Montgomery v. Comm Social Security

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
5-6-2004
Montgomery v. Comm Social Security
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-3249
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NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 03-3249
____________
FRANK MONTGOMERY,
Appellant
v.
JO ANNE B. BARNHART, COMMISSIONER
OF THE SOCIAL SECURITY ADMINISTRATION
____________
Appeal from the United States District Court
For the Eastern District of Pennsylvania
D.C. No.: 02-cv-00752
District Judge: Honorable Clarence C. Newcomer
____________
Submitted Under Third Circuit LAR 34.1(a) April 23, 2004
Before: SCIRICA, Chief Judge, ROSENN and GREENBERG, Circuit Judges
(Filed May 6, 2004)
____________
OPINION OF THE COURT
____________
ROSENN, Circuit Judge.
Frank Montgomery appeals from a summary judgment entered by the United
States District Court for the Eastern District of Pennsylvania in favor of the
Commissioner of Social Security (the Commissioner). Montgomery filed this action in
the District Court for the Eastern District of Pennsylvania pursuant to 42 U.S.C. § 405(g)
seeking judicial review of the Commissioner’s denial of his application for disability
insurance benefits (DIB). During the administrative proceedings, the Administrative Law
Judge (ALJ) found that although Montgomery suffered from a number of medical
ailments, these ailments do not prevent him from carrying out substantial gainful work in
the national economy. The District Court adopted the Report and Recommendations of
United States Magistrate Judge (MJ) Carol Sandra Wells. MJ Wells reviewed in careful
detail the ALJ’s determinations on each of the challenged points and reported to the
District Court that the determinations were supported by the substantial weight of the
evidence. The District Court adopted this report, denied Montgomery’s motion for
summary judgment, and granted the Commissioner’s motion. Montgomery timely
appealed to this court. We affirm.
After conducting a hearing, the ALJ decided that Montgomery had been disabled
prior to November 1, 1999 by drug and alcohol abuse. Thus, he was not entitled to
benefits through that date. The ALJ further found that, absent the severe substance abuse
that had ended at some point in November 1999, Montgomery retained the ability to
perform his past relevant work. Montgomery requested a review of the ALJ’s decision by
the Appeals Council. The Council denied the request for review, making the ALJ’s
decision the final decision of the Commissioner. Montgomery then sought judicial
review of the Commissioner’s final decision and instituted this suit in the United States
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District Court as aforesaid.
Montgomery was forty-nine years old at the time of the ALJ’s decision. He
completed the tenth grade, obtained his general education diploma, and had prior work
experience as a custodian, laborer, cleaner, and kitchen helper. He had also served in the
military for a period of three years ending in 1971. He filed an application for DIB in
June 1999, alleging that he had been disabled since August 1998, due to depression,
seizures, arthritis of the hands and right shoulder, and hepatitis C.
On appeal, Montgomery contends that substantial evidence does not support the
Commissioner’s findings that he has no severe impairments other than a substance abuse
disorder and a substance-induced mood disorder, and that he has no physical limitations.
In addition, M ontgomery contends that the ALJ erred as a matter of law in failing to
include in his hypothetical questions to the Vocational Expert (VE) all of Montgomery’s
physical and mental limitations supported by objective medical evidence.
Montgomery also challenges the Commissioner’s findings that he has the residual
functional capacity (RFC) to return to his former job as a custodian or to perform the job
of security monitor, that his depression did not meet or equal Listing 12.04 after
November 1, 1999, and the Commissioner’s finding that Montgomery is not under a
disability.
Montgomery raised each of these issues in his motion for summary judgment and
briefs. However, he acknowledges that each of these issues were discussed by MJ Wells
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in her Report and Recommendations.
Montgomery claims that the medical evidence establishes that he suffers from
cirrhosis of the liver, major depression, hepatitis C, moderate cerebellar atrophy of the
brain, osteoarthritis of the right shoulder, seizures, cervical radiculopathy, right ulnar
nerve neuropathy at the elbow, degenerative disc disease of the cervical spine, restrictive
lung disease, borderline intellectual function, other minor diseases, and a history of drug
and alcohol abuse for which he is in recovery. The ALJ found that Montgomery stopped
drinking and drug use as of November 1, 1999.
In her twenty-five page Report and Recommendations, MJ Wells was not
persuaded that any of the alleged impairments were severe. She reported: “Specifically,
he (Montgomery) has failed to provide convincing medical opinions that hepatitis C,
cirrhosis of the liver, osteoarthritis of the shoulder, hand weakness, superficial varicose
veins and borderline intellectual functioning ‘significantly limited his physical or mental
ability to do basic work activities.’” (25a.) Judge Wells further found that the ALJ had
considered each of Montgomery’s alleged limitations and concluded that they
individually and in totum did not reach the level of severe. As to hepatitis C, she reported
that the ALJ properly concluded that the record did not indicate any resulting work-
related limitations. She further noted that Dr. Saul, an expert witness with considerable
medical experience, diagnosed “only mild reversible organic damage from the cirrhosis
and hepatitis C infection and no resulting work-related limitations.” (25a.) She also
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scrutinized each of the other findings that the ALJ made with respect to Montgomery’s
alleged illnesses and work limitations.
The District Court reviewed all of the evidence, including the medical testimony
and reports concerning the Montgomery’s various illnesses together with the reports and
testimony presented by the Government. It found that the ALJ properly considered
whether Montgomery had a severe impairment or combination of impairments that
imposed more than a minimal restriction on his ability to perform basic work activities on
a sustained basis. The District Court found that the ALJ considered each of
Montgomery’s alleged impairments singly and in combination. The District Court found
no fault with the AJL’s conclusion that Montgomery’s only severe impairment that
impacted his ability to work was his substance-induced mood disorder. Because the
District Court found that the additional ailments were not severe, the District Court
concluded that the ALJ’s decision was properly supported by substantial evidence.
