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


11-13-2003

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1816




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                                                          NOT PRECEDENTIAL

            THE UNITED STATES COURT OF APPEALS
                   FOR THE THIRD CIRCUIT

                            ___________

                            No. 03-1816
                            ___________


                        JEFFREY A. EYLER,

                                 Appellant

                                  v.

                  *JO ANNE B. BARNHART,
             COMM ISSIONER OF SOCIAL SECURITY

                    *(Pursuant to Rule 43(c), F.R.A.P.)

                            ___________


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

                      (D.C. Civil No. 01-cv-00411)
              District Judge: The Honorable Yvette Kane

                            ___________

              Submitted Under Third Circuit LAR 34.1(a)
                          October 31, 2003


BEFORE: SCIRICA, Chief Judge, NYGAARD, and AMBRO, Circuit Judges.




                     (Filed : November 13, 2003)
                                        ___________

                                   OPINION OF THE COURT
                                        ___________


NYGAARD, Circuit Judge.

              Appellant Jeffrey A. Eyler appeals from an order entered in the District

Court affirming the decision of the Commissioner of Social Security denying Eyler’s

application for disability insurance benefits under Title II of the Social Security Act, 42

U.S.C. §§ 401-433. 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 affirm

the order of the District Court.

                                              I.

              Because we write solely for the benefit of the parties, we recount the facts

and the procedural background of this case only as they are relevant to the following

discussion. In 1997, Eyler applied for disability insurance benefits on the basis that he

had been unable to work since November 15, 1996 due to physical problems involving his

back, high blood pressure, diabetes, pancreatitis, a seizure disorder and deafness in his

right ear. After reviewing the medical evidence, physicians acting on behalf of the

Commissioner concluded that Eyler had the capacity to work. Eyler’s application for

benefits was initially denied and was again denied on reconsideration.




                                              2
              An Administrative Law Judge thereafter conducted a hearing on Eyler’s

application at which she heard testimony from Eyler, his wife, a medical expert and a

vocational expert.    The ALJ subsequently concluded that Eyler’s condition did not meet

the standard for disability.

              After exhausting his administrative remedies, Eyler filed an action against

the Commissioner in the District Court for the Middle District of Pennsylvania. The case

was referred to an United States Magistrate Judge who recommended that the

Commissioner’s decision be affirmed. The District Court adopted the M agistrate Judge’s

Report and Recommendation, overruling Eyler’s objections. Eyler timely appealed.

                                              II.

              We have previously set forth our standard of review in cases involving an

appeal from the denial of disability benefits. We have instructed:

              The role of this Court is identical to that of the District Court,
              namely to determine whether there is substantial evidence to
              support the Commissioner’s decision. The Court is bound by
              the ALJ’s findings of fact if they are supported by substantial
              evidence in the record. Substantial evidence has been defined
              as “more than a mere scintilla. It means such relevant
              evidence as a reasonable mind might accept as adequate.”

Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999) (quoting Ventura v. Shalala, 55 F.3d

900, 901 (3d Cir. 1995)) (certain citations omitted). In making this determination, “we

are not permitted to weigh the evidence or substitute our own conclusions for that of the




                                              3
fact-finder.” Burns v. Barnhart, 312 F.3d 113, 118 (3d Cir. 2002) (citing Williams v.

Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1982)).

              In order to qualify for disability benefits, a person must be disabled as that

term is defined by the Social Security Act and accompanying regulations. Burns, 312

F.3d at 118. Disability is defined under the Act as the “inability to engage in any

substantial gainful activity by reason of any medically determinable physical or mental

impairment which can be expected to last for a continuous period of not less than twelve

months.” 42 U.S.C. § 1382c(a)(3)(A) (2002).

              The ALJ, in evaluating Eyler’s application for benefits, applied the familiar

five-step analysis, determining that, at steps one through three, Eyler was not currently

employed, and that his back disorder, hypertension, diabetes, and pancreatitis were severe

impairments, but that they did not meet or equal any of the impairments listed in

Appendix 1, Subpart P of Part 404 (“Listing of Impairments”). 20 C.F.R. § §

416.920(d), 404.1520(d). The ALJ moved on to step four and determined that, while

Eyler did not retain the residual functional capacity to perform his past work, Eyler did

retain the residual functional capacity to perform the requirements of sedentary work.

Finally, at step five, the ALJ consulted a vocational expert. The ALJ asked the vocational

expert a hypothetical question which took into account all of Eyler’s impairments that

were supported by objective medical evidence. The vocational expert testified that a

person with impairments such as Eyler’s retained the ability to engage in a significant



                                              4
number of simple sedentary and light jobs on a nationwide level. The ALJ concluded that

Eyler was not disabled and denied benefits.

