Cooper v. Comm Social Security , 268 F. App'x 152 ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
3-12-2008
Cooper v. Comm Social Security
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-4424
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 06-4424
KENNETH COOPER,
Appellant
v.
COMMISSIONER OF SOCIAL SECURITY
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 04-cv-03633)
District Judge: Honorable Timothy J. Savage
Argued November 6, 2007
Before: SCIRICA, Chief Judge, AMBRO, and JORDAN, Circuit Judges
Opinion filed: March 12, 2008
Eric J. Fischer, Esquire (Argued)
Breyer Office Park, Suite 200
8380 Old York Road
Elkins Park, PA 19027
Counsel for Appellant
Patrick L. Meehan
United State Attorney
Joan K. Garner
Assistant United States Attorney
Eastern District of Pennsylvania
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106
Michael McGaughran
Regional Chief Counsel, Region III
William B. Reeser
Supervisory Attorney
Roxanne Andrews (Argued)
Special Assistant United States Attorney
Social Security Administration
Office of General Counsel / Region III
P.O. Box 41777
Philadelphia, PA 19101
Counsel for Appellee
OPINION
AMBRO, Circuit Judge
Appellant Kenneth Cooper, now 50 years old, applied for Supplemental Security
Income (“SSI”) benefits in 1997, claiming that multiple health problems have hampered
his ability to work. After multiple administrative hearings and appeals, the Social
Security Administration (“SSA”) denied his claim for SSI benefits. We vacate that
decision and remand for a new hearing.
I. Procedural Background
After six previous, unsuccessful applications, Cooper applied for SSI benefits in
Feburary 1997. The Pennsylvania Bureau of Disability Determination (“state agency”)
denied his application initially and on reconsideration. In April 1998, Cooper had a
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hearing before a federal administrative law judge, who vacated the reconsideration
determination and remanded the case to the state agency because Cooper raised the issue
of mental impairments for the first time at that hearing.
In October 1999, the state agency issued a second denial on reconsideration.
Cooper appealed to the SSA, and in July 2000 received another hearing, at which another
ALJ affirmed the state agency’s second denial on reconsideration. The Appeals Council
of the SSA vacated the ALJ’s decision on the grounds that the opinion failed to specify
Cooper’s capacity to stand and walk and failed to evaluate the opinions of two examining
physicians who described both physiological and psychological limitations on Cooper’s
ability to work. The Appeals Council remanded with specific instructions to reevaluate
the existing evidence and obtain additional evidence.
On remand, a third ALJ found that Cooper “retain[ed] the residual functional
capacity to perform a restricted range of sedentary work activity” and was not under a
disability “at any time through the date of this decision.” ALJ Op. 8 (Apr. 25, 2003). As
a result, the ALJ held that Cooper was ineligible for SSI benefits.1 This exhausted
1
Cooper filed a subsequent SSI application in September 2004. The SSA granted that
application in March 2005, with monthly payments beginning on April 1, 2005. Cooper
notes that the 2004 application contained some of the same medical information as the
record in this case contains, dating back as far as 1996. But it also involved a newly
prepared Disability Report and a new assessment of Cooper’s health and employment
situation. Thus, the award based on the 2004 application has no direct bearing on our
decision in this case regarding the 1997 application. That award does, however, mean
that only back benefits from 1997 through 2004 are at issue.
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Cooper’s administrative remedies, as the SSA concedes in its answering brief.
Cooper filed suit in the United States District Court for the Eastern District of
Pennsylvania. In March 2006, after cross-motions for summary judgment, a Magistrate
Judge recommended granting the Commissioner’s motion for summary judgment. The
District Court adopted the Magistrate Judge’s report, granted the motion, and thus
affirmed the final decision to deny Cooper SSI benefits. He appeals to our Court.
II. Cooper’s Medical History
Cooper has long suffered from many physiological and psychological ailments,
many of them severe. He has received attention from various examining doctors over the
ten years of this administrative proceeding and subsequent judicial review. According to
the record before us, he has not worked since 1990 and has not earned more than $1,600
in yearly wages since 1984 (when he earned $5,331.50).
