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


7-21-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3690




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                                                              NOT PRECEDENTIAL

                  IN THE UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                         03-3690


                              CYNTHIA A. MAIORANO,
                                             Appellant

                                             v.

                     JOANNE B. BARNHART, COMMISSIONER
                            OF SOCIAL SECURITY
                            _____________________

                    On appeal from the United States District Court
                               for the District of New Jersey
                   District Judge: The Honorable Jerome B. Simandle
                              District Court No. 01-cv-02535
                                ______________________

                                 Argued June 15, 2004

                Before: ALITO, SMITH AND BECKER, Circuit Judges

                                  (Filed: July 21, 2004)

Robert A. Petruzzelli (Argued)
Jacobs, Schwalbe & Petruzelli
Ten Melrose Avenue
Woodcrest Pavilion, Suite 340
Cherry Hill, NJ 08034
Counsel for Appellant

Peter G. O’Malley (Argued)
Office of the United States Attorney
970 Broad Street, Room 700
Newark, NJ 07102
Karen G. Fiszer
Social Security Administration
Office of General Counsel - Region II
26 Federal Plaza
New York, NY 10278
Counsel for Appellee
                               ______________________

                               OPINION OF THE COURT
                                _____________________

SMITH, Circuit Judge.

       Cynthia Maiorano appeals from the District Court’s order affirming the denial by

the Commissioner of Social Security of her claim for disability benefits under Title II of

the Social Security Act. The District Court had jurisdiction pursuant to 28 U.S.C. § 1331

and 42 U.S.C. § 405(g). We exercise appellate jurisdiction pursuant to 28 U.S.C. § 1291.

Our review is “identical to that of the District Court, namely to determine whether there is

substantial evidence to support the Commissioner’s decision.” Plummer v. Apfel, 186

F.3d 422, 427 (3d Cir. 1999); 42 U.S.C. § 405(g). In Richardson v. Perales, 402 U.S.

389, 401 (1971), the Supreme Court explained that substantial evidence is “‘more than a

mere scintilla. It means such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.’” Id. (quoting Consolidated Edison Co. v. N.L.R.B.,

305 U.S. 197, 229 (1938)). Because we conclude that the Commissioner’s decision was

not supported by substantial evidence, the District Court erred in affirming the denial of

benefits and we will reverse and remand for further proceedings.

       Maiorano filed for benefits in February 1998, alleging disability on the basis of

                                             2
Thoracic Outlet Syndrome and Reflex Sympathetic Dystrophy (“RSD”) stemming from

an injury sustained when a ceiling tile fell and hit the superior aspect of her right shoulder

in May 1996. Social Security Ruling 03-2p instructs that RSD is a term used to describe a

chronic pain syndrome that is manifested by “a constellation of symptoms and signs,” of

which the most characteristic sign is persistent, intense pain that appears “out of

proportion to the severity of the injury sustained by the individual.” Notably absent from

the diagnostic criteria for this malady is any laboratory test or diagnostic procedure.

Rather, diagnosis is made based on the presence of complaints of pain associated with

several other physical findings, including swelling of the affected extremity, changes in

skin color and/or temperature, abnormal hair or nail growth, and involuntary movements

of the affected region of the initial injury.

       Maiorano’s initial course of treatment provided some relief from her pain, but she

was again complaining of pain in April 1997. Dr. Rosenberg, an orthopedist, evaluated

plaintiff. He documented that her neuromotor examination was essentially normal, but

noted that her “pain and symptoms are way out of proportion to any of her physical

findings and concerns about sympathetic dystrophy are at play here.” A subsequent

evaluation at the end of June 1997 by another orthopedic surgeon, Dr. Smolenski,

revealed “no objective findings to substantiate” Maiorano’s subjective complaints of pain.

