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


4-16-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 02-4125




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                                                             NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 02-4125


                                  HATTIE LEACH,

                                      Appellant,

                                          v.

                          JO ANNE B. BARNHART,
                     COMMISSIONER OF SOCIAL SECURITY.


          ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR
                        THE DISTRICT OF NEW JERSEY
                      (District Court Civil No. 01-cv-00938)
                   District Court Judge: Hon. Faith S. Hochberg




                     Submitted Under Third Circuit LAR 34.1(a)
                                  June 17, 2003

                 Before: ALITO, ROTH, and HALL,* Circuit Judges.

                           (Opinion Filed: April 16, 2004)


                             OPINION OF THE COURT




      *
       The Hon. Cynthia Holcomb Hall, Circuit Judge for the United States Court of
Appeals for the Ninth Circuit, sitting by designation.
       HALL, Circuit Judge:




       Hattie Leach appeals the district court’s judgment affirming a final decision of the

Commissioner of Social Security. The Commissioner’s final decision was based on

Administrative Law Judge Richard L. DeSteno’s June 15, 2000 determination that Leach’s

carpal tunnel syndrome and hypertension do not render her disabled. Because the ALJ’s

decision was not supported by substantial evidence, we REVERSE.

       The ALJ erred by determining that Leach does not suffer from a “severe

impairment” without giving a reasoned explanation for his conclusion. The ALJ’s only

analysis of Leach’s hypertension-related headaches and dizziness consisted of the

conclusory statement that he found Leach’s “alleged headaches and dizziness to be non-

severe.” This statement does not provide sufficient reasoning to permit us to determine

whether the ALJ’s decision was supported by substantial evidence. See Burnett v.

Comm’r. of Soc. Sec., 220 F.3d 112, 121 (3d Cir. 2000) (“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.”); Cotter v. Harris, 642 F.2d 700,

705 (3d Cir. 1981) (An ALJ must provide “not only an expression of the evidence s/he

considered which supports the result, but also some indication of the evidence that was

rejected.”). Accordingly, we cannot affirm the decision of the district court.

       The ALJ also erred by rejecting the testimony of both Leach and her medical expert,



                                             -2-
Dr. Mylod, without providing a reasoned explanation for doing so. The ALJ concluded

that Leach was capable of repetitively using her affected arm to “push, pull, or assist with

manipulation” of objects. This conclusion was inconsistent with Dr. Mylod’s opinion that

Leach was unable to perform “any grasping, fine motion, repetitive thing.” The ALJ

afforded Dr. Mylod’s testimony, which was generally consistent with Leach’s subjective

complaints, “little weight,” citing his perception that Dr. Mylod had an “inherent bias” in

favor of social security claimants.

       A reviewing court typically defers to an ALJ’s credibility determinations. Reefer v.

Barnhart, 326 F.3d 376, 380 (3d Cir. 2003). This deference, however, does not extend to

situations in which the record does not reveal a sufficient basis for the ALJ’s decision to

discredit a witness. Id. Relatedly, an ALJ is not permitted to make “speculative

conclusions without supporting evidence.” Burnett v. Commissioner of Social Security,

220 F.3d 112, 125 (3d Cir. 2000). Here, the record does not support the ALJ’s credibility

determination. During the hearing, the ALJ summarily dismissed Leach’s effort to have a

second medical expert appointed, stating, “Why do we need two? I can’t think of a more

capable orthopedist than Dr. Mylod.” The ALJ further noted that he has a “tremendous . . .

respect for [Dr. M ylod] as an orthopedist and for his knowledge and ability, and I find him

to be a very, very good and reliable witness in many cases.” Incongruously, the ALJ

subsequently deemed Dr. Mylod an inherently biased witness. This determination is

inconsistent, not only with the ALJ’s professed respect for Dr. Mylod, but also with the



                                             -3-
fact that Dr. Mylod had extensive experience testifying both on behalf of the

Commissioner and on behalf of complainants. Indeed, approximately 80% of Dr. Mylod’s

previous appearances were on behalf of the Commissioner.

       The ALJ also discounted both Dr. Mylod’s opinion and Leach’s testimony because

of a perceived conflict with other medical evidence in the record. Specifically, the ALJ

observed that Dr. Fischer “found [Leach’s] grips to be excellent” and that Dr. Feman’s

report indicated good equal bilateral strength. Both Dr. Fischer and Dr. Feman, however,

also acknowledged that Leach suffered from carpal tunnel syndrome, and Dr. Fischer noted

that Leach would likely need surgery. The conclusion by both doctors that Leach had

excellent grip strength, yet nonetheless suffered from severe carpal tunnel syndrome, is

consistent with Dr. Mylod’s testimony, in which he testified without contradiction that “a

one time test of [grip] strength cannot be a valid test for carpal tunnel syndrome. Carpel

tunnel syndrome is more with repetitive type problems.” The ALJ’s conclusion that

medical reports reflecting Leach’s grip strength undermine Dr. M ylod’s testimony is

therefore not supported by the record.1 In addition, neither Dr. Fischer’s report nor Dr.

Feman’s report contradicts Dr. Mylod’s conclusion that Leach cannot perform jobs that

require repeated grasping, fine manipulation, or any other repetitive motion. Indeed, both




       1
         The ALJ also concluded that Dr. Fischer and Dr. Feman’s reports indicate that
Leach can “use the hand for support and guidance of objects consistently in a work
context.” Neither doctor, however, rendered any specific opinion about Leach’s ability to
repetitively use her right hand to support or guide objects.

                                             -4-
Dr. Fischer and Dr. Feman’s reports affirmatively state that Leach suffers from severe

carpal tunnel syndrome, a disorder commonly understood to originate from repetitive

stress. For these reasons, the record does not reveal a sufficient basis for either the ALJ’s

decision to discredit Dr. Mylod, or the ALJ’s related decision to deem Leach’s own

testimony unsupported.

       Because the ALJ’s decision is not supported by substantial evidence, we must

reverse. We are cognizant that previous error on the part of the ALJ has already caused the

case to be remanded once, substantial delaying the case for reasons not attributable to

Leach. The administrative record, which has been fully developed through two hearings,

contains medical evidence that Leach’s right arm is restricted from repetitive motion. The

record also contains evidence that an unskilled individual, such as Leach, who is incapable

of using one arm to repetitively push, pull, and assist the other arm with manipulation, is

not capable of securing employment. Thus, the record contains substantial evidence to

support a finding that Leach is disabled. Accordingly, we remand with instructions to

award benefits to Leach. See Morales v. Apfel, 225 F.3d 310, 319 (3d Cir. 2000).2

REVERSED and REMANDED.


       2
          Our review of the transcript from the first remand proceeding indicates that the
ALJ was somewhat hostile to the remand order, expressly disagreeing with the Appeal’s
Council request that he attempt to obtain a neurologist. The ALJ also seemed to have
little interest in exploring the issues raised by Dr. Mylod and by Leach’s own testimony,
choosing not to examine Dr. Mylod at all and rebuffing numerous attempts by Leach to
have a second expert appointed. This history is an additional factor weighing against
remand for a third hearing.

                                              -5-
