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


7-30-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3323




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                                                NOT PRECEDENTIAL

        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT


                       No. 03-3323



               VALERIE E. GRANDILLO,

                                 Appellant

                            v.


               JOANNE B. BARNHART,
             Commissioner of Social Security




      On Appeal from the United States District Court
          for the Western District of Pennsylvania
            (Dist. Court Civil No. 02-cv-00775)
       District Judge: Honorable William L. Standish



       Submitted Under Third Circuit LAR 34.1(a)
                    June 24, 2004


Before: NYGAARD, MCKEE and CHERTOFF, Circuit Judges.


                   (Filed July 30, 2004)
                                        OPINION


CHERTOFF, Circuit Judge.

       Valerie E. Grandillo appeals from the District Court’s judgment affirming the

Commissioner of Social Security’s denial of her application for disability insurance

benefits and supplemental security income. Grandillo challenges the Administrative Law

Judge’s (“ALJ”) determination that her subjective complaints of pain were not entirely

credible, as well as the weight the ALJ afforded to certain evidence and testimony.

Grandillo also challenges the ALJ’s determination that the Commissioner had met her

burden of establishing Grandillo’s capacity for other work, given her impairments, pain,

functional restrictions, age, education, and work experience. See 20 C.F.R. § 404.1520.

For the reasons stated below, we will affirm the District Court’s judgment.

                                             I.

       Grandillo was born on March 1, 1956. She obtained a general equivalence degree

(“GED”) and has past work experience as a nurse’s aide and home health aide. Grandillo

filed for disability benefits on or about June 22, 1999, alleging disability since November

12, 1998 due to lack of movement in her right wrist and shoulder and osteoarthritis. 1

       1
        Grandillo’s summary judgement submission to the District Court implied that
she was alleging a somewhat broader disability, including symptoms of depression.
Grandillo did not base her application for disability insurance benefits and social security
income on her treatment for depression. As such, to the extent that Grandillo’s appeal
depends on the ALJ’s failure to consider those symptoms, her appeal must fail.
                                             2
Grandillo’s application was denied both initially and upon reconsideration. The ALJ

conducted a first hearing on June 15, 2000 and concluded, without the aid of a vocational

expert (“VE”), that there were numerous jobs that Grandillo could perform. The Appeals

Council reversed and remanded because the ALJ had not adduced the testimony of a VE.

After a second hearing on July 13, 2001—at which a VE testified—the ALJ again

rendered a decision concluding that Grandillo was not entitled to benefits. On April 11,

2002, the Appeals Council denied Grandillo’s request to review the ALJ’s decision.

       Subsequently, Grandillo, acting pro se, sought judicial review of the adverse

decision in the United States District Court for the Western District of Pennsylvania

pursuant to 42 U.S.C. § 405(g). On July 14, 2003, the Honorable William L. Standish

adopted the report of Magistrate Judge Francis X. Caiazza recommending that the

District Court grant the Commissioner’s motion for summary judgment and deny

Grandillo’s cross-motion for summary judgment. This timely appeal followed.2

                                            II.

       The District Court exercised jurisdiction pursuant to 42 U.S.C. § 405(g), and

appellate jurisdiction is vested in this Court under 28 U.S.C. § 1291. The role of this

Court is identical to that of the District Court; we must determine whether there is

substantial evidence to support the Commissioner’s decision. Plummer v. Apfel, 186

       2
        Grandillo is represented on appeal. The Government contends that we should
not consider several of Grandillo’s arguments because they were not made in the same
fashion before the District Court. But we will liberally construe Grandillo’s pro se
submissions. See Dluhos v. Strasberg, 321 F.3d 365, 369 (3d Cir. 2003).
                                             3
F.3d 422, 427 (3d Cir. 1999). Substantial evidence means “‘such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.’” Jesurum v. Sec’y of

the U.S. Dep’t of Health & Human Servs., 48 F.3d 114, 117 (3d Cir. 1995) (quoting

Richardson v. Perales, 402 U.S. 389, 401 (1971)). “It is less than a preponderance of the

evidence but more than a mere scintilla.” Id. Overall, the substantial evidence standard

is a deferential standard of review. Schaudeck v. Comm’r of Soc. Sec. Admin., 181 F.3d

429, 431 (3d Cir. 1999).

