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


10-25-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4549




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Recommended Citation
"Salerno v. Comm Social Security" (2005). 2005 Decisions. Paper 350.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/350


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                                                  NOT PRECEDENTIAL


     IN THE UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT


                        NO. 04-4549


                 MARLENE T. SALERNO,
                                 Appellant

                             v.

        COMMISSIONER OF SOCIAL SECURITY




       On Appeal From the United States District Court
          For the Western District of Pennsylvania
            (D.C. Civil Action No. 03-cv-01642)
           District Judge: Hon. Gustave Diamond


       Submitted Pursuant to Third Circuit LAR 34.1(a)
                      October 19, 2005

BEFORE: SMITH, STAPLETON and NYGAARD, Circuit Judges

              (Opinion Filed October 25, 2005)




                OPINION OF THE COURT
STAPLETON, Circuit Judge:

       The District Court granted summary judgment to the Commissioner in this social

security disability case. It accurately described the findings of the ALJ as follows:

               After reviewing plaintiff’s medical records and hearing testimony
       from plaintiff and a vocational expert, the ALJ concluded that plaintiff is
       not disabled within the meaning of the Act. The ALJ found that although
       the medical evidence establishes that plaintiff suffers from the severe
       impairment of back pain secondary to scoliosis and mild osteoarthritis, that
       impairment does not meet or equal the criteria of any of the impairments
       listed at Appendix 1 of 20 C.F.R., Part 404, Subpart P.

               The ALJ also found that plaintiff retains the residual functional
       capacity for the full range of medium work activity. Relying on the
       testimony of a vocational expert, who classified plaintiff’s past relevant
       work as a waitress and cook as medium unskilled work, the ALJ concluded
       that plaintiff is capable of performing her past relevant work in light of her
       age, education, work experience and residual functional capacity.
       Accordingly, the ALJ determined that plaintiff is not disabled within the
       meaning of the Act.

App. at A-2. The Appeals Council denied review.

       Petitioner’s sole argument on this appeal, as before the District Court, is that the

ALJ improperly evaluated the medical evidence in arriving at his residual functional

capacity finding. Specifically, she insists that the ALJ erred in giving more weight to an

opinion of Dr. Kumar, a non-examining state agency reviewing psychologist, than to the

opinions of plaintiff’s treating physician, Dr. Catena, and the consultive examiner, Dr.

Jew. For essentially the reasons set forth in the thorough opinion of the District Court, we

agree that there was no improper evaluation of the medical testimony and that the ALJ’s

residual functional capacity finding was supported by substantial evidence.

                                              2
       As the ALJ explained at some length, Dr. Catena’s assessment was inconsistent

with the clinical medical evidence of record, including his own prior records.

Accordingly, the ALJ was not required to give that assessment controlling weight.

Similarly, the restrictions found by Dr. Jew were inconsistent with the medical evidence

of record, including the results of his own physical examination of petitioner.

       The ALJ found that Dr. Kumar’s assessment was entitled to greater weight

because it was more consistent with the objective medical findings. He explained this at

some length, pointing to substantial record evidence supporting his opinion.

       The judgment of the District Court will be affirmed.




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