 10, 2003. On January 29, 2003,
Horodenski filed a complaint in the United States District Court for the Eastern District of
Pennsylvania appealing the Social Security Commissioner’s decision. By Order dated
May 7, 2003, the District Court granted the Commissioner’s motion for a voluntary
remand after the SSA was unable to produce a complete transcript of the May 2, 2000
hearing before the ALJ, and because certain portions of the audio recording of that
proceeding were inaudible.
2
Upon remand, the ALJ held a de novo hearing on Horodenski’s disability claim on
May 12, 2004. At this hearing, the ALJ heard testimony from Horodenski and her
husband, as well as a vocational expert.
Horodenski testified that she was employed by General Electric as an assembler
for six years prior to her alleged disability onset date of July 1, 1974. Horodenski further
testified that she began to feel exhausted in 1970 after the birth of her first child,
notwithstanding the fact she took two months of maternity leave. When these feelings of
exhaustion persisted, Horodenski went to see her doctor. Due to her fatigue, Horodenski
testified that her husband and mother-in-law were forced to perform the bulk of
household chores, including child care. Additionally, Horodenski testified that she
suffered periodic episodes of numbness in her ribs, legs, arms, and spine, and that each
episode lasted for several months. These problems, Horodenski testified, rendered her
unable to “function in a normal daily life,” and she therefore did not return to work at
General Electric.
Horodenski’s husband corroborated his wife’s testimony. He testified that
Horodenski was unable to perform most household chores, and was limited to changing
diapers and feeding and clothing their children. He further testified that after their second
child was born, Horodenski accepted a part-time job performing clerical work, but had to
quit due to her fatigue, swelling in her legs, and stiffness in her joints.
3
In addition to the Horodenskis’ testimony, the ALJ also reviewed documentary
evidence relating to Mary Horodenski’s medical problems. The evidence showed that in
May 1975, Horodenski was being treated by her physician, Dr. Harold Goldfarb, for
vision problems that stemmed from nerve paresis.1 Dr. Goldfarb referred Horodenski to a
neurologist, Dr. Lawrence Leavitt. Horodenski reported to Dr. Leavitt that she suffered
from periodic headaches and numbness in her left foot. During her examination,
Horodenski also informed Dr. Leavitt that she developed an abrupt onset of weakness in
her left arm and chest in May 1974, and that a physical examination at that time showed
signs of weakness and tenderness of the muscles in her upper left extremity, hyperactive
reflexes in her upper left extremity, and decreased sensation to pinprick. Based on these
symptoms, the physician who examined her in 1974, Dr. Tilly, diagnosed Horodenski
with brachial plexitis. Horodenski reported to Dr. Leavitt that her symptoms dissipated
within ten days, and that her strength returned almost to normal.
In his examination, Dr. Leavitt noted that Horodenski appeared to be alert and not
in acute distress. Dr. Leavitt concluded that Horodenski’s nerve paresis was attributable
to chemical diabetes. Outside of this, however, Dr. Leavitt described Horodenski’s health
as “good.” Dr. Leavitt found no connection between that episode and Horodenski’s
vision problems.
1
“Paresis” refers to partial or incomplete paralysis.
4
Horodenski did not return to Dr. Leavitt until May 1987, twelve years later. At
that time, Horodenski reported tingling sensations in her lower extremities. Upon a
follow up visit in August 1987, Horodenski reported that her symptoms had resolved
themselves. After a physical examination, Dr. Leavitt concluded that Horodenski was
“perfectly normal,” and that she had “brisk reflexes throughout; normal sensation,
coordination and gait.” Dr. Leavitt diagnosed Horodenski with “possible demyelinating
disease and myelopathy with ‘weak legs’ and paresthesia.” 2
In 1991, Horodenski returned to Dr. Leavitt, complaining of blurred vision. After
performing an MRI, Dr. Leavitt diagnosed Horodenski with right optic neuritis. Given
her past medical history, Dr. Leavitt also diagnosed Horodenski with multiple sclerosis.
Dr. Leavitt further opined that Horodenski suffered from a relapsing and remitting form
of multiple sclerosis, and concluded in retrospect that this disease began during her 1974
pregnancy.
