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


6-26-2003

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Precedential or Non-Precedential: Non-Precedential

Docket No. 02-3309




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                                                               NOT PRECEDENTIAL

                   IN THE UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                 ____________________

                                      NO. 02-3309
                                  ___________________

                                       SOON OH,
                                                       Appellant
                                             v.

                             * JO ANNE B. BARNHART,
                   Commissioner of the Social Security Administration
                             *(Pursuant to F.R.A.P. 43(c))
                                  ________________

                    On Appeal From the United States District Court
                        For the Eastern District of Pennsylvania
                                (D.C. No. 00-cv-04957)
                     District Judge: Honorable R. Barclay Surrick
                    _______________________________________

                       Submitted Under Third Circuit LAR 34.1(a)
                                   May 19, 2003

               Before: SCIRICA, Chief Judge, NYGAARD and BECKER,
                                       Circuit Judges

                                  (Filed June 26, 2003)

                                _____________________

                                      OPINION
                                _____________________

BECKER, Circuit Judge.

      This is an appeal by plaintiff Soon Oh whose Social Security disability claim was

dismissed administratively and on appeal to the District Court. Judge Surrick, in a
typically thoughtful opinion, found substantial evidence to support the ALJ’s decision,

and granted summary judgment for the Commissioner. In so doing, however, he noted

significant flaws in the Administrative Law Judge’s (ALJ) report. 1

         The ALJ’s decision turned on her discounting the reports of Oh’s treating

physician, Dr. Young Nam Kim, notwithstanding that in disability claims, a well-

supported opinion from a treating physician is given deference. We wrote in Morales v.

Apfel on this subject:

         A cardinal principle guiding disability eligibility determinations is that the
         ALJ accord treating physicians’ reports great weight, especially “when their
         opinions reflect expert judgment based on a continuing observation of the
         patient’s condition over a prolonged period of time.”

225 F.3d 310, 317 (3d Cir. 2000)(quoting Plumer v. Apfel, 186 F.3d 422, at 429 (3d Cir.
1999). 2


  1
      Judge Surrick wrote:
         In her decision, the ALJ apparently assumed that Drs. Mits and Specht were
         Oh’s treating physicians, along with Dr. Kim, stating that both Drs. Mits
         and Specht examined Oh on multiple occasions. Careful review of the
         record does not, however, reveal the basis for this conclusion. The record is
         unclear as to Oh’s relationship with Drs. Mits and Specht, although it
         appears to indicate that Dr. Mits may be a disability examiner associated
         with the Social Security Administration, and that he never personally
         examined Oh. Furthermore, the medical opinion that the ALJ attributed to
         Dr. Specht appears to belong to Dr. Kim as it is Dr. Kim’s signature and not
         Dr. Specht’s signature that appears on the form from which the ALJ
         apparently derived the opinion. The medical opinion that the ALJ attributed
         to Dr. Mits is unsigned. In any event, there is no basis on which to
         conclude that Drs. Mits and Specht did or did not personally examine Oh.
  2
    Specific standards for the evaluation of a treating physician’s opinion are incorporated
in the Commissioner’s Regulations at 20 C.F.R. §416.927(d). This regulation provides
that if a treating physician’s opinion is well-supported by medically acceptable clinical

                                               2
       In Oh’s submission, the ALJ’s evaluation of Dr. Kim’s opinion was materially

deficient:

       The ALJ did not properly identify the medical evidence of record. She
       failed to evaluate the opinion of the state agency reviewers and failed to cite
       any medical opinion contradicting the opinion of Dr. Kim. Finally, in
       reviewing medical evidence of record, the ALJ engaged in speculation and
       impermissible substitution of her opinion for that of Oh’s treating
       physician. As a result, it cannot be said that her findings and conclusions
       were supported by substantial evidence.

As will appear from the following analysis, we agree.

       In view of this challenge, the best place to start is with the allegedly offending

portions of the ALJ’s opinion, which we now rescribe:

       Simply stated, the objective medical evidence does not support the severe
       symptomatology and limitations asserted by the claimant. The claimant
       testified that she does almost nothing all day and that her husband does the
       cleaning, cooking, and shopping. The claimant also testified, however, that
       her husband receives supplemental security income benefits for disability,
       based on hypertension and diabetes mellitus. There is an apparent
       inconsistency in these two statements as it is difficult to imagine an elderly
       (age 70) individual with disabling hypertension and diabetes performing
       tasks too physically demanding for his 62 year old wife.

       I note that Dr. Kim’s assessment would limit the claimant to less than
       sedentary work. However, in light of the minimal objective findings and
       the dearth of treatment, I find this to be inconsistent with the medical
       evidence. The claimant does have some pathology of the lumbar spine, but
       not to the degree reported by Dr. Kim or testified to by the claimant.


and laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence of record, it will be given controlling weight. 20 C.F.R. §416.927(d)(2). If the
opinion is not given controlling weight, it may still merit substantial weight and the
adjudicator is directed to consider the following additional factors: length of the treatment
relationship and frequency of examination, nature and extent of the treatment
relationship, supportability, and consistency. 20 C.F.R. §416.927(d)(2).

