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


12-11-2003

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2137




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                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                    No. 03-2137


                                JOHN CADILLAC,
                                           Appellant

                                          v.

                          JO ANNE B. BARNHART,
                    COMM ISSIONER OF SOCIAL SECURITY


           APPEAL FROM THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF NEW JERSEY
                          D.C. Civil No. 01-cv-03115
               District Judge: The Honorable William J. Martini


                     Submitted Under Third Circuit LAR 34.1(a)
                               November 18, 2003


           Before: RENDELL, BARRY, and CHERTOFF, Circuit Judges


                         (Opinion Filed: December 10, 2003)


                                     OPINION




BARRY, Circuit Judge

     On October 23, 1995, John Cadillac filed an application for Disability Insurance
Benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-34. The

Commissioner of the Social Security Administration (“Commissioner”) denied his claim

on March 19, 1996. Cadillac requested reconsideration, which was denied on May 1,

1996, and an administrative hearing, which was held on June 17, 1997. On February 4,

1998, the Administrative Law Judge (“ALJ”) issued a written decision denying benefits.

Cadillac sought review of the ALJ’s decision with the Office of Hearings and Appeals in

March of 1998. Approximately three years later, on April 27, 2001, the Office denied the

petition, which allowed Cadillac to press his claim in federal court. On February 18,

2003, the District Court affirmed the decision of the ALJ, and Cadillac appeals to this

Court. We, more than eight years after Cadillac first sought benefits, will reverse and

remand.

       Before proceeding to the merits, we pause to register our disappointment and

disapproval at the unconscionable delay that has plagued Cadillac’s application at nearly

every level of the review process. Sadly, this is not the first occasion we have had to

voice our concerns. See, e.g., Morales v. Apfel, 225 F.3d 310, 320 (3d Cir. 2000)

(expressing disapproval that “the disability determination has already taken ten years”);

Plummer v. Apfel, 186 F.3d 422, 435 (3d Cir. 1999) (recognizing six years as an

“inexcusable passage of time” between claimant’s request for benefits and reversal in the

Court of Appeals); Woody v. Secretary of Health & Human Services, 859 F.2d 1156,

1162-63 (3d Cir. 1988) (directing that disability benefits be paid after more than eight



                                             2
years of administrative and district court proceedings); Podedworny v. Harris, 745 F.2d

210, 222 (3d Cir. 1984) (directing award of benefits after more than five years of

proceedings). It should go without saying, but apparently bears repeating, that claimants

seeking Social Security disability benefits deserve better. On remand, we fully expect the

Social Security Administration to expedite its handling of Cadillac’s case.




                                     I. BACKGROUND

       In 1989, while living in Miami, Cadillac underwent back surgery. Based on the

evidence in the record, it is fair to say that after this surgery, he never fully regained his

health. His recovery from the operation was slow and incomplete. He did not return to

his work as a pharmacist until sometime in 1991, and by June of 1993, he had ceased

work altogether, due in large part to his enduring back pain. His health was further

compromised by Hepatitis C, which it appears he contracted not long after the surgery.

       In 1993, Cadillac moved to New Jersey, where his then-eighty-eight year old aunt

could care for him. He lacked health insurance, but received medical care at the Jersey

City Medical Center (“Medical Center”), which assisted him in filing for Disability

Insurance Benefits in September 1995.

       On February 29, 1996, Cadillac was examined by Dr. Ronald Bagner. Dr. Bagner

ultimately diagnosed Cadillac with lumbar radiculopathy. That same month, a non-

examining State Agency physician considered his chronic hepatitis; in April, a different



                                               3
non-examining State Agency physician considered his back condition. The State Agency

physicians had available for review the medical records from the Medical Center and

from Dr. Bagner. Each physician completed a Residual Functional Capacity Assessment

form (“RFC”). They concluded that Cadillac was capable of engaging in light activity,

which entailed lifting or carrying not more than 20 pounds occasionally or ten pounds

frequently, and standing or walking 6 hours in an eight-hour day.

        On May 15–approximately a month after the State Agency physicians had

completed their assessments – Cadillac was admitted to Palisades General Hospital, via

ambulance, with complaints of acute back pain. The hospital records indicate that he

complained of a back spasm that began on April 25. While at the hospital, Dr. Frederick

P. Ayers conducted a CT scan of Cadillac’s back and made a number of diagnoses.1

Cadillac was discharged on May 27, 1997.

        On December 1, 1997, Dr. Mitchell Steinway–an orthopedic surgeon–examined

Cadillac. Dr. Steinway’s records indicate that he treated Cadillac for a lumbar spasm.

