                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-26-2002

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Precedential or Non-Precedential: Non-Precedential

Docket No. 01-4470




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                                                                         NOT PRECEDENTIAL

                            UNITED STATES COURT OF APPEALS
                                 FOR THE THIRD CIRCUIT
                                       __________

                                           No. 01-4470
                                           __________

                                      DONALD S. HOWZE
                                                   Appellant

                                                v.

                                  JOANNE B. BARNHART*,
                                 COMMISSIONER OF SOCIAL
                                       SECURITY,

                                   (Pursuant to Rule 43(c), F.R.A.P.)
                                          __________

                ON APPEAL FROM THE UNITED STATES DISTRICT COURT
                   FOR THE WESTERN DISTRICT OF PENNSYLVANIA
                                  D.C. Civil No. 01-cv-00975
                       District Judge: The Honorable Gary L. Lancaster
                                         __________

                            Submitted Under Third Circuit LAR 34.1(a)
                                       November 19, 2002
                                         __________

           Before: BARRY, AMBRO, Circuit Judges, and ACKERMAN,* District Judge

                        (Opinion Filed:     November 25, 2002             )




   *
   The Honorable Harold A. Ackerman, United States District Judge for the District of
New Jersey, sitting by designation.
                                             ____________

                                               OPINION
                                             ____________


BARRY, Circuit Judge

        Appellant Donald S. Howze, Jr., applied for Disability Insurance Benefits and

Supplemental Security Income, alleging that he had been unable to work since March 11,

1996 due to degenerative disc disease. His application was denied initially and on

reconsideration. After a hearing, the Administrative Law Judge (“ALJ”) found that although

appellant’s degenerative disc disease and depression prevented him from performing the

full range of light work, he was not disabled because he was capable of making an

adjustment to work which exists in substantial numbers in the national economy. The

Appeals Council denied review and appellant filed suit in the United States District Court

for the Western District of Pennsylvania.

        He now appeals the Order of the District Court, dated December 11, 2001, which

granted appellee’s motion for summary judgment. He argues that the ALJ (1) mistakenly

failed to find that several of his ailments were severe, and (2) improperly weighed the

evidence, including the evidence presented by a vocational expert, leading the ALJ to

conclusions regarding appellant’s ability to work which were unsupported by substantial

evidence. We have jurisdiction pursuant to 28 U.S.C. § 1291 and will affirm.

        Appellant’s first contention is that the ALJ erred at step two of the sequential

evaluation process for disability claims. See 20 C.F.R. §§ 404.1520(c) and 416.920(c)

                                                    2
(explaining that, at step two, the factfinder determines which, if any, of the claimant’s

impairments are severe). Appellant argues, first, that the ALJ should have found that his

impairment of his left upper arm was severe, because it significantly restricts his ability to

perform basic work activities. When reviewing an ALJ’s findings in a Social Security case,

we are limited to determining whether those findings are supported by substantial evidence.

See 42 U.S.C. § 405 (g).

        The evidence in the record which relates to appellant’s arm includes a letter, dated

March 14, 1996, from Dr. Arnold S. Broudy diagnosing appellant with various shoulder

problems, tennis elbow and arthritis in his left thumb, and prescribing treatment. It also

includes a treatment note, dated May 6, 1996, in which Dr. Cynthia G. Ayers notes that

EMG and nerve conduction studies of appellant’s left shoulder and hand were negative, as

well as a consultative report, dated February 2, 1997, in which Dr. James V. H. Ballantyne

opines that appellant’s shoulders, arms and hands are problem-free. There are also sporadic

references to appellant complaining of pain and discomfort in his left upper arm. When the

ALJ asked appellant about his arm problems, he explained that he believed that they

stemmed from “the way I was sleeping.” T. at 60. He also testified that Dr. Broudy “gave

me something for tennis elbow.” Id. Neither the evidence in the record nor appellant’s

testimony supports a finding that the pain in his arm significantly restricted his ability to

work. Therefore, the ALJ did not err when he did not find that appellant’s arm problems

were severe.

        Appellant also argues that the ALJ mistakenly failed to find that the following

                                                       3
ailments were severe: “need for a cane . . . degenerative joint disease, obesity, diabetes

mellitus, hypertension, and major depression disorder.” Appellant’s Brief at 6. We take

them in order. First, appellant’s need for a cane is discussed below in the context of his

challenge to the ALJ’s weighing of the evidence at step five of the sequential evaluation

process. Second, he does not point to any evidence of “degenerative joint disease” in the

record and we are not able to find any, aside from the left arm problems discussed above.

