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


9-16-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4232




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NOT PRECEDENTIAL

                   THE UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT

                                  Case No: 04-4232

                                  BILLIE SIMMONS

                                            v.

                        JO ANNE BARNHART, Commissioner,
                            Social Security Administration


                                    Billie E. Simmons,

                                              Appellant




                   On Appeal from the United States District Court
                              for the District of Delaware
                          District Court No.: 02-CV-01539
                     District Judge: The Honorable Kent Jordan


                   Submitted Pursuant to Third Circuit LAR 34.1(a)
                                September 15, 2005

              Before: SLOVITER, BARRY, and SMITH, Circuit Judges

                              (Filed: September 16, 2005)


                              OPINION OF THE COURT


SMITH, Circuit Judge.

      Billie Simmons applied in March 1992 for disability benefits under Title II and
supplemental security income (“SSI”) benefits under Title XVI of the Social Security Act.

An Administrative Law Judge (“ALJ”) denied Simmons’s application, but her request for

review by the Appeals Council was granted because the transcript of her first hearing was

lost. After a second hearing before the same ALJ, Simmons’s application for benefits

was denied again on May 3, 1999. When the Appeals Council denied her second request

for review, Simmons filed an appeal with the United States District Court for the District

of Delaware. It granted the Commissioner’s motion for summary judgment, thereby

affirming the denial of Simmons’s application for benefits. This timely appeal followed.1

       Judicial review of the denial of an application for Social Security benefits is

limited to determining whether there is substantial evidence to support the

Commissioner’s decision. 42 U.S.C. § 405(g); Plummer v. Apfel, 186 F.3d 422, 427 (3d

Cir. 1999). Substantial evidence is “more than a scintilla. It means such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.”

Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal quotation marks and citation

omitted).

       Simmons worked for seventeen years as a psychiatric assistant in a state mental

hospital until she was assaulted in 1988. She received worker’s compensation benefits

for a period of time, and obtained other employment in 1989 as a clerk in a flower shop.

This position was not as physically demanding as her work at the mental hospital and it

  1
   The District Court had jurisdiction pursuant to 28 U.S.C. § 1331 and 42 U.S.C. §
405(g). We exercise jurisdiction under 28 U.S.C. § 1291.

                                              2
afforded her the flexibility she needed in light of her husband’s declining health.

According to Simmons’s testimony, the work she performed in the flower shop was light

in nature.

       At times, Simmons worked part-time because of either her husband’s health or the

deterioration of her left hip. Eventually, on October 14, 1991, Simmons had a total left

hip replacement. On March 2, 1992, Dr. Gelman, Simmons’s orthopedic surgeon,

documented that all of her preoperative pain had subsided, and he released her to return to

work in April with a twenty-pound weight restriction. Shortly after her appointment with

Dr. Gelman at the beginning of March, Simmons applied for disability and SSI benefits,

alleging disability as a result of her hip surgery.

       In a follow-up visit in July 1992, Dr. Gelman documented that Simmons was

“doing very well and has regained a very physical and functional lifestyle.” At some

point, Simmons returned to work at the flower shop part-time, working until late 1993 or

early 1994. In response to an inquiry from the Disability Determination Services, Dr.

Gelman opined that when he last evaluated Simmons in July 1992 she “was doing quite

well” and that “[b]ased on my most recent examination in July of 1992, I did not feel that

Billy Simmons was disabled.”

       After Simmons’s hip surgery, she experienced problems with her voice. Although

she was evaluated by multiple physicians, no abnormalities were detected. She also

complained of hip, leg, lower back, and chest pain, as well as carpal tunnel type



                                               3
problems. A cardiac catheterization ruled out a cardiac etiology for the chest pain.

Pulmonary function tests and a chest x-ray were normal. Diagnostic studies of her spine

revealed some degenerative changes, but were generally “unremarkable” except for a

mild bulging lumbar disc. Simmons “responded well” to treatment of her low back pain

with epidural blocks. In a progress note dated January 1998, Dr. Townsend, Simmons’s

treating neurologist, documented that she had a full range of motion, a normal gait, and

neither sensory nor muscular deficits. Dr. Townsend acknowledged that Simmons had

headaches, but opined that “[s]he does well” with medication.

       In August 1995, Simmons was referred to Dr. Ivins, a psychologist. His

consultative report indicated that Simmons reported that she sustained a head injury as a

child, that she was unsteady on her feet throughout her life, had done poorly in school and

was “never able to keep a job for very long.” Dr. Ivins also documented that there was

concern as to whether Simmons’s voice problems were secondary to a mini-stroke from

anesthesia during her hip surgery. After administering several diagnostic tests, Dr. Ivins

documented that Simmons functioned in the average range of general intelligence, that

she had some memory impairment, that she had no sensory deficits and that her motor

strength was impaired in the right hand to a degree, but was otherwise within normal

limits. Dr. Ivins opined that Simmons had severe emotional difficulties secondary to her

head injury and her hip surgery, and that she “is not presently able to perform any suitable

gainful employment. Ms. Simmons is disabled.”



