                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-26-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2799




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                                                             NOT PRECEDENTIAL


                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT
                             ____________

                                 No. 06-2799
                                ____________

                            PATRICIA J. SALLES

                                                 Appellant

                                       v.

                  COMMISSIONER OF SOCIAL SECURITY


                                ____________

                      On Appeal from United States Court
                           for the District of New Jersey
                          (D. C. Civil No. 05-cv-00394)
                  District Judge: Honorable William G. Bassler
                                   ____________

                  Submitted Under Third Circuit LAR 34.1(a)
                                May 7, 2007

          Before: RENDELL, JORDAN and HARDIMAN, Circuit Judges.

                             (Filed: June 26, 2007)
                                 ____________

                           OPINION OF THE COURT
                                ____________




HARDIMAN, Circuit Judge.
       This case is a timely appeal from the District Court’s decision affirming the

Commissioner’s decision to deny Supplemental Security Income (SSI) benefits to

Appellant Patricia Salles (Salles). We will affirm.

                                          I.

       Appellant Salles claimed to be disabled since March 10, 1972 because of blindness

in her left eye and poor vision in her right eye. After the Agency denied her application,

Salles appealed and a hearing was held before Administrative Law Judge (ALJ) Gerald R.

Ryan, who found her not disabled. Salles appealed to the United States District Court for

the Eastern District of Pennsylvania, which affirmed the Commissioner’s decision.

                                               II.

       This Court “review[s] the ALJ’s decision under the same standard of review as the

District Court, to determine whether there is substantial evidence on the record to support

the ALJ’s decision.” Burnett v. Comm’r of Soc. Sec. Admin., 220 F.3d 112, 118 (3d Cir.

2000); see also 42 U.S.C. § 405(g). “[W]e are bound by the ALJ’s findings of fact if they

are supported by substantial evidence in the record.” Knepp v. Apfel, 204 F.3d 78, 83 (3d

Cir. 2000) (citation omitted). Substantial evidence is “such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.” Pierce v.

Underwood, 487 U.S. 552, 564-65 (1988). Our review of legal issues is plenary. See

Schaudeck v. Comm’r, 181 F.3d 429, 431 (3d Cir. 1999).



                                               III.

                                                2
       Because we write for the parties, we note only the essential facts. Salles has been

blind in her left eye since 1974, when a bottle of ammonia exploded in her face and

scorched her cornea. In addition to her left eye blindness, Salles testified that she suffers

from degenerative disc disease of the lower lumbar spine, Hepatitis C, HIV, depression,

gall bladder disease, and visual acuity limitations in her right eye.1 Salles worked as a

telemarketing manager from early 2000 until March 2001, when she resigned because of

blurred vision, headaches, and a loss of balance.

       Salles testified that she took medication for depression, back pain, and stomach

ulcers, but not for her HIV or Hepatitis C. Although Salles testified that she suffers from

chronic fatigue, she admitted that she takes care of all her personal needs, cleans her

house, takes public transportation, goes to the store, and can walk around the block.

       Applying the familiar five-step sequential evaluation, the ALJ found at Step One

that Salles had not performed substantial gainful activity during the pertinent period. At

Steps Two and Three, the ALJ found that Salles’s blindness in her left eye and her

degenerative disc disease were “serious” impairments, but not severe enough to meet or

equal a listed impairment. After explaining why he considered Salles’s testimony about




       1
              After the hearing, but more than two weeks before the ALJ issued his
              decision, Salles’s former counsel obtained additional records which
              indicated that Salles had been treated for depression. The ALJ granted
              Salles until May 23, 2003 to submit these records, but her former counsel
              inexplicably failed to do so for more than a year.

                                              3
her limitations and subjective symptoms to be less than fully credible, the ALJ found her

residual functional capacity (RFC) to be as follows:

              [Salles] retains the [RFC] to perform at least light work [...] that does
              not require binocular vision. She is therefore able to lift/carry
              objects weighing up to 20 pounds occasionally, and 10 pounds
              frequently, and during the course of an 8-hour workday, she has been
              capable of standing, walking and/or sitting for a total of 6 hours.
              Because of her limited vision, she should not work in proximity to
              hazardous machinery or at unprotected heights.