       Maiorano’s pain persisted and in September 1997 she consulted Dr. Korn, a pain

specialist who had initially evaluated her. He treated Maiorano on a weekly basis with



                                                3
trigger point injections, percutaneous electrical nerve stimulations, and medication. On

January 28, 1998, Dr. Korn documented complaints of “coldness” in Maiorano’s right

upper extremity, together with “bluish discolorations” of the right hand. Physical

examination revealed that Maiorano’s right upper extremity had a decreased temperature.

Dr. Korn’s progress note stated that, “[i]n light of persistent right upper extremity pain,

dysesthesias, and color change, a consideration of chronic regional pain syndrome type I

([RSD]) is made.”

       Maiorano continued to experience pain in her right arm accompanied by swelling,

discoloration, and coldness. She returned to Dr. Korn on a regular basis for treatment. In

October 1998, Dr. Korn referred Maiorano for a functional capacity evaluation. Although

physical evaluation revealed that Maiorano’s range of motion and strength were within

normal limits, her complaints of pain increased with the activity, and she ambulated with

her right arm held closely to her body. The assessment indicated that although Maiorano

“appeared motivated to participate in the examination,” she “offered a submaximal

performance during this testing period.” The examiner opined, however, that Maiorano’s

“pain reports appeared consistent throughout” and that her “reports and behaviors were

consistent with her diagnosis.”

       Subsequently, Dr. Korn completed a disability form, noting that Maiorano’s

diagnosis was RSD. The physical findings to support the diagnosis of RSD included

pain, numbness, discoloration and cold sensation throughout M aiorano’s right arm. Dr.



                                              4
Korn opined that Maiorano was severely limited in her ability to work and was unable to

perform any repetitive activity with her right arm.

       Dr. Korn referred Maiorano to Dr. Rosen. After evaluating Maiorano on

December 1, 1998, Dr. Rosen agreed with Dr. Korn that “there is a high likelihood that

she is symptomatic from a type I complex regional pain syndrome.” After a trial period

with a spinal cord stimulator showed favorable results, Dr. Rosen surgically implanted a

stimulator on March 31, 1999. Maiorano’s pre- and post-operative diagnoses were both

RSD of the right upper extremity.

       According to Dr. Rosen, Maiorano had a “superb result” from the surgery.

Approximately two months after the operation, Dr. Rosen opined that Maiorano had

“excellent stimulation. . . . At rest, she has minimal pain.” He documented, however, that

“[a]ny type of sustained activity increases her pain. Even doing household chores

increases her pain substantially. Sitting in one position for too long also increases her

pain. She does need to change positions to minimize her persistent pain syndrome.” That

same day, Dr. Rosen completed a Lumbar Spinal Residual Functional Capacity

Questionnaire, indicating that Maiorano’s diagnosis was RSD of the right upper extremity

and that the clinical findings supporting that diagnosis were “pain [and] temperature

changes” of that extremity. He opined that Maiorano was limited with regard to her

physical abilities, particularly the use of her right arm which restricted lifting to less than

ten pounds on an occasional basis and precluded the use of her right arm for repetitive



                                               5
activities during an eight hour workday.

       During the hearing before the Administrative Law Judge (“ALJ”), Maiorano

admitted that her pain was “not as bad now with the stimulator.” She explained that her

activity level remained limited because her right arm swelled with walking and she was

essentially unable to lift that arm.

       A vocational expert also testified at the ALJ hearing. In response to a hypothetical

posed by the ALJ, the vocational expert identified several light duty jobs that could be

performed by an individual with restrictions similar to some of Maiorano’s. The

hypothetical assumed that the individual was able to lift ten pounds frequently, and the

positions identified by the vocational expert required frequent reaching, handling and

fingering. The vocational expert conceded that an inability to use one’s dominant hand,

as Dr. Rosen had opined, was incompatible with the positions she had identified.

       Despite the fact that Dr. Rosen’s opinion limited M aiorano to less than the full

range of sedentary work, the ALJ concluded that she was capable of performing the light

level positions identified by the vocational expert as existing in the national economy.

