Filed: Jan. 09, 2004
Latest Update: Mar. 02, 2020
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 1-9-2004 Livermore v. Comm Social Security Precedential or Non-Precedential: Non-Precedential Docket No. 03-1769 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Livermore v. Comm Social Security" (2004). 2004 Decisions. Paper 1101. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/1101 This decision is brought to you for free and open ac
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 1-9-2004 Livermore v. Comm Social Security Precedential or Non-Precedential: Non-Precedential Docket No. 03-1769 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Livermore v. Comm Social Security" (2004). 2004 Decisions. Paper 1101. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/1101 This decision is brought to you for free and open acc..
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Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
1-9-2004
Livermore v. Comm Social Security
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-1769
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
Recommended Citation
"Livermore v. Comm Social Security" (2004). 2004 Decisions. Paper 1101.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/1101
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 03-1769
___________
LOUISE A. LIVERMORE,
Appellant
v.
JO ANNE B. BARNHART,
COMM ISSIONER OF SOCIAL SECURITY
On Appeal from the United States District Court
for the Western District of Pennsylvania
District Court Judge: The Honorable Donetta W. Ambrose
(D.C. No. 02-1222)
___________
Submitted Under Third Circuit L.A.R. 34.1(a)
October 23, 2003
Before: ALITO, FUENTES and BECKER, Circuit Judges.
(Filed January 9, 2004)
________________________
OPINION OF THE COURT
________________________
1
FUENTES, Circuit Judge:
Livermore appeals from the decision of the United States District Court for the
Western District of Pennsylvania, affirming the Commissioner of Social Security’s denial
of Livermore’s claim for disability insurance benefits (“DIB”) under Title II of the Social
Security Act (the “Act”), 42 U.S.C. §§ 401 et seq. Our review is limited to determining
whether the Commissioner’s final decision was supported by substantial evidence.
Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999). We now affirm the District Court’s
decision.
I.
Livermore, a registered nurse, suffers from persistent asthma and related
symptoms, including fatigue, coughing, and shortness of breath. On November 20, 2000,
Livermore filed an application for DIB, alleging that she had been disabled since
September 4, 1990. After her application was denied, Livermore requested a hearing
before an ALJ. The ALJ found that although Livermore suffered from an impairment as
of December 31, 1994, her condition did not constitute a disability of such severity that
she was entitled to receive benefits. The ALJ concluded that as of her date last insured,
Livermore could perform her previous relevant work as a registered nurse, at all
exertional levels, with the sole limitation that she could not be exposed to cleaning
supplies (which triggered her asthma).
Livermore’s request for review by the Social Security Appeals Council was
denied, making the ALJ’s opinion the final decision of the Commissioner. Livermore
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then filed an action in the District Court. Livermore and the Commissioner filed cross-
motions for summary judgment. On February 18, 2003, the District Court granted the
Commissioner’s motion for summary judgment, affirming the Commissioner’s
determination that Livermore was not disabled prior to the expiration of her insured
status. Livermore now appeals this decision.
II.
Livermore argues that the District Court erred in finding that she did not suffer
from a severe impairment. However, we agree with the District Court’s conclusion that
substantial evidence supports the ALJ’s finding that Livermore was capable of
performing her past work as a registered nurse before the expiration of her DIB. App. 16,
17.
Under the Act, a claimant for DIB must show that he has a physical or mental impairment of such
severity that:
he is not only unable to do his previous work but cannot, considering his age,
education, and work experience, engage in any other kind of substantial gainful
work which exists in the national economy . . . .
42 U.S.C. § 423(D)(2)(A). According to the District Court, Livermore apparently
concedes that her asthma does not meet the definition of a “severe impairment” under the
Social Security regulations. Dist. Ct. Op. 8. Alternatively, an impairment is considered
severe if it is “of magnitude sufficient to limit significantly the individual’s ability to do
basic work activities.” Santise v. Schweiker, 677 F.2d 925, 927 (3d Cir. 1982); see also
20 C.F.R. §§ 404.1521(a), 416.921(a). In addition, because Livermore’s insurance
3
coverage for disability benefits expired on December 31, 1994, she must establish her
disability on or before that date. See Esposito v. Apfel, CA 99-771, 2000 U.S. Dist.
LEXIS 1720, *30 (E.D. Pa. Feb. 24, 2000) (“The last insured date is a statutory cut-off
which precludes consideration of any new impairments which develop thereafter”); see
also 20 C.F.R. §§ 404.101 and 404.132.
