                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-15-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4275




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                                         NOT PRECEDENTIAL


UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT




                         NO. 05-4275




                 KATHLEEN HERNANDEZ,
                                 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-01926)
           District Judge: Hon. Stanley R. Chesler


          Submitted Under Third Circuit LAR 34.1(a)
                     September 14, 2006

     Before: SLOVITER, WEIS, and GARTH, Circuit Judges

                  (Filed September 15, 2006)




                          OPINION
SLOVITER, Circuit Judge.

                                       Introduction

       Kathleen Hernandez appeals from the decision of the District Court affirming the

final decision of the Commissioner of Social Security that Hernandez was not entitled to

disability insurance benefits under the Social Security Act. Because the District Court

thoroughly reviewed the record, we will not repeat its analysis in its entirety, choosing

instead to focus only on the highlights.

                                             I.

       Hernandez filed an application for disability insurance benefits on October 19,

1994, alleging disability since September 16, 1993 when she sustained injuries to her

head, neck, left shoulder and arm in a motor vehicle accident. The application was denied

initially and on reconsideration. Following a hearing, the Administrative Law Judge

(“ALJ”) found that Hernandez was not disabled. There followed a series of procedural

steps, including an appeal, remand, a second hearing before an ALJ, who also found that

Hernandez was not disabled, additional procedures and finally yet another hearing before

a new ALJ, who evaluated the evidence pursuant to the five-step sequence set forth in 20

C.F.R. § 404.1520, and who concluded Hernandez was not disabled. The Appeals

Council denied Hernandez’s request for review, making the ALJ’s May 30, 2003 decision

the final decision of the Commissioner.

       Hernandez filed an action in the United States District Court for the District of



                                             2
New Jersey challenging the Commissioner’s final decision. The District Court affirmed

and Hernandez appeals.

                                             II.

         This Court has jurisdiction pursuant to 28 U.S.C. § 1291. We exercise plenary

review of legal issues in reviewing an appeal from the district court affirming the

Commissioner’s denial of Social Security benefits, but review factual findings to

determine whether the administrative record provides substantial evidence to support the

Commissioner’s findings. 42 U.S.C. § 405(g); Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir.

2000).

         The Social Security Administration has promulgated a five-step sequential

evaluation process to determine whether an individual is disabled. See 20 C.F.R. §

404.1520; Plummer v Apfel, 186 F.3d 422, 428 (3d Cir. 1999). The parties agree that

Hernandez satisfies step one because Hernandez did not engage in substantial gainful

activity for the period at issue, September 16, 1993 through June 30, 1999 when

Hernandez’s disability insurance benefits expired. 20 C.F.R. § 404.1520(a). In step two,

the Commissioner determines whether the claimant is suffering from a severe

impairment. 20 C.F.R. § 404.1520(c). The Commissioner found that the herniated discs

of Hernandez’s cervical spine constituted a “severe” impairment within the meaning of

the Regulations, but that she did not establish a severe mental impairment, gastritis, or

spastic colon. In step three, the Commissioner evaluates whether the evidence establishes



                                             3
that the claimant suffers from a listed impairment. If so, the claimant is automatically

eligible for benefits. If the claimant does not suffer from a listed impairment or its

equivalent, however, the Commissioner proceeds to the next step. 20 C.F.R. §

404.1520(d). Although the Commissioner found that Hernandez’s cervical spine injuries

were severe, he found they were not severe enough to meet or medically equal any of the

impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (“Listings”).

       In step four, the Commissioner reviews whether the claimant retains the “residual

functional capacity” to perform his or her past relevant work. If so, the claimant is not

eligible for disability benefits. 20 C.F.R. § 404.1520(e). The Commissioner found and

the ALJ agreed that Hernandez retained the residual functional capacity to perform

sedentary work that did not require frequent lifting with the left, non-dominant arm. See

20 C.F.R. § 404.1567(a). Finally, in step five the Commissioner considers whether work

exists in significant numbers in the national economy that the claimant can perform given

his or her medical impairments, age, education, past work experience, and “residual

function capacity.” If so, the claimant is not eligible for benefits. 20 C.F.R. §

404.1520(f). In this final step, “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.” Plummer, 186 F.3d at 428. The ALJ agreed that Hernandez

could not perform her past relevant work as a food handler or assembly line worker, but

that, using the Medical-Vocational Guidelines Rule 201.27, Hernandez could perform the



                                              4
jobs of parts inspector, parts sorter, parts cleaner and coil inspector.

