                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-17-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2810




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NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT

                               Case No: 06-2810

                           RAFAEL RODRIGUEZ,

                                        Appellant

                                        v.

                  COMMISSIONER OF SOCIAL SECURITY



                On Appeal from the United States District Court
                         for the District of New Jersey
                        District Court No. 04-CV-5550
                   District Judge: Joseph A. Greenaway, Jr.


               Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                               April 13, 2007

                 Before: SMITH and COWEN, Circuit Judges,
                          and YOHN, District Judge*

                            (Filed: April 17, 2007 )


                                   OPINION



      *
       The Honorable William H. Yohn, Senior United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
                                       1
SMITH, Circuit Judge.

      Rafael Rodriguez appeals from the District Court judgment affirming the

final decision of the Commissioner of Social Security, which denied his

application for benefits under Title II of the Social Security Act.1 Our review is

limited to determining whether there is substantial evidence to support the

Commissioner’s decision. 42 U.S.C. § 405(g). Substantial evidence is “such

relevant evidence as a reasonable mind might accept as adequate to support a

conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal quotation

marks and citation omitted). For the reasons set forth below, we conclude that

substantial evidence is lacking in certain respects and we will remand this matter

for further proceedings.

                                          I.

      Rodriguez worked for many years as a machine operator and set-up man for

a metal shop. He was laid off in October 2001. Prior to his layoff, he had been

diagnosed with systemic lupus erythematosus (SLE), an autoimmune disease that

can affect multiple body systems, and was being treated by Dr. Hsu, a

rheumatologist at the Robert Wood Johnson Medical School. In September of



      1
       The District Court had jurisdiction under 42 U.S.C. § 405(g). We exercise
appellate jurisdiction pursuant to 28 U.S.C. § 1291.
                                          2
2001, Dr. Hsu characterized Rodriguez’s SLE as mild and noted that he did not

have any systemic findings. She acknowledged that he suffered from joint pains,

and she opined that he may find it difficult to work as a machinist. She further

noted that training for light duty or desk work may be appropriate. In June 2003,

Dr. Hsu’s physical examination of Rodriguez confirmed the “lack of objective

findings for active SLE.”

       The following month, in July 2003, Dr. Hsu opined that Rodriguez was

unable to carry more than five pounds and could stand and walk for no more than

a half hour. Rodriguez’s other treating physician, Dr. Cramer, a family

practitioner who followed him since 1979, also opined in a letter dated June 20,

2003, that Rodriguez was disabled and unable to do work related physical

activities.

       In addition to Rodriguez’s physical malady, there were also concerns raised

about his mental status. A consultative examination by Dr. Baharlias in April

2002 yielded an opinion that Rodriguez had a severe cognitive deficit that must

have resulted from two motor vehicle accidents and that he was developing early

dementia. In a report dated July 1, 2002, Dr. Cramer advised that he had been

treating Rodriguez since 1983 for an anxiety disorder with Lorazepam. Dr.

Cramer reported that Rodriguez had “never had Dementia.” In contrast to Dr.

                                         3
Baharlias’s report, Dr. Cramer’s detailed three page report failed to mention that

Rodriguez had ever been involved in a motor vehicle accident or sustained a head

injury. Dr. Cramer opined, however, that Rodriguez’s anxiety disorder caused a

“difficulty in focusing and maintaining a sustained concentration on his activities

which would interfere with any work related physical activity.”

      Rodriguez’s medical records were reviewed by Dr. Macchia, a psychologist,

and Dr. Gieseken. They concluded that Rodriguez’s ability to perform most

mental activities was not significantly limited. But they checked the box on the

form provided to indicate that Rodriguez’s ability to maintain attention and

concentration for an extended period was moderately limited, as was his ability to

respond appropriately to changes in his work environment and to set realistic goals

or make plans independently of others. In the narrative report that accompanied

these assessments, Dr. Macchia and Dr. Gieseken discounted Dr. Baharlias’s

opinion, noting that it was contradicted by Dr. Cramer’s treatment records from

1979. These physicians credited Dr. Cramer’s assessment that Rodriguez suffered

from a history of anxiety and opined that Rodriguez’s ability to cope and adapt

was moderately limited. In contrast to their earlier assessment in the form that

Rodriguez’s ability to maintain attention and concentration for extended periods of

time was moderately limited, these physicians stated that Rodriguez was able to

                                          4
concentrate and persist in a task.

