                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-14-2003

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Precedential or Non-Precedential: Precedential

Docket 02-2510




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                                  PRECEDENTIAL

                                             Filed April 14, 2003

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT


                           No. 02-2510


                        LAUREL REEFER
                                 v.
                *JOANNE B. BARNHART,
           COMMISSIONER OF SOCIAL SECURITY
                                *(Pursuant to F.R.A.P. 43(c))
                                Laurel M. Reefer,
                                         Appellant

        Appeal from the United States District Court
          for the Western District of Pennsylvania
             (D.C. Civil Action No. 00-cv-00675)
        District Judge: Honorable Gustave Diamond

                  Argued November 20, 2002
         Before: BARRY and AMBRO, Circuit Judges
                 ACKERMAN,** District Judge

                (Opinion filed: April 14, 2003)




** Honorable Harold A. Ackerman, United States District Judge for the
District of New Jersey, sitting by designation.
                                     2


                           John G. Burt, Esquire (Argued)
                           401 Wood Street
                           Arrott Building
                           Pittsburgh, PA 15222
                                Attorney for Appellant
                           David F. Chermol, Esquire (Argued)
                           James A. Winn, Esquire
                           Mary Beth Buchanan, Esquire
                           Paul E. Skirtich, Esquire
                           Social Security Administration
                           OGC/Region III
                           P.O. Box 41777
                           Philadelphia, PA 19101
                                Attorneys for Appellee


                    OPINION OF THE COURT

AMBRO, Circuit Judge:
  Laurel Reefer appeals a decision discontinuing her Social
Security benefits. Because that decision was not supported
by substantial evidence, we reverse and remand.

                           I.    Background
   In 1989, Reefer began receiving Social Security
Supplemental Security Income (“SSI”) benefits because she
suffered disabling hypertension. In March 1997, the Social
Security Administration (“SSA”) reviewed Reefer’s case and
issued a notice of disability cessation on the ground that
her medical condition had improved to the point that her
disability had ceased.1 Her benefits were discontinued as of
May 31, 1997.

1. 42 U.S.C. § 423(f)(1) states that a benefit recipient may be deemed
ineligible for benefits if it is determined that his or her disability has
ceased, when that determination is supported by substantial evidence of
medical improvement and the claimant is able to engage in substantial
gainful activity. 20 C.F.R. § 416.994(b)(5) provides a seven-step test
under which termination-of-benefits inquiries are to be conducted.
                                  3


   Reefer requested reconsideration of the SSA’s denial of
benefits, alleging continuing disability due to hypertension,
anxiety, tiredness, muscle spasms and pain in her left leg,
shoulder, arm and hand, chest pains, neck pains and
headaches. On reconsideration, the SSA again denied
Reefer benefits. She then sought an administrative hearing,
which was held on September 10, 1998 before an
administrative law judge (the “ALJ”). Reefer appeared pro se
at the hearing, which lasted only twenty minutes. She
testified that she suffered a stroke in 1997 and provided
the ALJ with the names of her two treating physicians —
Dr. Tuchinda, a cardiologist, and Dr. Tabas, her primary-
care physician. She also testified that she was having
seizures, for which her neurologist ordered video
monitoring. At the conclusion of the hearing, the ALJ said
that he would obtain additional medical records and, if
necessary, would call for another hearing. The ALJ did
obtain some of Reefer’s medical records. However, he issued
his opinion without the benefit of a second hearing and
without requesting testimony from either of Reefer’s
treating physicians. The record before the ALJ contained no
medical report concerning the 1997 stroke.
  Between the date of the hearing and the ALJ’s decision,
Reefer underwent elective surgery in 1999 to remove
pressure from her brainstem. Following this surgery, she
suffered a second stroke. However, because the ALJ did not
request medical records detailing these events, they also
were not before him at the time of his decision. Reefer
submitted those records both to the District Court and to
this Court on appeal.2
  In his May 26, 1999 decision, the ALJ found that Reefer
was not entitled to SSI. First, the ALJ found that Reefer
does not suffer from any of the impairments described in
20 C.F.R., Pt. 404, Subpt. P, App. 1, which would make her
per se disabled. He said that her “hypertension[,] though
severe, is well-controlled . . . with only situational episodic

