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Hopkins v. Comm’r Soc. Sec., No. 19-2437, 2020 U.S. App. LEXIS 16637 (3d Cir. May 26, 2020) Attorneys Sarah H. Bohr, Esq., Bohr & Harrington, Atlantic Beach, FL; Sheryl G. Mazur, Esq., West Caldwell, NJ

Plaintiff appealed the district court’s affirmation of a denial of his application for disability insurance benefits. Plaintiff argued that the ALJ erred in the evaluation of the opinions of the consultative examiner and his treating physician. Specifically, he contended that the ALJ’s discussion focused on the “normal findings” rather than “the significant abnormalities documented in the [CE] opinion” and assigned little weight to the opinion of the treating physicians. The Court disagreed. The Court noted that though the ALJ did not assign a specific weight to the CE’s opinion, she clearly considered it and incorporated that analysis into her decision. The Court stated it did “not face a situation where we cannot tell whether probative evidence was not credited or ignored.” Likewise, the ALJ did not err in evaluating the opinions of the treating sources. The first source relied upon by Plaintiff was a therapist and therefore not an acceptable medical source and the ALJ found this opinion inconsistent with Plaintiff’s daily activities. The second source was afforded “partial weight” and the ALJ properly found the source had provided sparse treatment records. Finally, the ALJ properly evaluated and explained her conclusions with respect to Plaintiff’s subjective symptoms and limitations. The Court upheld the denial of benefits.

Carter v. Comm’r Soc. Sec., 805 F. App’x 140 (3d Cir. 2020) Attorney E. David Harr, Esq., Greensburg, PA.

Plaintiff appealed the district court’s affirmation of a denial of her application for disability insurance benefits. Plaintiff argued that the ALJ erred at Step 2 by failing to find her impairments severe or consider her obesity or headaches at all. The Court disagreed. The Court held the ALJ properly observed that her diabetes and respiratory ailments, either regularly tested as normal or readily responded to treatment across her medical history. The Court further observed that ALJ directly mentioned Plaintiff’s obesity in the decision and that the ALJ had failed to explain how obesity or headaches affected her ability to work. The Court affirmed the denial of benefits.

Atkins ex rel. Atkins v. Comm’r Soc. Sec., 810 F. App’x 122 (3d Cir. 2020) Attorney Zenford A. Mitchell, Esq., Pittsburgh, PA.

Plaintiff, a substitute party for her daughter who died while her appeal was pending before the Appeals Council, appealed a district court decision upholding a denial of her daughter’s applications for disability insurance benefits. Plaintiff contended that the ALJ’s denial of disability benefits was not supported by substantial evidence. Further, she argued that the claimant’s death certificate which showed that she died from asthma proved that it was a severe impairment which resulted in her death. The court disagreed. First, the Court noted that Plaintiff made a general argument referencing over 200 pages of medical record without indication as to which pages supported her claim. The Court refused to consider such a broad argument stating, “ “[j]udges are not like pigs, hunting for truffles buried in the record.” citing Doeblers’ Pa. Hybrids, Inc. v. Doebler, 442 F.3d 812, 820 n.8 (3d Cir. 2006) (quoting Albrechtsen v. Bd. of Regents of Univ. of Wis. Sys., 309 F.3d 433, 436 (7th Cir. 2002)). Second, there was no error in failure to consider Plaintiff’s death certificate as her death occurred three years after her date last insured. Third, while Plaintiff asserted an error in disregarding the treating sources there was no specific example of this offered by Plaintiff. Fourth, while Plaintiff argued that the ALJ erred by failing to use a medical advisor to establish an onset date there was no dispute in this case of Plaintiff’s alleged onset date. Finally, Plaintiff asserted error in the ALJ’s determination that claimant could perform medium work but not light level work such as her past work. The Court rejected this observing that Plaintiff “never explains how or why the limitations imposed by the ALJ were for someone who could perform work at a light level, rather than a medium level, and since substantial evidence supports the ALJ’s determination that Claimant could perform work consistent with her RFC, Appellant’s claim has no merit.” The Court affirmed the denial of benefits.

