Kacee Chandler v. Commissioner Social Security

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 11-2220
____________
KACEE LEE CHANDLER
v.
COMMISSIONER OF SOCIAL SECURITY,
Appellant
____________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. No. 10-cv-01047)
District Judge: Honorable Malcolm Muir
____________
Submitted Under Third Circuit LAR 34.1(a)
December 6, 2011
Before: HARDIMAN, BARRY
and VAN ANTWERPEN, Circuit Judges.
(Filed: December 7, 2011)
Shawn P. McLaughlin
Menges, McLaughlin & Kalasnik
145 East Market Street
York, PA 17401-0000
Attorneys for Plaintiff-Appellee
Robert D. Kamenshine
William Kanter
Leonard Schaitman
Wesley P. Page
United States Department of Justice
Civil Division
Room 7213
950 Pennsylvania Avenue, N.W.
Washington, DC 20530-0000
Attorneys for Defendant-Appellant
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OPINION OF THE COURT
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HARDIMAN, Circuit Judge.
The Commissioner of Social Security appeals the District
Court’s order remanding this case after an administrative law
judge (ALJ) denied Kacee Chandler’s claims for Social Security
Disability Insurance Benefits (DIB) and Supplemental Security
Income (SSI). We will reverse the judgment of the District
Court.
I
Kacee Chandler is a mother of two with a GED and two
2
years of business school education. In 2006, she developed
reflexive sympathetic dystrophy (RSD) after she fell. At the
time, she was a bookkeeper and part-time receptionist for a law
firm, as well as a housecleaner. Chandler worked full-time until
January 2007, but by October 2007 she had reduced her hours to
three per day, five days per week. She stopped working
altogether in April 2008.
Chandler filed for DIB and SSI in October 2007, but her
application was denied in June 2008. In June 2009, Chandler
received a hearing before the ALJ, who denied her applications
at Steps Four and Five, finding that she was not disabled
because she had the residual functional capacity (RFC) to
perform sedentary work with certain limitations and that jobs
meeting those criteria were available. See 20 C.F.R.
§§ 404.1520, 404.1545(a), 416.920; see also Hartranft v. Apfel,
181 F.3d 358, 359 n.1 (3d Cir. 1999) (explaining RFC as ―that
which an individual is still able to do despite the limitations
caused by his or her impairment(s)‖ (citing 20 C.F.R.
§ 404.1545(a))). Eight months later, the Appeals Council
denied Chandler’s request for review of the ALJ determination,
making it the Commissioner’s final decision. In May 2010,
Chandler sought review in the District Court. The District Court
held that the ALJ’s RFC determination was not supported by
substantial evidence, and the Commissioner appealed.
II
The District Court had jurisdiction under 42 U.S.C. §§
405(g) and 1383(c)(3), and we have jurisdiction under 28 U.S.C.
§ 1291. We exercise plenary review over legal conclusions
reached by the Commissioner. See Poulos v. Comm’r of Soc.
Sec., 474 F.3d 88, 91 (3d Cir. 2007). We review the
3
Commissioner’s factual findings for ―substantial evidence,‖ 42
U.S.C. § 405(g), which is ―such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.‖ Reefer v. Barnhart, 326 F.3d 376, 379 (3d Cir.
2003) (quoting Richardson v. Perales, 402 U.S. 389, 401
(1971)) (internal quotation marks omitted). Courts are not
permitted to re-weigh the evidence or impose their own factual
determinations. See Richardson, 402 U.S. at 401.
III
Consistent with her burden to produce evidence
supporting her disability claim, see 20 C.F.R. § 404.1512;
Rutherford v. Barnhart, 399 F.3d 546, 551 (3d Cir. 2005),
Chandler presented numerous medical records describing
treatments and evaluations between January 2006 and May
2009. The records detailed her RSD diagnosis and the
placement and revision of a spinal cord stimulator to help
control her pain. Chandler’s records also indicated a
dependency on prescription painkillers for years after her injury.
Finally, the record contained several opinions and notations by
medical professionals regarding Chandler’s disability.
