                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-24-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4185




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                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                       No: 04-4185

                                  CAROL A. HATTON,
                                              Appellant

                                              v.

                             COMMISSIONER OF SOCIAL
                            SECURITY ADMINISTRATION

                       Appeal from the United States District Court
                         for the Western District of Pennsylvania
                                  (Civ. No. 04-cv-00313)
                        District Judge: Hon. Thomas M. Hardiman

                       Submitted under Third Circuit LAR 34.1(a)
                                     May 5, 2005

                   Before: McKEE, SMITH and VAN ANTWERPEN,
                                   Circuit Judges

                                   (filed: May 24, 2005 )

                                           OPINION

McKEE, Circuit Judge.

       Carol A. Hatton appeals from the district court’s order affirming the decision of

the Commissioner of Social Security denying her application for Disability Insurance

Benefits (“DIB”) under Title II of the Social Security Act. 42 U.S.C. §§ 401-433. For

the reasons that follow, we will affirm.



                                              1
                                            I.

       Hatton filed an application for DIB on August 23, 2003, alleging that she had been

disabled since December 25, 2000 due solely to mental impairments. The state agency

denied her application, and Hatton requested an administrative hearing. In her request for

a hearing, she again alleged disability based solely on her mental impairments.

       After an administrative hearing, an Administrative Law Judge denied Hatton’s

application, finding that she was not disabled because she could perform a significant

number of jobs in the national economy. The ALJ’s decision became the final agency

decision subject to judicial review when the Appeals Council denied Hatton’s request for

review. 20 C.F.R. § 404.981.

       Having exhausted her administrative remedies, Hatton filed a civil action in the

district court. On cross-motions for summary judgment, the district court held that the

ALJ’s decision was supported by substantial evidence. This appeal followed.

                                            II.

       Our scope of review is limited to determining if the Commissioner's decision is

supported by substantial evidence. 42 U.S.C. §§ 405(g), 1383(c)(3); Monsour Medical

Ctr. v. Heckler, 806 F.2d 1185, 1190 (3d Cir. 1986). The ALJ's decision is the final

decision of the Commissioner when the Appeals Council denies a request for review.

Sims v. Apfel, 530 U.S. 103, 107 (2000). Substantial evidence refers to that evidence that

"a reasonable mind might accept as adequate to support a conclusion." Richardson v.



                                             2
Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S.

197, 229 (1938)). It is "more than a mere scintilla but may be somewhat less than a

preponderance of the evidence." Ginsberg v. Richardson, 436 F.2d 1146, 1148 (3d Cir.

1971).

                                              III.

         Because we write only for the parties, we will discuss only the facts that are

relevant to our disposition of this appeal. Hatton’s first argument is that the ALJ erred in

weighing the medical opinions of record in concluding that she could perform a limited

range of medium work. In particular, she argues that the ALJ failed to give controlling

weight to the treatment notes of Keystone Rehabilitation Center and failed to give

controlling weight to the opinion of her treating psychiatrist. We disagree.

         The treatment notes of Keystone Rehabilitation Center to which Hatton refers are

physical therapy notes of John Bitsko, P.T., from May 8, 2003 through June 3, 2003

which recite that Hatton had difficulty walking and sleeping due to pain.1 Hatton

contends that the ALJ erred by not giving controlling weight to those notes. However, a

physical therapist is not an acceptable medical source. 20 C.F.R. 404.1513(a).

(Acceptable medical sources include licensed physicians, licensed or certified

psychologists, licensed optometrists, licensed podiatrists and qualified speech-language




         1
        As noted, Hatton initially alleged disability solely due to mental impairments.
Later, however, she complained of back, abdominal or chest pain.

                                               3
pathologists). Consequently, the rules for evaluating acceptable medical source

statements do not apply to the physical therapist’s notes. 20 C.F.R. § 404.1527(a)(2).

Statements from a physical therapist are entitled to consideration as additional evidence,

but are not entitled to controlling weight. 20 C.F.R. § 404.1513(d). Here, the ALJ did

consider the treatment notes, but she was not required to afford them controlling weight.

       Moreover, the statements from the physical therapy notes are simply a recitation of

Hatton’s own subjective complaints. Bitsko noted that Hatton complained of difficulty

standing, walking and sleeping due to pain. He did not clinically observe such difficulty.

In his clinical observation, Bitsko reported that Hatton ambulated independently without

an assistive device, with an antalgic gait on the left but no trunk rotation. She had no

motor or sensory deficit on examination. Even if it is assumed for the moment that Bitsko

was an acceptable medical source, a medical source’s recitation of subjective complaints

is not entitled to any weight. See 20 C.F.R. § 404.1527(d)(2) (providing that a

physician’s opinion must be well-supported by objective medical findings in order to be

entitled to weight); see also Craig v. Chater, 76 F.3d 585, 590 n.2 (4th Cir. 1996)

(holding that a medical source does not transform the claimant’s subjective complaints

into objective findings simply by recording them in his narrative report). Therefore, the

ALJ was not required to adopt the subjective limitations that Bitsko repeated, but did not

observe in his clinical examination.

