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


11-16-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3246




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                                                                  NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT

                                       No. 03-3246

                                 DARRELL L. MOODY

                                             v.

                               JO ANNE B. BARNHART,
                                  COMMISSIONER

                                     Darrell Moody,
                                               Appellant

                      Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                                 (Civ. No. 02-cv-08972)
                         District Judge: Clarence C. Newcomer

                        Submitted Under Third Circuit LAR 34.1(a)
                                     June 22, 2004

                          Before: Nygaard, McKee and Chertoff
                                     Circuit Judges

                           (Opinion filed: November 16, 2004)

                                        OPINION

McKee, Circuit Judge.

       Darrel Moody appeals his denial of Disability Insurance Benefits (“DIB”) under

Title II of the Social Security Act, 42 U.S.C. § § 401-433. For the reasons that follow, we

will affirm.


                                            I.
       Moody filed applications with the Social Security Administration for Supplemental

Security Income benefits and Disability Insurance Benefits claiming both mental and

physical disabilities as of April 10, 2000. When the agency denied his application, he

filed for an administrative hearing. After hearing testimony from a vocational expert and

a non-treating physician, the administrative law judge determined that Moody was not

disabled under 20 C.F.R. § 404.1520(f). (R. 8).

       The ALJ’s decision became the final agency decision of the Commissioner when

the Appeals Council found no basis for reviewing it. Sims v. Apfel, 

, 106-

107 (2000), 20 C.F.R. § § 404.981, .900(a)(4)-(5). Thereafter, the district court granted

the Commissioner’s motion for summary judgment thereby concluding that the ALJ’s

decision was supported by substantial evidence. This appeal followed.

       We have jurisdiction under 28 U.S.C. § 1291. We must determine if the district

court was correct in concluding that the Commissioner’s decision was supported by

“substantial evidence.” Substantial evidence is that a properly reasoning person would

accept as sufficient to support a conclusion. It is more than a scintilla, but somewhat less

than a preponderance of the evidence. Ginsburg v. Richardson, 

, 1148 (3d

Cir. 1971).


                                             II.

       “Disability” is defined as:


                                              2
              inability to engage in any substantial gainful activity by
              reason of any medically determinable physical or mental
              impairment which can be expected to result in death or which
              has lasted or can be expected to last for a continuous period of
              not less than 12 months.

42 U.S.C. § 423 (d)(1)(A). In order to be eligible for disability benefits, a claimant must

show that their:

              physical or mental impairment or impairments are 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).


       A five-step analysis is used to determine disability. Plummer v. Apfel, 

, 428 (3d Cir. 1999), 20 C.F.R. § 404.1520(a)(4). In Step 1, the Commissioner

determines whether the claimant is currently engaged in substantial gainful activity. If the

claimant is not involved in such activity, the Commissioner continues to Step 2 and

determines if the claimant suffers from a severe impairment. 1 If the claimant does, the

Commissioner will then evaluate the impairment at Step 3 to see if it equals or exceeds a

listed impairment in Appendix 1 of the Regulations. If the claimant’s impairments are not

comparable to those listed in the Regulations, the Commissioner will go on to Step 4 to




   1
    “Severe impairment” is defined as any impairment or combination of impairments
which significantly limits an individual’s physical or mental ability to do basic work
activities. 20 C.F.R. § 404.1520(c).

                                             3
determine if the claimant is capable of performing his/her past relevant work (“residual

functional capacity”) considering the impairment. If the claimant is deemed not capable

of performing his/her past work, the Commissioner moves on to Step 5 to determine if the

claimant is capable of performing other available work consistent with the claimant’s age,

medical impairments, residual functional capacity and past work experience.

       The ALJ found that Moody had two severe physical impairments but no mental

impairment at Step 2 of the process. Moody’s impairments were not contained in any

listings at Step 3, but the ALJ determined that Moody could not perform any of his past

relevant work at Step 4. At Step 5 the ALJ concluded that Moody was capable of

performing sustained work as a data entry worker and customer service worker and was

therefore not be disabled.

                                           III.

       Moody was 48 years old on June 30, 2000, the date he was last insured.2 He was

honorably discharged from the marines after serving from 1970 to 1974. Following his

discharge, Moody held various positions including telephone operator, a state store clerk

for the Pennsylvania Liquor Control Board, and a part time assistant in the Philadelphia

Community College computer lab. He received an associates degree in business

programming in 1992. Immediately prior to his disability claim he was a part time stock



   2
   In order for a claimant to be entitled to DIB, he/she must show that his impairment
became disabling prior to his last insured date. 42 U.S.C. § 423(a)(1)(A), (c)(1)(B), 20
C.F.R. § 404.101(a), .131(a) (2001).