Cooper’s physical ailments include: blindness in his right eye and partial blindness
in his left eye, resulting from a blow from a steel beam during a prison fight; morbid
obesity, with a self-reported weight of 345 pounds at his last SSA hearing; coronary
artery disease, angina, high blood pressure and accompanying chest pains; shortness of
breath and probable sleep apnea; occasional dizziness; sclerosis in his ankle, resulting in
chronic pain; osteoarthritis in his left shoulder, right knee, and toes in both feet; and a
mild vertebral endplate irregularity at the thoracolumbar region, causing chronic back
pain. According to his family physician’s assessment in 1998, Cooper could perform no
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sustained physical labor. But SSA’s medical examiners suggested he could lift 20 pounds
occasionally, sit for an eight-hour workday, and stand or walk for one hour out of an
eight-hour workday. He can do various household activities, has looked for work, and
can take care of his pet fish (he even makes homemade filters for the tank out of charcoal
and cloth). He can walk to a bus stop and take public transportation, but he has testified
that he would need to rest every two blocks in order to do so.
In addition, Cooper suffers from various psychological problems, including
dysthymia (i.e., chronic depression), bipolar disorder, anger, violent behavior, and
difficulty in social interactions, particularly with respect to his superiors in a work
environment. Intellectually, doctors have evaluated him as having poor memory and only
limited literacy. Cooper did complete high school and has consistently been judged
capable to manage his own benefits. His doctors have disagreed, however, with regard to
his general attitude. One SSA examiner concluded that, when examined, Cooper
“showed a conscious attempt to look bad or exaggerate his illness or to malinger.”
Another found him to be “not very cooperative.” On the other hand, a third doctor, who
examined Cooper twice, found him to be “cooperative” and “very cooperative.”
III. Jurisdiction and Standard of Review
The District Court had jurisdiction under 42 U.S.C. § 1383(c)(3), which
incorporates 42 U.S.C. § 405(g) by reference. We have jurisdiction over Cooper’s appeal
under 28 U.S.C. § 1291. We exercise plenary review over the District Court’s legal
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conclusions. Allen v. Barnhart, 417 F.3d 396, 398 (3d Cir. 2005). We review the factual
findings in the ALJ’s 2003 decision for substantial evidence:
[W]e must uphold a final agency determination unless we find
that it is not supported by substantial evidence in the record.
Substantial evidence is “such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion” . . . . It is “more than a mere scintilla but may be
somewhat less than a preponderance of the evidence” . . . . 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) (second alteration in original)
(citations omitted).
IV. Disability Analysis
The SSA’s process for evaluating disability, whether for disability insurance or
SSI, includes five steps.2 Cooper argues that he presented a prima facie case of total
disability. Substantial evidence supports the conclusion that he met the requirements of
step one; he had not worked for approximately 15 years at the time of the ALJ hearing.
Substantial evidence also supports the ALJ’s finding at step two that Cooper had ten
separate “severe” ailments. This appeal mainly concerns steps three and five, which we
address in turn.
2
Briefly, the five steps involve establishing: (1) non-employment; (2) severe
impairment(s); and either (3) that the impairments, or a combination thereof, meet an
SSA-listed disability or, as a result of limited residual functional capacity, (4) incapability
of performing past work or (5) other work in the economy. See 20 C.F.R. § 404.1520.
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A. Step Three
At step three, the ALJ found that Cooper did not meet any of the detailed listings
required for a showing of total disability. See 20 C.F.R. Part 404, Subpart P, App. 1,
Regs. No. 4. The ALJ specifically considered disabilities of the musculoskeletal system,
special senses (including vision) and speech, and cardiovascular system, as well as mental
impairments. He also mentioned that Cooper’s various conditions could satisfy no other
listing. Thus, the ALJ proceeded to step four, at which he determined that Cooper had
residual functional capacity “to perform a restricted range of sedentary work activity”
subject to various restrictions. See Ramirez v. Banhart, 372 F.3d 546, 551 (3d Cir. 2004)
(describing the relationship between steps three and four).
