                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-25-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2268




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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 06-2268


                                 EVELYN ORRIOLS,

                                                Appellant

                                           v.

                     COMMISSIONER OF SOCIAL SECURITY



                      Appeal from the United States District Court
                               for the District of New Jersey
                           (D.C. Civil Action No. 04-cv-05825)
                   District Judge: Honorable Joseph A. Greenaway, Jr.


                      Submitted Under Third Circuit LAR 34.1(a)
                                   March 8, 2007

                    Before: SLOVITER and AMBRO, Circuit Judges
                               POLLAK,* District Judge

                                 (Filed: April 25, 2007)


                                       OPINION


AMBRO, Circuit Judge


   *
    Honorable Louis H. Pollak, Senior United States District Judge for the Eastern
District of Pennsylvania, sitting by designation.
       Evelyn Orriols appeals from an order of the United States District Court for the

District of New Jersey affirming the decision of the Commissioner of Social Security (the

“Commissioner”)1 denying her application for Supplemental Security Income (“SSI”)

benefits. Orriols asserts that the decision of the Administrative Law Judge (“ALJ”) and

the District Court’s affirmation of that decision are unsupported by substantial evidence

and therefore should be reversed and remanded for a new hearing. For the reasons that

follow, we affirm the order of the District Court.

I. Facts and Procedural History

       Because we write solely for the parties, we set forth only those facts relevant to our

analysis. Orriols was thirty-six years old at the onset of her alleged disability. She lives

in an apartment with her three teenage children. She has a ninth-grade education, and

held several jobs prior to the onset of her alleged disability.2 Her last position as a part-

time dental office receptionist entailed answering phones, handling filing, cleaning

instruments, and storing supplies.



   1
    On January 22, 2007, Linda S. McMahon became the Acting Commissioner of Social
Security. Pursuant to Fed. R. App. P. 43(c)(2), she replaces former Commissioner Joanne
B. Barnhart as the defendant in this suit.

   2
     From 1998 to 1999, Orriols worked as a receptionist in a car dealership where she
filed, answered phone calls and customer inquiries, and occasionally was required to carry
boxes. From 1999 to 2001, Orriols was employed as a part-time bus aide where she
assisted in transporting handicapped children to and from school; this job also involved
some lifting.


                                               2
       Orriols filed an application for SSI benefits in September 2002, alleging disability

as of October 2001, resulting from upset stomach, liver ailments and depression. The

Commissioner denied her application initially and again on reconsideration. Orriols

requested and was granted a hearing before an ALJ in January 2004. The ALJ held that

Orriols was not disabled within the meaning of the Social Security Act (the “Act”) and

therefore not entitled to SSI benefits under the Act. Orriols’s subsequent request for

review by the Social Security Appeals Council was denied. Orriols then appealed to the

District Court, which affirmed the Commissioner’s decision. This appeal followed.

       The following evidence was offered before the ALJ.

Dr. Takla

       Dr. Sarwat Takla has been Orriols’s primary care physician since December 2001.

Dr. Takla’s first report, dated December 2002, indicated that blood work from Orriols’

December 2001 visit came back with an elevated bilirubin level, but that the remainder of

the liver function test was normal.

       In March 2002, Orriols had an ultrasound of her abdomen. The ultrasound

revealed her liver and spleen to be normal in size, shape, and acoustic pattern and that no

gall stones were present. In July 2002, Dr. Takla referred Orriols to Dr. Jaffer Khan. Dr.

Khan, a gastroentreologist, determined that a biopsy revealed moderate chronic, active

inflammation and gastroesophageal reflux disease.

       Orriols underwent a liver biopsy in September 2002. It showed reactive changes



                                             3
of hepatocyte, mild to moderate distortion of the arcade picture, mild to moderate

intercellular cholestasis and minimal rare fibrosis. Based on this information, Dr. Takla’s

final impression of Orriols’s health on December 26, 2002 was an “abnormal liver

function test most likely due to intracellular cholestasis.”

       Omitted from Dr. Takla’s December 2002 report is an emergency room visit in

September 2002, when Orriols went to a hospital complaining of abdominal pain. The

treating physician found that an examination did not reveal the exact cause of the pain,

and instructed Orriols to return if the pain did not subside within one to two days. Tests

conducted at the hospital revealed a normal liver.