                                              III.

                Eyler’s primary argument on appeal is that the ALJ erred in not giving

controlling evidentiary weight to the testimony and opinion of her treating physician.

Eyler argues that the ALJ’s decision not to credit his treating physician’s opinions was not

based on objective, competent medical evidence. A treating physician’s findings and

opinions are, generally, given great weight. Frankenfield v. Bowen, 861 F.2d 405, 408

(3d Cir. 1988) (citing Rossi v. Califano, 602 F.2d 55, 57 (3d Cir. 1979)). However, “the

medical judgment of the treating physician can be rejected on the basis of contradictory

evidence.” Id. If substantial evidence in the record supports a conclusion that is contrary

to that expressed by the treating physician, the ALJ may reject the treating physician’s

findings. Id.

                Here, the ALJ properly evaluated the medical opinions in the record. In

fact, the opinions Eyler relies on, as has been argued by the Commissioner, are opinions

that are not germane to the nature and/or severity of his impairments. Instead, he calls

our attention to the report and opinion of Dr. Sicilia and Dr. Eder. Dr. Sicilia’s opinion

was that Eyler was “disabled” and Dr. Eder noted his belief that Eyler was unable to work




                                               5
in a “meaningful way.” (App. 444 and 454)1 The District Court noted, “a treating

physician’s opinion with respect to whether or not a plaintiff is disabled from

employment is not entitled to any special deference. The responsibility of determining

whether the plaintiff is disabled for purposes of receiving DIB lies with the ALJ.” (App.

4). We agree. Neither Dr. Sicilia’s nor Dr. Eder’s opinions concern any medical

diagnosis. Instead, these opinions, in reality, reflect a legal conclusion neither physician

was competent to make. We agree with the District Court that the ALJ’s decision was

supported by substantial evidence in the record.

              Eyler’s second argument on appeal is that the District Court improperly

relied on the opinion of the vocational expert because that opinion did not take into

consideration the effects Eyler’s medication would have on his ability to work. This

argument is without merit. As the District Court found, the hypothetical that the ALJ

presented to the vocational expert required that the vocational expert assume a

hypothetical individual who is “[a]ffect[ed] by . . . medication.” (App. 5). Further, that

hypothetical individual was affected by limitations that included the effects of Eyler’s

medication, e.g. fatigue, an inability to stand for long periods of time, occasional

concentration problems. We agree with the District Court that this hypothetical “‘fairly

set[s] forth every credible limitation established by the physical evidence.’”(App. 4)

(quoting Plummer, 186 F.3d at 431).



1.      Citations to the appendix refer to the appendix filed by the Appellant.

                                              6
                Finally, Eyler argues that the ALJ failed to take account of his subjective

symptoms, including pain, in determining that he could still perform the full range of light

work. The ALJ determined that Eyler had a discernible medical condition that could cause his

pain, but that his statements concerning his pain and its impact on his ability to work were not

entirely credible in light of the entire record.

                Allegations of pain and other subjective symptoms must be supported by objective

medical evidence. See 20 C.F.R. § 404.1529. Once an ALJ concludes that a medical impairment

that could reasonably cause the alleged symptoms exists, he or she must evaluate the intensity

and persistence of the pain or symptom, and the extent to which it affects the individual's ability

to work. This obviously requires the ALJ to determine the extent to which a claimant is

accurately stating the degree of pain or the extent to which he or she is disabled by it. See 20

C.F.R. § 404.1529(c).

                Here, the ALJ concluded that Eyler had a discernible medical condition that could

reasonably cause the pain of which he complained. However, although the ALJ determined that

his testimony was “generally credible,” the ALJ thought that Eyler’s testimony about the extent

of his pain was exaggerated. (App. 26) The ALJ noted that the record also contained testimony

of one physician’s concern that Eyler was engaging in “drug seeking behavior.” (App. 18) The

ALJ determined that Eyler could perform light duty work despite his complaints of incapacitating

pain. That ruling is clearly supported by substantial evidence in this record. The ALJ cited

specific instances where Eyler's complaints about pain and other subjective symptoms were

inconsistent with: 1) the objective medical evidence of record; 2) Eyler’s testimony as to his

rehabilitation and medication regimen; and 3) Eyler’s own description of his daily activities.

                                                   7
                                               IV.

               In conclusion, we are satisfied that the ALJ undertook a comprehensive

examination of the evidentiary record and that substantial evidence in the record supports both

her and the Commissioner’s decision.

               For the foregoing reasons, we will affirm the judgment of the District Court.




                                                8
_________________________


TO THE CLERK:

Please file the foregoing opinion.




                                          /s/ Richard L. Nygaard
                                         Circuit Judge




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