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


8-16-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-3914




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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                ____________

                                     No. 06-3914
                                    ____________

                                WILLIAM YENSICK,

                                           Appellant

                                           v.

                             JO ANN B. BARNHART,
                           Commissioner of Social Security
                                  ____________

                   On Appeal from the United States District Court
                       for the Western District of Pennsylvania
                                (D.C. No. 05-cv-00908)
                   District Judge: Honorable Thomas M. Hardiman
                                    ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   May 18, 2007

      Before: FISHER and ROTH, Circuit Judges, and RAMBO,* District Judge.

                                       (Filed: )
                                    ____________

                             OPINION OF THE COURT
                                  ____________

RAMBO, District Judge.




      *
        The Honorable Sylvia H. Rambo, United States District Judge for the Middle
District of Pennsylvania, sitting by designation.
       William Yensick applied for and was denied supplemental security income. An

Administrative Law Judge (“ALJ”) for the Social Security Administration heard

testimony as to Yensick’s claim on July 14, 2004. After taking testimony and reviewing

documentary evidence, the ALJ denied Yensick’s claim on December 4, 2004, in a

seventeen page opinion. The Social Security Appeals Council denied review. On July 7,

2005, Yensick filed a complaint in the Western District of Pennsylvania requesting

judicial review of the ALJ’s decision. Summary judgment was granted for the

Commissioner. Yensick timely appealed. He argues that the ALJ erred at the final stage

of the five-step process for determining whether a claimant is entitled to disability

benefits. For the reasons that follow, we will vacate the order of summary judgment and

remand this case for further proceedings.

                                              I.

       As we write only for the parties, who are familiar with the factual context and the

procedural history of the case, we will set forth only those facts necessary to our analysis.

The ALJ recited much of the substantial medical evidence on record in his written

opinion. Yensick claims error in that the ALJ did not adequately support his decision to

disregard the opinions provided by three individuals: Charles H. Goyette, Ph.D., a

consulting psychologist; Robert Eby, Yensick’s counselor; and Dr. Victoria Sepesky,

Yensick’s treating pain physician.

       Dr. Goyette provided an assessment of Yensick’s intellectual and psychological

functioning, his academic achievement, neurocognitive and dexterity functioning, and

                                              2
vocational interests. His findings are set forth in the ALJ’s written opinion. (R. at 20.)

Dr. Goyette concluded “that the claimant would likely be unable to obtain and maintain

any type of gainful employment if his physical impairments were confirmed by his

medical records.” (R. at 29-30.) The ALJ found this last assertion “not credible” and did

not give it any significant weight because “Dr. Goyette is a psychologist and could not be

expected to have an opinion regarding [Yensick’s] physical impairments.” (R. at 30.)

       Mr. Eby had seen Yensick every other week for approximately two years at the

time that he provided an opinion on Yensick’s psychological limitations. Evidence from

Mr. Eby included an assessment of Yensick’s mental ability to do work-related activities,

a mental impairment questionnaire, and his notes of Yensick’s treatment. Mr. Eby’s

opinions are set forth in the ALJ’s written decision. (R. at 22.) The ALJ rejected Mr.

Eby’s opinion that Yensick “had mental limitations which would be disabling” because

Mr. Eby also “reported that the claimant had a global assessment of functioning of 55 and

60 [according to the DSM-IV] over the prior year” which indicates moderate symptoms

(R. at 30 (citations to the record omitted).) The ALJ also noted that Mr. Eby’s own

records indicate that Yensick’s psychological condition was improving. Thus, the ALJ

gave no significant weight to Mr. Eby’s opinion that Yensick was disabled. (Id.)

       Yensick treated with Dr. Sepesky for pain from on or about December 2001

through on or about May 5, 2004. (R. at 411-40.) She submitted a medical questionnaire

evaluating Yensick’s physical capacities on April 1, 2004. (R. at 402-05.) She indicated

that, in an eight-hour work day, Yensick was able to sit for two hours per day, stand for

                                             3
two hours per day, and walk one hour per day, with a change-of-position break every

fifteen to twenty minutes. (R. at 402.) Dr. Sepesky noted that Yensick was not capable

of bending, stooping, crawling, climbing, crouching, or kneeling. (R. at 403.) He could

balance on his own for, at most, one hour. (Id.) He could lift up to five pounds

frequently in the course of a work day and could lift up to twenty pounds occasionally,

but could never lift more than twenty pounds. (Id.) Dr. Sepesky indicated that Yensick

needed complete freedom to rest frequently throughout the day and that it was necessary

for him to lie down or sit on a recliner for substantial portions of the day. (R. at 404.)

