                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-13-2008

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Precedential or Non-Precedential: Precedential

Docket No. 07-2132




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                                               PRECEDENTIAL

            UNITED STATES COURT OF APPEALS
                 FOR THE THIRD CIRCUIT




                           No. 07-2132




                        STACI JOHNSON
                                  Appellant

                                v.

           COMMISSIONER OF SOCIAL SECURITY




          On Appeal from the United States District Court
             for the Eastern District of Pennsylvania
               D.C. Civil Action No. 05-cv-05060
                   (Honorable John P. Fullam)




          Submitted Pursuant to Third Circuit LAR 34.1(a)
                          April 17, 2008

   Before: SLOVITER, JORDAN and ALARCÓN * , Circuit
                       Judges.

                  (Opinion Filed: April 22, 2008)




      *
         The Honorable Arthur L. Alarcón, United States Circuit
Judge for the Ninth Judicial Circuit, sitting by designation.
Jason L. Thompson
Leventhal Sutton & Gornstein
3600 Horizon Boulevard
Suite 150
Trevose, PA 19053

      Attorney for Appellant

David F. Chermol
Special Assistant United States Attorney
Andrew Lynch
Social Security Administration
Office of the General Counsel
P.O. Box 41777
Philadelphia, PA 19101

      Attorneys for Appellee




                  OPINION OF THE COURT




ALARCÓN, Circuit Judge.

        Staci K. Johnson appeals the District Court’s order
affirming the Commissioner of Social Security’s denial of
Johnson’s claim for disability insurance benefits (“DIB”) under
Title II of the Social Security Act. Johnson contends that the
Commissioner’s finding was erroneous for two reasons. First,
she alleges that the Administrative Law Judge (“ALJ”)
overlooked several of her treating physician’s opinions. Those
opinions, she argues, supported a finding that Johnson was
disabled. Second, Johnson contends that the ALJ’s disability
conclusion was based on an answer a vocational expert provided
to an incomplete hypothetical question posed by the ALJ. She
alleges that the expert’s answer did not constitute substantial
evidence that Johnson was not disabled because the hypothetical
question, which pertained to her ability to secure gainful

                               2
employment, omitted some of Johnson’s impairments.

      We have appellate jurisdiction pursuant to 28 U.S.C. §
1291. Neither of Johnson’s contentions undermines the ALJ’s
conclusion. Therefore, we affirm the District Court’s decision.

                                I

        Until she stopped working in December 1989, Johnson
was a hairdresser and salon manager. She quit as a result of an
on-the-job injury, which caused pain in her right arm and
shoulder. In 1990, she was diagnosed with thoracic outlet
syndrome of her right shoulder. Johnson applied for disability
insurance benefits on April 25, 1997, alleging that she became
disabled on December 7, 1989 due to “thoracic outlet syndrome
of the right shoulder.” Johnson was last insured for DIB on
March 31, 1991, and in her application, she attempted to
establish that she was disabled on or before that date.

        Johnson’s DIB application was denied. She challenged
that initial denial in a hearing before an ALJ. On July 22, 1998,
the ALJ denied Johnson’s claim, finding that she was not
disabled during the relevant time period because her
impairments did not prevent her from performing work in the
national economy. Johnson appealed, and the Appeals Council
remanded the case back to the ALJ because the tape recording of
the hearing before the ALJ was partially inaudible. After a
second hearing, the same ALJ again found that Johnson was not
disabled during the relevant time period because there were “a
significant number of jobs in the national economy that she
could perform.” Johnson appealed that decision, and the
Appeals Council remanded the case once more, with specific
instructions regarding the evidence the ALJ should consider.
The case was reassigned to a different ALJ.

       Johnson testified at her third ALJ hearing. Her testimony
from the two prior hearings was read into the record. A
vocational expert also testified. Johnson was again found to be
not disabled during the relevant time period. The ALJ
concluded that Johnson has not engaged in substantial gainful

                                3
activity since her alleged onset of disability date. However, the
ALJ concluded that prior to April 1, 1991, “the claimant retained
the residual functional capacity to perform a sedentary work-
related activity.” Although the ALJ concluded that Johnson
could not perform any of her past relevant work, the ALJ did
find that Johnson could find other work. Based on testimony
provided by the vocational expert, the ALJ concluded that
Johnson could work as a “surveillance system monitor . . . call-
out operator . . . and . . . order clerk.” Therefore, Johnson was
not entitled to DIB because prior to April 1, 1991, she “retained
the capacity for work that exists in significant numbers in the
national economy.”

