                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-22-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-4780




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"Thimou v. Comm Social Security" (2004). 2004 Decisions. Paper 586.
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                                                          NOT PRECEDENTIAL

                    IN THE UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                _______________

                                        No. 03-4780
                                     ________________

                                   PATRICIA THIMOU
                                                  Appellant
                                          v.


                       COMM ISSIONER OF SOCIAL SECURITY

                       ____________________________________

                     On Appeal From the United States District Court
                               For the District of New Jersey
                                  (D.C. No. 02-cv-00149)
                      District Judge: Honorable Mary Little Cooper
                     _______________________________________

                       Submitted Under Third Circuit LAR 34.1(a)
                                 June 15, 2004
                  Before: ALITO, SMITH and BECKER, Circuit Judges


                                   (Filed: June 22, 2004)
                                _______________________

                                       OPINION
                                _______________________

BECKER, Circuit Judge.

       Patricia Thimou appeals from an order of the District Court granting summary

judgment in favor of the defendant, Commissioner of Social Security, on Thimou’s claim

for disability benefits. Rejecting plaintiff’s contentions to the contrary, the District Court
concluded that the Administrative Law Judge (“ALJ”) properly explained the bases for

his findings at steps three and four of the Commissioner’s sequential evaluation process,

and that substantial evidence supported the ALJ’s decision that Thimou was not disabled

within the meaning of the Act. We affirm. Because the parties are fully familiar with the

background facts and procedural history we need not set them forth, and limit our

discussion largely to our ratio decidendi.

       The brief of plaintiff’s counsel, who is well versed in the Social Security Act

jurisprudence of this Court, is suffused with quotations from some of our leading cases,1

which set forth the burdens we have imposed on Social Security ALJ’s to clearly

articulate and document their findings. We take these cases seriously, of course, but find

that, in this case, the ALJ’s stewardship passes muster.

       The principal focus of Thimou’s attack on the ALJ’s decision relates to his

rejection of the contention that Thimou’s condition meets the criteria of the listed

impairments. Thimou scores the ALJ’s finding that

       The claimant has no impairment which meets or equals in severity the
       criteria of any of the listed impairments described in Appendix 1 of the
       Regulations (20 CFR Part 404, Subpart P, Appendix 1). No treating or
       examining physician has mentioned findings equivalent in severity to the
       criteria of any listed impairments (Decision, pg. 2, Tr. 15).

with the barb:

       To which listed impairment did the ALJ make such a comparison? The

  1
   E.g. Cotter v. Harris, 642 F.2d 700 (3d Cir. 1981); Kent v. Schweiker, 710 F.2d 110
(3d Cir. 1983); Burnett v. Comm’r of Soc. Sec. Admin., 220 F.3d 112 (3d Cir. 2000).

                                             2
       Listing of Impairments in Appendix 1 consists of 14 chapters, over 120
       separate listed impairments and even more subchapters within individual
       listings, each affording a different disease process, the equivalent of any
       one of which would authorize presumptive disability. To which of these
       chapters, paragraphs and subparagraphs and to which of these separate
       disease processes did the ALJ compare appellant’s impairments? The ALJ
       did not identify the specific listing of [sic] group of listings he utilized for
       comparison. The ALJ made no comparison. The ALJ did not discuss the
       medical equivalence in any manner whatsoever and certainly did not
       identify which elements were missing from which criteria of which listing.
       This conclusory statement cannot be the subject of any meaningful judicial
       review by this Court or any other Court since no Court can honestly discern
       the basis for the ALJ’s finding at step three of the sequential evaluation.
       The ALJ’s analysis at step three is almost a word-for-word copy of the
       exact analysis rejected by this Court in the Burnett holding.

       This contention, however, is mistaken, for the ALJ discussed in detail the critical

testimony bearing on Thimou’s listings claim, i.e., the testimony of plaintiff’s medical

expert, Dr. Albert G. Mylod. In fact, the ALJ devoted numerous paragraphs of his report

to an analysis of Dr. Mylod’s testimony and the records of the Overlook and Union

hospitals chronicling Thimou’s numerous visits and the condition of her knee at the time

of those visits. The ALJ accorded the testimony of Dr. Mylod “little weight,” pointing

out that, notwithstanding Dr. Mylod’s declaration that Thimou “equalled” listings 1.02

and 1.03 at various times, there were missing components of the listings at each time

which Dr. Mylod was either unable to supply, or supplied by transporting the later

findings of Dr. Nadel, beyond the covered period, backwards into that period. In short,

the rejection of Mylod’s testimony was reasoned, and the ALJ’s findings on the listings

are supported by substantial evidence.



                                              3
       There is no doubt that Thimou had, at times relevant, physical limitations,

primarily due to her knee problems. 2 Notwithstanding this, the ALJ concluded that

Thimou possessed the residual functional capacity (“RFC”) to perform sedentary work.

Although Thimou criticizes the adequacy of the ALJ’s RFC analysis under our case law,

see supra n.1, again we are satisfied that the ALJ’s discussion contains the requisite

amount of detail to permit us to determine whether the evidence was properly considered,

and that it passes muster.

       The ALJ based his conclusion that Thimou could perform sedentary work on the

medical evidence in the record, including treatment notes from Overlook Hospital and Dr.

Mylod’s testimony, as well as Thimou’s testimony. In this regard, treatment notes from

Overlook Hospital during the period prior to August 1997 demonstrate no significantly

abnormal clinical findings related to Thimou’s knees, and particularly that she had no

inflammation or swelling of her knees. The ALJ also considered Thimou’s own

testimony, and in light of the entire record, concluded that Thimou had the RFC of

performing her prior job as a secretary. We are satisfied that this finding was supported

by substantial evidence.

       The judgment of the District Court will be affirmed.




  2
      Although Thimou had other serious ailments including a (repaired) aneurysm and a
sometime seizure disorder, and also problems with her hands and an abnormal EKG, there
was no evidence that these were disabling.

                                             4
