                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-10-2003

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1266




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                                                     NOT PRECEDENTIAL

             UNITED STATES COURT OF APPEALS
                  FOR THE THIRD CIRCUIT


                            No. 03-1266




                        KATHY A. SMITH


                                  v.

          THE COMM ISSIONER OF SOCIAL SECURITY

                           Kathy Smith,

                                  Appellant


ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
           WESTERN DISTRICT OF PENNSYLVANIA

                   (Dist. Court No. 02–cv-00021E)
         District Court Judge: Honorable Sean J. McLaughlin


             Submitted Under Third Circuit LAR 34.1(a)
                         October 23, 2003

       Before: ALITO, FUENTES, and BECKER Circuit Judges

                 (Opinion Filed: November 7, 2003)




                    OPINION OF THE COURT
PER CURIAM:

              As we write for the parties only, we do not set out the background of this

case. We find that none of Smith’s grounds for appeal have merit and so we affirm the

order and opinion of the District Court.

              Smith first claims that her counsel’s silence at the administrative hearing

rendered her a de facto pro se applicant, triggering a heightened responsibility for the

ALJ to fully and fairly develop the record. Smith claims the ALJ failed to fulfill this

duty. “ALJs have a duty to develop a full and fair record in social security cases.

Accordingly, an ALJ must secure relevant information regarding a claimant’s entitlement

to social security benefits.” Ventura v. Shalala, 55 F.3d 900, 902 (3d Cir. 1995)(citations

omitted). We find that the ALJ developed a full and fair record in this case. Contrary to

Smith’s claim that the record was sparse, the ALJ had in front of him the notes of two

treating physicians, an evaluation by an ALJ appointed physician, and the opinion of two

state agency physicians, all of whom examined Smith as to her alleged problems. The

ALJ also had objective evidence in the form of radiographs and spirometry studies and

subjective evidence from Smith’s forms and testimony. The ALJ was not required to ask

minute details about Smith’s mental health and daily routines in order to establish a full

and fair record. The evidence before the ALJ was thorough enough to make the

determination.



                                             2
              Smith next claims that the ALJ should not have discounted her testimony

without further developing the record. As stated above, though, the record was full and

fair. In addition to the forms she filled out, Smith’s testimony runs about eight pages in

the record. Furthermore, most of the evidence that Smith claims is lacking in her

testimony appears in the record in other forms.

              An ALJ’s determination of credibility is afforded “strong deference.” See

N.L.R.B. v. Permanent Label Corp., 657 F.2d 512, 518 (3d Cir. 1981). Here the ALJ’s

reason for discounting Smith’s subjective statements was reasonable, specific, and based

on the evidence. The ALJ found that:

                     [w]hen considering the record in its entirety, the
                     claimant’s residual functional capacity is not as
                     limited as the claimant alleges. She describes
                     her pain as “very sharp” and “constant,” but the
                     objective medical evidence does not support the
                     severity of the claimant’s alleged pain. Insofar
                     as the claimant’s statements are inconsistent
                     with the residual functional capacity found
                     herein, her testimony is not wholly credible.

App. at 61. As such, Smith’s second argument has no merit.

              Smith next argues that the ALJ’s determination was against the weight of

the evidence. An ALJ’s determination must be upheld if it is supported by substantial

evidence. See 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). Here, the ALJ relied on the opinions of no fewer than



                                             3
five doctors in deciding that Smith was not entitled to benefits. None of the reports

showed evidence of a disability that would prevent Smith from working at the various

jobs the ALJ identified for her. Some exams even found that the alleged source of her

pain was “normal,” “mild,” and “unremarkable.” Indeed, the only thing the medical

records reveal is that Smith constantly complained of pain and that, when and if the

doctors did find problems, the problems were unremarkable and did not correspond to the

level of her complaints.

       Smith’s final ground for appeal is that the District Court erred by not remanding to

the ALJ in light of new evidence. This argument is also without merit. Evidence that is

not in front of the ALJ cannot be used to argue that the ALJ’s decision was erroneous.

See Jones v. Sullivan, 954 F.2d 125, 128 (3d Cir. 1991). Nevertheless, when there is

evidence that is “new and material and ... there [is] good cause why it was not previously

presented to the ALJ,” the District Court may remand to the Commissioner for

reconsideration in light of the new evidence. Matthew v. Apfel, 239 F.3d 589, 593 (3d

Cir.)(citations omitted). “Good cause” requires the applicant to articulate a justification

for having failed to present the evidence to the ALJ. See Szubak v. Sec. of Health and

Human Serv., 745 F.2d 831, 833-834 (3d Cir. 1984).

       Smith presented the District Court with medical documents that she obtained after

the administrative hearing. The District Court found that the all the documents were

“new” and some were “material,” but there was no “good cause” as to why any of them



                                              4
could not have been prepared and submitted to the ALJ. See App. 1(r)-1(s). The District

Court’s reasoning is persuasive:

      [R]emand ... is inappropriate because Smith has not demonstrated good
      cause for her failure to present this evidence to the ALJ. For example, the
      aortogram and arterial studies performed on January 11, 2000 were
      recommended by Smith’s treating physician ... as early as ... one month
      prior to the July 13, 1999 administrative hearing. Smith provides no
      explanation as to why this test could not have been conducted, and the
      results obtained, in time for the ALJ to consider them. In fact, because the
      need for the test was known to Smith well in advance of the administrative
      hearing, Smith could have specifically requested that the record remain
      open long enough for her to obtain the test results, even if they were not
      available as of the date of the hearing.

App. 1(s). The District Court’s analysis of the lack of good cause for the other documents

in similarly persuasive. Smith has never offered any reason why the documents were not

presented at the ALJ hearing. As such, we cannot remand. See Szubak v. Sec. of Health

and Human Serv., 745 F.2d 831, 833-834 (3d Cir. 1984).




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