Further, Dr. Sepesky indicated that Yensick’s condition was permanent. (Id.) The ALJ

summarized these findings as to Yensick’s pain level and his resulting work limitations.

(R. at 24, 27.) The ALJ did not, however, indicate whether he accepted or rejected her

opinions.

       At the hearing on Yensick’s claim, the ALJ asked a vocational expert the

following hypothetical question:

       Q: Please assume a younger individual with a high school education
       precluded from performing all but sedentary work with a sit/stand option.
       Occasional posturals. No hazards. Clean air. Unskilled low stress defined
       as one- and two-step processes, routine and repetitive tasks, primarily
       working with things rather than people, entry level. With these limitations,
       can you describe any work that this hypothetical individual can perform?

       A: Yes, Your Honor, there are jobs at the sedentary level that would
       comply with the hypothetical. Some examples are inspector/checkers, 150
       local, 37,000 nation. Sorters and graders, 100 local, 20,000 nation. Waxers
       of glass products, 160 local, 66,000 nation. And assemblers of small
       products, 650 local, 149,000 nation.


                                              4
(R. at 69.)

       Then the ALJ asked additional hypothetical questions that modified the original,

one of which was the following:

       Q: There’s also an RFC of Dr. Sapeski [sic], the claimant’s pain physician,
       in which she states . . . [that] the claimant can sit, stand, and walk only 5
       hours total, is that inconsistent with the type of jobs you name?

       A: Yes, it is, Your Honor. The jobs that I gave to your hypothetical are all
       8 hours a day 5 days a week.

(R. at 70.) Yensick’s attorney then asked one additional hypothetical question:

       Q: [T]he jobs that you testified to in hypothetical number one, if we were to
       add an inability to perform fine manipulation how would that affect the jobs
       that you described for the judge?

       A: That would eliminate those jobs. These jobs all require bimanual
       dexterity and fine manipulation.

(R. at 71.)

       Yensick’s attorney did not otherwise object to the limitations as stated in the ALJ’s

questions.

       In his written opinion, the ALJ concluded that in light of the testimony of the

vocational expert, Yensick’s age, educational background, work experience, and residual

functional capacity, Yensick was “capable of making a successful adjustment to work that

exists in significant numbers in the national economy.” (R. at 31.) Thus, the ALJ found

Yensick not disabled.

                                            II.



                                             5
       We have jurisdiction pursuant to 28 U.S.C. § 1291 and 42 U.S.C. § 405(g). We

exercise plenary review of the District Court’s grant of summary judgment to the

Commissioner, and may reverse only if the findings made by the ALJ were not supported

by “substantial evidence.” Ramirez v. Barnhart, 372 F.3d 546, 550 (3d Cir. 2004).

“Substantial evidence” is less than a preponderance but more than a mere scintilla; it 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) (quotation omitted); Jones

v. Barnhart, 364 F.3d 501, 503 (3d Cir. 2004).

       Meaningful appellate review of a decision made by an ALJ is possible only when

the ALJ sets forth the reasons supporting his decision. Burnett v. Comm’r of Social

Security Admin., 220 F.3d 112, 119 (3d Cir. 2000). Conclusory statements regarding the

evidence or the condition of the claimant are not sufficient. Id. Rather, the ALJ should

“fully develop the record and explain his findings” so that we may determine whether his

conclusions are supported by substantial evidence. Id. at 120; accord Jones, 364 F.3d at

505.

                                            III.

       The Social Security Administration has promulgated a five-step process to

evaluate a claim of disability. The Administration must consider, in the following order,

the following factors: 1) whether the claimant is currently working; 2) whether the

claimant has a severe impairment; 3) whether the claimant has an impairment that meets

or equals the requirements of an impairment listed in the regulations; 4) whether the

                                             6
claimant can, in light of his disability and residual functional capacity1 (“RFC”), perform

his past relevant work; and 5) if the claimant is unable to perform his past relevant work,

whether work exists in significant numbers in the national economy that the claimant can

perform given his medical impairments, age, education, past work experience, and RFC.

See 20 C.F.R. § 404.1520(a)(4); Jones, 364 F.3d at 503. There is no dispute that Yensick

meets the criteria in steps one through four. This appeal arises out of the ALJ’s findings

regarding step five, namely that there is work that Yensick can perform existing in

significant numbers in the national economy, given his medical impairments, age,

education, past work experience, and RFC.

       In the course of drawing a conclusion as to step five, the ALJ may rely on

testimony from a vocational expert. Rutherford v. Barnhart, 399 F.3d 546, 551 (3d Cir.