       Johnson sought review of the Commissioner’s decision
before the District Court pursuant to 42 U.S.C. § 405(g). The
District Court adopted a Magistrate Judge’s Report and
Recommendation, which recommended denying Johnson’s
motion for summary judgment, and granting the Commissioner’s
motion for summary judgment. The District Court agreed with
the Magistrate Judge that substantial evidence supported the
Commissioner’s finding that Johnson was not entitled to DIB.

                                II

        “While we exercise plenary review with respect to the
order for summary judgment, our review of the ALJ’s decision is
more deferential as we determine whether there is substantial
evidence to support the decision of the Commissioner.” Knepp
v. Apfel, 204 F.3d 78, 83 (3d Cir. 2000). “Substantial evidence
does not mean a large or considerable amount of evidence, but
rather such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Hartranft v. Apfel, 181
F.3d 358, 360 (3d Cir. 1999) (internal quotations and citations
omitted).

       As a preliminary matter, we note that to receive disability
insurance benefits pursuant to Title II of the Social Security Act,
a claimant must show that she was insured under the program at
the time of onset of her disability. Kane v. Heckler, 776 F.2d
1130, 1131 n.1 (3d Cir. 1985). Johnson was insured for DIB

                                 4
through March 31, 1991. Therefore, the relevant period for
purposes of establishing whether she qualifies for DIB is the
time between December 7, 1989, her alleged disability onset
date, and March 31, 1991, the date she was last insured.

                                 A

       Johnson first argues for reversal alleging that “the ALJ
improperly disregarded the opinions of Appellant’s treating hand
specialist.” She breaks this argument into three subparts; she
contends that each mandates reversal because the treating
doctor’s opinions supported a finding that she was disabled
during the relevant time period.

        Johnson claims that testimony Dr. Hunter provided during
her Workers’ Compensation claim hearing on October 13, 1993
is the evidence the ALJ should not have overlooked. She cites to
the following portion of Dr. Hunter’s testimony:

       The early studies showed that, in fact, [Johnson]
       did have an early involvement of the brachial
       plexus, which are the nerves that run the extremity,
       but more clearly were defined to two specific
       points in the median nerve. One near the elbow
       and the other one at the wrist and the hand, in
       which there was slowing. It was documented on
       two occasions by electromyographic studies as
       well as the clinical evaluations, that in this nerve is
       the one specifically involved in how you feel with
       your thumb, index and middle finger. The
       proximal part of this nerve as you pass into the
       neck under the collar bone and join the brachial
       plexus was also involved and it’s a run down both
       back and forth. So its [sic] strange to me another
       physician on consultation can’t observe that the
       patient had really almost no feeling in this part of
       her hand. She couldn’t hold small objects. If she
       was blindfolded she couldn’t pick up a nickel
       because she couldn’t find it with her hand. She
       couldn’t handle earrings and clasps.

                                  5
Pet’r Br. at 25-26 (citing R. 555) (emphasis added in Petitioner’s
Brief). Johnson also cites to Dr. Hunter’s testimony from the
same hearing in which he stated that despite a number of
conservative measures, Johnson “was failing . . . [i]n August of
‘91, our median nerve problem was that she couldn’t feel and
she couldn’t hold small things with her hand.” Id. at 26 (citing
R. 556). “During this same deposition, Dr. Hunter read from his
office note of August 15, 1991, at which time he recommended
surgery.” Id.

       In analyzing Johnson’s DIB claim, the ALJ followed the
Social Security Administration’s five-step evaluation process.
Johnson’s arguments regarding Dr. Hunter’s opinions challenge
the ALJ’s conclusions regarding Johnson’s ability to perform
“past relevant work” and “several other jobs” in the national
economy. We construe this as a challenge to the ALJ’s step four
finding regarding Johnson’s residual functional capacity, “that
which an individual is still able to do despite the limitations
caused by his or her impairment(s).” Fargnoli v. Halter, 247
F.3d 34, 40 (3d Cir. 2001) (internal quotations and citations
omitted). “The ALJ must consider all relevant evidence when
determining an individual's residual functional capacity in step
four.” Id. at 41.

