                                                                                                                           Opinions of the United
1994 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-9-1994

Adorno v. Shalala, Sec'y HHS
Precedential or Non-Precedential:

Docket 94-5085




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                    UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT

                               ___________

                               No. 94-5085
                               ___________


                              EVELYN ADORNO,
                                         Appellant

                                    v.

                     DONNA SHALALA, SECRETARY OF
                     HEALTH AND HUMAN SERVICES,
                                       Appellee

                               ___________

           Appeal from the United States District Court
                  for the District of New Jersey
               (D.C. Civil Action No. 92-cv-01783)

                               ___________

            Submitted Under Third Circuit LAR 34.1(a)
                         August 10, 1994


         PRESENT:   HUTCHINSON and NYGAARD, Circuit Judges,
                      and KATZ, District Judge*


                     (Filed     November 9, 1994)

                              ____________

Dennis P. McGlinchy, Esquire
Ocean-Monmouth Legal Services, Inc.
27 Washington Street
Toms River, NJ     08753
               Attorney for Appellant




_______________

*   Hon. Marvin Katz, United States District Judge for the
Eastern District of Pennsylvania, sitting by designation.
Faith S. Hochberg, Esquire
  United States Attorney
John Jeannopoulos, Esquire
  Special Assistant United States Attorney
United States Department of Justice
Room 502
970 Broad Street
Newark, NJ     07102
               Attorneys for Appellee

                             ____________

                      OPINION OF THE COURT
                          ____________


HUTCHINSON, Circuit Judge.



          Appellant, Evelyn Adorno ("Adorno"), appeals two orders

of the United States District Court for the District of New

Jersey in favor of appellee, the Secretary of Health and Human

Services ("Secretary").   In its orders, the district court

affirmed the Secretary's final decision to deny Adorno disability

benefits and denied Adorno's motion for reconsideration.    Because

the findings of fact on which the Administrative Law Judge

("ALJ") based its decision are logically inconsistent and

contradictory, we will vacate the district court's order

affirming the Secretary's decision and remand for further

proceedings consistent with this opinion.    On remand, the ALJ

should reconcile the contradictions based on all the evidence in

the record, including Adorno's claimed inability to tolerate

exposure to dust and fumes, and any additional relevant evidence

the parties may produce and, if he again elects to reject the
medical opinions of Adorno's treating physicians, state his

reasons for doing so.



                                 I.

          In April, 1990, Adorno filed applications with the

Social Security Administration ("SSA") for disability benefits

or, in the alternative, supplemental security income ("SSI")

under Titles II and XVI of the Social Security Act.    She alleged

that she had been disabled by the combined effects of asthma,

arthritis, and hypertension since June 15, 1989.    Adorno's

applications for benefits were denied by the SSA initially and

upon reconsideration.

          On December 24, 1990, Adorno filed a request for a

hearing before an ALJ.    It was granted, and the hearing was held

on February 13, 1991.    Represented by counsel, she appeared and

testified on her own behalf through an interpreter.

          On May 29, 1991, the ALJ determined that Adorno was not

disabled and, therefore, could not receive either disability

benefits or SSI.   The ALJ's decision became final on May 27, 1992

when the Appeals Council denied Adorno's request for review.

Adorno then filed a complaint in the district court, pursuant to

42 U.S.C.A. § 405(g) (West 1991), asking the court to review and

set aside the Secretary's decision.    On October 7, 1993, the

district court affirmed the Secretary's final decision finding
Adorno not disabled.    On December 6, 1993, the district court

denied Adorno's motion for reconsideration.1

            Adorno came to the continental United States from

Puerto Rico.   When asked by the ALJ how long she had "been in

this country," she replied 30 years.    Administrative Record

("Admin. Rec.") at 30.    She was 49 years of age on the date of

the ALJ's hearing.     In Puerto Rico, she completed only the second

grade and has had no other formal education.    She testified that

she cannot speak or read English.

            From 1968 to 1989, Adorno worked for Excell Wood as a

machine operator and general laborer.    She claims that the dust

and fumes encountered at work required her to use asthma

medicine.   After leaving Excell Wood, Adorno worked briefly as a

packer at Papco Industries, but claims that she had to stop

working after only four weeks because of her asthma condition.

Most recently, Adorno worked at Fluid Chemicals but after one

week its factory closed because of poor ventilation.    She has not

engaged in substantial gainful employment since June 15, 1989.

