Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-3-2002

Thompson v. Comm HHS
Precedential or Non-Precedential: Non-Precedential

Docket No. 01-4022




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Recommended Citation
"Thompson v. Comm HHS" (2002). 2002 Decisions. Paper 317.
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                             NOT PRECEDENTIAL

             IN THE UNITED STATES COURT OF APPEALS
                     FOR THE THIRD CIRCUIT

                          No. 01-4022

                  WINNIE THOMPSON, Appellant

                                 v.

     WILLIAM A. HALTER, ACTING COMMISSIONER SECRETARY OF
       HEALTH AND HUMAN SERVICES; LARRY G. MASSANARI,
               COMMISSIONER OF SOCIAL SECURITY
              ____________________________________

        On Appeal From the United States District Court
            For the Eastern District of Pennsylvania
                  (D.C. Civ. No. 01-cv-00974)
          District Judge: Honorable Herbert J. Hutton
            _______________________________________

           Submitted Under Third Circuit LAR 34.1(a)
                          May 20, 2002
   Before: BECKER, Chief Judge, GREENBERG, Circuit Judges,
    and BARZILAY, Judge, U.S. Court of International Trade.

                     (Filed June 3, 2002)
                    _______________________

                            OPINION
                    _______________________

BECKER, Chief Judge.
     This is a social security disability case in which the plaintiff, Winnie Thompson,
made an unsuccessful application for disability insurance benefits and supplemental
security income under Titles II and XVI, respectively, of the Social Security Act. 42
U.S.C. 401-433, 1381-1383f. The Administrative Law Judge (ALJ) decided that
Thompson was not disabled because she could perform her past relevant work as an
office cleaner. This is an appeal from an Order of the District Court for the Eastern
District of Pennsylvania granting the Commissioner of Social Security’s motion for
summary judgment and denying Thompson’s motion for summary judgment in her action
pursuant to 42 U.S.C. 405(g) and 1383(c)(3), for judicial review of the final decision
of the Commissioner of Social Security. For the reasons that follow we are satisfied that
the Commission’s decision was supported by substantial evidence, and we affirm.
                                I.
     Thompson was sixty-one years old at the time of the ALJ’s decision. She has a
seventh grade education, and last worked as an office cleaner at TV Guide headquarters
from 1988 to 1991, where she took care of the executive floor, making sure that the
bathrooms were stocked and the trash cans were emptied. She also checked and stocked
the first floor bathroom, checked the lobby for trash, and checked the doors for
fingerprint smudges. The gravamen of Thompson’s case is that she was entitled to
benefits on account of her poor vision.
     Thompson’s brief describes her problem in most dramatic terms:
                         After December 31, 1991, when the contract for TV
          Guide was lost, she could not do her work elsewhere. She
          was having problems in her left eye, and most of the vision in
          her right eye was gone.

                        From December 31, 1991 through 1995 she had very
          little vision in the right eye. It was as though the room was
          full of smoke and she had to fight her way through the smoke
          to be able to see anything. She could not read with her right
          eye. The vision in her left eye was not clear. She could see a
          little with glasses, but could not read or see anything up
          close. Things farther away were blurry and she could not
          make out detail. She wore dark glasses to protect her eyes
          from the sun. On September 4, 1996, she had corneal
          transplant surgery on the right eye.

                         After her right corneal transplant, the vision in her left
          eye deteriorated to the point where she could not see anything
          looking straight ahead. If she were to cock her head back and
          look down she could see a little something underneath. The
          vision in her right eye was better than it had been, but never
          became clear, and she saw everything double. She tried three
          different prescriptions of eye glasses, but was not able to
          wear them comfortably. When she took them off her vision
          was even more blurry.

                         She was only able to continue working at TV Guide
          because she knew where everything was. She did her job
          from memory. She could not do that elsewhere. Her
          coworkers understood her situation and made special
          accommodations that would not be available elsewhere. She
          could not see well enough to pick up trash, clean off a desk,
          mop a floor, run a dust mop or vacuum.

                         She cannot shop on her own, because she cannot
          identify the items visually. She goes with her daughter, who
          shops. Her daughter does things around the house such as
          making beds, vacuuming, sweeping, and mopping. To pick
          up something from the floor, she has to get down on her
          knees to be able to see what it is.

