                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-4-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4770




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                                                                 NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                     No. 05-4770


                                  DENNIS NIEVES,

                                                            Appellant

                                           v.

                       COMMISSIONER OF SOCIAL SECURITY




                   On Appeal from the United States District Court
                          for the District of New Jersey
                         District Court No. 04-cv-04266
                       District Judge: Hon. John W. Bissell


                       Submitted under Third Circuit LAR 34.1(a)
                                   on July 11, 2006

                Before: SMITH, ALDISERT, and ROTH, Circuit Judges

                               ( Filed : October 4, 2006)




                                    OPINION




ROTH, Circuit Judge:
I.        Factual Background and Procedural History

          This is an appeal from a District Court order affirming an Administrative Law

Judge’s (ALJ) final determination, denying the petitioner’s request for Disability Insurance

Benefits (DBI) and Supplemental Social Security Income (SSI) payments under the Social

Security Act, 42 U.S.C. § 423, et seq. Because the parties are familiar with the facts

leading up to this appeal, we will provide only a brief synopsis here.

          In July of 2001, Nieves filed an application for DBI and SSI payments with the

Social Security Administration (SSA) alleging that he was disabled due to complications

from diabetes and hypertension that began in January of 2001. The SSA rejected both

Nieves’s application when initially presented and upon reconsideration. Nieves then

requested and received a hearing before an ALJ, which was granted and held in March of

2003. In August of 2003, the ALJ determined that Nieves was ineligible for DBI and SSI

payments under §§ 216(I), 223, 1602, 1614(a)(3)(A) of the Social Security Act. Nieves

next requested and received a review by the Appeals council, which denied his claim in

July of 2004. Having exhausted his claim before the SSA, Nieves filed a complaint with

the New Jersey District Court claiming that the decision of the ALJ and the Appeals

Council’s subsequent affirmation of that decision were clearly erroneous in both law and

fact. The District Court reviewed the ALJ’s decision and concluded that it was supported

by substantial evidence. This appeal followed, and for reasons set forth below, we will

affirm.

                                               2
II.    Jurisdiction and Standard of Review

       The District Court had subject matter jurisdiction under 42 U.S.C. § 405(g). We

have jurisdiction pursuant to 42 U.S.C. § 405 and 28 U.S.C. § 1291.

       We review the Commissioner’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). “Substantial evidence is such relevant evidence as a reasoning

mind might accept as adequate to support a conclusion.” Cotter v. Harris, 642 F.2d 700,

704 (3d Cir. 1981) (citing Lewis v. Califano, 616 F.2d 73, 76 (3d Cir. 1980) and 42 U.S.C.

s 405(g)). The substantial evidence standard is deferential, and that deference carries over

to inferences that can be drawn from properly supported factual findings. Schaudeck, 181

F.3d at 431. In determining whether there is substantial evidence to support the SSA’s

conclusions, we consider the record as a whole. Id. We review legal issues under our

familiar plenary standard. Krysztoforski v. Chater, 55 F.3d 857, 858 (3d Cir. 1995).

III.   Discussion

A. General Standards for Obtaining Disability Payments

       To establish entitlement to Title II insurance benefits an individual must show that

he is disabled. 42 U.S.C. § 423. The Social Security Act defines disability as an “inability

to engage in any substantial gainful activity by reason of any medically determinable

physical or mental impairment which can be expected to result in death or which has lasted

or can be expected to last for a continuous period of not less than 12 months . . . .” 42



                                               3
U.S.C. § 423(d)(1)(A). A physical or mental impairment, in turn, is one “that results from

anatomical, physiological, or psychological abnormalities which are demonstrable by

medically acceptable clinical and laboratory diagnostic techniques.” 42 U.S.C. § 423(d)(3).

To qualify as disabled, in addition to being unable to return to one’s previous work, a

person must not, given his age, education, and work experience, be able to engage in any

other kind of substantial gainful employment. 42 U.S.C. § 423(d)(2)(A).

       The SSA has established a five-step process that an ALJ must utilize in determining

whether to award disability benefits. In step one, the ALJ determines whether the claimant

is currently engaged in “substantial gainful activity.” 20 C.F.R. § 404.1520(a)(i). If the

answer is yes, then the inquiry is over, and the ALJ denies the application. If the answer is

no, step two requires the ALJ to assess whether the claimant has a “severe impairment” or

“combination of impairments.” 20 C.F.R. § 404.1520(a)(ii). If there are no severe

impairments then the claimant is not disabled, and the ALJ denies benefits. If the

claimant’s condition survives the first two steps, the ALJ then determines whether the

impairment meets or exceeds those listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1. If it does,

the claimant is considered disabled, qualifying him for disability benefits. If it does not,

however, then the ALJ must move to step four, which requires a determination of whether

the limits imposed by the impairment prevent the claimant from returning to past relevant

work (PRW). 20 C.F.R. § 404.1520(iv). This step-four inquiry is designed to calculate the

claimant’s residual functional capacity (RFC) and compare it to the requirements of the


                                               4
claimant’s PRW. If the claimant has a RFC that does not preclude him from functioning

properly at his PRW, the claimant is not disabled, and benefits will be denied. 20 C.F.R. §

404.1520(f). Finally, if the claimant cannot perform PRW, disability still will not be found

if the SSA can show that the claimant is capable of performing other work in the national

economy considering the claimant’s age, education, and previous work experience. 20

C.F.R. § 404.1520(a)(v). Until step five, the burden is on the claimant to show a disability.

Bowen v. Yuckert, 482 U.S. 137, 146-47 n.5 (1987).

