                                                                                                                           Opinions of the United
1999 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-25-1999

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Precedential or Non-Precedential:

Docket 98-5463




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Recommended Citation
"Schaudeck v. Comm Social Security" (1999). 1999 Decisions. Paper 168.
http://digitalcommons.law.villanova.edu/thirdcircuit_1999/168


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Filed June 25, 1999

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 98-5463

LISA SCHAUDECK,
       Appellant

v.

COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION

APPEAL FROM THE
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

(D.C. No. 97-cv-02718)
District Judge: The Honorable Jerome B. Simandle

ARGUED March 9, 1999

BEFORE: MANSMANN, SCIRICA, and NYGAARD,
Circuit Judges.

(Filed June 25, 1999)

       Glenn B. Carey, Esq. (Argued)
       Agnes S. Wladyka, Esq.
       Abromson & Carey
       10 Park Place
       Newark, NJ 07102
        Attorneys for Appellant

       Peter G. O'Malley, Esq. (Argued)
       Office of United States Attorney
       970 Broad Street
       Room 700
       Newark, NJ 07102
        Attorney for Appellee
OPINION OF THE COURT

NYGAARD, Circuit Judge.

An Administrative Law Judge held that Lisa Schaudeck
did not prove that she was disabled for a continuous
twelve-month period by Hodgkin's Disease, and the District
Court affirmed this decision. See Schaudeck v. Apfel, No.
Civ.A.97-2718 (D.N.J. Aug. 3, 1998). Schaudeck argues
that the ALJ improperly determined that her impairment
did not meet the criteria of an impairment listed in
Appendix 1 to 20 C.F.R. Part 404, Subpart P, of the
regulations and failed to properly consider the effects of her
chemotherapy treatments and her substantive testimony.
We will reverse and remand the cause for a rehearing.

I.

Schaudeck was first diagnosed with Hodgkin's Disease in
1990. She was treated and the disease went into remission.
Her symptoms recurred in 1993, and in early 1994, she
began a year-long course of chemotherapy. She alleges
that, on February 7, 1994, she became disabled by the
disease and treatment and thereafter met the insured
status requirements of the Social Security Act until June
30, 1998. Although she worked as a hairdresser from 1981
until 1992 and as a waitress for three to five months in
1993, Schaudeck has not worked since.

At her hearing before the ALJ, Schaudeck testified to
significant problems resulting from her chemotherapy
treatments. She testified that, among other things, they
caused fatigue, sickness and nausea. App. at 162. She also
testified to residual effects that continued after the
chemotherapy, such as having very little energy, tiring
easily, and having to take regular naps. App. at 150, 153,
155, 164. In addition, she stated that she had frequent
stomach, leg and chest cramps and that the bottom of one
leg was numb. App. at 151-52.

The ALJ found that Schaudeck had been disabled from
February 7, 1994, until approximately August 31, 1994,

                                2
but that she was not disabled thereafter. In reaching this
conclusion, the ALJ relied on a consulting doctor's report
indicating that Schaudeck's Hodgkin's Disease was
"responding to" the chemotherapy treatments. The ALJ
thus denied her claim, holding that she had not shown a
period of disability continuing for more than twelve months.
The Appeals Council denied her request for review, and the
District Court affirmed the ALJ's decision.

Schaudeck alleges that the ALJ erred by: (1) holding that
her impairment did not meet or equal a listed impairment
in 20 C.F.R. Part 404, Subpart P, Appendix 1; (2) failing to
properly evaluate the medical evidence and her subjective
complaints of pain; and (3) failing to consider her non-
exertional impairments. We have plenary review of all legal
issues, see Krysztoforski v. Chater, 55 F.3d 857, 858 (3d
Cir. 1995), and review the ALJ's findings of fact to
determine whether they are supported by substantial
evidence. See 42 U.S.C. S 405(g). Overall, the substantial
evidence standard is deferential and includes deference to
inferences drawn from the facts if they, in turn, are
supported by substantial evidence. See Monsour Med. Ctr.
v. Heckler, 806 F.2d 1185, 1190-91 (3d Cir. 1986). To
determine whether a finding is supported by substantial
evidence, we must review the record as a whole. See 5
U.S.C. S 706.

II.

