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


1-9-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1769




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                                            NOT PRECEDENTIAL

      UNITED STATES COURT OF APPEALS
           FOR THE THIRD CIRCUIT
                ___________

                    No. 03-1769
                    ___________

              LOUISE A. LIVERMORE,

                                       Appellant


                           v.

            JO ANNE B. BARNHART,
      COMM ISSIONER OF SOCIAL SECURITY




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

District Court Judge: The Honorable Donetta W. Ambrose
                (D.C. No. 02-1222)
                       ___________

     Submitted Under Third Circuit L.A.R. 34.1(a)
                 October 23, 2003

Before: ALITO, FUENTES and BECKER, Circuit Judges.

                (Filed January 9, 2004)
             ________________________

              OPINION OF THE COURT
             ________________________
                          1
FUENTES, Circuit Judge:

       Livermore appeals from the decision of the United States District Court for the

Western District of Pennsylvania, affirming the Commissioner of Social Security’s denial

of Livermore’s claim for disability insurance benefits (“DIB”) under Title II of the Social

Security Act (the “Act”), 42 U.S.C. §§ 401 et seq. 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.

       Livermore, a registered nurse, suffers from persistent asthma and related

symptoms, including fatigue, coughing, and shortness of breath. On November 20, 2000,

Livermore filed an application for DIB, alleging that she had been disabled since

September 4, 1990. After her application was denied, Livermore requested a hearing

before an ALJ. The ALJ found that although Livermore suffered from an impairment as

of December 31, 1994, her condition did not constitute a disability of such severity that

she was entitled to receive benefits. The ALJ concluded that as of her date last insured,

Livermore could perform her previous relevant work as a registered nurse, at all

exertional levels, with the sole limitation that she could not be exposed to cleaning

supplies (which triggered her asthma).

       Livermore’s request for review by the Social Security Appeals Council was

denied, making the ALJ’s opinion the final decision of the Commissioner. Livermore
                                             2
  then filed an action in the District Court. Livermore and the Commissioner filed cross-

  motions for summary judgment. On February 18, 2003, the District Court granted the

  Commissioner’s motion for summary judgment, affirming the Commissioner’s

  determination that Livermore was not disabled prior to the expiration of her insured

  status. Livermore now appeals this decision.

                                                 II.

         Livermore argues that the District Court erred in finding that she did not suffer

  from a severe impairment. However, we agree with the District Court’s conclusion that

  substantial evidence supports the ALJ’s finding that Livermore was capable of

  performing her past work as a registered nurse before the expiration of her DIB. App. 16,

  17.

Under the Act, a claimant for DIB must show that he has a physical or mental impairment 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). According to the District Court, Livermore apparently

  concedes that her asthma does not meet the definition of a “severe impairment” under the

  Social Security regulations. Dist. Ct. Op. 8. Alternatively, an impairment is considered

  severe if it is “of magnitude sufficient to limit significantly the individual’s ability to do

  basic work activities.” Santise v. Schweiker, 677 F.2d 925, 927 (3d Cir. 1982); see also

  20 C.F.R. §§ 404.1521(a), 416.921(a). In addition, because Livermore’s insurance
                                                 3
coverage for disability benefits expired on December 31, 1994, she must establish her

disability on or before that date. See Esposito v. Apfel, CA 99-771, 2000 U.S. Dist.

LEXIS 1720, *30 (E.D. Pa. Feb. 24, 2000) (“The last insured date is a statutory cut-off

which precludes consideration of any new impairments which develop thereafter”); see

also 20 C.F.R. §§ 404.101 and 404.132.

      None of the medical evidence Livermore offers supports her claim that she was

disabled or incapable of performing her past work during the relevant period. The

evidence, in the form of medical opinions, largely pertains to Livermore’s condition more

than six years after her insured status expired. App. 202, 230. These opinions (which

may reflect a worsening of Livermore’s condition after expiration of her DIB) suggest

that Livermore’s ability to work could be limited by “significant exposure” to certain

environmental occurrences, such as dust mites, pollens, animals, and strong odors or

exposure to “unusual” fumes, dust, or pollens. Id. However, Livermore’s medical

records from before the expiration of her insured status indicate only two acute asthma

attacks, both triggered by prolonged exposure to cleaning solutions, and both controlled

with treatment. Therefore, the District Court found that “significant exposure” to

cleaning supplies was the only consistent trigger of Livermore’s asthma attacks during the

relevant period. Dist. Ct. Op. 18; App. 16. Further, Livermore offers no evidence to

suggest that her past job as a nurse would subject her to such exposure.