Third, the ALJ considered the evidence regarding appellant’s diabetes, hypertension and

weight, but concluded that there was no evidence that these conditions had caused end organ

damage or impacted on appellant’s ability to work. While appellant argues that the ALJ

ignored evidence that his diabetes damaged his right eye, that is, that it caused end organ

damage, the treatment note on which he relies is to the contrary. On April 4, 1997, Dr.

Kahn noted that an eye examination conducted in February of 1997 was “neg. for d.

retinopathy.” T. at 274, 275. Finally, the ALJ did find that appellant’s depression was a

severe disorder.*

          Appellant’s second major contention relates to step five of the sequential evaluation

process for disability claims. See 20 C.F.R. §§ 404.1520(f) and 416.920(f) (explaining

that, at step five, the factfinder determines whether the claimant’s impairments prevent him

or her from working). He claims that the ALJ failed to properly weigh the medical

evidence in the record in coming to his determination that appellant was able to do work




   *
       The ALJ also found that appellant’s degenerative disc disease was severe.

                                                     4
which exists in the national economy.

        First, appellant argues, the ALJ relied on Dr. Ayers’s evaluation of October 6, 1996

without taking into account the fact that the doctor stated that appellant could perform for,

at best, two weeks. Appellee counters that when Dr. Ayers wrote that “for two weeks at

least” appellant should not lift over 25 pounds, should not do excessive bending or

kneeling, and should only do limited overhead work, what she meant was that these

restrictions were only temporary. Appellee’s interpretation is reasonable, and the ALJ

permissibly relied on her conclusions in determining the extent of appellant’s limitations.

        Appellant also argues that the ALJ concluded based on Dr. Ayers’ report that he was

capable of light work, when the limitations imposed by the doctor would mean that he was

not capable of light work. See 20 C.F.R. §§ 404.1567(b) and 416.967(b)(defining light

work). This argument fails because the ALJ acknowledged and took into account the fact

that Dr. Ayers’ conclusions meant that appellant’s capacity for light work was diminished.

        Finally, appellant argues that the ALJ improperly rejected Dr. Ayers’ conclusion that

appellant suffers from a herniated disc. We disagree. The record reveals that Dr. Susan S.

Kemp performed an MRI of appellant’s cervical and lumbar spine on May 20, 1996. With

regard to his lumbar spine, Dr. Kemp concluded that: “In addition to a diffusely bulging

annulus at the L5-S1 level, there is a more focal disc herniation centrally and to the left of

midline at this level that abuts and posteriorly displaces the left S1 root sheath.” T. at 208.

In letters dated June 2, 1996 and August 20, 1996, neurosurgeon Dr. Howard M. Gendell

explained to Dr. Ayers that while the MRI demonstrated “some eccentricity to the left

                                                      5
side,” a subsequent myelogram and CT scan revealed that he did not have a herniated disc.

T. at 169, 207. On September 3, 1996, appellant saw orthopedic surgeon Dr. Robert G.

Liss for a second opinion; Dr. Liss concluded that while the “studies demonstrate that he

has degenerative changes about the lumbosacral disc,” there was “no clear impingement on

the nerve roots at this level.” T. at 202. On March 16, 1998, Dr. Abdul Khan reported that

appellant had a “disc bulge” at L5-S1. T. at 197. In sum, there is substantial evidence in the

record to support the ALJ’s finding that appellant does not suffer from a herniated disc.




        Turning to the evidence supplied by Dr. Khan, who, like Dr. Ayers, is one of

appellant’s treating physicians, appellant argues that the ALJ erred by giving insufficient

weight to Dr. Khan’s medical source statement, dated March 24, 1998, in which he

imposed limitations which would mean that appellant was not capable of performing even

sedentary work.** T. at 197-200. See 20 C.F.R. §§ 404.1567(a) and 416.967(a)(defining

sedentary work). The ALJ determined that appellant was not as limited as Dr. Khan

concluded, and adopted instead the limitations imposed by Dr. Ayers in her 1996 report.

While appellant argues that it is improper in the case of a degenerative illness like his to


   **
      Appellant appears to argue that Dr. Khan’s report of April 26, 1999, which was
submitted to the Appeals Council after the ALJ had already issued his decision, should be
considered. See Appellant’s Brief at 8; Appendix D, Exhibit 1. When a claimant seeks to
rely on evidence that was not before the ALJ, a court may remand to the Commissioner of
Social Security, “but only if the evidence is new and material and if there was good cause
why it was not previously presented to the ALJ.” See Matthews v. Apfel, 239 F.3d 589, 593
(3d Cir. 2001). As appellant has not made the required showing, we will not consider Dr.
Khan’s 1999 report.

