Malloy v. Commissioner of Social Security.

Opinions of the United
2009 Decisions States Court of Appeals
for the Third Circuit
1-13-2009
Malloy v. Comm Social Security
Precedential or Non-Precedential: Non-Precedential
Docket No. 08-2776
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-2776
AURELIA B. MALLOY,
Appellant
v.
COMMISSIONER OF SOCIAL SECURITY
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 2-07-cv-02730)
District Judge: Honorable William J. Martini
Submitted Under Third Circuit L.A.R. 34.1(a)
on January 9, 2009
Before: FUENTES, FISHER and ALDISERT, Circuit Judges.
(Filed: January 13, 2009)
OPINION OF THE COURT
1
ALDISERT, Circuit Judge.
We must decide whether the district court erred in affirming the Social Security
Commissioner’s denial of Appellant Aurelia Malloy’s claim for disability insurance
benefits and supplemental security income under Titles II and XVI of the Social Security
Act (“the Act”). We conclude that substantial evidence supports the Commissioner’s
decision that Malloy was capable of performing a significant number of light and
sedentary jobs in the national economy, including her past work at a day care center, and
that she thus was not entitled to disability benefits. Accordingly, we affirm.
The district court had jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c). This
court has jurisdiction pursuant to 42 U.S.C. § 405(g) and 28 U.S.C. § 1291.
Because we are writing for the parties who are familiar with the facts and
procedural history in the district court, we will discuss only the legal issues presented
before us and the material facts relating thereto.
I.
Claimants for disability benefits must demonstrate that they meet certain criteria
under the Act. The Act grants the Secretary of Health and Human Services authority to
adopt rules and regulations implementing the disability benefits program. Rosetti v.
Shalala, 12 F.3d 1216, 1218 (3d Cir. 1993) (referring to 42 U.S.C. §§ 405(a), 1383(d)(1)).
In utilizing this authority, the Social Security Administration implements a five-step
sequential evaluation procedure for the assessment of disability claims. See 20 C.F.R. §
404.1520 (2006). The U.S. Supreme Court has described the operation of this process as
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follows:
The first two steps involve threshold determinations that the claimant is not
presently working and has an impairment which is of the required duration
and which significantly limits his ability to work. See 20 C.F.R. §§
416.920(a) through (c) (1989). In the third step, the medical evidence of the
claimant’s impairment is compared to a list of impairments presumed severe
enough to preclude any gainful work. See 20 C.F.R. pt. 404, subpt. P, App.
1 (pt. A) (1989). If the claimant’s impairment matches or is “equal” to one
of the listed impairments, he qualifies for benefits without further inquiry. §
416.920(d). If the claimant cannot qualify under the listings, the analysis
proceeds to the fourth and fifth steps. At these steps, the inquiry is whether
the claimant can do his own past work or any other work that exists in the
national economy, in view of his age, education, and work experience. If
the claimant cannot do his past work or other work, he qualifies for
benefits. §§ 416.920(e) and (f).
Sullivan v. Zebley, 493 U.S. 521, 525-526 (1990).
The claimant bears the burden of persuasion in the first four steps of the analysis.
Only if the claimant demonstrates that the impairment precludes performing his or her
past work does the burden shift to the Commissioner, to prove that the claimant still
retains a residual functional capacity to perform some alternative, substantial, gainful
activity present in the national economy. Kangas v. Bowen, 823 F.2d 775, 777 (3d Cir.
1987), Santise v. Schweiker, 676 F.2d 925, 936 (3d Cir. 1982).
Whether a claimant is disabled as defined by the Act is a decision which is
reserved to the Commissioner. Under the Commissioner’s regulations, the Administrative
Law Judge (“ALJ”) has the responsibility for determining a claimant’s residual functional
capacity after evaluating all the evidence of record regarding the claimant’s impairments
and resulting functional limitations. 20 C.F.R. §§ 404.1546(c), 416.946(c) (2006).