2. Because these records were not before the ALJ, the Commissioner
argues that we may not consider them in determining whether the ALJ’s
decision was supported by substantial evidence. Matthews v. Apfel, 239
F.3d 589, 594 (3d Cir. 2001). We do not consider them for this purpose.
                              4


elevation,” and that no medical evidence supported her
alleged mental and neurological impairments. He also
found that Reefer’s “activities of daily living are . . . not
consistent with an individual experiencing total[ ]
disability,” and that her “statements concerning her
impairments and their impact on her ability to work are not
entirely credible.” In so finding, the ALJ noted that “[i]n her
Daily Activities Questionnaire, the claimant indicated that
she can independently care for her personal needs. She
cooks, does dishes, dusts, vacuums, and does other
housework.” The ALJ went on to find that “[a]lthough she
indicated on her Fatigue and Pain Questionnaires that both
pain and fatigue interfere substantially with her daily
activities, this is not supported by her own statements, nor
by the objective medical evidence in record.” Finally, the
ALJ stated that “the claimant retains the residual
functional capacity to perform the exertional demands of at
least light work, or work which requires maximum lifting of
20 pounds and frequent lifting of up to 10 pounds . . . . The
evidence supports a finding that she is able to lift and carry
20 pounds. The claimant has no significant non-exertional
limitations which narrow the range of work she can
perform, as demonstrated by the objective medical
evidence.”
  In this context, the ALJ concluded that Reefer was
capable of returning to her past relevant work as a cleaner.
The ALJ also noted that application of Reefer’s residual
functional capacity to the Medical-Vocational Guidelines set
out in 20 C.F.R., Pt. 404, Subpt. P, App. 2, confirmed that
there are jobs in the economy she can perform.
   Reefer filed a request for review, which the Appeals
Council denied. She then filed a complaint in the District
Court, which granted summary judgment in favor of the
Commissioner. At issue here is whether the ALJ’s
determinations that Reefer is no longer disabled and can
find work in the economy are supported by substantial
evidence. Reefer asks that we either (1) reverse the District
Court’s decision and grant her SSI benefits or (2) remand
the claim to the ALJ for additional testimony and related
proceedings.
                               5


        II.   Jurisdiction and Standard of Review
  We have subject matter jurisdiction pursuant to 42
U.S.C. § 405(g). Appellate jurisdiction exists under 28
U.S.C. § 1291.
   We examine the record to determine whether substantial
evidence supported the ALJ’s findings. Smith v. Califano,
637 F.2d 968, 970 (3d Cir. 1981). “ ‘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 conclusion.’ ” Id. (quoting
Richardson v. Perales, 402 U.S. 398, 401 (1971)). Stated
differently, this standard is met if there is sufficient
evidence “to justify, if the trial were to a jury, a refusal to
direct a verdict.” Universal Camera Corp. v. NLRB, 340 U.S.
474, 477 (1951).
   The “substantial evidence” standard of review requires
that we review the whole record. Smith, 637 F.2d at 970
(“Despite the deference to administrative decisions implied
by this standard, appellate courts retain a responsibility to
scrutinize the entire record and to reverse or remand if the
Secretary’s decision is not supported by substantial
evidence.”). Further, in evaluating whether substantial
evidence supports the ALJ’s findings, we are mindful that
“leniency [should] be shown in establishing the claimant’s
disability, and that the Secretary’s responsibility to rebut it
[should] be strictly construed . . . . [D]ue regard for the
beneficent purposes of the legislation requires that a more
tolerant standard be used in this administrative proceeding
than is applicable in a typical suit in a court of record
where the adversary system prevails.” Dobrowolsky v.
Califano, 606 F.2d 403, 407 (3d Cir. 1979) (internal
quotation marks omitted) (quoting Hess v. Sec’y of Health,
Educ. & Welfare, 497 F.2d 837, 840 (3d Cir. 1974)).

                      III.   Discussion
  We reverse for two reasons. First, the ALJ did not
adequately develop the record, a duty he owed Reefer
because she appeared pro se. Second, he neglected to
explain why he credited some record evidence but rejected
                              6


other evidence. In this context, we find that substantial
evidence does not support the ALJ’s opinion.
A.   The ALJ failed adequately to develop the record.
   An ALJ owes a duty to a pro se claimant to help him or
her develop the administrative record. “When a claimant
appears at a hearing without counsel, the ALJ must
‘scrupulously and conscientiously probe into, inquire of,
and explore for all the relevant facts.’ ” Key v. Heckler, 754
F.2d 1545, 1551 (9th Cir. 1985) (quoting Cox v. Califano,
587 F.2d 988, 991 (9th Cir. 1978)); Dobrowolsky, 606 F.2d
at 407 (noting that an ALJ must “assume a more active role
when the claimant is unrepresented”). See generally
Ventura v. Shalala, 55 F.3d 900, 902 (3d Cir. 1995) (“ALJs
have a duty to develop a full and fair record in social
security cases.”).
   While we do not prescribe any particular procedures that
an ALJ must follow, see Vt. Yankee Nuclear Power Corp. v.
Natural Res. Def. Council, Inc., 435 U.S. 519, 524-25 (1978),
we believe that the procedures the ALJ did follow were
insufficient to develop the record in this case. See Miranda
v. Sec’y of Health, Educ. & Welfare, 514 F.2d 996, 998 (1st
Cir. 1975) (ALJ’s investigation must be “not wholly
inadequate under the circumstances.”); see also Lashley v.
Sec’y of Health & Human Servs., 708 F.2d 1048, 1052 (6th
Cir. 1983) (courts determine the adequacy of an ALJ’s
investigation on a case-by-case basis). The ALJ did not
follow up on Reefer’s testimony about her 1997 stroke, an
occurrence of obvious relevance to this disability
determination. Upon finding that the medical records before
him did not refer to this stroke, the ALJ had a duty to
investigate further. See Dobrowolsky, 606 F.2d at 407. For
example, he could have requested additional medical
records or held another hearing to receive testimony from
Reefer’s treating physicians about the stroke. The ALJ did
not do this and did not even mention Reefer’s 1997 stroke
in his opinion. While the record is over 700 pages, that it
lacks detail about Reefer’s stroke makes it “inadequate
under the circumstances.” Miranda, 514 F.2d at 998.
  Second, while the ALJ found Reefer’s “statements
concerning her impairments and their impact on her ability
                              7


