                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-6-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1660




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                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      No. 04-1660


                           SHARON KOWALSKI, Appellant

                                            v.

                           JO ANNE B. BARNHART,
                      COMM ISSIONER OF SOCIAL SECURITY


                   On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                              (D.C. Civil No. 02-cv-01327)
                  District Judge: The Honorable W illiam W. Caldwell
                                    ______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                 December 17, 2004


                   Before: NYGAARD and GARTH, Circuit Judges.
                            and POLLAK,* District Judge.

                                 (Filed January 6, 2005)
                                    ______________

                              OPINION OF THE COURT

                                    ______________
POLLAK, District Judge.

      In this case, we are asked to review the opinion of Magistrate Judge Thomas M.


      *
       Honorable Louis H. Pollak, Senior District Judge for the United States District
Court of the Eastern District of Pennsylvania, sitting by designation.
Blewitt, adopted by Judge William W. Caldwell of the United States District Court for the

Middle District of Pennsylvania. Magistrate Judge Blewitt affirmed the opinion of an

Administrative Law Judge (ALJ) denying social security benefits to Sharon Kowalski,

appellant herein.




                                      I. Background




       Ms. Kowalski is a fifty-three year old woman who suffers from a left knee

impairment that, in May 2000, necessitated total replacement surgery. Ms. Kowalski filed

a first application for Disability Insurance Benefits and Social Security Income Benefits

on October 15, 1997. That application was denied on December 17, 1998, and Ms.

Kowalski did not appeal. She filed a second application on April 10, 2001, alleging an

inability to work since September 1, 1997. As the ALJ found, however, evaluation of her

candidacy for benefits could date back no further than December 18, 1998, the day after

her first application was denied. The ALJ found further that Ms. Kowalski was insured

for benefits only through September 30, 2001. As such, the relevant period of evaluation

spanned from December 18, 1998 through September 30, 2001.

       The ALJ proceeded through the five-step sequential analysis according to which




                                             2
eligibility for disability benefits is evaluated. See 20 C.F.R. § 404.1520.1 At step three,

the ALJ found that M s. Kowalski’s impairment did not meet or equal a listed impairment.



       1
           20 C.F.R. § 404.1520 provides:

       The sequential evaluation process is a series of five "steps" that we follow
       in a set order. If we can find that you are disabled or not disabled at a step,
       we make our determination or decision and we do not go on to the next
       step. If we cannot find that you are disabled or not disabled at a step, we go
       on to the next step. Before we go from step three to step four, we assess
       your residual functional capacity. (See paragraph (e) of this section.) We
       use this residual functional capacity assessment at both step four and step
       five when we evaluate your claim at these steps. These are the five steps we
       follow:

       (I) At the first step, we consider your work activity, if any. If you are doing
       substantial gainful activity, we will find that you are not disabled. (See
       paragraph (b) of this section.)

       (ii) At the second step, we consider the medical severity of your
       impairment(s). If you do not have a severe medically determinable physical
       or mental impairment that meets the duration requirement in §§ 404.1509,
       or a combination of impairments that is severe and meets the duration
       requirement, we will find that you are not disabled. (See paragraph (c) of
       this section.)

       (iii) At the third step, we also consider the medical severity of your
       impairment(s). If you have an impairment(s) that meets or equals one of our
       listings in appendix 1 of this subpart and meets the duration requirement,
       we will find that you are disabled. (See paragraph (d) of this section.)
       (iv) At the fourth step, we consider our assessment of your residual
       functional capacity and your past relevant work. If you can still do your past
       relevant work, we will find that you are not disabled. (See paragraph (f) of
       this section and §§ 404.1560(b).)

       (v) At the fifth and last step, we consider our assessment of your residual
       functional capacity and your age, education, and work experience to see if
       you can make an adjustment to other work. If you can make an adjustment
       to other work, we will find that you are not disabled. If you cannot make an
       adjustment to other work, we will find that you are disabled.




                                              3
Moving on to step four, the ALJ determined that Ms. Kowalski could not perform her

past work but, at step five, the ALJ adopted the testimony of a vocational expert that there

existed a significant number of jobs in the national economy that Ms. Kowalski could

perform despite her knee problems. As such, the ALJ found that Ms. Kowalski was not

disabled and he denied her application.

       Ms. Kowalski requested that the Social Security Appeals Council review the ALJ’s

decision, and the Council denied her request, rendering the ALJ’s decision the final

decision of the Commissioner for purposes of judicial review, see Sims v. Apfel, 530 U.S.

103, 106 (2000). Ms. Kowalski then filed a complaint in the United States District Court.

Her case was reviewed initially by Magistrate Judge Blewitt, who authored a Report and

Recommendations (R & R) that was adopted by Judge Caldwell of the District Court

despite Ms. Kowalski’s objections. This timely appeal followed.