                                1

       We first turn to Johnson’s contention that Dr. Hunter’s
testimony should have determined the outcome of Johnson’s
claim because it was a treating physician’s opinion entitled to
“significant, if not controlling evidentiary weight.”

       “Under applicable regulations and the law of this Court,
opinions of a claimant's treating physician are entitled to
substantial and at times even controlling weight.” Fargnoli, 247
F.3d at 43 (citing 20 C.F.R. § 404.1527(d)(2)). However, the
treating source’s opinion is entitled to controlling weight only
when it is “‘well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the
other substantial evidence in [the claimant's] case record .’” Id.
at 43 (quoting 20 C.F.R. § 404.1527(d)(2)).

                                6
       Johnson does not distinguish between any of the
statements in Dr. Hunter’s cited testimony, but rather contends
that each of them was entitled to controlling weight. However,
there are important differences between the statements. The first
two underlined portions of Dr. Hunter’s testimony (“The early
studies showed that, in fact, [Johnson] did have an early
involvement of the brachial plexus” and “[i]t was documented
on two occasions by electromyographic studies as well as the
clinical evaluations”), were given controlling weight by the ALJ.
The ALJ expressly noted that: “[o]n February 7, 1991, Dr.
Hunter reported that clear positive studies of EMG’s were read,
implicating a brachial plexus traction injury on the right with
brachial plexus fixation and chronic neuropathy.” This
statement supports the ALJ’s conclusion that “[b]ased upon a
complete review of the medical evidence, the undersigned finds
the medical evidence established that prior to April 1, 1991,
thoracic outlet syndrome and depression were medically
determinable conditions that resulted in more than minimal
functional and vocation limitations and required significant
medically appropriate treatment regiments.”

        Similarly, the final piece of cited evidence, that “[d]uring
this same deposition, Dr. Hunter read from his office note of
August 15, 1991, at which time he recommended surgery,” was
not improperly overlooked. This exact testimony, and Dr.
Hunter’s August 15, 1991 office note, are missing from the
ALJ’s conclusions. However, the ALJ noted that at some time
between February 7, 1991, and July 2, 1991, Dr. Hunter “noted
that [Johnson] would need surgery.” The ALJ’s inclusion of this
piece of evidence does not support Johnson’s contention that the
ALJ failed to give Dr. Hunter’s surgery conclusion controlling
weight.1

      The section of Dr. Hunter’s testimony regarding
Johnson’s fine manipulation (“the patient had really almost no



       1
         We are aware of no authority that requires an ALJ to
quote from a treating doctor’s opinion verbatim in order to
evidence the ALJ’s grasp of the information contained within.

                                 7
feeling in this part of her hand. She couldn’t hold small objects.
If she was blindfolded she couldn’t pick up a nickel because she
couldn’t find it with her hand. She couldn’t handle earrings and
clasps”) did not make it into the ALJ’s opinion. Similarly, Dr.
Hunter’s testimony that Johnson “was failing . . . [i]n August of
‘91, our median nerve problem was that she couldn’t feel and
she couldn’t hold small things with her hand” is not part of the
ALJ’s conclusions. However, these portions of testimony were
not entitled to controlling weight because they are inconsistent
with the other substantial evidence in the record.

       The ALJ cited to an overwhelming amount of evidence in
support of her conclusion that Johnson retained some use of her
hands after March 31, 1991. The ALJ noted that Johnson was
examined on May 28, 1991; at that time, “she had full motion of
the shoulder, elbow, wrist, and fingers.” On November 25,
1991, Johnson was evaluated by an occupational therapist, who
determined that she had “hand grip strength of 5 pounds on the
right and 25 to 30 pounds on the left. Pinch strength was also 5
pounds on the right and 18 pounds on the left.” Also, the ALJ
noted that although Johnson testified that her condition had only
worsened, the evidence also established that:

       [Johnson] married and gave birth to two children
       since March 31, 1991. While she testified that she
       was and remains unable to hold, bathe, feed, lift or
       do any other physical activity for the children at
       any time, the undersigned finds it odd that there is
       no record of the claimant having mentioned these
       limitations to a doctor . . . Currently, she testifies
       that she never drives, but the written evidence
       shows she described vision difficulties interfering
       with night driving only.

