Leech v. Comm Social Security

Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
9-27-2004
Leech v. Comm Social Security
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-4778
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-4778
HARRY B. LEECH,
Appellant
v.
JO ANNE B. BARNHART, in her
official capacity as COMMISSIONER
OF THE SOCIAL SECURITY ADMINISTRATION
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civ. No. 02-0126)
Honorable David Stewart Cercone, District Judge
Submitted under Third Circuit LAR 34.1(a)
September 24, 2004
BEFORE: MCKEE, ALDISERT, and GREENBERG, Circuit Judges
(Filed: September 27, 2004)
OPINION OF THE COURT
GREENBERG, Circuit Judge.
This matter comes on before this court on appeal from an order entered November
5, 2003, affirming the Commissioner of Social Security’s denial of appellant Harry B.
Leech’s (“Leech”) request for benefits under Title II of the Social Security Act (“the
Act”), 42 U.S.C. §§ 401-33. The district court had jurisdiction pursuant to 42 U.S.C. §
405(g) and we have jurisdiction pursuant to 28 U.S.C. § 1291. For the reasons set forth
below, we will reverse the district court’s order affirming the Commissioner’s decision
and instruct the district court to remand the case to the Commissioner for further
proceedings.
I. PROCEDURAL HISTORY AND BACKGROUND
A. Procedural History
On July 12, 1999, Leech applied for disability insurance benefits (“DIB”), alleging
disability since June 9, 1999, due to heart damage, brain injury, and memory loss. Leech
later amended the onset date to March 13, 1997. Because he last was insured on
December 31, 1998, he needed to show disability on or before that date.1 42 U.S.C. §
423(a), (c). The Commissioner denied his claim initially and upon reconsideration. At an
administrative hearing before Administrative Law Judge (“ALJ”) James Bukes, held on
June 16, 2000, at which an attorney represented Leech, Leech and vocational expert Dr.
1
The Commissioner in her brief indicates that the alleged onset date of disability was
March 13, 1997, see appellee’s br. at 5, but Leech indicates that the date was March 31,
1996, see appellant’s br. at 12. The parties agree, however, that Leech last was insured
on December 31, 1998. If the onset date is material the matter may be explored on
remand.
2
William Reed testified.2
On November 24, 2000, the ALJ concluded that although Leech was unable to
perform his past relevant work he was not disabled as he could perform a significant
number of specific semi-skilled and skilled sedentary jobs. The Appeals Council denied
Leech’s request for review, and thus the ALJ’s decision became final. Leech then filed a
complaint in the district court which affirmed the Commissioner’s decision on November
5, 2003, following which Leech filed this appeal.
B. Factual Background
Leech was born on December 4, 1938, and was 60 years old when he last
qualified for DIB. He attended college and earned a Master’s Degree in American
history. Leech worked as a parole officer from 1970 until July 1993. He then had two
delivery jobs, but ultimately stopped working in September 1994.
1. Cardiac Surgery - April 1991
Leech had coronary bypass surgery in April 1991 due to anterior wall myocardial
infarction and congestive heart failure but he returned to work one month later. After
completing outpatient rehabilitation, he exercised to 12.1 METS, his functional capacity
was good, and he did not suffer from arrhythmia or ischemia.
2
In his brief, Leech refers to prior testimony from VE Dr. Fred Morocco, on November
1, 1995, at a hearing before ALJ Barbara Gunning. ALJ Gunning denied Leech’s
disability claim on March 8, 1996.
3
2. Car Accident - February 1993
Following an automobile accident in February 1993, Leech was hospitalized for
chest tightness and dizziness. His chemistry profile was normal, except for high
cholesterol and triglyceride and his cardiac enzymes were negative. His brain CT scan
was normal. His discomfort was characterized as “atypical.” Upon discharge, a stress
test showed “[e]xcellent” functional capacity, with a performance at 15.1 METS. Tr. 246.
Leech then returned to work.
