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


5-14-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3293




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                                                                    NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                      No. 03-3293


                                 DEBRA K. COPPOLA,
                                                Appellant
                                        v.

                             JO ANNE B. BARNHART,
                       COMM ISSIONER OF SOCIAL SECURITY
                                  ____________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE WESTERN DISTRICT OF PENNSYLVANIA
                            (D.C. Civ. No. 02-cv-00784 )
                  District Judge: Honorable Terrence F. McVerry
                                   ____________

                     Submitted Under Third Circuit L.A.R. 34.1(a)
                                    May 11, 2004
               Before: NYGAARD, McKEE, and WEIS, Circuit Judges.
                                (Filed May 14, 2004)
                                 _______________

                                       OPINION


WEIS, Circuit Judge.

             The claimant in this Social Security Disability case was a legal secretary for

some 27 years. She was age 47 at the time of her hearing before an ALJ in 2001.

Claimant asserts that she has been unable to work in her previous capacity since



                                            1
December 1998 as a result of injuries to her right shoulder incurred in an automobile

accident in July of that year.

              Claimant underwent surgical procedures to her right shoulder in 1998, 1999

and 2000 and received other forms of treatment including physiotherapy, pain control and

various other regimens.

              After a hearing, the ALJ found that the claimant’s “allegations regarding

her limitations are not totally credible.” He further found that while “the claimant is

unable to perform any of her past relevant work,” she nevertheless has the “residual

functional capacity to perform a significant range of light work . . . [of which] there are a

significant number of jobs in the national economy.” Accordingly, the ALJ concluded

that the claimant was not entitled to benefits.

              After the Appeals Council had affirmed the ALJ’s decision, claimant

appealed to the United States District Court for the Western District of Pennsylvania.

The court entered summary judgment for the defendant, citing the ALJ’s conclusion that

“Plaintiff could perform light exceptional work with no repetitive right arm use, no

overhead reaching, and no extensive writing.” Coppola v. Barnhart, No. 02-0784, at 5

(W.D. Pa. filed June 18, 2003).

              The District Court noted that the “ALJ found that Plaintiff’s statements and

testimony concerning her pain and its impact on her ability to work were not entirely

credible in that her stated limitations were far in excess of the supporting medical



                                              2
evidence.” Id. at 9. Acknowledging that the claimant had a severe impairment, the court

nevertheless concluded that, in deference to the credibility determination by the ALJ and

the evidence of record, claimant was not disabled within the meaning of the Social

Security Act.

                In the course of his review, the district judge agreed with the ALJ that

claimant did not meet the requirements of Social Security listing 1.13, 20 C.F.R. Pt. 404,

subpt. P, App. 1. At the time of the administrative hearing, that listing addressed soft

tissue injuries of an upper or lower extremity “requiring a series of staged surgical

procedures within 12 months after onset . . ..” Although there were three surgeries in this

case, we conclude that the District Court did not err in holding that they did not constitute

“staged procedures.” The claimant’s interpretation of the regulation would, in effect,

remove the term “staged” from the regulation – a critical requirement for its application.

                After the ALJ’s decision, however, listing 1.13 was deleted and a new

listing, 1.08 was substituted. Rather than “staged surgical procedures,” the amendment

discusses soft tissue injury of an upper or lower extremity “under continuing surgical

management” and refers to section 1.00 (M) for the definition of that term. See 20 C.F.R.

Pt. 404, subpt. P, App. 1, Part A § 1.08. According to that section, “[u]nder continuing

surgical management . . . refers to surgical procedures and any other associated treatments

related to the efforts directed toward the salvage or restoration of functional use of the

affected part. It may include such factors as post-surgical procedures, surgical



                                               3
complications, infections, or other medical complications, related illnesses, or related

treatments that delay the individual’s attainment of maximum benefit from therapy.” 20

C.F.R. Pt. 404, subpt. P, App. 1, Part A § 1.00M.

              The change in language was made after the ALJ decided the case, but

before the Appeals Council reviewed the claim. The Council did not, however, discuss

the issue or even indicate that it believed the amendment was relevant. We believe that

the deletion of “staged surgical procedures” and the substitution of more general language

is significant, and might possibly be read by the Social Security Administration to entitle

the claimant to benefits.

              Thus, we are presented with a regulation whose application to the case

before us has not been considered by the agency. If it is determined that the new

regulation is more favorable to the claimant than the original version, she should be

entitled to rely on the more expansive construction. See Niesse v. Shalala, 17 F.3d 264,

267 (8 th Cir. 1994); Dean v. Gardner, 393 F.2d 327, 330 (9 th Cir. 1968).

In these circumstances, and giving due deference to the administrative process, we will

direct that the case be remanded to the Social Security Administration for its

interpretation of section 1.08. We intimate no view on how the issue should be

determined.

              Accordingly, the judgment of the District Court will be reversed and the

matter will be remanded with directions to remand to the Social Security Administration.



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