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


9-2-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-4122




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                                                NOT PRECEDENTIAL

         UNITED STATES COURT OF APPEALS
              FOR THE THIRD CIRCUIT

                      ___________

                      No. 03-4122
                      ___________

                 HASKELL PAGE, JR.

                            Appellant

                             v.

              JOANNE B. BARNHART,
        COMM ISSIONER OF SOCIAL SECURITY
                   ___________


ON APPEAL FROM THE UNITED STATES DISTRICT COURT
   FOR THE WESTERN DISTRICT OF PENNSYLVANIA

               (D.C. Civil No. 02-cv-00108)
        District Judge: The Honorable Joy F. Conti

                      ___________

        Submitted Under Third Circuit LAR 34.1(a)
                     May 12, 2004


  BEFORE: NYGAARD, M cKEE, and WEIS, Circuit Judges.




                (Filed: September 2, 2004)


                      ___________
                               OPINION OF THE COURT
                                    ___________


NYGAARD, Circuit Judge.

              Appellant Haskell E. Page, Jr. appeals from the District Court’s order

affirming the decision of the Commissioner of Social Security, which denied Page’s

application for disability insurance benefits and supplemental security income under Title

II and Title XVI, respectively, of the Social Security Act, 42 U.S.C. §§ 401-433, 1381-

1382(f). The District Court exercised jurisdiction pursuant to 42 U.S.C. § 405(g) and we

have jurisdiction on appeal pursuant to 28 U.S.C. § 1291. We will affirm the order of the

District Court.

                                             I.

              Because we write solely for the benefit of the parties, we recount the facts

and the procedural background only as they are relevant to our decision. Appellant Page

applied for disability benefits and the agency granted his request for a hearing. The ALJ

denied the claim and Page appealed to the District Court. That court affirmed the ALJ’s

findings and granted the Commissioner’s motion for summary judgment. Page now

appeals.

                                            II.

              While we review the District Court’s order de novo, we will only reverse a

grant of summary judgment in favor of the Commissioner if we conclude that the ALJ’s



                                             2
findings were not supported by “substantial evidence.” Podedworny v. Harris, 745 F.2d

210, 217 (3d Cir. 1984); 42 U.S.C. § 405(g). “Substantial evidence” is relevant evidence

“a reasonable mind might accept as adequate.” Plummer v. Apfel, 186 F.3d 422, 427 (3d

Cir. 1999) (quoting Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir. 1995)).

              In order to qualify for disability benefits, a person must be disabled as that

term is defined by the Social Security Act and accompanying regulations. Burns v.

Barnhart, 312 F.3d 113, 118 (3d Cir. 2002). The Act defines disability as “the inability to

engage in any substantial gainful activity by reason of any medically determinable

physical or mental impairment which... can be expected to last for a continuous period of

not less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A) (2002).

              In this case, the ALJ followed the Social Security Act’s five-step analysis to

determine that Page suffers from “severe impairments,” including lung disease,

degenerative joint disease, and the loss of one eye. However, the ALJ found that these

impairments nonetheless permit Page to take on jobs which involve “light work” and

which exist throughout the country. As a result, the ALJ found that Page is not entitled to

receive disability benefits.

                                             III.

              Page argues that the ALJ made several critical errors. First, Page contends

that the ALJ should have given more credence to Dr. Larren Wade’s opinion. Second,

Page insists that the ALJ erred by finding Page not fully credible. Third, Page asserts that



                                              3
the ALJ should have found that Page’s alleged migraine headaches constituted a severe

impairment. Finally, Page argues that the ALJ should have included migraine headaches

in the hypothetical he posed to the vocational expert. We will address each argument in

turn.

                                            A.

              Page argues that the ALJ should have adopted Dr. Wade’s assessment that

“severe osteoarthritis” in Page’s left knee and hand makes “ambulation and consistent

gainful employment all but impossible.” Admin. Rec. at 321. However, as the ALJ noted,

it is the Social Security Commissioner, not the treating physician, who determines

whether a claimant can engage in any work activity. 20 C.F.R. § 404.1527(e)(1). Dr.

Wade’s opinion is therefore not entitled to controlling weight. In fact, we conclude that

substantial evidence supports the ALJ’s finding that Dr. Wade’s opinion was entitled to

no weight at all.