In September 2007, nurse practitioner Lisa DeWees
wrote that Chandler was ―permanently disabled‖ but that she
could still work at a ―very low physical stress job‖ twenty to
twenty-five hours per week. In April 2009, DeWees also noted
that Chandler ―cannot work and earn money in any capacity due
to her . . . [RSD] . . . and cannot sit, stand, or walk for greater
than 30 minutes at a time.‖
State agency psychologist Dr. Karen Weitzner opined on
June 25, 2008, that Chandler had an ―adjustment disorder‖ but
4
that it did not satisfy the regulations’ diagnostic criteria and was
not a severe impairment; it only mildly limited her social
functioning and concentration and did not impede her daily
activities.
On July 1, 2008, State agency medical consultant Dr.
Vrajlal Popat issued a Physical Residual Functional Capacity
Assessment after reviewing Chandler’s medical records through
June 2008. He acknowledged, among other things, that
Chandler had ―pain which [was a] sharp, stabbing ice pick
sensation,‖ and confirmed that ―the medical evidence
establishe[d] a medically determinable impairment of [RSD].‖
Ultimately, Dr. Popat concluded that Chandler retained the
ability to occasionally lift or carry ten pounds, climb stairs,
balance, stoop, kneel, crouch, and crawl, and that she had no
manipulative, visual, communicative, or environmental
limitations.
After the ALJ’s decision, Chandler submitted to the
Appeals Council two additional opinions: one from DeWees’s
colleague, Dr. Christopher Echterling, and one from her former
supervisor at the law firm, N. Christopher Menges. Dr.
Echterling simply ―concur[red]‖ with DeWees’s April 2009
diagnosis. Menges explained Chandler’s poor concentration and
accuracy in the workplace after her injury.
IV
The District Court rejected the ALJ’s decision because
―there was no timely and relevant opinion by a medical expert
which support[ed] the [RFC] determination.‖ Chandler v.
Astrue, No. 4:10-cv-01047, slip op. at 19 (M.D. Pa. Mar. 8,
2011). Essential to this holding was the District Court’s
5
rejection of Dr. Popat’s report as no longer useful to the ALJ
determination because Dr. Popat had only reviewed the medical
records through June 2008. As we shall explain, the District
Court committed legal error in disregarding Dr. Popat’s report.1
Preliminarily, we must distinguish between the new
records and DeWees’s April 2009 notes, which arose after Dr.
Popat’s report but before the ALJ’s decision, and the opinions of
Dr. Echterling and Menges, which were never before the ALJ.
As to the latter, remand cannot be justified based on the ALJ’s
failure to consider those documents. ―[A]lthough evidence
considered by the Appeals Council is part of the administrative
record on appeal, it cannot be considered by the District Court in
making its substantial evidence review . . . .‖ Matthews v. Apfel,
239 F.3d 589, 593 (3d Cir. 2001). Moreover, remand based on
new evidence is only appropriate where the claimant shows
good cause why that evidence was not procured or presented
before the ALJ’s decision, id. at 594, and Chandler has failed to
do so here because she has not explained ―why she did not
attempt to obtain [the] evaluation[s] at a time when [they] could
be considered by the ALJ,‖ id. at 595.
With respect to the records arising after Dr. Popat’s
1
The District Court also noted that Dr. Weitzner ―only
reviewed the medical records through June 25, 2008.‖
Chandler, No. 4:10-cv-01047, slip op. at 16. Although
Chandler has not focused her appeal on the ALJ’s Step Two
determination that her depression was not severe, for the reasons
explained herein, this was no basis for discrediting Dr.
Weitzner’s report, which provided substantial evidence for the
ALJ’s determination.
6
review but before the ALJ’s decision, a few salient points
emerge. First, the records presented to the ALJ in this case
were, at most, a few years old. They tracked Chandler’s injury
and deterioration during the time periods surrounding her
disability onset date.2 We have permitted reliance on records
much older than those presented in this case. See, e.g., Morales
v. Apfel, 225 F.3d 310, 312–13 (3d Cir. 2000) (upholding a 1997
ALJ decision based on records from 1989 through 1994);
Hartranft, 181 F.3d at 360–61 (finding substantial evidence
where the ALJ relied on six-year-old medical records).