On the basis of this RFC, the ALJ found that Salles was not disabled at Step Four because

she could perform her prior work as a telemarketing manager. The Appeals Council

found no grounds for review.

                                           IV.

       The gravamen of Salles’s appeal is that the evidence is insufficient to support the

ALJ’s decision. Salles claims that the ALJ erred by: (1) omitting probative evidence; (2)

failing to accord increased evidentiary weight to the clinical opinions of Salles’s treating

physicians; (3) preferring the opinion of a consultative examiner; (4) finding Salles’s HIV

infection, Hepatitis C, right-eye blurriness, and major depressive disorder to be non-

severe; (5) failing to engage in a task-by-task explanation — or articulate an evidentiary

basis — for his RFC assessment; and (6) failing to account for Salles’s subjective

symptom testimony.




       A.     Substantial Evidence Supports The ALJ’s Step-Two Analysis

                                              4
       Salles argues principally that the ALJ erred in holding that several of her

impairments — specifically, her Hepatitis C, HIV infection, right-eye blurriness, and

major depression — were not “severe” at Step Two. We disagree.

       At Step Two of the five-step sequential inquiry, the ALJ must determine whether

the claimant has a medically severe impairment or combination of impairments. See

Bowen v. Yuckert, 482 U.S. 137, 140-41 (1987); see also Social Security Ruling (SSR)

86-8, 1986 SSR LEXIS 15, at *6-7; SSR 85-28, 1985 SSR LEXIS 19, at *1. Under the

applicable regulations, an impairment is severe only if it significantly limits the

claimant’s physical or mental ability to do “basic work activities,” i.e., physical “abilities

and aptitudes necessary to do most jobs, including, for example, walking, standing,

sitting, lifting, pushing, pulling, reaching, carrying or handling,” or mental activities such

as understanding, carrying out, and remembering simple instructions; use of judgment;

responding appropriately to supervision, co-workers and usual work situations; and

dealing with changes in a routine work setting. 20 C.F.R. § 404.1521(b). A “severe”

impairment is distinguished from “a slight abnormality,” which has such a minimal effect

that it would not be expected to interfere with the claimant’s ability to work, regardless of

her age, education, or work experience. See Bowen, 482 U.S. at 149-51. The claimant

has the burden of showing that an impairment is severe. Id. at 146 n.5.

       In the case at bar, the ALJ found in Salles’s favor at Step Two, when he concluded

that her degenerative disc disease and monocular vision were severe. As to Salles’s HIV,

depression, and visual problems with her right eye, the ALJ properly found these

                                              5
impairments to be non-severe. Although Salles had testified to experiencing symptoms

consistent with these ailments, she does not dispute the Commissioner’s observation that

there was no medical evidence in the record before the ALJ that Salles had been

diagnosed with or treated for these conditions. On this point, the pertinent SSR is clear:

              In the absence of a showing that there is a “medically determinable
              physical or mental impairment,” an individual must be found not
              disabled at step 2 of the sequential evaluation process. No symptom
              or combination of symptoms can be the basis for a finding of
              disability, no matter how genuine the individual’s complaints may
              appear to be, unless there are medical signs and laboratory findings
              demonstrating the existence of a medically determinable physical or
              mental impairment.

