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


4-26-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3812




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 03-3812


                                 DAVID L. VITATOE,
                                           Appellant

                                           v.

                             JO ANNE BARNHART,
                     Commissioner, Social Security Administration


                      Appeal from the United States District Court
                               for the District of Delaware
                              (D.C. Civil No. 01-cv-00831)
                      District Judge: Honorable Gregory M. Sleet


                      Submitted Under Third Circuit LAR 34.1(a)
                                   April 16, 2004

             Before: RENDELL, STAPLETON and LAY*, Circuit Judges.

                                 (Filed April 26, 2004)


                              OPINION OF THE COURT




*Honorable Donald P. Lay, Senior Circuit Judge for the Eighth Circuit, sitting by
designation.
LAY, Circuit Judge.

       David L. Vitatoe appeals from an order of the district court affirming the decision

of the Commissioner of Social Security denying his claim for disability insurance benefits

under Title II of the Social Security Act. Because we conclude that substantial evidence

on the record as a whole supports the Commissioner’s decision, we will affirm.




                                     BACKGROUND

       Vitatoe applied for disability insurance benefits and supplemental security income

on September 30, 1999, alleging an inability to work beginning September 15, 1999.

Vitatoe’s application for benefits was denied initially and upon reconsideration. He then

requested a hearing before an administrative law judge (“ALJ”), which was held on

November 15, 2000.

       Vitatoe suffers from several ailments, including hypertension, asthma, and diabetes

mellitus, and has been seen by several physicians for his medical conditions. At the

hearing, Vitatoe testified that he could not do any lifting, but upon questioning from the

ALJ, he admitted he could lift a gallon of milk. He testified that he suffered frequent

asthma attacks with shortness of breath and required nebulizer treatments of fifteen to

twenty minutes three or four times per day. Vitatoe testified his diabetes caused him pain

in his eyes, fingers, and lower back, and severe pain in his legs, which limited his walking

to ten to fifteen minutes per day. He claimed he was bedridden for most of the day.



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        Vitatoe had been diagnosed as having peripheral neuropathy related to diabetes

mellitus and was prescribed pain medication for treatment. On December 19, 2000,

Vitatoe had a consultative exam with Dr. Yong Kim. Vitatoe told Dr. Kim he had been to

the emergency room five or six times in the last year for his asthma, but no records of

these visits were ever provided by Vitatoe in support of his application for benefits.

Vitatoe also told Dr. Kim that he could walk for one block, stand for thirty minutes, and

lift twenty or thirty pounds. Vitatoe complained of having a cough, shortness of breath,

and occasional abdominal pain. Dr. Kim noted that Vitatoe had normal range of motion

and strength in his upper and lower extremities but decreased sensation in the toes of both

feet.

        At the request of the ALJ, the medical evidence in Vitatoe’s case was reviewed by

Dr. Charles Cooke, an internist and medical expert. Dr. Cooke opined that while Vitatoe

had evidence of severe asthma and diabetes mellitus with peripheral neuropathy, he still

was able to lift up to twenty pounds frequently and fifty pounds occasionally, and had no

limitations on his ability to stand, walk, sit, or use his upper and lower extremities for

pushing and pulling.

        Vitatoe submitted written reports concerning his disability in January and February

of 2000, which indicated that he experienced pain in his legs and sometimes found it

difficult to breathe. However, he stated he could drive to doctor appointments, drive his

son to school, take out the trash, mow the grass once every two weeks, shop, and fish five



                                              3
or six times a year. In March of 2000, Vitatoe submitted a written report that indicated he

could no longer engage in these activities or any other household chores.

       The ALJ found that Vitatoe suffered from severe impairments, which were not

severe enough to meet or medically equal a listed impairment. The ALJ also found that

Vitatoe was not fully credible as to the frequency and severity of his symptoms or the

extent of his functional limitations. He further found that Vitatoe had the residual

functional capacity to perform sedentary work. Although the ALJ found that Vitatoe

could not perform his past relevant work, he found there were significant jobs in the

regional and national economy that Vitatoe could perform. On this basis, the ALJ found

that Vitatoe was not disabled.

