Frazier v. Commissioner of Social Security ( 2007 )

Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
7-11-2007
Frazier v. Comm Social Security
Precedential or Non-Precedential: Non-Precedential
Docket No. 06-2809
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
__________
No. 06-2809
__________
PATRICIA FRAZIER,
Appellant
v.
COMMISSIONER OF SOCIAL SECURITY
__________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 03-cv-02953)
District Judge: Honorable Dennis M. Cavanaugh
__________
Submitted Under Third Circuit LAR 34.1(a)
on July 9, 2007
Before: RENDELL and AMBRO, Circuit Judges,
and SHAPIRO, District Judge.
(Filed: July 11, 2007)
__________
OPINION
__________
__________________
* Honorable Norma L. Shapiro, Senior Judge of the United States District Court for
the Eastern District of Pennsylvania, sitting by designation.
RENDELL, Circuit Judge.
Patricia Frazier seeks review of the District Court’s determination that the
Administrative Law Judge’s (“ALJ”) ruling that Frazier was not disabled was supported
by substantial evidence. Frazier was employed for nineteen years by Bell Atlantic as a
service representative. This job required her to handle customers’ complaints, use a
computer, and speak on the telephone while seated. Frazier was hospitalized after being
involved in a house fire on September 4, 1997. She was diagnosed with severe smoke
inhalation and underwent a tracheotomy that subsequently healed with no prolonged
health consequences. She was released after it was determined that her chest was clear
and her x-rays were normal.
Frazier applied for disability insurance benefits on February 11, 1999, alleging
disability as of June 5, 1996, due to pulmonary insufficiency, asthma, depression, and
anxiety. The application was denied initially and on reconsideration. Following a
hearing on April 27, 2001, the ALJ determined that Frazier was not disabled. Frazier
appealed and the case was remanded by the Appeals Council. After a new hearing, the
ALJ again concluded that Frazier was not disabled. This decision was affirmed by the
District Court and Frazier now appeals.1 We will affirm.
1
In his brief to this court, Frazier’s counsel has once again failed to meet the
expectation that counsel “exercise appropriate professional behavior in all briefs,” as
stated in Third Circuit Local Appellate Rule 28.1(c), by engaging in ad hominem attacks
on the ALJ. Frazier’s counsel has been reprimanded previously for similar behavior,
most recently in Meyler v. Commissioner of Social Security, No. 06-4280 (3d Cir.
2
I.
We exercise plenary review over the order of the District Court, but review the
decision of the Commissioner to determine whether it is supported by substantial
evidence. Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir. 2000). 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 of evidence but may be less than a preponderance.”
Newell v. Comm’r of Soc. Sec., 347 F.3d 541, 545 (3d Cir. 2003) (internal quotations and
citation omitted). We are bound by the ALJ’s findings of fact if they are supported by
substantial evidence in the record. Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999).
II.
The Social Security Administration (“SSA”) has promulgated a five-step
sequential evaluation process to determine whether a claimant is entitled to disability
benefits. 20 C.F.R. § 404.1520(a)(4); see also Newell, 347 F.3d at 545. Under this
five-step test, the ALJ inquires, in turn, whether an applicant: (1) is engaged in substantial
gainful activity; (2) suffers from an impairment or combination of impairments that is
“severe”; (3) suffers from an impairment or combination of impairments that meets or
equals a listed impairment; (4) is able to perform his or her past relevant work; and (5) is
June 22, 2007), in which we ordered the brief stricken and a new brief filed. We are not
ordering that the brief in this case be stricken; it is noted that such action has been taken
and, as in that case, could be taken here. We assume that counsel will cease this
unprofessional conduct in the future.
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able to perform work existing in significant numbers in the national economy. McCrea v.
Comm’r of Soc. Sec., 370 F.3d 357, 360 (3d Cir. 2004).
The ALJ found, pursuant to the five-step test, that Frazier, who stopped working
on June 5, 1996, is no longer engaged in any substantial gainful activity. Additionally,
the ALJ found that Frazier’s asthma and depression were “severe” impairments because
they imposed significant restrictions on her ability to perform basic work activities.
