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


5-6-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3249




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                                                                    NOT PRECEDENTIAL

                   IN THE UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                       No. 03-3249
                                      ____________

                                FRANK MONTGOMERY,

                                              Appellant

                                                v.

                     JO ANNE B. BARNHART, COMMISSIONER
                   OF THE SOCIAL SECURITY ADMINISTRATION
                                  ____________

                      Appeal from the United States District Court
                        For the Eastern District of Pennsylvania
                                 D.C. No.: 02-cv-00752
                    District Judge: Honorable Clarence C. Newcomer
                                     ____________

               Submitted Under Third Circuit LAR 34.1(a) April 23, 2004

      Before: SCIRICA, Chief Judge, ROSENN and GREENBERG, Circuit Judges

                                    (Filed May 6, 2004)
                                      ____________

                               OPINION OF THE COURT
                                    ____________

ROSENN, Circuit Judge.

       Frank Montgomery appeals from a summary judgment entered by the United

States District Court for the Eastern District of Pennsylvania in favor of the

Commissioner of Social Security (the Commissioner). Montgomery filed this action in
the District Court for the Eastern District of Pennsylvania pursuant to 42 U.S.C. § 405(g)

seeking judicial review of the Commissioner’s denial of his application for disability

insurance benefits (DIB). During the administrative proceedings, the Administrative Law

Judge (ALJ) found that although Montgomery suffered from a number of medical

ailments, these ailments do not prevent him from carrying out substantial gainful work in

the national economy. The District Court adopted the Report and Recommendations of

United States Magistrate Judge (MJ) Carol Sandra Wells. MJ Wells reviewed in careful

detail the ALJ’s determinations on each of the challenged points and reported to the

District Court that the determinations were supported by the substantial weight of the

evidence. The District Court adopted this report, denied Montgomery’s motion for

summary judgment, and granted the Commissioner’s motion. Montgomery timely

appealed to this court. We affirm.

       After conducting a hearing, the ALJ decided that Montgomery had been disabled

prior to November 1, 1999 by drug and alcohol abuse. Thus, he was not entitled to

benefits through that date. The ALJ further found that, absent the severe substance abuse

that had ended at some point in November 1999, Montgomery retained the ability to

perform his past relevant work. Montgomery requested a review of the ALJ’s decision by

the Appeals Council. The Council denied the request for review, making the ALJ’s

decision the final decision of the Commissioner. Montgomery then sought judicial

review of the Commissioner’s final decision and instituted this suit in the United States



                                             2
District Court as aforesaid.

        Montgomery was forty-nine years old at the time of the ALJ’s decision. He

completed the tenth grade, obtained his general education diploma, and had prior work

experience as a custodian, laborer, cleaner, and kitchen helper. He had also served in the

military for a period of three years ending in 1971. He filed an application for DIB in

June 1999, alleging that he had been disabled since August 1998, due to depression,

seizures, arthritis of the hands and right shoulder, and hepatitis C.

        On appeal, Montgomery contends that substantial evidence does not support the

Commissioner’s findings that he has no severe impairments other than a substance abuse

disorder and a substance-induced mood disorder, and that he has no physical limitations.

In addition, M ontgomery contends that the ALJ erred as a matter of law in failing to

include in his hypothetical questions to the Vocational Expert (VE) all of Montgomery’s

physical and mental limitations supported by objective medical evidence.

Montgomery also challenges the Commissioner’s findings that he has the residual

functional capacity (RFC) to return to his former job as a custodian or to perform the job

of security monitor, that his depression did not meet or equal Listing 12.04 after

November 1, 1999, and the Commissioner’s finding that Montgomery is not under a

disability.

        Montgomery raised each of these issues in his motion for summary judgment and

briefs. However, he acknowledges that each of these issues were discussed by MJ Wells



                                              3
in her Report and Recommendations.

        Montgomery claims that the medical evidence establishes that he suffers from

cirrhosis of the liver, major depression, hepatitis C, moderate cerebellar atrophy of the

brain, osteoarthritis of the right shoulder, seizures, cervical radiculopathy, right ulnar

nerve neuropathy at the elbow, degenerative disc disease of the cervical spine, restrictive

lung disease, borderline intellectual function, other minor diseases, and a history of drug

and alcohol abuse for which he is in recovery. The ALJ found that Montgomery stopped

drinking and drug use as of November 1, 1999.

        In her twenty-five page Report and Recommendations, MJ Wells was not

persuaded that any of the alleged impairments were severe. She reported: “Specifically,

he (Montgomery) has failed to provide convincing medical opinions that hepatitis C,

cirrhosis of the liver, osteoarthritis of the shoulder, hand weakness, superficial varicose

veins and borderline intellectual functioning ‘significantly limited his physical or mental

ability to do basic work activities.’” (25a.) Judge Wells further found that the ALJ had

considered each of Montgomery’s alleged limitations and concluded that they

individually and in totum did not reach the level of severe. As to hepatitis C, she reported

that the ALJ properly concluded that the record did not indicate any resulting work-

related limitations. She further noted that Dr. Saul, an expert witness with considerable

medical experience, diagnosed “only mild reversible organic damage from the cirrhosis

and hepatitis C infection and no resulting work-related limitations.” (25a.) She also



                                               4
scrutinized each of the other findings that the ALJ made with respect to Montgomery’s

alleged illnesses and work limitations.

         The District Court reviewed all of the evidence, including the medical testimony

and reports concerning the Montgomery’s various illnesses together with the reports and

testimony presented by the Government. It found that the ALJ properly considered

whether Montgomery had a severe impairment or combination of impairments that

imposed more than a minimal restriction on his ability to perform basic work activities on

a sustained basis. The District Court found that the ALJ considered each of

Montgomery’s alleged impairments singly and in combination. The District Court found

no fault with the AJL’s conclusion that Montgomery’s only severe impairment that

impacted his ability to work was his substance-induced mood disorder. Because the

District Court found that the additional ailments were not severe, the District Court

concluded that the ALJ’s decision was properly supported by substantial evidence.

