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


5-21-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2680




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                                                                  NOT PRECEDENTIAL


                          IN THE UNITED STATES COURT
                                   OF APPEALS
                              FOR THE THIRD CIRCUIT


                                      NO. 07-2680


                                    LYDIA RIVERA,
                                           Appellant

                                            v.

                            MICHAEL J. ASTRUE,
                      COMMISSIONER OF SOCIAL SECURITY




                          On Appeal From the United States
                                      District Court
                        For the Middle District of Pennsylvania
                         (D.C. Civil Action No. 06-cv-01742)
                       District Judge: Hon. William W. Caldwell


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                     May 8, 2008

                BEFORE: BARRY and STAPLETON, Circuit Judges,
                           and RESTANI,* Judge

                                 (Filed: May 21, 2008 )




*Hon. Jane A. Restani, Chief Judge, United States Court of International Trade, sitting by
designation.
                                 OPINION OF THE COURT




STAPLETON, Circuit Judge:


          Appellant Lydia Rivera appeals the District Court’s decision affirming the

Commissioner’s denial of her request for benefits. For the reasons stated below, we will

affirm.

                                               I.

          Because we write only for the parties who are familiar with the factual context and

procedural history of the case, we set forth only those facts necessary to our analysis.

          On November 12, 2002, appellant Lydia Rivera filed for Disability Insurance

Benefits and Supplemental Security Income payments, claiming that her numerous

ailments left her unable to work. After a hearing, the ALJ found that Rivera suffered

from the following severe impairments: osteoarthritis, cervical disc disease,

chrondromalacia left knee, sleep apnea, carpal tunnel syndrome, fibromyalgia, depression,

and anxiety. He also found that she suffered from a seizure disorder, though he did not

consider it severe because the seizures occurred very infrequently and did not result in

any continuing limitations or treatment.

          Nevertheless, the ALJ found “not entirely credible” Rivera’s “statements



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concerning the intensity, duration, and limiting effects” of her ailments, in part because of

a medical report inconsistent with Rivera’s claims that she was unable to lift and carry

objects – claims that were further contradicted by Rivera’s own testimony that she often

went grocery shopping on her own. (App. 27.) As further justification for his credibility

determination, the ALJ pointed to an adverse inference he had drawn based on a pair of

requests that Rivera had made to her treating physician, first demanding a new assessment

of her condition – a request she explained was coming from her lawyer who had “sent her

back with a new form because they were seeking permanent disability” – and then, after

the doctor refused to cooperate, Rivera’s demand that all his prior assessments of her

condition be destroyed. (App. 28.) Finally, the ALJ suggested that Rivera’s often

inconsistent testimony was an additional reason to doubt the severity of her ailments. As

a result, the ALJ concluded that her testimony on this topic was “not entirely credible.”

(App. 27.)

       This adverse credibility finding left the ALJ unwilling to credit Rivera’s claims

that she was unable to lift and carry anything at all. Instead, he found, based in part on

the report of an examining physician, that Rivera “has the residual functional capacity to

lift 10 pounds frequently and 20 pounds occasionally; stand and/or walk for 6 hours [and]

sit for 6 hours.” (App. 26.) The ALJ then relied on the testimony of the vocational expert

to find that “there are jobs that exist in significant numbers in the national economy that

the claimant can perform” in spite of these limitations. (App. 29.) As a consequence, the



                                              3
ALJ concluded that Rivera “has not been under a ‘disability’ . . . from November 6, 2002

through the date of this decision.” (App. 30.)

       Rivera’s request for review was denied by the SSA’s Appeals Council. She then

sought review in the District Court, which referred the case to a magistrate judge. After

reviewing the record, the magistrate judge concluded that the ALJ’s determination was

supported by substantial evidence, and the District Court adopted his report over Rivera’s

objection. This appeal followed.1

                                             II.

       Rivera first argues that the ALJ should not have drawn an adverse inference based

on her request for a new report from her treating physician, and her subsequent demand

that the physician destroy all his previous reports on her condition. This argument is

contrary to the well-settled proposition that a trier of fact may draw an adverse inference

whenever a litigant intentionally destroys relevant evidence, which these reports

undoubtedly were. Hodge v. Wal-Mart Stores, Inc., 360 F.3d 446, 450 (4th. Cir. 2004);

accord Sparkman v. Comm’r, 509 F.3d 1149, 1156 (9th Cir. 2007); Underwriters Labs.