       The Social Security Administration has promulgated a five-step evaluation

process to determine whether an individual is disabled. See 20 C.F.R. § 404.1520; see

generally Plummer, 186 F.3d at 428. In step one, the Commissioner decides whether the

claimant is currently engaging in substantial gainful activity. If so, the claimant is not

eligible for disability benefits. 20 C.F.R. § 404.1520(a). In step two, the Commissioner

determines whether the claimant is suffering from a severe impairment. If the

impairment is not “severe,” the claimant is not eligible for disability benefits. 20 C.F.R.

§ 404.1520(c). In step three, the Commissioner evaluates whether the evidence

establishes that the claimant suffers from a listed impairment. If so, the claimant is

automatically eligible for benefits. If the claimant does not suffer from a listed

impairment or its equivalent, however, the Commissioner proceeds to the next step. 20

C.F.R. § 404.1520(d). In step four, the Commissioner reviews whether the claimant

retains the “residual functional capacity” to perform his past relevant work. If so, the


                                              4
claimant is not eligible for disability benefits. 20 C.F.R. § 404.1520(e). Finally, in step

five the Commissioner considers whether work exists in significant numbers in the

national economy that the claimant can perform given his medical impairments, age,

education, past work experience, and “residual functional capacity.” If so, the claimant is

not eligible for benefits. 20 C.F.R. § 404.1520(f). In this final step, “the burden of

production shifts to the Commissioner, who must demonstrate the claimant is capable of

performing other available work in order to deny a claim of disability.” Plummer, 186

F.3d at 428.

           An ALJ may reject a claim of disabling pain where “he [has] consider[ed] the

subjective pain and specif[ied] his reasons for rejecting these claims and [has] support[ed]

his conclusion with medical evidence in the record.” Matullo v. Bowen, 926 F.2d 240,

245 (3d Cir.1990). Further, while this Court has acknowledged that “greater weight

should be given to the findings of a treating physician than to a physician who has

examined the claimant as a consultant . . . [,] a statement by a plaintiff's treating physician

that she is 'disabled' or 'unable to work' is not dispositive.” Adorno v. Shalala, 40 F.3d

43, 47-48 (3d Cir. 1994). Rather, “the ALJ must weigh the relative worth of a treating

physician's report against the reports submitted by other physicians who have examined

the claimant.” Id. at 48; see also Jones v. Sullivan, 954 F.2d 125, 129 (3d Cir.1991)

(concluding ALJ correctly determined opinions of treating physicians were not

controlling).



                                               5
       The issues on appeal arise from the ALJ’s general determination of credibility, his

weighing of evidence, and his determination at step five.

                                             III.

       Grandillo raises three criticisms of the ALJ’s review of the evidence: (1) that the

ALJ erred when he determined that her subjective complaints of pain were not entirely

credible; (2) that the ALJ erred by “improperly substituting his own opinion for that of

medical experts, [and] improperly gave [sic] no consideration to [her] struggle with

reflex sympathetic dystrophy;”3 and (3) that the ALJ failed to take into account the

adverse side-effects of Grandillo’s medication.

       As already observed, an ALJ is free to reject claims of disabling pain as long as he

“consider[s] the subjective pain and specif[ies] his reasons for rejecting these claims and

support[s] his conclusion with medical evidence in the record.” Matullo, 926 F.2d at

245. That is precisely what occurred here. It is clear from the ALJ’s extensive

discussion of Grandillo’s application, her testimony, and her medical history that the ALJ

considered all of the evidence—including her allegations of pain—and determined that

her pain did not rise to the severity that she claimed.

       Notably, the ALJ did not entirely dismiss Grandillo’s claims of pain. Instead, the

ALJ partially rejected Grandillo’s characterization of the severity of her pain because,

among other things, she had not been specifically treated for pain for the previous two


       3
           Appellant’s Br. at 17.
                                              6
years, had received medication for muscle spasms and had “less than exemplary”

compliance with physical therapy. A.R. at 19-20. Indeed, the record discloses that in

November, 1999, Grandillo told her occupational therapist that she had done 17(!) loads

of laundry in one day, and that “loosened” her stiff wrist, A.R. at 323, which was a

principal area of her pain complaints. There was substantial evidence in the record to

support the conclusion that Grandillo’s pain was not so severe as to prevent her from

performing substantial employment.

