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


7-14-2003

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Precedential or Non-Precedential: Non-Precedential

Docket No. 02-3984




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                                                                  NOT PRECEDENTIAL

                    THE UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                      ___________

                                      No. 02-3984
                                      ___________

                                MARY A. MARSHALL

                                                   Appellant,

                                             v.

                           JO ANNE B. BARNHART,
                      COMMISSIONER OF SOCIAL SECURITY.

                                      ___________

           ON APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE EASTERN DISTRICT OF PENNSYLVANIA

                               (D.C. Civil No. 01-cv-5031)
                    District Judge: The Honorable Berle M. Schiller
                                      ___________

                       Submitted Under Third Circuit LAR 34.1(a)
                                    July 11, 2003

BEFORE: NYGAARD and SMITH, Circuit Judges and IRENAS,* Senior District Judge.


                                   (Filed July 14, 2003)




*      Honorable Joseph E. Irenas, Senior District Judge for the United States District
Court for the District of New Jersey, sitting by designation.
                                       ___________

                                OPINION OF THE COURT
                                     ___________


IRENAS, Senior District Judge.

               Appellant, Mary A. Marshall (“Marshall”), appeals from an order entered in

the District Court on August 28, 2002, affirming the decision of the Commissioner of

Social Security (“Commissioner”) denying Marshall’s application for supplemental

security income (“SSI”) under Title XVI of the Social Security Act (“Act”). The District

Court exercised jurisdiction pursuant to 42 U.S.C. § 405(g), and we have jurisdiction on

appeal pursuant to 28 U.S.C. § 1291. We will reverse and remand the cause for further

proceedings.

               We need not burden the record by setting forth a detailed recitation of the

background for this appeal and will therefore limit our discussion to resolution of the

issues presented. Marshall filed her third application for disability on April 18, 1996,

alleging disability since January 1, 1993, due to diabetes, high blood pressure, and

chronic lymphedema. Marshall’s application was denied initially on May 29, 1996, and

upon reconsideration on November 2, 1996. The appeal to the Administrative Law Judge

(“ALJ”) was heard on June 2, 1998, and on June 26, 1998, the ALJ denied Marshall’s

request for benefits. On July 15, 1998, Marshall sought review of the ALJ’s decision

before the Appeals Council, which three years later, denied review. Marshall then filed



                                              2
suit in the District Court, which affirmed the administrative denial and Marshall now

appeals.

              Marshall alleges that the Commissioner committed several errors in

rejecting her application. Although we have plenary review of all legal issues, see

Krysztoforski v. Chater, 55 F.3d 857, 858 (3d Cir. 1995), “our review of the ALJ’s

decision is more deferential as we determine whether there is substantial evidence to

support the decision of the Commissioner.” Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir.

2000). “We will not set the Commissioner’s decision aside if it is supported by

substantial evidence, even if we would have decided the factual inquiry differently.”

Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999). We have defined “substantial

evidence” as “such relevant evidence as a reasonable mind might accept as adequate.”

Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir. 1995) (quoting Richardson v. Perales, 402

U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971)). As we have explained on

numerous occasions, “our decisions make clear that determination of the existence vel

non of substantial evidence is not merely a quantitative exercise. A single piece of

evidence will not satisfy the substantiality test if the [Commissioner] ignores, or fails to

resolve, a conflict created by countervailing evidence. Nor is evidence substantial if it is

overwhelmed by other evidence--particularly certain types of evidence (e.g., that offered

by treating physicians)--or if it really constitutes not evidence but mere conclusion.”

Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000). Despite the deference due in



                                              3
disability benefit cases we retain a responsibility to scrutinize the entire record and to

reverse or remand if the Commissioner’s decision is not supported by substantial

evidence. Id.

                A claimant, in order to qualify for SSI, must demonstrate an “inability 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. § 1382c(a)(3)(A); Burns v. Barnhart, 312 F.3d 113, 118 (3d Cir. 2002). The

Commissioner evaluates each case according to a five-step sequential evaluation process

until a finding of “disabled” or “not disabled” is made. See 20 C.F.R. § 416.920. The

process is as follows: (1) if the claimant is currently engaging in substantial gainful

activity, the claimant will be found not disabled and his application for disability benefits

will be automatically denied; (2) if the claimant is not suffering from a “severe”

impairment or combination of impairments the claimant will be found not disabled; (3) if

a severe impairment meets or equals a listed impairment in 20 C.F.R. pt. 404, subpt. P,

app. 1, and has lasted or is expected to last continually for at least twelve months, then the

claimant will be found disabled; (4) if the claimant is not suffering from an impairment

that either meets or equals a listed impairment the Commissioner considers the claimant’s

residual functional capacity (“RFC”) to determine whether the claimant can perform work

the claimant has done in the past despite the severe impairment. If the claimant can



