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


2-7-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-1813




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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                     No. 06-1813
                                    ____________

                              MARY E. HORODENSKI

                                                 Appellant

                                            v.

                     COMMISSIONER OF SOCIAL SECURITY

                                    ____________

                    On Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                                  (No. 03-cv-00539)
                       District Judge: Hon. Timothy J. Savage

                      Submitted Under Third Circuit LAR 34.1(a)
                                  January 25, 2007

     Before: SCIRICA, Chief Judge, FUENTES, and CHAGARES, Circuit Judges.

                                    ____________

                               (Filed February 7, 2007 )


                              OPINION OF THE COURT


CHAGARES, Circuit Judge.

      Appellant Mary Horodenski appeals a District Court decision upholding an

Administrative Law Judge’s determination that Horodenski was not entitled to Disability
Insurance Benefits (DIB) under the Social Security Act, 42 U.S.C. § 401, et seq. In this

appeal, we consider the same question the District Court did; namely, whether the

Administrative Law Judge’s decision was supported by substantial evidence. Because we

find that it was, we will affirm.

                                             I.

       As we write only for the parties, our summary of the facts is brief. On December

1, 1998, Horodenski filed a DIB application with the Social Security Administration

(SSA), in which she alleged that she had been totally disabled since July 1, 1974 due to

her multiple sclerosis. Her application was denied, and a hearing on Horodenski’s

application was held before an Administrative Law Judge (ALJ) on May 2, 2000. By

Opinion dated May 1, 2002, the ALJ denied Horodenski’s claims for disability benefits,

holding that she was not disabled within the meaning of the Social Security Act.

Horodenski appealed the ALJ’s decision to the Social Security Administration Appeals

Council, which rejected her appeal on January 10, 2003. On January 29, 2003,

Horodenski filed a complaint in the United States District Court for the Eastern District of

Pennsylvania appealing the Social Security Commissioner’s decision. By Order dated

May 7, 2003, the District Court granted the Commissioner’s motion for a voluntary

remand after the SSA was unable to produce a complete transcript of the May 2, 2000

hearing before the ALJ, and because certain portions of the audio recording of that

proceeding were inaudible.



                                             2
       Upon remand, the ALJ held a de novo hearing on Horodenski’s disability claim on

May 12, 2004. At this hearing, the ALJ heard testimony from Horodenski and her

husband, as well as a vocational expert.

       Horodenski testified that she was employed by General Electric as an assembler

for six years prior to her alleged disability onset date of July 1, 1974. Horodenski further

testified that she began to feel exhausted in 1970 after the birth of her first child,

notwithstanding the fact she took two months of maternity leave. When these feelings of

exhaustion persisted, Horodenski went to see her doctor. Due to her fatigue, Horodenski

testified that her husband and mother-in-law were forced to perform the bulk of

household chores, including child care. Additionally, Horodenski testified that she

suffered periodic episodes of numbness in her ribs, legs, arms, and spine, and that each

episode lasted for several months. These problems, Horodenski testified, rendered her

unable to “function in a normal daily life,” and she therefore did not return to work at

General Electric.

       Horodenski’s husband corroborated his wife’s testimony. He testified that

Horodenski was unable to perform most household chores, and was limited to changing

diapers and feeding and clothing their children. He further testified that after their second

child was born, Horodenski accepted a part-time job performing clerical work, but had to

quit due to her fatigue, swelling in her legs, and stiffness in her joints.