              An ALJ may properly reject a treating physician’s opinion “on the basis of

contradictory evidence.” Frankenfield v. Bowen, 861 F.2d 405, 408 (3d Cir. 1988) (citing

Rossi v. Califano, 602 F.2d 55, 57 (3d Cir. 1979)). Much of the record directly

contradicts Dr. Wade’s opinion. For instance, several independent medical evaluations

indicated Page retained normal range of motion in his knees. Admin. Rec. at 175, 240,

244, 305, 323, 328. Dr. Swain examined Page shortly after Dr. Wade and made no




                                             4
mention of “severe osteoarthritis” or migraine headaches. Dr. Niaz also found Page to be

“comfortable” with “full range of movement” in his arthritic knee.

              Finally, the ALJ appropriately rejected Dr. Wade’s diagnosis. See Plummer

v. Apfel, 186 F.3d 422, 430 (3d Cir. 1999) (citing Jones v. Sullivan, 954 F.2d 125, 129 (3d

Cir. 1991)). Dr. Wade first reported that Page demonstrated bilateral knee crepitation and

mild joint tenderness. Admin. Rec. at 333. A second report, apparently based on the

same examination, describes Page’s knee discomfort as “severe osteoarthritis” associated

with “continuous repetitive musculoskeletal challenges.” Admin. Rec. at 321.

Meanwhile, Dr. Wade made no mention of headaches in his initial report, but explained

in the second report that Page suffered from a history of chronic migraine headaches.

These internal inconsistencies and the contradictory evidence in the record sufficiently

support the ALJ’s decision to reject Dr. Wade’s diagnosis and opinion.

                                             B.

              Page argues the ALJ should have paid greater deference to his subjective

allegations of disability because of his long working career. Instead, the ALJ found that

Page’s assertions of total disability were contradicted by the objective medical evidence

and Page’s overall testimony. Substantial evidence supports the ALJ’s findings. For

instance, Page insists that severe osteoarthritis and shortness of breath prevent him from

working. However, the record shows Page has a normal range of motion in his knees and

ankles, normal reflexes and no neurologic deficit. Medical examiners further indicated



                                             5
that although Page has some prolonged expiratory effort and some wheezing, he has clear

lungs and a regular heartbeat. Further conflict between Page’s complaints and his own

testimony is discussed below.

                                           C.

              Page contends that the ALJ erred by finding that Page’s reported migraines

were not a “severe impairment.” A “severe impairment” is a condition that the claimant

shows significantly limits her mental or physical ability to engage in basic work activities.

20 C.F.R. § 416.920(c). “Basic work activities” include mental functions such as

“understanding, carrying out of, and remembering simple instructions.” 20 C.F.R. §

404.1521(b)(3).

              Page testified that he has suffered from debilitating migraine headaches

since his left eye was removed in 1990. Page testified the migraines keep him from

“really doing much of anything.” Admin. Rec. at 390. Yet, Page continued to work for

eight years after his eye was removed, and first brought his headaches to a physician’s

attention in 2001. Page also testified that his prescription medication alleviates the pain

caused by his migraines: “Well, as long as I still have my Imitrex I’ll get one and it’ll go

away within a half hour, 45 minutes. And it’ll stay away for a day or two.” Id. at 391.

              An impairment is not severe if medical evidence establishes that the

condition has no more than a minimal impact on the individual’s ability to engage in basic

work activities. See 20 C.F.R. § 416.920(c). Here, Page has produced no medical



                                                6
evidence indicating that his migraine headaches have more than a minimal impact on his

ability to comprehend or carry out simple instructions. Substantial evidence thus supports

the ALJ’s finding that Page’s alleged migraine headaches are not a “severe impairment.”




                                            D.

              Page relies on this Court’s decision in Burns, 312 F.3d 113, to argue that

the ALJ should have posed a hypothetical question to the vocational expert that accounted

for his migraine headaches. “A hypothetical must reflect all of a claimant’s impairments

that are supported by the record; otherwise the question is deficient and the expert’s

answer to it cannot be considered substantial evidence.” Chrupcala v. Heckler, 829 F.2d

1269, 1276 (3d Cir. 1987) (emphasis added). Since Page’s complaints of disabling

migraines are not supported by the record, as discussed in the previous sections, we

conclude the ALJ’s questioning of the vocational expert was proper. See Burns, 312 F.3d

at 123 (finding that the question posed to the vocational expert must include impairments

supported by “medically undisputed evidence” in the record).

                                            IV.

              For the reasons stated above, we conclude that the record contains

substantial evidence supporting the ALJ’s findings. Accordingly, we will affirm the order

of the District Court.




                                             7