       In July 2003, Dr. Takla dictated a report to the New York State agency that was

based on a June 2003 examination of Orriols. In addition to the medical history above,

the report also indicated that Orriols was now being followed by a liver specialist, and

that she also had been referred to a psychiatrist for depression.

Dr. Oleg

       Dr. Frank Oleg, a consulting physician at the Department of Labor’s Division of

Disability Determination Services, examined Orriols. Dr. Oleg diagnosed Orriols with a

past history of significant abnormal liver testing. His opinion was that Orriols needed

further evaluation, but was able to “sit, stand, walk, lift, carry, handle objects, hear, speak,

and travel.” Dr. Oleg also found that Orriols was unable to sit for prolonged periods of

time without experiencing symptoms of abdominal pain that sometimes caused loose



                                               4
stools.

Dr. Burk

          Dr. Kopel Burk completed a functional assessment for a State agency in February

2003. He determined that Orriols had no manipulative, visual, communicative or

environmental limitations, and concluded that Orriols’s symptoms will have little effect

on her ability to function in an efficient manner at work.

Dr. Hasaj

          Orriols offered testimony from Dr. Mario Hasaj, who examined her for depression

in August 2004. Dr. Hasaj’s psychiatric evaluation stated that Orriols’s three-year-long

depression had not improved despite use of Paxil and Ambien for two months. Orriols’s

mood was depressed or anxious and her affect constricted. Additionally, Dr. Hasaj noted

that Orriols was of average intellectual functioning and of good insight and judgment. He

concluded that Orriols suffers from a depressive disorder. She sees a therapist every two

weeks.

Dr. Fechner

          Dr. Martin Fechner, an independent medical expert, testified before the ALJ at the

January 2004 hearing. He stated that there was sufficient reason to do a liver biopsy, but

that the biopsy only revealed reactive changes and a mild to moderate distortion of the

liver. Further, Dr. Fechner noted that Orriols’s most recent blood tests showed enzyme

levels that negated the existence of liver disease. Dr. Fechner also stated that he could



                                               5
not discern a cause of Orriols’ fatigue based on her medical chart and that she should be

able to do a full range of light activity.

II. Standard of Review

       In an appeal of a District Court’s decision affirming the Commissioner’s denial of

supplemental income benefits, our review of legal issues is plenary.3 Allen v. Barnhart,

417 F.3d 396, 398 (3d Cir. 2005). We review the ALJ’s factual findings to determine

whether they are supported by substantial evidence. Id. “‘Substantial evidence’ has been

defined as ‘more than a mere scintilla. It means such relevant evidence as a reasonable

mind might accept as adequate to support a conclsuion.’” Reefer v. Barnhart, 326 F.3d

376, 379 (3d Cir. 2003) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).

“Where the ALJ’s findings of fact are supported by substantial evidence, we are bound by

those findings, even if we would have decided the factual inquiry differently.” Fargnoli

v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001). The issue we must decide is whether the

ALJ’s decision that Orriols was not disabled, and thus not entitled to SSI benefits, is

supported by substantial evidence based on the record as a whole.

III. Discussion

       Eligibility for benefits under the Act is conditioned on compliance with all relevant

requirements of the statute. The Social Security Administration is authorized to pay SSI



   3
    The District Court had subject matter jurisdiction pursuant to 42 U.S.C.§ 405(g). We
exercise appellate jurisdiction pursuant to 28 U.S.C. § 1291.


                                              6
benefits to persons who are “disabled.” 42 U.S.C. § 1382 . A person is disabled “only if

his physical or mental impairment or impairments are of such severity that he is not only

unable to do his previous work but cannot, considering his age, education, and work

experience, engage in any other substantial gainful work which exists in the national

economy. . . .” 42 U.S.C. § 423(d)(2)(A); see also Barnhart v. Thomas, 540 U.S. 20,

21–22 (2003).

       To determine disability, the Commissioner uses a five-step sequential evaluation

process. 20 C.F.R. § 404.1520; see also Plummer v. Apfel, 186 F.3d 422, 428 (3d Cir.