SSR 96-4p, 1996 WL 374187, at *1 (emphasis added).2

       Finally, although the record now contains evidence that Salles was diagnosed with

HIV, Hepatitis C, and depression,3 these diagnoses alone are insufficient to establish their

severity at Step Two. In addition to the diagnoses, Salles was required to present

evidence that these limitations significantly limited her ability to do basic work activities

or impaired her capacity to cope with the mental demands of working. See 20 C.F.R. §§


       2
              Because the ALJ found in Salles’s favor at Step Two, even if he had
              erroneously concluded that some of her other impairments were non-severe,
              any error was harmless. See Rutherford v. Barnhart, 399 F.3d 546, 553 (3d
              Cir. 2005).
       3
              When a claimant relies on evidence that was not before the ALJ, a district
              court may remand to the Commissioner only if the evidence is “new,”
              “material,” and good cause exists for not previously presenting the evidence
              to the ALJ. See Szubak v. Sec. of Health and Human Servs., 745 F.2d 831,
              833 (3d Cir. 1984); see also 42 U.S.C. § 405(g). We agree with the District
              Court that neither materiality nor good cause existed here.

                                              6
404.1520©, 404 1521(a); see also Ramirez v. Barnhart, 372 F.3d 546, 551 (3d Cir. 2004).

Beyond Salles’s own testimony (about which the ALJ made properly-supported adverse

credibility findings), there is no evidence that these four conditions resulted in functional

limitations. The fact that Salles’s gall bladder disease, Hepatitis, and headaches from eye

strain evidently were either not treated at all or were controlled by medication supports

the ALJ’s findings that these impairments were not severe.

       B.     Substantial Evidence Supports The ALJ’s Step-Three Determination That
              Salles’s Combination Of Impairments Did Not Meet Or Equal A Listing

       Salles contends that the ALJ erred at Step Three when he found that her condition

did not meet or equal a Listing-level impairment, an argument which is entirely

dependent upon the merits of her argument that the ALJ erred at Step Two. Even if the

two arguments were independent, however, the evidence supports the District Court’s

conclusion that the ALJ’s Step Three analysis was sound.

       At Step Three, the ALJ identified specific Listings pertaining to spinal and visual

acuity disorders, and explained why Salles’s condition failed to meet them. Salles

criticizes the ALJ for failing to “mention [her] HIV infection at all!” and for ignoring her

depression. See Salles Br. at 21-22. Aside from the fact that the record before the ALJ

contained no medical or treatment records to support Salles’s testimony regarding

depression and HIV, there is no evidence that either of these impairments meets or equals

a Listing. See 20 C.F.R. § 404.1525(d) (explaining that “impairment(s) cannot meet the

criteria of a [L]isting based only on a diagnosis. To meet the requirements of a [L]isting,


                                              7
you must have a medically determinable impairment(s) that satisfies all of the criteria in

the [L]isting.”). Salles’s failure to cite any evidence in the medical record to substantiate

her claim that her HIV is symptomatic dooms her claim.4 Likewise, Salles’s belatedly-

offered medical evidence of her depression shows that it was not disabling because that

impairment was controlled by medication. See 20 C.F.R. § 404.1530, see also Brown v.

Bowen, 845 F.2d 1211, 1215 (3d Cir. 1988).

       C. The ALJ’s Adverse Credibility Determination Was Not Improper

       Salles contends that the ALJ’s adverse credibility determination was erroneous. When

making credibility findings, the ALJ must indicate which evidence he rejects and which he relies

upon as the basis for his findings. See Schaudeck v. Commissioner of Social Sec. Admin., 181

F.3d 429, 433 (3d Cir. 1999). Inconsistencies in a claimant’s testimony or daily activities permit

an ALJ to conclude that some or all of the claimant’s testimony about her limitations or

symptoms is less than fully credible. See Burns v. Barnhart, 312 F.3d 113, 129-30 (3d Cir.

2002). Moreover, allegations of pain and other subjective symptoms must be supported by



       4
              The regulations provide that “any individual with HIV infection, including
              one with a diagnosis of acquired immunodeficiency syndrome (AIDS), may
              be found disabled under this [L]isting if his or her impairment meets any of
              the criteria in 14.08 or is of equivalent severity to any impairment in 14.08.”
              20 C.F.R., Pt. 404, Subpt. P, App. 1, 14.00(D)(1). Therefore, Social
              Security benefits are not available for a claimant whose positive HIV status
              is unaccompanied by one of various related disorders listed under 20 C.F.R.
              pt. 404, subpt. P, app. 1, §§ 14.08(A)–(N). The only “related disorder” that
              Salles has identified is chronic diarrhea. However, the ALJ properly found
              that Salles’s claim of chronic diarrhea was unsupported by the medical
              record, especially considering that Salles was prescribed a diuretic in 2002.