A social security insurance benefits claimant must
demonstrate an "inability to engage in any substantial
gainful activity by reason of any medically determinable
physical or mental impairment which . . . has lasted or can
be expected to last for a continuous period of not less than
12 months." 42 U.S.C. S 423(d)(2)(A). The Commissioner
evaluates each case according to a five-step process until a
finding of "disabled" or "not disabled" is made. See 20
C.F.R. S 404.1520(a). The sequence is essentially as follows:
(1) if the claimant is currently engaged in substantial
gainful employment, she will be found not disabled; (2) if
the claimant does not suffer from a "severe impairment,"
she will be found not disabled; (3) if a severe impairment
meets or equals a listed impairment in 20 C.F.R. Part 404,

                               3
Subpart P, Appendix 1 and has lasted or is expected to last
continually for at least twelve months, then the claimant
will be found disabled; (4) if the severe impairment does not
meet prong (3), the Commissioner considers the claimant's
residual functional capacity ("RFC") to determine whether
she can perform work she has done in the past despite the
severe impairment - if she can, she will be found not
disabled; and (5) if the claimant cannot perform her past
work, the Commissioner will consider the claimant's RFC,
age, education, and past work experience to determine
whether she can perform other work which exists in the
national economy. See id. S 404.1520(b)-(f).

Schaudeck was not engaged in substantial gainful
employment. At the second step, the ALJ determined that
Schaudeck had established the existence of a "severe
impairment" related to the Hodgkin's Disease and its
"residual effects." At the third step, however, the ALJ found
that the impairment did not meet or equal in severity any
of those listed in Appendix 1 to Subpart P of Regulation
404. At step four, the ALJ considered Schaudeck's RFC and
found that she could perform her past work of hairdressing
and waitressing. ALJ's Decision at 3-4; app. at 127-28.
Thus the ALJ did not reach step five.

A. The listed impairments in 20 C.F.R. Part 404, Subpart P,
       Appendix 1

Schaudeck alleges that the ALJ erred when he found that
her Hodgkin's Disease did not meet or equal in severity any
of the impairments listed in Appendix 1 to Subpart P of
Part 404 of the regulations. The list includes "Hodgkin's
Disease . . . not controlled by prescribed therapy." 20 C.F.R.
Pt. 404, Subpt. P, App. 1, S 13.06A (emphasis added).1 The
_________________________________________________________________

1. The full definition in the regulations is:"Hodgkin's Disease or non-
Hodgkin's lymphoma with progressive disease not controlled by
prescribed therapy." 20 C.F.R., Pt. 404, Subpt. P, App. 1, S 13.06A. We
read the clause "with progressive disease" as describing "non-Hodgkin's
lymphoma" because Hodgkin's Disease is by definition the "progressive
enlargement of the lymph nodes, spleen, and general lymphoid tissue."
Dorland's Illustrated Medical Dictionary 487 (27th ed. 1988). Thus, for
our purposes, the relevant term is "Hodgkin's Disease . . . not controlled
by prescribed therapy."

                               4
ALJ apparently relied on the report of Dr. Wilchfort, a
nontreating physician, who wrote that Schaudeck seemed
to be "responding to" her treatment. From this statement,
the ALJ found that the Hodgkin's Disease was "controlled
by" the chemotherapy.2 The issue is whether the ALJ erred
by concluding that the term "responding to" was equivalent
to "controlled by."

We conclude that the terms are not synonymous and that
Schaudeck's disease was not "controlled by" her
chemotherapy simply because it was "responding to" the
treatment. We hold that "control," as used here, means that
the treatment has been so successful that the disease can
be considered effectively neutralized. Webster's Dictionary
supports our holding. It defines "to control" as: "to exercise
restraining or directing influence over . . . to have power
over . . . to reduce the incidence or severity of especially to
innocuous levels." Webster's Ninth New Collegiate
Dictionary 285 (1988) (emphasis added).

In addition, the context in which the phrase "controlled
by" appears in the Appendix is further reinforcement for
our conclusion that the phrase should signify something
more than that a treatment is merely affecting the disease.
Indeed, section 13.06C of the CFR Appendix, which lists
the various impairments, also lists "[e]pidermoid carcinoma
in a lymph node in the neck not responding to prescribed
therapy," 20 C.F.R. Pt. 404, Subpt. P, App. 1,S 13.06C
(emphasis added), thus distinguishing between diseases
that are "responding to" treatment and those "controlled by"
it. Each term clearly means something different. Thus,
simply because Schaudeck's cancer was responding to the
chemotherapy does not mean that the disease was
controlled by the treatment.

Because the ALJ considered only evidence indicating that
Schaudeck's disease was "responding to" treatment, we will
remand the cause to give the ALJ an opportunity, using
this definition, to reassess whether Schaudeck's Hodgkin's
Disease meets or equals in severity the listed impairment of
_________________________________________________________________

2. This finding was not explicit in the ALJ's Decision but can be inferred
from the ALJ's finding at step three of the evaluative process.