Cooper correctly points out that nothing in the ALJ’s opinion discusses combining
any of the many ailments or how those combinations might measure up to the listings at
step three of the disability-claim analysis. This contravened SSA regulations, which state
that the Commissioner “will consider the combined effect of all of your impairments
without regard to whether any such impairment, if considered separately, would be of
sufficient severity.” 20 C.F.R. § 416.923 (emphasis added). While the ALJ may have
considered Cooper’s ailments as a whole when determining his residual functional
capacity at step four of the analysis, 20 C.F.R. § 416.923 is concerned with step three
because it refers to the listings, 20 C.F.R. Part 404, Subpart P, App. 1. There is no
evidence (let alone substantial evidence) to support a finding that Cooper’s ailments,
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taken in combination, do not satisfy a listing at step three.3
Cooper specifically argues that the ALJ should have considered his obesity in
combination with other ailments at step three.4 The SSA has directed that “a listing is met
if there is an impairment that, in combination with obesity, meets the requirements of a
listing.” Soc. Sec. Rul. 02-1p, 2000 WL 628049, at *5 (Sept. 12, 2002) (emphasis
added). It has also observed that “ obesity may increase the severity of coexisting or
related impairments” and that “[t]his is especially true of musculoskeletal, respiratory,
and cardiovascular impairments,” thus calling for case-by-case determinations regarding
obesity’s exacerbating effect on other conditions. Id.Our Court has held that where a claimant “has not specified how [obesity] would
affect the five-step analysis undertaken by the ALJ, beyond an assertion that her weight
makes it more difficult for her to stand, walk and manipulate her hands and fingers,” a
remand was not warranted. Rutherford, 399 F.3d at 552 n.4, 553. The SSA proceedings
in that case pre-dated Ruling 02-1p, but we stated that “the analysis would be no different
under the new ruling.” Id. In our case, however, Cooper makes a specific request for
consideration of his obesity in conjunction with his musculoskeletal, respiratory, and
cardiovascular conditions.
On remand, the Commissioner should consider Cooper’s physical and
3
At step four, however, the ALJ did consider all of Cooper’s ailments in combination
to determine his residual functional capacity.
4
The ALJ found Cooper’s obesity to be “severe” at step two of the disability analysis.
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psychological ailments in combination with each other and especially with regard to his
obesity. Cooper nonetheless retains the burden of persuasion at step three of the
disability-claim analysis. (A better-organized list of ailments, grouping all the
information by body part, organ system, or psychological disorder, would likely assist in
his efforts.)5
B. Step Five
Cooper contends that the ALJ failed to shift the burden to the Commissioner at
step five. While we disagree, we do have a different concern about the ALJ’s analysis at
step five. The vocational expert suggested that Cooper could become an assembler,
laborer, inspector/checker, or hand packager. It might be plausible that Cooper could do
certain sedentary jobs. But on this record, substantial evidence does not support the
conclusion that an individual who is blind in one eye and has poor vision in the other
could serve as an inspector/checker, assembler, or hand packager. Those jobs require
much hand-eye coordination and visual strain. On remand, the analysis might not reach
step five, because Cooper could demonstrate a listed disability at step three. But if the
5
Cooper also contends, regarding step three, that the ALJ made “speculative
inferences” from the medical expert testimony when determining that his mental-health
conditions did not constitute a disability. Morales v. Apfel, 225 F.3d 310, 317 (3d Cir.
2000). But, as a review of the facts shows, this is not what has happened here. While Dr.
Carl Herman’s three examinations in 1998, 1999, and 2002 tended to support Cooper’s
claims, other doctors’ examinations suggested that Cooper has slightly greater ability to
function, and slightly less social impairment, than Dr. Herman found. With this
argument, Cooper is really asking us to re-weigh the evidence, something we will not do.
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analysis does reach step five, the Commissioner should consider whether Cooper’s
eyesight—damaged since an incident in 1986—left him with the residual functional
capacity to perform the suggested jobs during the relevant period from February 1997
through September 2004.
* * * * *
For these reasons, we vacate the judgment of the District Court and remand for
further proceedings consistent with this opinion. On remand, the ALJ must consider
Cooper’s ailments in combination at step three and, if the disability analysis reaches step
five, take Cooper’s vision problems into account.
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