                                               3
       In addition to the Horodenskis’ testimony, the ALJ also reviewed documentary

evidence relating to Mary Horodenski’s medical problems. The evidence showed that in

May 1975, Horodenski was being treated by her physician, Dr. Harold Goldfarb, for

vision problems that stemmed from nerve paresis.1 Dr. Goldfarb referred Horodenski to a

neurologist, Dr. Lawrence Leavitt. Horodenski reported to Dr. Leavitt that she suffered

from periodic headaches and numbness in her left foot. During her examination,

Horodenski also informed Dr. Leavitt that she developed an abrupt onset of weakness in

her left arm and chest in May 1974, and that a physical examination at that time showed

signs of weakness and tenderness of the muscles in her upper left extremity, hyperactive

reflexes in her upper left extremity, and decreased sensation to pinprick. Based on these

symptoms, the physician who examined her in 1974, Dr. Tilly, diagnosed Horodenski

with brachial plexitis. Horodenski reported to Dr. Leavitt that her symptoms dissipated

within ten days, and that her strength returned almost to normal.

       In his examination, Dr. Leavitt noted that Horodenski appeared to be alert and not

in acute distress. Dr. Leavitt concluded that Horodenski’s nerve paresis was attributable

to chemical diabetes. Outside of this, however, Dr. Leavitt described Horodenski’s health

as “good.” Dr. Leavitt found no connection between that episode and Horodenski’s

vision problems.




       1
           “Paresis” refers to partial or incomplete paralysis.

                                                 4
       Horodenski did not return to Dr. Leavitt until May 1987, twelve years later. At

that time, Horodenski reported tingling sensations in her lower extremities. Upon a

follow up visit in August 1987, Horodenski reported that her symptoms had resolved

themselves. After a physical examination, Dr. Leavitt concluded that Horodenski was

“perfectly normal,” and that she had “brisk reflexes throughout; normal sensation,

coordination and gait.” Dr. Leavitt diagnosed Horodenski with “possible demyelinating

disease and myelopathy with ‘weak legs’ and paresthesia.” 2

       In 1991, Horodenski returned to Dr. Leavitt, complaining of blurred vision. After

performing an MRI, Dr. Leavitt diagnosed Horodenski with right optic neuritis. Given

her past medical history, Dr. Leavitt also diagnosed Horodenski with multiple sclerosis.

Dr. Leavitt further opined that Horodenski suffered from a relapsing and remitting form

of multiple sclerosis, and concluded in retrospect that this disease began during her 1974

pregnancy.

       The ALJ also heard testimony from Richard Baine, a vocational expert. Baine

testified that Horodenski’s past employment as a electronics assembler and a clerical

worker constituted unskilled or semi-skilled jobs requiring light exertion under the Social

Security Act. Baine also testified that, taking into account Horodenski’s age, education,

work history, and residual functional capacity, she could have worked as a packer, sorter,


       2
       “Demyelinating disease” refers to the destruction or loss of the myelin sheath,
which covers a nerve or bundle of nerves. “Myelopathy” refers to destruction of or
changes of the spinal cord, often related to non-specific lesions. “Paresthesia” refers to
an abnormal sensation such as burning or prickling.

                                             5
or clerical worker during the relevant period of time. Finally, Baine testified that, based

on his review of Department of Labor studies and his own personal experience as a

vocational expert, he believed that each of these jobs were available both nationally and

in the Lehigh Valley, Pennsylvania area, the locale where Horodenski lived during the

pertinent timeframe.

       By opinion dated May 20, 2004, the ALJ held that Horodenski met the disability

insured status requirements of the Social Security Act on July 1, 1974, and retained

coverage through June 30, 1979. The ALJ further found that during this five-year span,

Horodenski’s ability “to engage in work-related activities was severely impaired [due to]

functional limitations resulting from relapsing and remitting multiple sclerosis.”

However, the ALJ determined that although Horodenski was unable to return to her prior

line of work, her claim of total disability was unpersuasive. In this regard, the ALJ held

that Horodenski retained the residual functional capacity to preform sedentary work not

requiring fine manipulation. Because such jobs were available in both the national and

local economy, the ALJ concluded that Horodenski was not disabled within the meaning

of the Social Security Act at any point prior to June 30, 1979, the last day she was eligible

for DIB benefits.