      Johnson’s arguments that the above-cited testimony was
improperly disregarded and entitled to controlling weight are




                                 8
without merit.2

                                 2

        Johnson also contends that the ALJ should be reversed
because an ALJ cannot reject evidence without reason. She
asserts that the ALJ had a duty to explain why Dr. Hunter’s
opinions were credited or not. Much of the testimony Johnson
claims was not relied upon by the ALJ was in fact sufficiently
incorporated into the ALJ’s findings, as explained above. With
regard to Dr. Hunter’s statements regarding Johnson’s ability to
use her hands for fine manipulation, we reject Johnson’s
argument that the ALJ was required to consider it.

       Johnson relies on Burnett v. Comm’r, 220 F. 3d 112, 121
(3rd Cir. 2000), for the proposition that an ALJ must “‘give
some indication of the evidence which he rejects and his
reason(s) for discounting such evidence.’” Johnson has
selectively quoted from the paragraph in which this sentence
appears. The paragraph provides:

       The ALJ did err by reason of his failure to consider
       and explain his reasons for discounting all of the
       pertinent evidence before him in making his
       residual functional capacity determination. In
       making a residual functional capacity



       2
           Johnson also cites to Dr. Hunter’s testimony that
Johnson’s impairments rendered her “unable to perform not only
her past relevant work, but several other jobs which were offered
during the course of her Workers’ Compensation claim.” This is
not the sort of treating source medical opinion entitled to any kind
of weight. The applicable regulations provide that “[a] statement
by a medical source that you are ‘disabled’ or ‘unable to work’
does not mean that we will determine that you are disabled.” 20
C.F.R. § 404.1527 (e)(1). Conclusions of this kind are “reserved
to the Commissioner . . . because they are administrative findings
that are dispositive of a case; i.e., that would direct the
determination or decision of disability.” § 404.1527 (e).

                                 9
       determination, the ALJ must consider all evidence
       before him. . . . Although the ALJ may weigh the
       credibility of the evidence, he must give some
       indication of the evidence which he rejects and his
       reason(s) for discounting such evidence.

Burnett, 220 F.3d at 121 (emphasis added). The paragraph
concludes with the admonishment that “‘[i]n the absence of such
an indication, the reviewing court cannot tell if significant
probative evidence was not credited or simply ignored.’” Id.
(quoting Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981))
(emphasis added).

        Citation to the entire paragraph clarifies that an ALJ may
not reject pertinent or probative evidence without explanation.
See Cotter, 642 F.2d at 706 (“[T]here is a particularly acute need
for some explanation by the ALJ when s/he has rejected relevant
evidence or when there is conflicting probative evidence in the
record.”); id. at 706-07 (“[A]n explanation from the ALJ of the
reason why probative evidence has been rejected is required so
that a reviewing court can determine whether the reasons for
rejection were improper.”). Johnson has cited no authority for
the proposition that an ALJ must cite all evidence a claimant
presents, including evidence that is irrelevant to her case.

       The ALJ was entitled to overlook Dr. Hunter’s testimony
regarding Johnson’s fine manipulations because it was neither
pertinent, relevant nor probative. It was elicited on October 13,
1993, in response to the question: “[b]ased not only upon [the
October 7, 1993] exam but the exams preceding that, I don’t
want to go through each one since your treatment spans over
three years, but do you have an opinion as to [Johnson’s] current
medical condition and her diagnosis?” To the extent that the
quoted testimony addresses Johnson’s health as of October 13,
1993, it does not undercut the ALJ’s disability conclusion.
Johnson had to establish that she was disabled before April 1,
1991. See Bacon v. Sullivan, 969 F.2d 1517, 1518 (3d Cir.
1992) (explaining that to receive disability insurance benefits, an
applicant must establish that she was disabled prior to “the date
her status as an insured expired”).

