Filed: Oct. 08, 2010
Latest Update: Feb. 22, 2020
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 09-4733 _ JOSEPH HARKINS, Appellant, v. COMMISSIONER OF SOCIAL SECURITY Appellee. _ On Appeal from the United States District Court for the District of New Jersey (D.C. No. 08-cv-6418) District Judge: Hon. Jose L. Linares _ Submitted Under Third Circuit LAR 34.1(a) October 5, 2010 Before: SCIRICA, FUENTES and JORDAN, Circuit Judges. (Filed: October 8, 2010) _ OPINION OF THE COURT _ JORDAN, Circuit Judge. Joseph Harkins a
Summary: NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 09-4733 _ JOSEPH HARKINS, Appellant, v. COMMISSIONER OF SOCIAL SECURITY Appellee. _ On Appeal from the United States District Court for the District of New Jersey (D.C. No. 08-cv-6418) District Judge: Hon. Jose L. Linares _ Submitted Under Third Circuit LAR 34.1(a) October 5, 2010 Before: SCIRICA, FUENTES and JORDAN, Circuit Judges. (Filed: October 8, 2010) _ OPINION OF THE COURT _ JORDAN, Circuit Judge. Joseph Harkins ap..
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 09-4733
_____________
JOSEPH HARKINS,
Appellant,
v.
COMMISSIONER OF SOCIAL SECURITY
Appellee.
_______________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. No. 08-cv-6418)
District Judge: Hon. Jose L. Linares
_______________
Submitted Under Third Circuit LAR 34.1(a)
October 5, 2010
Before: SCIRICA, FUENTES and JORDAN, Circuit Judges.
(Filed: October 8, 2010)
_______________
OPINION OF THE COURT
_______________
JORDAN, Circuit Judge.
Joseph Harkins appeals from a decision of the United States District Court for the
District of New Jersey affirming the order of an Administrative Law Judge (“ALJ”)
denying Harkins’s claim for disability insurance benefits. For the following reasons, we
will affirm.
I. Background
Because we write solely for the parties and assume their familiarity with the case,
we will discuss only those facts necessary to our decision. Harkins claims that he became
disabled on July 7, 2000, due to a work-related back injury. Later, on November 21,
2000, Harkins underwent a microscopic disc excision, performed by Dr. Joseph
Lombardi.1 Harkins “tolerated the procedure well.” (AR at 189.) Shortly thereafter, on
December 20, 2000, Harkins made his initial application for disability insurance benefits
(the “Initial Application”). The Initial Application was denied on February 21, 2001, and
the denial was not appealed. On December 31, 2003, Harkins’s eligibility for disability
insurance benefits expired.2
On February 17, 2006, Harkins again applied for disability insurance benefits (the
“2006 Application”). Because Harkins’s eligibility for disability insurance benefits had
expired on December 31, 2003, he could receive benefits only if he showed that he
1
Dr. Lombardi had also performed a disc excision on Harkins on January 20, 1992, as a
result of a 1990 work injury.
2
Under 42 U.S.C. § 223(c)(1), individuals are only eligible for disability insurance
benefits if they have earned sufficient working credits during the previous ten years.
Harkins does not contest that his eligibility for disability insurance benefits expired on
December 31, 2003.
2
became disabled between February 21, 2001 – the date the Initial Application was denied
– and December 31, 2003.
In support of the 2006 Application, Harkins submitted medical records showing
that he received treatment for back pain at various times between 1990 and the time of the
application. The treatment was not continuous, however, and the medical records reflect
that Harkins did not receive treatment for his back between the relevant dates of
February 21, 2001 and December 31, 2003. In fact, following Harkins’s November 21,
2000 surgery, his records showed no treatment until after April 27, 2004. On that date,
Harkins visited the ER as a result of a car accident, and a subsequent MRI showed
injuries to several discs in his back. On August 18, 2004, Harkins sought pain treatment
from Dr. Lombardi, who reported that Harkins’s “[p]ain began from a car accident,” and
that the “[c]ondition ha[d] existed since 4 months and since the [car] accident.” (AR at
215.) Harkins continued to receive pain treatment from Dr. Lombardi every few months
through August of 2006. Dr. Lombardi’s notes for each of those visits indicated that
Harkins began experiencing pain after the April 2004 car accident.
In connection with the 2006 Application, Harkins also completed reports on his
work history and on daily tasks that he was able to perform, despite his claimed disability.
Harkins reported that, prior to July 7, 2000, he had worked for twenty-five years in
carpentry and auto body work, but that he had not worked since July 7, 2000. Despite
reporting that he was incapable of doing any kind of activity for more than a short period
3
of time, Harkins reported that his daily activities consisted of dropping off and picking up
his daughter from school, washing dishes for fifteen minutes at a time, and dusting and
vacuuming for five minutes at a time. He also reported that he could lift up to fifteen
pounds. His wife also completed a report, stating that Harkins was able to do light
dusting, wash dishes, and fold clothes.
