Hatton v. Commissioner of Social Security Administration

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
5-24-2005
Hatton v. Comm Social Security
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-4185
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No: 04-4185
CAROL A. HATTON,
Appellant
v.
COMMISSIONER OF SOCIAL
SECURITY ADMINISTRATION
Appeal from the United States District Court
for the Western District of Pennsylvania
(Civ. No. 04-cv-00313)
District Judge: Hon. Thomas M. Hardiman
Submitted under Third Circuit LAR 34.1(a)
May 5, 2005
Before: McKEE, SMITH and VAN ANTWERPEN,
Circuit Judges
(filed: May 24, 2005 )
OPINION
McKEE, Circuit Judge.
Carol A. Hatton appeals from the district court’s order affirming the decision of
the Commissioner of Social Security denying her application for Disability Insurance
Benefits (“DIB”) under Title II of the Social Security Act. 42 U.S.C. §§ 401-433. For
the reasons that follow, we will affirm.
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I.
Hatton filed an application for DIB on August 23, 2003, alleging that she had been
disabled since December 25, 2000 due solely to mental impairments. The state agency
denied her application, and Hatton requested an administrative hearing. In her request for
a hearing, she again alleged disability based solely on her mental impairments.
After an administrative hearing, an Administrative Law Judge denied Hatton’s
application, finding that she was not disabled because she could perform a significant
number of jobs in the national economy. The ALJ’s decision became the final agency
decision subject to judicial review when the Appeals Council denied Hatton’s request for
review. 20 C.F.R. § 404.981.
Having exhausted her administrative remedies, Hatton filed a civil action in the
district court. On cross-motions for summary judgment, the district court held that the
ALJ’s decision was supported by substantial evidence. This appeal followed.
II.
Our scope of review is limited to determining if the Commissioner's decision is
supported by substantial evidence. 42 U.S.C. §§ 405(g), 1383(c)(3); Monsour Medical
Ctr. v. Heckler, 806 F.2d 1185, 1190 (3d Cir. 1986). The ALJ's decision is the final
decision of the Commissioner when the Appeals Council denies a request for review.
Sims v. Apfel, 530 U.S. 103, 107 (2000). Substantial evidence refers to that evidence that
"a reasonable mind might accept as adequate to support a conclusion." Richardson v.
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Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S.
197, 229 (1938)). It is "more than a mere scintilla but may be somewhat less than a
preponderance of the evidence." Ginsberg v. Richardson, 436 F.2d 1146, 1148 (3d Cir.
1971).
III.
Because we write only for the parties, we will discuss only the facts that are
relevant to our disposition of this appeal. Hatton’s first argument is that the ALJ erred in
weighing the medical opinions of record in concluding that she could perform a limited
range of medium work. In particular, she argues that the ALJ failed to give controlling
weight to the treatment notes of Keystone Rehabilitation Center and failed to give
controlling weight to the opinion of her treating psychiatrist. We disagree.
The treatment notes of Keystone Rehabilitation Center to which Hatton refers are
physical therapy notes of John Bitsko, P.T., from May 8, 2003 through June 3, 2003
which recite that Hatton had difficulty walking and sleeping due to pain.1 Hatton
contends that the ALJ erred by not giving controlling weight to those notes. However, a
physical therapist is not an acceptable medical source. 20 C.F.R. 404.1513(a).
(Acceptable medical sources include licensed physicians, licensed or certified
psychologists, licensed optometrists, licensed podiatrists and qualified speech-language
1
As noted, Hatton initially alleged disability solely due to mental impairments.
Later, however, she complained of back, abdominal or chest pain.
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pathologists). Consequently, the rules for evaluating acceptable medical source
statements do not apply to the physical therapist’s notes. 20 C.F.R. § 404.1527(a)(2).
Statements from a physical therapist are entitled to consideration as additional evidence,
but are not entitled to controlling weight. 20 C.F.R. § 404.1513(d). Here, the ALJ did
consider the treatment notes, but she was not required to afford them controlling weight.
Moreover, the statements from the physical therapy notes are simply a recitation of
Hatton’s own subjective complaints. Bitsko noted that Hatton complained of difficulty
standing, walking and sleeping due to pain. He did not clinically observe such difficulty.
In his clinical observation, Bitsko reported that Hatton ambulated independently without
an assistive device, with an antalgic gait on the left but no trunk rotation. She had no
motor or sensory deficit on examination. Even if it is assumed for the moment that Bitsko
was an acceptable medical source, a medical source’s recitation of subjective complaints
is not entitled to any weight. See 20 C.F.R. § 404.1527(d)(2) (providing that a
physician’s opinion must be well-supported by objective medical findings in order to be
entitled to weight); see also Craig v. Chater, 76 F.3d 585, 590 n.2 (4th Cir. 1996)
(holding that a medical source does not transform the claimant’s subjective complaints
into objective findings simply by recording them in his narrative report). Therefore, the
ALJ was not required to adopt the subjective limitations that Bitsko repeated, but did not
observe in his clinical examination.