The ALJ also heard testimony from Richard Baine, a vocational expert. Baine
testified that Horodenski’s past employment as a electronics assembler and a clerical
worker constituted unskilled or semi-skilled jobs requiring light exertion under the Social
Security Act. Baine also testified that, taking into account Horodenski’s age, education,
work history, and residual functional capacity, she could have worked as a packer, sorter,
2
“Demyelinating disease” refers to the destruction or loss of the myelin sheath,
which covers a nerve or bundle of nerves. “Myelopathy” refers to destruction of or
changes of the spinal cord, often related to non-specific lesions. “Paresthesia” refers to
an abnormal sensation such as burning or prickling.
5
or clerical worker during the relevant period of time. Finally, Baine testified that, based
on his review of Department of Labor studies and his own personal experience as a
vocational expert, he believed that each of these jobs were available both nationally and
in the Lehigh Valley, Pennsylvania area, the locale where Horodenski lived during the
pertinent timeframe.
By opinion dated May 20, 2004, the ALJ held that Horodenski met the disability
insured status requirements of the Social Security Act on July 1, 1974, and retained
coverage through June 30, 1979. The ALJ further found that during this five-year span,
Horodenski’s ability “to engage in work-related activities was severely impaired [due to]
functional limitations resulting from relapsing and remitting multiple sclerosis.”
However, the ALJ determined that although Horodenski was unable to return to her prior
line of work, her claim of total disability was unpersuasive. In this regard, the ALJ held
that Horodenski retained the residual functional capacity to preform sedentary work not
requiring fine manipulation. Because such jobs were available in both the national and
local economy, the ALJ concluded that Horodenski was not disabled within the meaning
of the Social Security Act at any point prior to June 30, 1979, the last day she was eligible
for DIB benefits.
Horodenski appealed the ALJ’s decision to the Appeals Council, which denied her
appeal. As before, the Commissioner adopted the ALJ’s decision.
6
Having exhausted her administrative remedies, Horodenski filed suit in federal
court, alleging that the Commissioner erred in denying her disability claims. The parties
filed cross motions for summary judgment. By Order dated October 31, 2005, a
Magistrate Judge issued a report recommending that the District Court affirm the
Commissioner’s decision. On February 7, 2006, the District Court overruled
Horodenski’s objections to the Magistrate Judge’s report, adopted the Magistrate Judge’s
recommendation, and granted the Commissioner’s motion for summary judgment.
Horodenski now appeals.
II.
Like the District Court, we review the ALJ’s factual findings to determine whether
they are supported by substantial evidence. Schaudeck v. Comm’r of Soc. Sec. Admin.,
181 F.3d 429, 431 (3d Cir. 1999). In the process of reviewing the record for substantial
evidence, “we may not weigh the evidence or substitute our own conclusions for those of
the fact-finder.” Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005) (internal
quotations omitted). Rather, substantial evidence “is such relevant evidence as a
reasoning mind might accept as adequate to support a conclusion.” Id. In determining
whether there is substantial evidence to support the ALJ’s conclusions, we consider the
record as a whole. Schaudeck, 181 F.3d at 431.
7
III.
In order to establish disability status under the Social Security Act, a claimant must
demonstrate there is some “medically determinable basis for an impairment that prevents
him from engaging in any ‘substantial gainful activity’ for a statutory twelve-month
period.” Stunkard v. Secretary of Health and Human Services, 841 F.2d 57, 59 (3d Cir.
1988) (quoting 42 U.S.C. § 423(d)(1)). A claimant is considered unable to engage in any
substantial 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.” 42 U.S.C. § 423(d)(2)(A).
The SSA has promulgated a five-step process for determining whether a claimant
is disabled. See 20 C.F.R. § 404.1520; Plummer v. Apfel, 186 F.3d 422, 427-29 (3d Cir.
1999). The burden of persuasion is on the claimant in the first four steps, but shifts to the
Commissioner in the final step. In step one, the Commissioner must determine whether
the claimant is currently engaging in substantial gainful activity. 20 C.F.R. § 1520(a). If
he is, the inquiry is over, and the disability claim will be denied. Bowen v. Yuckert, 482
U.S. 137, 140 (1987). If not, analysis proceeds to step two, in which the Commissioner
must determine whether the claimant is suffering from a severe impairment. 20 C.F.R. §
404.1520(c). If the claimant fails to show that her impairments are “severe,” the
claimant’s request must be denied.
