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


1-6-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1629




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                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 03-1629
                                       ___________

                                  JAMES W. BOWSER,

                                                            Appellant

                                             v.

        JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania

                  District Court Judge: The Honorable Arthur J. Schwab
                                 (D.C. No. 02-cv-00220E)
                                       ___________
                      Submitted Under Third Circuit L.A.R. 34.1(a)
                                     October 23, 2003

                Before: ALITO, FUENTES and BECKER, Circuit Judges.

                             (Opinion Filed: January 6, 2004)
                              ________________________

                               OPINION OF THE COURT
                              ________________________

FUENTES, Circuit Judge:

       Appellant, James Bowser, appeals the decision of the United States District Court

for the Western District of Pennsylvania, affirming the final decision of the

Commissioner of Social Security that Bowser is not entitled to disability insurance
benefits (“DIB”) under Title II of the Social Security Act (the “Act”), 42 U.S.C. §§ 401-

433. Our review is limited to determining whether the Commissioner’s final decision was

supported by substantial evidence. Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999).

We now affirm the District Court’s decision.

                                             I.

       Bowser applied for DIB on December 23, 1998, alleging disability since June 12,

1997 due to a herniated disc, constant back pain, and difficulty walking, standing and

sitting. His claim was denied at the initial and reconsideration levels of administrative

review. On February 17, 2000, a hearing was held before an ALJ, who found that Bowser

was disabled. On May 19, 2000, the Appeals Council referred the case for review on its

own motion. On September 15, 2000, the Appeals Council found that the ALJ’s decision

was not supported by substantial evidence, vacated the decision, and remanded the case to

the ALJ for further action.

       After a second administrative hearing on March 14, 2001, the ALJ found that,

despite his impairments, Bowser was capable of making a vocational adjustment to a

significant number of jobs in the national economy. Therefore, the ALJ found that

Bowser was not disabled under the Act. See 20 C.F.R. § 404.1520 (2002). The Appeals

Council affirmed this decision, making it the final decision of the Commissioner. Bowser

then brought an action in the District Court. Bowser and the Commissioner filed cross-

motions for summary judgment. On February 7, 2003, the District Court granted the

Commissioner’s motion for summary judgment. Bowser now appeals this decision.
                                          II.

       Bowser first argues that the ALJ did not base his decision on a complete record of

Bowser’s medical history because the record did not contain certain notes made by his

treating physician, Dr. Rezaian, from October 14, 1994 to November 15, 1995. Although

Bowser referred to the missing treatment notes in a footnote to his District Court brief, he

did not argue to the District Court that their absence made the record incomplete. See

Kiewit Eastern Co., Inc. v. L & R Construction Co., Inc., 44 F.3d 1194, 1203-04 (3d Cir.

1995) (upholding a district court’s finding that a party had waived an issue when the

summary judgment memorandum made only vague references to the issue); see also

Supp. App. at 27-41. We conclude that because Bowser failed to properly raise this

argument before the District Court, he waived his right to do so on appeal.

       Even if Bowser had not waived this right, we cannot find that the ALJ’s decision

was based on an incomplete administrative record since the record contained several other

reports in which Dr. Rezaian summarized his findings from this period. App. at 380-81,

390-91, 430. We therefore find that, in rendering his decision, the ALJ had access in the

record to all information pertaining to Dr. Rezaian’s treatment of Bowser during the

relevant time period.

                                          III.

       Bowser also argues that, in light of the different conclusions reached by the ALJ

after the first and second hearings, the ALJ failed to adequately review the record and

explain how he weighed conflicting evidence in the second hearing to decide the issue of

Bowser’s “residual functional capacity.” We agree with the District Court, however, that
the ALJ’s final decision was based on substantial evidence.

       At the first hearing, the ALJ based his finding as to Bowser’s disability almost

entirely on the medical opinion and treatment notes of Dr. Rezaian. However, the District

Court agreed with the conclusion of the Appeals Council that “the ALJ had neglected to

consider other contradictory medical evidence of record.” Dist. Ct. Op. at 7. This

evidence included testimony from a second physician, who made a diagnosis conflicting

with that of Dr. Rezaian after conducting an independent examination of Bowser and

reviewing his medical records. See Dr. Ronan Evaluation, App. at 363-64, 366-67.