2005). Routinely, an ALJ will pose a hypothetical question to the expert, asking whether

work exists in significant numbers in the national economy that could be performed by a

person with the claimant’s medical impairments, age, education, past work experience,

and RFC. The question must “reflect all of a claimant’s impairments that are supported

by the record.” Chrupcala v. Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987); Podedworny

v. Harris, 745 F.2d 210, 218 (3d Cir. 1984). If the question does not reflect all of a

claimant’s impairments undisputed by the record, “the expert’s response is not considered

substantial evidence” of whether work exists in significant numbers in the national


       1
        A claimant’s RFC is that which the claimant is still able to do despite the
limitations caused by his impairments. 20 C.F.R. § 404.1545(a)(1).

                                             7
economy that could be performed by the claimant. Burns v. Barnhart, 312 F.3d 113, 123

(3d Cir. 2002).

       In Rutherford, 399 F.3d at 554 n.8, we observed that challenges under step five of

the disability determination are made in one of two ways: 1) the ALJ failed to convey all

of a claimant’s limitations to the vocational expert in his hypothetical question and 2) the

ALJ failed to recognize credibly-established limitations during the RFC assessment, and

therefore failed to convey those limitations to the vocational expert. Here, Yensick’s

appeal is best understood as, first, a challenge to the RFC assessment. If the RFC

assessment was not supported by substantial evidence, Yensick then argues that the

hypothetical question posed to the vocational expert necessarily was posed in error.

       The ALJ must weigh the credibility of the medical and non-medical evidence

before him to determine a claimant’s RFC. Fargnoli v. Massanari, 247 F.3d 34, 41 (3d

Cir. 2001); Burnett, 220 F.3d at 122. The ALJ’s explanation of his conclusion must be as

comprehensive and as analytical as possible and should include a statement of the facts in

support so that we may discharge our duty to determine whether the conclusion is

supported by substantial evidence. Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981).

Without this explanation “the reviewing court cannot tell if significant probative evidence

was not credited or simply ignored.” Burnett, 220 F.3d at 121 (quoting Cotter, 642 F.2d

at 705). “Where there is conflicting probative evidence in the record, we recognize a

particularly acute need for an explanation of the reasoning behind the ALJ’s conclusions,



                                             8
and will vacate or remand a case where such an explanation is not provided.” Fargnoli,

247 F.3d at 42.

       The ALJ must consider all relevant evidence from “acceptable medical sources”

when determining a claimant’s RFC. 20 C.F.R. § 416.913(a); Fargnoli, 247 F.3d at 41.

An acceptable medical source, for current purposes, is a licensed physician or a licensed

or certified psychologist. 20 C.F.R. § 416.913(a). An opinion by a claimant’s treating

physician is entitled to substantial and sometimes controlling weight because a treating

physician can “provide a detailed, longitudinal picture of [the claimant’s] medical

impairment(s) and may bring a unique perspective to the medical evidence that cannot be

obtained from [other sources].” 20 C.F.R. § 404.1527(d)(2). The treating physician’s

opinion must be supported by acceptable medical diagnostic techniques and be consistent

with other substantial evidence in the case to be afforded greater or controlling weight.

Fargnoli, 247 F.3d at 41; see 20 C.F.R. § 404.1527(d)(2). If there is contradictory

medical evidence in the record, including an opinion provided by a non-treating, non-

examining physician, however, the ALJ may accept the most credible medical opinion.

Plummer v. Apfel, 186 F.3d 422, 429 (3d Cir. 1999). The ALJ may not “reject evidence

for no reason or for the wrong reason.” Rutherford, 399 F.3d at 554. Further, an ALJ “is

not free to employ [his] own expertise against that of a physician who presents competent

medical evidence.” Plummer, 186 F.3d at 429; Frankenfield v. Bowen, 861 F.2d 405, 408

(3d Cir. 1988).



                                             9
       The ALJ may also consider other opinions about a claimant’s disability from

persons who are not deemed “acceptable medical sources,” such as a therapist who is not

a licensed or certified psychologist. 20 C.F.R. § 416.913(d)(1). A treating therapist’s

opinion is not entitled to controlling weight, however. Hartranft v. Apfel, 181 F.3d 358,

361 (3d Cir. 1999); compare § 416.913(d) with § 404.1527(d)(2).

       Here, the ALJ set forth thirteen pages summarizing the evidence of Yensick’s

disability that he considered relevant. (R. at 18-31.) He concluded that Yensick had the

RFC to

       perform sedentary, sit/stand work. He must perform unskilled, entry level,
       low stress work with one to two step routine, repetitive tasks, working
       primarily with things rather than people. He must also work in a clean air
       environment with no requirement for more than occasional posturals, and
       no exposure to hazards such as dangerous and moving machinery or
       unprotected heights.