3
Although the Commissioner considers opinions from treating and examining medical
sources on this issue, the final responsibility for the decision is reserved to the
Commissioner. 20 C.F.R. §§ 404.1527(e)(1)-(3), 416.927(e)(1)-(3) (2006).
Courts may review the Commissioner’s factual findings only to determine whether
they are supported by substantial evidence. See 42 U.S.C. § 405(g) (“The findings of the
Commissioner of Social Security as to any fact, if supported by substantial evidence, shall
be conclusive . . . .”). The statutory standard of substantial evidence requires more than a
mere scintilla of evidence, but less than a preponderance. Plummer v. Apfel, 186 F.3d
422, 427 (3d Cir. 1999). It “does not mean a large or considerable amount of evidence,
but rather ‘such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.’” Pierce v. Underwood, 487 U.S. 552, 565 (1988) (quoting Consol.
Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); see also Hartranft v. Apfel, 181 F.3d
358, 360 (3d Cir. 1999).
The presence of evidence in the record that supports a contrary conclusion does
not undermine the Commissioner’s decision so long as the record provides substantial
support for that decision. See Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972).
The reviewing court looks to the record as a whole to assess whether substantial evidence
supports the Commissioner’s decision. Taybron v. Harris, 667 F.2d 412, 413 (3d Cir.
1981). In assessing the extent to which the record supports the Commissioner’s
conclusions, the court reviews objective medical facts, diagnoses or medical opinions
4
based on those facts, subjective complaints of pain or disability, and the claimant’s age,
education, and work history. See Jones v. Harris, 497 F. Supp. 161, 167 (E.D. Pa. 1980).
II.
In light of the foregoing legal precepts, we must decide whether substantial
evidence supports the Commissioner’s decision that Malloy was not disabled from April
15, 2004, the date she alleged she became disabled, through November 8, 2006, the date
of the ALJ’s decision. We accept this as the proper framing of the issue because it
addresses Malloy’s contention that the decision that she retained residual functional
capacity for light work does not adequately describe her severe impairment and that the
consideration of her complaint did not utilize the evidence of record.
The ALJ considered the evidence of record in accordance with the sequential
evaluation process. At step one of the sequential evaluation process, the ALJ found that
Malloy had not engaged in substantial gainful activity since April 15, 2004. At step two,
the ALJ found that Malloy’s hypertension and obesity were severe impairments. At step
three, the ALJ found that Malloy’s impairments did not, either singly or in combination,
meet or equal those listed impairments presumed severe enough to preclude any gainful
work. Prior to reaching step four, the ALJ determined that Malloy retained the residual
functional capacity for light work. At step four, it was found that Malloy could return to
her past relevant work as a day care center worker and, therefore, that Malloy was not
entitled to disability benefits.
5
In evaluating the substantial evidence burden we note that the ALJ found that
Malloy’s complaints of dizziness, fatigue and shortness of breath were reasonable to a
degree, but not to a completely disabling extent; that the medical evidence did not support
Malloy’s allegations of symptoms and functional limitations; that Malloy did have high
blood pressure, but also that she was not fully compliant with her medications; that
notwithstanding her non-compliance, there was no significant evidence of cardiac
damage; and that her EKG tracings in May 2005 were normal and her EKG tracings in
September 2006 were only “borderline.”
The ALJ evaluated Malloy’s symptoms of leg swelling, fatigue and shortness of
breath, and noted that medical examination findings revealed no evidence of
musculoskeletal abnormality or a cardiac or respiratory abnormality. Moreover, the ALJ
observed that Malloy’s activities in daily living belied her allegations of total disability.
She performed housework in May 2005 such as cleaning, cooking, washing, shopping,
laundry and ironing. She was able to travel alone, and she could do so by walking, riding
in a car or using public transportation. She could shop for two hours and handle money.
Her social activities included going shopping with her family, attending church and
attending social events. Her interests included reading, watching television, singing,
walking and cooking.
As did the District Court, we conclude that the ALJ properly explained how
Malloy’s severe impairments–her hypertension and obesity–restricted her ability to work.