                                10
        To the extent that Dr. Hunter’s fine manipulation
testimony speaks to a relevant time period, the ALJ was still
entitled to reject it without explanation. Overwhelming evidence
in the record discounted its probative value, rendering it
irrelevant. As explained above, substantial evidence supports
the ALJ’s conclusion that as of March 31, 1991, and for several
months after that date, Johnson’s fine manipulation was not as
impaired as Dr. Hunter suggested it was in his testimony.

        Johnson’s Opening Brief anticipates our conclusion that
Dr. Hunter’s testimony regarding fine manipulation was
irrelevant, and offers several rebuttals. First, she contends that
the District Court’s rejection of Dr. Hunter’s workers’
compensation testimony on the ground that the testimony was
irrelevant requires reversal. She argues that the District Court’s
affirmance on this ground was “legally erroneous” because an
administrative order must be judged on the grounds upon which
“‘the record discloses that its action was based.’” Pet’r Br. at 27
n.23 (quoting Fargnoli, 247 F.3d at 44 n.7). That is, Johnson
alleges that the District Court cannot reject evidence for reasons
that the ALJ failed to mention.

        Johnson’s argument distorts the cited authority. Fargnoli
criticized the district court for “recognizing the ALJ's failure to
consider all of the relevant and probative evidence,” but yet
attempting “to rectify this error by relying on medical records
found in its own independent analysis, and which were not
mentioned by the ALJ.” 247 F.3d at 44 n.7. Fargnoli does not
establish that a district court may not explain an ALJ’s failure to
cite irrelevant evidence, and we cannot reverse the District Court
on this ground.

        Second, Johnson argues that if Dr. Hunter’s testimony
was chronologically ambiguous, pursuant to 20 C.F.R. §
416.912(e)(1), Dr. Hunter should have been recontacted to
clarify the ambiguity in his testimony. That is, the ALJ should
have contacted Dr. Hunter to ask him if his comments regarding
Johnson’s fine manipulation limitations pertained to the time
during which she was insured.



                                11
        Section 416.912(e)(1) provides that a medical source will
be recontacted for purposes of clarification “when the report
from your medical source contains a conflict or ambiguity that
must be resolved, the report does not contain all the necessary
information, or does not appear to be based on medically
acceptable clinical and laboratory diagnostic techniques.”
However, the language in Section 416.912(e)(1) is preceded by
the following qualification: recontact will proceed if “the
evidence we receive from your treating physician or psychologist
or other medical source is inadequate for us to determine
whether you are disabled.” This is an important prerequisite.
See Thomas v. Barnhart, 278 F.3d 947, 958 (9th Cir. 2002)
(“[T]he requirement for additional information is triggered only
when the evidence from the treating medical source is
inadequate to make a determination as to the claimant’s
disability.”).

       In failing to cite Dr. Hunter’s testimony, the ALJ
implicitly rejected it. That rejection did not trigger the ALJ’s
duty to give Dr. Hunter an opportunity to explain testimony that
the record overwhelming disputed.

                                3

       We next turn to Johnson’s argument that the ALJ should
be reversed because “despite a specific and direct mandate from
the Appeals Council . . . the ALJ completely failed to address
any of Dr. Hunter’s opinions.”

       On remand, “[t]he administrative law judge shall take any
action that is ordered by the Appeals Council and may take any
additional action that is not inconsistent with the Appeals
Council's remand order.” 20 C.F.R. § 404.977(b).

        In remanding Johnson’s case to a third hearing before an
ALJ, the Appeals Council noted that “[t]he record contains
statements from Dr. Hunter regarding the claimant’s work
limitations that are not addressed in the decision.” App. at 58
(citing Exhibit 11F, and pages 141 and 142 of Exhibit 1F).
Contrary to Johnson’s assertions, the Appeals Council did not

                               12
order the ALJ to expressly consider those exhibits. Rather, it
ordered the ALJ to: “[g]ive consideration to the treating source
opinion . . . [f]urther evaluate the claimant’s mental impairment .
. . [g]ive further consideration to the claimant’s maximum
residual functional capacity . . . [and] [o]btain supplemental
evidence from a vocational expert to clarify the effect of the
assessed limitations on the claimant’s occupational base.”