     Thompson also makes stark claims in medical terms. Prior to her transplant
surgery, her vision is said to have deteriorated to the point where the vision in her right
eye was 20/400 and 20/70 in her left eye. After the corneal transplant, the vision in her
left eye is said to have quickly deteriorated, accompanied by blurred and double vision.
Visual acuity, measured shortly after surgery on October 1, 1996, was 20/70 on the right
and 20/70-1 on the left, and she had lattice dystrophy also in the left eye, with recurrent
erosion. By December 18, 1996, her central visual acuity, with best correction, was
reported as 20/70 on the right and 20/800 on the left, and her percent of visual efficiency
as 48% on the right and less than 12% on the left. According to a medical note,
Thompson "had a history of lattice corneal degeneration bilaterally, with progressive
blurring of vision. She will need a corneal graft also for the left eye." By March 4,
1997, the vision in her right eye was reported as 20/200.
                               II.
     Thompson’s legal argument is essentially that the ALJ erred in finding that she
could return to her past relevant work as an office cleaner, an unskilled job performed at
the sedentary to light to medium level of exertion, and that the ALJ failed to give
appropriate weight to the medical evidence and her testimony. Unfortunately for
Thompson, her medical evidence is not only tenuous, but also seriously undermined by
other medical evidence in the record.
     First, as the Magistrate Judge observed, much of the notes and records of Dr.
Sulewski on which Thompson relies are illegible (or at least unintelligible). Second, the
reports of both Dr. Sulewski and Dr. Nicklin, Thompson’s family physician, indicate that
she was in fact doing quite well. For example, Thompson told Dr. Nicklin that she was
doing domestic work during this period, and that she was walking twenty blocks a day.
If so, Thompson’s vision problem was not so severe that it prevented her from doing her
past relevant work, in which case she was not entitled to disability benefits because she
had not shown an onset of disability before December 31, 1995, the relevant date in this
case.
      Moreover, Dr. Sulewski, Thompson’s treating ophthalmologist at the Scheie Eye
Institute, repeatedly stated that the corneal transplant surgery which took place in
September 1996 was "perfectly successful," produced a "great result," and that
Thompson was "doing well" after surgery. According to the records of Dr. Sulewski that
were before the ALJ, Thompson’s best corrected vision in her right eye after surgery was
recorded as follows: 20/40 between October and December 1996, 20/25 in March 1997,
and 20/20 in November 1997.
      In October 1996, Dr. Sulewski re-examined Thompson, noting that the sutures in
her right eye were intact, the graft was clear, and her right eye was doing well. From
October 1996 to November 1996, he found that Thompson’s vision in her right eye was
20/40. Dr. Sulewski consistently reported that Thompson’s right eye was "doing well."
In March 1997, Thompson complained of "cobwebs" and floaters in her right eye.
However, Dr. Sulewski noted that a new prescription for glasses would correct the vision
in Thompson’s right eye to 20/25.
      In September 1997, Dr. Sulewski noted that surgery on Thompson’s right eye had
produced a "great result," and that her left cornea was cloudy secondary to lattice corneal
dystrophy. In November 1997, Dr. Sulewski indicated that the corrected vision in
Thompson’s right eye was 20/20; he did not record corrected vision in the left eye. Most
importantly, Dr. Sulewski never opined that Thompson could not work. Thompson
argues that a statement of disability by a claimant’s doctor is not essential to finding a
claimant disabled. While the absence of such a statement is not dispositive of the issue
of disability, it is surely probative of non-disability. See Hutton v. Apfel, 

(8th Cir. 1999) (a doctor’s lack of physical restrictions on a claimant militates against a
finding of disability); Dumas v. Schweiker, 

(2d Cir. 1983) (the absence of
indications in the record that an impairment was so severe that it rendered the claimant
unable to work is probative evidence of non disability).
      For all these reasons, we believe that the ALJ’s decision is supported by
substantial evidence. Thompson argues that the "ALJ misunderstood the notes of Dr.
Sulewski," but does not provide any factual support for this contention. She suggests
that the ALJ should have requested a consultative examination, but the ALJ’s duty to
develop the record does not require a consultative examination unless the claimant
establishes that such an examination is necessary to enable the ALJ to make the disability
decision. 20 C.F.R. 404.1517, 416.917; Turner v. Califano, 

, 671 (5th
Cir. 1977). Here, based on the existing medical records and the opinions of Thompson’s
doctors, the ALJ was entitled to decide that Thompson’s vision impairment did not
prevent her from doing her past relevant work. Thompson could have obtained a
comprehensive letter from Dr. Sulewski clarifying his views on Thompson’s visual
acuity but no such document is in the record. The decision to order a consultative
examination is within the sound discretion of the ALJ, see Jones v. Bowen, 

,
526 (5th Cir. 1987), and we find no abuse.
      Moreover, Thompson’s subjective complaints are not consistent with the medical
evidence. She testified that she was unable to read labels in the grocery store or to pick
up objects from the floor, but she also testified that she did not wear the glasses
prescribed by Dr. Sulewski because they made her eyes feel "tight." Dr. Nicklin
consistently described Thompson as doing "well," and Thompson reported to Dr. Nicklin
that she "[felt] good." Additionally, after her eye surgery, Dr. Nicklin reported that
Thompson resumed her walking one or more hours every other day, and that she
performed aerobics classes and domestic work.
                                III.
      In short, because the objective medical evidence and Thompson’s self reported
activities contradicted her testimony of disabling vision, the ALJ, as the finder of fact,
had substantial evidence from which to conclude that Thompson did not suffer from
disabling limitations. Credibility determinations as to a claimant’s testimony regarding
her limitations are for the ALJ to make.
      We need not burden the record with a recitation of the well-known principles that
govern review in this type of case. Suffice it to say that, based upon the foregoing
discussion, Thompson failed to prove that she was disabled as defined in the Act. The
principal issue is whether, at step four of the sequential evaluation process, Thompson
proved that her vision impairment precluded her from doing her past relevant work. 20
C.F.R. 404.1520(e), 416.920(e). Here, the objective medical evidence, the evidence
that Thompson only stopped working because her company lost its cleaning contract with
TV Guide, the evidence that she worked as a cleaner after her layoff, and the evidence of
her activities of daily living constituted substantial evidence that Thompson could do her
past relevant work as a cleaner. Thus, the ALJ properly found that Thompson was not
disabled.
     The Judgment of the District Court will be affirmed.
                         __________________________
TO THE CLERK:
     Please file the foregoing Opinion.
                              BY THE COURT:

                              /s/ Edward R. Becker
                              Chief Judge