None of the medical evidence Livermore offers supports her claim that she was
disabled or incapable of performing her past work during the relevant period. The
evidence, in the form of medical opinions, largely pertains to Livermore’s condition more
than six years after her insured status expired. App. 202, 230. These opinions (which
may reflect a worsening of Livermore’s condition after expiration of her DIB) suggest
that Livermore’s ability to work could be limited by “significant exposure” to certain
environmental occurrences, such as dust mites, pollens, animals, and strong odors or
exposure to “unusual” fumes, dust, or pollens. Id. However, Livermore’s medical
records from before the expiration of her insured status indicate only two acute asthma
attacks, both triggered by prolonged exposure to cleaning solutions, and both controlled
with treatment. Therefore, the District Court found that “significant exposure” to
cleaning supplies was the only consistent trigger of Livermore’s asthma attacks during the
relevant period. Dist. Ct. Op. 18; App. 16. Further, Livermore offers no evidence to
suggest that her past job as a nurse would subject her to such exposure.
Because nothing in the record supported a finding that Livermore’s asthma was
so severe as to prevent her from working, the District Court held that substantial evidence
4
supported the ALJ’s conclusion as to the minimal severity of Livermore’s impairments
before expiration of her DIB. Dist. Ct. Op. 10; App. 14-15. We agree, and affirm the
decision of the District Court.
III.
Livermore also argues that the ALJ reached an erroneous conclusion based on the response of
a vocational expert (“VE”) to a hypothetical question concerning whether employment
exists in the national economy that could accommodate someone with Livermore’s
impairments. The ALJ posed a hypothetical question to the VE that included a limitation
from exposure to cleaning agents. In response, the VE testified that this limitation would
not prevent Livermore from performing her past work. App. 254-55. Livermore argues
that the hypothetical was inadequate because it did not include the additional limitations
on her ability to work that were identified by the Social Security Administration’s
medical consultant (i.e., limitations from “concentrated exposure” to various
environmental conditions, such as extreme temperatures, wetness, humidity, odors dusts,
and gases). App. 195, 198.
Because we found, above, that substantial evidence supports the ALJ’s conclusion
that Livermore was not disabled before the expiration of her DIB, we need not consider
this issue. See 20 C.F.R. § 404.1520 (“If we can find that you are disabled or not
disabled at a step, we make our determination or decision and we do not go on to the next
step.”). However, we affirm the District Court’s conclusion that the hypothetical was
proper because it “took into account the only consistent trigger of [Livermore’s] asthma
5
attacks” that was identified in the record during the relevant period (i.e., exposure to the
odors of cleaning supplies). Dist. Ct. Op. 13; App. 254-55.
IV.
Finally, Livermore argues that the District Court erred in not employing a medical
expert to seek further consultation due to an incomplete record that could have resulted in
prejudice to Livermore. The District Court stated: “An ALJ has a duty to seek further
consultation if an incomplete record reveals evidentiary gaps which result in prejudice to
the claimant or if medical records contain a conflict of ambiguity that must be resolved.”
Dist. Ct. Op. 16, citing Bell v. Barnhart, 218 F. Supp. 2d 583, 593 (D. Del. 2002) (internal
quotations omitted). We have carefully reviewed the record, and agree with the District
Court that neither of these situations arose during the administrative hearing.
In the District Court, Livermore requested the assistance of a medical expert to
determine if various triggers, other than cleaning supplies, limited her activities to the
extent that she claimed. However, the District Court found, based largely on the long-
term treatment reports of a specialist in allergies and asthma, that the record failed to
support these subjective complaints by Livermore. Dist. Ct. Op. 15-16. The objective
medical evidence on record contained neither evidentiary gaps resulting in prejudice nor
conflicts of ambiguity. Therefore, the ALJ was not required to seek assistance from an
additional medical expert. Dist. Ct. Op. 16.
On appeal, Livermore also argues that additional consultation with a medical
expert was necessary because the record was missing certain reports from four of her
6
physicians, making the record incomplete. Although the Social Security Administration
sought information from three of these sources, the medical reports dated back several
years and had been discarded or destroyed by the physicians. App. 79-80, 175-76.
Livermore further contends that the Administration failed to seek records from the fourth
physician that she identified.
However, although Livermore asserted in her District Court brief that the
testimony of a medical expert was warranted, she failed to argue that the record was
otherwise incomplete because it was missing reports from these four sources. It was also
not until this appeal that Livermore first raised the issue of the Administration not seeking
certain of these medical records. Because Livermore failed to properly raise these
arguments before the District Court, she waived her right to do so on appeal.
Accordingly, for the reasons stated above, we affirm the judgment of the District
Court holding that the Commissioner’s final decision was supported by substantial
evidence.
7
___________________
TO THE CLERK OF THE COURT:
Kindly file the foregoing Opinion.
/s/ Julio M. Fuentes
Circuit Judge
8
