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


4-16-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3797




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 03-3797


                                   CHUN SOO HUR,
                                          Appellant

                                           v.

                              JO ANNE B. BARNHART,
                            Commissioner of Social Security


                      Appeal from the United States District Court
                         for the Eastern District of Pennsylvania
                               (D.C. Civil No. 02-cv-08444)
                      District Judge: Honorable Charles R. Weiner


                      Submitted Under Third Circuit LAR 34.1(a)
                                   April 13, 2004

                Before: RENDELL, COWEN and LAY*, Circuit Judges.

                                 (Filed: April 16, 2004)




                              OPINION OF THE COURT




*Honorable Donald P. Lay, Senior Circuit Judge for the Eighth Circuit, sitting by
designation.
LAY, Circuit Judge.

       Chun Soo Hur filed an application for supplemental security income on December

4, 2000, alleging disability since September 1, 1999. The agency denied her application

after she refused to attend a consultative examination, stating that her application did not

show that her condition was disabling. On May 14, 2002, an administrative law judge

(“ALJ”) conducted a hearing on the matter at Hur’s request, and in a June 27, 2002,

decision, found her not to be eligible for supplemental security income. The Appeals

Council subsequently denied Hur’s request for review, making the ALJ’s adverse ruling

the final decision of the Commissioner of Social Security. Hur, having exhausted her

administrative remedies, filed a complaint in federal district court for the Eastern District

of Pennsylvania. The district court granted the Commissioner’s motion for summary

judgment. Hur now appeals, and we affirm.




                                    I. BACKGROUND

       Hur was born in Korea in 1937. She has lived in the United States for more than

fifteen years, and testified at the administrative hearing that she recently became a United

States citizen. She and her husband owned and operated a pocketbook store for about six

years during the mid to late 1990s. She primarily worked as the cashier in that store, but

also performed other tasks that needed to be done. Hur further testified that she and her

husband gave up the store because her husband underwent an operation and is now

                                              2
disabled. She stated that she did not try to run the store herself or look for other work as a

cashier because of the pain in her back and neck. She explained that she had the pain

even before they closed their store. Her alleged onset date, however, coincides with the

closing of her and her husband’s business.

       Hur complained of a number of ailments including lower back, shoulder, hip,

breast, knee, and neck pain, as well as headaches. Hur sought no treatment for these

pains until one month before applying for benefits–more than a year after her alleged

onset date.1 Although tests and x-rays revealed degenerative disc disease at level C5-6 of

her cervical spine, tests of her shoulder, pelvis, hip, breast, and knee were all normal.

Physical examinations by Hur’s treating physician, Won M. Kim, M.D., indicated nothing

unusual. Dr. Kim nevertheless noted in his records that Hur was not able to work, and his

medical source statement of March 6, 2002, indicated that Hur could stand and walk for

only up to two hours and had limited ability to push, pull, lift, or carry. The medical

source statement also indicated, however, that Hur could sit without limitation, and could

reach, handle, and use her fingers without limitation. Despite all of Hur’s alleged pain,

she was never given any prescriptions for pain medication, but only took Tylenol or

Motrin.

       The ALJ determined that Hur was not entitled to disability benefits. Although she




  1
   Similarly, she began seeing a chiropractor only two weeks before the administrative
hearing, and never submitted records from these visits.

                                              3
reluctantly granted that Hur’s medical condition was “severe,” the ALJ determined that

Hur retained the ability to perform her past work as a cashier. The ALJ further found that

Hur’s testimony could not be totally credited.

       The district court granted the Commissioner’s motion for summary judgment,

finding that there was substantial evidence to support the ALJ’s determination that Hur

was able to perform her past relevant work as a cashier.

       Hur now appeals.




                                      II. ANALYSIS

       Our standard of review is the same as that applied by the district court, that is,

whether the ALJ determination adopted by the Commissioner is supported by “substantial

evidence” on the record as a whole. See, e.g., Burns v. Barnhart, 312 F.3d 113, 118 (3d

Cir. 2002). Substantial evidence is “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)). We

are not “empowered to weigh the evidence or substitute [our] conclusions for those of the

fact-finder.” Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992).

       The Social Security Administration applies a five-step test to determine if a

claimant is disabled for purposes of qualifying for supplemental security income. The

ALJ considers, in sequence, whether a claimant: 1) worked during the period of alleged



                                              4
disability; 2) had a severe impairment; 3) had an impairment that meets or equals the

requirements of a listed impairment; 4) could return to her past relevant work; and 5) if

not, whether she could perform other work in the national economy. See 20 C.F.R. §

416.920 (2002); see also Burns, 312 F.3d at 118-19. If the ALJ finds that the claimant is

disabled or not disabled at any point in the analysis, it does not review the claim further.

See 20 C.F.R. § 416.920 (2002). As stated above, the ALJ found that Hur was not

disabled at step four of the analysis because her alleged ailments did not prevent her from

performing her past relevant work as a cashier.