                                            4
clerk for Eckerd Drugs where he lifted boxes and occasionally mopped. He stopped

working after he developed severe pain in his lower back and left leg. Moody also has a

history of drug and alcohol abuse. (R. 160).

A. Physical impairments

       Moody was first seen for his back and leg pain at a hospital emergency room on

April 10, 2001. A couple of weeks later, he was seen by his primary care physician,

Antonette Kruc, D.O., who prescribed Voltaren, Zydone, and Soma. A subsequent MRI

of Moody’s lumbar and thoracic spine showed a “large paramidline herniated nucleus

pulposus (ruptured or prolapsed intervetebral disk) at L5-S1 and a small disc bulge at L4-

L5.

       Moody applied for disability benefits on July 28, 2000 alleging disability as of

April 14, 2000. On October 31, 2000 Pushpa Thakarar M.D., a state agency consulting

physician, examined Moody. Dr. Thakarar found that Moody had a full range of motion,

and good sitting and standing balance, but diagnosed him with chronic low back pain,

history of sciatica and post-traumatic stress disorder. Dr. Thakarar concluded on a

Medical Source Statement of Claimant’s Ability to Perform Work Related Physical

Activities that Moody could frequently lift, and occasionally carry, 20 pounds. The

doctor also concluded that Moody could stand and walk for 3-4 hours and sit for 8 hours,

had limited ability to push and pull in the lower extremities, and could frequently perform

postural activities, but should avoid humidity and wetness. (R. 171-173).



                                               5
       In May, 2001, Moody was diagnosed with diabetes mellitus, aspiration pneumonia,

hypertension and bipolar disorder during a hospitalization. (R. 210). He also tested

positive for opiates, and was released on June 7 for acute rehabilitation. When released,

Moody was instructed about long-term care of his diabetes and told to follow up for his

blood pressure. (R. 265).3


B. Mental Health History


       According to his disability report, Moody was treated for depression at The Wedge

two and a half years before he applied for disability benefits. (R. 117). On July 27, 2000

during a visit to his primary care physician, Dr. Kruc, Moody reported that he was

depressed, anxious and had homicidal thoughts. Dr. Kruc prescribed Zoloft and Xanax to

treat post traumatic stress disorder. (R. 151).

       Charles Johnson, a state agency psychologist, evaluated Moody on October 25,

2000 and diagnosed him as having an Adjustment Disorder with depressed mood and

Impulse Control Disorder (provisional). In an activities assessment, Dr. Johnson noted

that Moody had fair ability to perform most work related activities. According to Dr.

Johnson, Moody had poor or no ability to interact with supervisors, deal with work related

stress, or understand, remember, and carry out complex job instructions. (R. 163-64).




   3
    Subsequent medical records from October 25, 2001 to the April 2002 hearing are
missing (Appellant’s Br. 8) and were not part of the record.

                                                  6
       Roger K. Fretz, Ph.D, a state agency psychologist, completed a Psychiatric Review

Technique Form on November 20, 2000. Dr. Fretz found that Moody had an adjustment

disorder with depressed mood (R. 176), and noted his history of post traumatic stress

disorder. (R. 178). When rating Moody’s functional limitations in light of these

disorders, he concluded Moody had mild restriction of “activities of daily living” and

moderate difficulties in maintaining social function and concentrating. However, none of

these limitations satisfied the functional criterion. (R. 183). Dr. Fretz noted that many of

Moody’s concerns were physical and concluded that Moody was not “wholly credible.”

(R. 186). Dr. Fretz did not agree with Dr. Johnson’s conclusions regarding M oody’s

limitations (his ability to handle authority and work stresses): Dr. Fretz concluded that

“the record does not support a severe limitation of function in these areas.” (R. 189).

       Moody began treatment in January 2001. Dr. Leon Robinson completed an initial

evaluation of Moody and diagnosed a bi-polar disorder and an avoidant personality

disorder (R. 208). Dr. Robinson stated that Moody described symptoms that met the

description of mania and major depression. (R. 204-205). He prescribed three different

medications. The dosage was adjusted throughout the year.