                                                 8
objective medical evidence. See 20 C.F.R. § 404.1529; see also Hartranft v. Apfel, 181 F.3d

358, 362 (3d Cir. 1999). Even “[l]imitations that are medically supported but are also

contradicted by other evidence in the record may or may not be found credible – the ALJ can

choose to credit portions of the existing evidence.” See Rutherford, 399 F.3d at 554.

       Contrary to Salles’s contention, the ALJ did not settle for a “quotation of the correct law”

but “fail[] to follow the actual guidelines contained in that law.” Salles Br. at 32. Rather, the

ALJ explained how his credibility assessment influenced his RFC:

             [T]he undersigned has considered [Salles’s] subjective allegations
             regarding her impairments and their functional effects[;] however
             these are not found to be fully credible. For instance, [Salles]
             testified as to suffering from constant and severe diarrhea. However,
             there is no documentation of such a manifestation from Dr. Miller,
             the University Hospital records, or Dr. Roque’s examination. [Salles]
             testified to having been prescribed a cane by her doctor, yet similarly
             indicated that she does not have any limitations in walking.
             Moreover, Dr. Miller’s progress note dated September 6, 2001, [...]
             as well as Dr. Goldberg’s examination report dated September 7,
             2001 [...] chronicle that [Salles] was then working as a nurse’s aid, a
             circumstance not reported by [her]. Additionally, [Salles’s] work
             history is noted to be nominal [...], a situation that does not serve to
             bolster her contentions of an inability to continue in work endeavors.
             It is therefore found that the degree of functional compromise
             purported by [Salles] is not substantiated by objective evidence.
These findings are specific enough to permit the Court to ascertain which evidence the

ALJ accepted, which evidence he rejected, and why. See Cotter v. Harris, 642 F.2d 700,

705 (3d Cir. 1981).

       Nor is there any doubt that the reasons the ALJ offered for his credibility

determination were legitimate. The ALJ discounted Salles’s testimony regarding her

subjective symptoms because of her poor work history, which reflected that she was

                                              9
unemployed from 1987 to 2000. Salles does not dispute this interpretation of her

employment record, and the ALJ properly considered it. See Dobrowolsky v. Califano,

606 F.2d 403, 409 (3d Cir. 1979). More specifically, the ALJ found that Salles’s claimed

limitations — including her alleged ambulatory limitations — were contradicted by her

own testimony and level of activity, which is another legitimate basis for discounting her

credibility. See Rutherford, 399 F.3d at 555 (3d Cir. 2005). Finally, the ALJ need not

have accepted any of Salles’s claimed limitations from depression or HIV, because the

record before him contained no medical evidence that her symptoms impaired her ability

to work. Allegations of pain and other subjective symptoms must be supported by

objective medical evidence. See 20 C.F.R. §§ 404.1529(c) and 416.929(c).

       D.     The ALJ’s RFC Assessment Was Not Erroneous

       Salles insists that the ALJ’s assessment of her RFC was “unexplained” because it

does not recognize specific limitations resulting from her HIV, Hepatitis, blurred right-

eye vision, and depression, and because it does not recognize all of the limitations caused

by her degenerative disc disease. We are unpersuaded.

       At Step Four, the Commissioner determines whether, despite her severe

impairments, the claimant retains the RFC to perform her past relevant work. See 20

C.F.R. §§ 404.1520(e), (f), 416.920(e), (f). The RFC reflects “what [the claimant] can

still do despite [her] limitations.” See 20 C.F.R. § 416.945(a). In making this

determination, “the ALJ must consider all evidence before him.” Burnett, 220 F.3d at

121 (citations omitted). Thus, “[a]lthough the impairment must be medically

                                            10
determinable, it need not be a “severe” impairment to be considered in the RFC

assessment.” See Rutherford, 399 F.3d at 554; see also 20 C.F.R. § 404.1523 (“[W]e will

consider the combined effect of all of your impairments without regard to whether such

impairment, if considered separately, would be of sufficient severity.”). The

determination of a claimant’s RFC is the exclusive responsibility of the ALJ. See 20

C.F.R. §§ 404.1527(e)(2), 404.1546, 416.927(e)(2), and 416.946.

