                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-30-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3656




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                                                                      NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT
                                   _____________

                                        No. 07-3656
                                       _____________

                                  PATRICIA B. HUGHES,

                                                Appellant

                                                v.

                        COMMISSIONER OF SOCIAL SECURITY


                      On Appeal from the United States District Court
                           for the Middle District of Pennsylvania
                               District Court No. 06-cv-01649
                     District Judge: The Honorable A. Richard Caputo


                    Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                    October 23, 2008

                      Before: RENDELL and SMITH, Circuit Judges,
                               and POLLAK, District Judge *

                                  (Filed: October 30, 2008)


                                           OPINION


SMITH, Circuit Judge.

       *
        The Honorable Louis H. Pollak, Senior District Judge for the United States District
Court for the Eastern District of Pennsylvania, sitting by designation.

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       Patricia B. Hughes appeals from the judgment of the United States District Court

for the Middle District of Pennsylvania, which affirmed the denial by the Commissioner

of Social Security of Hughes’ application for disability insurance benefits. The District

Court had jurisdiction pursuant to 42 U.S.C. § 405(g). We exercise appellate jurisdiction

under 28 U.S.C. § 1291. Our review is limited to determining whether there is substantial

evidence to support the Commissioner’s decision. 42 U.S.C. § 405(g). Substantial

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

support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal

quotation marks and citation omitted). We will affirm.

       Hughes sustained an injury to her right hip when she slipped at work in January of

2002. Although a battery of diagnostic studies were performed, and several diagnoses

were ruled out, no definitive diagnosis was made. In April of 2003, Dr. Gibson

documented that treatment “has not been terribly successful.” He expressed his belief

that she had a total disability and opined that he still felt that “her diagnosis is likely

consistent with muscle ligamentous capsular tear . . . .”

       In October of 2003, Dr. Gibson documented that the results of several diagnostic

studies were negative and that he thought “that she is permanently and totally disabled.”

In May of the following year, Dr. Gibson opined that Hughes’ right hip was “the same. . .

. She is left with a permanent disability about her right hip which is significant. I feel

there is no other treatment available at this time.” He prescribed pain medication and



                                                2
noted that he would see her as needed. In response to a request by the Social Security

Administration for information about Hughes’ medical status, Dr. Gibson documented

that Hughes complained of pain in her right groin and that an exhaustive work up had

been negative for any objective findings. Dr. Gibson opined that she had a chronic soft

tissue injury of the right hip, and that her prognosis was poor. In addition, Dr. Gibson

completed a form regarding Hughes’ ability to do physical work-related activities, and

reported that she was unable to perform the full range of sedentary work because of

limitations in her ability to lift, to carry, to sit, to stand, to walk, and to perform postural

maneuvers.

       On December 15, 2005, Hughes testified during a hearing before an

Administrative Law Judge (ALJ). She described the origin of her injury and explained

that she was unable to work because of limitations arising from her injury.

       In January of 2006, Dr. Gibson again responded to a request from the Social

Security Administration. He documented that he had last treated Hughes in September of

2005, and that she continued to complain of chronic inflammatory type pain in her right

groin. Objective findings, however, were negative. Dr. Gibson’s diagnosis of Hughes’

condition changed slightly from chronic soft tissue injury of the right hip to “chronic

strain right groin, unrelenting and unimproved.” Her prognosis, Dr. Gibson opined, was

still poor, and she remained unable to perform the full range of sedentary work.

       In a decision dated January 27, 2006, the ALJ denied Hughes’s application for



                                                3
benefits. The ALJ applied the five step sequential analysis set forth in 20 C.F.R. §

404.1520. At step one, he found that Hughes had not engaged in any substantial gainful

activity. Step two required the ALJ to determine if Hughes had a severe impairment. Id.

at § 404.1520(a)(4)(ii). He concluded that she did not have severe impairment and was

not disabled for purposes of Social Security.

       The ALJ explained that Hughes had to prove that she had a physical impairment by

offering “medical evidence, consisting of signs, symptoms, and laboratory findings.”

Although the ALJ acknowledged Hughes’ complaints of chronic pain in her right hip,

groin, and leg, he pointed out that “despite an exhaustive diagnostic work up, no

medically determinable impairment has been established that would account for these

symptoms.” He also considered the medical evidence, including the documentation from

her treating physician Dr. Gibson. He gave little weight to Dr. Gibson’s opinion,

however, as his progress notes failed to “set forth any objective basis for the assigned

physical limitations.” The ALJ specified that “the only clinical finding [Dr. Gibson]

describes is ‘pain (right) groin,’ which is a subjective symptom and not a finding and he

specifically admits that exhaustive work up was negative for objective findings.” In the

absence of any objective findings, the ALJ concluded that Hughes had failed to meet her

burden of proof at step two in the analysis.

       Hughes’ appeal to the District Court was unsuccessful. This appeal followed. She

argues that the ALJ erred because the burden at step two is de minimis and the evidence


                                                4
she adduced was sufficient to demonstrate that she had a severe impairment.

      Regulation § 404.1508 specifies that an individual’s

      impairment must result from anatomical, physiological, or psychological
      abnormalities which can be shown by medically acceptable clinical and
      laboratory diagnostic techniques. A physical . . . impairment must be
      established by medical evidence consisting of signs, symptoms, and
      laboratory findings, not only by your statement of symptoms.

20 C.F.R. § 404.1508. Regulation 404.1528 explains that “[s]igns are anatomical,

physiological, or psychological abnormalities which can be observed, apart from your

statements (symptoms). . . . They must also be shown by observable facts that can be

medically described and evaluated.” 20 C.F.R. § 404.1528(b). Laboratory findings can

be shown by medically acceptable laboratory diagnostic techniques, chemical tests,

electrophysiological studies, and x-rays. 20 C.F.R. § 404.1528(c). Examples of objective

medical findings are set forth in 20 C.F.R. § 404.1529(c)(2), including “reduced joint

motion, muscle spasm, sensory deficit, or motor disruption.”

      We are sympathetic to Hughes’ predicament, but we do not find any error in the

ALJ’s application of these regulations to the medical evidence of record. As the ALJ

noted, Dr. Gibson’s assessments were unsupported by objective findings. Dr. Gibson

acknowledged this very fact in responding to the Social Security Administration’s two

requests for information. Noticeably absent from this record is any documentation

regarding the examples of objective medical findings cited in regulation § 404.1529(c)(2).

We conclude that there is substantial evidence to support the ALJ’s determination that



                                            5
Hughes did not have a medically determinable severe impairment that meets the 12-

month duration requirement. Accordingly, we will affirm the judgment of the District

Court.




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