                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-28-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4280




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                                                              NOT PRECEDENTIAL

                     UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT
                                __________

                                    No. 06-4280


                               PATRICIA MEYLER,
                                              Appellant

                                         v.

                     COMMISSIONER OF SOCIAL SECURITY
                               __________

                   On Appeal from the United States District Court
                           for the District of New Jersey
                             (D.C. Civil No. 04-cv-05
                                        4669)
                     Chief District Judge: Garrett E. Brown, Jr.
                                     __________

                     Submitted Under Third Circuit LAR 34.1(a)
                                 on July 10, 2007

                  Before: RENDELL and AMBRO, Circuit Judges
                          and SHAPIRO,* District Judge.

                              (Filed August 28, 2007)

                                    __________

                            OPINION OF THE COURT
                                  __________


__________________

   * Honorable Norma L. Shapiro, Senior Judge of the United States District Court for
     the Eastern District of Pennsylvania, sitting by designation.
SHAPIRO, District Judge.

       Patricia Meyler seeks review of the denial by the Commissioner of Social Security

(“Commissioner”) of her application for Supplemental Security Income (“SSI”). Meyler

appeals the final order of the Commissioner on three grounds: (1) the Administrative Law

Judge (“ALJ”) failed to articulate an evidentiary basis for his finding that Meyler’s mental

impairments did not meet or equal a listed impairment; (2) the ALJ violated due process

by failing to subpoena Meyler’s treating physician; and (3) the ALJ erred in concluding

Meyler could perform jobs existing in the national economy by relying exclusively on

Social Security Rulings without providing her notice of his intent to do so. We will

reverse and remand this matter for further findings.

                                             I.

       Meyler filed her application for SSI payments on September 6, 2001, and claimed

a disability onset date of January 1, 1996. The application was denied initially and upon

reconsideration. Meyler requested de novo review by an administrative law judge. At a

hearing on February 27, 2003, Meyler agreed to an alleged disability onset date of

September 6, 2001, because an earlier date would reopen Meyler’s prior cessation case.

After the hearing, the ALJ denied Meyler’s application.1




  1
   Meyler avers that a subsequent SSI application was granted and she has been receiving
SSI payments since April 2004. Therefore, the current action only concerns SSI
payments from September 6, 2001, until April 2004.

                                             2
       Meyler was born on August 10, 1952. On the date of the ALJ’s decision, she was

50 years old and had a high school education. In her SSI application, Meyler claimed she

had arthritis in her legs, numbness in her hands and fingers, and severe asthma.

(Administrative Record at 92.) (“A.R. 92”) She reported she had mental problems when

in the presence of other people, and felt paranoid when people stared and talked about

her. (A.R. 87, 91-92.) Her daily activities included going to the store or staying in bed;

sometimes she anxiously paced in circles. (A.R. 84.) Meyler also reported that she: left

the house three times a week; went food shopping; visited a friend a few times a month;

washed the floor; and did laundry every one or two weeks. (A.R. 84-88.) She claimed

she required help with these activities because she got confused and did not feel

comfortable leaving the house. (A.R. 85-86.)

       The record before the ALJ contained reports from five examining physicians.

Dr. Cincotta found Meyler had a history of polysubstance abuse and complaints of

swollen hands and feet; but he opined her “examination was within normal limits” with

no wrist or ankle swelling. (A.R. 118.) Dr. Agarwal, Meyler’s treating physician,

recorded no abnormalities in Meyler’s extremities.