1. Applying the SSA Test to the Petitioner’s Claim

        The ALJ determined that Nieves was not disabled within the meaning of the SSA on

account of his ability to perform PRW. The ALJ made a thorough investigation of the

medical evidence submitted, and based on the findings in those reports, assessed the

petitioner’s ailments under the SSA’s five step evaluation. The ALJ first determined that

Neives was not engaged in substantial gainful activity. Having passed step one of the test,

the ALJ next considered whether the petitioner Nieves had a severe impairment. In light of

the medical evidence in the record, the ALJ determined that Nieves’s diabetes and

hypertension were severe, but not severe enough as to meet or exceed those listed under 20

C.F.R. Pt. 404, Subpt. P, App. 1.1 Thus, the ALJ was required to consider whether


    1
    In order to qualify as severely disabled on account of diabetes under 20 C.F.R. Pt.
 404, Subpt. P, App. 1, a person must be able to demonstrate:

                A.     Neuropathy demonstrated by significant and persistent
                       disorganization or motor function in two extremities resulting in

                                              5
Nieves’s diabetes and hypertension prevented him from performing PRW. The ALJ

concluded that Nieves’s occupation as a security guard required only light work 2 and that

his diabetes and hypertension would not prevent him from performing the duties associated

with that job. Having concluded that the petitioner was not precluded from performing his

PRW, the ALJ found Nieves ineligible for DBI and SSI and denied them accordingly.

2. ALJ’s Treatment of the Medical Evidence

        Nieves argues that the ALJ’s finding that he was not disabled was not supported by

substantial evidence. Specifically, Nieves attests that the ALJ inappropriately determined

that he was able to perform light work, alleging that the ALJ’s determination failed to

consider evidence presented by the petitioner refuting such a finding. The District Court

concluded that the ALJ’s decision on this issue was sufficiently supported by substantial

evidence in the record and that the ALJ gave due consideration to the evidence presented




                       sustained disturbance of gross and dexterous movements, or gait and
                       station . . .

                B.     Acidosis occuring at least on the average of once every 2 months
                       documented by appropriate blood chemical tests . . .

                C.     Retinitis proliferans; evaluate the visual impairment under the
                       criteria in 2.02, 2.03 or 2.04.
    2
     Light work consists of activities which require a person to lift no more than twenty
 pounds at a time, with frequent lifting or carrying of objects weighing up to ten pounds.
 20 C.F.R. §§ 404.1567(b), 416.967(b). Light work may also consist of jobs that entail a
 significant amount of walking, as well as jobs requiring one’s pushing and pulling of arm
 and leg controls.

                                              6
by the petitioner. We agree.

       The ALJ’s decision was based on several qualified professional medical opinions.

The ALJ relied upon a report submitted by Dr. R.C. Patel, who noted that the petitioner,

while exhibiting symptoms of diabetes mellitus, had no evidence of neuropathy or any

vascular involvement as a result of the diabetes. Next, the ALJ cited to the report of Dr.

Theodore Turner, a state agency physician. Dr. Turner examined all available medical

evidence, including the report submitted by Dr. Patel, and concluded that the petitioner had

no exertional limitations. Finally, the ALJ also relied on two 2001 reports from Trinitas

Hospital finding the petitioner to be “asymptomatic,” noting additionally that the petitioner

had actually run out of his insulin five days prior to his appointment.

       Based on these reports, the ALJ reasonably concluded that the petitioner’s ailments

did not impose any limitations that would prohibit his returning to his PRW. As we noted

in Plummer v. Apfel, the report of a treating physician “should be accorded great weight.”

186 F.3d 422, 429 (3d Cir. 1999). Here, the ALJ’s decision is consistent with the report of

not one, but three treating physicians. Consequently, the ALJ’s decision is supported by

sufficient evidence.

       The petitioner’s assertion that the ALJ did not give adequate consideration to the

medical evidence the petitioner supplied is erroneous. The petitioner relies upon a medical

report submitted by Dr. Sanchez-Pena, in which the doctor asserts that because of Nieves’s

diabetes, the petitioner is unable to stand or walk for more than four hours in an eight hour

                                               7
work day. Standing alone, the report of Dr. Pena would indicate that Nieves is unable to

perform PRW. However, because of the existence of evidence to the contrary, the ALJ was

not bound to render his decision solely based on the findings of this report. While an “ALJ

is not free to employ her own expertise against that of a physician[s] . . . where a conflict in

the evidence exists, the ALJ may choose whom to credit,” so long as the ALJ’s decision

puts forth “some” reason for rejecting one set of evidence in favor of another. Id.

          In this case, the ALJ sets forth several reasons for rejecting the report of Dr. Pena.

First, the ALJ found Dr. Pena’s report was unsupported by proper test results and

inconsistent with factual evidence. Next, the ALJ pointed out that further findings by Dr.

Pena as to the petitioner’s limited mobility were also inconsistent with past findings.

Finally, the ALJ asserted that Dr. Pena’s report contained no new objective evidence to

support the petitioner’s claim that his neuropathy had sufficiently increased. Because the

ALJ cited adequate support for his decision to accept the medical conclusions of several

treating physicians over that of a doctor with inconsistent results, we find the ALJ’s

decision to have been based on substantial evidence.3


IV.       Conclusion




      3
     Our determination is in no way swayed by the fact that in October of 2003 an ALJ
 determined that the petitioner was disabled. As per 42 U.S.C. § 405(g), our review is
 limited to the evidence in the record at the time of the 2001 decision of the ALJ and we
 are therefore not required, nor able, to consider this subsequent ALJ ruling when
 rendering our decision.

                                                  8
       The ALJ’s decision regarding the petitioner’s ability to perform PRW is supported

by substantial evidence. Accordingly, we will affirm the decision of the District Court.




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