                                       II. Discussion




       “We review the ALJ’s decision under the same standard as the District Court, to

determine whether there is substantial evidence on the record to support the ALJ’s

decision.” Burnett v. Commissioner, 220 F.3d 112, 118 (3d Cir. 2000). See 42 U.S.C. §

405(g). “Substantial evidence has been defined as more than a mere scintilla. It means

such relevant evidence as a reasonable mind might accept as adequate.” Plummer v.



                                             4
Apfel, 186 F.3d 422, 427 (3d Cir. 1999) (citing Ventura v. Shalala, 55 F.3d 900, 901 (3d

Cir. 1995) ).

       On appeal, Ms. Kowalski first contends that the Magistrate Judge erred when he

concluded that the ALJ had fully explained his reasoning at step 3, where he found that

Ms. Kowalski’s impairment did not meet or equal any listed impairments that would

render her disabled per se. Second, Ms. Kowalski argues that the Magistrate Judge erred

when he made his own comparison of the evidence to the listed impairments, rather than

remanding the case for further fact-finding by the ALJ. Third, Ms. Kowalski maintains

that the Magistrate Judge erred in concluding that the ALJ considered all of the evidence

and in affirming the ALJ’s finding that Ms. Kowalski was not entitled to a closed period

of disability from December 18, 1998 to May 1, 2000. Finally, Ms. Kowalski argues that

the Magistrate Judge erred when he engaged in his own analysis as to whether Ms.

Kowalski was entitled to a closed period of disability.

A. Step Three: Whether the ALJ Adequately Supported His Finding that Ms. Kowalski

Was Not Per Se Disabled

       As M s. Kowalski correctly notes, an ALJ must do more than just state his

conclusion; “he must set forth the reasons for his decision,” Burnett, 220 F.3d at 119.

Thus, in Burnett, this court vacated a decision by the ALJ containing no more than the

conclusion from his step three analysis; the court remanded the case for a discussion of

the evidence and an explanation of reasoning supporting the ALJ’s step three



                                             5
determination. 220 F.3d at 120.

       Ms. Kowalski maintains that the ALJ’s step three determination suffers from the

same defect as did the determination at issue in Burnett, and that remand is thus

appropriate. In Burnett, the ALJ’s entire step three analysis consisted of the following

statement: “‘Although [Burnett] has established that she suffers from a severe

musculoskeletal [impairment], said impairment failed to equal the level of severity of any

disabling condition contained in Appendix 1, Subpart P of Social Security Regulations

No. 4.’” 220 F.3d at 119 (citing the ALJ opinion). The ALJ did not list the specific

impairments with which he had compared Ms. Burnett’s impairment, nor did he discuss

the evidence in light of the listed impairments. The court referred to the ALJ’s analysis as

“hopelessly inadequate” since it provided the court with nothing to review. Id. At 120.

       Confronting challenges to step three analyses in the wake of Burnett, this court has

been at pains to circumscribe its holding. See, e.g., Jones v. Barnhart, 364 F.3d 501, 505

(3d Cir., 2004). In Jones, the court stated that “Burnett does not require the ALJ to use

particular language or adhere to a particular format in conducting his analysis. Rather, the

function of Burnett is to ensure that there is sufficient development of the record and

explanation of findings to permit meaningful review.” 364 F.3d at 505.

       The ALJ’s decision in this case is sufficiently reasoned to allow for meaningful

judicial review. Unlike in Burnett, the ALJ here did list the sections describing the

impairments to which he compared Ms. Kowalski’s condition. Moreover, he devoted over



                                             6
two pages of his opinion to a discussion of the evidence, focusing in particular on the

range of motion of Ms. Kowalski’s left knee, impairment of which is a prerequisite for

one of the listed disabilities, see Appendix 1, Section 1.02. Finally, the ALJ stated that

“[i]t is important to note that no treating physician has determined the claimant [Ms.

Kowalski] to be disabled.” AR at 16. Substantial evidence thus supported the ALJ’s

determination that Ms. Kowalski did not have an impairment that met or equaled one of

the listed impairments, and the ALJ presented this evidence in the course of his opinion.

Accordingly, his step three determination was not based upon a conclusory statement and

the Magistrate Judge did not err in upholding this determination.2

B. The Magistrate Judge’s Review of the ALJ’s Step Three Analysis

       Ms. Kowalski contends that, to respond to her attack on the ALJ’s inadequate step

three reasoning, the Magistrate Judge conducted his own step three analysis, thereby

contravening the basic principle that district courts may not make findings of fact to

supplement those of the Commissioner, see, e.g., Grant v. Shalala, 989 F.2d 1332 (3d

Cir., 1993). Yet, while it is true that the district court (or the magistrate judge whose

findings the district court adopts) may not engage in fact-finding, it is commonplace for

the district court to go beyond the ALJ’s decision and look to the record in order to

determine whether substantial evidence supported the ALJ’s findings. See, e.g., McCrea




       2
       It is also worth noting, as appellees urge us to do, that Kowalski fails to indicate
which of the listed impairments she would allegedly satisfy.