       Dr. Coblentz of Irving Counseling Center, where Meyler had attended counseling

sessions since October 22, 2001, found Meyler reported symptoms of depression with

panic attacks, and observed that Meyler had an abrasive whining voice consistent with

depression. He stated Meyler’s speech was logical, coherent, and relevant, with no breaks



                                             3
in reality contact, no unusual thought trends, and no indication of paranoia. Though

Meyler appeared depressed, she was not particularly anxious, her memory appeared

intact, and her sensorium was clear. Dr. Coblentz diagnosed Meyler with a condition

between dysthymic disorder and major depressive disorder, and panic disorder with

agoraphobia. Meyler was initially prescribed 20 milligrams of Prozac daily. After

subsequent meetings, Dr. Coblentz noted Meyler was jittery and increased her daily

dosage of Prozac to 40 milligrams; he also prescribed 50 milligrams of Trazadone to help

Meyler sleep. Dr. Coblentz later reported that Meyler was obsessing because her

daughter had been hospitalized for depression. Meyler’s voice was “particularly grating

and annoying with a real undercurrent of self pity”; she complained of anorexia and stated

she did not leave her room. (A.R. 149.) Dr. Coblentz discontinued Trazadone, continued

her Prozac, and started her on Seroquel, an anti-psychotic with a sedative side effect, and

Remeron, to improve her sleep and appetite.

       Dr. Zeiguer conducted an in-person examination of Meyler and diagnosed her with

panic disorder triggered by exposure to crowds, with occasional panic attacks at home,

a history of hepatitis C, and a reported history of multiple joint pains, bronchial asthma,

and fatigue. He noted Meyler was competent to handle SSI benefits, but could benefit

from psychiatric treatment. Dr. Block interviewed Meyler and observed that she trembled

and kept her eyes closed during the meeting. He found evidence of anxiety and

psychomotor agitation, but did not find evidence of depression or obsessive-compulsive



                                              4
ideation or behavior. Dr. Block diagnosed Meyler with major depression and anxiety

disorder, but found her competent to handle her own funds.

       The record does not contain a report from Dr. Sharma, one of Meyler’s treating

physicians. Meyler testified that she saw Dr. Sharma every two months for several years,

and that he prescribed her asthma medication and Celebrex. Meyler’s paralegal

representative at the ALJ hearing, Mary Lou Lynch (“Lynch”), testified she could not

obtain a report from Dr. Sharma because he was on vacation, and someone from

Dr. Sharma’s office told her there was not much in Meyler’s record. The ALJ sent two

letters to Dr. Sharma to obtain Meyler’s treatment records, but received no response.

       Meyler testified that she filed for SSI because she had trouble understanding and

following directions. She stated she experienced panic attacks five times a week and

approximately 75 percent of the time she spent outside her home. During these panic

attacks, Meyler felt lost and her entire left side went numb. Meyler reported panic near

other people, and did not like going out to do laundry without her friend Edward

Henneberry. She testified she felt short of breath after walking one block because of her

asthma, and she had bad arthritis in her legs, right hand and arm, and left foot. Meyler

stated that in the past she used heroin, but she had not used street drugs in years. She

reported she spent her days cleaning the kitchen and bathroom, cooking hamburgers and

hot dogs, and watching television five hours a day. Meyler did not leave the house every

day, but she took public transportation if she could not get a ride. She stated she did not



                                              5
have difficulty sitting, could lift and carry five pounds, and could perform simple jobs

such as packing or counting items. She took the medications Wellbutrin, Prozac,

Seroquel, Celebrex, and liquid Methadone for her ailments.

       Meyler’s friend of 22 years, Henneberry, testified that on one shopping trip with

Meyler she got lost for approximately eight minutes, and he found her crying in the

corridor. According to Henneberry, Meyler was nervous and could not stay still, and

became nervous around other people. He stated Meyler could cook, select and pay for

food, and count money. He acknowledged Meyler could hold a job involving packing

items into a box, but she would not be able to count the items she packed or keep track of

dates or times.

       The ALJ denied Meyler SSI because her subjective assertions of functional

impairments were inconsistent with objective medical reports. He also noted

inconsistencies among Meyler’s reports regarding her daily activities and drug use. He

found Meyler did not have any physical or exertional impairment, since Dr. Cincotta

reported no evidence of wrist or ankle swelling and Dr. Agarwal’s treatment records

reflected no abnormalities in Meyler’s extremities. He found Meyler’s depression and

anxiety were severe mental impairments, but did not meet or equal any of the impairments

listed in Appendix 1, Subpart P, Regulations Part 404 (“Listing of Impairments”),

because they resulted in only slight limitations in daily living, social functioning, and

concentration, and they were relatively well controlled with medication.