Inc. v. NLRB, 147 F.3d 1048, 1054 (9th Cir. 1998); Simon v. Comm’r, 830 F.2d 499, 506

(3d Cir. 1987); Wichita Terminal Elevator Co. v. Comm’r, 6 T.C. 1158, 1165 (1946); 9



   1
     28 U.S.C. § 1291 provides jurisdiction, and in evaluating these claims, this Court
exercises plenary review over any and all legal conclusions and reviews any and all
factual conclusions for substantial evidence. E.g., Allen v. Barnhart, 417 F.3d 396, 398
(3d Cir. 2005); Newell v. Comm’r of Soc. Sec., 347 F.3d 541, 545 (3d Cir. 2003); Seavey
v. Barnhart, 276 F.3d 1 (1st Cir. 2001).

                                             4
W IGMORE, E VIDENCE § 2524 (3d ed. 1940). Accordingly, because Rivera saw to it that

relevant evidence in the form of the prior reports of her treating physician was destroyed,

we conclude that it was entirely proper for the ALJ to draw such an inference.

       Next, Rivera argues that the ALJ used the wrong standard to assess the severity of

disability occasioned by her limited upper body mobility because he purportedly required

her to show that her activities of daily living were “completely obliterated.” A review of

the record reveals that ALJ never used “complete obliteration” as the standard, but rather

used the phrase as a shorthand summary of Rivera’s own description of the impact these

ailments had on her daily activities. (Rec. 18.) The standard the ALJ did apply was

whether “the claimant is able to do any . . . work considering her residual functional

capacity, age, education, and work experience.” (App. 25.) This is a correct statement of

the law. 20 C.F.R. § 404.1520(a)(4).

       Rivera further insists that the ALJ erred in assessing the severity of her seizure

disorder at step two of his analysis. While it is true, as Rivera stresses, that the applicable

standard of severity at this stage does not impose a substantial burden, the issue posed is

not whether the disability causes any impairment at all. As the ALJ recognized, the

severity inquiry at step two asks whether an impairment significantly limits a claimant’s

physical or mental ability to do “basic work activities,” i.e., physical “abilities and

aptitudes necessary to do most jobs, including, for example, walking, standing, sitting,

lifting, pushing, pulling, reaching, carrying or handling,” or mental activities such as



                                               5
“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). This is

precisely the standard that the ALJ applied, and given the infrequency of Rivera’s

seizures and the absence of any lasting effects, there is substantial evidence to support his

ultimate conclusions.

       Finally, we have no doubt that there was substantial evidence supporting the ALJ’s

ultimate determination that Rivera was not entitled to benefits. Contrary to her assertions,

the ALJ did not discount the hypothetical severity of any of Rivera’s conditions. Instead,

he went so far as to credit her diagnoses and acknowledge that “the claimant’s medically

determinable impairments could reasonably be expected to produce the alleged

symptoms.” (App. 27.) That said, for the reasons mentioned above – namely the medical

report indicating that she had substantial residual capacity, her ability to carry items

around the grocery store, her attempt to obtain a more favorable report from her treating

physician, and her inconsistent testimony – the ALJ did not believe that Rivera was

suffering from all these symptoms to the degree she claimed to be. In other words, while

the ALJ had no problem believing that someone with fibromyalgia (or any other disorder

Rivera suffers from) could feel as Rivera testified that she did, he did not think that

Rivera herself actually felt that way, which is a conclusion that we believe is justified by

the record. Further, his subsequent determinations that Rivera could lift, carry, and look



                                              6
about, and his conclusion that there were jobs Rivera could perform were also supported

by substantial evidence, namely the medical report and the testimony of the vocation

expert appearing at the hearing. As a result, the ALJ’s ultimate determination to deny

Rivera benefits is supported by substantial evidence.

                                            III.

       For the reasons set forth above, we will affirm the judgment of the District Court.




                                             7