Dr. Steinway classified his problem as Class III, which was defined as having a functional

capacity adequate to perform only little or none of the duties of usual occupation or self

care.

        On December 30, Dr. Albert G. Mylod–another orthopedic surgeon–responded to



   1
    Dr. Ayers concluded that Cadillac’s distress was probably secondary to epidural
fibrosis, but he could not rule out a disc herniation fragment. He further noted borderline
canal stenosis and neural foraminal narrowing, in addition to osteoarthritis.

                                             4
interrogatories after reviewing Cadillac’s medical records. Dr. Mylod did not examine

Cadillac, but he did have available for review the medical records from the May 1997

visit to Palisades General Hospital and the December 1997 visit to Dr. Steinway, in

addition to the Medical Center records and the records from the 1996 visit to Dr. Bagner.

Dr. M ylod indicated that he did not find any of Cadillac’s individual impairments to

satisfy the Social Security Listing of Impairments.2 Dr. Mylod did, however, conclude

that his impairments, in combination, were equal in severity to a listed impairment. Dr.

Mylod’s RFC concluded that Cadillac was (1) able to sit for a total of three hours in an

eight hour day, for periods of no more than 30 minutes; (2) able to stand for two hours in

an eight hour day, in periods no longer than 20 minutes; and (3) not able to pick up more

than ten pounds.




                                       II. DISCUSSION

          We have jurisdiction to consider this appeal under 28 U.S.C. § 1291. We must

affirm the District Court if it correctly determined the Commissioner’s decision to be

supported by substantial evidence. 42 U.S.C. § 405(g); Hartranft v. Apfel, 181 F.3d 358,

360 (3d Cir. 1999). By substantial evidence, we do “not mean a large or considerable

amount of evidence, but rather, ‘such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.’” Pierce v. Underwood, 487 U.S. 552, 565



   2
       See 20 C.F.R. pt. 404, subpt. P, app.1.

                                                 5
(1988) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Our task

demands that we determine whether, in light of the entirety of the record, the ALJ’s

conclusions are rational. Gober v. Matthews, 574 F.2d 772, 776 (3d Cir. 1978)

(recognizing “the court’s ‘duty to scrutinize the record as a whole to determine whether

the conclusions reached are rational.’”) (citation omitted).

          To determine whether a claimant qualifies for Disability Insurance Benefits, the

Commissioner must consider, in sequence: (1) whether the claimant is currently engaged

in substantial gainful activity; (2) if not, whether the claimant has a severe impairment;

(3) if so, whether the severe impairment meets or equals the criteria of an impairment

listed in the Social Security Administration Regulations;3 (4) if not, whether the

claimant’s impairment prevents the performance of past relevant work; and (5) if so,

whether the claimant can perform any other work in the national economy, given the

claimant’s age, education, experience, and health. 20 C.F.R. §§ 404.1520; Plummer, 186

F.3d at 428.

          After reciting the medical evidence she found relevant to Cadillac’s application,

the ALJ explained her evidentiary calculus:

          The above medical evidence and the absence of significant findings all
          support the residual functional capacity suggested by the State Agency
          physicians. Accordingly, the undersigned gives controlling weight to the
          State Agency physicians who reviewed the claimant’s medical records. The
          undersigned gives little weight to the form submitted by Dr. Steinway



   3
       See 20 C.F.R. pt. 404, subpt. P, app.1.

                                                 6
       because Dr. Steinway had only seen the claimant on the date of the report.
       It is unclear from Dr. Steinway’s report whether the claimant’s problem on
       December 1, 1997 was an exacerbation or a spasm, or the amount of time
       the Doctor would categorize the claimant’s orthopaedic problem as
       functionally a Class III condition. The report from Dr. Mylod is interesting,
       but not controlling. Dr. Mylod, as an orthopaedist, understands that the
       claimant does not meet the 1.05C Listing; however, to substitute a liver
       biopsy done in October 1995 for an element in the 1.05C Listing to suggest
       an “equal” situation is stretching the concept of equaling. There is no
       current document to suggest that while the claimant has had chronic
       hepatitis whether it is currently active and when is the last time it was
       active. While Dr. Mylod is a respected orthopaedist, he has never examined
       the claimant and he is basing his opinion of a substitution for an equaling
       situation with a biopsy performed in October 1995. Consequently, the
       undersigned gives minimal weight to this opinion as well.

A-19-20.

       Cadillac contests the ALJ’s denial of benefits in two regards. First, he contends

that the ALJ failed to support the determination at Step Three with substantial evidence.

Second, he asserts that the ALJ announced an RFC that is not justified by substantial

evidence. We agree on both counts.




