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


3-12-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-4424




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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 06-4424


                                    KENNETH COOPER,

                                                Appellant

                                           v.

                      COMMISSIONER OF SOCIAL SECURITY




                      Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                          (D.C. Civil Action No. 04-cv-03633)
                      District Judge: Honorable Timothy J. Savage


                               Argued November 6, 2007

        Before: SCIRICA, Chief Judge, AMBRO, and JORDAN, Circuit Judges

                              Opinion filed: March 12, 2008

Eric J. Fischer, Esquire (Argued)
Breyer Office Park, Suite 200
8380 Old York Road
Elkins Park, PA 19027

      Counsel for Appellant

Patrick L. Meehan
  United State Attorney
Joan K. Garner
  Assistant United States Attorney
Eastern District of Pennsylvania
615 Chestnut Street, Suite 1250
Philadelphia, PA 19106

Michael McGaughran
  Regional Chief Counsel, Region III
William B. Reeser
  Supervisory Attorney
Roxanne Andrews (Argued)
  Special Assistant United States Attorney
Social Security Administration
Office of General Counsel / Region III
P.O. Box 41777
Philadelphia, PA 19101

       Counsel for Appellee


                                         OPINION


AMBRO, Circuit Judge

       Appellant Kenneth Cooper, now 50 years old, applied for Supplemental Security

Income (“SSI”) benefits in 1997, claiming that multiple health problems have hampered

his ability to work. After multiple administrative hearings and appeals, the Social

Security Administration (“SSA”) denied his claim for SSI benefits. We vacate that

decision and remand for a new hearing.

                               I. Procedural Background

       After six previous, unsuccessful applications, Cooper applied for SSI benefits in

Feburary 1997. The Pennsylvania Bureau of Disability Determination (“state agency”)

denied his application initially and on reconsideration. In April 1998, Cooper had a



                                             -2-
hearing before a federal administrative law judge, who vacated the reconsideration

determination and remanded the case to the state agency because Cooper raised the issue

of mental impairments for the first time at that hearing.

       In October 1999, the state agency issued a second denial on reconsideration.

Cooper appealed to the SSA, and in July 2000 received another hearing, at which another

ALJ affirmed the state agency’s second denial on reconsideration. The Appeals Council

of the SSA vacated the ALJ’s decision on the grounds that the opinion failed to specify

Cooper’s capacity to stand and walk and failed to evaluate the opinions of two examining

physicians who described both physiological and psychological limitations on Cooper’s

ability to work. The Appeals Council remanded with specific instructions to reevaluate

the existing evidence and obtain additional evidence.

       On remand, a third ALJ found that Cooper “retain[ed] the residual functional

capacity to perform a restricted range of sedentary work activity” and was not under a

disability “at any time through the date of this decision.” ALJ Op. 8 (Apr. 25, 2003). As

a result, the ALJ held that Cooper was ineligible for SSI benefits.1 This exhausted




   1
     Cooper filed a subsequent SSI application in September 2004. The SSA granted that
application in March 2005, with monthly payments beginning on April 1, 2005. Cooper
notes that the 2004 application contained some of the same medical information as the
record in this case contains, dating back as far as 1996. But it also involved a newly
prepared Disability Report and a new assessment of Cooper’s health and employment
situation. Thus, the award based on the 2004 application has no direct bearing on our
decision in this case regarding the 1997 application. That award does, however, mean
that only back benefits from 1997 through 2004 are at issue.

                                             -3-
Cooper’s administrative remedies, as the SSA concedes in its answering brief.

       Cooper filed suit in the United States District Court for the Eastern District of

Pennsylvania. In March 2006, after cross-motions for summary judgment, a Magistrate

Judge recommended granting the Commissioner’s motion for summary judgment. The

District Court adopted the Magistrate Judge’s report, granted the motion, and thus

affirmed the final decision to deny Cooper SSI benefits. He appeals to our Court.

                               II. Cooper’s Medical History

       Cooper has long suffered from many physiological and psychological ailments,

many of them severe. He has received attention from various examining doctors over the

ten years of this administrative proceeding and subsequent judicial review. According to

the record before us, he has not worked since 1990 and has not earned more than $1,600

in yearly wages since 1984 (when he earned $5,331.50).

