                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-19-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3775




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                                                                   NOT PRECEDENTIAL


                          IN THE UNITED STATES COURT
                                   OF APPEALS
                              FOR THE THIRD CIRCUIT


                                      NO. 03-3775


                                  ABRAHAM GARCIA
                                      Appellant

                                            v.

                      COMM ISSIONER OF SOCIAL SECURITY




                           On Appeal From the United States
                                      District Court
                             For the District of New Jersey
                          (D.C. Civil Action No. 00-cv-05782)
                         District Judge: Hon. William J. Martini


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    April 16, 2004

            BEFORE: RENDELL, STAPLETON and LAY,* Circuit Judges

                            (Opinion Filed : April 19, 2004)




* Hon. Donald P. Lay, United States Circuit Judge for the Eighth Circuit, sitting by
designation.
                               OPINION OF THE COURT




STAPLETON, Circuit Judge:


              Appellant Abraham Garcia appeals the decision of the United States District

Court for the District of New Jersey affirming the decision of the Commissioner of the

Social Security Administration (“Commissioner”) to deny Garcia’s claim for Disability

Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”) under Titles II

and XVI of the Social Security Act. The parties are familiar with the facts and procedural

history. Hence, we limit ourselves to a brief statement of the reason for our decision.

              For the reasons that follow, we will affirm the decision of the District Court

upholding the Commissioner’s denial of benefits.

                                             I.

              The District Court had jurisdiction to review the Commissioner’s final

determination under 42 U.S.C. § 405(g) and we have jurisdiction under 28 U.S.C. § 1291.

Our review of the Commissioner’s final decision to deny benefits is limited to a

determination of whether that decision is supported by substantial evidence. See, e.g.,

Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999). “Substantial evidence ‘does not

mean a large or considerable amount of evidence, but rather such relevant evidence as a



                                             2
reasonable mind might accept as adequate to support a conclusion.’” Id. (quoting Pierce

v. Underwood, 487 U.S. 552, 108 S.Ct. 2541, 2545, 101 L.Ed.2d 490 (1988)).

                                             II.

              Both types of benefits Garcia seeks are only available if, inter alia, Garcia

is “disabled.” In determining whether a claimant is disabled, the Commissioner must

follow the familiar five-step sequential analysis set forth in the regulations promulgated

by the Social Security Administration. See 20 C.F.R. §§ 404.1520, 416.920. Garcia

primarily objects to the ALJ’s determination of his residual functional capacity during

that process, and claims that the ALJ did not explicitly state why he “rejected” certain

medical test results, in violation of Cotter v. Harris, 642 F.2d 700 (3d Cir. 1981) (“Cotter

I”) (“[W]e need from the ALJ not only an expression of the evidence s/he considered

which supports the result, but also some indication of the evidence which was rejected.”).

              As we later indicated, Cotter I “simply requires that the ALJ indicate that

s/he has considered all the evidence, both for and against the claim, and provide some

explanation of why s/he has rejected probative evidence which would have suggested a

contrary disposition.” Cotter v. Harris, 650 F.2d 481, 482 (3d Cir. 1981) (“Cotter II”).

Garcia suggests that the ALJ provided no indication that he had considered results from

electromyography (“EMG”), nerve conduction velocity (“NCV”), and magnetic

resonance imaging (“MRI”) tests, which, Garcia argues, would have resulted in a

different residual functional capacity assessment if properly credited by the ALJ.



                                             3
                  The ALJ’s opinion does not explicitly reference these test results. The ALJ

indicated, however, that he considered the “series of 10 reports between October 25, 1996

and December 3, 1997” by Garcia’s treating physician, Roger Behar, M.D. Results from

the EMG/NCV tests are contained in Dr. Behar’s November 20, 1996 report. Those

results indicate that Garcia suffered from “bilateral C7 radiculopathies, worse on the right

than the left.”

                  Contrary to Garcia’s suggestion, however, that the ALJ implicitly “rejected”

these results, the ALJ ultimately concluded that Garcia suffers from “a severe shoulder

injury” that “restrict[s] his ability to do fine finger manipulation.” Given that the ALJ

clearly considered Dr. Behar’s reports (including the one containing the EMG/NCV test

results) and that, as the District Court noted, the ALJ concluded that Garcia’s shoulder

was severely impaired, we cannot agree that in not specifically referencing the

EMG/NCV test results the ALJ failed to “provide some explanation of why s/he has

rejected probative evidence which would have suggested a contrary disposition.” Cotter

II, 650 F.2d at 482 (emphasis added).

                  Garcia further suggests that the ALJ ignored a report by Dr. Schonfeld

discussing MRI results that showed a “minimal central atrophy,” “mild cortical atrophy,”

and “chronic deep white matter ischemic change,” thereby again violating Cotter. The

MRI report, however, does not discuss any discernible impairment in light of these test

results, and the record does not show that any physician opined that the MRI scan



                                                4
demonstrated any impairment. Furthermore, as the District Court noted, Dr. Behar’s

reports as treating physician do not indicate any change in his diagnosis in light of the

MRI results. Accordingly, we find no Cotter violation here because these M RI results

alone do not amount to probative evidence that would have suggested a contrary

disposition.

