                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-20-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2320




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Recommended Citation
"Whitten v. Comm Social Security" (2006). 2006 Decisions. Paper 1411.
http://digitalcommons.law.villanova.edu/thirdcircuit_2006/1411


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                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT



                                       No. 05-2320


                                PATRICIA A. WHITTEN,
                                              Appellant

                                            v.

           COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION


                     On Appeal from the United States District Court
                               for the District of New Jersey
                                (D.C. Civil No. 02-cv-4603)
                     District Judge: Honorable Dennis M. Cavanaugh


                      Submitted Under Third Circuit LAR 34.1(a)
                                 February 27, 2006
             Before: SLOVITER, FUENTES, and BECKER, Circuit Judges.

                                  (Filed March 20, 2006)

                                        OPINION



BECKER, Circuit Judge.

       Patricia Whitten appeals the District Court’s entry of summary judgment in favor

of the Commissioner of Social Security on her claim for disability insurance benefits

under Title II of the Social Security Act. Whitten suffers from a variety of ailments –

primarily Hepatitis C, HIV, depression, and anxiety. The principal manifestation of these
ailments is fatigue, accompanied by muscle ache. The ALJ took account of these

conditions but concluded that Whitten’s impairments – either individually or in

combination – were not, when properly evaluated, of such severity as to preclude her

from engaging in substantial gainful activity. Our review of the ALJ’s conclusion is

deferential – for substantial evidence. See Ramirez v. Barnhart, 372 F.3d 546, 550 (3d

Cir. 2004). The record is quite extensive and we have reviewed it with great care.

However, we write for the parties who are familiar with the facts of this case. Hence, we

limit our discussion to our ratio decidendi. For the reasons that follow, we affirm.

          This case largely turns on the merits of the medical controversy relating to the

significance of laboratory tests. It is not disputed that Whitten’s HIV viral loads were

high, but there was substantial evidence that they did not cause a functional limitation.

Although the report of Dr. Al-Haddadin, Whitten’s treating physician, indicates that

Whitten’s HIV was not suppressed, as the ALJ noted, the report also reflects no evidence

of opportunistic disease or manifestations of the disease itself (App. 15). Dr. Al-

Haddadin’s examinations in January 2001 also revealed that Whitten’s heart, chest, lungs,

and abdomen were all normal (Tr. 330). Moreover, Whitten’s neurologic examination

was also normal and her liver biopsy revealed only mildly active chronic hepatitis, and no

fibrosis (Tr. 329-30). Dr. Lo Biondo, who examined Whitten for the State of New Jersey,

could detect no mental disorder and concluded that the psychiatric prognosis was at least

“fair.”

          This case is unusual in that no less than five state agency physicians reviewed

                                                2
Whitten’s medical records. They were all qualified reviewers and all concluded that

Whitten had no severe impairment or combination of impairments. More specifically,

one of the reviewers, Dr. Druskin, concluded, based on laboratory tests (or the lack

thereof): that there was no evidence of active liver disease; that Whitten’s HIV was in

good control and was “non-severe”; and that her putative breathing obstruction problem

was also non-severe. Dr. Berger, a Board certified internist, concurred. In terms of

Whitten’s symptoms and complaints, the state examiners concluded that they were not

justified by the levels of disease found; i.e. non-severe Hepatitis C, non-severe HIV, and

non-severe obstructive airway disease – either alone or in combination. Coincidentally,

consultative examiner Dr. Vastesaeger’s findings are consistent with the ALJ’s findings.

Whitten’s reliance is on Dr. Vastesaeger’s reporting on Whitten’s personal complaints,

not on the doctor’s diagnosis.

       To be sure, Whitten adduced evidence, including evidence from treating

physicians, that supports her claims. However, the countervailing evidence was

sufficiently strong that the ALJ was entitled to credit it and to reject the treating

physicians’ opinions as unsupported by the medical evidence. See Morales v. Apfel, 225

F.3d 310 (3d Cir. 2000). The burden of proving severity is, of course, on the plaintiff. Id.

at 315. Whitten’s contentions that the ALJ failed to properly consider Whitten’s

objective complaints and her non-exertional impairments are baseless.

       Despite Whitten’s submission to the contrary, once the ALJ concluded that

Whitten did not have a severe impairment, a listings analysis was not required. See 20

                                               3
C.F.R § 404.1520(c). At all events, there are insufficient objective symptoms and

laboratory findings to support a listings claim.

       The judgment of the District Court will be affirmed.




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