to work . . . not entirely credible,” he had an insufficient
basis to make this conclusion. We would ordinarily defer to
an ALJ’s credibility determination because he or she has
the opportunity at a hearing to assess a witness’s
demeanor. See, e.g., Atl. Limousine, Inc. v. NLRB, 243 F.3d
711, 718 (3d Cir. 2001). However, the ALJ posed no
questions to Reefer that would enable him to make such a
credibility determination. He did not ask her, for example,
to describe her pain, her daily activities and limitations,
how much she can lift, how far she can walk, how long she
can sit or stand without discomfort, or whether she has
difficulty concentrating. Compare Lashley, 708 F.2d at
1052 (criticizing ALJ when hearing was only 25 minutes
long and claimant was “only superficially questioned
concerning his daily activities and his physical limitations”).
Rather, the ALJ appeared to base his credibility
determination on the fact that Reefer’s medical records did
not explain why she was experiencing the symptoms she
described in her responses to questionnaires. By relying
solely on those responses, the ALJ was not able to assess
Reefer’s demeanor in answering those questions, which
could have shed additional light on her credibility.
   Moreover, Reefer’s medical records reflect that she
consistently complained to her treating physicians about
pain, body tremors leading to stumbling, dizzy spells,
nausea, and headaches. Those records also reflect that
Reefer underwent a cranial CT scan because she
experienced frequent headaches. That scan indicated
possible abnormalities. The January 4, 1999 evaluation of
Reefer by Dr. Baraff (a neurologist) was inconclusive, but he
was unsure whether she might have an intracranial
aneurysm, partial seizures, or migraines. Having seen these
complaints in the medical record, the ALJ was not at liberty
to ignore them. Rather, he had a duty to consider seriously
Reefer’s subjective complaints of pain and to probe further.
See Baerga v. Richardson, 500 F.2d 309, 312 (3d Cir. 1974)
(“In addition to objective medical facts and expert medical
opinions, the Hearing Examiner must consider the
claimant’s subjective evidence of pain and disability, as
corroborated by family and neighbors; and all of these
factors must be viewed against the applicant’s age,
                                   8


educational background and work experience.”) (quoting
Mode v. Celebrezze, 359 F.2d 135, 136 (4th Cir. 1966)).
  Finally, while the ALJ did request certain of Reefer’s
medical records, he did not have before him medical
records from 1999 as well as correspondence addressed to
one of Reefer’s treating physicians. These records discuss
the surgery to remove pressure from her brainstem as well
as her 1999 stroke. That the ALJ did not arrange with
Reefer’s treating physicians to receive them suggests that
his document request was too narrow in scope. We need
not decide whether the ALJ’s failure to obtain these 1999
records, without more, provides a reason for remand3
because we believe that remand is otherwise warranted. See
Dobrowolsky, 606 F.2d at 408-09 (remanding case to ALJ
when Social Security claimant was prejudiced by lack of
counsel and ALJ’s “narrow view of his role”). On remand,
however, the ALJ should obtain these records.
B. The ALJ failed to explain why he credited some
evidence and discredited other evidence.
  The ALJ concluded that “the claimant’s hypertension has
been essentially well-controlled with medication since 1995,
with only situational episodic elevation.” In so concluding,
he insufficiently explained numerous blood pressure
readings and treating physicians’ comments that suggested
otherwise. See Fargnoli v. Massanari, 247 F.3d 34, 42 (3d
Cir. 2001) (“Where there is conflicting probative evidence in
the record, we recognize a particularly acute need for an
explanation of the reasoning behind the ALJ’s conclusions,
and will vacate or remand a case where such an
explanation is not provided.”). For example, a blood
pressure reading taken on February 8, 1997 was 160/110.