       Horodenski appealed the ALJ’s decision to the Appeals Council, which denied her

appeal. As before, the Commissioner adopted the ALJ’s decision.




                                              6
      Having exhausted her administrative remedies, Horodenski filed suit in federal

court, alleging that the Commissioner erred in denying her disability claims. The parties

filed cross motions for summary judgment. By Order dated October 31, 2005, a

Magistrate Judge issued a report recommending that the District Court affirm the

Commissioner’s decision. On February 7, 2006, the District Court overruled

Horodenski’s objections to the Magistrate Judge’s report, adopted the Magistrate Judge’s

recommendation, and granted the Commissioner’s motion for summary judgment.

Horodenski now appeals.

                                            II.

      Like the District Court, we review the ALJ’s factual findings to determine whether

they are supported by substantial evidence. Schaudeck v. Comm’r of Soc. Sec. Admin.,

181 F.3d 429, 431 (3d Cir. 1999). In the process of reviewing the record for substantial

evidence, “we may not weigh the evidence or substitute our own conclusions for those of

the fact-finder.” Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005) (internal

quotations omitted). Rather, substantial evidence “is such relevant evidence as a

reasoning mind might accept as adequate to support a conclusion.” Id. In determining

whether there is substantial evidence to support the ALJ’s conclusions, we consider the

record as a whole. Schaudeck, 181 F.3d at 431.




                                            7
                                             III.

       In order to establish disability status under the Social Security Act, a claimant must

demonstrate there is some “medically determinable basis for an impairment that prevents

him from engaging in any ‘substantial gainful activity’ for a statutory twelve-month

period.” Stunkard v. Secretary of Health and Human Services, 841 F.2d 57, 59 (3d Cir.

1988) (quoting 42 U.S.C. § 423(d)(1)). A claimant is considered unable to engage in any

substantial activity “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 kind of substantial gainful work

which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A).

       The SSA has promulgated a five-step process for determining whether a claimant

is disabled. See 20 C.F.R. § 404.1520; Plummer v. Apfel, 186 F.3d 422, 427-29 (3d Cir.

1999). The burden of persuasion is on the claimant in the first four steps, but shifts to the

Commissioner in the final step. In step one, the Commissioner must determine whether

the claimant is currently engaging in substantial gainful activity. 20 C.F.R. § 1520(a). If

he is, the inquiry is over, and the disability claim will be denied. Bowen v. Yuckert, 482

U.S. 137, 140 (1987). If not, analysis proceeds to step two, in which the Commissioner

must determine whether the claimant is suffering from a severe impairment. 20 C.F.R. §

404.1520(c). If the claimant fails to show that her impairments are “severe,” the

claimant’s request must be denied.



                                              8
         In step three, the Commissioner compares the medical evidence of the claimant’s

impairment to a list of impairments presumed severe enough to preclude any gainful

work. 20 C.F.R. § 404.1520(d). If a claimant does not suffer from a listed impairment or

its equivalent, the analysis proceeds to steps four and five. Step four requires the

Commissioner to consider whether the claimant retains the residual functional capacity to

perform her past relevant work. See id. The claimant bears the burden of demonstrating

an inability to return to her past relevant work. Adorno v. Shalala, 40 F.3d 43, 46 (3d Cir.

1994).

         If the claimant is unable to resume her former occupation, the evaluation moves to

the fifth and final step. At this stage, the burden of persuasion shifts to the

Commissioner, who must demonstrate the claimant is capable of performing other

available work in order to deny a claim of disability. 20 C.F.R. § 404.1520(f). The

Commissioner must show there are other jobs existing in significant numbers in the

national economy which the claimant can perform, consistent with her medical

impairments, age, education, past work experience, and residual functional capacity. The

Commissioner must analyze the cumulative effect of all the claimant’s impairments in

determining whether she is capable of performing work and is not disabled. See 20

C.F.R. § 404.1523. In many cases, including this one, the Commissioner will seek the

assistance of a vocational expert in resolving this inquiry. Apfel, 186 F.3d at 429.