Cirko ex rel. Cirko v. Comm’r of Soc. Sec., 948 F.3d 148 (3d Cir. 2020) Thomas D. Sutton, Leventhal Sutton & Gornstein, Trevose, PA

While Plaintiff’s appeals were pending in district court, the Supreme Court of the United States decided in Lucia v. SEC, 583 U.S. __, 138 S. Ct. 2044, 201 L. Ed. 2d 646 (2018), that the ALJs of the Securities and Exchange Commission were “Officers of the United States” and, thus, subject to the Appointments Clause. Id., 138 S.Ct. at 2055. As the ALJ in Lucia’s case had conducted his hearing “without the kind of appointment the Clause requires,” the Supreme Court held that the petitioner was entitled to a “hearing before a properly appointed” ALJ, and that the ALJ must be a different ALJ than had previously heard the case. Id. Though “[t]he Supreme Court’s decision in Lucia did not specifically address the constitutional status of ALJs who work in other Federal agencies, including the Social Security Administration (SSA),” Social Security Ruling (SSR) 19-1p, 2019 SSR LEXIS 1, an executive order was issued on July 13, 2018 concluding that “at least some—and perhaps all—ALJs are ‘Officers of the United States’ and thus subject to the Constitution’s Appointments Clause.” Exec. Order No. 13,843, 83 Fed. Reg. 32, 755 (July 13, 2018). In response, on July 16, 2018, the Acting Commissioner of SSA ratified the appointments of Social Security ALJs and approved their appointments as her own to address any Appointments Clause question involving Social Security benefit claims. See SSR 19-1p, 2019 SSR LEXIS 1. Plaintiffs immediately raised a claim that the ALJs in their cases were unconstitutionally appointed demanding a new hearing although they had not raised this claim previously. The Agency objected that the issue had been exhausted by Plaintiffs failure to raise it before the ALJ or the Appeals Council. The district court declined to require issue exhaustion and remanded to the Agency for new hearings. The Agency appealed the district court’s order.

The Circuit Court upheld the district court’s order. The Court held that because no statutory or regulatory exhaustion requirements existed, this was “a matter of sound judicial discretion.” It was to be guided by the nature of the claim presented, the characteristics of the procedure provided, and the weighing of the respective interests of the claimants and the Agency.
First, the Court explained that exhaustion was generally inappropriate with respect to structural constitutional challenges, like those alleging a violation of the Appointments Clause. The Lucia Court’s order that the SEC provide petitioner a new hearing before a constitutionally appointed ALJ different from the original ALJ, reflected the critical nature of structural challenges and the difficulty of showing prejudice in such a context. The nature of the proceedings weighed against an exhaustion requirement. The Court found the inquisitorial nature of the proceedings critical, relying on Sims v. Apfel, 530 U.S. 103 (2000), which concluded that social security claimants need not exhaust issues before the Appeals Council in order to raise them in a District Court challenge to the Agency’s denial of their claim. The Court then weighed the claimants’ and the Government’s interests. The interest of claimants in excusing exhaustion requirement was high given the diminished expectation of even represented claims in an inquisitorial proceeding. And claimants interest warranted even greater solicitude, because many claimants are unrepresented. The Court observed, “an exhaustion requirement for Appointments Clause claims would impose an unprecedented burden on claimants.” The Agency’s interest was low. The Agency could not claim expertise with respect to Appointments Clause issues nor was an ALJ, or the Agency, likely to declare Agency process for appointing its ALJs unconstitutional. While the Agency insisted that waiving an exhaustion requirement would require re-litigation of thousands of disability cases that had already been resolved by ALJs the Court estimated the number in the hundreds, not thousands. It noted that Agency had already voluntarily ordered Appeals Council review of disability cases in which the Lucia claim had been raised at the Appeals Council level, far more cases than the Court’s ruling would require Agency to consider. The Court upheld the district court’s order for remands.

Scouten v. Commissioner Social Security, 722 Fed. App’x 288 (3d Cir. 2018)

Plaintiff applied for disability insurance benefits on the basis on both on physical impairments, such as compression fractures of the thoracic and lumbar spine and knee pain, and the mental impairment of depression. She appealed her district court denial on the basis that: (1) the ALJ erred in assigning less weight to the opinion of her treating physician; (2) the ALJ erred in finding her depression “non-severe” relying on the opinion of a non-examining psychological consultant over her treating psychiatrist; (3) the ALJ erred in finding her partially credible; and (4)the ALJ failed to properly credit her husband’s testimony.

The court rejected her arguments. First, it found that her treating physician’s opinion was properly given little weight by the ALJ on the basis it was offered after her date last insured and inconsistent with the physician’s contemporaneous treatment notes from the period under consideration. The court next found that the ALJ properly determined Plaintiff’s depression to be non-severe despite relying upon the opinion of a non-examining consultant, as Plaintiff’s psychiatrist had begun treating her after the date last insured. The court further explained that even though the non-examiner consultant did not have access to the entire record the ALJ did consider the complete record and found that the opinion was consistent with the entire record. See Chandler v. Comm’r of Soc. Sec., 667 F.3d 356, 361 (3d Cir. 2011). The court found that the ALJ had properly assessed Plaintiff’s credibility in finding her allegations inconstant with the objective medical evidence and had discussed her husband’s testimony in detail before properly rejecting it. The court affirmed the district court’s judgment.