In July 1993, he was hospitalized for chest discomfort after being stopped for
drunk driving. A cardiac catheterization showed “[m]ild” left ventricular dysfunction.
Tr. 286. His symptoms were found to be non-cardiac in origin. He was discharged
without physical restrictions other than to cease smoking and drinking alcohol.
3. Cognitive Testing
In February 1993, Leech was tested by reason of his memory loss and headaches.
His brain CT scan was normal. In August 1993, Dr. Lee J. Barolo’s psychological
evaluation of Leech showed average intellectual functioning on the Wechsler Adult
Intelligence Scale-Revised (“WAIS-R”) but other tests indicated possible cognitive
decline. In December 1993, Dr. Ravi Kant of the Allegheny Neuropsychiatric Institute
noted personality change, cognitive difficulty, attention deficits, inflexibility, and short-
term memory problems. These symptoms constituted “mild” traumatic brain injury. He
4
noted that most patients recovered fully, with rapid improvement in six months.
Neurologic specialist, Dr. Guy Costello, noted that medication improved Leech’s
headaches. He found normal judgment and intact cranial nerves and neurologic exams.
By February 1994 Leech had improved. In particular, he did not have sleep or appetite
problems but did have increased motivation and energy and kept busy. By March 1994,
Leech reported doing “significantly better.” Tr. 361.
4. Dr. Smith-Seemiller
In June 1994, Dr. Laura Smith-Seemiller of the Allegheny Neuropsychiatric
Institute found gains in Leech’s oral word fluency, sequence and memory functioning.
She taught Leech cognitive strategies involving checklists and self-instructional clues
which Leech found “beneficial.” Dr. Smith-Seemiller concluded that Leech had
“experienc[ed] significant cognitive impairment,” with patterns of difficulty similar to
those found in August 1993. Tr. 481, 484.
She elaborated in a letter to Leech’s attorney, noting Leech’s problems in learning,
memory, information processing speed, and visual spacial memory. She opined that
Leech would have difficulty in social situations, evaluating a client’s situation, and
making appropriate decisions. She noted that he tended to be forgetful and needed to
refer back to his notes. She doubted that he could put facts together to make appropriate
decisions and file reports in a timely manner. She also had concerns about his capacity to
5
interpret complex situations necessary to counsel parolees accurately. She concluded that
“although Mr. Leech’s deficits are mild, I see them as having a significant effect on his
ability to perform job related duties.” Tr. 489.
In January 1995, Leech indicated that his progress had “plateaued,” but that,
despite residual deficits, he was “satisfied.” Tr. 348. He felt “much better” in October
1995 and his mood was stable, his sleep and appetite were good, and he remained busy.
He benefitted from Ritalin. In December 1995, he reported reading often to maintain his
skills. He was sometimes irritable, but better at “catching himself” before acting
inappropriately.
5. Cardiac Progress
In March 1996, Leech tested negative for ischemia. His pressure response to
exercise was normal and provoked no chest discomfort. His exercise capacity was
“excellent.” Tr. 904.
6. Dr. Kant’s State Agency Evaluation
From March 13, 1997, to December 31, 1998, Leech saw Dr. Kant every two to
three months. On July 22, 1997, Dr. Kant completed a form for the State Agency rating
Leech’s functions. He described most of Leech’s activities of daily living and social
functioning as “good.” However, he rated Leech as “fair” in the following categories:
concentration and task persistence; ability to perform within a schedule; ability to attend
6
to a task from the beginning to the end; ability to sustain a routine; ability to perform at a
consistent pace; ability to adapt to changes; and ability to react to deadlines or schedules.
He found that Leech was unable to perform his former work both at the onset of his
disability and on his date last insured. He also found that Leech could not (1) counsel
parolees or others in a social service setting; (2) compile, analyze, or report information in
an accurate and timely fashion; (3) react appropriately to provocative behavior; or (4)
make quick decisions when recalling pertinent facts was required. Dr. Kant gave Leech
“severe” or worse ratings in a number of areas affecting his “occupational adjustments,
performance adjustments and personal/social adjustments.” Tr. 992-94. In June 2000,
Dr. Kant explained that a rating of “fair” meant Leech could function only in “certain
situations” with “serious limitations” and could not “sustain it.” Tr. 990.