       The ALJ devoted ample consideration to Johnson’s
treating physicians. With regard to Dr. Hunter, the ALJ
described three notes about Johnson’s impairments written by
Dr. Hunter in detail. The ALJ’s decision complies with 20
C.F.R. § 404.977(b).

                                  B

       Johnson also argues that the ALJ committed reversible
error because she posed an incomplete hypothetical question to a
vocational expert. Johnson contends that the hypothetical did
not incorporate the limitations from Dr. Hunter’s opinions.

        At step five of the disability analysis, the burden shifts to
the Commissioner “to show that other jobs exist in significant
numbers in the national economy that the claimant could
perform.” Rutherford v. Barnhart, 399 F.3d 546, 551 (3d Cir.
2005). “Advisory testimony from a vocational expert is often
sought by the ALJ for that purpose . . . and factors to be
considered include medical impairments, age, education, work
experience and RFC.” Id. “We do not require an ALJ to submit
to the vocational expert every impairment alleged by a
claimant.” Id. at 554 (emphasis added). Rather, “the
hypotheticals posed must ‘accurately portray’ the claimant’s
impairments and [] the expert must be given an opportunity to
evaluate those impairments ‘as contained in the record.’” Id.
(citation omitted).

       Johnson contends that the hypothetical question posed
was incomplete because “the ALJ failed to address Dr. Hunter’s
opinions regarding Johnson’s significant functional limitations,
especially the limitations on fine manipulation.” Also, she

                                 13
argues that “Dr. Hunter opined that Johnson had essentially no
functional use of the dominant right upper extremity.” Johnson
alleges that bilateral manual dexterity is necessary for
substantially all unskilled sedentary occupations.

       The ALJ’s hypothetical question instructed the vocational
expert that:

       I want you to assume an individual of the
       Claimant’s age, education and work experience,
       having the following residual functional capacity:
       being able to lift up to 10 pounds, sit for six hours,
       stand and walk for two hours with an at-will
       sit/stand option; no repetitive reaching, fingering
       and handling; no overhead reaching – that’s
       bilaterally; and being limited to simple, repetitive
       tasks. Could that individual return to Claimant’s
       past relevant work?

The vocational expert answered that question “no.” The ALJ
clarified that by “repetitive tasks” she meant “continuous” tasks.
Also, the ALJ noted that she wanted to hear about the
availability of jobs “with only occasional hand-use.” The
vocational expert listed several jobs that a person only able to
use her hands occasionally could perform.

       The hypothetical posed by the ALJ accurately portrays
Johnson’s impairments. The only evidence Johnson presents in
support of her contention that she had significant “fine
manipulation” limitations is not supported by a citation to the
record. To the extent that Johnson relies on Dr. Hunter’s
testimony that Johnson “couldn’t hold small objects” or “pick up
a nickel,” those statements do not accurately portray Johnson’s
impairments; therefore, the ALJ was not required to incorporate
them into her hypothetical question. As explained above,
overwhelming evidence suggests that prior to April 1, 1991,
Johnson retained “occasional hand use.” Nothing about the
hypothetical requires reversal. For that reason, we need not
determine whether a person who lacks bilateral manual dexterity
is presumptively disabled.

                                 14
                               III

        The ALJ’s decision denying Johnson’s DIB addressed
Johnson’s medical history, from her alleged onset date of
December 7, 1989, to the present. The ALJ’s decision cited
treatment notes from Johnson’s orthopedist, psychologist, and
hand surgeons, among others. The ALJ also noted Johnson’s
own testimony regarding the severity of her pain and functional
limitations. The ALJ resolved inconsistencies in the record, and
gave multiple reasons in support of her conclusion that
Johnson’s claims regarding her physical capacities prior to
March 31, 1991 were somewhat unreliable. The ALJ also cited
an occupational therapist’s assessment of Johnson’s functional
capacities as of November 25, 1991.

       We conclude that the ALJ’s decision is an exhaustive
evaluation of the evidence in this case, and that the ALJ’s
conclusion is supported by substantial evidence.

      AFFIRMED.




                               15