       The ALJ reviewed x-rays and MRIs showing only mild or minimal degenerative



                                              4
changes. She also reviewed clinical examinations showing some limitations but generally

normal neurological, motor and sensory function. The ALJ also considered Hatton’s

disability forms, in which she failed to report any physical impairment at all. Finally, the

ALJ evaluated Hatton’s daily activities, which included working as a caretaker at least

three days a week for a significant portion of the claimed period of disability. Based on

these things, the ALJ found that Hatton retained the ability to perform medium work with

only occasional postural activities; less than occasional kneeling, crouching, crawling, or

squatting; no climbing or stairs; and no pushing or pulling with the left leg. The ALJ’s

finding as to Hatton’s physical limitations was supported by substantial evidence.

       Hatton also argues that the ALJ failed to give controlling weight to the opinion of

her treating psychiatrist, Emira Zubchevich, M.D. We again disagree. Hatton did not

seek any psychiatric treatment until June 2003, eighteen months after the claimed onset of

disability. At that time, she saw Dr. Zubchevich complaining of anxiety and depression.

Although Hatton had difficulty doing serial sevens, she reported that she could generally

concentrate on her reading and daily work. She also had good remote and recent past

memory and fair recent memory. Dr. Zubchevich diagnosed a major depressive disorder

and concluded that Hatton was unable to adapt in social or occupational activities. She

opined that Hatton had moderately impaired daily activities and social functioning and

markedly impaired concentration and adaptation.

       Hatton did not return for follow-up psychiatric treatment with Dr. Zubchevich until



                                              5
September 2003. Dr. Zubchevich again concluded that Hatton was unable to work due to

a combination of her obesity, pain, limited range of skills and depression. Dr.

Zubchevich discharged Hatton from her care and instructed her to pursue counseling

closer to home.

       However, the record contains two medical opinions contradicting Dr. Zubchevich.

On November 18, 2002, Hatton had a consultative psychological evaluation with Michael

Crabtree, Ph.D. Hatton denied suicidal thoughts and stated that she used to have

problems with sleeping. Hatton had good abstract thinking, average intelligence and

good concentration. She had no difficulty performing serial sevens and demonstrated

normal memory and judgment on testing. She showed no signs of depression and no

high levels of anxiety or stress on clinical evaluation.

       Dr. Crabtree opined that Hatton had no diagnosable mental impairment. She was

capable of performing her daily activities, including shopping, cooking, cleaning and

maintaining a residence. She had very good social functioning and good concentration,

persistence, and pace. Dr. Crabtree opined that Hatton had fair ability to understand,

remember and carry out detailed or complex instructions. She had at least good, or

satisfactory, ability to perform all other work-related activities.

       Douglas Schiller, Ph.D., a state agency psychologist, reviewed the evidence of

record, including Dr. Crabtree’s report, and opined that Hatton had no severe mental

impairments.



                                               6
       When “presented with the not uncommon situation of conflicting medical evidence

. . . . [t]he trier of fact has the duty to resolve that conflict.” Richardson v. Perales, 402

U.S. 389, 399 (1971). And, a reviewing court should not re-weigh the medical opinions

of record but should consider only whether the ALJ’s weighing of such opinions was

supported by substantial evidence. Monsour Medical Ctr. v. Heckler, 806 F.2d 1185,

1190 (3d Cir. 1986).

       The ALJ found that Dr. Zubchevich’s opinion was not entitled to significant

weight for several reasons. First, as noted, her assessment was inconsistent with the

opinions of Drs. Crabtree and Schiller. Moreover, Dr. Zubchevich only examined Hatton

twice. Thus, Dr. Zubchevich’s assessment does not provide the longitudinal picture of

Hatton’s assessment contemplated by the treating physician regulations. See 20 C.F.R. §

404.1527(d)(2)(I) (providing that an ALJ should consider the length of a treating

relationship in assessing the weight to be given to a treating medical source’s opinion).

Second, Dr. Zubchevich’s description of Hatton as a person who was virtually

incapacitated by her mental impairments is inconsistent with Hatton’s almost complete

absence of mental health treatment. Prior to seeing Dr. Zubchevich, Hatton relied

exclusively on her treating primary care physicians to prescribe anti-depressants or anti-

anxiety medications and sought no counseling or evaluation by a mental health

professional. Dr. Zubchevich’s assessment is inconsistent with the mental status

examination of Dr. Crabtree. Dr. Zubchevich’s assessment was based largely on Hatton’s



                                               7
subjective complaints of mental impairment, which the ALJ found unreliable because

they were inconsistent with, inter alia, her limited treatment history and her work as a

caregiver. Finally, Dr. Zubchevich based her assessment in part on Hatton’s subjective

physical complaints. However, Dr. Zubchevich never conducted a physical examination

of Hatton. Nor is there any record evidence that Dr. Zubchevich reviewed any medical

records from a treating physician.

       Clearly, the ALJ did not ignore the opinion of Hatton’s treating psychiatrist. On

the contrary, she gave a detailed analysis of Dr. Zubchevich’s assessment and explained

the many reasons why she believed that it was not entitled to significant weight. We find

that the ALJ’s reasoned analysis was supported by substantial evidence.

       Hatton’s second, and last, argument is that the ALJ’s hypothetical question to the

vocational expert was improper because it did not include the mental limitations

described by Dr. Zubchevich or the physical limitations she alleges. We disagree. The

ALJ was not required to incorporate these limitations into her hypothetical because she

found that the limitations described by Dr. Zubchevich were not reliable and because the

limitations in the physical therapist’s report were not medical opinions. Rather, as noted,

they were merely notations of Hatton’s subjective complaints, and did not come from an

acceptable medical source.

                                            IV.

       For all of the above reasons, we will affirm.



                                             8
