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


5-14-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-4088




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Recommended Citation
"Salerno v. Comm Social Security" (2004). 2004 Decisions. Paper 704.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/704


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                                                                 NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT


                                      No. 03-4088


                              LINDA ELROD SALERNO,
                                               Appellant
                                       v.

                            JO ANNE B. BARNHART,
                       COMM ISSIONER OF SOCIAL SECURITY
                                  ____________

             APPEAL FROM THE UNITED STATES DISTRICT COURT
              FOR THE WESTERN DISTRICT OF PENNSYLVANIA
                           (D.C. Civ. No. 02-cv-01678 )
                  District Judge: Honorable Robert J. Cindrich
                                  ____________

                       Submitted Under Third Circuit L.A.R. 34.1(a)
                                     May 11, 2004

               Before: NYGAARD, McKEE, and WEIS, Circuit Judges.

                                  (Filed May 14, 2004)
                                     ____________

                                       OPINION


WEIS, Circuit Judge.

             The claimant in this SSI Disability benefits case is a 54 year-old woman.

She worked in a delicatessen for a number of years until 1994 when she was discharged



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because of a reduction in the store’s work force. She then went to South Carolina where

she worked in a cafeteria for about a year and returned to Pittsburgh and cared for her

granddaughter from 1996 to 1998.

              Claimant has been diagnosed with bronchial asthma/COPD, hypertension,

hyperlipidemia, chest pains secondary to angina and chronic alcoholism. She applied for

disability benefits in February 2000. After a hearing before an ALJ, the claim was

denied. The Appeals Council vacated the unfavorable decision and remanded, essentially

for re-evaluation of the medical evidence as to whether the claimant could perform

“light” or only “sedentary” work.

              A second hearing before the ALJ resulted in a denial once again. On this

occasion, a medical expert, Dr. Daniel Nackley, who had not examined the claimant but

was present during the hearing, opined that she was capable of performing “light” work.

Observing that “the claimant is not highly credible,” the ALJ also stated that the reduction

of capability to light work as stated in Dr. Nackley’s assessment, “is well supported by the

objective medical evidence and the clearly credible functional limitations.”

              The Appeals Council affirmed and the claimant then filed an appeal in the

United States District Court for the W estern District of Pennsylvania.

              The District Court carefully reviewed the record and its opinion discusses

the medical evidence in detail. We see no need to repeat this analysis. Our independent

review of the record leads us to agree with the assessment made by the District Court in



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concluding that the ALJ’s decision was supported by substantial evidence.

              In her brief, the claimant suggest that this Court should adopt language in

Smith v. Schweiker, 

, 345 (4 th Cir. 1986), limiting the effect of a non-

examining physician’s report in establishing substantial evidence. We conclude that the

Smith case is not applicable to the facts of the case before us. In addition, we do not read

that opinion as being as sweeping as the claimant asserts.

              We are satisfied that the District Court’s very thorough opinion correctly

decided the issues in this case. Consequently, we will affirm the judgment of the District

Court.




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