The District Court also reviewed the ALJ’s decision that Montgomery did not
meet the listing in section 12.04.1 Montgomery argues that the ALJ did not properly
1
The requirements of Listing 12.04 are:
A. Medically documented persistence, either continuous or intermittent, of one
of the following:
1. Depressive syndrome . . .; or
2. Manic syndrome . . .; or
3. Bipolar syndrome with a history of episodic periods manifested by
the full symptomatic picture of both manic and depressive symptoms
(and currently characterized by either or both syndromes); AND
B. Resulting in at least two of the following:
1. Marked restriction of activities of daily living; or
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consider the opinions of his treating physician, Dr. Makary and Dr. Slap. The
requirements of Listing 12.04 are set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1. The
ALJ conceded that Montgomery exhibited sufficient symptoms of an affective disorder
after he stopped drinking to meet the Part A criteria of the listing of 12.04. However,
with respect to Part B criteria, the District Court found that the ALJ accorded Dr. Richard
Saul’s opinion the greatest weight. Based on all the evidence, Dr. Saul concluded,
according to the ALJ, that Montgomery had not sufficient brain damage from his prior
substance abuse. An MRI confirmed this conclusion. Thus, Montgomery did not meet or
equal Listing 12.04.
We conclude that there was no error of the ALJ in according Dr. Saul’s opinion
greater weight than the testimony of Dr. Makary and Dr. Slap, Montgomery’s treating
physicians. Although Drs. Makary and Slap asserted that Montgomery met or equaled
Listing 12.04, we believe that there was adequate ground for the ALJ to reject both
disability opinions as inconsistent with other convincing evidence in the record. The ALJ
found that Dr. Slap’s opinion was entitled to only limited weight because he based his
assessment to a large degree on Montgomery’s description of his symptoms and abilities.
However, Dr. Slap was unaware of the significant discrepancies set forth between
Montgomery’s allegations and the evidence of record. Further, the ALJ found that Dr.
2. Marked difficulties in maintaining social functioning; or;
3. Marked difficulties in maintaining concentration, persistence, or
pace; or
4. Repeated episodes of decompensation, each of extended duration.
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Slap offered his opinion on brain damage before Dr. Griffin, the psychologist, submitted
her report. That report revealed that psychological testing provided only questionable
indication of brain damage after a full battery of psychological tests. The ALJ attributed
significant weight to Dr. Griffin’s report because it was the only psychological opinion
supported by objective testing. Dr. Griffin’s conclusion was that Montgomery’s work-
related abilities were at least fair except in performing complex tasks. The District Court
therefore found that the ALJ’s reasoning was sound. We agree.
Furthermore, the ALJ rejected Dr. M akary’s disability opinion because: (1) his
document required only “yes” and “no” answers and lacked any supporting medical data,
and (2) his document directly contradicted his own earlier assessment that Montgomery
had a GF score of 60. The District Court found these reasons valid. Although a treating
physician’s conclusion should be accorded great weight, it may be rejected if it is
unsupported by sufficient clinical data. Newhouse v. Heckler, 753 F.2d 283, 286 (3d Cir.
1985).
The District Court also found that the ALJ’s conclusion that Dr. Saul’s opinion
that Montgomery did not meet or equal Listing 12.04 was the most consistent with and
well supported by the evidence. Dr. Saul found only moderate limitations in
Montgomery’s activities of daily living, social functioning, concentration, and persistence
or pace.
The ALJ gave a series of well supported reasons why Dr. Saul’s opinion carried
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greater weight than the testimony of Dr. Makary and Dr. Slap. He agreed with Dr. Saul’s
opinion that Montgomery did not meet or equal Listing 12.04. Dr. Saul’s opinions were
not substantially contradicted by other medical evidence except for the opinions of Dr.
Slap and Dr. Makary.
Dr. Griffin also reported that Montgomery was likely exaggerating his symptoms
and that his credible limitations were not disabling. Furthermore, the ALJ reported that
“Dr. Griffin’s test observations gave her a unique opportunity to determine
[Montgomery’s] abilities in a work-like setting.” (A20.) Thus, the District Court was of
the opinion that “the ALJ rationally accorded greater weight to the opinions of Drs. Saul
and Griffin and discounted those of Drs. Slap and M akary.” (A30a.)
The ALJ carefully reviewed Montgomery’s testimony concerning his inability to
return to his part-time relevant work. Montgomery challenged this determination on the
part of the ALJ because a state agency physician concluded that Montgomery could not
perform frequent handling or reaching and because of alleged limitation in walking and
standing caused by varicose veins. The District Court found that Montgomery’s
argument was without merit. We agree. Montgomery had the burden to prove that he
could not return to his past prior work. See Adorno v. Shalala, 40 F.3d 43, 46 (3d Cir.
1994). The District Court believed that the ALJ relied upon objective medical evidence
and Montgomery’s credible subjective complaints in setting his RFC with only non-
exertional limitations. The District Court further found that the ALJ’s finding of the RFC
8
matched the requirements of Montgomery’s past work RFC as detailed by the VE, as well
as by submissions of Montgomery. Thus, we agree with the District Court that the ALJ’s
determination that Montgomery could return to his past relevant work is supported by
substantial evidence. We perceive no error on the part of the District Court, the
Commissioner, or the ALJ.
The judgment of the District Court will be affirmed. Each side is to bear its own
costs.
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