                                              3
       Accordingly, I do not give Dr. Kim’s assessment or the claimant’s
       testimony substantive or controlling weight. However, there are times
       when a treating physician’s opinion is not given controlling weight. In
       order for a treating physician’s opinion to warrant controlling weight, the
       opinion must be well supported by medically acceptable clinical and
       laboratory diagnostic techniques and consistent with the other substantial
       evidence in your case record (20 CFR 416.927(2)). Clearly, Dr. Kim’s
       limitations are not supported by the clinical evidence.

       As noted above, the claimant clearly has some pathology of her lumbar
       spine. The September 1994 magnetic resonance imaging scan of the lumbar
       spine showed a disc herniation and spinal stenosis, but only at L4-5; all the
       remaining discs were normal. Further, the x-rays taken at that time showed
       only mild osteophytosis. Additionally, the October 1998 computed axial
       tomography scan showed only discogenic disease at L4-5 and mild to
       moderate stenosis at that level. There has been no finding of disc space
       narrowing or neural foraminal or canal encroachment. The claimant’s
       complaints of radiating pain to the lower extremity have not been confirmed
       by electrodiagnostic testing. There is no evidence of sensory deficits. The
       claimant has not required any surgery, has not had any therapy, does no
       exercises, and takes only over-the-counter Tylenol for pain relief as needed.
       She does not even take an anti-inflammatory medication. Additionally, the
       claimant retains a normal gait and does not require any assistive device of
       ambulation. The claimant does not receive frequent medical care and only
       sees a physician about three times a year. I find that the claimant’s
       complaints of debilitating pain are not supported given the lack of medical
       treatment.

       Based on the entire record, I find that the claimant retains the residual
       functional capacity for the full range of light exertional work.
       Consequently, th claimant retains the ability to perform her past relevant
       work. Therefore, she is not disabled, as defined by the Social Security Act,
       as amended.

In addition to the flaws identified by Judge Surrick, see supra n. 1, i.e., failure to properly

identify the medical evidence of record, we note the following, all of which seriously

undermines the ALJ’s report:



                                               4
       1. The medical record is unequivocal that an MRI of plaintiff’s lumbar spine on

September 1, 1999 showed posterior central disc herniation at L4-5 along with bilateral

ligamentum flavum and bilateral facet hypertrophy causing spinal stenosis at that level. A

CT scan of the lumbar spine taken on October 1, 1998 showed degenerative disease at

L4-5 with mild to moderate spinal stenosis. In this study, facet joint hypertrophy was

described as mild and ligamentous hypertrophy was described as moderate. However, an

x-ray of the lumbosacral spine taken on September 1, 1994 showed mild osteophytosis.

We are hard pressed to describe these objective findings as “minimal.” The ALJ does not

rely on any medical evidence to justify this characterization, so it appears to be a medical

judgment of her own. The same is true of the ALJ’s statement that the claimant does

have some pathology of her lumbar spine but not to the degree reported by Dr. Kim or

testified to the claimant.

       2. Equally unsupported are the ALJ’s comments about the findings on physical

examination. Records from Jaisohn Medical Center dated September 24, 1995 and

December 13, 1996 confirm diminished reflexes in the left lower extremity. The report of

December 13, 1996 from Dr. Kim contains a finding of decreased motor strength (3/5) in

the left lower extremity. These are significant findings, and the fact that these complaints

have not been confirmed by electro-diagnostic testing has no force in the absence of

medical opinion that such testing would be determinative. The opinion of the ALJ, who

is not a medical expert, is insufficient.



                                             5
       3. The ALJ relies on the fact that the plaintiff has had no surgery, therapy or

exercise program. But there is nothing in the record that any physician thought that these

modalities were appropriate for this woman approaching her mid-60's. The same is true

for the ALJ’s comment about anti-inflammatory drugs.

       4. It is true that the plaintiff sees physicians “only three times a year,” but that

hardly seems inadequate, much less a basis for denying the claim.

       5. While the ALJ also found that the plaintiff has the residual capacity to perform

a full range of light exertional work, including her past work as a day worker and dry

cleaner, we cannot divine the basis for this conclusion in the record. We add that a

number of disability evaluation reports in the record seem to support Oh’s claims

(although it is not clear who the reporters are or whether they examined Oh).

       In sum, it is apparent to us that the ALJ did not give the required deference to the

opinion of the treating physician, see Morales, supra, which was based on both objective

and clinical findings. The ALJ also appears to have engaged in speculation and made

medical judgments on her own in the absence of record support, which is beyond the

province of an ALJ. See Kent v. Schweiker, 710 F.2d 110 (3d Cir. 1983). More

specifically, the ALJ does not cite medical evidence or opinions to contradict Dr. Kim’s

evaluation. Also, for reasons noted above, the ALJ’s opinion cannot be sustained on

(lack of) credibility grounds.

       Accordingly the decision of the ALJ cannot stand. This is not, however, a proper



                                               6
case to direct the award of benefits. The medical record developed before the ALJ is

deficient, as are the ALJ’s findings. Accordingly, the judgment of the District Court will

be reversed and the case remanded to the District Court with directions to remand to the

Commissioner for further proceedings.




TO THE CLERK:

              Kindly file the foregoing opinion.




                                          /s/ Edward R. Becker
                                          Circuit Judge




                                            7
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