The ALJ reviewed x-rays and MRIs showing only mild or minimal degenerative
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changes. She also reviewed clinical examinations showing some limitations but generally
normal neurological, motor and sensory function. The ALJ also considered Hatton’s
disability forms, in which she failed to report any physical impairment at all. Finally, the
ALJ evaluated Hatton’s daily activities, which included working as a caretaker at least
three days a week for a significant portion of the claimed period of disability. Based on
these things, the ALJ found that Hatton retained the ability to perform medium work with
only occasional postural activities; less than occasional kneeling, crouching, crawling, or
squatting; no climbing or stairs; and no pushing or pulling with the left leg. The ALJ’s
finding as to Hatton’s physical limitations was supported by substantial evidence.
Hatton also argues that the ALJ failed to give controlling weight to the opinion of
her treating psychiatrist, Emira Zubchevich, M.D. We again disagree. Hatton did not
seek any psychiatric treatment until June 2003, eighteen months after the claimed onset of
disability. At that time, she saw Dr. Zubchevich complaining of anxiety and depression.
Although Hatton had difficulty doing serial sevens, she reported that she could generally
concentrate on her reading and daily work. She also had good remote and recent past
memory and fair recent memory. Dr. Zubchevich diagnosed a major depressive disorder
and concluded that Hatton was unable to adapt in social or occupational activities. She
opined that Hatton had moderately impaired daily activities and social functioning and
markedly impaired concentration and adaptation.
Hatton did not return for follow-up psychiatric treatment with Dr. Zubchevich until
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September 2003. Dr. Zubchevich again concluded that Hatton was unable to work due to
a combination of her obesity, pain, limited range of skills and depression. Dr.
Zubchevich discharged Hatton from her care and instructed her to pursue counseling
closer to home.
However, the record contains two medical opinions contradicting Dr. Zubchevich.
On November 18, 2002, Hatton had a consultative psychological evaluation with Michael
Crabtree, Ph.D. Hatton denied suicidal thoughts and stated that she used to have
problems with sleeping. Hatton had good abstract thinking, average intelligence and
good concentration. She had no difficulty performing serial sevens and demonstrated
normal memory and judgment on testing. She showed no signs of depression and no
high levels of anxiety or stress on clinical evaluation.
Dr. Crabtree opined that Hatton had no diagnosable mental impairment. She was
capable of performing her daily activities, including shopping, cooking, cleaning and
maintaining a residence. She had very good social functioning and good concentration,
persistence, and pace. Dr. Crabtree opined that Hatton had fair ability to understand,
remember and carry out detailed or complex instructions. She had at least good, or
satisfactory, ability to perform all other work-related activities.
Douglas Schiller, Ph.D., a state agency psychologist, reviewed the evidence of
record, including Dr. Crabtree’s report, and opined that Hatton had no severe mental
impairments.
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When “presented with the not uncommon situation of conflicting medical evidence
. . . . [t]he trier of fact has the duty to resolve that conflict.” Richardson v. Perales, 402
U.S. 389, 399 (1971). And, a reviewing court should not re-weigh the medical opinions
of record but should consider only whether the ALJ’s weighing of such opinions was
supported by substantial evidence. Monsour Medical Ctr. v. Heckler, 806 F.2d 1185,
1190 (3d Cir. 1986).
The ALJ found that Dr. Zubchevich’s opinion was not entitled to significant
weight for several reasons. First, as noted, her assessment was inconsistent with the
opinions of Drs. Crabtree and Schiller. Moreover, Dr. Zubchevich only examined Hatton
twice. Thus, Dr. Zubchevich’s assessment does not provide the longitudinal picture of
Hatton’s assessment contemplated by the treating physician regulations. See 20 C.F.R. §
404.1527(d)(2)(I) (providing that an ALJ should consider the length of a treating
relationship in assessing the weight to be given to a treating medical source’s opinion).
Second, Dr. Zubchevich’s description of Hatton as a person who was virtually
incapacitated by her mental impairments is inconsistent with Hatton’s almost complete
absence of mental health treatment. Prior to seeing Dr. Zubchevich, Hatton relied
exclusively on her treating primary care physicians to prescribe anti-depressants or anti-
anxiety medications and sought no counseling or evaluation by a mental health
professional. Dr. Zubchevich’s assessment is inconsistent with the mental status
examination of Dr. Crabtree. Dr. Zubchevich’s assessment was based largely on Hatton’s
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subjective complaints of mental impairment, which the ALJ found unreliable because
they were inconsistent with, inter alia, her limited treatment history and her work as a
caregiver. Finally, Dr. Zubchevich based her assessment in part on Hatton’s subjective
physical complaints. However, Dr. Zubchevich never conducted a physical examination
of Hatton. Nor is there any record evidence that Dr. Zubchevich reviewed any medical
records from a treating physician.
Clearly, the ALJ did not ignore the opinion of Hatton’s treating psychiatrist. On
the contrary, she gave a detailed analysis of Dr. Zubchevich’s assessment and explained
the many reasons why she believed that it was not entitled to significant weight. We find
that the ALJ’s reasoned analysis was supported by substantial evidence.
Hatton’s second, and last, argument is that the ALJ’s hypothetical question to the
vocational expert was improper because it did not include the mental limitations
described by Dr. Zubchevich or the physical limitations she alleges. We disagree. The
ALJ was not required to incorporate these limitations into her hypothetical because she
found that the limitations described by Dr. Zubchevich were not reliable and because the
limitations in the physical therapist’s report were not medical opinions. Rather, as noted,
they were merely notations of Hatton’s subjective complaints, and did not come from an
acceptable medical source.
IV.
For all of the above reasons, we will affirm.
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