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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.