                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-30-2008

Scott v. Comm Social Security
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3228




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NOT-PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 07-3228


                                 BARBARA SCOTT,
                                    Appellant

                                          v.

                           *MICHAEL J. ASTRUE,
                     COMMISSIONER OF SOCIAL SECURITY

                              *Pursuant to F.R.A.P. 43(c)
                                ___________________

                On Appeal from the United States District Court for the
                            Eastern District of Pennsylvania
                           District Court No. 06-CV-02541
                   District Judge: The Honorable Juan R. Sanchez
                              _____________________
                 Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                   October 21, 2008

      Before: SMITH, COWEN, Circuit Judges and THOMPSON, District Judge *

                              (Filed: October 30, 2008)
                             _______________________

                                    OPINION
                             _______________________

                              Thompson, District Judge.

      *
         The Honorable Anne E. Thompson, Senior United States District Judge for the
District Court of New Jersey, sitting by designation.

                                           1
       Barbara Scott appeals the District Court’s order affirming the Commissioner of

Social Security’s denial of disability benefits for any time preceding April 14, 2004.

Specifically, she contests the findings of the Administrative Law Judge (“ALJ”) that she

was able to do sedentary work 1 prior to April 14, 2004. We have appellate jurisdiction

pursuant to 28 U.S.C. § 1291 and, for the reasons stated below, we affirm.

       Scott, 64, was employed as a real estate clerk with the Board of Revision and

Taxes for the City of Philadelphia. On January 7, 2003, Scott filed for disability

payments claiming an onset date of November 1, 2002. She later amended her disability

date to June 24, 2002. She claimed a variety of ailments associated with diabetes

including, inter alia, high blood pressure, sleep apnea, and dsypnea (shortness of breath).

In March 2003, she applied for and received disability payments through the Pennsylvania

School Employee’s Retirement System (PSERS). Prior to 1989, Scott worked as a school

bus attendant. The PSERS award was for a one-year renewable period. The record does

not reflect Scott renewed this award at the end of the one-year term.

       The Pennsylvania Bureau of Disability denied her claim. The matter was then

heard by ALJ Stephen Bosch on January 20, 2004. At this hearing, Scott testified that her

position allowed her to sit and stand at will and usually she spent only one to two hours

on her feet. She further testified that her position required her to travel to view properties

and that usually she stayed in her car unless her car was unable to travel a narrow road.

       1
         Jobs requiring sitting and standing can be called sedentary work. This type of work can
also include the occasional task of lifting up to ten pounds. 20 C.F.R. § 404.1567(a).

                                                2
       The ALJ issued his opinion on February 17, 2004 finding no disability through the

date of the opinion. Scott then requested a review from the Appeals Council who, on

March 19, 2004, remanded back to the ALJ to (1) obtain updated medical treatment

records; (2) further consider Scott’s residual functional capacity; and (3) further evaluate

Ms. Scott’s ability to resume her past work. Subsequent to this opinion, Scott’s condition

deteriorated. She was hospitalized on April 14, 2004 for treatment of chronic renal

failure, and, was hospitalized once more in July 2004.

       Pursuant to the Appeals Council remand, the ALJ reheard Scott’s claim. At this

rehearing, Scott chose not to testify. In February 2005, the ALJ concluded that, up until

April 14, 2004, Scott was not disabled from doing her past relevant work but, as of April

14, 2004, Scott was disabled. Scott appealed the ALJ finding as to her ability to perform

her past relevant work prior to April 14, 2004 to the District Court for the Eastern District

of Pennsylvania. The District Court found substantial evidence supporting the challenged

ruling of the ALJ. Because substantial evidence supports the decision of the District

Court, we will affirm its decision.

       This Court has jurisdiction under both 28 U.S.C. § 1291 and 42 U.S.C. § 405(g).

“Like the District Court, we must uphold a final agency determination unless we find that

it is not supported by substantial evidence in the record.” Rutherford v. Barnhart, 399

F.3d 546, 552 (3d Cir. 2005). This Court will defer to the findings of the court below if

substantial evidence supports them. Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1190-



                                              3
1191 (3d Cir. 1986).

       Social Security disability determinations are governed by a five-step, sequential

evaluation. 20 C.F.R. § 404.1520. Step 2 of this process calls for an assessment of the

severity of the claimant’s medical impairments. Id. The ALJ evaluated the totality of the

record, including Scott’s testimony and that of a medical expert, Dr. Daniel Lewis. Dr.

Lewis testified Scott suffered from hypertension, disorders of the back, degenerative joint

disease of the knee, and obesity. The ALJ agreed.

       In her January 2004 hearing, Scott testified she had workplace freedom to sit and

stand as she pleased; she often sat with a blanket and heater–in both the summer and

winter. She further testified that she lives with her daughter and her six

grandchildren–whom she helped rear. She also indicated that she helps with housework

and attends church weekly.

       However, the ALJ had reservations regarding the credibility of Scott’s assertions

and the extent to which her ailments impacted on her ability to do her past relevant work.

The ALJ noted the deficiency of objective evidence supporting Scott’s testimony as to the

severity of her condition. Furthermore, the ALJ indicated that her daily living habits

undermined her claim that she was unable to do her past relevant work. Also

undermining Scott’s claim, the ALJ noted the absence of any measures such as

emergency room visits documenting shortness of breath, or asthma attacks, nor could the

ALJ find evidence that her diabetes was not under control. The ALJ noted the absence of



                                              4
any prescriptions for pain medication, and concluded that her pain could not have been as

severe as she claimed. The ALJ also found Dr. Lewis’ opinion was entitled to great

weight because it was consistent with the record. Dr. Lewis concluded that Scott was

able to perform sedentary work.

       This Court is required to grant the ALJ deference and affirm if substantial

evidence supports the ALJ’s finding. Monsour, 806 F.2d at 1185, 1190-1191. This

standard places considerable weight on the findings of the ALJ and this Court overturns

only if it concludes that a reasonable mind would not support such a conclusion.

Richardson v. Perales, 402 U.S. 389, 401 (1971).

       Here, Scott has pointed to nothing in the record that would warrant a reversal of

the ALJ. The ALJ methodically supported his conclusion, relying not only on the

testimony of the medical expert but pointing also to the testimony of the claimant. The

ALJ documented his consideration of the evidence and carved out a finding that noted her

lifestyle prior to April 2004 and weighed it against her progressively worsening condition.

Therefore, with respect to Scott’s claims for disability prior to April 14, 2004, the

judgment of the District Court is AFFIRMED.




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