Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-8-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-4058




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                                                           NOT PRECEDENTIAL

                   UNITED STATES COURT OF APPEALS
                        FOR THE THIRD CIRCUIT


                                  No. 03-4058


                           KENNETH R. ALLISON,
                                            Appellant

                                       v.

             JO ANNE BARNHART, Commissioner of Social Security




                 On Appeal from the United States District Court
                    for the Western District of Pennsylvania
                             (Dist. Ct. No. 02-01370)
                  District Judge: Honorable David S. Cercone



                   Submitted Under Third Circuit LAR 34.1(a)
                                May 14, 2004

          Before: NYGAARD, MCKEE and CHERTOFF, Circuit Judges.

                              (Filed: June 8, 2004)



                                   OPINION


CHERTOFF, Circuit Judge.

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       Kenneth R. Allison appeals from the District Court’s judgment affirming the

Commissioner of Social Security’s denial of his application for a period of disability and

Disability Insurance Benefits under Sections 216(i) and 223 of the Social Security Act

(“Act”). Allison’s appeal essentially challenges the Administrative Law Judge’s (“ALJ”)

finding at step four of the five-step evaluation process promulgated by the Social

Security Administration to determine whether an individual is disabled. See 20 C.F.R. §

404.1520. At step four, the ALJ concluded that Allison retained the residual functional

capacity to perform “light work,” with noted restrictions. For the reasons stated below,

we will affirm the District Court’s judgment.

                                             I.

       Allison was born on January 10, 1959. He has a high school education and past

relevant work experience as an automobile radiator repairman. In his brief, Allison

claims that he was injured in two separate accidents. In the spring of 1997, he sustained

unresolved back and neck injuries as a result of a motor vehicle accident. In mid-July of

1998, Allison suffered an umbilical hernia while lifting a radiator at work. Allison filed

his first claim for disability benefits on November 12, 1999, claiming that he had “scar

tissue in groin area due to double hernia and surgery, high blood pressure, [and]

depression” and that “I have constant pain in the groin.” Tr. at 125. This claim was

denied on March 13, 2000, and Allison did not seek review of that claim.

       In July of 2000, Allison filed a second application for disability insurance


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benefits. In this present application, Allison claims that he had “pain in groin, lower

back and neck.” Tr. at 148. This application was initially denied, and a request for

hearing was timely filed. Allison, represented by counsel, appeared before the ALJ on

March 14, 2002. On April 20, 2002, the ALJ rendered a decision concluding that

Allison was not disabled under the Act. On July 23, 2002, the Appeals Council denied

Allison’s request to review the ALJ’s decision.

       Allison sought judicial review of the adverse decision, pursuant to 42 U.S.C. §

405(g), in the United States District Court for the Western District of Pennsylvania. On

September 3, 2003, the Honorable David S. Cercone granted the Commissioner’s motion

for summary judgment and denied Allison’s cross-motion for summary judgment. This

appeal followed.

                                            II.

       The District Court exercised jurisdiction pursuant to 42 U.S.C. § 405(g), and

appellate jurisdiction is vested in this Court under 28 U.S.C. § 1291. The role of this

Court is identical to that of the District Court; we must determine whether there is

substantial evidence to support the Commissioner’s decision. Plummer v. Apfel, 

, 427 (3d Cir. 1999). Substantial evidence means “‘such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.’” Jesurum v. Sec’y of

the U.S. Dep’t of Health & Human Servs., 

, 117 (3d Cir. 1995) (quoting

Richardson v. Perales, 

, 401 (1971)). “It is less than a preponderance of the


                                             3
evidence but more than a mere scintilla.” 

substantial evidence standard

is a deferential standard of review. Schaudeck v. Comm’r of Soc. Sec. Admin., 

, 431 (3d Cir. 1999).