Further evidence was offered at the second hearing by the medical expert, who also

disagreed with Dr. Rezaian’s diagnoses after reviewing Bowser’s medical records, and

two medical consultants from the state agency, who reviewed all of the evidence in the

file and testified as to Boswer’s residual functional capacity to lift, stand and sit. See Dr.

Balk Testimony, App. at 75-78; Drs. Ramakumar and Le Report, App. at 382-89; see also

Dist. Ct. Op. at 8-9.

       The opinion of a treating physician as to the nature and severity of an impairment

is not entitled to controlling weight where it is not “well-supported by medically

acceptable clinical and laboratory diagnostic techniques” or is “inconsistent with the other

substantial evidence in [the] case record . . . .” 20 C.F.R. § 404.1527(d)(2). Further, an

ALJ must consider findings of state agency medical consultants as opinion evidence,

except for the ultimate determination as to whether a claimant is disabled. Dist Ct. Op. at

21, citing 20 C.F.R. § 404.1527(f)(2)(i). After considering all of the objective medical

evidence in the record, “the ALJ rejected Dr. Rezaian’s diagnoses and medical opinion as
to disability, and found that the weight of the evidence supported a finding that [Bowser]

was not disabled from performing light duty work with a sit/stand option.” Dist. Ct. Op.

at 9. Unlike the ALJ’s first decision, which was based solely on Dr. Rezaian’s opinions

without consideration of contradictory medical evidence in the record, the ALJ’s final

decision as to Bowser’s disability was supported by substantial evidence. App. at 397-

401. We therefore affirm the decision of the District Court on this issue.

                                           IV.

       Finally, in deciding whether Bowser would be capable of performing other

available work in the national economy, the ALJ asked a vocational expert (“VE”) to

assume a hypothetical individual with Bowser’s vocational characteristics who was

limited to light work with a sit/stand option. App. at 83. The VE testified that such an

individual would be capable of working in a variety of jobs, at either the light or

sedentary level, in the national economy. App. at 83-84. Based on this testimony, the

ALJ found that Bowser was capable of making a vocational adjustment to a significant

number of jobs in the national economy and, therefore, that Bowser was not disabled

within the meaning of the Act. App. at 22.

       Bowser argues that the VE’s testimony was based on a hypothetical question that

did not reflect all of Bowser’s functional limitations. We disagree. As discussed above,

the District Court properly concluded that the record as a whole supported the ALJ’s

assessment of Bowser’s residual functional capacity. Dist. Ct. Op. at 22. The ALJ

accounted for all of Bowser’s functional limitations that were supported by the record in

his assessment of Bowser’s residual functional capacity and in his related hypothetical
question to the VE.

       Under Plummer v. Apfel, 186 F.3d 422, 431 (3d Cir. 1999), this Court held that a

VE’s testimony in response to a hypothetical question that “fairly set forth every credible

limitation established by the physical evidence” was substantial evidence of a non-

disability. Accordingly, we agree with the District Court’s reasoning that “because the

ALJ could properly rely on the state agency’s consultants’ evaluation of plaintiff’s

[residual functional capacity], . . . the hypothetical question to the VE limiting plaintiff to

light work with a sit/stand option was substantial evidence in support of his finding that

there was such work available to [Bowser] in the national economy.” Dist. Ct. Op. at 22-

23. We therefore affirm the District Court’s conclusion that Bowser was capable of

making a vocational adjustment to a significant number of jobs in the national economy

and, therefore, that Bowser was not disabled within the meaning of the Act.

       We conclude that the Commissioner’s final decision was supported by substantial

evidence. Accordingly, for the reasons stated above, we affirm the judgment of the

District Court.

       _____________________________




       TO THE CLERK OF THE COURT:




       Kindly file the foregoing Opinion.

                                                                   /s/ Julio M. Fuentes

                                                                  Circuit Judge