C. Administrative Hearing Testimony

       At Moody’s administrative hearing, Richard W. Cohen, M.D. testified as an

independent medical advisor based on his review of the medical evidence in Moody’s

medical records. Dr. Cohen testified that Moody did not have any severe mental

                                             7
impairments. (R. 65). Specifically, Dr. Cohen concluded that:

       •      he could not diagnose bipolar disorder because there was insufficient
              evidence of manic episodes and major depression. (R. 55,60);
       •      the evidence of irritability could be caused by the medications that Moody
              was taking. (R. 55, 58, 59);
       •      he also could not diagnose a major affective disorder, periodic explosive
              disorder, post traumatic stress disorder (no symptoms) or paranoia. (R. 56,
              62);
       •      an adjustment disorder is not an axis one psychiatric diagnosis; there is no
              place to put it on the disability form. (R. 56, 58);
       •      Moody has no marked functional limitations (R. 59)

       A vocational expert also testified and concluded that Moody’s skills would be

transferable to sedentary positions such as data entry or customer service.

                                    IV. DISCUSSION

       Moody asserts that: 1) there is insufficient evidence to support the ALJ’s finding

of no mental impairment at Step 2; 2) the ALJ erred in assessing the medical and

testamentary evidence; 3) the ALJ erred in assessing Moody’s residual functional

capacity; and 4) the Commissioner did not meet the burden of proof at Step 5 of the

sequential evaluation process. We disagree.

       The ALJ did not conclude that Moody had a mental impairment because she was

relying on Dr. Cohen’s evaluation of the Moody’s medical records. Dr. Cohen testified

that after evaluating the medical evidence, he could not diagnose any categorically

recognized severe mental impairment. The ALJ considered the “diagnoses” of Moody’s

treating physicians cited in his brief (App. Br. 21-22), but she dismissed them because

they were not supported by sufficient evidence of a mental impairment.

                                              8
       Moody also asserts that the ALJ erred at Step 2 of the sequential evaluation

process because she did not properly evaluate the medical evidence, including Moody’s

symptoms and the limiting effects of his impairments. However, the absence of an

exhaustive listing of all of M oody’s symptoms in the ALJ’s opinion does not constitute

reversible error. The regulation that Moody himself cites states that “[a] physical or

mental impairment must be established by medical evidence consisting of signs,

symptoms, and laboratory findings, not only your statement of symptoms. 20 C.F.R. §

404.1508 (emphasis added). The ALJ relied on the Dr. Cohen’s evaluation of the medical

evidence, including Moody’s symptoms. Dr. Cohen concluded that there were no marked

functional limitations (R. 59), and that some of M oody’s symptoms were likely

attributable to his prescribed medications. (R. 55).

       Moody cites Bailey v. Sullivan, 

(3d Cir. 1989), for the proposition that

a claimant need only make a de minimis showing of a severe impairment at Step 2 of the

sequential 

. However, the language Moody relies upon is dicta.

Moreover, even if it were not, we would still find that Moody failed to satisfy his burden.

       Moody also argues that the ALJ should have considered the combination of his

impairments to find a severe mental impairment. Applicable regulations and case law

cited by Moody refers to the determination of the residual functional capacity at Step 4 of

the sequential evaluation process, and not to the finding of a severe impairment.

       Moody next asserts that the ALJ did not properly assess the medical and



                                              9
testamentary evidence. However, the record suggests otherwise. The ALJ did refer to

Moody’s weekly therapy sessions and to his prescribed medications, (R. 21), and she did

describe findings from some of Moody’s treating sources (the Consortium and Dr.

Johnson) in her opinion. (R. 20). The remaining sources that M oody lists to support his

contention that the ALJ “failed to discuss,”(Appellant’s brief 30-32), is not the type of

“objective medical evidence” that was discussed in Burnett v. Commissioner, 

, 122-23. There, the ALJ neglected to include the appropriate diagnoses. We agree

that the ALJ could have been more explicit regarding Moody’s treating physician. She

merely stated: “I have considered Dr. Johnson’s assessment but I do not accord it much

weight.” (R. 20). Nevertheless, we do not engage in de novo review and there is

substantial evidence to support her conclusion.