                                              6
       The ALJ decided Meyler had no past relevant work experience and considered

whether Meyler could perform any work. He found Meyler had the residual functional

capacity to perform simple duties at all exertional levels because: her disorders were

“relatively well controlled upon medication”; she had not been hospitalized for her mental

impairments; and her activities of daily living indicated that she was not incapacitated.

(A.R. 20-21.) His opinion explained that under Social Security Ruling (“SSR”) 85-15,

1985 WL 56857 (S.S.A.), “where there is no exertional impairment, unskilled jobs at all

levels of exertion constitute the potential occupational base for persons who can meet the

mental demands of unskilled work.” (A.R. 20.) The ALJ explained that such jobs

ordinarily involve working with objects rather than with data and people. He also found

that under SSR 83-10, 1983 WL 31251 (S.S.A.), the occupational base considered in each

medical-vocational rule consisted of the unskilled occupations identified at the exertional

level in question. Using medical-vocational rule 204.00 (20 C.F.R. Pt. 404, Subpt. P,

App. 2) as a framework, without relying upon a vocational expert, the ALJ found Meyler

had the residual functional capacity to perform jobs existing in the national economy.

       The Appeals Council found no grounds for review, and the District Court affirmed

the Commissioner’s decision. Meyler has appealed.2 The District Court had jurisdiction


  2
   We note with displeasure that, once again, Meyler’s counsel, Abraham S. Alter, Esq.,
has failed to meet the Court’s expectation that counsel “exercise appropriate professional
behavior in all briefs.” L.A.R. 28.1(c). Counsel has previously been admonished in
Orriols v. Commissioner of Social Security, 2007 WL 1211653 at *5 n.4 (3d Cir. Apr. 25,
2007), Hernandez v. Commissioner of Social Security, 198 Fed.Appx. 230, 236 (3d Cir.

                                             7
over this matter pursuant to 42 U.S.C. § 405(g). We have jurisdiction pursuant to

28 U.S.C. § 1291.

                                              II.

        We review the Commissioner’s factual findings to determine whether they are

supported by substantial evidence in the administrative record. See 42 U.S.C. § 405(g);

Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir. 2000). Substantial evidence is relevant

evidence that a reasoning mind might find adequate to support a conclusion. Cotter v.

Harris, 642 F.2d 700, 704 (3d Cir. 1981). We exercise plenary review over the legal

issues. Sykes, 228 F.3d at 262.

       In order to receive SSI payments, a claimant must be disabled. An ALJ considers

a claimant’s disability under a five-step evaluation. 20 C.F.R. § 404.1520 (2005). First,

the ALJ determines whether the claimant is currently engaged in “substantial gainful

activity”; if so, the claimant’s application for disability benefits is automatically denied.

Id. § 404.1520(a)(4)(i). If the claimant is not employed, the ALJ determines whether the

claimant has a “severe impairment” or “combination of impairments.”




2006), Neal v. Commissioner of Social Security, 57 Fed.Appx. 976, 978 n.2 (3d Cir.
2003), and, most recently, in Frazier v. Commissioner of Social Security, 2007 WL
1991574 at *1 n.1 (3d Cir. July 11, 2007). We ordered counsel’s original brief stricken
and a new brief filed without ad hominem attacks on the ALJ. The new brief is not much
improved over the original as it continues to make disrespectful, unwarranted allegations
against the ALJ. We are obliged to advise counsel that his lack of professionalism harms
the interest of his client and adversely affects his credibility. Counsel must cease this
unprofessional conduct or be subject to sanctions.

