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


3-16-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1014




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"Miguel v. Comm Social Security" (2005). 2005 Decisions. Paper 1448.
http://digitalcommons.law.villanova.edu/thirdcircuit_2005/1448


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                                                 NOT PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT


                      No. 04-1014


  CAROLE RESERVE MIGUEL, O/B/O HARRY MIGUEL

                             v.

        COMMISSIONER OF SOCIAL SECURITY

                 Carole Reserve Miguel,

                                      Appellant




ON APPEAL FROM THE UNITED STATES DISTRICT COURT
        FOR THE DISTRICT OF NEW JERSEY

               Dist. Court No. 01-CV-03229
           District Judge: Dennis M. Cavanaugh


                Argued November 2, 2004

   Before: ALITO, FUENTES and COWEN, Circuit Judges.
       (Opinion Filed: March 16, 2005          )

                         JOEL M. SOLOW (Argued)
                         Freeman & Bass, P.A.
                         24 Commerce Street
                         Newark, NJ 07102
                         Counsel for Appellant

                         SHEENA BAR (Argued)
                         Christopher J. Cristie, U.S. Atty for D.N.J.
                                             970 Broad Street, Suite 700
                                             Newark, NJ 07102
                                             Counsel for Appellee




                                OPINION OF THE COURT




PER CURIAM:

       Carole R. Miguel appeals from an order affirming a decision by the Commissioner

of Social Security (“the Commissioner”) denying her husband’s application for disability

insurance benefits under Title II of the Social Security Act. Carole Miguel’s now-

deceased husband, Harry Miguel (“Miguel” or “the Claimant”), alleged that he had been

disabled since January 8, 1999. Thus the period of alleged disability stretches from

January 8, 1999, to the Claimant’s death in January 23, 2001. Because we write for the

parties only, we do not set out the facts.

                                               I.

       This Court, like the District Court, must accept the Commissioner’s factual

findings decision only if there is “substantial evidence” to support them. Hartranft v.

Apfel, 181 F.3d 358, 360 (3d Cir. 1999) (citations omitted). Substantial evidence is

defined as “such relevant evidence as a reasonable mind might accept as adequate to

support a conclusion.” Id. It is “more than a mere scintilla” but it need not be “large” or

“considerable.” Id. If substantial evidence exists, then the Commissioner’s decision must


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be affirmed — unless there was some error of law committed. Carole Miguel argues that

the ALJ erred by declining to call for the testimony of a medical expert at the hearing.

Her contention is examined de novo.

                                             II.

       There is substantial evidence to support the ALJ’s finding that the Claimant had,

until at least September 20, 2000, “the residual functional capacity for the full range of

sedentary work.” First, the reports of Drs. Gross, Vastesager, Blumenfeld, and Miller,

are consistent with the finding. For example, Dr. Vastesaeger concluded that Miguel

could sit or stand, walk one block, lift fifty pounds, carry forty pounds, and handle

objects; and Dr. Blumenfeld stated that Miguel was able to occasionally lift up to twenty

pounds, to frequently lift up to ten pounds, to stand or walk for about six hours in an eight

hour workday, and to sit for about six hours in an eight hour workday. Second, the

Claimant himself testified that he did not experience shortness of breath while sitting.

       However, the record does not contain substantial evidence to support the ALJ’s

finding that the Claimant had the residual functional capacity for the full range of

sedentary work from December 22, 2000 through January 23, 2001, the date of Miguel’s

death. The ALJ’s June 2002 decision makes two points supporting his finding:

       (1) “I . . . cannot credit the testimony of [Carole Miguel] to the extent that it
       portrayed the claimant as having great difficulty with even the minimal exertion of
       sitting. . . . This testimony is in conflict with the claimant’s own testimony that he
       had no difficulty sitting and it is also in conflict with the preponderance of the
       record evidence.”



                                             -3-
       (2) “when the Claimant was re-admitted to the hospital on January 10, 2001 for the
       final time . . . his vital signs were stable, cardiac signs were normal, and his lungs
       were clear. His death on January 23, 2001, appears to have been sudden and
       unexpected.”

T22.

       The first point is almost wholly unfounded; there is no conflict between the

testimony of Carole Miguel and the Claimant. The Claimant testified on September 20,

2000, about his health on and before that date. Carole Miguel, however, testified on June

21, 2002, and was specifically asked to testify only about the Claimant’s health after

September 20, 2000:

       Q: Because your husband testified on September 20th, 2000, I’m just going to ask
       you questions for the period between September 20th and the date of his death, on
       January 23rd, 2001, okay?

       A: Yes.

T296-97. That her testimony about the later period differs from her husband’s testimony

about the earlier period does not mean their statements are in conflict. To the contrary,

the difference is wholly consistent with the view that Miguel’s health declined

dramatically after his testimony. Moreover, almost all of the record evidence that the ALJ

refers to is prior to the relevant time period: none of the doctors’ reports credited by the

ALJ were made later than April 21, 2000, much less later than September 20, 2000.

       The ALJ’s second point is true but insubstantial. That the Claimant had stable

vital signs, normal cardiac signs, and clear lungs on re-admission to the hospital on

January 10, 2001, does not mean he could have been working in his old job. After all, if

                                              -4-
he was re-admitted to the hospital he was thought too sick to go home. And even if we

assume that Miguel’s death was “sudden and unexpected” — perhaps an unwarranted

assumption — this would not be substantial evidence that he had residual functional

capacity in December 2000 and January 2001. Such facts and the inferences that can be

drawn from them are still “a mere scintilla” of evidence.

                                              III.

       The regulations do not require that a medical expert testify at the claimant’s

hearing. See 20 C.F.R. § 404.1529(b) (“At the administrative law judge hearing or

Appeals Council level, the administrative law judge or the Appeals Council may ask for

and consider the opinion of a medical advisor concerning whether your impairment(s)

could reasonably be expected to produce your alleged symptoms.”) (emphasis added).

However, in this particular case, it would have been wise. Of the last thirty-three days of

Miguel’s life, twenty-four days were spent in Columbus Hospital, and five were spent in

the intensive care unit. The ALJ does not cite substantial evidence that Miguel could

have spent those thirty-three days working, and in the absence of a medical expert’s

opinion to that effect, it is hard to believe such evidence exists.

                                              IV.

       For the reasons given above, the order of the District Court will be vacated and the

cause will be remanded to the District Court for further proceedings consistent with this

opinion.



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