Second, because state agency review precedes ALJ
review, there is always some time lapse between the consultant’s
report and the ALJ hearing and decision. The Social Security
regulations impose no limit on how much time may pass
between a report and the ALJ’s decision in reliance on it. Only
where ―additional medical evidence is received that in the
opinion of the [ALJ] . . . may change the State agency
medical . . . consultant’s finding that the impairment(s) is not
equivalent in severity to any impairment in the Listing,‖ is an
update to the report required. SSR 96-6p (July 2, 1996)
(emphasis added). The ALJ reached no such conclusion in this
case.3
2
Chandler revised her disability onset date several times.
In her original disability application, Chandler alleged an onset
date of January 2006. In proceedings before the ALJ, she
amended it to January 2007. Finally, in her request to the
Appeals Council, she revised her onset date to January 2008.
3
Although the District Court found that the ALJ’s
explanation for its Step Three determination that Chandler’s
7
Contrary to the District Court’s view, the ALJ was
entitled to rely on Dr. Popat’s opinion. The ALJ—not treating
or examining physicians or State agency consultants—must
make the ultimate disability and RFC determinations. See 20
C.F.R. §§ 404.1527(e)(1), 404.1546(c). Although treating and
examining physician opinions often deserve more weight than
the opinions of doctors who review records, see, e.g., 20 C.F.R.
§ 404.1527(d)(1)–(2), ―[t]he law is clear . . . that the opinion of a
treating physician does not bind the ALJ on the issue of
functional capacity,‖ Brown v. Astrue, 649 F.3d 193, 197 n.2 (3d
Cir. 2011). State agent opinions merit significant consideration
as well. See SSR 96-6p (―Because State agency medical and
psychological consultants . . . are experts in the Social Security
disability programs, . . . 20 C.F.R. §§ 404.1527(f) and
416.927(f) require [ALJs] . . . to consider their findings of fact
impairments did not match or equal a listing was ―inadequate,‖
Chandler, No. 4:10-cv-01047, slip op. at 17, it clearly stated that
its remand was based primarily on the ―lack of substantial
evidence supporting the [ALJ’s] [RFC] assessment,‖
Memorandum Pursuant to Local Appellate Rule 3.1 at 4,
Chandler, No. 4:10-cv-01047 (M.D. Pa. May 6, 2011).
Moreover, Chandler does not argue that her new records
or DeWees’s additional notes would have altered the ALJ’s or
Dr. Popat’s decisions at Step Three. She contends that ―it is
likely, if not expected that the opinions proffered by Dr.
Echterling would have a substantial effect on the outcome of the
disability determination,‖ but, as explained above, neither the
District Court nor this Court may consider Dr. Echterling’s
opinion with respect to whether the ALJ had substantial
evidence to deny Chandler’s application.
8
about the nature and severity of an individual’s
impairment(s) . . . .‖).
We also note that the ALJ did not merely rubber stamp
Dr. Popat’s RFC conclusion. Cf. 20 C.F.R. § 404.1527(f)(1)(i)
(clarifying that the RFC findings of non-examining State agency
consultants are ―based on the evidence . . . but are not in
themselves evidence‖). Instead, the ALJ found persuasive and
incorporated DeWees’s opinion that Chandler cannot sit for
more than thirty minutes at a time, even though the ALJ was not
required to consider DeWees’s opinion at all because, as a nurse
practitioner, she is not an ―acceptable medical source[].‖ See 20
C.F.R. § 404.1513(a). The ALJ also added restrictions Dr.