                                               4
perform his or her past work, the claimant will be found not disabled; and (5) if the

claimant cannot perform his or her past work, the Commissioner will consider the

claimant’s RFC, medical impairments, age, education, and past work experience to

determine whether the claimant can perform other jobs existing in significant numbers in

the national economy. 20 C.F.R. § 416.920; Plummer v. Apfel, 186 F.3d 422, 428 (3d

Cir. 1999). The Claimant must prove steps one through four. If the claimant meets this

burden, the burden of proof shifts to the Commissioner in step five to show that the

claimant is capable of attaining substantial gainful employment that exists in the national

economy. Id. In the instant case, the ALJ concluded that Marshall did not have a severe

mental impairment, and although she cannot perform her past relevant work, which

requires continuous standing and walking, other jobs exist in the national economy that

she can perform considering her RFC, age, education, and work experience.

              Marshall argues that (1) the ALJ’s conclusion that she does not suffer from

a severe impairment is unsupported by substantial evidence; (2) the ALJ’s conclusions

regarding her RFC were not supported by substantial evidence because no consultative

examination was conducted; and (3) the ALJ improperly evaluated her credibility in

concluding that her testimony regarding the intensity, persistence, and functionally

limiting effects of her impairments was not fully credible. The primary issue before this

Court is whether the ALJ had a sufficient basis to conclude that Marshall’s RFC for the




                                             5
full range of medium work was limited only by partial limitations on prolonged standing

or walking.

              In the instant case, the ALJ found that despite her borderline intellectual

functioning, dysthymia, and diabetes Marshall has no significant physical or non-

exertional limitations such as would limit her occupational base. (ALJ’s Decision at 6,

Tr. 16; App. Br. at 7-8). However, the ALJ erred in applying the diagnosis of the

consulting psychologist, Dr. Sol Barenbaum, Ph.D., who explained that Marshall “is

capable of carrying out normal routines and activities and may work at a consistent, but

slow, pace.” (ALJ’s Decision at 3, Tr. 13; App. Am. Rep. Br. at 1). Here the ALJ clearly

took the term “pace” out of context in reaching the conclusion that Marshall has no

significant limitations with regard to the pace at which she may work. The ALJ also

failed to give serious consideration to the observations drawn by several of M arshall’s

doctors and the Social Security interviewer, all of whom commented on the slow pace at

which Marshall operates. In addition, despite the ALJ’s conclusion that Marshall’s

lymphedema was severe, there is no evidence in the record of the correlation between the

medical evidence related to her lymphedema and her RFC. Lastly, although it is well

settled that “[a]n ALJ must give serious consideration to a claimant’s subjective

complaints of pain, even where those complaints are not supported by objective

evidence,” Mason v. Shalala, 994 F.2d 1058, 1067 (3d Cir. 1993) (citing Ferguson v.




                                             6
Schweiker, 765 F.2d 31, 37 (3d Cir. 1985)), the record reveals that there has been no

serious evaluation of Marshall’s lymphedema or her claims of depression.

             Therefore, since the ALJ had no sufficient basis upon which to conclude

that Marshall’s RFC for the full range of medium work was limited only by partial

limitations on prolonged standing or walking, we conclude that the ALJ’s decision is not

supported by substantial evidence. Accordingly, we will reverse the District Court’s

order and remand the cause to the District Court with instructions to remand to the

Commissioner of Social Security, for further proceedings not inconsistent with this

opinion.




                                            7
TO THE CLERK:

         Please file the foregoing opinion.




                       /s/ Joseph E. Irenas_______________
                       Senior District Judge




                                        8
                    THE UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                      ___________

                                      No. 02-3984
                                      ___________

                                MARY A. MARSHALL

                                                   Appellant,

                                             v.

                           JO ANNE B. BARNHART,
                      COMMISSIONER OF SOCIAL SECURITY.

                                      ___________

           ON APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE EASTERN DISTRICT OF PENNSYLVANIA

                               (D.C. Civil No. 01-cv-5031)
                    District Judge: The Honorable Berle M. Schiller
                                      ___________

                       Submitted Under Third Circuit LAR 34.1(a)
                                    July 11, 2003

BEFORE: NYGAARD and SMITH, Circuit Judges and IRENAS,** Senior District Judge.

                                      ___________

                                      JUDGMENT
                                      ___________




**     Honorable Joseph E. Irenas, Senior District Judge for the United States District
Court for the District of New Jersey, sitting by designation.
              This cause came to be considered on the record from the United States

District Court for the Eastern District of Pennsylvania and was submitted pursuant to

Third Circuit LAR 34.1(a) on July 11, 2003.

              On consideration whereof, it is now here ORDERED AND ADJUDGED by

this Court that the order of the said District Court entered on August 28, 2002, be

reversed, and is hereby remanded.

              All of the above in accordance with the opinion of this Court.




                                                    ATTEST:




                                                    ______________________________
                                                    Clerk

Date: July 14, 2003




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