                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-7-2006

Snyder Dixon v. Comm Social Security
Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2388




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                                                   NOT PRECEDENTIAL
                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 05-2388


                              VICKIE SNYDER DIXON,

                                                               Appellant

                                              v.

                      COMMISSIONER OF SOCIAL SECURITY

                                                              Appellee




                    On Appeal from the United States District Court
                        for the Middle District of Pennsylvania
                            District Court No. 03-cv-01282
                      District Judge: Hon. James F. McClure, Jr.


                              Argued on January 12, 2006

             Before: FUENTES, ROTH*, and ROSENN**, Circuit Judges

                            (Opinion Filed   June 7, 2006 )




      *Effective May 31, 2006, Judge Roth assumed senior status.

        **This case was submitted to the panel of Judges Fuentes, Roth and Rosenn.
Judge Rosenn died after submissions, but before the filing of the opinion. The decision
is filed by a quorum of the panel. 28 U.S.C. § 46(d).
Ronald T. Tomasko, Esquire (ARGUED)
Tomasko & Koranda, P.C.
219 State Street
Harrisburg, PA 17101

              Counsel for Appellant


Thomas A. Marino, Esquire
United States Attorney
J. Justin Blewitt, Esquire
Assistant United States Attorney
United States Attorney’s Office
Middle District of Pennsylvania
William J. Nealon Federal Building
Suite 311
P. O. Box 309
Scranton, PA 18501-0309

Donna L. Calvert, Esquire
Regional Chief Counsel
Nora R. Koch, Esquire
Supervisory Regional Counsel
Anne von Scheven, Esquire (ARGUED)
Assistant Regional Counsel
Office of the General Counsel
Social Security Administration
OGC/Region III
P. O. Box 41777
Philadelphia, PA 19101

              Counsel for Appellee



                                      OPINION


ROTH, Circuit Judge:

       Vicki Snyder Dixon appeals the decision of the District Court, approving and



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adopting the Report and Recommendation of the United States Magistrate Judge, who

affirmed the Commissioner of Social Security’s conclusion that Dixon is not entitled to

Disability Insurance Benefits (DIB). Because we conclude that substantial evidence

supports this determination, we will affirm.

       I. Facts

       Dixon filed an application for DIB, in which she alleged an inability to engage in

substantial gainful activity because of a variety of complaints, including fibromyalgia.

Her claim was denied initially, and upon reconsideration, and Dixon requested a hearing.

An Administrative Law Judge (ALJ) first denied DIB in 1999, and she appealed in 2001.

Dixon’s case was initially referred to a Magistrate Judge. The District Judge adopted the

Magistrate Judge’s Report and Recommendation to remand to the Social Security

Administration. On remand, another ALJ denied Dixon DIB and she appealed again.

Dixon’s case was referred to a second Magistrate Judge. The second District Judge

adopted this Magistrate Judge’s Report and Recommendation that Dixon’s appeal be

denied. Dixon appealed and this appeal is now before us.

       Dixon was born on August 13, 1954. She has a high school education. She

sustained injuries in a motor vehicle accident on March 25, 1997. Before the accident,

Dixon was a chiropractic assistant. She has not engaged in any substantial gainful

employment activity since the date of the accident.

       Directly after the accident, Dixon began receiving chiropractic treatment from her



                                               3
employer, Dr. Janet Calhoun. Dixon reported short-lasting improvements from these

treatments. Dr. Calhoun referred Dixon for an MRI of the cervical spine in August 1997,

which revealed mild reversal of the normal cervical lordosis with mild ligamentous

hypertrophy but no evidence of cervical disc herniation

       Dr. Stephen Morgenstein, a physical medicine and rehabilitation specialist,

examined Dixon several times, starting in September 1997. Over the course of his care,

Dr. Morgenstein made many notations regarding Dixon’s condition. In September 1997,

he noted that Dixon did not appear to be in any acute discomfort and displayed a full

range of motion throughout her cervical spine other than some limitations in extension

maneuvers. He also noted that Dixon’s x-rays, taken the day of the accident, were within

normal limits. In October 1997, he noted that she ambulated with a slowed gait and

possessed a very guarded and stiffened posture. He also noted that Dixon’s range of

motion was markedly limited and noted muscular spasm and tightness throughout

Dixon’s lower lumbar region in addition to significant bilateral hamstring tightness and

bilateral tenderness. Dr. Morganstein stated that he believed that Dixon had sustained

myofascial injuries to her lumbar spine and prescribed additional physical therapy

exercises and Tylenol. In December 1997, Dr. Morganstein told Dixon that he felt she

had post traumatic fibromyalgia and explained that, although this condition is chronic in

nature, pain can often be controlled and patients can return to a functional lifestyle.