20 C.F.R. § 404.1520(c).
Frazier contends that the ALJ erred when he failed to acknowledge her “cognitive
impairment,” as evidenced by her low IQ test results, at step two of the sequential
evaluation. However, the ALJ considered Frazier’s IQ test results and cognitive
limitations in evaluating the severity of her depression and its impact on her ability to
work. Frazier also argues that the IJ erred in concluding that Frazier’s reduced cognitive
capacity, in combination with her other impairments, did not meet or equal the listing for
mental retardation. We defer to the ALJ’s findings of fact as long as they are supported
by substantial evidence. Schaudeck v. Comm’r of Soc. Sec. Admin., 181 F.3d 429, 431
(3d Cir. 1999). The ALJ noted that an adult intelligence examination was performed on
Frazier on February 19, 2002. The test determined that Frazier has a verbal IQ of 82, a
performance IQ of 72 and a full scale IQ of 75. The examiner also noted the Frazier did
not bring her eyeglasses to the examination and that “difficulty seeing close no doubt
4
penalized obtained results.” App. 223.2 An IQ score of 70 or below is required in order
for an impairment to meet the listing for mental retardation. In addition, an IQ score
between 60 and 70 alone does not meet a listing. The applicant must also have marked
difficulties in two areas or an additional impairment that imposes an “additional and
significant work-related limitation of function.” 20 C.F.R. Part 404, Subpart P,
Appendix 1 § 12.05. Thus, the applicant’s ability to carry out everyday functions and
menial tasks must also be considered. The ALJ noted that Frazier’s IQ scores place her in
the borderline intellectual range of functioning, but that Frazier is able to dress, bathe, and
groom herself and do general housekeeping, laundry and grocery shopping. She is also
able to cook, prepare food and manage money. Thus, the ALJ’s finding that Frazier’s
impairments do not qualify as a listed impairment or the equivalent is supported by
substantial evidence.
Frazier also argues that the ALJ failed to articulate the evidentiary basis for the
residual functional capacity assessment. The residual functional capacity assessment is
used to determine whether a claimant can go back to his or her previous employment or
adjust to any other work. 20 C.F.R. § 404.1560. In making these and all other findings,
the ALJ must be explicit about what evidence was considered and what evidence was
2
“Since the results of intelligence tests are only part of the overall assessment, the
narrative report that accompanies the test results should comment on whether the IQ
scores are considered valid and consistent with the developmental history and the degree
of functional limitation.” 20 C.F.R. Part 404, Subpart P, Appendix 1 § 12.00(D)(6)(a).
5
rejected. Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981). If the ALJ does not
evaluate all relevant evidence, a reviewing court may remand for further analysis in order
to determine whether an applicant is entitled to disability benefits. Id. at 706.
Here, the ALJ did explain the process he used to determine Frazier’s residual
functional capacity and provided a detailed factual analysis of Frazier’s subjective
allegations and medical evidence. After setting out the criteria for residual functional
capacity determinations, the ALJ stated his finding that Frazier’s “statements concerning
her impairments and their impact on her ability to work are not entirely credible.”
App. 26. The ALJ pointed out that no treating or examining physician determined that
Frazier’s conditions precluded her from performing any type of work activity. He also
noted that Frazier is able to dress, bathe, and groom herself, do general housekeeping,
laundry, grocery shopping, cook, prepare food and manage money. He further considered
Frazier’s testimony that she can perform simple and repetitive tasks and the results of her
psychiatric evaluation. While the ALJ agreed that Frazier lacked the residual functional
capacity to return to her job as a telephone representative, he found that her allegations
that she could not perform other work were not credible. We agree with the District
Court that the ALJ’s findings concerning Frazier’s residual functional capacity are
supported by substantial evidence.
Frazier also argues that the ALJ denied her claim for benefits based on incomplete
hypothetical questioning of the vocational expert. The ALJ’s hypothetical questioning
6
was allegedly incomplete because he failed to mention Frazier’s loss of concentration,
restriction to rote tasks and need for one-on-one supervision in questioning the expert
about what work might be available to someone with Frazier’s restrictions. We agree
with the District Court that substantial evidence supports the finding that Frazier did not
experience a significant loss of concentration, nor require one-on-one supervision.
Furthermore, there is no material difference between “rote” tasks and “simple and
repetitive tasks.” Thus, the ALJ’s questioning of the expert adequately stated Frazier’s
job restrictions.
Finally, Frazier contends that the ALJ failed to acknowledge the vocational
expert’s testimony that directly contradicted the ALJ’s conclusions. The vocational
expert testified that the jobs he thought Frazier capable of performing had no one-on-one
supervision and required hand-eye coordination. However, Frazier never established a
need for one-on-one supervision nor did the ALJ find a need for such supervision.
Furthermore, the expert’s testimony concerning hand-eye coordination only concerned
assembly-line jobs. The ALJ did not rest his finding that work that Frazier is capable of
doing exists in sufficient numbers in the national economy on Frazier’s ability to do
assembly-line work. Thus, we agree that the ALJ’s finding that Frazier could perform
work that exists in significant numbers in the national economy is supported by
substantial evidence.
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III.
For the reasons stated above, we will AFFIRM the judgment of the District Court.
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