         The District Court also reviewed the ALJ’s decision that Montgomery did not

meet the listing in section 12.04.1 Montgomery argues that the ALJ did not properly

  1
      The requirements of Listing 12.04 are:
        A.     Medically documented persistence, either continuous or intermittent, of one
               of the following:
               1.      Depressive syndrome . . .; or
               2.      Manic syndrome . . .; or
               3.      Bipolar syndrome with a history of episodic periods manifested by
                       the full symptomatic picture of both manic and depressive symptoms
                       (and currently characterized by either or both syndromes); AND
        B.     Resulting in at least two of the following:
               1.      Marked restriction of activities of daily living; or

                                             5
consider the opinions of his treating physician, Dr. Makary and Dr. Slap. The

requirements of Listing 12.04 are set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1. The

ALJ conceded that Montgomery exhibited sufficient symptoms of an affective disorder

after he stopped drinking to meet the Part A criteria of the listing of 12.04. However,

with respect to Part B criteria, the District Court found that the ALJ accorded Dr. Richard

Saul’s opinion the greatest weight. Based on all the evidence, Dr. Saul concluded,

according to the ALJ, that Montgomery had not sufficient brain damage from his prior

substance abuse. An MRI confirmed this conclusion. Thus, Montgomery did not meet or

equal Listing 12.04.

       We conclude that there was no error of the ALJ in according Dr. Saul’s opinion

greater weight than the testimony of Dr. Makary and Dr. Slap, Montgomery’s treating

physicians. Although Drs. Makary and Slap asserted that Montgomery met or equaled

Listing 12.04, we believe that there was adequate ground for the ALJ to reject both

disability opinions as inconsistent with other convincing evidence in the record. The ALJ

found that Dr. Slap’s opinion was entitled to only limited weight because he based his

assessment to a large degree on Montgomery’s description of his symptoms and abilities.

However, Dr. Slap was unaware of the significant discrepancies set forth between

Montgomery’s allegations and the evidence of record. Further, the ALJ found that Dr.


              2.       Marked difficulties in maintaining social functioning; or;
              3.       Marked difficulties in maintaining concentration, persistence, or
                       pace; or
              4.       Repeated episodes of decompensation, each of extended duration.

                                              6
Slap offered his opinion on brain damage before Dr. Griffin, the psychologist, submitted

her report. That report revealed that psychological testing provided only questionable

indication of brain damage after a full battery of psychological tests. The ALJ attributed

significant weight to Dr. Griffin’s report because it was the only psychological opinion

supported by objective testing. Dr. Griffin’s conclusion was that Montgomery’s work-

related abilities were at least fair except in performing complex tasks. The District Court

therefore found that the ALJ’s reasoning was sound. We agree.

         Furthermore, the ALJ rejected Dr. M akary’s disability opinion because: (1) his

document required only “yes” and “no” answers and lacked any supporting medical data,

and (2) his document directly contradicted his own earlier assessment that Montgomery

had a GF score of 60. The District Court found these reasons valid. Although a treating

physician’s conclusion should be accorded great weight, it may be rejected if it is

unsupported by sufficient clinical data. Newhouse v. Heckler, 753 F.2d 283, 286 (3d Cir.

1985).

         The District Court also found that the ALJ’s conclusion that Dr. Saul’s opinion

that Montgomery did not meet or equal Listing 12.04 was the most consistent with and

well supported by the evidence. Dr. Saul found only moderate limitations in

Montgomery’s activities of daily living, social functioning, concentration, and persistence

or pace.

         The ALJ gave a series of well supported reasons why Dr. Saul’s opinion carried



                                             7
greater weight than the testimony of Dr. Makary and Dr. Slap. He agreed with Dr. Saul’s

opinion that Montgomery did not meet or equal Listing 12.04. Dr. Saul’s opinions were

not substantially contradicted by other medical evidence except for the opinions of Dr.

Slap and Dr. Makary.

        Dr. Griffin also reported that Montgomery was likely exaggerating his symptoms

and that his credible limitations were not disabling. Furthermore, the ALJ reported that

“Dr. Griffin’s test observations gave her a unique opportunity to determine

[Montgomery’s] abilities in a work-like setting.” (A20.) Thus, the District Court was of

the opinion that “the ALJ rationally accorded greater weight to the opinions of Drs. Saul

and Griffin and discounted those of Drs. Slap and M akary.” (A30a.)

       The ALJ carefully reviewed Montgomery’s testimony concerning his inability to

return to his part-time relevant work. Montgomery challenged this determination on the

part of the ALJ because a state agency physician concluded that Montgomery could not

perform frequent handling or reaching and because of alleged limitation in walking and

standing caused by varicose veins. The District Court found that Montgomery’s

argument was without merit. We agree. Montgomery had the burden to prove that he

could not return to his past prior work. See Adorno v. Shalala, 40 F.3d 43, 46 (3d Cir.

1994). The District Court believed that the ALJ relied upon objective medical evidence

and Montgomery’s credible subjective complaints in setting his RFC with only non-

exertional limitations. The District Court further found that the ALJ’s finding of the RFC



                                            8
matched the requirements of Montgomery’s past work RFC as detailed by the VE, as well

as by submissions of Montgomery. Thus, we agree with the District Court that the ALJ’s

determination that Montgomery could return to his past relevant work is supported by

substantial evidence. We perceive no error on the part of the District Court, the

Commissioner, or the ALJ.

         The judgment of the District Court will be affirmed. Each side is to bear its own

costs.




                                             9