       Grandillo also contends that the ALJ erred by failing to afford appropriate weight

to the testimony of Dr. Alcoff, her treating physician, and to her “struggle with reflex

sympathetic dystrophy.” An ALJ should afford more weight to a treating physician than

a non-treating physician. Adorno, 40 F.3d at 47-48. But in order to discharge his duty,

an ALJ must also “weigh the relative worth of a treating physician's report against the

reports submitted by other physicians who have examined the claimant.” Id. at 48. The

ALJ’s extensive review of the evidence here makes clear that the he afforded appropriate

weight to the testimony and opinion of the medical experts and to Grandillo’s “struggle

with reflex sympathetic dystrophy.” In particular, the ALJ explained that the treating

physician’s conclusions were “inconsistent with his own clinical findings.” A.R. at 22.

Our review of the clinical findings supports this determination. See A.R. at 296-98. We

also agree with the District Court that the ALJ was entitled not to give weight to the

finding of reflex sympathetic dystrophy because it was contradicted by other findings in


                                             7
the record. See A.R. at 310, 312.

       Third, Grandillo contends that the ALJ failed to take into account the adverse

side-effects of Grandillo’s medication. But, as the government observes, the record is

devoid of any evidence that Grandillo reported these adverse side-effects to her treating

physicians or that those physicians adjusted the dosage or nature of her medication to

control for poor toleration. The mere fact that Grandillo was taking medication known to

induce adverse side-effects in some small percentage of patients did not require the ALJ

to assume Grandillo actually experienced those side effects.

       The only evidence in the record supporting Grandillo’s claim that she suffered

adverse side-effects from her medication were her own conclusory statements to that

effect on a survey she filled out to obtain the benefits she now seeks. A.R. at 168-69,

180. Even if such conclusory statements alone were sufficient to undermine the ALJ’s

determination—which they are not—the only side-effects she reports are tiredness and an

inability to “think clearly and concentrate” due to Vicodan, see A.R. at 168-69; and

periodic ulcers due to Celebrex. See A.R. at 180. Of these, only the fatigue and

interference with thought could reasonably be perceived as affecting her ability to work.

But Grandillo’s own testimony suggests that she took Vicodan for just a short period of

time following her initial wrist injury. A.R. at 69. That being so, any side-effects she

may have experienced from taking Vicodan would not have affected her ability to work

in the long term.


                                             8
       In sum, Grandillo has not cited to any medical evidence demonstrating that she

suffered adverse side effects from her medication. Further, her own conclusory

statements would not establish a sufficient ongoing struggle with any side-effects to

undermine the ALJ’s determination. The ALJ’s failure to take into account the side-

effects of Grandillo’s medication was not error.

                                             IV.

       Finally, Grandillo challenges the ALJ’s determination at step five. She asserts that

it is not sufficient for the Commissioner to establish that jobs exist in the national

economy that she might perform. Rather, Grandillo cites Kattes v. Califano, 496 F.

Supp. 385, 388 (E.D. Pa. 1980), for the proposition that the Commissioner must also

show that Grandillo would be able to “compete for” those jobs.

       To be sure, Kattes did state that the Commissioner must make some showing that

“there exists a reasonable possibility that the impaired wage earner can compete with

other workers for the jobs for which he is qualified.” 496 F. Supp. at 388. But Kattes

cited as authority this Court’s decision in Baker v. Gardner, 362 F.2d 864, 868-69 (3d

Cir. 1966). Baker is a far cry from mandating a showing that the applicant be able to

“compete with other workers for the jobs for which he is qualified.” At any rate, in

1967, Congress amended 42 U.S.C. § 423 to add subsection (d)(2)(A), which states:

       An individual shall be determined to be under a disability 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

                                              9
       gainful work which exists in the national economy, regardless of whether
       such work exists in the immediate area in which he lives, or whether a
       specific job vacancy exists for him, or whether he would be hired if he
       applied for work.

(emphasis added). This language stemmed the tide of cases reading into the Social

Security Act a requirement that the applicant be unable to compete with other workers

for the jobs for which he is qualified. See Orzel v. Finch, 445 F.2d 150, 153 & n.2 (7th

Cir. 1971). It is clear, therefore, that Kattes cited Baker without appreciating that the law

had changed in the interim. Obviously, we are not bound by the district court opinion in

Kattes in any event. In light of clear statutory language, we will not saddle the

Commissioner with making a showing that the applicant is unable to compete with other

workers for the jobs for which a he is qualified.

                                            IV.

       For the foregoing reasons, the order of the District Court will be affirmed.




                                             10