       Cooper’s physical ailments include: blindness in his right eye and partial blindness

in his left eye, resulting from a blow from a steel beam during a prison fight; morbid

obesity, with a self-reported weight of 345 pounds at his last SSA hearing; coronary

artery disease, angina, high blood pressure and accompanying chest pains; shortness of

breath and probable sleep apnea; occasional dizziness; sclerosis in his ankle, resulting in

chronic pain; osteoarthritis in his left shoulder, right knee, and toes in both feet; and a

mild vertebral endplate irregularity at the thoracolumbar region, causing chronic back

pain. According to his family physician’s assessment in 1998, Cooper could perform no



                                              -4-
sustained physical labor. But SSA’s medical examiners suggested he could lift 20 pounds

occasionally, sit for an eight-hour workday, and stand or walk for one hour out of an

eight-hour workday. He can do various household activities, has looked for work, and

can take care of his pet fish (he even makes homemade filters for the tank out of charcoal

and cloth). He can walk to a bus stop and take public transportation, but he has testified

that he would need to rest every two blocks in order to do so.

       In addition, Cooper suffers from various psychological problems, including

dysthymia (i.e., chronic depression), bipolar disorder, anger, violent behavior, and

difficulty in social interactions, particularly with respect to his superiors in a work

environment. Intellectually, doctors have evaluated him as having poor memory and only

limited literacy. Cooper did complete high school and has consistently been judged

capable to manage his own benefits. His doctors have disagreed, however, with regard to

his general attitude. One SSA examiner concluded that, when examined, Cooper

“showed a conscious attempt to look bad or exaggerate his illness or to malinger.”

Another found him to be “not very cooperative.” On the other hand, a third doctor, who

examined Cooper twice, found him to be “cooperative” and “very cooperative.”

                        III. Jurisdiction and Standard of Review

       The District Court had jurisdiction under 42 U.S.C. § 1383(c)(3), which

incorporates 42 U.S.C. § 405(g) by reference. We have jurisdiction over Cooper’s appeal

under 28 U.S.C. § 1291. We exercise plenary review over the District Court’s legal



                                              -5-
conclusions. Allen v. Barnhart, 417 F.3d 396, 398 (3d Cir. 2005). We review the factual

findings in the ALJ’s 2003 decision for substantial evidence:

              [W]e must uphold a final agency determination unless we find
              that it is not supported by substantial evidence in the record.
              Substantial evidence is “such relevant evidence as a
              reasonable mind might accept as adequate to support a
              conclusion” . . . . It is “more than a mere scintilla but may be
              somewhat less than a preponderance of the evidence” . . . . In
              the process of reviewing the record for substantial evidence,
              we may not “weigh the evidence or substitute [our own]
              conclusions for those of the fact-finder.”

Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005) (second alteration in original)

(citations omitted).

                                   IV. Disability Analysis

       The SSA’s process for evaluating disability, whether for disability insurance or

SSI, includes five steps.2 Cooper argues that he presented a prima facie case of total

disability. Substantial evidence supports the conclusion that he met the requirements of

step one; he had not worked for approximately 15 years at the time of the ALJ hearing.

Substantial evidence also supports the ALJ’s finding at step two that Cooper had ten

separate “severe” ailments. This appeal mainly concerns steps three and five, which we

address in turn.




   2
    Briefly, the five steps involve establishing: (1) non-employment; (2) severe
impairment(s); and either (3) that the impairments, or a combination thereof, meet an
SSA-listed disability or, as a result of limited residual functional capacity, (4) incapability
of performing past work or (5) other work in the economy. See 20 C.F.R. § 404.1520.

                                              -6-
A. Step Three

       At step three, the ALJ found that Cooper did not meet any of the detailed listings

required for a showing of total disability. See 20 C.F.R. Part 404, Subpart P, App. 1,

Regs. No. 4. The ALJ specifically considered disabilities of the musculoskeletal system,

special senses (including vision) and speech, and cardiovascular system, as well as mental

impairments. He also mentioned that Cooper’s various conditions could satisfy no other

listing. Thus, the ALJ proceeded to step four, at which he determined that Cooper had

residual functional capacity “to perform a restricted range of sedentary work activity”

subject to various restrictions. See Ramirez v. Banhart, 372 F.3d 546, 551 (3d Cir. 2004)

(describing the relationship between steps three and four).

