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


8-8-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-4348




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                                                             NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 05-4348


                             JOLANTA KRZYWOSZYJA
                                     O/B/O
                              ANNA KRZYWOSZYJA,

                                                      Appellant
                                           v.

                      COMMISSIONER OF SOCIAL SECURITY



                                 APPEAL FROM THE
                  UNITED STATES DISTRICT COURT FOR THE
                             DISTRICT OF NEW JERSEY
                              D.C. Civil No. 03-cv-00119
                 District Judge: The Honorable Dennis M. Cavanaugh



                      Submitted Under Third Circuit LAR 34.1(a)
                                   June 28, 2006

          Before: BARRY, VAN ANTWERPEN, and SILER*, Circuit Judges.

                                 (Filed August 8, 2006)
                                         ____

                                OPINION OF THE COURT


______________
*The Honorable Eugene E. Siler, Jr., Circuit Judge, United States Court of Appeals for
the Sixth Circuit, sitting by designation.
SILER, Circuit Judge

        Jolanta Krzywoszyja (“Jolanta”), the surviving daughter of Anna Krzywoszyja

(“Anna”), deceased, seeks review of the decision of the Commissioner of Social Security

(“Commissioner”) denying Anna’s application for disability insurance benefits. Anna

alleged disability due to high blood pressure, headaches and general pain post-surgery. The

administrative law judge (“ALJ”) ruled that Anna was not disabled prior to or on the last day

of her disability insurance, December 31, 1988, within the meaning of the Act and thus

denied her benefits. The district court affirmed. Because substantial evidence supported the

ALJ’s finding, we also affirm.

                                               I.

       From 1965 on, Anna repaired, cleaned and serviced watches, an occupation requiring

very little physical exertion. She alleged that she became disabled in 1982 due to right kidney

damage, sustained while undergoing a total abdominal hysterectomy. After her surgery, she

often complained of pain in the right side of her back and legs and lightheadedness. She had

to lie down daily due to intense headaches. Also after the surgery, Anna’s blood pressure was

“sky high,” and her legs and ankles were swollen which imposed difficulty for standing or

walking long distances. Anna took over-the-counter medications (such as Excedrin) for

headaches and Inderal for high blood pressure. In 1991, Anna collapsed and, while she was

in the hospital, doctors discovered a tumor in her left kidney and that her urethra had been




                                              2
sliced. She subsequently underwent dialysis, had a kidney transplant and eventually died in

August 1994.

       In evaluating Anna’s claim for disability benefits, the ALJ stated that notes recorded

during Anna’s post-operative doctor visits revealed that she was doing well and that her

incision was well-healed.      Based on these physician’s notes and the claimant’s own

descriptions of her medical condition, the ALJ concluded that the record did not document

any condition or complication that could be associated with the surgery performed in 1982.

He accordingly concluded that Jolanta’s testimony was not corroborated by either the

objective evidence or the evidence of record. Because Anna was not impaired to an extent

that significantly limited her ability to perform basic work-related activities, she did not have

a severe impairment as required for a finding of disability. 20 C.F.R. § 404.1521.

                                              II.

       The reviewing court does not engage in fact finding, so “the findings of the

Commissioner [] as to any fact, if supported by substantial evidence, shall be conclusive. . .

.” 42 U.S.C. § 405(g). There must be medical evidence to disprove a claimant’s testimony

as to pain. Green v. Schweiker, 749 F.2d 1066, 1070 (3d Cir. 1984). An ALJ must make

specific findings when evaluating a claimant’s subjective pain. Hargenrader v. Califano, 575

F.2d 434 (3d Cir. 1978).

                                              III.




                                               3
       The Social Security Act defines disability as an “inability to engage in any substantial

gainful activity by reason of any medically determinable physical or mental impairment.”

Richardson v. Perales, 402 U.S. 389, 390 (1971). Furthermore,

       An individual shall be determined to be under a disability only if his physical
       or mental impairment or impairments are of such severity that he is not only
       unable to do his previous work but cannot, considering his age, education, and
       work experience, engage in any other kind of substantial gainful work which
       exists in the national economy. . . .

42 U.S.C. § 423(d)(2)(A).

       Pursuant to the regulations, the ALJ engages in a five-step sequential analysis when

evaluating whether a claimant is disabled. 20 C.F.R. § 404.1520(a)(4). The claimant bears

the burden of proof on steps one through four; if the claimant establishes her disability

according to the first four factors, then the burden shifts to the Commissioner to demonstrate

that the claimant is capable of performing other work in the national economy in view of her

age, education and work experience. Morales v. Apfel, 225 F.3d 310, 315-16 (3d Cir. 2000).



       In the present case, the ALJ engaged in the five-step sequential analysis, but concluded

that the claimant did not establish a severe impairment as required by step two. The ALJ

considered claimant’s allegations of pain but was not able to validate those allegations with

treatment notes and no symptoms were diagnosed as resulting complications from the

hysterectomy surgery.

       Although the ALJ must consider subjective evidence of pain and combination of

impairments, the final conclusion must be based on specific factual findings in the record.

                                              4
Green, 749 F.2d at 1071 (“There must be objective medical evidence of some condition that

could reasonably produce pain.”). Subjective symptoms of pain can be validated if observed

and treated over time by a physician. Dorf v. Bowen, 794 F.2d 896, 902 (3d Cir. 1986).