8
In step three, the Commissioner compares the medical evidence of the claimant’s
impairment to a list of impairments presumed severe enough to preclude any gainful
work. 20 C.F.R. § 404.1520(d). 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
Commissioner to consider whether the claimant retains the residual functional capacity to
perform her past relevant work. See id. The claimant bears the burden of demonstrating
an inability to return to her past relevant work. Adorno v. Shalala, 40 F.3d 43, 46 (3d Cir.
1994).
If the claimant is unable to resume her former occupation, the evaluation moves to
the fifth and final step. At this stage, the burden of persuasion shifts to the
Commissioner, who must demonstrate the claimant is capable of performing other
available work in order to deny a claim of disability. 20 C.F.R. § 404.1520(f). The
Commissioner must show there are other jobs existing in significant numbers in the
national economy which the claimant can perform, consistent with her medical
impairments, age, education, past work experience, and residual functional capacity. The
Commissioner must analyze the cumulative effect of all the claimant’s impairments in
determining whether she is capable of performing work and is not disabled. See 20
C.F.R. § 404.1523. In many cases, including this one, the Commissioner will seek the
assistance of a vocational expert in resolving this inquiry. Apfel, 186 F.3d at 429.
9
IV.
A.
The parties agree that Horodenski has carried her burden in the first four steps.
Accordingly, our analysis is limited to the final phase of the disability analysis.
Horodenski’s first assignment of error is that the ALJ’s residual functional capacity
determination was not supported by substantial evidence. The gravamen of Horodenski’s
argument is that the ALJ improperly failed to credit her claims of fatigue.
The ALJ found that Horodenski’s ability to engage in work-related activities on
and prior to June 30, 1979 was severely impaired due to “functional limitations resulting
from undiagnosed relapsing and remitting multiple sclerosis.” The ALJ credited
Horodenski’s claim that she was having “some difficulty using her hands for
manipulation in the late 1970’s.” Nonetheless, the ALJ rejected Horodenski’s claim of
total disability, finding instead that she could perform certain sedentary work.
Horodenski maintains that the ALJ must have either found her credible or not, and
because the ALJ credited Horodenski allegations of debilitating fatigue, it was compelled
to credit Horodenski’s claim of total disability based on this fatigue. Because of this
alleged inconsistency, Horodenski argues that the ALJ’s determination that Horodenski
retained the ability to perform sedentary work -- and the underlying residual functional
determination -- cannot stand. We disagree.
10
It is clear from the ALJ’s decision that the ALJ only partially credited
Horodenski’s complaints of fatigue. More precisely, the ALJ credited Horodenski’s
allegations only insofar as Horodenski claimed that her fatigue restricted her to sedentary
work, and rejected Horodenski’s allegations to the extent she argued that her fatigue
rendered her unfit to perform any gainful employment. Horodenski argues that this
determination is at odds with the uncontroverted medical evidence, noting Dr. Leavitt’s
conclusion that Horodenski has suffered “throughout her illness symptoms of fatigue and
exhaustion.” But this simply begs the question: There is no dispute that Horodenski
suffered fatigue and exhaustion; the issue is whether the extent of her fatigue rendered her
unable to work at all, or merely unable to work in certain jobs. As the ALJ recognized,
there is no record evidence that Horodenski was ever diagnosed as totally disabled. In
this regard, the ALJ noted that “while [Horodenski] may have suffered from fatigue in the
late 1970’s, one would expect to find some mention of it in the treatment records
especially if it were causing work preclusive functional limitations.” The standard of
review mandates that we credit such a plausible inference. See Schaudeck, 181 F.3d at
431 (“Overall, the substantial evidence standard is deferential and includes deference to
inferences drawn from the facts if they, in turn, are supported by substantial evidence.”).
The ALJ’s determination not to credit Horodenski’s claim of total disability is
further supported by inconsistencies in Horodenski’s testimony. As the ALJ noted, at the
11
March 2, 2000 hearing, Horodenski testified as follows about her activities following the
birth of her first child:
I did all of the [house] work. I took care of the baby. I did the grocery
shopping. Tried to do the laundry. Tried to dust. I ran the vacuum cleaner.
I cleaned . . . . .