                                               8
Id. § 404.1520(a)(4)(ii). A claimant who does not have a “severe impairment” is not

disabled. Id. If the impairment is found “severe,” the ALJ determines whether the

impairment meets or is equal to those impairments in the Listing of Impairments.

Id. § 404.1520(a)(4)(iii). If so, the claimant is presumed disabled, and the evaluation

ends. Id.; 20 C.F.R. § 404.1520(d).

       If the impairment does not meet or equal a listed requirement, the ALJ determines

the claimant’s residual functional capacity (“RFC”) and past relevant work. Id.

§ 404.1520(a)(4)(iv). If the claimant is capable of performing her previous work, she is

not disabled. Id. If the claimant cannot perform her prior work, the evaluation continues

to the last step. This requires determination of whether the claimant is capable of

performing other work available in the national economy. Id. § 404.1520(a)(4)(v). The

ALJ must consider the claimant’s RFC, together with her age, education, and past work

experience. Id. § 404.1520(g). The claimant bears the burden on the first four steps; if

the sequential analysis reaches the fifth step, the burden of proof shifts to the

Commissioner. Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987).

                                             III.

       Meyler argues the ALJ failed to articulate an evidentiary basis for his finding that

Meyler’s mental impairments did not meet or equal a listed impairment. The ALJ

identified listings 12.04 (affective disorders), 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.04,

and 12.06 (anxiety-related disorders), 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 12.06, as



                                              9
relevant to Meyler’s impairments, but found these impairments were not severe enough to

meet those listings. An impairment meets listing 12.04 when the criteria in paragraphs A

and B are satisfied, or when the criteria in paragraph C are satisfied. Id. § 12.04. An

impairment meets listing 12.06 when the criteria in both A and B are satisfied, or when

the criteria in both B and C are satisfied. Id.

       Paragraph B criteria of listings 12.04 and 12.06 require at least two of the

following: (1) marked restriction of activities of daily living; (2) marked difficulties in

maintaining social functioning; (3) marked difficulties in maintaining concentration,

persistence or pace; or (4) repeated episodes of decompensation, each of extended

duration. Id. §§ 12.04(B), 12.06(B). Paragraph C of listing 12.04 requires demonstration

of one of the following: (1) repeated and extended episodes of decompensation; (2) a

residual disease process that has resulted in such marginal adjustment that even a minimal

increase in mental demands or change in the environment would be predicted to cause the

individual to decompensate; or (3) current history of one or more years’ inability to

function outside a highly supportive living arrangement, with an indication of continued

need for such an arrangement. Id. § 12.04(C)(1)-(3). Paragraph C of listing 12.06

requires that the disorder result in “complete inability to function independently outside

the area of one’s home.” Id. § 12.06(C).

       The ALJ found that, when performing simple tasks, Meyler’s conditions “result in

no more than slight limitations in activities of daily living, social functioning, and



                                              10
maintaining concentration, persistence and pace.” (A.R. 19.) He found no evidence of

mental decompensation. He referred to the reports of Dr. Zeiguer and Dr. Block, which

show “full orientation and alertness, adequate concentration and memory, and intact

judgment and insight.” Id. Meyler, who bears the burden of proof at this step, failed to

articulate why her impairments met or equalled the relevant listings. After a review of the

record, the Court finds substantial evidence supported the ALJ’s decision.

                                            IV.

       Meyler argues the ALJ violated due process by failing to subpoena her treating

physician, Dr. Sharma. Any hearing afforded a Social Security disability claimant must

be full and fair. Ventura v. Shalala, 55 F.3d 900, 902 (3d Cir. 1995). This standard is

violated if a claimant is deprived of the opportunity to present evidence to an ALJ in

support of her claim, or if the ALJ exhibits bias against the claimant. See id. at 902; Hess

v. Secretary of Health, Educ. and Welfare, 497 F.2d 837, 841 (3d Cir. 1974). Under 20

C.F.R. § 416.1450(d)(1), when it is reasonably necessary, an ALJ or member of the

Appeals Council may, on his or her own initiative or at the request of a party, issue a

subpoena for the appearance or testimony of a witness and for the production of records

material to an issue or hearing.