3. “[E]vidence first presented to the district court [and not to the ALJ]
must not only be new and material but also be supported by a
demonstration by claimant of ‘good cause for not having incorporated the
new evidence into the administrative record.’ ” Matthews v. Apfel, 239
F.3d 589, 592 (3d Cir. 2001) (quoting Szubak v. Sec’y of Health &
Human Servs., 745 F.2d 831, 833 (3d Cir. 1984), and citing 42 U.S.C.
405(g)). If that standard is met, a reviewing court may remand a case to
the ALJ to consider the new evidence. Id. We do not consider whether
this standard is met because we remand for other reasons.
                             9


At that time, a physician commented “[c]ontrol not good”
with respect to her hypertension. At the time of an
emergency room admission on March 6, 1997, Reefer’s
pressure was 187/102. On March 24, 1998, her blood
pressure was 168/100, and on April 7, 1998, her pressure
was 170/100. All these readings are consistent with
moderate or severe hypertension. The Merck Manual of
Diagnosis and Therapy 1633 (Mark H. Beers & Robert
Berkow, ed., 17th ed. 1999). The ALJ explained away these
readings as merely “situational episodic elevation.” He
neglected, however, to describe what “situation” caused this
elevated blood pressure. This conclusory explanation was
especially deficient in light of Reefer’s history of
hypertension (indeed, the very reason she received SSI
benefits beginning in 1989). We therefore do not believe
that substantial evidence supports the ALJ’s conclusion
that Reefer’s hypertension is now controlled. To the
contrary, these elevated blood pressure readings,
considered together with Reefer’s medical records as a
whole, strongly suggest that her medical condition
remained unimproved.
   Also, in determining Reefer’s residual functional capacity
for work, the ALJ did not explain why he chose to credit
one medical report over another. See Fargnoli, 247 F.3d at
42; Cotter v. Harris, 642 F.2d 700, 705-07 (3d Cir. 1981).
The ALJ had before him three physicians’ reports
addressing Reefer’s functional limitations. One form,
completed by Dr. Stevens on February 8, 1997, states that:
(1) Reefer has no physical impairments; (2) she can carry
10 pounds occasionally; (3) she can stand/walk for less
than 2 hours; (4) she can sit for less than 6 hours; (5) she
can push/pull to an unlimited extent, other than as
mentioned in (2) above for carrying; (6) she can climb,
balance, stoop, kneel, crouch, and crawl occasionally; (7)
she has unlimited ability in the areas of reaching, handling,
dexterity, seeing, hearing, and speaking; and (8) she should
avoid exposure to moving machinery, temperature
extremes, noise, and fumes, odors, and gases. A second
form, completed by a state agency physician on March 18,
1997, concluded that Reefer was capable of “medium levels
of exertion.” He found that she could: (1) occasionally lift
and/or carry 50 pounds; (2) frequently lift and/or carry 25
                               10


pounds; (3) stand and/or walk 6 hours per day; (4) sit
about 6 hours a day; and (5) push/pull to an unlimited
extent. Finally, a form completed by Dr. Baraff on January
4, 1999 states that: (1) Reefer’s impairment does not affect
her ability to lift, carry, sit, stand, walk, see, feel, handle,
speak, reach, hear, push, or pull; (2) she can climb, stoop,
kneel, balance, crouch, and crawl for up to 1/3 of an eight-
hour day; and (3) her impairment limits her ability to work
in the vicinity of moving machinery or heights.
  Despite these inconsistent evaluations (e.g., Dr. Stevens
stated that Reefer could carry 10 pounds only occasionally
while the state agency physician stated she could carry 50
pounds occasionally and Dr. Baraff said that her carrying
ability was unaffected by her impairment), the ALJ
concluded that Reefer “retains the residual functional
capacity to perform the exertional demands of at least light
work, or work which requires maximum lifting of 20
pounds and frequent lifting of up to 10 pounds . . . . The
evidence supports a finding that she is able to lift and carry
20 pounds.” In so holding, the ALJ disregarded Dr.
Stevens’s contrary report without explaining why he did so,
thereby ignoring our mandate in Fargnoli. Accordingly,
remand is required.

                       IV.   Conclusion
   Because of the deficiencies in the ALJ’s determination,
the District Court erred in affirming it. The ALJ failed to
develop the record adequately in this pro se case. In
assessing Reefer’s residual functional capacity for work, he
also failed to explain why he credited certain medical
reports and not evidence more favorable to Reefer. We
therefore reverse and remand so that the District Court
may remand to the ALJ with directions to address these
issues. In so doing, the ALJ also should examine records
relating to Reefer’s 1999 stroke.

A True Copy:
        Teste:

                    Clerk of the United States Court of Appeals
                                for the Third Circuit