A.     Combination of Impairm ents

       At Step Three of the sequential analysis, the ALJ must compare the claimant’s

medical evidence to a list of impairments presumed severe enough to preclude any gainful

work. 20 C.F.R. § 404.1520(d). We have explained that at the third step of analysis,

“this Court requires the ALJ to set forth the reasons” for his or her decision. Burnett v.

Comm’r of Soc. Sec. Admin., 220 F.3d 112, 118-119 (3d Cir. 2000) (citing Cotter v.



                                              7
Harris, 642 F.2d 700, 704-05 (3d Cir. 1981)). 4 Our inquiry, however, does not end there.

We do not merely check for a token recitation explaining the ALJ’s reasoning.

       The ALJ determined that Cadillac did not meet any of the listings or its equivalent,

and proceeded to Step Four. Listing 1.05C of Appendix 1 to Subpart P of 20 C.F.R. §

404 details disorders of the spine. Listing 5.05F details impairments of the liver. The

ALJ explained why she rejected a match between Cadillac’s medical evidence and the

individual relevant listings. As to the back impairment, she observed, Cadillac’s own

expert did not contend that he satisfied Listing 1.05C. The ALJ also explained that the

evidence in the record did not establish the persistence of the chronically active nature of

Cadillac’s hepatitis, as required by Listing 5.05F(3). With regard to both of these

determinations, the ALJ’s decision is supported by substantial evidence.

       But the ALJ’s comparison of medical evidence to the listing of impairments should

not have ended there, and the ALJ erred by not adequately considering the cumulative

effect of Cadillac’s impairments. As the regulations explain, multiple impairments must




   4
    Cadillac excerpts conclusory statements from the ALJ’s decision and would have us
fault that decision because the language is similar to that rejected in Burnett. But Burnett
was not about magic words. In Burnett, we explained our concerns with conclusory
statements: they are “beyond meaningful judicial review.” Burnett, 220 F.3d at 119. The
single sentence we there condemned encapsulated the ALJ’s consideration of Step Three
“in its entirety.” Burnett, 220 F.3d at 119 (emphasis added). In contrast, as the District
Court correctly recognized, the ALJ’s Step Three determination regarding Cadillac does
not come unadorned; the ALJ “subsequently devotes over three pages in her decision to
analyzing and weighing the medical evidence presented by the parties.” A-7. Where, as
here, the ALJ provides sufficient material to allow meaningful judicial review, Burnett is
inapposite.
                                              8
be considered in combination:

       If you have more than one impairment, and none of them meets or equals a
       listed impairment, we will review the symptoms, signs, and laboratory
       findings about your impairments to determine whether the combination of
       your impairments is medically equal to any listed impairment.

20 C.F.R. § 404.1526(a). See also 20 C.F.R. § 404.1523 (explaining that in assessing

eligibility for benefits, the Commissioner “will consider the combined effect of all . . .

impairments without regard to whether any such impairment, if considered separately,

would be of sufficient severity”).

       The ALJ rejected Dr. Mylod’s assessment that the combination of Cadillac’s

impairments satisfied Listing 1.05C, a decision, of course, that was within the ALJ’s

discretion to make. See 20 C.F.R. § 404.1527 (“the final responsibility for deciding these

issues [i.e., equalling and residual functional capacity] is reserved to the Commissioner”).

That the decision rests with the ALJ does not, however, insulate it from review.

       The ALJ explained her logic in rejecting Dr. Mylod’s assessment of Cadillac’s

impairments in combination. She found Dr. Mylod’s equating of Cadillac’s liver

condition with the sensory loss requirements of Listing 1.05C as “a stretch.” The ALJ did

not explain what she meant by this, but appeared to suggest that impairments in different

categories cannot be used to satisfy the requirements of a specific listing. Consideration

of a claimant’s impairments in combination, however, requires just that. See, e.g.,

Plummer, 186 F.3d at 435 (“the Commissioner shall consider the combined effect of all

of Plummer’s impairments, physical and mental, in determining whether the claimant is

                                              9
entitled to disability benefits”) (emphasis added); Burnam v. Schweiker, 682 F.2d 456,

458 (3d Cir. 1982) (“Because the administrative law judge failed to consider Burnam’s

physical and mental condition as a whole, the Secretary’s decision is not supported by

substantial evidence.”) (emphasis added); Beltran v. Barnhart, 2002 U.S. Dist. LEXIS

23953 (E.D. Pa. 2002) (“The ALJ concluded, based on the medical evidence, that

Plaintiff had a combination of impairments, including a low back disorder, a uterine

disorder, hepatitis C, and a combination of depression and anxiety.”) (emphasis added);

Sudhop v. Secretary of Health & Human Servs., 580 F. Supp. 882, 884 (E.D. Pa. 1984)

(considering plaintiff’s “migraine headaches and osteoarthritis of the spine” in

combination) (emphasis added).