The ALJ explained that he discounted the opinions of both Dr. Korn and Dr. Rosen

because they were not supported by medically acceptable clinical and laboratory

diagnostic evidence. In addition, the ALJ found their assessments to be “merely

conclusory statements based on [Maiorano’s] subjective complaints.” The Appeals

Council denied Maiorano’s request for review, thereby rendering the ALJ’s decision the



                                             6
final decision of the Commissioner.

       Maiorano appealed, but the District Court affirmed the Commissioner’s final

decision denying her claim for benefits. Maiorano’s appeal to this Court argues that the

ALJ improperly discounted the opinions of her treating physicians, Dr. Korn and Dr.

Rosen. As a result, Maiorano asserts, the ALJ erred in determining that she had the

residual functional capacity to perform certain light level work. We agree.

       In Ferguson v. Schweiker, 765 F.2d 31, 37 (3d Cir. 1985), we acknowledged that

subjective complaints may support a claim for disability benefits. We instructed that

when such complaints are supported by medical evidence, they should be given great

weight. Id. In Plummer, we declared that great weight should also be accorded to

“[t]reating physicians’ reports . . . especially ‘when their opinions reflect expert judgment

based on a continuing observation of the patient’s condition over a prolonged period of

time.’” 186 F.3d at 429 (quoting Rocco v. Heckler, 826 F.2d 1348, 1350 (3d Cir. 1987)).

We explained that a treating physician’s opinion may be rejected “only on the basis of

contradictory medical evidence,” although the opinion may be accorded “more or less

weight depending upon the extent to which supporting explanations are provided.”

Plummer, 186 F.3d at 429.

       After reviewing the record, we conclude that the ALJ failed to comply with the

standards set forth in Ferguson and Plummer because he discounted, without an adequate

explanation, the uncontradicted opinions of Dr. Korn and Dr. Rosen that Maiorano was



                                              7
afflicted with RSD and was unable to use her right arm for repetitive activity. Both

physicians had treated Maiorano for a substantial period of time, documenting not only

her persistent complaints of pain, which were characteristic of RSD, and the resulting

limitations, but also the other symptoms of RSD that she manifested. Dr. Rosen’s

progress notes and reports also documented: (1) the additional testing that was performed

to determine if the implantation of a spinal cord stimulator was warranted; (2) her

favorable response to the surgical implantation; and (3) the fact that Maiorano’s ability to

use her right arm remained severely restricted after surgery, particularly with respect to

lifting and repetitive activity. Yet the ALJ failed to even discuss this limitation in his

determination that she was able to perform certain light level work.

       We recognize that the ALJ cited the opinions of two non-examining consultants as

evidence to support his decision. Neither opinion, however, supports the ALJ’s reasoning

because each failed to address Maiorano’s diagnosis of RSD and preceded her surgery by

almost fifteen months. Nor did the negative reports of several diagnostic tests, e.g.,

MRIs, a bone scan and an EM G, upon which the ALJ relied, run counter to the diagnosis

of RSD. Those clinical tests, none of which are definitive for diagnosing RSD, merely

confirmed the absence of other causes for plaintiff’s pain and limitations.

       It is significant that Maiorano’s testimony that she remained limited with respect to

the use of her right arm was consistent with not only the opinions of Dr. Korn and Dr.

Rosen, but also their documentation before and after surgery. Thus, under Ferguson, 765



                                               8
F.2d at 37, the ALJ should have accorded great weight to Maiorano’s subjective

testimony in determining her residual functional capacity.

       In sum, because the ALJ failed to adequately explain why he discounted the

opinions of Maiorano’s treating physicians that the use of her right arm was severely

limited with respect to her ability to lift and to engage in repetitive activity, we conclude

that the ALJ’s decision is not supported by substantial evidence. We will reverse and

remand for further proceedings so that the ALJ may reconsider whether Maiorano’s RSD

is disabling for purposes of the Social Security Act.

                      ______________________________________