1999). If a finding of disability or non-disability can be made at any point in the

sequential analysis, the Commissioner will not review the claim further. 20 C.F.R. §

404.1520(a)(4).

       At step one, the Commissioner considers whether the claimant is currently engaged

in substantial gainful activity. 20 C.F.R. § 404.1520(a). If so, the claimant is not

disabled regardless of her medical condition. 20 C.F.R. § 404.1520(b). If the claimant is

not engaged in substantial gainful activity, step two requires the Commissioner to

consider whether a “severe” impairment or combination of impairments exists that

significantly limits the claimant’s physical or mental ability to do basic work activities.

20 C.F.R § 404.1520(c). If a claimant’s condition is deemed severe, the Commissioner,

in step three, consults Appendix 1 of the regulations to determine whether that

impairment or its equivalent is listed. 20 C.F.R. § 404.1520(d); see 20 C.F.R. Pt. 404,



                                              7
Subpt P, App.1 (listing impairments presumed to be severe enough to preclude substantial

gainful activity).

          If a claimant does not suffer from a listed impairment or its equivalent, the analysis

proceeds to steps four and five. In step four, the Commissioner determines whether,

despite the severe impairment, the claimant has the residual functional capacity to

perform her past relevant work. 20 C.F.R. § 404.1520 (e). The claimant bears the burden

of demonstrating an inability to return to her past relevant work. Burnett v. Comm’r of

Soc. Sec., 220 F.3d 112, 118 (3d Cir. 2000). At step five, the burden shifts to the

Commissioner. It requires the Commissioner to demonstrate that the claimant is capable

of performing other available work in order to deny a claim of disability. 20 C.F.R.§

404.1520(g). To make this determination, the Commissioner considers a claimant’s

residual functional capacity along with her age, education, and past work experience to

determine if she can perform other work in the national economy. Id.; Burnett, 220 F.3d

at 118.

          Orriols claims that the ALJ erred at steps three and four because the ALJ’s

findings are not supported by substantial evidence. Specifically, Orriols argues that the

ALJ failed to: (1) correctly evaluate Orriols’s liver impairment, in that the ALJ found the

impairment did not meet or equal the statutory listing of impairments in step three; (2)

follow our Court’s holding in Cotter v. Harris, 642 F.2d 700 (3d Cir. 1981), by failing to

articulate evidentiary reasons for the residual functional capacity determination in step



                                                8
four and, particularly, by omitting an explanation of his consideration of Orriols’ pain;

and (3) consider all of her impairments, specifically the effect of her depression, in the

residual functional capacity determination.

                                              A.

       As noted above, Orriols argues that the ALJ erred in step three when he

determined that her ailments were not equivalent to any of the statutory listed illnesses

that are presumed to be disabling. The ALJ is required to state the reasons for his

decision to ensure meaningful judicial review. Burnett, 220 F.3d at 119. Only the

essential considerations upon which the ALJ bases a decision must be noted. See Cotter,

650 F.2d at 704 (stating that the ALJ must consider all evidence and provide an

explanation for rejected evidence that would suggest a contrary disposition, and

indicating that in most cases a sentence or short paragraph will suffice). Here, the ALJ

explained that “[p]articular consideration” had been given to the medical listing.

Specifically, the ALJ noted the absence of documentation of chronic liver disease by a

liver biopsy, as required under 20 C.F.R. Pt. 404, Subpt. P, App.1, at F.

       The ALJ explained his determination by stating that the evidence suggested only

mild liver disease as determined by Dr. Fechner. With respect to the claimed mental

disease, the ALJ determined that Orriols did not meet the requirements under the “B”

criteria of the medical listings in section 12.00 found at 20 C.F.R. Pt. 404, Subpt. P, App.

1. The ALJ met his obligations to consider all the evidence and explain his reasoning.



                                              9
See Cotter, 650 F.2d at 704. Based on Drs. Fechner, Burk and Oleg’s conclusions that

Orriols has mild liver disease, there is substantial evidence in the record to support the

ALJ’s determination that “[t]he medical evidence indicates that the claimant has liver

disease and depression, impairments that are ‘severe’ within the meaning of the

Regulations but not ‘severe’ enough to meet or medically equal, either singly or in

combination to[,] one of the impairments listed in Appendix 1, Subpart P, Regulations

No. 4.”