       Vitatoe requested review of the ALJ’s decision by the Appeals Council. The

Appeals Council denied his request, thereby making the ALJ’s decision the final decision

of the Commissioner. Vitatoe then filed suit in district court. On July 10, 2003, the

district court granted the Commissioner’s motion for summary judgment, concluding

substantial evidence on the record as a whole supported the Commissioner’s finding that

Vitatoe was not eligible for benefits. Vitatoe now appeals.




                                        DECISION

       On appeal, Vitatoe takes issue with the ALJ’s finding that he was not fully credible

as to the frequency and severity of his symptoms or the extent of his functional



                                             4
limitations, and he argues the ALJ’s finding of non-disability was based on a rejection of

Vitatoe’s subjective complaints. An ALJ must give an applicant’s subjective complaints

serious consideration and make specific findings of fact concerning his credibility. See

Burns v. Barnhart, 312 F.3d 113, 129 (3d Cir. 2002). We conclude the ALJ fulfilled each

of these requirements.

       Our review of the record convinces us that the ALJ did not reject Vitatoe’s

subjective complaints entirely but gave them serious consideration and evaluated them in

the context of all the evidence. Although evidence was presented that Vitatoe had the

capacity to lift over twenty pounds, had no limitations on his ability to stand, walk, or sit,

and retained the capacity for work at a medium level, the ALJ found that Vitatoe retained

the residual functional capacity to sit for six hours in an eight-hour day, stand and walk

two hours, and lift weights of up to ten pounds frequently. The ALJ also found that

Vitatoe’s asthma limited his tasks to those that do not involve exposure to air pollution

and other respiratory irritants. Furthermore, the ALJ found that Vitatoe had the capacity

to perform only sedentary work, which involves primarily sitting and lifting no more than

ten pounds. In our view, these findings clearly indicate the ALJ considered and partially

credited Vitatoe’s subjective complaints of pain, diminished capacity for work, and other

symptoms. In any event, these findings certainly refute Vitatoe’s contention that the ALJ

based his non-disability finding on a rejection of Vitatoe’s subjective complaints.

       The record also supports the ALJ’s credibility finding. The ALJ specifically



                                               5
pointed out inconsistencies between Vitatoe’s testimony and his written statements

concerning his ability to engage in various activities. For example, Vitatoe testified that

he could not perform any household chores or yard work, but his written statements

indicate that he could take out the trash and mow the grass. The ALJ also pointed out

inconsistencies in Vitatoe’s statements concerning his lifting ability. Vitatoe initially

testified that he could not do any lifting but later conceded that he could lift a gallon of

milk. One month later, he told Dr. Kim that he could lift between twenty and thirty

pounds of weight. The ALJ also pointed out that Vitatoe’s testimony concerning frequent

trips to the emergency room for his asthma was not supported by any records of such

visits.

          Also important to the ALJ’s credibility determination was the lack of objective

medical evidence to support Vitatoe’s subjective complaints. “Allegations of pain and

other subjective symptoms must be supported by objective medical evidence.” Hartranft

v. Apfel, 181 F.3d 358, 362 (3d Cir. 1999); see also 20 C.F.R. § 404.1529. The ALJ cited

specific instances where Vitatoe’s subjective complaints were not supported by objective

medical evidence. For example, Dr. Kim found no impairment of Vitatoe’s gait, muscle

strength, or range of motion, and another of Vitatoe’s treating physicians reported that

Vitatoe had no limb ataxia and had normal muscle mass and tone except for mild

weakness and loss of sensation in the lower extremities. As the district court noted, none

of Vitatoe’s treating physicians opined that he had any disabling functional limitations.



                                               6
       Considering the objective medical evidence, the opinions of Vitatoe’s treating

physicians, and Vitatoe’s own testimony and written statements, we conclude the ALJ’s

finding that Vitatoe’s allegations of pain and other subjective symptoms were not entirely

credible is supported by substantial evidence on the record as a whole. Moreover, we

conclude there is substantial evidence on the record as a whole to support the ALJ’s

conclusion that Vitatoe was not disabled.




                                      CONCLUSION

       For the reasons set forth in this opinion, we will affirm the order of the district

court upholding the Commissioner’s denial of disability insurance benefits in this case.




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