7. Consultative Examination
In March 1997, Consultative Examiner, Dr. Macy Levine, evaluated Leech. Leech
reported to Dr. Levine that he had irregular chest tightness, but did not report palpitations.
He said that Nitroglycerin helped, and that he was able to play golf and tennis. With
regard to cognitive function, Leech reported short-term memory problems. He did not
mention the effect of Dr. Smith-Seemiller’s cognitive strategies.
Dr. Levine diagnosed coronary artery disease with chest pain, probable early
chronic obstructive pulmonary disease, post traumatic headaches with memory loss, and
7
depression. Dr. Levine concluded that Leech could do a wide range of sedentary and
light work, with the need to avoid stress, involving standing/walking less than two hours
in an eight-hour workday and that he had no limitation in lifting, carrying, pushing,
pulling, sitting, or doing postural and physical functions. Dr. Levine also found that “[i]n
addition he may have a significant depression that interferes with his ability to function in
various capacities.” Tr. 819.
8. 1999 Hospitalization
In June 1999, Leech was hospitalized for an acute cerebral infarction. He was
confused, disoriented, and garbling his speech and his brain CT scan was consistent with
a right hemispheric cerebrovascular accident. He later was discharged in stable condition,
with instructions to perform activities as tolerated. He began speech therapy, and made
measurable progress.
9. Dr. Ott
Beginning in June 1998, Leech saw Dr. Tim Ott as his general practitioner,
primarily for his heart condition. In May 2000, Dr. Ott completed physical and mental
evaluations for Leech limiting his physical capacity assessment to the relevant period.
Dr. Ott determined that Leech could work where he primarily sat and occasionally lifted
or carried up to 19 pounds.
Dr. Ott did not limit his mental capacity assessment analysis to the period before
8
December 31, 1998, and the capacity form did not instruct him to do so. He found that
Leech currently had marked difficulty asking simple questions, requesting assistance,
being aware of normal hazards, traveling in unfamiliar places, and using public
transportation. He found moderate limitations in Leech’s understanding, memory,
sustained concentration and persistence, social interaction, and adaption abilities.
10. Vocational Evidence
VE Dr. William Reed testified that Leech’s work as a parole officer was semi-
skilled to skilled, was transferable with “very little occupational adjustment,” and was
“highly marketable.” Tr. 60. At the ALJ’s request, he considered a hypothetical person
with Leech’s skills who worked primarily sitting with less than two hours of standing and
walking in an eight-hour workday. Dr. Reed testified that there are a significant number
of sedentary jobs existing in the national economy that this individual could do, including
residence supervisor and caseworker. He testified that he could do these jobs despite a
“mild” deficit in making decisions, compiling information, preparing timely reports, and
reacting to a counseling situation. Tr. 66-67. Upon further questioning by Leech’s
representative, when Dr. Reed assumed that this individual needed to be in a position of
low stress with minimal dealing with the general public, no confrontation, and no
production pace, he testified that the residency supervisor/caseworker job, as well as all
other skilled work, would be precluded.
9
11. The ALJ’s Decision
The ALJ made contradictory findings in this case. On the one hand, he found that
“[t]he claimant would be limited to sedentary unskilled jobs.” Tr. 24-25 (emphasis
added). This finding would mean that Leech could not return to his former parole officer
job, which was “skilled and light in exertional requirements.” Tr. 24-25 (emphasis
added). On the other hand, the ALJ found that “[t]he claimant has transferable skills from
skilled work previously performed” (emphasis added) and that, as a result, he could do
skilled sedentary work as, for example, a residency supervisor or caseworker. Tr. 24-26.
A second contradiction in the ALJ’s decision is that he found that Leech “must
avoid stress,” as Consultative Examiner Dr. Levine instructed. Tr. 25. Nonetheless, the
ALJ determined that Leech could perform a residency supervisor or caseworker job,
which VE Reed testified would be precluded due to stress. Tr. 26.