                                5
"Hodgkin's Disease . . . not controlled by prescribed
therapy." 20 C.F.R. Pt. 404, Subpt. P, App. 1,S 13.06A.

B. Evaluating the medical evidence

On remand, should the ALJ again find that Schaudeck's
Hodgkin's Disease did not meet or equal a listed
impairment, the ALJ will need to reassess his
determination that Schaudeck was capable of doing her
past relevant work despite her severe impairment and make
more explicit the reasoning behind his conclusion.

An ALJ must give great weight to a claimant's subjective
testimony of the inability to perform even light or sedentary
work when this testimony is supported by competent
medical evidence. See Dobrowolsky v. Califiano, 606 F.2d
403, 409 (3d Cir. 1979). Although the ALJ can reject such
claims if he does not find them credible, see Baerga v.
Richardson, 500 F.2d 309, 312 (3d Cir. 1974), when
assessing a claimant's credibility:

       [i]n instances in which the adjudicator has observed
       the individual, the adjudicator is not free to accept or
       reject that individual's complaints solely on the basis of
       such personal observations. Rather, in all cases in
       which pain or other symptoms are alleged, the
       determination or decision rationale must contain a
       thorough discussion and analysis of the objective
       medical and the other evidence, including the
       individual's complaints of pain or other symptoms and
       the adjudicator's personal observations. The rationale
       must include a resolution of any inconsistencies in the
       evidence as a whole and set forth a logical explanation
       of the individual's ability to work.

Social Security Ruling ("S.S.R.") 95-5P, 1995 WL 670415, at
*2 (emphasis added).

We have reemphasized the need for such specificity,
holding that the ALJ must indicate in his decision which
evidence he has rejected and which he is relying on as the
basis for his finding. See Cotter v. Harris, 642 F.2d 700,
705-06 (3d Cir. 1981); see also S.S.R. 96-7P, 1996 WL
374186, at *4 ("The reasons for the credibility finding must
be grounded in the evidence and articulated in the

                               6
determination or decision."). This explanation provides us
with a basis on which to assess whether "significant
probative evidence was not credited or [was] simply
ignored." Cotter, 642 F.2d at 705. Here, the need for
specificity and articulation is strong because Schaudeck's
history of chemotherapy supports her subjective claims.

In particular, two flaws in the ALJ's analysis of the
evidence require reconsideration on remand. First, the ALJ
failed to consider the support for Schaudeck's testimony
provided by the numerous medical reports detailing her
chemotherapy regimen. In the section of the Decision titled
"The Evidence," the ALJ noted that on December 29, 1994,
February 9 and March 9, 1995, Schaudeck told her doctors
that she was "feeling fine" and had no problems. App. at
126. In addition, the ALJ cited Dr. Wilchfort's report stating
that Schaudeck was "responding to" the treatment. This,
however, was the extent of the ALJ's discussion of the
medical evidence.

The ALJ's complete discussion of Schaudeck's complaints
was as follows:

        The claimant's subjective complaints of disabling
       pain and other symptoms and limitation precluding all
       significant work activity are not credible or consistent
       with Social Security Ruling 95-5p and Regulations 20
       CFR 404.1529 and 416.929. Such complaints, beyond
       a limited period of acute distress at the onset of the
       disease, cannot reasonably be accepted as consistent
       with the laboratory findings, medical reports, and daily
       activities. The above-summarized medical evidence
       reveals objective findings that, in my opinion, could not
       reasonably produce the subjective complaints after an
       acute period of distress lasting six to seven months.

ALJ's Decision at 3 (emphasis added). Of course, the
"above-summarized medical evidence" consisted solely of
the two findings noted above and included no discussion
whatsoever of Schaudeck's medications or their side effects.

It is undisputed that Schaudeck suffered from Hodgkin's
Disease and that the medications used to treat the disease
can have numerous side effects. When considering the side
effects of treatment, the regulations instruct:

                                7
       Effects of therapy. Significant posttherapeutic
       residuals, not specifically included in the category of
       impairments for malignant neoplasms, should be
       evaluated according to the affected body system.

        Where the impairment is not listed in the Listing of
       Impairments and is not medically equivalent to a listed
       impairment, the impact of any residual impairment
       including that caused by therapy must be considered.
       The therapeutic regimen and consequent adverse
       response to therapy may vary widely; therefore, each
       case must be considered on an individual basis. It is
       essential to obtain a specific description of the
       therapeutic regimen, including the drugs given, dosage,
       frequency of drug administration, and plans for
       continued drug administration. It is necessary to obtain
       a description of the complications or any other adverse
       response to therapy such as nausea, vomiting, diarrhea,
       weakness, dermatologic disorders, or reactive mental
       disorders.