         Moody also asserts that the ALJ did not properly weigh and consider his mental

health treatment and she should not have relied upon Dr. Cohen. However, the ALJ did

not err in relying upon Dr. Cohen’s professional opinion. Although it is true that treating

physicians are generally given more weight, an ALJ is not foreclosed from relying upon a

non-examining physician’s opinion. 20 C.F.R. § 404.1527(d). The Regulations allow the

ALJ to rely upon medical opinions and specifically provide that “all evidence from

nonexamining sources [is] opinion evidence.” 20 C.F.R. § 404.1527(f). Moody cites

Morales v. Apfel for the proposition that “[a] single piece of evidence will not satisfy the

substantiality test if the [Commissioner] ignores, or fails to resolve, a conflict created by



                                              10
counterveiling 

(3d Cir. 2000). However, Moody fails to

realize that there was a contradiction among his treating sources (specifically Dr. Johnson

and Dr. Fretz), and the ALJ heard and accepted Dr. Cohen’s evaluation of Moody’s

medical record. Apfel also states: “[w]here . . . the opinion of a treating physician

conflicts with that of a non-treating, non-examining physician, the ALJ may choose

whom to credit but “cannot reject evidence for no reason or for the wrong reason.” 

ALJ did not reject Moody’s treating sources for no reason or the wrong reason

as was the case in Apfel where the ALJ relied on her own perceptions of the claimant.

Instead the ALJ here relied upon Dr. Cohen’s opinion. Dr. Cohen’s opinion considered

the “pertinent evidence” including opinions of Moody’s treating physician as well as

other examining sources. 20 C.F.R. § 404.1527(d)(3). In fact, Dr. Cohen specifically

referred to supporting information in Moody’s medical file during his testimony.

       Moody next argues that the ALJ should have contacted Moody’s treating

psychiatrist, Dr. Robinson. We disagree. 20 C.F.R. § 404.1512(e)(1) states that an ALJ

should contact a medical source when their report “contains a conflict or ambiguity that

must be resolved,” or when “the report does not contain all the necessary information.”

This is not the case here because there was sufficient evidence in the medical records for

the ALJ to make her decision.

       Moody also asserts that the ALJ erred in Step 4 of the sequential evaluation

process and the residual functional capacity finding. Specifically, Moody argues that the



                                             11
residual functional capacity that the ALJ adopted was improper because it was made by a

non-physician (nonexamining disability claim adjudicator), and it deviated from the

residual functional capacity completed by the state agency treating physician Dr.

Thakarar. We again disagree.

       The ALJ concluded that, based on his residual functional capacity, Moody could

not perform his past relevant work. Moody could, however, perform some sedentary

work 4 given his vocational profile and the availability of sedentary jobs in the national

and local job market. In fact, the ALJ was more generous in her findings of M oody’s

limitations than Dr. Thakarar. The ALJ concluded that Moody could occasionally lift 10

pounds, stand and walk for 2 hours a day, sit for 6 hours a day, had an unlimited ability to

push and pull and could occasionally climb, balance, stoop and kneel although he could

not crouch or crawl. (R. 22). Dr. Thakarar reported that Moody was capable of more.

Dr. Thakarar thought Moody could frequently lift up to 20 pounds, could stand and walk

three to four hours per day, and sit for eight hours a day. Moody wants us to accept other

limitations not included in the examiner’s report such as the need to alternate sitting and

standing, limits on pushing with the lower extremities, and certain environmental

limitations. However, those limitations do not negate the substantial evidence that




   4
     Sedentary work involves lifting no more than 10 pounds at a time and occasionally
lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary
job is defined as one which involves sitting, a certain amount of walking and standing is
often necessary in carrying out job duties. 20 C.F.R. §§ 404.1567(a) and 416.967(a).

                                             12
Moody can perform sedentary jobs.5

         Finally, Moody asserts that the Commissioner did not meet his burden of proof at

Step 5 because the ALJ’s vocational hypothetical questions were “legally insufficient.”

         The ALJ noted and recognized this burden in her opinion. (R. 22). Moody cites

Burns v. Barnhart, 

(3d Cir. 2002), to support his claim that the ALJ’s

hypothetical questions were improper because they failed to include all of Moody’s

physical and mental impairments. In Burns we noted that if “undisputed evidence of

specific impairments not included in a hypothetical question to a vocational expert, the

expert’s response is not considered substantial evidence.” 

, 123 (3d Cir.

2002) (emphasis added). In addition, in Chrupcala v. Heckler, 

, 1276 (3d

Cir. 1987), we noted that the ALJ need only include those limitations that are supported

by evidence of record. This record contains substantial evidence to support the ALJ’s

conclusion that Moody did not have a severe mental impairment. Therefore, the ALJ’s

hypothetical questions were not improper.

                                     V. CONCLUSION

               For the reasons set forth above, we will affirm the district court’s order

upholding the Commissioner’s determination of no disability.




   5
       Moody was not found to have a substantial mental impairment.

                                              13