Rivera v. Comm Social Security ( 2008 )

Opinions of the United
2008 Decisions States Court of Appeals
for the Third Circuit
5-21-2008
Rivera v. Comm Social Security
Precedential or Non-Precedential: Non-Precedential
Docket No. 07-2680
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NOT PRECEDENTIAL
IN THE UNITED STATES COURT
OF APPEALS
FOR THE THIRD CIRCUIT
NO. 07-2680
LYDIA RIVERA,
Appellant
v.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY
On Appeal From the United States
District Court
For the Middle District of Pennsylvania
(D.C. Civil Action No. 06-cv-01742)
District Judge: Hon. William W. Caldwell
Submitted Pursuant to Third Circuit LAR 34.1(a)
May 8, 2008
BEFORE: BARRY and STAPLETON, Circuit Judges,
and RESTANI,* Judge
(Filed: May 21, 2008 )
*Hon. Jane A. Restani, Chief Judge, United States Court of International Trade, sitting by
designation.
OPINION OF THE COURT
STAPLETON, Circuit Judge:
Appellant Lydia Rivera appeals the District Court’s decision affirming the
Commissioner’s denial of her request for benefits. For the reasons stated below, we will
affirm.
I.
Because we write only for the parties who are familiar with the factual context and
procedural history of the case, we set forth only those facts necessary to our analysis.
On November 12, 2002, appellant Lydia Rivera filed for Disability Insurance
Benefits and Supplemental Security Income payments, claiming that her numerous
ailments left her unable to work. After a hearing, the ALJ found that Rivera suffered
from the following severe impairments: osteoarthritis, cervical disc disease,
chrondromalacia left knee, sleep apnea, carpal tunnel syndrome, fibromyalgia, depression,
and anxiety. He also found that she suffered from a seizure disorder, though he did not
consider it severe because the seizures occurred very infrequently and did not result in
any continuing limitations or treatment.
Nevertheless, the ALJ found “not entirely credible” Rivera’s “statements
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concerning the intensity, duration, and limiting effects” of her ailments, in part because of
a medical report inconsistent with Rivera’s claims that she was unable to lift and carry
objects – claims that were further contradicted by Rivera’s own testimony that she often
went grocery shopping on her own. (App. 27.) As further justification for his credibility
determination, the ALJ pointed to an adverse inference he had drawn based on a pair of
requests that Rivera had made to her treating physician, first demanding a new assessment
of her condition – a request she explained was coming from her lawyer who had “sent her
back with a new form because they were seeking permanent disability” – and then, after
the doctor refused to cooperate, Rivera’s demand that all his prior assessments of her
condition be destroyed. (App. 28.) Finally, the ALJ suggested that Rivera’s often
inconsistent testimony was an additional reason to doubt the severity of her ailments. As
a result, the ALJ concluded that her testimony on this topic was “not entirely credible.”
(App. 27.)
This adverse credibility finding left the ALJ unwilling to credit Rivera’s claims
that she was unable to lift and carry anything at all. Instead, he found, based in part on
the report of an examining physician, that Rivera “has the residual functional capacity to
lift 10 pounds frequently and 20 pounds occasionally; stand and/or walk for 6 hours [and]
sit for 6 hours.” (App. 26.) The ALJ then relied on the testimony of the vocational expert
to find that “there are jobs that exist in significant numbers in the national economy that
the claimant can perform” in spite of these limitations. (App. 29.) As a consequence, the
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ALJ concluded that Rivera “has not been under a ‘disability’ . . . from November 6, 2002
through the date of this decision.” (App. 30.)
Rivera’s request for review was denied by the SSA’s Appeals Council. She then
sought review in the District Court, which referred the case to a magistrate judge. After
reviewing the record, the magistrate judge concluded that the ALJ’s determination was
supported by substantial evidence, and the District Court adopted his report over Rivera’s
objection. This appeal followed.1
II.
Rivera first argues that the ALJ should not have drawn an adverse inference based
on her request for a new report from her treating physician, and her subsequent demand
that the physician destroy all his previous reports on her condition. This argument is
contrary to the well-settled proposition that a trier of fact may draw an adverse inference
whenever a litigant intentionally destroys relevant evidence, which these reports
undoubtedly were. Hodge v. Wal-Mart Stores, Inc., 360 F.3d 446, 450 (4th. Cir. 2004);
accord Sparkman v. Comm’r, 509 F.3d 1149, 1156 (9th Cir. 2007); Underwriters Labs.