       Cooper correctly points out that nothing in the ALJ’s opinion discusses combining

any of the many ailments or how those combinations might measure up to the listings at

step three of the disability-claim analysis. This contravened SSA regulations, which state

that the Commissioner “will consider the combined effect of all of your impairments

without regard to whether any such impairment, if considered separately, would be of

sufficient severity.” 20 C.F.R. § 416.923 (emphasis added). While the ALJ may have

considered Cooper’s ailments as a whole when determining his residual functional

capacity at step four of the analysis, 20 C.F.R. § 416.923 is concerned with step three

because it refers to the listings, 20 C.F.R. Part 404, Subpart P, App. 1. There is no

evidence (let alone substantial evidence) to support a finding that Cooper’s ailments,



                                             -7-
taken in combination, do not satisfy a listing at step three.3

         Cooper specifically argues that the ALJ should have considered his obesity in

combination with other ailments at step three.4 The SSA has directed that “a listing is met

if there is an impairment that, in combination with obesity, meets the requirements of a

listing.” Soc. Sec. Rul. 02-1p, 2000 WL 628049, at *5 (Sept. 12, 2002) (emphasis

added). It has also observed that “ obesity may increase the severity of coexisting or

related impairments” and that “[t]his is especially true of musculoskeletal, respiratory,

and cardiovascular impairments,” thus calling for case-by-case determinations regarding

obesity’s exacerbating effect on other conditions. Id.

         Our Court has held that where a claimant “has not specified how [obesity] would

affect the five-step analysis undertaken by the ALJ, beyond an assertion that her weight

makes it more difficult for her to stand, walk and manipulate her hands and fingers,” a

remand was not warranted. Rutherford, 399 F.3d at 552 n.4, 553. The SSA proceedings

in that case pre-dated Ruling 02-1p, but we stated that “the analysis would be no different

under the new ruling.” Id. In our case, however, Cooper makes a specific request for

consideration of his obesity in conjunction with his musculoskeletal, respiratory, and

cardiovascular conditions.

         On remand, the Commissioner should consider Cooper’s physical and


   3
     At step four, however, the ALJ did consider all of Cooper’s ailments in combination
to determine his residual functional capacity.
   4
       The ALJ found Cooper’s obesity to be “severe” at step two of the disability analysis.

                                              -8-
psychological ailments in combination with each other and especially with regard to his

obesity. Cooper nonetheless retains the burden of persuasion at step three of the

disability-claim analysis. (A better-organized list of ailments, grouping all the

information by body part, organ system, or psychological disorder, would likely assist in

his efforts.)5

B. Step Five

       Cooper contends that the ALJ failed to shift the burden to the Commissioner at

step five. While we disagree, we do have a different concern about the ALJ’s analysis at

step five. The vocational expert suggested that Cooper could become an assembler,

laborer, inspector/checker, or hand packager. It might be plausible that Cooper could do

certain sedentary jobs. But on this record, substantial evidence does not support the

conclusion that an individual who is blind in one eye and has poor vision in the other

could serve as an inspector/checker, assembler, or hand packager. Those jobs require

much hand-eye coordination and visual strain. On remand, the analysis might not reach

step five, because Cooper could demonstrate a listed disability at step three. But if the




   5
     Cooper also contends, regarding step three, that the ALJ made “speculative
inferences” from the medical expert testimony when determining that his mental-health
conditions did not constitute a disability. Morales v. Apfel, 225 F.3d 310, 317 (3d Cir.
2000). But, as a review of the facts shows, this is not what has happened here. While Dr.
Carl Herman’s three examinations in 1998, 1999, and 2002 tended to support Cooper’s
claims, other doctors’ examinations suggested that Cooper has slightly greater ability to
function, and slightly less social impairment, than Dr. Herman found. With this
argument, Cooper is really asking us to re-weigh the evidence, something we will not do.

                                             -9-
analysis does reach step five, the Commissioner should consider whether Cooper’s

eyesight—damaged since an incident in 1986—left him with the residual functional

capacity to perform the suggested jobs during the relevant period from February 1997

through September 2004.

                                      *   *    *     *   *

       For these reasons, we vacate the judgment of the District Court and remand for

further proceedings consistent with this opinion. On remand, the ALJ must consider

Cooper’s ailments in combination at step three and, if the disability analysis reaches step

five, take Cooper’s vision problems into account.




                                              -10-
