                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-7-2003

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Precedential or Non-Precedential: Non-Precedential

Docket 02-4187




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                                                         NOT PRECEDENTIAL

                 UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT

                                __________

                                No. 02-4187
                                __________

                            CHARLES DORSEY,
                                          Appellant

                                     v.

                        *
                       JO ANNE B. BARNHART,
                 COMM ISSIONER OF SOCIAL SECURITY

                                          *
                                         (Pursuant to F.R.A.P. 43(c))
                                __________

               On Appeal from the United States District Court
                   for the Eastern District of Pennsylvania
                            (Civ. No. 01-cv-04846)
                     District Judge: Judge Jan E. DuBois
                                  __________

                 Submitted Under Third Circuit LAR 34.1(a)
                              April 25, 2003
                              ___________

    Before: SCIRICA, Chief Judge,* AM BRO and GARTH, Circuit Judges

                        (Opinion Filed: May 7, 2003)
                                __________

                                 OPINION
                                __________



*
    Judge Scirica became Chief Judge on May 4, 2003.
GARTH, Circuit Judge:

       Charles Dorsey appeals from the District Court’s grant of summary judgment in

favor of the Commissioner of Social Security. The Commissioner had denied Dorsey’s

application for disability insurance benefits. We will affirm.




                                             I.

       Because we write solely for the benefit of the parties, we recount the facts and the

procedural history of the case only as they are relevant to the following discussion.

       Dorsey was 34 years old at the alleged onset date of the disability, and is now 44

years old. Essentially, Dorsey claimed benefits by reason of a herniated disc. Dorsey

filed an application for disability insurance benefits on October 15, 1999. The Social

Security Administration (SSA) denied Dorsey’s application on January 26, 2000.

       An Administrative Law Judge (ALJ) held a hearing on December 13, 2000. At the

hearing, the ALJ heard testimony from Dorsey; Dr. Victor Vare, an independent medical

expert; and Jeannine Salek, a vocational expert.

       The ALJ issued a decision adverse to Dorsey on January 4, 2001. The ALJ’s

decision considered and evaluated not only the testimony at the hearing but also treatment

notes and reports from several sources, including Dr. John Salvo, Dorsey’s treating

physician; Dr. Michael Mandarino, an orthopedic surgeon who had examined Dorsey in



                                            -2-
March 1994; Dr. Stanley Askin, an orthopedic surgeon who examined Dorsey in 1998;

and Drs. Judith Peterson and Richard Kaplan. In addition, the ALJ considered

information pertaining to a hearing on a claim by Dorsey for worker’s compensation, as

well as information from other sources.

       After receiving the ALJ’s decision, Dorsey sought review from the Appeals

Council, and submitted additional materials in connection with his request for review.

The Appeals Council denied review on September 6, 2001.

       On September 24, 2001, Dorsey sought judicial review by filing an action in the

District Court. Following cross-motions for summary judgment by Dorsey and the

Commissioner, the Magistrate Judge to whom the case had been referred filed a Report

and Recommendation concluding that the Commissioner’s motion for summary judgment

should be granted. On November 4, 2002,1 the District Court ordered that the M agistrate

Judge’s Report and Recommendation be approved and adopted; that the Commissioner’s

motion for summary judgment be granted; and that Dorsey’s motion for summary

judgment be denied.

       Dorsey’s timely appeal followed.




       1
        The text of the order reflects a date of October 4, 2002, but this would appear to
be an inadvertent error; the order has been stamped as filed on November 4, 2002 and
entered the next day. The district court docket also indicates that the order was filed on
November 4, 2002.

                                            -3-
                                               II.

       We have jurisdiction to hear this appeal pursuant to 42 U.S.C. § 405(g) and 28

U.S.C. § 1291.

       We have previously set forth our standard of review in cases involving an appeal

from the denial of disability benefits as follows:

       The role of this Court is identical to that of the District Court, namely to
       determine whether there is substantial evidence to support the
       Commissioner’s decision. . . . The Court is bound by the ALJ’s findings of
       fact if they are supported by substantial evidence in the record. 42 U.S.C. §
       405(g) . . . Substantial evidence has been defined as “more than a mere
       scintilla. It means such relevant evidence as a reasonable mind might accept
       as adequate.” Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir. 1995) (quoting
       Richardson v. Perales, 402 U.S. 389, 401 . . . (1971)).

Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999) (certain citations omitted).

       To establish an entitlement to benefits,

       a claimant must demonstrate there is some “medically determinable basis
       for an impairment that prevents him from engaging in any ‘substantial
       gainful activity’ for a statutory twelve-month period.” . . . A claimant is
       considered unable to engage in any substantial activity “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.”