                                               7
v. Comm'r of Soc. Sec., 370 F.3d 357 (3d Cir., 2004); Jones v. Barnhart, 364 F.3d 501

(3d Cir., 2004). Indeed, this is just what substantial evidence review requires. See, e.g.,

Mathews v. Weber, 423 U.S. 261, 263 (U.S., 1976) (holding that “the Federal Magistrates

Act, 28 U.S.C. §§ 631 et seq., permits a United States district court to refer all Social

Security benefit cases to magistrate judges for preliminary review of the administrative

record, oral argument, and preparation of a recommended decision as to whether the

record contains substantial evidence to support the administrative determination”). The

Magistrate Judge’s use of the record here, for purposes of determining whether the ALJ’s

step three analysis was supported by substantial evidence, was thus entirely appropriate.

C. The ALJ’s Determination that Ms. Kowalski Was Not Entitled to a Closed Period of

Disability

       In the proceedings below, Ms. Kowalski argued that the ALJ’s analysis was

wanting since, according to her, the ALJ considered only the evidence pertaining to her

limitations in the period after her knee replacement surgery, on May 1, 2000. Since the

ALJ is required to weigh all of the relevant, probative and available evidence before him,

see Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d Cir. 1979), Ms. Kowalski argued

that the ALJ’s (alleged) failure to do so here constituted error. The Magistrate Judge

disagreed, arguing that “none of the findings pertaining to the relevant time period appear

to suggest any findings other than those already cited by the ALJ regarding the Plaintiff’s

treatment following total knee replacement,” Kowalski v. Barnhart, No. 02-1327 at 10



                                              8
(M.D. Pa. filed Dec. 22, 2003). The Magistrate Judge further defended the ALJ’s opinion

by citing to the portion of that opinion in which the ALJ stated that “the Plaintiff

overstated her symptoms of pain and [] her complaints were inconsistent with the

diagnostic findings.” Id. On appeal, Ms. Kowalski maintains (without argument) that the

Magistrate Judge erred.

       While the Magistrate Judge’s reasoning is flawed,3 the underlying ALJ decision is

defensible. The ALJ recited Ms. Kowalski’s medical history beginning on October 26,

1996. He described her condition on January 23, 1997 and on March 17, 1999. He also

stated that “[i]t is important to note that no treating physician has determined the claimant

to be disabled” – a statement that reflected the medical opinions of the physicians treating

Ms. Kowalski throughout the period of alleged disability. Finally, as the Magistrate Judge

argued, substantial evidence supported the ALJ’s determination that at no time from

December 18, 1998 through September 30, 2001 did Ms. Kowalski qualify as disabled.




       3
         The M agistrate Judge is correct that the record relates that M s. Kowalski’s
condition from December 18, 1998 to May 1, 2000, was not significantly different from
that after her surgery – in the closed period in question, Ms. Kowalski was found to have
a good range of motion, AR 364, and could even walk one to two miles without
difficulty, AR 262. Nonetheless, the presence of this information in the record would not
justify the ALJ’s failure to reference it in his opinion, if the ALJ had in fact failed to do
so.
        The Magistrate Judge’s contention that the ALJ found that Ms. Kowalski had
overstated her symptoms is unhelpful because the ALJ’s finding was indexed to the
testimony Ms. Kowalski gave regarding her symptoms at the time of the hearing, and not
during the period from December 18, 1998 to May 1, 2000.


                                              9
D. The Magistrate Judge’s Review of the ALJ’s Determination that Ms. Kowalski Was

Not Entitled to A Closed Period of Disability

        Ms. Kowalski argues that the Magistrate Judge erred by making his own findings

of fact and concluding that she was not entitled to a closed period of disability. While the

Magistrate Judge did recite record entries tending to show that Ms. Kowalski was not

disabled between December 1, 1998 and M ay 1, 2000, this recitation was intended to

demonstrate, and did demonstrate, that substantial evidence supported the ALJ’s decision.

As such, there was nothing inappropriate about the Magistrate Judge’s use of the record

here.

                                      III. Conclusion




        The ALJ’s decision was well-reasoned and supported by substantial evidence.

Since the Magistrate Judge so found, the decision of the District Court adopting the

Report and Recommendations of the Magistrate Judge shall be AFFIRMED.




                                             10