Popat did not deem necessary.4
4
The ALJ’s complete RFC finding was:
[T]he claimant has the residual functional
capacity to perform sedentary work . . . except
that the claimant is limited to standing and
walking for 15 minutes at a time and no more
tha[n] 2 hours per day. The claimant is able to sit
for 6 hours in an 8 hour day. The claimant needs
to be able to sit/stand/walk at will. She is limited
to lifting and carrying 5 pounds frequently and 10
pounds occasionally. She has no limitation on
pushing and pulling up to 10 pounds. She is
precluded from using foot controls with her right
foot. She has no limitation on foot controls with
her left foot. She has no limitation on overhead
reaching, bending or manipulation. The claimant
is precluded from climbing, balancing, crawling,
9
The District Court also suggested that the ALJ’s
explanation in support of its decision was insufficient for
meaningful review. We disagree that the ALJ failed in this
respect. An ALJ must explain the weight given to physician
opinions and the degree to which a claimant’s testimony is
credited. See 20 C.F.R. § 404.1527(f)(2)(ii); Rutherford, 399
F.3d at 557. The ALJ’s six-page ―Findings of Fact and
Conclusions of Law‖ detailed Chandler’s medical history and
the state agency opinions. The ALJ explained that he gave
―significant weight‖ to Dr. Popat’s opinion and that, other than
DeWees’s opinion, ―there [we]re no other treating or examining
medical source statements which addressed the claimant’s
physical capabilities.‖ The ALJ explained that he ―considered
and evaluated‖ DeWees’s opinion even though it purported to
make the ultimate disability determination, which is reserved to
the Commissioner.5 The ALJ also explained why he discredited
some of Chandler’s testimony.
Chandler argues that ―error occurred when the ALJ
using vibrating tools, unprotected heights and
hazardous conditions. She is limited to
occasional stooping, kneeling and crouching.
Due to her use of pain medication, she is limited
to simple 1-2 step repetitive tasks without a high
pace or production quotas.
5
Although the ALJ’s findings only noted DeWees’s
September 2007 opinion that Chandler was ―permanently
disabled‖ but could still work twenty to twenty-five hours per
week at a ―very low physical stress job,‖ the sit/stand limitation
in the RFC demonstrates that the ALJ factored in DeWees’s
April 2009 opinion as well.
10
reviewed or, more properly stated, ignored, the intervening
developments in the record and, applying his own lay opinion,
extrapolated from the medical opinion he obtained one year
previous, from Dr. Popat, and determined that Chandler
continued to have a virtually identical RFC.‖ The District Court
likewise concluded that the ALJ had reached its decision based
on its own improper lay opinion regarding medical evidence.
But the ALJ is not precluded from reaching RFC determinations
without outside medical expert review of each fact incorporated
into the decision. Although reliance on State consultants’ and
treating physicians’ opinions is common and ALJs are required
to consider any existing State consultant reports, see 20 C.F.R.
§§ 404.1519, 404.1527(f), the regulations do not require ALJs to
seek outside expert assistance, see 20 C.F.R. §§ 404.1546(c),
404.1527(e); SSR 96-5p (July 2, 1996). Therefore, the ALJ did
not err in this regard.
V
Having found that Dr. Popat’s report was properly
considered by the ALJ, we readily conclude that the ALJ’s
decision was supported by substantial evidence for the reasons
we have stated. The new medical evidence generated after Dr.
Popat’s review did not undermine his conclusion. Chandler’s
September 2008 Progress Note says: ―[H]er foot pain has
improved. They gave her a new antenna for her spinal cord
stimulator and things have improved. . . . She really feels
comfortable with her medications at this time and does not want
to change anything. . . . She has stopped smoking marijuana.‖
Just before the ALJ hearing, in May 2009, Chandler’s fentanyl
patch was ―tak[ing] the edge off,‖ and ―she [was] able to do her
activities of daily living.‖ Chandler was experiencing some new
hand pain but was able to ―use a computer frequently.‖
11
Nor did Chandler’s own subjective complaints of pain
and limitations cast doubt on Dr. Popat’s report. Although ―any
statements of the individual concerning his or her symptoms
must be carefully considered,‖ SSR 96-7p (July 2, 1996), the
ALJ is not required to credit them, see 20 C.F.R. § 404.1529(a).
Chandler had reported extreme pain to doctors and claimed that
she had to lie down most of the day, but she also testified that
she managed to shop several times per week, cook dinner, care
for her two children, and visit with friends. The ALJ thus had
substantial evidence to conclude Chandler was not ―credible
regarding the intensity and extent of her limitations, especially
her need to lie down most of the day due to pain,‖ and was
entitled to rely instead on Dr. Popat’s opinion.
VI
For the foregoing reasons, we will reverse the District
Court’s judgment and affirm the decision of the ALJ.
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