         Because nothing in the record supported a finding that Livermore’s asthma was

so severe as to prevent her from working, the District Court held that substantial evidence
                                             4
supported the ALJ’s conclusion as to the minimal severity of Livermore’s impairments

before expiration of her DIB. Dist. Ct. Op. 10; App. 14-15. We agree, and affirm the

decision of the District Court.

                                          III.

 Livermore also argues that the ALJ reached an erroneous conclusion based on the response of

a vocational expert (“VE”) to a hypothetical question concerning whether employment

exists in the national economy that could accommodate someone with Livermore’s

impairments. The ALJ posed a hypothetical question to the VE that included a limitation

from exposure to cleaning agents. In response, the VE testified that this limitation would

not prevent Livermore from performing her past work. App. 254-55. Livermore argues

that the hypothetical was inadequate because it did not include the additional limitations

on her ability to work that were identified by the Social Security Administration’s

medical consultant (i.e., limitations from “concentrated exposure” to various

environmental conditions, such as extreme temperatures, wetness, humidity, odors dusts,

and gases). App. 195, 198.

       Because we found, above, that substantial evidence supports the ALJ’s conclusion

that Livermore was not disabled before the expiration of her DIB, we need not consider

this issue. See 20 C.F.R. § 404.1520 (“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.”). However, we affirm the District Court’s conclusion that the hypothetical was

proper because it “took into account the only consistent trigger of [Livermore’s] asthma
                                             5
attacks” that was identified in the record during the relevant period (i.e., exposure to the

odors of cleaning supplies). Dist. Ct. Op. 13; App. 254-55.

                                           IV.

       Finally, Livermore argues that the District Court erred in not employing a medical

expert to seek further consultation due to an incomplete record that could have resulted in

prejudice to Livermore. The District Court stated: “An ALJ has a duty to seek further

consultation if an incomplete record reveals evidentiary gaps which result in prejudice to

the claimant or if medical records contain a conflict of ambiguity that must be resolved.”

Dist. Ct. Op. 16, citing Bell v. Barnhart, 218 F. Supp. 2d 583, 593 (D. Del. 2002) (internal

quotations omitted). We have carefully reviewed the record, and agree with the District

Court that neither of these situations arose during the administrative hearing.

       In the District Court, Livermore requested the assistance of a medical expert to

determine if various triggers, other than cleaning supplies, limited her activities to the

extent that she claimed. However, the District Court found, based largely on the long-

term treatment reports of a specialist in allergies and asthma, that the record failed to

support these subjective complaints by Livermore. Dist. Ct. Op. 15-16. The objective

medical evidence on record contained neither evidentiary gaps resulting in prejudice nor

conflicts of ambiguity. Therefore, the ALJ was not required to seek assistance from an

additional medical expert. Dist. Ct. Op. 16.

       On appeal, Livermore also argues that additional consultation with a medical

expert was necessary because the record was missing certain reports from four of her
                                           6
physicians, making the record incomplete. Although the Social Security Administration

sought information from three of these sources, the medical reports dated back several

years and had been discarded or destroyed by the physicians. App. 79-80, 175-76.

Livermore further contends that the Administration failed to seek records from the fourth

physician that she identified.

       However, although Livermore asserted in her District Court brief that the

testimony of a medical expert was warranted, she failed to argue that the record was

otherwise incomplete because it was missing reports from these four sources. It was also

not until this appeal that Livermore first raised the issue of the Administration not seeking

certain of these medical records. Because Livermore failed to properly raise these

arguments before the District Court, she waived her right to do so on appeal.

       Accordingly, for the reasons stated above, we affirm the judgment of the District

Court holding that the Commissioner’s final decision was supported by substantial

evidence.




                                             7
___________________
TO THE CLERK OF THE COURT:

Kindly file the foregoing Opinion.




                                         /s/ Julio M. Fuentes
                                              Circuit Judge




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