      After a hearing and consideration of the medical evidence, the

administrative law judge (ALJ) conducted the familiar five step analysis set forth

in 20 C.F.R. § 404.1520, and concluded that Rodriguez was not disabled.

The District Court affirmed the final decision of the Commissioner.

      This appeal followed. Rodriguez asserts that the ALJ erred in several

respects. He challenges the ALJ’s analysis at step three, contending that the ALJ

failed to specifically address whether his SLE satisfied or equaled the criteria of

listing 14.02 in appendix 1. We find no error by the ALJ in this regard. It is true

that the ALJ did not specify the listing by number. This does not preclude

meaningful review, however, in light of the single listing for SLE and Dr. Hsu’s

opinions in 2001 and June 2003, which were credited by the ALJ, that Rodriguez’s

condition was mild and that there were no objective findings for active SLE.

Accordingly, there was no basis for the ALJ to conclude that Rodriguez’s SLE

satisfied the severity requirements of the listing in § 14.02. See Poulos v. Comm’r

of Soc. Sec., 474 F.3d 88, 93 (2007) (pointing out that meaningful review at step

three is informed by the extent of the ALJ’s review of the objective medical

evidence).

      Rodriguez also contends that the ALJ erred by refusing to acknowledge that

                                          5
he had a psychiatric impairment. He submits that the ALJ improperly discounted

Dr. Baharlias’s opinion that he had dementia and was severely cognitively

impaired. We find no error in discounting Dr. Baharlias’s reports as they

conflicted with Dr. Cramer’s detailed report, which was entitled to more weight in

light of his status as Rodriguez’s family doctor since 1979. As we explained in

Plummer v. Apfel, 186 F.3d 422 (3d Cir. 1999), “[t]reating physicians’ reports

should be accorded great weight, especially ‘when their opinions reflect expert

judgment based on a continuing observation of the patient’s condition over a

prolonged period of time.’” Id. at 429 (quoting Rocco v. Heckler, 826 F.2d 1348,

1350 (3d Cir. 1987); see also 20 C.F.R. § 404.1527(d)(2).

      Nonetheless, we are troubled by the ALJ’s evaluation of Rodriguez’s mental

impairment because, after explaining the basis for discounting Dr. Baharlias’s

opinion, the ALJ accorded “significant weight” to the opinions of Dr. Macchia and

Dr. Gieseken on the basis that their conclusions were not contradicted by any

medical evidence in the record. The opinions of these nonexamining physicians,

however, were internally inconsistent with regard to Rodriguez’s ability to sustain

concentration. As noted above, the physicians checked the box to indicate that

Rodriguez’s ability in this regard was moderately limited, and yet explained in

their narrative that he could concentrate and persist in an activity. Thus, if we

                                          6
assume that the opinions of Dr. Macchia and Dr. Gieseken were that Rodriguez

had no limitation in his ability to concentrate for extended periods of time, the

opinions conflict with that of Dr. Cramer, who opined that Rodriguez’s anxiety

disorder caused a “difficulty in focusing and maintaining a sustained concentration

on his activities which would interfere with any work related physical activity.” If

we assume that the opinion of these nonexamining physicians is that Rodriguez

has some limitation in his ability to sustain concentration for extended periods of

time, there is a consensus among the practitioners, both nonexamining and

treating, that Rodriguez’s mental impairment restricted his ability to focus and

maintain concentration.

      Under either scenario, the ALJ had to explain why he did or did not credit

the medical evidence that Rodriguez had a non-exertional limitation with respect

to his ability to concentrate for extended periods of time. Instead, the ALJ’s

decision failed to consider this limitation which, if credited, would preclude

application of the Grids. See Sykes v. Apfel, 228 F.3d 259, 270 (3d Cir. 2000)

(reiterating that the presence of non-exertional impairments precludes application

of the Grids). Accordingly, we will vacate the judgment of the District Court and




                                          7
will remand for further proceedings.2




      2
        We also note that the ALJ’s decision is internally inconsistent. The ALJ
initially found that Rodriguez’s anxiety constituted a severe impairment at step
two. Thereafter, he found that Rodriguez “has no mental disorder that is severe
within the definition of the Social Security Act.” We are at a loss to understand
how Rodriguez may be found to have a severe mental impairment initially and yet
be found to suffer no severe mental impairment thereafter.
                                        8