       Dixon attended physical therapy from September 1997 through November 1997.



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At the time of her discharge, Mark McDonald, P.T., observed that she ambulated fairly

normally in the clinic and neurological examination was unremarkable but Dixon

continued to experience tenderness and limitations in her range of motion.

       In February 1998, a state agency medical consultant completed a Functional

Capacity Evaluation, finding that Dixon could perform light work.

       At the request of Dixon’s attorney, Dixon’s treating healthcare providers submitted

opinions regarding Dixon’s ability to perform substantial gainful employment. Dr.

Calhoun stated that Dixon was disabled and should be granted disability and that she

would be unable to perform any of the jobs identified by the vocational experts retained

by the Commissioner. Dr. Morganstein stated that Dixon was not capable of substantial

gainful employment and would, at the particular time the opinion was written, be unable

to perform any of the jobs identified by the vocational experts retained by the

Commissioner. Willis Willard, M.D., Dixon’s treating family physician since 2000, could

not recommend any work for Dixon.

       II. Jurisdiction and Standard of Review

       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. We must

review the ALJ’s findings of fact to determine whether they are supported by substantial

evidence. See 42 U.S.C. § 405(g); Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999).

Substantial evidence is “more than a mere scintilla of evidence but may be less than a

preponderance,” and is evidence which “a reasonable mind might accept as adequate to



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support a conclusion.” Id. at 422 (citations omitted). Generally, the substantial evidence

standard of review is deferential. Schaudeck v. Commissioner of Soc. Sec., 181 F.3d 429,

431 (3d Cir. 1999) (citations omitted).




       III. Discussion

       In order to bring a claim for DIB, an individual must show that she possess an

“inability to engage in any substantial gainful activity by reason of any medically

determinable physical . . . impairment . . . which has lasted or can be expected to last for a

continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). The

Commissioner uses a five-step process to evaluate whether an individual qualifies for

disability benefits. 20 C.F.R. § 404.1520. The Commissioner assesses (1) whether an

individual is currently engaged in substantial gainful activity; (2) whether the individual’s

impairment is severe; (3) whether the individual’s impairment meets or equals a listed

impairment; (4) the individual’s residual functional capacity and their past relevant work;

and (5) whether an individual is able to perform other work available in the national

economy. 20 C.F.R. § 404.1520(4)(i) - (v). The claimant has the burden of proof on the

first four steps and the Commissioner has the burden on step five. Bowen v. Yuckert, 482

U.S. 137, 146 n.5 (1987).

                                           A.

       Dixon asserts that the ALJ improperly substituted his judgment for the judgment of



                                                6
the treating sources of record. First, Dixon contends that the ALJ improperly relied upon

his own visual observations of the plaintiff during her hearing in his determination of the

plaintiff’s residual functional capacity. An ALJ may not make a credibility determination

based solely on his own observations at the hearing. See Van Horn v. Schweiker, 717,

F.2d 871, 874 (3d Cir. 1983). However, the ALJ did not base his credibility

determination solely on his own observations. In his opinion, the ALJ stated that his

determination was based on both the medical evidence of record and on his visual

observations of Dixon at the hearing. The ALJ’s observations merely gave him further

opportunity to determine Dixon’s credibility regarding her symptoms and limitations.

The ALJ then determined that Dixon appeared to have under-reported her ability to

engage in daily activities and overstated the severity of her restrictions.

       Dixon further asserts that the ALJ did not have sufficient contrary evidence to

support an outright rejection of the professional opinions. While an ALJ cannot reject

evidence for no reason or for the wrong reason, in this case the ALJ did not reject any

evidence and considered the record as a whole. See Plummer, 186 F.3d at 429.

       Dixon also asserts that the ALJ’s opinion should have discussed and given

controlling weight to the treating professionals’ opinions that Dixon was unable to

perform any work. If the ALJ finds that “a treating source’s opinion on the issue(s) of the

nature and severity of [the claimant’s] impairment(s) is well-supported by medically

acceptable clinical and laboratory diagnostic techniques . . . [the ALJ] will give it



                                               7
controlling weight. 20 C.F.R. § 404.1527(d)(2). However, opinions on disability are not

medical opinions and are not given any special significance. 20 C.F.R. § 404.1527(e)(1)

& (3).