Miller v. Commissioner Social Security, 732 Fed. App’x 162 (3d Cir. 2018)

Plaintiff, an attorney, alleged disability on the basis of a traumatic brain injury sustained in an accident which resulted in post-concussion syndrome and migraines. She appealed her district court denial on the basis that the Appeals Council had erroneously found that new records documenting her migraines were not “material” and “would not reasonably change the ALJ’s decision.” She sought relief at the circuit court level under sentence six of § 405(g), asserting “there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding.”

The court found that Plaintiff had waived her claim to a sentence six remand by not raising it at the district court level. At the district court, Plaintiff had argued that the ALJ erred because he improperly evaluated her credibility, disregarded the opinions of her physicians, and failed to address the work limitations caused by her headaches. She did not ask the district court to remand on the basis of newly acquired evidence. In other words, she had requested relief under sentence four of § 405(g). Thus, by failing to seek relief under the sixth sentence of § 405(g), she waived the opportunity for her benefits ruling to be reviewed in light of the new evidence. See Pennington v. Comm’r of Soc. Sec., 683 F. App’x 168, 171 (3d Cir. 2017) (finding that the appellant waived his request for a sentence four remand when he only sought review under sentence six of section 405(g) at the district court level).

Despite this waiver, the court went on to address the substance of Plaintiff’s argument finding that the new records were immaterial. To be material, there ‘must be a reasonable probability that the new evidence would have changed the outcome’ of the Commissioner’s decision.” Beety-Monticelli v. Comm’r of Soc. Sec., 343 F. App’x 743, 747 (3d Cir. 2009) (quoting Szubak v. Sec’y of Health & Human Servs., 745 F.2d 831, 833 (3d Cir. 1984)). Though the records documented a treating doctor’s comment that she was “unlikely to be able to return to work “at this point,” it also stated that her headaches were still improving; that Imitrex IM was “quite useful” for [her] symptoms; that she was “volunteering with a dog rescue” in her free time; and that she was even “hoping to do occasional legal [work] at a friend’s firm.” Therefore, this after-acquired hearing evidence showed continued improvement in [her] condition rather than a precipitous decline that would cause the ALJ to abandon the outcome of his decision.” Furthermore, Plaintiff had offered no good cause for the after-acquired records. See Beety-Monticelli, 343 F. App’x at 747. The appointment recorded in the post-hearing note occurred just 11 days after the ALJ hearing and there was no indication that Plaintiff had requested the record be held open. Finally, the court held that substantial evidence supported ALJ’s determination that Plaintiff’s statements concerning the intensity, persistence, and limiting effects of her symptoms were not credible due to inconsistency with her activities of daily life. The court affirmed the district court’s judgment.

Chalfant v. Commissioner Social Security, 737 Fed. App’x 625 (3d Cir. 2018)

A pro se Plaintiff alleged a closed period of disability from 2004 to 2012 due to disabling knee and back pain resulting from injuries and disabling depression, headaches and memory loss, the last two of which he attributed to surgery that he had to remove a brain tumor. He appealed his district court denial but did not directly challenge any of the district court’s findings Rather, he asserted his previous counsel failed to submit various medical records to the ALJ.

The court found that this assertion did not state a claim for relief in this context. Further, the court noted that all of Plaintiff’s treating sources had opined that he could work during the relevant time period. Though one of these doctors submitted an opinion at the district court level that after a subsequent review of records he now believed that Plaintiff was unable to perform any type of work during the relevant time period, the court found that the district court had properly rejected it. Though recognizing it could remand to the ALJ for further consideration if this opinion was found to be “new and material”, the court explained the doctor’s more recent opinion had been based upon records which were in front of the ALJ and was therefore not “new.” Further, Plaintiff had not shown good cause for why it was not presented to the ALJ. Though he alleged that his previous counsel had been negligent in not requesting a continuance to obtain the opinion, the court found in any event the more recent opinion was not “material.” The court explained that the most recent opinion conflicted with every other treating opinion and his own contemporaneous notes. The treating doctor did not acknowledge or address this discrepancy. The court, recognizing Plaintiff had waived the issues by not raising them at district court, nevertheless briefly addressed Plaintiff’s argument that the ALJ erroneously relied upon an orthopedist’s treatment note to characterize the success of his brain surgery and erroneously misstated that Plaintiff had never had specialized psychological treatment. The court explained that in both cases the ALJ did not solely rely upon these facts to support his findings. Rather, they were based upon the absence of any detailed medical records supporting treatment for these conditions. Despite the ALJ’s misstatement sufficient evidence supported finding that Plaintiff’s depression was not disabling with notes during the relevant time period describing it as “stable” and “resolved.” Thus, even if these issues were preserved for review, it would not provide a basis for relief. The court affirmed the district court’s judgment.

