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


5-18-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2269




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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 06-2269



                                   ANNE KENNEY,
                                            Appellant

                                           v.

                      COMMISSIONER OF SOCIAL SECURITY



                    On Appeal from the United States District Court
                            for the District of New Jersey
                          D.C. Civil Action No. 03-cv-2952
                         (Honorable Dennis M. Cavanaugh)


                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                    April 23, 2007

       Before: SCIRICA, Chief Judge, FUENTES and ALARCÓN*, Circuit Judges.

                                 (Filed: May 18, 2007)



                              OPINION OF THE COURT




   *
    The Honorable Arthur L. Alarcón, United States Circuit Judge for the Ninth Judicial
Circuit, sitting by designation.
SCIRICA, Chief Judge.

       Petitioner Anne Kenney appeals the District Court’s Order affirming the

Commissioner’s decision to deny Supplemental Security Income benefits prior to April 1,

2000. We will affirm.

                                             I.

       Anne Kenney was born on May 14, 1946. She attended one year of college and

performed a variety of jobs in the past, but she does not qualify as having any past

relevant work experience under 20 C.F.R. § 416.956(a). Kenney contends she suffers

from severe orthopedic, pulmonary, and psychiatric conditions. These conditions include

lower back, hand, and knee pain, asthma, depression, and anxiety.

       Kenney first applied for SSI benefits on February 23, 1996. Her initial application

for benefits was denied. After a hearing, the ALJ denied Kenney’s application, and

Kenney timely appealed to the Appeals Council. On April 25, 2000, Kenney filed

another application for SSI, and the state agency found she was under a disability starting

April 1, 2000. The Appeals Council then vacated the ALJ’s decision, consolidated both

claims, and remanded the consolidated case to the ALJ for adjudication. The ALJ found

Kenney under a disability as of April 1, 2000, but not before that date. After the Appeals

Council denied review, the ALJ’s decision became final. The District Court affirmed,

finding “that the Commissioner’s decision that Plaintiff was not disabled in 1996 [was]

based on a complete analysis, supported by substantial evidence.” Kenney v. Comm’r of

Soc. Sec., No. 03-2952 (D.N.J. Feb. 21, 2000). Kenney timely appealed.

                                             2
                                             II.

       The District Court had jurisdiction under 42 U.S.C. § 405(g) and we have appellate

jurisdiction under 28 U.S.C. § 1291. We employ a substantial evidence standard to

review a Commissioner’s final denial of SSI benefits. Substantial evidence is “such

relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” Morales v. Apfel, 225 F.3d 310, 316 (3d Cir. 2000) (internal quotations and

citations omitted). Despite this deference, we have the “responsibility to scrutinize the

entire record and to reverse or remand if the [Commissioner]’s decision is not supported

by substantial evidence.” Id. at 317 (quoting Smith v. Califano 637 F.2d 968, 970 (3d Cir.

1981)).

       Evidence is not substantial if the Commissioner or the ALJ failed to consider all

relevant evidence or failed to explain the resolution of conflicting evidence. See Burnett

v. Comm’r of Soc. Sec., 220 F.3d 112, 121 (3d Cir. 2000). The ALJ is not “require[d] . . .

to use particular language or adhere to a particular format in conducting his analysis.

Rather, [there must be] . . . sufficient development of the record and explanation of

findings to permit meaningful review.” Jones v. Barnhart, 364 F.3d 501, 505 (3d Cir.

2004). “In the absence of such an . . . [explanation], the reviewing court cannot tell if

significant probative evidence was not credited or simply ignored.” Cotter v. Harris, 642

F.2d 700, 705 (3d Cir. 1981). Additionally, evidence is not substantial if it is

overwhelmed by other evidence, such as that of a treating physician, which is accorded

great weight. See Morales, 225 F.3d at 317.

                                              3
                                            III.

       To be eligible for disability benefits, a claimant has the burden to demonstrate that

she is “unable to engage in any substantial gainful activity by reason of any medically

determinable physical or mental impairment which can be expected to result in death or

which has lasted or can be expected to last for a continuous period of not less than twelve

months.” 42 U.S.C. § 1382c(3)(A). There is a five-step sequential evaluation process to

determine whether a claimant is disabled: (1) whether the claimant is currently engaged in

substantial gainful activity; (2) whether she has a severe impairment; (3) whether her

impairment meets or equals a listed impairment; (4) whether the claimant’s impairment

prevents her from performing her past-relevant work; and (5) whether the claimant can

perform any other work which exists in the national economy, in light of her age,

education, work experience, and residual functional capacity.1 20 C.F.R. §

404.1520(a)(4); see also Newell v. Comm’r of Soc. Sec., 347 F.3d 541, 545–46 (3d Cir.

2003). The claimant bears the burden of proof with respect to the first four steps, then the

burden shifts to the Commissioner at step five. Ramirez v. Barnhart, 372 F.3d 546,

550–51 (3d Cir. 2004).

       The ALJ performed the five-step analysis and determined that Kenney had not

engaged in substantial gainful activity since 1996, and she has had severe asthma and



   1
     Under 20 C.F.R. § 404.1545(a), residual functional capacity is defined as the most
work a claimant may continue to perform in spite of physical or mental impairments and
related symptoms.

                                             4
orthopedic conditions, which do not meet or equal a listed impairment. Kenney does not

dispute these findings. But Kenney contends the ALJ erred in finding she had a residual

functional capacity “to perform light work in an environment free of excessive pulmonary

irritants” through March 2000, and only finding a residual functional capacity of

sedentary work after April 1, 2000.