       Although Jolanta testified that Anna did not return to her work after surgery in 1982,

she failed to show that Anna was not able to return to work. Anna’s medical records

contradict Jolanta’s claims because they show that Anna was discharged in good condition.

Jolanta also claims that Anna’s blood pressure was “sky high,” a claim which directly

contradicts Dr. Sheflin’s, Anna’s treating physician’s, notes indicating that Anna’s blood

pressure was stable post-operatively and was never excessively elevated throughout his time

as Anna’s physician. Dr. Sheflin noted that Anna was “doing well” and she took over-the-

counter pain relievers for her headaches. The ALJ noted “that although Jolanta’s testimony

chronologically detailed the reasons for her mother’s inability to work during the period in

question, her testimony is not corroborated by other evidence of record. Such a result is

consistent with Green, 749 F.2d at 1070.

       The ALJ offered the following reasons for rejecting Jolanta’s testimony with proper

citations to the record:

       The record shows that in May 1981, eighteen months prior to the surgery, the
       claimant’s blood pressure was elevated. On March 30, 1983, the claimant was
       placed on Inderal, a medication used to treat both hypertension and migraine-
       type headaches. While the record does not specify what this medication was
       used for, two months later, on May 3, 1983, her blood pressure was under
       control, and remained so for the remainder of the period under consideration.

                                         *   *    *


                                             5
       The claimant alleges that she was well until she had the surgery on November
       9, 1982. The record repeatedly shows that the claimant did well post-
       operatively. By November 29, 1982, Dr. Sheflin noted that her incision was
       healed and on December 6, 1982, he noted that the claimant was “doing well
       post-op[eratively] and her [vaginal] cuff was also “well healed.” On December
       27, 1982, her incision was “well healed.”

       Thereafter, the claimant complained of hot flashes and was placed on hormone
       replacement therapy. On January 3, 1983, Dr. Sheflin noted that the claimant
       was “improving only slowly”. She was noted to have hemorrhoids and was
       treated [for] . . . this condition. On January 31, 1983, two and a half months
       after surgery, Dr. Sheflin again noted that the claimant was “doing well” . . . .
       On May 23, 1983 he noted that she was “much improved.” On June 6, 1983
       office notes indicate that the claimant was “doing well;” her blood pressure was
       normal and she wanted to discontinue medication for the headaches.


       The ALJ cited to Anna’s medical records when he determined that claimant’s

allegations were unfounded because Anna’s incision was “well healed,” her blood pressure

was stable at all times after surgery and her alleged intensive headaches did not impair her and

were improved by over-the-counter drugs. There were other symptoms that the ALJ

considered but the regulation prevents a finding of severe impairment absent a previous

medical diagnosis that could reasonably produce such symptoms. 20 C.F.R. § 404.1529(c).

       Anna never returned to work. At step two, the impairment is severe if it limits the

person’s ability to do basic work activities; an impairment is not severe if it is a slight

abnormality that has only a minimal effect on the claimant’s ability to do basic work

activities. 20 C.F.R. § 404.1521; Soc. Sec. Ruling (“SSR”) 85-28; Ferguson v. Schweiker,

765 F.2d 31, 33 n.2 (3d Cir. 1985). Prior to the last date she was insured for disability

insurance, Anna complained of moodiness, tinnitus, hives, swelling of legs and varicosities.


                                               6
The record, however, failed to indicate Anna’s doctors ever diagnosed her with an impairment

that was likely to cause any of the symptoms she alleged. There was no medical evidence of

any significant kidney disease prior to 1991. Finally, Dr. Sheflin did not diagnose Anna with

any impairments of a debilitating nature from any time after her surgery until December 1988.



       There are no medical records indicating that the slicing of Anna’s right urethra caused

her kidney disease. Records indicate that Anna’s kidney tumor, dialysis and eventual kidney

failure caused her death but none of it related back to her urethra. The finding of the sliced

urethra was part of the examination process, not part of the diagnosis. SSR 83-20 requires an

ALJ to call a medical expert only when a patient’s medical records lead to an ambiguous onset

date. There are no medical records indicating any symptoms of claimant’s kidney disease

until 1991.

       Since the records did not indicate a diagnosis of any impairments that cause the alleged

symptoms, the ALJ found that claimant failed her burden of proof and therefore denied her

benefits. There is substantial evidence in the record to support the ALJ’s decision.

       Jolanta insists that the Commissioner twice lost claimant’s records and that this should

be weighed heavily against the Commissioner’s findings. The record on appeal does contain

a note that indicated one of claimant’s physicians, Dr. Panotes, had lost her records due to a

flood. Anna saw Dr. Panotes beginning in 1982; unfortunately, Dr. Panotes could only

produce notes taken from 1988. Counsel offers no reason why the ALJ could not rely on Dr.

Sheflin’s treatment notes for the same period. If medical evidence in the record does not

                                              7
refute the treating physician’s opinion, the ALJ is bound by it. Allen v. Bowen, 881 F.2d 37,

42 (3d Cir. 1989). The ALJ properly relied on Dr. Sheflin’s treatment notes and other

evidence in the record because no other evidence presented by the claimant refutes Dr.

Sheflin’s opinion.

       Affirmed.




                                             8
