                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-11-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4718




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                                                                NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ___________

                                     No. 04-4718
                                     ___________

                               ROBERT MCGONIGAL,
                                            Appellant

                                           v.

                              JO ANNE B. BARNHART,
                                Commissioner of SSA
                                   ___________

           ON APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE EASTERN DISTRICT OF PENNSYLVANIA
                         (D.C. Civil No. 03-cv-06530)
                     District Judge: Hon. Paul S. Diamond
                                 ___________

                      Submitted Under Third Circuit LAR 34.1(a)
                                 September 27, 2005

              BEFORE: ALITO, AMBRO, and LOURIE,* Circuit Judges.

                                (Filed October 11, 2005)


                                     ___________

                                      OPINION
                                     ___________




        * Honorable Alan D. Lourie, Circuit Judge for the United States Court of Appeals
for the Federal Circuit, sitting by designation.
LOURIE, Circuit Judge.

       Robert McGonigal appeals from the decision of the United States District Court for

the Eastern District of Pennsylvania affirming the denial by the Commissioner of Social

Security (“Commissioner”) of his claim for disability insurance benefits (“DIB”) and

Supplemental Security Income (“SSI”) under Titles II and XVI, respectively, of the Social

Security Act (“Act”), 42 U.S.C. §§ 401-434, 1381-1383f. McGonigal v. Barnhart, No. 03-

6530 (E.D. Pa. Oct. 22, 2004). Because substantial evidence supports the Commissioner’s

decision, we affirm.

       Because we write primarily for the benefit of the parties, we will recite only the most

pertinent facts.   Alleging disability due to various physical and mental impairments,

McGonigal filed applications for DIB and SSI; they were denied. At McGonigal’s request,

an administrative hearing was held, at which he and a vocational expert testified.

Afterwards, an administrative law judge (“ALJ”) determined that McGonigal was not

disabled within the meaning of the Act because he retained the residual functional capacity

to perform past relevant work or other light work. The Appeals Council denied review of

the ALJ’s decision, which thus became final.

       McGonigal thereafter filed a civil action in the District Court. On cross-motions for

summary judgment, the case was referred to a magistrate judge who issued a Report and

Recommendation concluding that the Commissioner’s decision was supported by substantial

evidence. Adopting the magistrate judge’s Report and Recommendation, the District Court

granted summary judgment in favor of the Commissioner. McGonigal timely appealed. We



                                              2
have jurisdiction pursuant to 28 U.S.C. § 1291.

       We must uphold the Commissioner’s decision if it was supported by “substantial

evidence.” 42 U.S.C. § 405(g). Substantial evidence “does not mean a large or considerable

amount of evidence, but rather ‘such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion.’” Pierce v. Underwood, 487 U.S. 552, 565 (1988)

(quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). In the instant

appeal, the Commissioner’s decision must be sustained because it was supported by

substantial evidence.

       In his briefs, McGonigal maintains that the ALJ erred in failing to accord controlling

weight to the reports of his treating psychiatrist, Dr. Deeney, and his treating physician, Dr.

Moreno. We disagree with that assertion. The ALJ found that Dr. Deeney’s assessment was

not supported by McGonigal’s treatment records, and that significant inconsistencies existed

between Dr. Deeney’s assessment and that of a nurse and other medical professionals. As

for Dr. Moreno, the ALJ found that he failed to provide proper support for his assessment

and that his treatment notes were inconsistent with each other. Because their assessments

were not supported by the weight of the evidence in the record, we see no error in the ALJ’s

refusal to give controlling weight to the opinions of Drs. Deeney and Moreno. See 20 C.F.R.

§ 404.1527(d)(2).

       Next, McGonigal argues that the ALJ overlooked or improperly discounted certain

evidence in finding that his cervical spine impairment was non-severe. We disagree. As an

appellate tribunal, we cannot reweigh the evidence. See Williams v. Sullivan, 970 F.2d



                                              3
1178, 1182 (3d Cir. 1992). The ALJ’s determination was based on x-rays, the reports of

several physicians, and an electrodiagnostic study; accordingly, we conclude that the ALJ’s

finding of non-severity was supported by substantial evidence.

       McGonigal also argues that the ALJ erred in finding that he had retained the ability

to return to his past relevant work, i.e., as a clerk-typist and telephone solicitor, on the basis

that the vocational expert’s testimony did not support such a finding. This argument amounts

to another request for us to reweigh the evidence, which we must reject. Id. Moreover, even

if the finding were erroneous, it was rendered harmless by the fact that the vocational expert

identified other work that was consistent with McGonigal’s residual functional capacity, e.g.,

bench work assembly, inspecting and sorting, and data entry.

       Finally, McGonigal faults the ALJ for failing to include all of the functional

limitations assessed by Drs. Deeney and Moreno in her hypothetical question posed to the

vocational expert. Again, we disagree. As mentioned above, the ALJ found the assessments

of Drs. Deeney and Moreno to be internally inconsistent and unsupported by the weight of

the evidence. Because only those limitations found by the ALJ to be supported by the record

need to have been included, see Plummer v. Apfel, 186 F.3d 422, 431 (3d Cir. 1999), the

ALJ’s hypothetical question was proper.

       Because substantial evidence supports the ALJ’s decision, we affirm the judgment of

the District Court sustaining the Commissioner’s denial of McGonigal’s claim.




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