            Since March 1987, Jose R. Sanchez-Pena, M.D. has been

Adorno's treating physician.    On Adorno's initial visit, Dr.

Sanchez-Pena performed a pulmonary function test and concluded

that Adorno was suffering from a "moderate asthmatic condition."

After eighteen visits, Dr. Sanchez-Pena added the afflictions of

arthritis, bursitis, pneumonia and kidney stones to the asthma,

1
 . Although Adorno lists incorrect dates in her brief, it
appears that she appeals both of these orders.
which he now found to be acute.     In a letter dated March 30,

1990, Dr. Sanchez-Pena stated that Adorno was permanently and

totally disabled.

           Adorno also provided a note dated March 29, 1990 from

another treating physician, Alfonso Polanco, M.D.     It stated that

Adorno "has been a patient at this office for acute bronchial

asthma."   Admin. Rec. at 100.    In response to a request from the

Division of Disability Determinations ("DDD"), Dr. Polanco sent a

copy of his office notes.     They showed that Adorno was seen on

four occasions in 1989 and 1990 and was treated with Proventil

Inhaler, Proventil Repetabs, Theo-Dur and Vasotec for acute

bronchial asthma.     Id. at 98-99.2 Neither the ALJ nor the

district court referred to this evidence.

           In February 1989, Adorno visited a physician named

Leslie Aufseeser, D.P.M., for treatment of bone spurs in her

heel.   Dr. Aufseeser noted in her report that Adorno wanted to

undergo surgery but postponed it because of uncertainty over

insurance coverage.

           On July 11, 1990, the DDD referred Adorno to a

consulting physician named Santangelo for a physical

2
 . Proventil Inhaler is used "for the prevention and relief of
bronchospasm in patients with reversible obstructive airway
disease and for the prevention of exercise-induced bronchospasm."
Physicians' Desk Reference 2211 (47th ed. 1993). Proventil
Repetabs are "for the relief of bronchospasm in patients with
reversible obstructive airway disease." Id. at 2213. Theo-Dur
is "[f]or relief and/or prevention of symptoms from asthma and
reversible bronchospasm associated with chronic bronchitis and
emphysema." Id. at 1192. Vasotec is "for treatment of
hypertension." Id. at 1621.
examination.3    Based on an examination and a pulmonary function

test, Dr. Santangelo diagnosed Adorno as suffering from a

fifteen-year history of asthma and uncontrolled hypertension.

Dr. Santangelo's report indicated however that the pulmonary

function tests administered to Adorno were within normal limits.

In Dr. Santangelo's opinion, Adorno could perform any type of

work except work in heavy fumes or dusty environments.     Dr.

Santangelo disagreed with Dr. Sanchez-Pena's and Dr. Polanco's

conclusion that Adorno suffered from acute asthma.     Adorno was

also treated in hospital emergency rooms on several occasions,

including two visits on March 19, 1987 and October 10, 1988 for

asthma attacks.4

          Although Dr. Sanchez-Pena's initial diagnosis of

moderate asthma was based on objective scientific data provided

by a pulmonary function test, the ALJ concluded this doctor's

later diagnosis of "acute asthma" lacked objective data to

support it.     The ALJ found Dr. Santangelo's medical report more

reliable than Dr. Sanchez-Pena's later diagnosis because it was

based on a later pulmonary functions test and a physical

examination.




3
 . Dr. Santangelo's full name is not in the record. Adorno v.
Shalala, Civ. No. 92-1783, slip op. at 3 n.2 (D.N.J. Oct. 7,
1993).
4
 . One other incident involved what the district court labeled a
"perturbed, overly-aggressive pet rooster." Adorno, slip op. at
3.
                                II.

           The district court had subject matter jurisdiction to

review the final decision of the Secretary denying Adorno's

application for disability benefits under 42 U.S.C.A. § 405(g)

(West 1991) and 42 U.S.C.A. § 1383(c)(3) (West 1992).     We have

jurisdiction over this appeal from the district court's final

judgment in favor of the Secretary under 28 U.S.C.A. § 1291 (West

1993).

           "Our standard of review, as was the district court's,

is whether the Secretary's decision is supported by substantial

evidence in the record."   Allen v. Bowen, 881 F.2d 37, 39 (3d

Cir. 1989).    Substantial evidence is "such relevant evidence as a

reasonable mind might accept as adequate to support a

conclusion."    Richardson v. Perales, 402 U.S. 389, 401 (1971)

(quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229

(1938)).