       The ALJ’s failure properly to consider Cadillac’s impairments in combination

constitutes error.




       B.     Residual Functional Capacity

       Even were the ALJ’s determination at Step Three proper, we would reverse

because the ALJ erred in assessing the medical evidence to arrive at Cadillac’s RFC.

“While the ALJ is, of course, not bound to accept physicians’ conclusions, he [or she]

may not reject them unless he first weighs them against other relevant evidence and

explains why certain evidence has been accepted and why other evidence has been

rejected.” Kent v. Schweiker, 710 F.2d 110, 115 n.5 (3rd Cir. 1983) (citing Cotter, 642

F.2d at 705-06). See Williams v. Sullivan, 970 F.2d 1178, 1187 (3d Cir. 1992) (noting the
                                            10
Commissioner has an obligation to weigh medical evidence and make choices between

conflicting accounts).

       The ALJ gave controlling weight to the medical assessments conducted by the

non-examining State Agency physicians. Reliance on State Agency physicians, in and of

itself, is not problematic. The State Agency physicians, however, issued their assessment

of Cadillac in April 1997; Cadillac, however, was hospitalized in May 1997, after the

State Agency physicians had completed their assessments.

       During his hospitalization, Cadillac was given a CT scan of his back. In December

of 1997, he visited a back specialist, who appears to have had access to the CT scan. The

specialist, Dr. Steinway, classified Cadillac’s condition as Class III, or adequate to

perform little or none of the duties of usual occupation or self care. The ALJ discounted

Dr. Steinway’s assessment because she could not tell from the record whether Dr.

Steinway had classified Cadillac’s impairments as Class III in the short term or as a

permanent condition. She then gave controlling weight to the non-examining State

Agency physicians. But the State Agency physicians never had the opportunity to

consider the major medical events that occurred in 1997. The one doctor that did–Dr.

Mylod–determined that Cadillac was disabled.

       The ALJ does have the authority to reject conflicting medical evidence. “When a

conflict in the evidence exists, the ALJ may choose whom to credit but ‘cannot reject

evidence for no reason or for the wrong reason.’” Plummer, 186 F.3d at 429 (quoting

Mason v. Shalala, 994 F.2d 1058, 1066 (3d Cir. 1993)). Here, the ALJ rejected medical
                                         11
evidence for the wrong reason. Where the ALJ substitutes his or her own medical

opinion for that of a physician we must reverse. See Kent, 710 F.2d at 115 (“[T]he ALJ’s

conclusion . . . is merely a function of the ALJ’s own medical judgment. As such, his

conclusion may not be permitted to stand, for we have pointed out time and again that

these kinds of judgments are not within the ambit of the ALJ’s expertise.”) (citing Gober,

574 F.2d 772; Schaaf v. Matthews, 574 F.2d 157 (3d Cir. 1978)).

       The ALJ discounted the medical evidence of Dr. Mylod–the only medical opinion

based on a complete record–against that of the State Agency physicians who never had

access to the CT scan or the hospital records from Cadillac’s 1997 treatments. It was

error for the ALJ to have favored medical opinions based on an incomplete record over

those based on the complete record, and to have done so because she injected her own

medical opinion into the mix. Accordingly, her decision to rely on the RFCs of the State

Agency physicians cannot stand.




                                  III. CONCLUSION

       Because the ALJ erred in her analysis at Step Three and erred in relying on the

State Agency physicians’ RFCs under the circumstances here, we will remand for

consideration of Cadillac’s impairments in combination. If the ALJ determines that

Cadillac is not disabled within the meaning of the statute, she must again proceed to Step

Four. While, of course, we do not now decide the issue, Dr. Mylod’s RFC suggests that

Cadillac is not able to perform his past relevant work as a pharmacist. Moreover, at Step
                                             12
Five, we suspect that the ALJ will determine that there is not work in the national

economy for which Cadillac qualifies. Because, however, we are not equipped to

undertake these inquiries ourselves, we will reverse and remand to the District Court so

that the District Court may remand this case to the ALJ for further proceedings in

accordance with this opinion. We are confident these further proceedings will take place

expeditiously.




TO THE CLERK OF THE COURT:

       Kindly file the foregoing Opinion.


                                            /s/ Maryanne Trump Barry
                                            Circuit Judge




                                              13