       On appeal, Hernandez argues that the ALJ and District Court erred in their

findings with respect to steps two, three, four and five of the sequential analysis. As part

of her argument, Hernandez alleges that the ALJ omitted evidence, distorted testimony,

and was motivated by “unmistakable bias.” Appellant’s Br. at 3. The Government

responds by arguing that each of the ALJ’s findings were supported by substantial

evidence and that Hernandez’s ad hominem attacks on the ALJ are unwarranted.

                                              III.

       Under the applicable regulations, an impairment or combination of impairments is

not severe if it does not significantly limit a claimant’s physical or mental ability to do

basic work activities. 20 C.F.R. § 404.1521(a). Basic mental work activities include

understanding, carrying out, and remembering simple instructions; use of judgment;

responding appropriately to supervision, co-workers and usual work situations; and

dealing with changes in a routine work setting. 20 C.F.R. § 404.1521(b). A claimant’s

symptoms, defined as her own description of the impairment, are not alone sufficient to

establish a mental impairment. 20 C.F.R. § 404.1528(a). Instead, psychiatric signs are

indicated, as provided in the version of the Regulations applicable in this proceeding, by

“medically demonstrable phenomena which indicate specific abnormalities of behavior,

affect, thought, orientation, and contact with reality.” 20 C.F.R. § 404.1528(b).

       In finding that Hernandez did not have a severe mental impairment, the ALJ



                                               5
discussed the regulatory provisions governing his decision as well as the evaluations of

Drs. Latimer, Fischer, and Makhija. The ALJ noted that while Dr. Latimer described

Hernandez as severely depressed at his initial evaluation in April 1994, the only

medications prescribed as of September 1994 were Zantac and Lomotil, which treat

gastrointestinal disorders. These findings are supported by the record. He also explained

that there was no evidence that Hernandez sought the care of a mental health professional

aside from her few visits to Dr. Latimer in 1994. Specifically, Dr. Latimer only saw

Hernandez on April 4, 11, 18, and 28, 1994.

       In addition, the ALJ mentioned that Drs. Latimer and Fischer described Hernandez

as “pleasant,” a term that he did not find was generally associated with individuals

suffering from major depression. He also noted that Drs. Latimer and Makhija

documented fully intact orientation and alertness, and normal memory, concentration,

attention span, judgment and insight. These findings are also supported by the record.

Furthermore, he mentioned that neither doctor found psychotic trends, delusions,

obsessive-compulsive behaviors, looseness of associations or flights of ideas. Likewise,

the record supports these findings. Because there was no objective chronicling of any

concentration/cognitive disturbance, the ALJ gave little weight to Dr. Makhija’s findings

of psychomotor retardation and withdrawn appearance, Dr. Latimer’s conclusion of

permanent and total disability, or state agency psychological consultants finding moderate

restrictions.



                                              6
       He concluded by finding that, while Hernandez had a depressive disorder and post-

traumatic stress disorder, they resulted in no more than slight limitations in daily living,

social functioning, concentration, persistence, and pace. Therefore, he found that the

evidence did not substantiate a severe mental impairment.

       Despite the fact that these findings are supported by the record, Hernandez argues

at length that the ALJ simply should not have discredited the conclusions of all these

reports. However, the observations contained within these reports do not explicitly

indicate how Hernandez would be unable to perform work activities because of any

mental impairment that may be present. Although Dr. Latimer’s report concluded that

Hernandez was disabled, the ALJ determined this conclusion to be unsupported, noting

that Hernandez only received treatment on four occasions, that she was only prescribed

gastrointestinal medications, that the body of the report did not support the conclusion,

and that Dr. Latimer had a history of consistently declaring claimants to be disabled

regardless of his objective findings. The ALJ also stated that, while Dr. Makhija’s report

found psychomotor retardation, nothing indicated that Hernandez’s mental impairment

prevented her from doing basic work activities.

       We will not disturb the District Court’s holding that approved the ALJ’s finding

that Hernandez failed to prove her mental impairment to be severe.

                                             IV.

       Hernandez next argues that her cervical disc impairment is the medical equivalent



                                              7
of Section 1.04 of the Listings and therefore entitled to presumptive disability.

Hernandez bears the burden of presenting medical findings showing that her impairment

meets or equals a listed impairment. Burnett, 220 F.3d at 120 n.2. “For a claimant to

show that his impairment matches a listing, it must meet all of the specified medical

criteria. An impairment that manifests only some of those criteria, no matter how

severely, does not qualify.” Sullivan v. Zebley, 493 U.S. 521, 530 (1990).