6
The ALJ also correctly found that Malloy’s cardiomyopathy and cardiomegaly were not
severe impairments,1 but nonetheless took those impairments into account when
considering the remaining steps of the sequential evaluation process. The ALJ’s
determination that Malloy had the residual functional capacity to perform a limited range
of unskilled light and sedentary work recognized Malloy’s limitations. We conclude that
the ALJ reasonably found that notwithstanding her impairments, Malloy retained the
residual functional capacity to perform light work. The residual capacity finding was
supported by several medical opinions in evidence. The ALJ’s decision also was
accompanied by appropriate narrative discussion which provided “a clear and satisfactory
explication of the basis on which it rest[ed].” Cotter v. Harris, 642 F.2d 700, 704 (3d Cir.
1981).
III.
Malloy contends that the ALJ did not properly evaluate her complaint of disabling
pain with associated limitations. Pursuant to the Commissioner’s regulations, the ALJ is
required to ascertain whether a claimant has a medically determinable impairment that
could reasonably cause the subjective symptoms alleged and then to “determine the extent
to which a claimant is accurately stating the degree of pain [or other symptoms] or the
1
In contrast to the appellants in cases such as McCrea v. Comm’r of Soc. Sec., 370 F.3d
357 (3d Cir. 2004) and Newell v. Comm’r of Soc. Sec., 347 F.3d 541 (3d Cir. 2003), in which
this Court reversed the Commissioner’s findings of no significant impairment, Malloy did not
submit medical evidence that would show that her cardiomegaly and cardiomyopathy were
severe impairments. Rather, medical testing and exams in evidence indicated that Malloy did not
have a severe cardiac impairment.
7
extent to which he or she is disabled by it.” Hartranft, 181 F.3d at 362 (citing 20 C.F.R. §
404.1529(c)). In this case, after finding that Malloy did have medically determinable
impairments, the ALJ found that her testimony and statements as to alleged debilitating
pain and disabling limitations were not credible for legally sufficient reasons: they were
inconsistent with her regular activities as described above, with the nature of medical
treatment sought and received, with the objective findings and test results of her
examining physicians and with the record evidence as a whole.
The ALJ did find that Malloy suffered pain, but concluded that her pain was not so
severe as to prevent her from performing a limited range of light and sedentary work.
Credibility determinations as to a claimant’s testimony regarding pain and other
subjective complaints are for the ALJ to make. Van Horn v. Shweiker, 717 F.2d 871, 873
(3d Cir. 1983). In view of the evidence presented in the record and of the ALJ’s
“opportunity to observe the demeanor and to determine the credibility of the claimant,”
these findings are entitled to “great weight” and should be upheld. See Cotter, 642 F.2d
at 705.
IV.
We must now determine whether the ALJ erred in determining that Malloy could
return to her past relevant work as a day care assistant. An individual retains the capacity
to perform her past relevant work when she can perform the functional demands and
duties of the job as she actually performed it or as generally required by employers in the
8
national economy. See Soc. Sec. Rul. 82-61 and 82-62. The ALJ was entitled to take into
account the Department of Labor’s Dictionary of Occupational Titles, which categorizes
Malloy’s prior employment as a day care center assistant in the light exertional level. See
U.S. Dep’t of Labor, Dictionary of Occupational Titles, § 359.677-018, at 259-260 (4th
ed. 1991). Vocational expert testimony supported this categorization. As there was
sufficient evidence that Malloy retained residual functional capacity to do light work, the
ALJ did not err in determining that she could return to her previous employment in a
position requiring light exertion as generally required by employers in the national
economy.
******
It will be noted that in this discussion we have not emphasized the contrary
evaluation set forth by the appellant. We find it unnecessary to do so because the issue is
whether the evidence and contentions presented by the Commissioner met the substantial
evidence test. With that as our standard of review it is not our responsibility to
recapitulate the evidence and make findings of fact.
We have considered all the contentions raised by the parties and conclude that no
further discussion is necessary. The judgment of the District Court will be affirmed.
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