               Garcia also contends that the ALJ violated Sykes v. Apfel, 228 F.3d 259 (3d

Cir. 2000) because he utilized the Medical-Vocational Grids after finding that Garcia

suffers from both exertional and nonexertional impairments. As we noted in Sykes,

               [t]he grids establish, for exertional impairments only, that jobs
               exist in the national economy that people with those
               impairments can perform. When a claimant has an additional
               nonexertional impairment, the question whether that
               impairment diminishes his residual functional capacity is
               functionally the same as the question whether there are jobs in
               the national economy that he can perform given his
               combination of impairments. The grids do not purport to
               answer this question, and thus under [Heckler v. Campbell,
               461 U.S. 458, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983)] the
               practice of the ALJ determining without taking additional
               evidence the effect of the nonexertional impairment on
               residual functional capacity cannot stand.

Id. at 270 (emphasis added). Accordingly, we held that in order for the Commissioner “to

meet [her] burden of establishing that there are jobs in the national economy that a

claimant with exertional and nonexertional impairments can perform,” the Commissioner

is required to provide “the testimony of a vocational expert or other similar evidence,

such as a learned treatise. In the absence of evidence in addition to the guidelines . . ., the



                                               5
Commissioner cannot establish that there are jobs in the national economy that someone

with the claimant’s combination of impairments can perform.” Id. at 273 (emphasis

added).

              While the ALJ did rely in this case upon the grids in determining whether

Garcia is disabled, he did so finding “that the claimant can perform work within the full

range of medium work [even] with the non exertional limitations noted above,” and

suggested that Garcia was capable of working as a “drill press operator, packer [or] scrap

separator.” This determination was reached after the ALJ had noted earlier in his opinion

that he had consulted a vocational expert who “stated that a man similarly situated to the

claimant who was capable of performing medium work with the non exertional limitation

of an inability to do fine fingering manipulation would be able to perform jobs that exist

in significant numbers in the national economy” 1 and indicated that such an individual

could perform jobs such as “a drill press operator, a scrap separator and a packer.” Thus,

the ALJ’s conclusion that Garcia could perform some medium work even with his

nonexertional limitations was expressly based upon the testimony of a vocational expert.

              Accordingly, once the ALJ determined that Garcia could perform medium

range work given his exertional limitations, the ALJ here acted entirely in accordance

   1
     The ALJ’s actual question posed to the vocational expert included the additional
nonexertional limitation of a “slight lack of ability to concentrate,” a limitation that
ultimately was not expressly adopted by the ALJ’s findings. The fact that the vocational
expert considered this additional limitation, however, does not amount to any prejudice to
Garcia because it only served to further limit the available work Garcia could perform
based upon a limitation the ALJ did not ultimately adopt.

                                             6
with Sykes by seeking the expertise of a vocational expert to determine whether an

individual capable of medium range work but possessing Garcia’s nonexertional

limitations could still perform jobs available in significant number in the national

economy. We therefore find no Sykes violation.2

              Garcia additionally argues that the ALJ failed to properly credit his

testimony of pain. “[A claimant’s] subjective complaints must be substantiated by

medical evidence.” Williams v. Sullivan, 970 F.2d 1178, 1186 (3d Cir. 1992); see also 20

C.F.R. §§ 404.1529(a) and 416.929(a) (ALJ is to consider “the extent to which [a

claimant’s] symptoms [including pain] can reasonably be accepted as consistent with the

objective medical evidence and other evidence”). Garcia has the burden of proving that

medical evidence validates his subjective claims. Williams, 970 F.2d at 1186. “[T]here

must be objective medical evidence of some condition that could reasonably produce

pain,” but “there need not be objective evidence of the pain itself.” Green v. Schweiker,

749 F.2d 1066, 1071 (3d Cir. 1984).

              “Once an ALJ concludes that a medical impairment that could reasonably



   2
      Garcia also suggests that the ALJ erred in formulating his hypothetical question for
the vocational expert to the extent that question assumed that Garcia could perform
medium work (as constrained by his nonexertional limitations) because, Garcia argues,
the record does not support a finding that, in light of his exertional limitations, he could
perform medium work. See Chrupcala v. Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987)
(“A hypothetical question must reflect all of a claimant’s impairments that are supported
by the record; otherwise the question is deficient and the expert’s answer to it cannot be
considered substantial evidence.”). We disagree. The reports of Drs. Sanchez and
Sandler, as discussed infra, constitute substantial evidence in support of that finding.

                                              7
cause the alleged symptoms exists, he or she must evaluate the intensity and persistence

of the pain or symptom, and the extent to which it affects the individual’s ability to work.

This obviously requires the ALJ to determine the extent to which a claimant is accurately

stating the degree of pain or the extent to which he or she is disabled by it.” Hartranft v.

Apfel, 181 F.3d 358, 362 (3d Cir. 1999).

              The ALJ here noted that Garcia “testified that his back hurts so much that

he can’t sit for more than 10 minutes. He alleviates the pain by standing but he can’t

stand for more than a few minutes either.” The ALJ further acknowledged that Dr.