                                III.

           "The Social Security Act defines disability in terms of

the effect a physical or mental impairment has on a person's

ability to function in the workplace."   Heckler v. Campbell, 461
U.S. 460, 460 (1983); 42 U.S.C.A. § 423(c) (West 1991).

Disability benefits are provided for individuals unable "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 U.S.C.A. § 423(d)(1)(A) (West 1991); Campbell, 461

U.S. at 460.      A person is determined to be disabled 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 gainful work which exists in the

national economy."     42 U.S.C.A. § 423(d)(2)(A); Campbell, 461

U.S. at 460.

            The regulations promulgated by the Secretary to

implement these definitions recognize that certain impairments,

called listed impairments, are so severe that they are presumed

to prevent a person from pursuing any gainful work without

further proof of occupational disability.      Campbell, 461 U.S. at

460 (citing 20 C.F.R. § 404.1520(d) (1982)).       Thus, a claimant

who establishes that she suffers from a listed impairment is

deemed disabled without further inquiry.     Id.   If a claimant can

pursue her former occupation, she is not entitled to disability

benefits.   Id.     If a claimant suffers from a severe, but unlisted

impairment, or a combination of impairments, the Secretary must

consider the individual's particular limitations to determine

whether the claimant retains the ability to perform either her

former work or some less demanding employment.       Id.
            Adorno, in her first hearing, introduced evidence of

only three episodes of asthma over 3-1/2 years.      This does not

meet the level of severity required for a listed impairment.         See

20 C.F.R., pt. 404, subpt. P, app. 1, § 3.03B.      For asthma, the
listings require acute episodes at least once every two months or

on average at least six times a year.     Id.

          Adorno thus had the initial burden of proving that she

could not pursue her former occupation.    Once a claimant

establishes her inability to pursue her former occupation, the

burden shifts to the Secretary to prove that she retains the

capacity to pursue less demanding work.    See id. (citing 20

C.F.R. § 404.1520(f)(1)).

          Adorno argues that the district court erred in

affirming the Secretary's decision to deny her disability

benefits because the ALJ did not make findings of fact concerning

the nature and demands of her former occupation.     Because her

undisputed testimony shows her former job exposed her to fumes

and heavy dust, and uncontradicted medical evidence shows her

asthma precludes such exposure, Adorno contends that the ALJ's

determination that she can return to her former job, but not one

that exposes her to dust and fumes, is logically inconsistent.

          The Secretary, in an effort to make sense of the ALJ's

decision seeks to recharacterize Adorno's prior job as a

cabinetmaker.   Brief of Appellee at 18-19.     The Dictionary of

Occupational Titles does not list dust and fumes as hazards which

accompany a cabinetmaker's job.    This attempt to redefine

Adorno's former occupation is unsupported by substantial evidence

on the whole record.   Both the ALJ and the district court

describe Adorno's work as a machine operator, which may describe

Adorno's former work more aptly.    See Admin. Rec. at 11, 14;
Adorno, slip op. at 2.5   The contradiction between this finding

and Adorno's uncontradicted testimony about her exposure to dust

and fumes must be reconciled.

          If it appears that Adorno cannot return to her former

occupation of machine operator, the ALJ must then determine what

type of work Adorno can do in order to see whether her case fits

into one of the so-called "grids" designed mechanically to take

into account the factors of education, age, skills, and physical

ability which affect an impaired claimants employability.      See

Campbell, 461 U.S. at 461-62.   On this question, the ALJ found

that "within these restrictions the claimant is able to perform

her prior work as a machine operator or the full range of light

work activity."    Admin. Rec. at 14.

          The job of a machine operator is listed as medium work

in the Dictionary of Occupational Titles.    Appellant's Appendix

("App.") at 1.    Accordingly, it is impossible to tell whether

Adorno is limited to light or medium work.    The ALJ failed to

make an unambiguous finding about the kind of work Adorno could

do, and whether such work is available.    Such finding is a

prerequisite to the proper application of the "grids."