       Section 1.04 requires:

       Disorders of the spine (e.g., herniated nucleus pulposus, spinal
       arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet
       arthritis, vertebral fracture), resulting in compromise of a nerve root . . . or
       the spinal cord. With:

       A. Evidence of nerve root compression characterized by neuro-anatomic
       distribution of pain, limitation of motion of the spine, motor loss (atrophy
       with associated muscle weakness or muscle weakness) accompanied by
       sensory or reflex loss and, if there is involvement of the lower back,
       positive straight-leg raising test (sitting or supine); or

       B. Spinal arachnoiditis . . . or

       C. Lumbar spinal stenosis resulting in pseudoclaudication . . . .

20 C.F.R. Pt. 404, Subpt. P, App. 1.

       Hernandez argues that her condition satisfies the Listings if she merely establishes

“pain, spasm, limitation of motion, sensory and reflex loss,” Appellant’s Br. at 26, and

she appears only to be arguing that she fits within the description of “A,” nerve root

compression. She does not, however, direct the court to any report or other evidence

specifically indicating nerve root compression as characterized by motor or sensory loss,

                                              8
nor has any such evidence been found in a review of the record. It follows that the ALJ’s

finding that Hernandez did not meet the requirements of the Listings is supported by

substantial evidence.

       Hernandez further argues that the ALJ failed in his duty to fully explain this

finding. Hernandez cites Burnett v. Commissioner, 220 F.3d 113, 120 (3d Cir. 2000), for

his argument that “the ALJ must recite evidence which contradicts his finding and explain

the basis for its rejection as well as explain[] the evidentiary basis for each finding at each

level of the sequential evaluation.” Appellant’s Br. at 25. However, in Burnett, we only

held that a bare conclusory statement by the ALJ that an impairment did not match the

Listings was insufficient for us to conduct a meaningful review. Burnett, 220 F.3d at

119–20.

       Hernandez complains that at this step the ALJ merely stated that “there is no

documentation of any nerve root compression as characterized by motor or sensory loss,

spinal arachnoiditis, or lumbar spinal stenosis resulting in pseudoclaudication, as required

by medical listings 1.04A, B and C, pertaining to spinal disorders.” Tr. 303. However, if

the ALJ found no documentation of these signs, there is nothing more he could have

discussed. In fact, the ALJ thoroughly discussed the medical evidence relating to

Hernandez’s cervical spine injuries later in his opinion, and went to great length in

explaining the weight given to each medical report and his reason for rejecting some of

the evidence.



                                              9
       Therefore, his opinion as a whole indicates that the ALJ considered the appropriate

evidence and factors in determining that Hernandez’s impairment did not meet the

requirements for any listing. The ALJ satisfied the Burnett requirement of sufficient

explanation of the step three determination.

                                               V.

       Hernandez again asserts that the ALJ offered insufficient explanation for his

residual function capacity determination and argues that the ALJ was too optimistic in his

findings regarding her ability to move her neck. However, in his thorough explanation of

the medical evidence that he rejected the ALJ explained why he did not accept

Hernandez’s neck movement complaints, citing the cervical range of motion findings of

Dr. Qualter and physical therapist Abood-Bruno. Therefore the ALJ provided substantial

evidence and sufficient explanation for his findings regarding Hernandez’s neck.

                                               VI.

       Hernandez also argues that the ALJ’s finding that there are jobs in the economy

that she can perform is not supported by substantial evidence. Because the ALJ

determined that some of Hernandez’s impairments prevented her from doing the full

range of sedentary work, he consulted a vocational expert to determine if there were jobs

that she could perform based upon her age, education, work experience, and residual

function capacity. The vocational expert considered these factors and determined that

Hernandez could perform the jobs of parts inspector, parts sorter, video monitor, coil



                                               10
inspector, components inspector and parts cleaner. The expert also testified that such jobs

existed in sufficient numbers in the regional economy.

       The ALJ’s discussion of medical reports, reasons why many were rejected, and the

vocational expert’s testimony provide more than “a mere scintilla” of evidence supporting

the ALJ’s decision. Plummer, 186 F.3d at 427. There was substantial evidence for the

ALJ’s determination as to step five and his conclusion that Hernandez is not disabled.

                                              VII.

       We note our displeasure with the conclusory and unprofessional assertions that

pervade Hernandez’s brief. We have previously reprimanded this counsel for his

“pejorative and unfounded arguments. They ill serve his client and adversely affect his

credibility.” Neal v. Comm’r, 57 Fed. Appx. 976, 978 n.2 (3d Cir. 2003). That comment

is equally appropriate in the present case.

                                              VIII.

       For the reasons discussed above, we will affirm the District Court’s conclusion

that there was substantial evidence to support the ALJ’s decision.




                                                      11