Behar’s reports contained complaints of pain. The ALJ concluded, however, that “[t]he

reports of Drs. Sanchez and particularly Sandler paint the picture of a man whose stated

complaints do not match the physical findings.” Accordingly, the ALJ determined that

there was insufficient objective medical evidence of Garcia’s pain, and that Garcia’s

claims of pain were not entirely credible.

              Garcia argues that the ALJ should have credited his testimony as to pain,

and should have recognized his medications and the side effects of those medications as

objective evidence of a medical condition that could reasonably produce pain. We have

held that “[t]estimony of subjective pain . . . is entitled to great weight, particularly when

it is supported by competent medical evidence.” Kent v. Schweiker, 710 F.2d 110, 115

(3d Cir. 1983) (alterations omitted). Nonetheless, an ALJ may reject a claim of disabling

pain where “he [has] consider[ed] the subjective pain and specif[ied] his reasons for



                                               8
rejecting these claims and [has] support[ed] his conclusion with medical evidence in the

record.” Matullo v. Bowen, 926 F.2d 240, 245 (3d Cir. 1990).

              The ALJ’s determinations with respect to objective medical evidence and

Garcia’s credibility are supported by substantial evidence. The July 1996 report by Dr.

Sanchez relied upon by the ALJ indicated that “[t]he patient has not been noted to have

any problems with walking, sitting, lifting, or handling objects or hearing, speaking or

traveling. There are no disorders of mental activities such as understanding, or memory

loss. There [are] no problem[s] with sustained concentration or persistence [that] have

been noted.” Dr. Sandler’s December 1996 report acknowledged Garcia’s complaints of

pain, but found that muscle strength was “essentially normal, or, at worst, 4/5 on the right

side,” and that Garcia had a “normal range of motion” and normal gait. The report further

suggested that “[e]xamination reveals a gentlemen who walks with a cane but obviously

can walk without the cane” and that when Dr. Sandler asked Garcia to do a knee bend,

“[e]ven with my holding his hands . . . he managed to fall over backward. From what I

could see, there was absolutely no reason for this.” Given these reports, we cannot say

that the ALJ erred in rejecting Garcia’s subjective complaint of pain where the ALJ

supported his conclusion with medical evidence suggesting no basis for that pain.3

   3
      We note that Garcia has filed multiple applications for disability benefits over the
past 15 years. The relevant time span for purposes of the application we are currently
reviewing is the two-year period from December 1995, when Garcia stopped working,
through December 1997, when his application for benefits was denied. While it is true
that Garcia received benefits from sometime in 1991 until early 1993, and it is also true
that he is currently receiving benefits for a period beginning on December 21, 1997,

                                             9
              Lastly, Garcia objects to the ALJ having made observations as to Garcia’s

demeanor during testimony. The ALJ in his opinion stated that Garcia

              followed the entire proceeding without [apparent] difficulty.
              [He also] sat for the entire hearing, which lasted over an hour,
              without once appearing to be in any discomfort whatsoever.
              [A]t one point he reached into his back pocket with his right
              hand, took out a cloth handkerchief, unfolded it, blew his nose
              and carefully refolded it and replaced it into his back pocket.
              All the while he was doing this with his right hand.

As Garcia suggests, we have held, on numerous occasions, that an “ALJ may not

substitute his personal reaction to [a] Claimant’s responses or physical appearance for the

opinion of the treating physicians.” Gilliland v. Heckler, 786 F.2d 178, 184 (3d Cir.

1986); see also, e.g., Morales v. Apfel, 225 F.3d 310, 318 (3d Cir. 2002) (“Although an

ALJ may consider his own observations of the claimant and this Court cannot

second-guess the ALJ’s credibility judgments, they alone do not carry the day and

override the medical opinion of a treating physician that is supported by the record. . . .

The ALJ cannot . . . disregard [a] medical opinion based solely on his own amorphous

impressions, gleaned from the record and from his evaluation of the claimant’s

credibility.”) (internal alterations and quotations omitted); Frankenfield v. Bowen, 861

F.2d 405, 408 (3d Cir. 1988).



medical reports from those periods of time are not helpful in determining the severity of
his condition during the relevant time span. Limiting our review to the reports describing
his impairments between late 1995 and late 1997, as the ALJ did, we cannot conclude that
the ALJ overlooked any objective medical evidence thAt would corroborate or explain
Garcia’s subjective complaints.

                                             10
              The ALJ here, however, did not disregard one medical opinion based solely

on his own impressions. Instead, the ALJ relied on the reports of Drs. Sanchez and

Sandler in support of his conclusions. See Jones v. Sullivan, 954 F.2d 125, 128-29 (3d

Cir. 1991) (where claimant alleged that ALJ substituted his own lay observations of

claimant’s condition for the findings of the treating physician, and treating physician’s

opinions were contradicted by findings of two state agency physicians, ALJ did not err in

determining that treating physician’s opinions were not controlling). Having reviewed

the reports of Drs. Sanchez and Sandler, we cannot say that the ALJ’s conclusions were

not supported by substantial evidence in light of those reports.

                                            III.

              For the reasons stated, the judgment of the District Court will be affirmed.




                                             11