       Significantly, the ALJ need only include in the RFC those limitations which he

finds to be credible. See Burnett, 220 F.3d at 121, see also Hartranft v. Apfel, 181 F.3d

358, 362 (3d Cir. 1999). Thus, to the extent that he found some of Salles’s alleged

limitations less than credible, the ALJ properly excluded them from the RFC. See Burns,

312 F.3d at 129. Salles bears the burden of demonstrating that she lacks sufficient RFC

to perform her past relevant work; if she fails to meet this burden, she will be denied

benefits. See 20 C.F.R. § 416.920(e).

       In the case at bar, the ALJ’s RFC assessment accounted for Salles’s monocular

vision (correctable to 20/30 or 20/40 in her right eye) and for the functional effects of her

degenerative disc disease, as found by the medical examiners. The ALJ used the specific

exertional limitations found by the reviewing physician — who had opined that Salles

was capable of medium work — as a point of reference but recognized greater limitations

consistent with light work, which gave Salles the benefit of the doubt. Because the ALJ

offered specific, factually-supported reasons for his conclusion that Salles’s alleged



                                             11
limitations from her back pain, monocular vision, HIV and Hepatitis were less than fully

credible, his RFC finding enjoys the support of substantial evidence.

       Although Salles complains that the ALJ ignored the limitations imposed by her

major depressive disorder and HIV infection, the Commissioner contends — and Salles

does not deny — that the record before the ALJ contained no clinical evidence to support

her testimony that she had been diagnosed with either of these ailments, let alone that

these ailments resulted in functional limitations. The record before the ALJ is the

touchstone for determining which limitations should be included in an RFC assessment.

See Burns, 312 F.3d at 131. A lack of evidentiary support in the medical record is a

legitimate reason for excluding claimed limitations from the RFC. See SSR 96-8p, 1996

WL 374184, at *1; see also 20 C.F.R. §§ 404.1529(a); 416.929(a) (same); Rutherford,

399 F.3d at 555. Additionally, the ALJ noted that Salles’s headaches and Hepatitis either

were controlled by medication or that she did not seek treatment for them consistently.

These considerations are supported by the record, and supplied ample reason to exclude

these other limitations from the RFC. Finally, the ALJ noted that Salles’s alleged visual

deficiency in her right eye “has been present for decades, and has not previously

precluded [her] from” working. This was a valid reason for excluding this limitation from

the RFC. See Jones v. Sullivan, 954 F.2d 125, 129 (3d Cir. 1991) (finding substantial

evidentiary support for an RFC assessment where, “[i]n performing the step 4 analysis,

the ALJ placed great weight on the fact that most of Jones’s ailments date back many



                                            12
years and yet did not prevent him from maintaining employment as a security guard.”).



       E.     The ALJ Gave Salles’s Treating Physician’s Opinion Proper Weight

       Salles also argues that the ALJ improperly rejected the opinion of Dr. Arthur

Miller (her treating physician) in favor of that of Dr. Celia Roque (a consultative

physician). This contention is unfounded.

       A treating physician’s opinion on the nature and severity of an impairment will be

given controlling weight only where it is well-supported by medically acceptable clinical

and laboratory diagnostic techniques and is not inconsistent with other substantial

evidence in the record. See Fargnoli v. Massanari, 247 F.3d 34, 43 (3d Cir. 2001). If,

however, the treating physician’s opinion conflicts with other medical evidence, then the

ALJ is free to give that opinion less than controlling weight or even reject it, so long as

the ALJ clearly explains her reasons and makes a clear record. See Jones, 954 F.2d at

129. When a treating source’s opinion is not entitled to controlling weight, it is evaluated

and weighed under the same standards applied to all other medical opinions, taking into

account numerous factors including the opinion’s supportability, consistency and

specialization. See 20 C.F.R. § 404.1527(d)(2). An ALJ need not defer to a treating

physician’s opinion about the ultimate issue of disability because that determination is an

administrative finding reserved to the Commissioner. See 20 C.F.R. § 404.1527(e).

