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


3-13-2002

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Precedential or Non-Precedential:

Docket 1-3181




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Recommended Citation
"Cherry v. Comm Social Security" (2002). 2002 Decisions. Paper 172.
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NOT PRECEDENTIAL

       UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT



                             No. 01-3181



                             KIM CHERRY,
                                     Appellant

                                 v.

                         JO ANNE B. BARNHART,
                   COMMISSIONER OF SOCIAL SECURITY*

          *Substituted pursuant to Fed. R. App. P. 43(c)(2)


          On Appeal from the United States District Court
              for the Western District of Pennsylvania
                (D.C. Civil Action No. 01-cv-00279)
              District Judge: Hon. Gary L. Lancaster


             Submitted Under Third Circuit LAR 34.1(a)
                          February 7, 2002

Before:   SLOVITER, AMBRO, Circuit Judges, and SHADUR, District Judge

                       (Filed: March 12, 2002)



                         OPINION OF THE COURT
SLOVITER, Circuit Judge.
     Kim Cherry filed a claim for Disability Insurance Benefits with the
Social Security
Administration on June 3, 1998. After her application was denied
administratively, she
sought a hearing. The Administrative Law Judge ("ALJ") determined that
Cherry was
not disabled by finding that Cherry could perform the exertional and non-
exertional
requirements of certain sedentary jobs, which exist in significant numbers
in the
economy. The Appeals Council denied Cherry's request for review,
rendering the ALJ's
decision final.
     Cherry then filed suit in the United States District Court for the
Western District of
Pennsylvania which granted summary judgment in favor of the Commissioner
of Social
Security. Cherry appeals. We will affirm.
                                I.
     Because we write solely for the parties, we need not set forth a
detailed recitation
of the background for this appeal and will limit our discussion to
resolution of the issues
presented.
     Cherry, born on May 1, 1958, is considered a younger individual under
the
regulations. 20 C.F.R.    416.963(c) (2001). She graduated from high
school and
attended one year of college. She worked as a temporary passport clerk
for a few weeks,
and then as a temporary proofreader for a few weeks in 1998 and 1999
respectively.
     Cherry has admitted herself for psychiatric treatment several times.
She has been
treated on various occasions for depression and alcohol and drug abuse.
She has been
diagnosed with obsessive/compulsive disorder. Cherry has tried to commit
suicide, and
in at least one report has linked her current depression to childhood
sexual abuse. She has
also linked her depression to the stress of single-motherhood. She has,
however,
responded well to treatment, and upon various discharges has received GAF
assessments
of 70, 65, and 55. GAF scores in the range of 61-70 indicate "some mild
symptoms [of
depression] or some difficulty in social, occupational, or school
functioning." Diagnostic
and Statistical Manual of Mental Disorders ("DSM IV") 34 (American
Psychiatric Assoc.
2000). GAF scores in the 51-60 range indicate moderate impairment in
social or
occupational functioning. 

responded positively to
therapy, as well as
medication, particularly when she abstains from drug use.
     In January 1997, Dr. Ismal performed a psychiatric evaluation at the
request of the
Commissioner. After some mental testing, Dr. Ismal diagnosed major
depression
recurrent and rated Cherry's GAF at 65. In February 1997, Douglas
Schiller, Ph.D., a
state agency psychologist, reviewed the evidence of record and found
Cherry was "not
significantly limited" in the majority of mental areas related to work,
and "moderately
limited" in some areas, such as maintaining concentration for extended
periods of time,
accepting criticism, and setting goals. In November 1998, Stephen
Pacella, Ph.D., a
psychologist, evaluated Cherry and observed that she was non-psychotic and
that her
thinking was clear and coherent. Considering Cherry's history of
depression and drug
use, Dr. Pacella doubted her ability to attend to tasks and work at a
consistent pace.
However, Dr. Pacella also noted some inconsistencies between what Cherry
told him and
what her past medical records reported. He observed that she seemed
"overly-concerned
that [he] accept the gravity and authenticity of her complaints," and that
she made a "poor
effort" on the mental status exam. App. at 239-40. In December 1998, a
state agency
psychologist reviewed the record evidence, including Dr. Pacella's report,
and concluded
that Cherry had no significant limitation to moderate limitation of
psychological
functioning, and that she was not precluded from performing substantial
gainful work by
her depressive disorder or substance abuse.
     Cherry has also had persistent back problems. She has been treated
for disc
herniation, and was recovering from that surgery (a discectomy) in 1999.
However, she
states that she still experiences constant pain. Cherry testified that up
to twice a day she
performs exercises for 15 minutes at a time for her back problems. In
September 1996,
Dr. Antin, a treating physician, estimated that Cherry could stand or walk
between 2 to 6
hours in an 8 hour day, and sit for 6 or more hours in an 8 hour day. Dr.
Antin found no
impairment in Cherry's ability to push or pull, no environmental
limitations, and found
that Cherry could occasionally make various postural changes.
     On May 19, 1999, shortly after Cherry's discectomy, Dr. Eric Minde
diagnosed
her with "low back derangement" and radiculopathy. He opined Cherry could
not be
gainfully employed and did not anticipate a change in her prognosis for
several months.
Dr. Ike, Cherry's treating physician, assessed her progress for recovery
around the same
time as "good." Further, Dr. Ike completed a physical assessment that
Cherry could lift
and carry 10 pounds, and stand and walk for one to two hours. Dr. Ike did
not limit
Cherry's ability to sit or push and pull.
     A vocational expert viewed all the evidence of record and was present
for Cherry's
testimony. The ALJ asked the vocational expert to consider Cherry's age,
education and
work history, and to assume that Cherry was limited to sedentary work
without balancing,
stooping, kneeling, crouching, or climbing. Based upon this hypothetical,
the expert
opined that the worker would be able to perform the sedentary occupations
of assembler,
records clerk, and stock and inventory clerk, which exist in significant
numbers in the
economy.
                                II.
     This court reviews the ALJ's findings of fact and affirms the
Commissioner's
decision if the factual findings are substantially supported by evidence
in the record. See
42 U.S.C.    405(g) (2001); Richardson v. Perales, 

