                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-15-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4702




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                                               NOT PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT



                     No. 05-4702


                ANNA WISNIEWSKI,

                           Appellant

                          v.

      COMMISSIONER OF SOCIAL SECURITY

                    ___________


    On Appeal from the United States District Court
               for the District of New Jersey
               (D.C. Civil No. 03-cv-05012)
    District Judge: The Honorable William H. Walls

                    ___________

      Submitted Under Third Circuit LAR 34.1(a)
                  October 4, 2006

Before: McKEE, AMBRO, and NYGAARD, Circuit Judges.


              (Filed: December 15, 2006)

                    ___________

             OPINION OF THE COURT
                  ___________
NYGAARD, Circuit Judge.

             Anna Wisniewski appeals an order of the District Court which affirmed the

Commission of Social Security’s (“Commissioner”) decision to deny disability insurance

benefits and supplemental security income (“SSI”). We will affirm.

                                            I.

             Because we are writing for the sole benefit of parties who are familiar with

the record and prior proceedings, we will briefly summarize the pertinent facts and will

limit our discussion to our ratio decidendi. Wisniewski claimed disability stemming from

an injury she sustained to her right hand in September of 1993. She filed applications for

disability insurance and SSI benefits in February of 1996. These claims were denied

both initially and on reconsideration. Wisniewski requested a hearing, which was held in

June of 1997. At a supplemental hearing, the administrative law judge heard the

testimony of a vocational expert. The administrative law judge affirmed the

Commissioner’s denial of benefits. Wisniewski appealed to the appeals council which

denied her request for review. Next, Wisniewski filed an action in the District Court.

The District Court remanded her case to the Commissioner, expressing concern that the

hypothetical given to the vocational expert did not accurately encompass all of

Wisniewski’s impairments.

             On remand to the Commissioner, the administrative law judge heard the

testimony of two medical experts, Dr. Zemel, who appeared for the Commissioner, and

Dr. Mylod, who appeared for Wisniewski. Considering the matter de novo, the

                                            2
administrative law judge determined that Wisniewski was not disabled. This

determination was again affirmed by the appeals council. Once again, Wisniewski filed

an action in the District Court. This time, the District Court affirmed the disability

determination, finding substantial evidence to support the Commissioner’s position.

                                             II.

              The Social Security Administration uses a five-step sequential procedure to

evaluate disability claims. See 20 C.F.R. §§ 404.1520, 416.920. At step one, the

Commissioner decides whether the claimant is currently engaged in substantial gainful

activity. Id. §§ 404.1520(b), 416.920(b). At step two, the Commissioner decides whether

the impairment is severe. Id. §§ 404.1520(c), 416.920(c). At step three, medical evidence

of the claimant's impairment is compared to a list of impairments (the “Listings”)

presumed severe enough to preclude any gainful work. Id. §§ 404.1520(d), 416.920(d).

The ALJ is also required to explain the reasons supporting his decision. See Burnett v.

Commissioner of Social Security Administration, 220 F.3d 112, 119 (3d Cir.2000). If the

claimant's impairment matches one of the listed impairments, he qualifies for benefits

without further inquiry.

              If the claimant does not qualify under the Listings, the analysis proceeds to

the fourth and fifth steps. At step four, the ALJ determines whether the claimant retains

the residual functional capacity (“RFC”) to perform his or her past relevant work. Id. §§

404.1520(e), (f), 416.920(e), (f). Finally, at step five, the Commissioner determines

whether the claimant can make a transition to other work. In making this determination,

                                              3
the Commissioner considers the claimant's age, education, work experience, and residual

functional capacity. Id. §§ 404.1520(g), 416.920(g). If the claimant cannot do his past

work or other work, he qualifies for benefits. Sullivan v. Zebley, 493 U.S. 521, 525-26,

110 S.Ct. 885, 107 L.Ed.2d 967 (1990).

              In this case, the administrative law judge found that: (Step One) Wisniewski

had not engaged in substantial gainful activity since the onset of her alleged disability;

(Step Two) Wisniewski had a dysfunction of the right hand which was a severe

impairment, but that this impairment neither met nor was the medical equivalent to an

impairment to the clinical criteria of any impairment or medical condition found in the

Listings, 20 C.F.R. Part 404, Appendix 1, Subpart P. The administrative law judge

further found that (Step Four) Wisniewski had retained the ability to perform light and

sedentary work activity, (excepting gross or fine manipulations with the right hand), but

was not able to return to her past relevant work. However, (Step Five) based on the

vocational expert's testimony concluding that there were a significant number of jobs in

the national economy that Wisniewski could perform despite her impairment, the

administrative law judge found that she was not disabled.




                                             III.

              In her opening argument, Wisniewski maintains that the administrative law

judge misapplied the law by failing to evaluate “all” of the evidence she presented.

                                              4
Specifically, she argues that “all of the evidence [must] be explicitly set forth and

analyzed with the specific reasons being offered for accepting or rejecting each entry.”