       Dr. Miller opined that Salles’s back pain, Hepatitis C, and gall bladder disease

were “currently” disabling. However, the ALJ properly noted that Dr. Miller’s opinion

                                             13
was not supported by the other medical evidence of record — which showed that Salles

never had gall bladder surgery or a liver biopsy — and was contradicted by his own

treatment notes, in which he considered her overall prognosis to be “good.” In contrast,

Dr. Roque recognized that although Salles suffered from these ailments, they did not

preclude her from working full-time. Dr. Roque’s opinions were more consistent with the

medical records, which confirm that Salles was not taking medication for her Hepatitis,

and that conservative treatment of her gall bladder disease and back pain alleviated her

symptoms. Because the consultative physician’s observations were more consistent with

the weight of the evidence, the ALJ properly afforded them greater weight than the

opinion of the treating physician. See 20 C.F.R. § 416.927(d)(4).

       F.     The ALJ’s Step-Four Determination That Salles Could Return To Her
              Former Job Is Supported By Substantial Evidence

       Finally, Salles insists that the ALJ erred in finding that she could return to her prior

work as a telemarketing manager. Because Salles bears the ultimate burden of

establishing steps One through Four, she must show that she cannot return to her prior

job. See Ramirez, 372 F.3d at 550. Where, as here, substantial evidence supports the

ALJ’s RFC determination, a claimant challenging her Step-Four determination must

demonstrate that her RFC is inconsistent with the demands of her prior work. See Newell,

347 F.3d at 546.

       The ALJ concluded that Salles could resume work as a telemarketing manager.

Salles claims the ALJ erred in this regard because he ignored her testimony that problems


                                              14
with her right eye required her to leave that job and he failed to consider whether the

limitations imposed by her diarrhea and back pain are inconsistent with the demands of

this job. This argument fails because it depends upon Salles’s assignments of error to the

ALJ’s assessment of her credibility and RFC, arguments which we have rejected.5 As

explained above, however, the ALJ made proper credibility findings which explained

why he rejected some of Salles’s claimed limitations and symptoms. The ALJ rejected

Salles’s contention that visual problems with her right eye precluded her return to the

workforce, and all of the available medical evidence — which shows that Salles’s vision

in her good eye is at least correctable to 20/40 — supports this conclusion. The ALJ also

ensured that all of the limitations and symptoms which were credibly established by the

record as a whole were expressed in his RFC determination. That being so, Salles’s claim

that the ALJ erred in his ultimate finding that she had not met her burden of proof at Step

Four must be rejected.

                                            V.


       5
              For example, Salles’s primary criticism of the ALJ’s Step-Four finding that
              she could return to her former job is that this finding did not follow a
              function-by-function analysis of her limitations. Although this Court has
              held that the ALJ need not “use particular language or adhere to a particular
              format in conducting his analysis,” see Jones v. Barnhart, 364 F.3d 501,
              505 (3d Cir. 2004), it is true that the Agency has stated that “the [RFC] is a
              function-by-function assessment based on all of the relevant evidence of an
              individual’s ability to do work-related activities.” See SSR 96-8p. Under
              the SSRs, then, any error in an ALJ’s omission to perform a “function by
              function” analysis would occur, if at all, in his RFC assessment. As
              previously explained, we find the ALJ’s RFC assessment in this case to be
              supported by substantial evidence.

                                            15
       For all of the foregoing reasons, the Court finds that the decision of the

Commissioner is supported by substantial evidence and free from material error.

Accordingly, the order of the District Court will be affirmed.




                                             16