Id. at 427-28 (citations omitted). The Commissioner undertakes a five-step sequential

evaluation process to make the disability determination.2


       2
           In short, the five-step process operates as follows:

       At Step One, the Commissioner must determine whether the claimant is

                                               -4-
                                             III.

      We agree with the Magistrate Judge and District Court’s determination that the

ALJ’s decision was supported by substantial evidence.

      In accordance with the five-step sequential evaluation process, the ALJ first found

that Dorsey was not engaged in substantial gainful activity. Decision of ALJ at 13. Next,




      currently engaging in a “substantial gainful activity.” . . . If so, she is not
      eligible. . . .

      At Step Two, the Commissioner must determine whether the claimant has a
      “severe impairment.” . . . If the claimant does not have a severe
      impairment, then she is not eligible. . . .

      At Step Three, if a claimant does not suffer from an impairment on the list
      of impairments presumed to be severe enough to preclude gainful work, the
      Commissioner moves to Step Four. . . .

      Step Four requires the Commissioner to decide whether the claimant retains
      the residual functional capacity to perform her past relevant work. . . . The
      claimant bears the burden of demonstrating an inability to return to her past
      relevant work. . . . If the claimant is unable to resume her former
      occupation, the evaluation moves to Step Five. . . .

      At Step Five, the Commissioner has the burden of demonstrating that the
      claimant is capable of performing other jobs existing in significant numbers
      in the national economy. . . . At Step Five, the Commissioner is to consider
      the claimant's vocational factors.

Thomas v. Commissioner of Social Security, 294 F.3d 568, 571 (3d Cir. 2002) (en banc)
(citations omitted), cert. granted, 123 S. Ct. 1251 (2003). See also, e.g., Burns v.
Barnhart, 312 F.3d 113, 118-19 (3d Cir. 2002); Fargnoli v. Massanari, 247 F.3d 34, 39
(3d Cir. 2001).

                                             -5-
the ALJ found that Dorsey had “degenerative disease of the lumbar spine,” a “severe”

impairment, but not one that meets or equals the criteria for a listed impairment contained

in 20 C.F.R. § 404, Subpart P, Appendix 1. Id. The ALJ further found that though

Dorsey’s impairment places limitations on Dorsey, he “retains the residual functional

capacity to lift up to 20 pounds occasionally and perform postural activities occasionally,”

though “he is limited in pushing and pulling; and he must alternate sitting and standing

every 15 to 30 minutes.” Id. Finally, the ALJ concluded that Dorsey’s impairment does

not preclude him from “engaging in occupations with significant numbers of jobs in the

regional and national economies.” Id.

       Dorsey’s chief argument on appeal is that the ALJ erred in denying his request to

submit additional evidence from Dr. Salvo, Dorsey’s treating physician, to rebut the

hearing testimony of Dr. Vare, the independent medical expert.3 According to Dorsey,

because Dr. Vare’s testimony was heavily relied upon by the ALJ in making the

determination that Dorsey did not qualify for disability benefits, Dorsey should have had

a chance to respond to that testimony.

       In this case, Dorsey has failed to demonstrate that substantial evidence does not

exist to support the ALJ’s determinations. The ALJ explained that he declined the

request for a post-hearing statement from Dr. Salvo


       3
         This rebuttal evidence evidently would have taken the form of a “post-hearing
report,” according to Dorsey’s request for review by the Appeals Council. See App. 8a-
9a.

                                            -6-
       because Dr. Salvo on several occasions already has offered his opinion of
       the claimant’s ability to work and given his reasons in support of that
       opinion. In fact, Dr. Salvo went through a lengthy deposition just one year
       ago and another such deposition in 1996. Although Dr. Salvo has not
       specifically commented on Dr. Vare’s testimony, counsel has offered no
       reason to believe that Dr. Salvo will provide any information or opinions
       not included in his prior statements.

Decision of ALJ at 1 n.1.

       The record was sufficiently well developed so that the ALJ was not required to

receive additional evidence from Dr. Salvo. Having considered, inter alia, Dr. Salvo’s

deposition testimony and treatment notes, the ALJ need not have reviewed additional

information from Dr. Salvo once again without a proffer of proof as to its content. We

note that nowhere in Dorsey’s brief does Dorsey explain what Dr. Salvo might have said

in rebuttal that would add to Dr. Salvo’s previous statements, deposition testimony, and

reports.

       We are also satisfied that there is no other basis upon which Dorsey can claim that

the ALJ’s decision was not supported by substantial evidence. To the contrary, it appears

that the ALJ undertook a comprehensive examination of the evidentiary record, and the

record evidence supports the ALJ’s decision.

       We will therefore affirm the judgment of the District Court.

TO THE CLERK:
     Please file the foregoing opinion.


                                            /s/ Judge Leonard I. Garth
                                          Circuit Judge

                                            -7-