         The treating professionals’ opinions stated that Dixon was disabled and unable to

do the specific jobs identified by the vocational expert. Because the opinions reflected

the treating professionals’ opinions on disability, they were properly afforded no special

significance. See id. Further, these opinions were properly given less weight because

they were unsupported by medical findings regarding what functional limitations Dixon

possessed that prevented her from performing these positions. See 20 C.F.R. §

404.1527(d)(3). Instead, the treating professionals relied upon the Dixon’s subjective

complaints. Therefore, the ALJ did not give improper weight to his observations or the

treating physicians’ opinions.

                                              B.

         Dixon also contends that the substantial evidence of record does not support the

ALJ’s conclusion that Dixon’s pain complaints were less than fully credible. Once an

ALJ determines that a medical impairment exists, the ALJ must determine the extent to

which a claimant is accurately stating the degree of pain or the extent to which he or she

is disabled by it.” Hartranft v. Apfel, 181 F.3d 358, 362 (3d Cir. 1999); see 20 C.F.R. §

404.1529(c). Because the ALJ determined that Dixon had fibromyalgia, it was properly

within his discretion to determine the degree of pain suffered.



                                              8
       The regulations state that symptoms will only be considered to affect a claimant’s

ability to perform work activities if such symptoms result from an underlying physical or

mental impairment that has been demonstrated to exist by medical signs or laboratory

findings. 20 C.F.R. § 404.1529(b). Further, while complaints of pain not fully supported

by objective medical evidence should be considered and not discounted without contrary

medical evidence, they do not have to be credited. See Chrupcala v. Heckler, 829 F.3d

1269 (3d Cir. 1987).

       In this case, the ALJ considered all of the evidence, including Dixon’s complaints

of pain, and did not discount any piece of evidence but instead assigned varying weights

to it. The medical evidence provided that Dixon exhibited normal physical findings and

that there existed no muscle atrophy suggesting an inability to perform sedentary work.

Also, Dr. Willard stated that he could not assess whether Dixon was capable of any

sustained work without a Functional Assessment Evaluation. Dr. Morganstein stated that

with the proper pain management program, the plaintiff would be able to return to work.

In viewing the objective medical evidence presented, the ALJ stated that the evidence did

not justify the severity of the limitation Dixon alleged but instead supported a conclusion

that her impairments resulted in only modest limitations.

       As discussed above, the ALJ was not required to give force to the opinions of

Dixon’s treating physicians insofar as they were conclusory opinions, unsupported by

medical evidence. The ALJ considered the record as a whole, including Dixon’s



                                             9
subjective complaints and the treating professionals’ opinions, in making his credibility

determination. His determination was supported by substantial evidence.

                                              C.

       Dixon asserts that the Commissioner has not met her burden of proving that Dixon

is able to perform other work because the determination that Dixon could perform some

sedentary work was entirely reliant on the hypothetical question posed by the ALJ to the

vocational expert (VE) regarding Dixon’s functional capacities. In order to meet the

burden of establishing that jobs are available in the national economy that a claimant with

impairments can perform, a Commissioner must present the testimony of a VE or other

similar evidence. Sykes v. Apfel, 228 F.3d 259, 273 (3d Cir. 2000). Further, the VE’s

testimony may only be considered for purposes of determining disability if the question

accurately portrays the claimant’s individual physical and mental impairments as

contained in the record. Podedworny v. Harris, 745 F.2d 210, 218 (3d Cir. 1984).

       The third hypothetical that the ALJ posed to the VE reflected Dixon’s age,

education, diagnoses, treatment history, official exertional limits, the persistent,

significant pain, and the attacks of high-level pain about which Dixon testified. Based on

the ALJ’s hypothetical, which accurately reflected Dixon’s impairments, the VE

identified the available jobs Dixon could perform: surveillance system monitor, machine

tender, and information clerk. Therefore, at step five, the Commissioner met her burden

of demonstrating the existence of jobs which Dixon could perform given the residual



                                              10
functional capacity which had been established.

         IV. Conclusion

         For the foregoing reasons we conclude that the ALJ’s determinations were

supported by substantial evidence. We will, therefore, affirm the judgment of the District

Court.




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