                                             B.

       Additionally, Orriols contends that the ALJ failed to give reasons for his

determination that Orriols has the residual functional capacity for light work and to

explain his consideration of Orriols’s subjective complaints of pain. When determining a

claimant’s residual functional capacity, the ALJ must consider all relevant evidence.

Fargnoli, 247 F.3d at 41. In addition, the ALJ must give a “clear and satisfactory

explication of the basis on which [the residual functional capacity] rests.” Cotter, 642

F.2d at 704.

       Here, the ALJ considered all relevant evidence. Specifically, he discussed

evidence provided by Drs. Takla, Hasaj, Fechner, and Frank. The ALJ credited Dr.

Fechner’s explanation because he was an impartial medical expert giving an opinion in

his particular field of expertise. In relying on Dr. Fechner’s testimony, the ALJ noted that

Orriols’s most recent blood tests were essentially normal, and Orriols suffered from mild



                                             10
liver disease. In particular, the medical evidence did not substantiate the degree of

fatigue alleged. There is substantial evidence in the record to support the conclusion that

Orriols suffers from mild liver disease and that this only precludes her from performing

medium to very heavy work. See Fargnoli, 247 F.3d at 38.

       The ALJ also considered Orriols subjective complaints of disabling pain, mental

distress, and other symptoms. He noted that the record did not support the extent of

Orriols’ complaints even when the medical and non-medical elements were considered

together. Additionally, he stated that Orriols’ assertions of pain and symptoms are

reasonable to a degree, but not to the debilitating extent asserted. The ALJ’s

determination is supported by several facts; including: 1) indication in the record that

Orriols may have stopped working for reasons other than her alleged disability; 2) reports

that her condition has not significantly deteriorated since her absence from work; and 3)

evidence that she is able to conduct normal daily activities.

       Orriols’s arguments that the ALJ neglected to articulate the evidentiary weight

accorded to facts, and to explain his reasoning for the residual functioning capacity

determination, fail. The ALJ’s opinion noted that non-examining physicians, like Dr.

Fechner, are not normally given as much weight as a treating physician. However, here,

the ALJ accorded Dr. Fechner’s opinion some weight because other facts in the record

supported the doctor’s assessment of mild liver disease. The ALJ continued to explain

that Dr. Takla, Orriols’s treating physician who is entitled to greater weight, never



                                             11
concluded that Orriols was disabled or completely unable to work. In this context, the

ALJ met his obligations under Cotter to provide a clear and satisfactory explanation of

the basis for his decision. See Cotter, 642 F.2d at 704.

                                             C.

       Regarding Orriols’ alleged mental disability, the record shows that the ALJ

considered all relevant evidence and that his determinations are supported by substantial

evidence. The ALJ considered Dr. Hasaj’s finding that Orriols suffered from a depressive

disorder based on her complaints of nervousness, an inability to sleep, depression,

anxiety, and fatigue. Additionally, the ALJ’s opinion noted that Orriols’s thought

processes were logical and goal-directed and her intellectual functioning was adequate; in

essence, Orriols possessed adequate insight and judgment.

       Based on these considerations, the ALJ found that Orriols suffered from a

depressive disorder and that she had functional limitations (though slight). Such

limitations, in the ALJ’s opinion, would not have more than a minimal effect on her

ability to perform work-related activities. These determinations are supported by

substantial evidence, and thus it is reasonable to conclude that she was able to perform

light work-related activities when her intellectual functioning was adequate.

                                     *   *   *    *   *

       We affirm the District Court’s order affirming the Commissioner’s denial of




                                             12
benefits.4




   4
     In closing, we note with displeasure the conclusory and unprofessional assertions that
pervade Orriols’s brief. To accuse the ALJ of incompetence and partiality, among other
failings, is most serious. In the context of this case, such conduct is offensive, reflects ill
on counsel, and fails to serve his client. We trust that, in the future, counsel will recall
our remarks here and act appropriately.

                                              13