          Moreover, the ALJ's discussion of age and education is

in only the most conclusory terms and is also tied to his

conclusion that Adorno can do a full range of light work.      Absent

from the ALJ's decision is any mention of Adorno's physical


5
 . At one point, however, the district court also calls Adorno a
"general laborer." Adorno, slip op. at 2.
abilities.     A full inquiry into Adorno's skills and limitations,

followed by an assessment of alternate work options in light of

those abilities and limitations, is crucial to any logical

analysis of her case.    The ALJ failed to conduct that inquiry and

also failed clearly to relate Adorno's physical impairment(s) to

her prior occupation.    On remand, the Secretary must determine,

on the basis of substantial evidence, what Adorno's prior

occupation was and what types of work her abilities and

limitations permit.    "The regulations divide this last inquiry

into two stages."     Campbell, 461 U.S. at 460.   The Secretary must

first assess each claimant's present job qualifications in light

of the various factors Congress has identified as relevant:

physical ability, age, education, and work experience.      Id.   The

regulations then require the Secretary to make an individual

assessment of each claimant's abilities and limitations.      Id.

This generally requires an opinion from a vocational expert,

given in response to a hypothetical question incorporating the

physical and occupational limitations that the record shows the

claimant suffers from.

          The ALJ did consider some of Adorno's particular

limitations.   He found that Adorno has "the residual functional

capacity to perform work-related activities except for work

involving heavy exposure to dust and fumes," and that her "past

relevant work as a machine operator did not require the

performance of work-related activities precluded by the above

limitation."   Admin. Rec. at 14-15.   We have already mentioned

the problem with this finding.     It does not appear to be
supported by substantial evidence.   The Dictionary of

Occupational Titles lists "Machinist, wood" as work accompanied

by fumes and dust.   App. at 2.

          We also note the ALJ's failure to weigh appropriately

the testimony of both of Adorno's attending physicians.     In

considering a claim for disability benefits, greater weight

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

physician who has examined the claimant as a consultant.       See,

e.g., Mason v. Shalala, 994 F.2d 1058, 1067 (3d Cir. 1993).       We

recognize, of course, that a statement by a plaintiff's treating

physician supporting an assertion that she is "disabled" or

"unable to work" is not dispositive of the issue.   Wright v.

Sullivan, 900 F.2d 675, 683 (3d Cir. 1990).    The ALJ must review

all the medical findings and other evidence presented in support

of the attending physician's opinion of total disability.        Id.

In doing so, 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.    See Cotter v. Harris,

642 F.2d 700, 705, reh'g denied, 650 F.2d 481 (3d Cir. 1981).

          The record indicates that Dr. Sanchez-Pena and Dr.

Polanco are Adorno's treating physicians.    The ALJ and the

district court addressed only the opinion of Dr. Sanchez-Pena,

and concluded it was not entitled to significant weight.       See
Jones v. Sullivan, 954 F.2d 125, 129 (3d Cir. 1991) (an

unsupported diagnosis is not entitled to significant weight).

Adorno, however, also points to the testimony of Dr. Polanco and

argues that the Secretary failed to give it the weight it
deserved.    In the ALJ's decision, he states that he made his

findings "[a]fter careful consideration of the entire record,"

Admin. Rec. at 14, but the ALJ did not otherwise explain his

reasons for not mentioning Dr. Polanco's note indicating that

Adorno was treated for "acute asthma."

            Adorno relies primarily on the proposition that the

Secretary must "explicitly" weigh all relevant, probative and

available evidence.    Dobrowolsky v. Califano, 606 F.2d 403, 407

(3d Cir. 1979); see also Brewster v. Heckler, 786 F.2d 581, 584

(3d Cir. 1986); Cotter, 642 F.2d at 705.    The Secretary must

provide some explanation for a rejection of probative evidence

which would suggest a contrary disposition.    Brewster, 786 F.2d

at 585.     The Secretary may properly accept some parts of the

medical evidence and reject other parts, but she must consider

all the evidence and give some reason for discounting the

evidence she rejects.     Stewart v. Secretary of H.E.W., 714 F.2d

287, 290 (3d Cir. 1983).

            For these reasons, we will vacate the district court's

order and remand for further proceedings.    On remand, if Adorno

has carried her initial burden of establishing an impairment so

severe that she cannot perform the kind of work in which she was

previously engaged, the Secretary has the burden of supplying

substantial evidence, usually in the form of a vocational

expert's opinion, that establishes Adorno's ability to perform

other substantial gainful activity despite her physical problems,

limited education, her difficulties with English and her limited

occupational skills.
                              IV.

          The order of the district court granting summary

judgment to the Secretary will be reversed and the case remanded

for further proceedings consistent with this opinion.