                                             4
       As noted above, the transcript of the first hearing was lost. At the second hearing

before the same ALJ, Simmons testified that she was completely disabled. She affirmed

that she was in constant pain, dropped things because of her carpal tunnel type problems,

had memory problems, experienced headaches confining her to bed two to three days a

week, was limited to standing for thirty minutes and sitting for two hours, and was unable

to lift anything heavy. The ALJ asked Simmons, based on the ALJ’s notes from the

earlier hearing, about certain aspects of Simmons’s previous testimony which indicated

that she was quite active and subject to minimal restrictions. Simmons confirmed that her

previous testimony concerning her physical activities had been accurate, but affirmed that

her physical abilities as of the date of this later hearing were more limited.

       The ALJ concluded that although Simmons’s degenerative joint disease of her hip

and lower back were severe impairments, these conditions did not satisfy the criteria of

certain impairments in Appendix 1 of the regulations. See 20 C.F.R. Part 404, Subpart P,

Appendix 1. The ALJ discounted Dr. Ivins’s opinion that Simmons was disabled. He

explained that Dr. Ivins’s opinion that Simmons’s head injury as a child had caused

multiple limitations was contradicted by the fact that Simmons had been able to work for

seventeen years as a psychiatric assistant. The ALJ rejected Dr. Ivins’s opinion that

Simmons was disabled because it was internally inconsistent with his assessment that

Simmons’s intellectual functioning was normal and the fact that the results of many of the

tests were within normal limits. The ALJ partially credited Simmons’s testimony,



                                              5
finding her capable of light work with occasional postural maneuvers. Because these

restrictions were compatible with her past relevant work as a flower shop clerk, the ALJ

concluded she was not disabled.

       On appeal, Simmons argues that the ALJ erred because she considered non-record

evidence, namely the ALJ’s own notes of Simmons’s testimony from the first hearing.

She contends that the consideration of non-record evidence deprives a claimant of the

opportunity to cross-examine witnesses or to present rebuttal evidence. See Burkhart v.

Bowen, 856 F.2d 1335, 1341 (9th Cir. 1988). We do not take issue with this general

proposition. Unlike Burkhart, however, the record in this case contains testimonial

evidence from Simmons herself confirming that this non-record evidence was accurate at

the time it was made. For that reason, it was not improper for the ALJ to observe the

disparity between Simmons’s testimony regarding her physical activities at the time of the

first hearing and her physical abilities at the latter date. See 20 C.F.R. § 404.929

(establishing that an ALJ must render “a decision based on the hearing record”).

       Simmons also contends that the ALJ erred by discounting Dr. Ivins’s opinion that

she was disabled, and by finding Simmons only partially credible. We find no error by

the ALJ inasmuch as she explained that Dr. Ivins’s opinion was contradicted by both

medical evidence and Simmons’s own testimony about her capabilities over the years.

Plummer, 186 F.3d at 429 (reiterating that a physician’s opinion may be rejected or

discounted on the basis of contradictory medical evidence); Newhouse v. Heckler, 753



                                              6
F.2d 283, 286 (3d Cir. 1985). Nor do we find any error in the weight the ALJ accorded

Simmons’s testimony. Simmons’s testimony was appropriately discounted because it was

contradicted by both the medical evidence and Simmons’s reports of her limitations over

the years. Ferguson v. Schweiker, 765 F.2d 31, 37 (3d Cir. 1985) (observing that the

weight accorded subjective complaints may vary depending on the extent to which they

are supported by medical evidence). By finding that Simmons was restricted to light

work, the ALJ accorded great weight to portions of Simmons’s testimony and accounted

for the limitations imposed by her orthopedic problems. Because those restrictions were

compatible with her past relevant work as flower shop clerk, there is substantial evidence

to support the ALJ’s conclusion that Simmons was not disabled under the Social Security

Act.

       Simmons asserts, however, that the ALJ’s decision is not supported by substantial

evidence because the ALJ failed to develop the details of her past relevant work as a

flower shop clerk, and to take into account both her mental limitations and her need to

avoid humid conditions. This contention is without merit. At the second hearing,

Simmons described the exertional demands of her work as a flower shop clerk as light.

As the District Judge explained, humidity was never cited by any of her treating

physicians as a restriction and there was no medical evidence, beyond the opinion of a

non-examining physician, to support such a restriction. Indeed, her pulmonary function

tests and chest x-ray were normal. The ALJ explained that Simmons’s alleged mental



                                            7
limitations did not preclude employment in light of Simmons’s activity level as set forth

in her disability report and her testimony. In fact, Simmons testified that she had memory

problems in 1992. Yet the record shows that she was able to return to work in the flower

shop and to continue her employment for a period of time.

       In sum, we conclude that there is substantial evidence in the record to support the

ALJ’s determination that Simmons is not disabled. We will affirm the judgment of the

District Court.