20 C.F.R. Pt. 404, Subpt. P, App. 1, S 13.00D (emphasis
added).

The record demonstrates that Schaudeck's chemotherapy
regimen consisted of several drugs, including,
Mechlorethamine (also known as Mustard), Oncovin (or
Vincristine), Procarbazine, Prednisone, Kytril, Ativan,
Decadron, Compazine, and G-CSF (granulocyte colony
stimulating factor). App. 239, 280-99. The known side
effects of these drugs are severe,3 thus Schaudeck's
treatment coincided with the pain and weakness to which
she testified.
_________________________________________________________________

3. Among the numerous common side effects for these drugs are: for
mechlorethamine, severe nausea, bone marrow depression and
gastrointestinal symptoms; for Oncovin, neuritic pain (due to nerve
inflammation) and muscle wasting; for Ativan, somnolence (unnatural
drowsiness); for Decadron, muscle weakness and loss of muscle mass;
for Compazine, drowsiness; for G-CSF, bone pain. See Dorland's
Illustrated Medical Dictionary 535 (Neupogen, a G-CSF), 990
(mechlorethamine) (1988); Physician's Desk Reference 1625 (Oncovin),
1771 (Decadron), 3038 (Compazine), 3269 (Ativan), (53d ed. 1999).

                               8
Schaudeck was taking the numerous drugs that made up
her chemotherapy regimen well after the date on which the
ALJ found her no longer disabled. Yet, the ALJ did not
indicate why he believed that Schaudeck's condition could
have improved when she was continuing to take the same
debilitating drugs.4

Second, the ALJ failed to explain why he would rely on
the post-August 31, 1994 doctors' reports that Schaudeck
was feeling fine, see ALJ's Decision at 2, when similar
statements appeared in doctors' reports throughout her
treatment, including during the period that the ALJ found
Schaudeck was suffering from a severe impairment. There
is no obvious logical reason to differentiate between these
similar statements that appear throughout her medical
treatment, and the ALJ offered none.

The ALJ's failure in this regard is particularly troubling
in light of the fact that Schaudeck testified that she always
told the doctors that she was feeling fine because
"everybody [at the clinic] knows what the problems are. . . .
They know being sick is just normal . . . Those problems
are all normal in that situation. Everybody is sick like that.
That's the normal thing. . . . [W]hen you say okay, it's just
okay for what you're going through." App. at 165-66.
Although we normally defer to the ALJ's decision not to
credit a claimant, here, that decision is logically unsound.
There was no reason for the ALJ to accept some of
Schaudeck's statements as proof that she was not disabled
while ignoring identical statements made during the time
period that the ALJ determined that she was disabled.

Where competent evidence supports a claimant's claims,
the ALJ must explicitly weigh the evidence, see
_________________________________________________________________

4. Schaudeck also asserts that the ALJ's finding that she had sought
"only limited modalities of treatment for the alleged pain and limitation,
and does not take medication for the impairment," app. 127, was
erroneous. Here, the ALJ may have been referring to Schaudeck's
decision not to seek treatment beyond the chemotherapy, but he did not
explain this. It is clear that Schaudeck declined to seek certain
treatment after her chemotherapy ended. However, this is another
instance in which the ALJ did not make clear what evidence he was
relying on to form his conclusion.

                               9
Dobrowolski, 606 F.2d at 407, and explain a rejection of the
evidence. See Benton ex rel. Benton v. Bowen, 820 F.2d 85,
88 (3d Cir. 1987). By failing to consider the drugs that
Schaudeck was taking throughout her chemotherapy
treatment and make "a thorough discussion and analysis of
the objective medical . . . evidence" S.S.R. 95-5P, 1995 WL
670415, at *2, the ALJ erred. On remand, the ALJ must
give a clear and logical statement of the facts supporting
his conclusions.5

III.

We conclude that the ALJ applied an erroneous definition
of "controlled by" and that he erred by failing to properly
consider the evidence of record and adequately explain his
decision. As a result, we will reverse the District Court's
order and remand the cause to the District Court with
instructions to remand to the Commissioner of Social
Security, for further proceedings not inconsistent with this
opinion.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit
_________________________________________________________________

5. Schaudeck also asserts that the ALJ erred by failing to consider her
non-exertional impairments. These are impairments that do not affect a
claimant's physical strength but may nevertheless prevent them from
engaging in gainful employment. See, e.g., Stunkard v. Secretary of
Health & Human Servs., 841 F.2d 57, 60 (3d Cir. 1988). Because we are
remanding the cause for the reasons discussed, we need not reach this
issue.

                               10