Appellant’s brief at 5. She relies on our decision in Cotter v. Harris, 642 F.3d 700 (3d

Cir. 1981), to support her position. Her reliance is misplaced. Cotter does not require an

ALJ to explain why evidence that is not probative has been rejected. See Cotter, 642 F.2d

at 707. In Cotter, there was conflicting medical evidence and testimony concerning the

severity of the claimant's heart condition. 642 F.2d at 707. We held that the

administrative law judge erred by accepting the medical evidence and testimony that

opposed the claimant's position without explaining his reasons for rejecting the equally

probative medical evidence and testimony supporting the claimant, which included two

physicians' recommendations that the claimant not return to his past relevant work. Id.

Here, there is no conflict in the evidence that would require the administrative law judge

to explain why he was accepting certain evidence and rejecting other evidence. To the

contrary, the administrative law judge’s opinion appropriately discussed the sequential

evaluation process. The administrative law judge examined the various medical opinions

and used the information and evidence presented therein to support his conclusions. He

thus considered all the relevant medical sources in the record. This comprehensive review

satisfies Cotter.

               Additionally, Wisniewski argues that the vocational expert’s testimony at

the initial hearing in 1997 was “discredited” by the District Court and that the

administrative law judge was therefore required to entertain the testimony of a vocational

                                              5
expert again. We agree with the Commissioner that this argument mischaracterizes the

District Court’s reasons for remanding the case to the Commissioner. The District

Court’s problem was with the hypothetical question presented by the administrative law

judge because it failed to “accurately include the full range of [Wisniewski’s]

limitations.” The District Court’s original remand was to reevaluate and identify

Wisniewski’s functional limitations. Further, the District Court instructed the

administrative law judge to establish, with specificity, the medical evidence upon which

his findings were based. There was no need for further testimony from the vocational

expert.

              Next, Wisniewski argues that the administrative law judge improperly

evaluated Wisniewski’s impairments at step three of the analysis. Specifically, she argues

that the administrative law judge did not follow our jurisprudence because he failed to

identify the specific listing considered. Burnett v. Commissioner, Social Security

Administration, 220 F.3d 112, 119-20 (3d Cir. 2000). We later said that “Burnett does

not require the ALJ to use particular language or adhere to a particular format in

conducting his analysis. Rather, the function of Burnett is to ensure that there is

sufficient development of the record and explanation of findings to permit meaningful

review.” Jones v. Barnhart, 364 F.3d 505, 505 (3d Cir. 2004). We have never required

an administrative law judge to identify or analyze the most relevant listing. See e.g.

Scatorchia v. Commissioner of Social Security, 137 Fed.Appx. 468, 471 (3d Cir. 2005)



                                              6
(finding that the administrative law judge met the Jones requirement at step three without

identifying the relevant Listing).

              We are satisfied that the administrative law judge’s step three analysis was

sufficient. As we have pointed out, “although we would encourage ALJ’s to specifically

identify the listed impairments under consideration, we are able to discern the particular

listed impairments considered in this case based on the ALJ’s discussion of the relevant

evidence.” Arroyo v. Commissioner of Social Security, 155 Fed.Appx. 605, 608 (3d Cir.

2005). It is important to remember that here, Wisniewski presented only one impairment

— an injury to her right hand. It is clear from the record here that the administrative law

judge identified and discussed the evidence pertaining to that impairment. See e.g. Tr. at

177-92. It is also clear which Listing the administrative law judge was considering,

especially given that there was only one impairment presented here. We agree with the

District Court that the administrative law judge’s step three analysis satisfies the

requirements we set forth in Burnett, supra., and Jones, supra.

              Finally, Wisniewski argues that it was improper for the administrative law

judge to continue to rely on the vocational expert’s testimony on remand because the

District Court had “discredited” such testimony. She accuses the administrative law

judge of an “end-run” around the District Court’s opinion. As we have stated previously,

Wisniewski misinterprets the District Court’s opinion on remand. In remanding the

matter, the District Court instructed that because the hypothetical did not contain any

information on Wisniewski’s left hand, the administrative law judge should not have

                                              7
assumed that Wisniewski’s left had dexterity was normal and that her limited left hand

dexterity should have been included in the hypothetical.

              To correct this deficiency, the administrative law judge heard testimony

from a medical expert who testified to the normality of Wisniewski’s left hand. Tr. at

180. Although Wisniewski also testified that she does not have good dexterity with her

left hand, the record supports the District Court’s conclusion that nothing exists in the

medical record here to indicate that Wisniewski’s left hand is impaired. Because

Wisniewski’s left hand was not impaired, the administrative law judge could properly

rely a second time on the testimony of the vocational expert who had assumed as much in

his testimony.

                                             III.

              We have considered all arguments made by the parties on appeal and

conclude that substantial evidence supports the administrative law judge’s decision that

Wisniewski was not disabled during the relevant period. Accordingly, we will affirm the

order of the District Court.




                                              8