       The medical experts agreed that Kenney’s orthopedic problems progressively

deteriorated during the period at issue, but they set forth conflicting opinions as to the

date of debilitation from Grade I spondylolisthesis, evident on the 1996 X-ray, to Grade II

spondylolisthesis, shown in the 2000 X-ray. Dr. Albert Mylod, Jr., a board certified

orthopedic surgeon without an examining or treating relationship to Kenney, but engaged

and paid by Kenney, testified that the July 2000 X-ray showed progression in Kenney’s

orthopedic conditions and “with the benefit of hindsight,” Dr. Mylod assessed her

disability date as 1996. Dr. Mylod acknowledged Kenney did not have X-rays or MRI

scans completed between 1996 and 2000 to support his assessment of the onset date.

       In contrast, Dr. Fetchner, an internist without an examining or treating relationship

to Kenney, testified at the post-remand hearing that “[t]here’s nothing in the record really

that pinpoints exactly” when Kenney’s residual functional capacity progressed from light

to sedentary due to her orthopedic deterioration. Dr. Fetchner agreed with Dr. Mylod that

Kenney’s condition progressed throughout the period, and did not suddenly deteriorate in

2000, but he testified “it wouldn’t necessarily go all the way back to 1996” and “I would



                                              5
have problems doing that with the lumbar sacral spine X-ray not as severe and who

knows when that started.”

       Kenney contends the ALJ improperly discredited Dr. Mylod’s expert testimony.

The ALJ must “explain his reasons for discounting all of the pertinent evidence before

him in making his residual functional capacity determination.” Burnett, 220 F.3d at 121.

The ALJ did so here, and we find his conclusion supported by substantial evidence. The

ALJ noted Dr. Mylod’s opinion should be given less weight because he was a non-

examining, non-treating witness, and any weight given to his testimony depended on the

degree to which it was supported by objective evidence. See 20 C.F.R. 416.927(d)

(“[T]he more a medical source presents relevant evidence to support an opinion,

particularly medical signs and laboratory findings, the more weight we will give that

opinion.”). Dr. Mylod repeatedly acknowledged in his testimony that there were no X-

rays or MRI scans for the period between 1996 and 2000 from which to make a

conclusive determination of the onset of Kenney’s disability. Additionally, as late as

October 1999, Dr. Ronald Robinson, a treating physician at the Center for Family Health

at St. Mary Hospital, assessed a mild spinal condition. The ALJ “note[d] the dearth of

objective medical evidence regarding the claimant’s orthopedic impairment prior to July

2000” and found Dr. Mylod’s opinion not reasonable after considering the lack of

objective evidence to support his conclusion. The ALJ also noted Dr. Mylod’s potential

bias because he was retained and paid by Kenney, but made no finding on the issue.



                                            6
Because the ALJ considered the evidence presented, and provided a reasoned rejection of

Dr. Mylod’s testimony, we find the ALJ’s opinion supported by substantial evidence.

       Kenney also contends the ALJ impermissibly rejected the opinion of her treating

physician, Dr. George Ciechanowski. “A cardinal principle guiding disability eligibility

determinations is that the ALJ accord treating physicians’ reports great weight, especially

‘when their opinions reflect expert judgment based on a continuing observation of the

patient’s condition over a prolonged period of time.’” Morales, 225 F.3d at 317 (quoting

Plummer, 186 F.3d at 429). But here, the ALJ rejected the opinion of Dr. Ciechanowski,

in part because he treated her infrequently, and also because he made his determination

that Kenney exhibited daily chronic symptoms in the period after she had suffered an

acute asthma attack. Additionally, the ALJ found Dr. Ciechanowski’s opinion

unsupported by objective medical evidence. Dr. Ciechanowski’s treatment notes

repeatedly describe Kenney’s asthma as stable. Dr. Fetchner testified that many

“patients[’ asthma] become[s] controlled and whether it was originally moderate or even

severe doesn’t mean anything[—]it’s the control.” In 1996, Dr. Sam Wilchfort found

Kenney had “mild restrictive disease.” In 1997, Dr. Gilbert Melnick found Kenney’s

“lungs show good aeration with no focal disease.” In 1999 and 2000, Dr. Robinson

described Kenney’s asthma as well-controlled. Considering the totality of the evidence,

we find the ALJ’s rejection of Dr. Ciechanowski’s opinion supported by substantial

evidence.



                                             7
       Kenney contends the ALJ erred by not appointing a medical expert that specialized

in the field of the purported disability. An ALJ may appoint a medical expert when the

ALJ must determine the onset of an impairment. See Newell, 347 F.3d at 548 (internal

citations omitted). Although HALLEX I-2-5-36(D) states “[t]he ALJ or designee must

select the [Medical Examiner] whose expertise is most appropriate to the claimant’s

diagnosed impairment(s),” we do not find the ALJ erred in appointing Dr. Fetchner in

light of Kenney’s contention she suffers under a disability in three separate specialities,

pulmonary, psychiatric, and orthopedic. See Social Security Administration, Office of

Hearings and Appeals, Hearings, Appeals and Litigation Law Manual, at I-2-5-36(D)

(updated, Sept. 28, 2005), available at

http://www.ssa.gov/OP_Home/hallex/I-02/I-2-5-36.html. We note that the HALLEX

section cited by Kenney in her brief, HALLEX I-2-434(A), does not exist. Additionally,

the cases cited by Kenney, Newell v. Comm’r of Social Security, 347 F.3d 541(3d Cir.

2003), and Walton v. Halter, 243 F.3d 703 (3d Cir. 2001), and Social Security Ruling 83-

20, do not provide for the appointment of a medical expert within a particular specialty.

We find this claim lacks merit.

                                             IV.

       For the foregoing reasons, we will affirm.




                                              8