(R. at 29.) The ALJ then described the evidence he rejected in reaching his conclusion

about Yensick’s RFC.

                                 A. Dr. Goyette’s Opinion

       The plain language of the opinion states that the ALJ rejected only Dr. Goyette’s

assessment of Yensick’s physical capacities, and that he did so because Dr. Goyette is a

psychologist, not a medical doctor. Further, the record demonstrates that the ALJ

incorporated other parts of Dr. Goyette’s opinion into his analysis of all relevant

evidence. (R. at 19-20, 32.) Dr. Goyette’s diagnosis was “impulse control disorder, not

otherwise specified; mixed personality disorder, with schizoid and paranoid features.”


                                             10
(R. at 20.) The ALJ specifically incorporated these diagnoses into his findings on

Yensick’s limitations (R. at 32), while noting that Yensick’s mental health was improving

(R. at 30). Additionally, the ALJ drew on Dr. Goyette’s opinion that Yensick’s

concentration was adequate. (Id.) Yensick’s argument that the ALJ rejected Dr.

Goyette’s opinion in its entirety (Appellant’s Br. 20) is without merit. We find that the

ALJ’s stated reason for rejecting one of Dr. Goyette’s many proffered opinions about

Yensick’s limitations satisfies his obligation to provide a meaningful record for appellate

review.

                                   B. Mr. Eby’s Opinion

       Yensick concedes that Mr. Eby is not an “acceptable medical source” whose

opinion is entitled to controlling weight. (Appellant’s Br. 21.) The ALJ was entitled to,

and did, consider some evidence from Mr. Eby. See 20 C.F.R. § 416.913(d)(1);

Hartranft, 181 F.3d at 361. The ALJ rejected Mr. Eby’s opinion that Yensick had

disabling mental limitations because Mr. Eby himself and Dr. Iyengar, a supervising

psychiatrist, reported contradictory evidence that Yensick had only moderate symptoms

of mental disability or moderate difficulty in social or occupational situations. (R. at 30.)

Mr. Eby also opined that Yensick’s psychological condition was improving. The ALJ

noted a conflict in the evidence presented by the same treating source. It was properly

within his purview to reject certain evidence that was inconsistent with substantial

evidence and he stated his reason for doing so on the record. Yensick’s argument that the

ALJ “totally” rejected Mr. Eby’s opinions (Appellant’s Br. 21) is without merit. The

                                             11
ALJ’s stated reason for disregarding one element of Mr. Eby’s assessment provides a

satisfactory factual record for appellate review.

                                 C. Dr. Sepesky’s Opinion

       Yensick treated with Dr. Sepesky for pain from in or about December 2001

through on or about May 5, 2004. (R. at 411-40.) She is an acceptable medical source

for an opinion as to Yensick’s disability under 20 C.F.R. § 416.913(a)(a) as a licensed

physician. As a treating physician, Dr. Sepesky’s opinion should have been given

controlling weight to the extent that her opinion was “well supported by medically

acceptable clinical and laboratory diagnostic techniques and [was] not inconsistent with

the other substantial evidence” in Yensick’s case. See 20 C.F.R. § 404.1527(d)(2);

Fargnoli, 247 F.3d at 41. Dr. Sepesky submitted a medical questionnaire evaluating

Yensick’s physical capacities on April 1, 2004. (R. at 402-05.) She indicated that, in an

eight-hour work day, Yensick was able to sit for two hours, stand for two hours, and walk

for one hour, with a change-of-position break every fifteen to twenty minutes. (R. at

402.) Dr. Sepesky noted that Yensick was not capable of bending, stooping, crawling,

climbing, crouching, or kneeling. (R. at 403.) He could balance on his own for, at most,

one hour. (Id.) He could lift up to five pounds frequently in the course of a work day and

could lift up to twenty pounds occasionally, but could never lift more than twenty pounds.

(Id.) Dr. Sepesky indicated that Yensick needed complete freedom to rest frequently

throughout the day and that it was necessary for him to lie down or sit on a recliner for



                                             12
substantial portions of the day. (R. at 404.) Further, Dr. Sepesky indicated that Yensick’s

condition was permanent. (Id.)