Despite these inconsistencies, the ALJ concluded that Leech was not disabled
within the relevant period.3
II. DISCUSSION
A. Standard of Review
We exercise plenary review over the order of the district court, see Knepp v.
3
He did find that Leech became disabled on June 9, 1999, following his
cerebrovascular infarction. Tr. 22.
10
Apfel, 204 F.3d 78, 83 (3d Cir. 2000), but review the decision of the Commissioner to
determine whether it is supported by substantial evidence. See Richardson v. Perales, 402
U.S. 389, 390, 91 S.Ct. 1420, 1422 (1971). Substantial evidence has been defined as
"such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion." Id. at 401, 91 S.Ct. at 1427 (quoting Consolidated Edison Co. v. NLRB, 305
U.S. 197, 229, 59 S.Ct. 206, 217 (1938)). It is more than a mere scintilla of evidence but
may be less than a preponderance. Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988).
We exercise plenary review over questions of law. See Krysztoforski v. Chater, 55 F.3d
857, 858 (3d Cir. 1995).
B. Statutory and Regulatory Framework
In order to establish a disability under the Social Security Act, a claimant must
demonstrate that there is some "medically determinable basis for an impairment that
prevents him from engaging in any 'substantial gainful activity' for a statutory twelve-
month period." Stunkard v. Secretary of Health & Human Servs., 841 F.2d 57, 59 (3d
Cir. 1988) (quoting Kangas v. Bowen, 823 F.2d 775, 777 (3d Cir. 1987)); 42 U.S.C. §
423(d)(1)(A). A claimant is considered unable to engage in any substantial gainful
activity "only if his physical or mental impairment or impairments are of such severity
that he is not only unable to do his previous work but cannot, considering his age,
education, and work experience, engage in any other kind of substantial gainful work
11
which exists in the national economy . . . ." 42 U.S.C. § 423(d)(2)(A).
The SSA has promulgated regulations incorporating a five-step sequential
evaluation process for determining whether a claimant is under a disability. See 20
C.F.R. § 404.1520; Williams v. Sullivan, 970 F.2d 1178, 1180 (3d Cir. 1992). The first
two steps involve threshold determinations. In step one, the Commissioner must
determine whether the claimant currently is engaging in substantial gainful activity.
Burnett v. Comm’r of Soc. Sec. Admin., 220 F.3d 112, 118 (3d Cir. 2000). If a claimant
is found to be engaged in substantial gainful activity, the disability claim will be denied.
Id. In step two, the Commissioner must determine whether the claimant has a medically
severe impairment or combination of impairments. See id. If the claimant does not have
a severe impairment or combination of impairments, the disability claim is denied. See
id. In step three, the Commissioner compares the medical evidence of the claimant's
impairment to a list of impairments presumed severe enough to preclude any gainful
work. Id. If the impairment is equivalent to a listed impairment the disability claim is
granted without further analysis. If a claimant does not suffer from a listed impairment or
its equivalent, the analysis proceeds to steps four and five. Id. Step four requires the
Commissioner to consider whether the claimant retains the residual functional capacity to
perform his past relevant work. Id. The claimant bears the burden of demonstrating an
inability to return to his past relevant work. Id. If the claimant does not meet the burden
12
the claim is denied.
If the claimant is unable to resume his former occupation, the evaluation moves to
the final step. Id. At this stage, the burden of production shifts to the Commissioner,
who must demonstrate the claimant is capable of performing other available work in
order to deny a claim of disability. Id. The Commissioner must show there are other jobs
existing in significant numbers in the national economy which the claimant can perform,
consistent with his medical impairments, age, education, past work experience, and
residual functional capacity. Id. At that point an analysis is made of the cumulative
effect of all the claimant's impairments in a determination of whether he is capable of
performing work and is not disabled. Id. at 118-19.