Inc. v. NLRB, 147 F.3d 1048, 1054 (9th Cir. 1998); Simon v. Comm’r, 830 F.2d 499, 506
(3d Cir. 1987); Wichita Terminal Elevator Co. v. Comm’r, 6 T.C. 1158, 1165 (1946); 9
1
28 U.S.C. § 1291 provides jurisdiction, and in evaluating these claims, this Court
exercises plenary review over any and all legal conclusions and reviews any and all
factual conclusions for substantial evidence. E.g., Allen v. Barnhart, 417 F.3d 396, 398
(3d Cir. 2005); Newell v. Comm’r of Soc. Sec., 347 F.3d 541, 545 (3d Cir. 2003); Seavey
v. Barnhart, 276 F.3d 1 (1st Cir. 2001).
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W IGMORE, E VIDENCE § 2524 (3d ed. 1940). Accordingly, because Rivera saw to it that
relevant evidence in the form of the prior reports of her treating physician was destroyed,
we conclude that it was entirely proper for the ALJ to draw such an inference.
Next, Rivera argues that the ALJ used the wrong standard to assess the severity of
disability occasioned by her limited upper body mobility because he purportedly required
her to show that her activities of daily living were “completely obliterated.” A review of
the record reveals that ALJ never used “complete obliteration” as the standard, but rather
used the phrase as a shorthand summary of Rivera’s own description of the impact these
ailments had on her daily activities. (Rec. 18.) The standard the ALJ did apply was
whether “the claimant is able to do any . . . work considering her residual functional
capacity, age, education, and work experience.” (App. 25.) This is a correct statement of
the law. 20 C.F.R. § 404.1520(a)(4).
Rivera further insists that the ALJ erred in assessing the severity of her seizure
disorder at step two of his analysis. While it is true, as Rivera stresses, that the applicable
standard of severity at this stage does not impose a substantial burden, the issue posed is
not whether the disability causes any impairment at all. As the ALJ recognized, the
severity inquiry at step two asks whether an impairment significantly limits a claimant’s
physical or mental ability to do “basic work activities,” i.e., physical “abilities and
aptitudes necessary to do most jobs, including, for example, walking, standing, sitting,
lifting, pushing, pulling, reaching, carrying or handling,” or mental activities such as
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“understanding, carrying out, and remembering simple instructions; use of judgment;
responding appropriately to supervision, co-workers and usual work situations; and
dealing with changes in a routine work setting.” 20 C.F.R. § 404.1521(b). This is
precisely the standard that the ALJ applied, and given the infrequency of Rivera’s
seizures and the absence of any lasting effects, there is substantial evidence to support his
ultimate conclusions.
Finally, we have no doubt that there was substantial evidence supporting the ALJ’s
ultimate determination that Rivera was not entitled to benefits. Contrary to her assertions,
the ALJ did not discount the hypothetical severity of any of Rivera’s conditions. Instead,
he went so far as to credit her diagnoses and acknowledge that “the claimant’s medically
determinable impairments could reasonably be expected to produce the alleged
symptoms.” (App. 27.) That said, for the reasons mentioned above – namely the medical
report indicating that she had substantial residual capacity, her ability to carry items
around the grocery store, her attempt to obtain a more favorable report from her treating
physician, and her inconsistent testimony – the ALJ did not believe that Rivera was
suffering from all these symptoms to the degree she claimed to be. In other words, while
the ALJ had no problem believing that someone with fibromyalgia (or any other disorder
Rivera suffers from) could feel as Rivera testified that she did, he did not think that
Rivera herself actually felt that way, which is a conclusion that we believe is justified by
the record. Further, his subsequent determinations that Rivera could lift, carry, and look
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about, and his conclusion that there were jobs Rivera could perform were also supported
by substantial evidence, namely the medical report and the testimony of the vocation
expert appearing at the hearing. As a result, the ALJ’s ultimate determination to deny
Rivera benefits is supported by substantial evidence.
III.
For the reasons set forth above, we will affirm the judgment of the District Court.
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