       The ALJ noted that Yensick had treated with Dr. Sepesky (R. at 24) and

summarized her submissions on the medical questionnaire (R. at 27), but made no further

mention of the opinions stated therein. He did not provide an explicit indication as to

whether he accepted or rejected the evidence from Dr. Sepesky, nor did he give reasons

for doing so. We can infer that he rejected it because his conclusion as to Yensick’s RFC

is inconsistent with Dr. Sepesky’s stated opinions about Yensick’s abilities and

limitations. The ALJ concluded that Yensick had the capacity to perform “sedentary,

sit/stand work . . . unskilled, entry level, low stress work with a one to two step routine,

repetitive tasks, working primarily with things rather than people . . . with no requirement

for more than occasional posturals.” (R. at 29.) Sedentary work

       involves lifting no more than 10 pounds at a time and occasionally lifting or
       carrying articles like docket files, ledgers, and small tools. Although a
       sedentary job is defined as one which involves sitting, a certain amount of
       walking and standing is often necessary in carrying out job duties. Jobs are
       sedentary if walking and standing are required occasionally and other
       sedentary criteria are met.”

20 C.F.R. § 416.967(a). Aside from the restriction as to the amount of weight to be lifted,

“sedentary work” as defined in § 416.967(a) is inconsistent with the very precise

limitations indicated by Dr. Sepesky.

       There is probative evidence of record that conflicts with Dr. Sepesky’s opinion

about Yensick’s limitations. Thus, as we noted in Fargnoli, there is “a particularly acute


                                              13
need for an explanation of the reasoning” supporting the ALJ’s decision to reject her

conclusions. See 247 F.3d at 42. It may be that the ALJ determined that contrary medical

evidence so undermined Dr. Sepesky’s opinion that it was not entitled to controlling

weight. It may be that Dr. Sepesky’s opinions stated in the questionnaire were not due

controlling weight because they were not supported by a written report, test results, or

other substantial evidence. We have no way to know because the ALJ did not perform

the duty incumbent upon him to explain the reasons that he accepted or rejected her

conclusions. We cannot determine if the potentially-probative evidence of Dr. Sepesky’s

opinion “was not credited or simply ignored.” See Burnett, 220 F.3d at 121. Without

knowing why the ALJ failed to credit Dr. Sepesky’s opinion, we cannot conclude that his

finding as to Yensick’s RFC was supported by substantial evidence.

       Thus, on remand, the ALJ must fully consider all of Dr. Sepesky’s opinions as

they relate to other evidence in this case. If he concludes that her opinions are not

supported by substantial evidence, he shall state his reasons for so finding. If, however,

he determines that some or all of her opinions are supported by substantial evidence and

controlling, he must reassess Yensick’s RFC in light of the limitations she identifies.

       If Yensick’s RFC changes because of Dr. Sepesky’s opinions, the ALJ will be

required to reexamine his conclusion achieved at step five of the analysis promulgated by

the Social Security Administration: whether work exists in significant numbers in the

national economy that Yensick can perform given his medical impairments, age,

education, past work experience, and RFC. See 20 C.F.R. § 404.1520(a)(4)(v) (“At the

                                             14
fifth and last step, we consider our assessment of your residual functional capacity [and

other factors] to see if you can make an adjustment to other work.”). Before making this

decision, the ALJ must pose a hypothetical question to a vocational expert that reflects all

of Yensick’s impairments supported by significant evidence on record, including those

opinions by Dr. Sepesky that the ALJ deems credible. Chrupcala v. Heckler, 829 F.2d

1269, 1276 (3d Cir. 1987); Podedworny v. Harris, 745 F.2d 210, 218 (3d Cir. 1984). If

all impairments are included in this hypothetical, the expert’s response will be considered

substantial evidence of whether work exists in significant numbers in the national

economy that Yensick could perform. Burns v. Barnhart, 312 F.3d 113, 123 (3d Cir.

2002). Thus informed, the ALJ may render his decision as to whether Yensick is

disabled.2

                                            IV.

       For the foregoing reasons, we will vacate the District Court’s grant of summary

judgment in favor of the Commissioner. We will remand this case for proceedings not

inconsistent with this opinion.


       2
        Yensick argues further that the hypothetical questions were flawed because they
did not incorporate evidence from Dr. Goyette and Mr. Eby. His arguments are without
merit, as discussed supra, because the ALJ properly incorporated or rejected their
opinions in assessing Yensick’s RFC and composing the hypotheticals. Moreover,
Yensick did not object to the questions posed by the ALJ at the hearing and did not ask
alternative hypothetical questions that encompassed the limitations he now argues should
have been included. Exceptions not noted before the ALJ are waived on appeal. C.f.
Matthews v. Apfel, 239 F.3d 589, 595 (3d Cir. 2001) (Sound policy “require[s] claimants
to present all material evidence to the ALJ and prohibit judicial review of new evidence
unless there is good reason for not having brought it before the ALJ.”).

                                            15