                                                      6
use older evidence to contradict newer findings, the ALJ was not bound to accept all of Dr.

Khan’s conclusions merely because his report was the most recent. There is substantial

evidence in the record, including the reports of Dr. Grendell, Dr. Liss and Dr. Ballantyne,

to support the ALJ’s determination that appellant is less restricted than Dr. Khan concluded

he was. In any event, even if the ALJ had adopted all of Dr. Khan’s limitations, appellant

would not have been found disabled. When the ALJ asked the vocational expert to assume

that appellant was as restricted as Dr. Khan found that he was, the vocational expert testified

that there were still jobs available that appellant could do, including alarm monitor,

information clerk and receptionist.

        Appellant also contends that the ALJ improperly ignored the report of Dr. Paul

Franke, who wrote on October 11, 1996 that appellant could return to work immediately

but could only work part-time. The ALJ explained that he was rejecting Dr. Franke’s

conclusions because they conflicted with the findings of Dr. Ayers, who was appellant’s

treating physician. In addition to this fact, the ALJ found that Dr. Franke’s findings “are not

supported by detailed diagnostic and clinical evidence that clearly outline the basis for the

severity.” T. at 19.

        Appellant’s argument that the ALJ gave insufficient weight to certain of the

conclusions of Dr. Robert J. Lanz, Jr., who performed a psychiatric evaluation of appellant

on April 15, 1998 at the behest of the Commissioner, also fails. The ALJ’s conclusions

with regards to appellant’s depression and the degree of limitation it causes are adequately




                                                     7
supported by the findings of Dr. Elliott T. Shinn, appellant’s treating psychiatrist.***

         Appellant’s argument that remand is necessary because the ALJ failed to address the

fact that he uses a medically-required hand-held device fails as well. He testified that Dr.

Kahn provided him with a cane to address left-leg weakness which causes him to lose his

balance and fall. The references in the record include a reference by Dr. Khan to a “script”

for a cane; in addition, Dr. Khan checked the box for “hand-held assistive device medically

required for ambulation” in his 1998 report. T. at 199, 272. Other than that, there are

multiple references to the fact that appellant uses a cane but no discussion of its medical

necessity. The evidence presented by appellant was insufficient to support a finding that his

cane was medically necessary. “To find that a hand-held assistive device is medically

required, there must be medical documentation establishing the need for a hand-held

assistive device to aid in walking or standing, and describing the circumstances for which it

is needed[.]” Social Security Ruling 96-9p. Even if the ALJ erred regarding the cane,

though, any error was harmless as he asked the vocational expert to take the cane into

account and there were still jobs available that appellant could perform.

         Finally, appellant’s argument that the ALJ failed to present the vocational expert

with hypotheticals which incorporated certain findings of appellant’s treating physicians




   ***
       There is no evidence to support appellant’s allegation that the ALJ was biased in that
he failed to consistently apply the principle that a treating physician’s findings are entitled
to more weight than are those of a non-treating physician. Both the ALJ’s decision not to
adopt all of Dr. Kahn’s findings and his decision to defer to Dr. Shinn were supported by
substantial evidence.

                                                      8
also fails, as does his argument that the ALJ failed to properly consider the vocational

expert’s responses to the hypothetical questions proposed by counsel. The ALJ asked the

vocational expert whether there were jobs that appellant could perform assuming that he

was as limited as Dr. Khan concluded, and the vocational expert testified that there were.

          The ALJ’s hypothetical included Dr. Khan’s limitation on appellant’s ability to

reach. The fact that he did not incorporate any further limitations flowing from appellant’s

arm problems was not error as the record is devoid of support for further limitations.

Relatedly, the fact that the jobs identified by the vocational expert required manual

dexterity is not reason to reject them, as there is no evidence to support appellant’s claim

that he lacks such dexterity. Finally, appellant’s counsel’s hypotheticals were properly

rejected because they were based on the testimony of appellant and the conclusions of Dr.

Lanz, neither of which the ALJ fully credited.****

          The order of the District Court of December 11, 2002 will be affirmed.




TO THE CLERK OF THE COURT:

          Kindly file the foregoing Opinion.




                                                             __________________________


   ****
       Appellant offers no support for his argument that, in evaluating his testimony, the
ALJ was not entitled to consider the fact that his eligibility for disability benefits from his
former employer was contingent on his entitlement to social security benefits.

                                                       9
     Circuit Judge




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