                                               9
                                             IV.

                                              A.

       The parties agree that Horodenski has carried her burden in the first four steps.

Accordingly, our analysis is limited to the final phase of the disability analysis.

Horodenski’s first assignment of error is that the ALJ’s residual functional capacity

determination was not supported by substantial evidence. The gravamen of Horodenski’s

argument is that the ALJ improperly failed to credit her claims of fatigue.

       The ALJ found that Horodenski’s ability to engage in work-related activities on

and prior to June 30, 1979 was severely impaired due to “functional limitations resulting

from undiagnosed relapsing and remitting multiple sclerosis.” The ALJ credited

Horodenski’s claim that she was having “some difficulty using her hands for

manipulation in the late 1970’s.” Nonetheless, the ALJ rejected Horodenski’s claim of

total disability, finding instead that she could perform certain sedentary work.

Horodenski maintains that the ALJ must have either found her credible or not, and

because the ALJ credited Horodenski allegations of debilitating fatigue, it was compelled

to credit Horodenski’s claim of total disability based on this fatigue. Because of this

alleged inconsistency, Horodenski argues that the ALJ’s determination that Horodenski

retained the ability to perform sedentary work -- and the underlying residual functional

determination -- cannot stand. We disagree.




                                              10
       It is clear from the ALJ’s decision that the ALJ only partially credited

Horodenski’s complaints of fatigue. More precisely, the ALJ credited Horodenski’s

allegations only insofar as Horodenski claimed that her fatigue restricted her to sedentary

work, and rejected Horodenski’s allegations to the extent she argued that her fatigue

rendered her unfit to perform any gainful employment. Horodenski argues that this

determination is at odds with the uncontroverted medical evidence, noting Dr. Leavitt’s

conclusion that Horodenski has suffered “throughout her illness symptoms of fatigue and

exhaustion.” But this simply begs the question: There is no dispute that Horodenski

suffered fatigue and exhaustion; the issue is whether the extent of her fatigue rendered her

unable to work at all, or merely unable to work in certain jobs. As the ALJ recognized,

there is no record evidence that Horodenski was ever diagnosed as totally disabled. In

this regard, the ALJ noted that “while [Horodenski] may have suffered from fatigue in the

late 1970’s, one would expect to find some mention of it in the treatment records

especially if it were causing work preclusive functional limitations.” The standard of

review mandates that we credit such a plausible inference. See Schaudeck, 181 F.3d at

431 (“Overall, the substantial evidence standard is deferential and includes deference to

inferences drawn from the facts if they, in turn, are supported by substantial evidence.”).

       The ALJ’s determination not to credit Horodenski’s claim of total disability is

further supported by inconsistencies in Horodenski’s testimony. As the ALJ noted, at the




                                             11
March 2, 2000 hearing, Horodenski testified as follows about her activities following the

birth of her first child:

       I did all of the [house] work. I took care of the baby. I did the grocery
       shopping. Tried to do the laundry. Tried to dust. I ran the vacuum cleaner.
       I cleaned . . . . .

At the May 12, 2004 hearing, however, Horodenski portrayed herself as substantially

more disabled than she had in her prior testimony. At the latter hearing, Horodenski

testified that during the relevant period of time, her mother-in-law -- not she -- performed

many of the tasks that Horodenski had previously testified that she had performed.3


       3
           The relevant portion of that hearing transcript reads as follows:

       QUESTION: Now how often did your mother-in-law come over?

       HORODENSKI: It got to be pretty often. Three, four times a week.

       QUESTION: And how long would she stay at your house?

       HORODENSKI: A lot of times she was there most of the day.

       QUESTION: And what would she do?

       HORODENSKI: She would do cooking for me. She would do dusting for me.
       She sometimes ran the vacuum cleaner. She would do dishes for me. Oh, Lord, I
       appreciated that woman.