, 401
(1971). Substantial
evidence is "more than a mere scintilla. It means such relevant evidence
as a reasonable
mind might accept as adequate to support a conclusion." 

quotation
omitted); Plummer v. Apfel, 

, 427 (3d Cir. 1999).    The ALJ
found that there
are a broad range of sedentary positions which Cherry can perform. These
findings are
substantially supported by the evidence presented.
     The ultimate conclusion of disability is reserved for the
Commissioner. 20 C.F.R.
  404.1527(e)(1). The Regulations provide a five-step analysis process to
be followed
when reviewing the question of whether a claimant is disabled. 20 C.F.R.
  404.1520;
Welch v. Heckler, 

, 268-69 (3d Cir. 1986). At step three, the
ALJ found that
Cherry does not have an impairment or combination of impairments that
satisfies any of
the listed impairments in the Listing of Impairments, Appendix 1. At step
four, the ALJ
found that Cherry would be able to meet the exertional and mental demands
of the
sedentary jobs of assembler, 156,000 jobs nationwide, records clerk,
36,000 jobs
nationwide, and stock and inventory clerk, 31,000 jobs nationwide. The
ALJ concluded
that based on these findings, Cherry is not disabled within the meaning of
the Social
Security Act.
A. Step three
     The evidence substantially supports the ALJ's finding that Cherry
does not have an
impairment or combination of impairments that satisfies the listed
impairments in the
Listing of Impairments, Appendix 1. Cherry presented no clinical proof
that she has a
musculoskeletal or psychiatric impairment satisfying the criteria of any
section within
Listing Sections 1.00 or 12.00. Therefore, the record substantially
supports the ALJ's
findings on this point.
B. Step four
     The evidence substantially supports the ALJ's finding that Cherry is
able to
perform certain sedentary jobs. The ALJ considered the reports of both
examining and
non-examining physicians, and relied upon the opinion of Dr. Ike (a
treating physician)
that Cherry is capable of sedentary work. Although Dr. Pacella, a
psychologist who saw
Cherry only once, had concerns about Cherry's ability to function in
competitive
employment, Dr. Pacella also noted that Cherry made "little effort to
maintain
concentration and attention,"and seemed "overly concerned that [he] accept
the gravity
and authenticity of her complaints." Based on Dr. Pacella's observations,
and the ALJ's
own observations of Cherry on the witness stand, the ALJ properly relied
on the record as
a whole in reaching the conclusion that Cherry is able to perform certain
sedentary jobs.
     The remainder of the evidence supported the ALJ's finding on this
point because it
presented the following information and opinions: (1) Cherry could
maintain a daily
routine and perform tasks like shopping, cooking, cleaning, taking the bus
and
maintaining her hygiene; (2) though experiencing chronic pain, Cherry
could lift and
carry 10 pounds, could sit for extended periods of time, could stand or
walk for 2 hours at
a time, and could push and pull; (3) Cherry was functional, despite her
depression, and
responded well to therapy; (4) when Cherry remained drug-free she
responded well to
therapy; and, (5) Cherry had access to antidepressant medication. This is
evidence that,
in the language of Perales, a "reasonable mind might accept as adequate to
support [the
ALJ's] 

.

                               III.
     For the reasons set forth above, we will affirm the judgment of the
District Court.


TO THE CLERK:

          Please file the foregoing opinion.



                    /s/ Dolores K. Sloviter
                    Circuit Judge