        We find there is substantial evidence on the overall record to support the ALJ’s

decision. The ALJ and the district court were correct to discount Dr. Kim’s assessment of

Hur’s limitations. Hur’s claim of severe pain and Dr. Kim’s assessment are simply not

supported by the medical evidence. Most of the diagnostic tests showed Hur’s physical

condition to be “normal” or “unremarkable.” Moreover, none of the tests prompted Dr.

Kim to conduct further testing or treatment, or to give Hur any prescription drugs for

pain.

        Hur argues on appeal that the ALJ erred because she failed to discuss, or even

mention, the x-rays showing degeneration of Hur’s spine. See Fargnoli v. Massanari, 247

F.3d 34, 42 (3d Cir. 2001) (remanding for a more comprehensive analysis of the evidence

where the ALJ discussed only four diagnostic tests and five treatment notes out of 115

pages of relevant medical evidence). We find, however, that the ALJ sufficiently



                                              5
addressed the medical evidence. There is no requirement that the ALJ discuss in its

opinion every tidbit of evidence included in the record. Even in Fargnoli, the court

conceded that it did not expect the ALJ to make reference to every piece of relevant

information. See Fargnoli, 247 F.3d at 42. Moreover, we do not find the x-rays to which

Hur points particularly notable. Despite Hur’s protestations to the contrary, the evidence

does not support that the spinal condition shown in the x-rays was responsible for the

disabling pain that she complained of or caused any functional limitations that affected

her ability to work as a cashier. That this spinal condition did not cause Hur disabling

pain is demonstrated by the fact that Dr. Kim himself seemed to place no importance on

the x-rays. He did not conduct further tests, he did not pursue any treatment for the

condition, and he did not even prescribe any pain medication to Hur on the basis of these

x-rays. See Welch v. Heckler, 808 F.2d 264, 270 (3d Cir. 1986) (holding that the absence

of prescription pain medication is a factor indicating that the claimant’s pain is not

disabling).

       Hur also argues on appeal that the ALJ substituted her own opinion for that of

Hur’s treating physician. See Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000) (stating

that an ALJ may not substitute her own lay opinion for the opinion of the treating

physician).2 We do not believe, however, that the ALJ substituted her own judgment for


  2
   Hur also argues that the ALJ erroneously characterized Hur’s past relevant work as
being in the “light” exertional strength level, whereas the vocational expert at the hearing
classified Hur’s work running the store with her husband as “light to medium.” The

                                              6
that of Dr. Kim. Indeed, it is the duty of the ALJ to review the medical evidence to

determine if it supports the physician’s finding of a disability. See 20 C.F.R.

§ 404.1527(e)(1) (2002) (“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.”); see also

Wright v. Sullivan, 900 F.2d 675, 683 (3d Cir. 1990). Here, there is essentially no

medical evidence to substantiate Hur’s claims of disabling pain. Under these

circumstances, it was appropriate for the ALJ to discount Dr. Kim’s assessment that Hur

was “not able to work.” See Jones v. Sullivan, 954 F.2d 125, 129 (3d Cir. 1991) (holding

that physician’s opinions that are conclusory and unsupported by the medical evidence are

not controlling); Newhouse v. Heckler, 753 F.2d 283, 286 (3d Cir. 1985) (holding that

lack of clinical data supporting claimant’s alleged disability “outweighed” the testimony

of the claimant and her treating physicians, and therefore the ALJ did not err in finding

there was no disability).

       Finally, Hur argues that there was not substantial evidence to support the ALJ’s

credibility determination, but we find otherwise. As an initial matter, we believe that it is




relevant inquiry for the ALJ was not, however, whether she could return to her actual job
of running the store with her husband, which may have required some extra exertion, but
whether she could do the “kind of work” that she did in the past, i.e., as
salesperson/cashier. See 20 C.F.R. § 416.920(e) (2002) (“If you can still do this kind of
work, we will find that you are not disabled.”). Work as a cashier or salesperson of
general merchandise is defined as being “light.” See Dictionary of Occupational Titles
§ 279.357-054 (U.S. Dep’t of Labor, 4th ed., rev’d 1991). We therefore find no error by
the ALJ.

                                              7
highly suspect that Hur’s severe pain coincided so conveniently with the closing of her

and her husband’s business. We also think it is questionable that she supposedly endured

this disabling pain for a year without ever seeing a doctor and that she never received

prescription pain medication from Dr. Kim. Finally, we note that the disabling pain that

Hur alleges is not substantiated by the medical tests or even Hur’s own testimony, which

demonstrates that she is still quite active doing housework and caring for her disabled

husband. See Reefer v. Barnhart, 326 F.3d 376, 380 (3d Cir. 2003) (stating that courts

“ordinarily defer to an ALJ’s credibility determination because he or she has the

opportunity at a hearing to assess the witness’s demeanor”).




                                   III. CONCLUSION

       For the reasons set forth above, we believe that there was substantial evidence to

support the Commissioner’s determination, and the decision of the district court will

therefore be AFFIRMED.




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