       QUESTION: And for how long a period of time was your mother-in-law able to
       help you out in that way?

       HORODENSKI: Oh, that was a long time, a lot of years. She would come over in
       the morning sometimes. She would stay for supper and clean up, and she did it for
       years.

       QUESTION: Now was she doing that -- still doing that as of June the 30th of

                                                12
Where, as here, the ALJ has articulated reasons supporting a credibility determination,

that determination will be entitled to “great deference.” Atlantic Limousine, Inc. v.

NLRB, 243 F.3d 711, 718 (3d Cir. 2001). Given Horodenski’s conflicting testimony, the

ALJ was certainly entitled to conclude that Horodenski was overstating the extent of her

fatigue in an effort to bolster her claim of total disability.4 Accordingly, we cannot say

that this is the extraordinary case that merits reversal of a ALJ’s credibility determination.

For all of these reasons, we hold that the ALJ’s residual functional capacity determination

was supported by substantial evidence.5

                                              B.




       1979?

       HORODENSKI: Yes.
       4
        Horodenski argues, unsupported by any authority, that the ALJ could not rely on
the transcript of Hodorenski’s earlier testimony, which she terms a “nullity.” Horodenski
Br. at 23. We share the District Court’s dismay at Horodenski’s counsel’s claim that we
should disregard clearly inconsistent testimony his client offered under oath at a previous
proceeding on precisely the same issue before the same ALJ. See id. at 47 n.9 (District
Court opinion).
       5
        Notwithstanding Horodenski’s argument to the contrary, our decision in Fargnoli
v. Massanari, 247 F.3d 34 (3d Cir. 2001), does not compel a different result. There, we
held, inter alia, that “sporadic and transitory activities cannot be used to show an ability to
engage in substantial gainful activity.” Id. at 40 n.5. To begin with, we disagree that
housework and child care -- which Horodenski claimed to have been performing daily --
constitute “sporadic and transitory activities.” Moreover, unlike the plaintiff in Fargnoli,
Horodenski’s testimony about her daily activities is not merely significant because of its
substance; it was also significant because it was internally inconsistent, which aided the
ALJ in determining how much weight to afford to Horodenski’s testimony.

                                              13
       Horodenski’s second assignment of error is that there is not substantial evidence to

support the ALJ’s conclusion that other work existed in the national economy during the

1970’s which Horodenski could have performed. More specifically, Horodenski argues

that because Baine’s opinion was supported by his own experience and recollection

instead of a recent review of statistical data for the relevant period of time, the ALJ’s

reliance on Baine was misplaced, and that the Commissioner therefore cannot carry her

burden in the final step of the disability analysis. This, too, is unpersuasive.

       To begin with, it must be noted that at no point during the 2004 hearing did

Horodenski, who was represented by counsel, pose any question or raise any objection

either to Baine’s qualifications generally or to his competency to offer vocational

testimony in this case. More importantly, Baine’s testimony makes clear that he relied on

Department of Labor surveys in reaching his opinion as to how many jobs were available

during the relevant time period which Horodenski could perform given her limitations.

While it may be true that Baine did not review these reports in preparation for his

testimony in this case, we do not believe that this failure renders his testimony unreliable,

in view of his approximately thirty years of experience as a vocational expert, and in light

of his testimony that he was certain that these reports would support his testimony. See

Woods v. Finch, 428 F.2d 469, 470 (3d Cir. 1970) (affirming hearing examiner’s denial

of disability benefits where vocational expert relied in part on his own experience in

forming opinion). For these reasons, we hold that substantial evidence supports the



                                              14
ALJ’s determination that there were sufficient jobs in the national economy during the

late 1970’s that Horodenski could have performed notwithstanding her limitations.

                                             V.

       For the foregoing reasons, we will affirm the decision of the District Court in all

respects.




                                             15