Jacobs v. Social Security Administration, 737 Fed. App’x 56 (3d Cir. 2018)

A pro se Plaintiff had received children’s supplemental security income until her 18th birthday. She appealed her district court denial on the basis that the ALJ erred in her adult redetermination finding that she could work so long as it involved only simple, routine, repetitive tasks, and did not require interaction with the public. Plaintiff submitted new evidence to the district court.

Though she did not allege any specific legal error in her informal brief, the court nevertheless reviewed the record to determine whether the ALJ’s decision was supported by substantial evidence. The court found that the district court did not err in finding that subsequent evidence could not be considered because the only proper issue before the Court was whether she was disabled prior to May 15, 2014, the date of the ALJ’s decision. The Court further found that substantial evidence supported the ALJ’s denial explaining that he thoroughly evaluated the medical and other evidence. The ALJ relied upon the opinion of non-examining consultants and was not required to give greater weight to her reports of her daily functioning. Generally, the court found that only a conservative and routine outpatient treatment approach to her impairments showed that she was not so impaired that she was incapable of some kind of work. The court affirmed the district court’s judgment.

Hubert v. Comm’r Soc. Sec., No. 17-2365, 2018 U.S. App. LEXIS 25417 (3d Cir. Sep. 7, 2018)

Claimant was 50 years old and previously worked as a stockbroker, day trader, personnel recruiter, and occasional basketball referee. He suffered a head injury playing basketball in 1993, which caused him to lose his sense of smell but did not prevent him from working, and he sustained a second head injury in a fight in May 2010, which triggered migraine headaches and memory losses an made him prone to emotional outbursts. In April 2011, he stopped working because of these problems. Shortly thereafter he began treating with a psychologist and psychiatrist. At the request of the Social Security Administration, he was also examined by a psychologist. Plaintiff appealed his district court denial on the basis that; (1) the ALJ did not assign enough weight to the opinions of his treating psychiatrist and the Agency’s consultative examiner; and (2) the ALJ wrongly relied on the VE’s testimony because the VE was not given a proper hypothetical about his work abilities and the VE’s testimony was inconsistent with the Dictionary of Occupational Titles (DOT).

The court rejected his arguments. First, the Court found that the ALJ properly discounted Plaintiff’s treating psychologist’s opinion because it was contradicted by his daily activities, by the opinions of the non-examining consultants that he could perform simple tasks, and by the treating psychologist’s own conclusion that he “had only moderate difficulties with simple tasks.” Given this conflict in the record, the ALJ was entitled to consider the complete medical record and to assign different weight to conflicting opinions. See Morales v. Apfel, 225 F.3d 310, 317 (3d Cir. 2000) (“Where . . . the opinion of a treating physician conflicts with that of a non-treating, non-examining physician, the ALJ may choose whom to credit[.]”) The court also found that the ALJ properly disregarded the opinion of the Agency’s consultative examiner because she had considered it at length and found it inconsistent with Plaintiff’s daily activities. Second, the Court found that as Plaintiff had not raised any issue with respect to the vocational expert’s testimony at the District Court, this issue was waived upon appeal. The court affirmed the district court’s judgment.

Tracey v. Comm’r of Soc. Sec., 2019 U.S. App. LEXIS 1982, __ Fed. Appx. __ (3d Cir. Jan. 22, 2019)

Plaintiff filed claims for disability insurance benefits and supplemental security income; he was found capable of performing light exertional work with occasional postural limitations and occasional handling and fingering with the right upper extremity along with limitations to simple instructions and judgments and occasional social interactions. The ALJ denied benefits at step 5, in part relying upon the vocational expert’s testimony that he could perform the duties of a conveyor line bakery worker, which was affirmed by the district court. On appeal, Plaintiff argued that he could not perform this job with limitations to occasional handling and fingering with the right upper extremity and a simple mental RFC.

The court rejected Plaintiff’s argument that “’there is simply no evidence of record to support the Commissioner’s position that an individual can work on a full-time sustained basis as a conveyor line bakery worker without using their dominant upper extremity on more than an occasional basis.’” The court found the ALJ’s finding that Plaintiff could perform the job of conveyor line bakery worker was supported by substantial evidence because: (1) the VE provided the job in response to the hypothetical with the reaching, handing, and mental limitations contained within the RFC; (2) the DOT’s job description starts with the qualifier “[p]erforms any combination of following tasks. . .” and there are elements of the job that would not require more than occasional use of the right upper extremity (e.g., “reads production schedule or receives instructions regarding bakery products that require filling and icing” and “notifies supervisor of malfunctions”); and (3) the SCO states the job requires occasional handling and no fingering. Regarding the mental limitations, the court found (1) the DOT assigned the conveyor line bakery worker the lowest rating in the “people” category, defined as “taking instructions-helping”; and (2) the VE identified the position in response to the ALJ’s hypothetical that mirrored the ALJ’s RFC. The court affirmed the district court’s judgment.