At the May 12, 2004 hearing, however, Horodenski portrayed herself as substantially
more disabled than she had in her prior testimony. At the latter hearing, Horodenski
testified that during the relevant period of time, her mother-in-law -- not she -- performed
many of the tasks that Horodenski had previously testified that she had performed.3
3
The relevant portion of that hearing transcript reads as follows:
QUESTION: Now how often did your mother-in-law come over?
HORODENSKI: It got to be pretty often. Three, four times a week.
QUESTION: And how long would she stay at your house?
HORODENSKI: A lot of times she was there most of the day.
QUESTION: And what would she do?
HORODENSKI: She would do cooking for me. She would do dusting for me.
She sometimes ran the vacuum cleaner. She would do dishes for me. Oh, Lord, I
appreciated that woman.
QUESTION: And for how long a period of time was your mother-in-law able to
help you out in that way?
HORODENSKI: Oh, that was a long time, a lot of years. She would come over in
the morning sometimes. She would stay for supper and clean up, and she did it for
years.
QUESTION: Now was she doing that -- still doing that as of June the 30th of
12
Where, as here, the ALJ has articulated reasons supporting a credibility determination,
that determination will be entitled to “great deference.” Atlantic Limousine, Inc. v.
NLRB, 243 F.3d 711, 718 (3d Cir. 2001). Given Horodenski’s conflicting testimony, the
ALJ was certainly entitled to conclude that Horodenski was overstating the extent of her
fatigue in an effort to bolster her claim of total disability.4 Accordingly, we cannot say
that this is the extraordinary case that merits reversal of a ALJ’s credibility determination.
For all of these reasons, we hold that the ALJ’s residual functional capacity determination
was supported by substantial evidence.5
B.
1979?
HORODENSKI: Yes.
4
Horodenski argues, unsupported by any authority, that the ALJ could not rely on
the transcript of Hodorenski’s earlier testimony, which she terms a “nullity.” Horodenski
Br. at 23. We share the District Court’s dismay at Horodenski’s counsel’s claim that we
should disregard clearly inconsistent testimony his client offered under oath at a previous
proceeding on precisely the same issue before the same ALJ. See id. at 47 n.9 (District
Court opinion).
5
Notwithstanding Horodenski’s argument to the contrary, our decision in Fargnoli
v. Massanari, 247 F.3d 34 (3d Cir. 2001), does not compel a different result. There, we
held, inter alia, that “sporadic and transitory activities cannot be used to show an ability to
engage in substantial gainful activity.” Id. at 40 n.5. To begin with, we disagree that
housework and child care -- which Horodenski claimed to have been performing daily --
constitute “sporadic and transitory activities.” Moreover, unlike the plaintiff in Fargnoli,
Horodenski’s testimony about her daily activities is not merely significant because of its
substance; it was also significant because it was internally inconsistent, which aided the
ALJ in determining how much weight to afford to Horodenski’s testimony.
13
Horodenski’s second assignment of error is that there is not substantial evidence to
support the ALJ’s conclusion that other work existed in the national economy during the
1970’s which Horodenski could have performed. More specifically, Horodenski argues
that because Baine’s opinion was supported by his own experience and recollection
instead of a recent review of statistical data for the relevant period of time, the ALJ’s
reliance on Baine was misplaced, and that the Commissioner therefore cannot carry her
burden in the final step of the disability analysis. This, too, is unpersuasive.
To begin with, it must be noted that at no point during the 2004 hearing did
Horodenski, who was represented by counsel, pose any question or raise any objection
either to Baine’s qualifications generally or to his competency to offer vocational
testimony in this case. More importantly, Baine’s testimony makes clear that he relied on
Department of Labor surveys in reaching his opinion as to how many jobs were available
during the relevant time period which Horodenski could perform given her limitations.
While it may be true that Baine did not review these reports in preparation for his
testimony in this case, we do not believe that this failure renders his testimony unreliable,
in view of his approximately thirty years of experience as a vocational expert, and in light
of his testimony that he was certain that these reports would support his testimony. See
Woods v. Finch, 428 F.2d 469, 470 (3d Cir. 1970) (affirming hearing examiner’s denial
of disability benefits where vocational expert relied in part on his own experience in
forming opinion). For these reasons, we hold that substantial evidence supports the
14
ALJ’s determination that there were sufficient jobs in the national economy during the
late 1970’s that Horodenski could have performed notwithstanding her limitations.
V.
For the foregoing reasons, we will affirm the decision of the District Court in all
respects.
15