       The Social Security Administration has promulgated a five-step evaluation process

to determine whether an individual is disabled. See 20 C.F.R. § 404.1520; see generally

. In step one, the Commissioner decides whether the claimant

is currently engaging in substantial gainful activity. If so, the claimant is not eligible for

disability benefits. 20 C.F.R. §§ 404.1520(a) & (b). In step two, the Commissioner

determines whether the claimant is suffering from a severe impairment. If the

impairment is not “severe,” the claimant is not eligible for disability benefits. 20 C.F.R. §

404.1520(c). In step three, the Commissioner evaluates whether the evidence establishes

that the claimant suffers from a listed impairment. If so, the claimant is automatically

eligible for benefits. If the claimant does not suffer from a listed impairment or its

equivalent, however, the Commissioner proceeds to the next step. 20 C.F.R. §

404.1520(d). In step four, the Commissioner examines the claimant’s “residual

functional capacity,” and whether such capacity enables her to perform her past relevant

work. If so, the claimant is not eligible for disability benefits. 20 C.F.R. § 404.1520(e).

Finally, in step five the Commissioner considers whether work exists in significant

numbers in the national economy that the claimant can perform given her medical

impairments, age, education, past work experience, and residual functional capacity. If



                                               4
so, the claimant is not eligible for benefits. 20 C.F.R. § 404.1520(f). In this final step,

“the burden of production shifts to the Commissioner, who must demonstrate the claimant

is capable of performing other available work in order to deny a claim of disability.”

.

       The issues on appeal arise from the ALJ’s determination at step four that Allison

had the residual functional capacity to perform light work.

                                             III.

       Allison argues (1) that substantial evidence does not support the ALJ’s finding

that he had the residual functional capacity to perform light work activity; (2) that the

ALJ accorded inadequate weight to the reports of his treating physicians; and (3) that

substantial evidence does not support the ALJ’s finding that Allison was not fully

credible.

       First, we disagree with Allison’s allegation that the ALJ’s conclusions are not

supported by substantial evidence. The ALJ considered numerous medical records in

rendering his decision, including records and treatment pages from Drs. Daljit Singh,

Kevin O. Garrett, Doris K. Cope, Richard B. Kasdan, and Malcolm Harris; physical

therapy records demonstrating improvement in Allison’s condition; and Allison’s

description of his daily activities. Like the District Court, we are satisfied that the ALJ’s

decision provides sufficient evidence to support his assessment of Allison’s residual

functional capacity to perform a modified range of light work.


                                              5
       Next, we reject Allison’s second contention that the ALJ did not accord adequate

weight to his treating physicians, Drs. Singh and Garrett, for substantially the same

reasons as outlined by the District Court. The ALJ provided sufficient details as to why

he found their opinions to be inconsistent with their own clinical and objective findings.

Tr. at 29-30. While this Court has acknowledged that “greater weight should be given to

the findings of a treating physician than to a physician who has examined the claimant as

a consultant . . . [,] a statement by a plaintiff’s treating physician that [h]e is ‘disabled’ or

‘unable to work’ is not dispositive.” Adorno v. Shalala, 

, 47-48 (3d Cir.

1994). Rather, “the ALJ must weigh the relative worth of a treating physician’s report

against the reports submitted by other physicians who have examined the claimant.” 

see also Jones v. Sullivan, 

, 129 (3d Cir. 1991) (concluding ALJ

correctly determined opinions of treating physicians were not controlling).

       Allison’s third allegation is that the ALJ erred in finding his testimony not to be

credible. We similarly reject this argument in light of the substantial evidence cited by

the ALJ in his review of Allison’s residual functional capacity. An ALJ may reject a

claim of disabling pain where "he [has] consider[ed] the subjective pain and specif[ied]

his reasons for rejecting these claims and [has] support[ed] his conclusion with medical

evidence in the record." Matullo v. Bowen, 

, 245 (3d Cir. 1990). Finally,

we find no credence in Allison’s claim that the ALJ acted inappropriately when he asked

Dr. David Barnhouse, the testifying medical expert, “in your judgment, is the claimant’s


                                                6
testimony regarding his symptoms consistent with the evidence in the record?” App. at

54. Allison cites to no legal authority that suggests that such questioning is

inappropriate. Indeed, the ALJ’s question is entirely proper under 20 C.F.R. § 404.1529,

which states that in determining whether an individual is disabled, “we consider all of

your symptoms, including pain, and the extent to which your symptoms can reasonably

be accepted as consistent with the objective medical evidence and other evidence.” 20

C.F.R. § 404.1529(a) (2004) (emphasis added).

                                            IV.

       We have considered all of the arguments advanced by the parties and conclude

that no further discussion is necessary. Accordingly, the judgment of the District Court

will be affirmed.




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