C. The ALJ’s Decision is Inadequate
The district court stated that it was “troubled by the inconsistencies in the ALJ’s
opinion,” but that “reading the entirety of the opinion, and the record as a whole,” it was
convinced that the ALJ’s conclusion should be affirmed. Tr. 13. It dismissed the ALJ’s
errors as mere deficiencies in opinion writing and found that there was substantial
evidence to support the ALJ’s conclusion. Tr. 13.
We, however, find that the major defects in the administrative opinion are
significant and compel that further proceedings be held before the ALJ. As described
above, the ALJ found that Leech could only do unskilled work, but later concluded that
13
he could do skilled work as a residency supervisor or caseworker. 4 He also found that
Leech must avoid stress but seemed not to consider Dr. Reed’s testimony that a person
who needed to avoid stress could not do work as a residency supervisor or caseworker.
For these reasons, we must remand the case for clarification.
This result is further compelled by the fact that there is substantial evidence in the
record that Leech’s cognitive difficulties well may have rendered him disabled. His
treating physician, Dr. Kant, concluded that throughout the relevant period, Leech was
unable to perform his former work. Specifically, Dr. Kant determined that he could not
(1) counsel parolees or others in a social service setting; (2) compile, analyze, or report
information in an accurate and timely fashion; (3) react appropriately to provocative
behavior; or (4) make quick decisions when recalling pertinent facts was required. Tr.
990. Moreover, he rated as “fair” Leech’s ability to concentrate; perform tasks; perform
within a schedule; perform at a consistent pace; attend from start to finish; sustain a
routine; and reach deadlines or schedules. Tr. 875. Dr. Kant explained that his
description of “fair” meant Leech could do these things only in “certain situations” with
“serious limitations” and could not “sustain it.” Tr. 990.
Likewise, Leech’s treating physician, Dr. Smith-Seemiller concluded that
4
As the district court noted, if Leech were limited to unskilled sedentary work, then
Medical-Vocational Rule 201.06 would direct a finding of disability. See 20 C.F.R. Part
404, Subpart P, Appendix II., Table 1.
14
“although Mr. Leech’s deficits are mild, I see them as having a significant effect on his
ability to perform job related duties.” Tr. 489. She opined that Leech would have
difficulty in social situations, in evaluating a client’s situation, and in making appropriate
decisions. She also found that he tended to be forgetful and needed to refer back to his
notes. She doubted he could put facts together to make appropriate decisions and file
reports in a timely manner. She also had concerns about his capacity to interpret complex
situations necessary to counsel parolees accurately. 5
It is also significant that in addition to concluding that Leech needed to avoid
stress, Dr. Levine also stated that Leech “may have a significant depression that interferes
with his ability to function in various capacities.” Tr. 819.
In light of this substantial evidence in Leech’s favor, we will not accept the ALJ’s
conclusion that Leech was not disabled during the relevant period, where his decision
contains significant contradictions and is therefore unreliable.
III. CONCLUSION
A district court, after reviewing the decision of the Commissioner under 42 U.S.C.
§ 405(g) may affirm, modify, or reverse the Commissioner's decision with or without a
remand to the Commissioner for a rehearing. Podedworny v. Harris, 745 F.2d 210, 221
5
Dr. Ott made similar findings, but as the ALJ noted, his cognitive assessments were
not limited to the relevant period.
15
(3d Cir. 1984). A court of appeals also retains this discretion and, in reversing or
modifying the Commissioner's decision, may choose to remand the case to the
Commissioner for a further hearing or simply direct the district court to award benefits.
Id. The decision to direct the district court to award benefits should be made only when
the administrative record of the case has been developed fully and when substantial
evidence on the record as a whole indicates that the claimant is disabled and entitled to
benefits. Id. at 221-22. Inasmuch as the ALJ in this case failed to make consistent
findings and conclusions, but we are not prepared to hold that Leech necessarily is
entitled to benefits, we will reverse the district court’s order and remand the case to the
district court for it to remand it to the Commissioner for further proceedings.
16