       At the ALJ hearing, Meyler’s representative, Lynch, explained that she was unable

to obtain a medical report from Dr. Sharma, but did not request a subpoena. On March 3,

2003, the ALJ sent a letter to Dr. Sharma requesting Meyler’s treatment records. After



                                             11
receiving no response, he sent a second letter to Dr. Sharma on March 21, 2003. When

the ALJ received no response by April 16, 2003, he closed the record without issuing a

subpoena for the treatment records. The ALJ’s actions were not inappropriate: he was not

required to issue a subpoena for records under 20 C.F.R. § 416.1450(d)(1), and Lynch did

not ask him to do so. The record before the ALJ already contained reports on Meyler’s

physical condition from Dr. Cincotta and Dr. Agarwal, another of Meyler’s treating

physicians. There is no indication that Meyler was deprived of the opportunity to present

evidence, or that the ALJ was biased. Contrary to the baseless allegations of Meyler’s

counsel, there was no improper treatment of paralegal Lynch, or other improper conduct

by the ALJ. Meyler’s due process claim is unpersuasive.

                                             V.

       Meyler also argues the ALJ erred at the last step of the sequential evaluation

because he relied on Social Security Rulings (“SSRs”) and medical-vocational guidelines,

without providing notice, to determine Meyler is able to perform work available in the

national economy.

       In the case of nonexertional impairments, if the Commissioner relies on an SSR

instead of consulting a vocational expert, “it must be crystal-clear that the SSR is

probative as to the way in which the nonexertional limitations impact the ability to work,

and thus, the occupational base.” Allen v. Barnhart, 417 F.3d 396, 407 (3d Cir. 2005). In

Allen, the ALJ did not focus on the claimant’s work-related limitations, such as response



                                             12
to supervision and stress, and failed to connect these particular limitations to any aspect

of SSR 85-15. Id. at 406-07. We held the Commissioner’s finding of no disability was

not supported by substantial evidence. Id. at 407.

       Here also, the ALJ does not explain how Meyler’s particular mental impairments

relate to the categories or examples in SSR 85-15, or to any aspect of SSR 83-10. Cf.

Allen, 417 F.3d at 405-06. The ALJ did not explain why, under SSR 85-15 or SSR 83-10,

Meyler’s nonexertional impairments did not prevent her from meeting the mental

demands of unskilled work. The ALJ partly addressed Meyler’s anxiety disorder by

stating that unskilled jobs usually involve working with objects rather than people, but he

did not expressly consider Meyler’s alleged anxiety when in public places or working

near other people. The ALJ’s decision is not supported by substantial evidence.

       Allen stated that if the Commissioner relies on an SSR as a substitute for

individualized determination on testimony of a vocational expert, notice should be given

so that the claimant could call her own expert. Id. at 407-08. “[A]s a matter of fairness,

alerting a claimant to the relevant rule in advance will always be appropriate.” Id. at 407.

Here, the ALJ relied upon SSR 85-15 and SSR 83-10 without calling a vocational expert,

and without providing advance notice to Meyler so she could call her own vocational

expert. Because the ALJ provided no notice to Meyler, we give close scrutiny to his

reliance on an SSR at step five. Cf. id. at 408.




                                             13
       The ALJ’s decision that Meyler is able to perform jobs prevalent in the national

economy is not supported by substantial evidence. We will vacate and remand for further

explanation by the ALJ how Meyler’s specific limitations affect her ability to perform

unskilled work in a job that constitutes substantial gainful employment.3

                                            VI.

       We will VACATE the District Court’s order and remand for the District Court to

refer the matter to the Commissioner for further findings consistent with this opinion.




  3
    We emphasize that we will remand for the reasons stated, and not because of the
frivolous allegations of ALJ bias or impropriety made by counsel for Meyler. There is no
reason to assign this matter to a different ALJ.

                                            14