After being reviewed at both the initial stage, and again on reconsideration, the
2006 Application was denied on December 20, 2006. At Harkins’s request, his claim was
submitted to an ALJ, and a hearing was held on May 2, 2007. At the hearing, Harkins
testified that his symptoms resumed approximately two years after his November 21,
2000 surgery. He testified that everything made his pain worse. He testified that if he
stood or sat for more than fifteen minutes at a time, he would get numbness or stabbing
pains in his feet, and that if he turned his neck too fast, he would get stabbing pains in his
neck. He testified that he could no longer get prescription medication for his pain
because, in January of 2007, his wife lost her job and, consequently, the family lost its
medical insurance. Harkins also testified that he spent his day doing chores around the
house, including taking out the garbage, folding clothes, doing dishes for ten minutes at a
time, and exercising when he could.
On July 2, 2007, the ALJ denied Harkins’s claim for disability benefits. In so
doing, the ALJ followed the five-step sequential analysis required under 20 C.F.R.
4
§ 404.1520.3 At steps one through three, the ALJ determined that Harkins (1) had not
been working since the alleged date of disability, and (2) had a severe impairment prior to
December 31, 2003, but (3) did not have one of the impairments designated by the
relevant regulations as warranting an automatic finding of disability.
Turning to its assessment of Harkins’s residual functional capacity (“RFC”), the
ALJ first found that Harkins’s subjective complaints of pain were not credible because,
although Harkins claimed to have had disabling pain prior to December 31, 2003, the
record was “devoid of any clinical findings or evidence of ongoing treatment for a back
impairment.” (AR at 14.) Additionally, although Harkins testified that his pain resumed
two years after his November 21, 2000 surgery, he had reported to Dr. Lombardi on
August 18, 2004, that it was associated with his April 27, 2004 car accident. (Id.) In
light of this, the ALJ found that the evidence supported “the claimant’s current
complaints of back pain,” but that the evidence showed that the pain was “related to his
3
At step one, the ALJ considers whether the claimant is engaged in substantial gainful
activity. If so, the claimant is not disabled, and the inquiry ends. At step two, the ALJ
considers whether the claimant suffers from a severe medical impairment. If not, the
claimant is not disabled, and the inquiry ends. At step three, the ALJ considers whether
the impairment is equivalent to those listed in 20 C.F.R. Part 404, Subpart P, Appendix 1.
If it is, the claimant is automatically considered disabled, and the inquiry ends. If not, the
inquiry moves on to step four. At step four, after assessing the claimant’s residual
functional capacity, the ALJ considers whether that residual functional capacity enables
the claimant to perform past relevant work. If it does, the claimant is not disabled, and
the inquiry ends. Finally, at step five, the ALJ considers whether, based on the claimant’s
residual functional capacity, age, and education, there is sufficient work available in the
national economy. If so, the claimant is not disabled. Otherwise, the claimant is
disabled. 20 C.F.R. § 404.1520(a)(4).
5
automobile accident in April 2004.” (Id. (emphasis in original).) The ALJ also found
that Harkins’s subjective complaints were inconsistent with his daily activities, which the
ALJ identified as “dropping off and picking up his daughter; doing household chores such
as washing dishes, taking out the garbage and folding clothes; and exercising when he
can.” (Id. at 13-14.) Consequently, the ALJ determined that Harkins’s complaints of
disabling pain prior to December 31, 2003 “cannot be reasonably accepted.” (Id. at 14.)
Although the ALJ found that Harkins’s pain was not disabling prior to December
31, 2003, the ALJ did not conclude that he had been entirely pain free. Rather, the ALJ
concluded that due to “some pain and limitations ... his capacity to perform work was
significantly affected.” (Id.) The ALJ found, however, that despite those limitations
Harkins still “had the capacity to function adequately to perform many basic activities
associated with work,” and consequently determined that he “retained the residual
functional capacity to perform a full range of sedentary work.” 4 (Id.)
Based on that RFC assessment, the ALJ then completed steps four and five,
finding that (4) prior to December 31, 2003 Harkins’s RFC did not enable him to perform
his past work as a carpenter or auto-body worker, but (5) given Harkins’s RFC, education,
and age, there was a full range of sedentary work available in the national economy that
he was capable of doing, and, therefore, Harkins was not disabled.
4
Although it was not directly tied to the time period in question, the ALJ also noted that
in 2005 – after the car accident – Dr. Lombardi cleared him to work without any
restrictions. This too suggests that prior to December 31, 2003 – before the car accident –
Harkins retained the ability to do sedentary work.
6
After his subsequent request for review by the Appeals Council was denied,
Harkins appealed to the District Court. The District Court affirmed, finding that there
was substantial evidence to support the ALJ’s finding that Harkins was not disabled prior
to December 31, 2003. Harkins then timely filed this appeal.
II. Discussion 5
When reviewing a District Court’s affirmance of an ALJ’s decision, our role is
identical to that of the District Court, in that we must determine whether substantial
evidence supports the ALJ’s decision. Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir.
1999). Substantial evidence is defined as “more than a mere scintilla. It means such
relevant evidence as a reasonable mind might accept as adequate.” Ventura v. Shalala,
55
F.3d 900, 901 (3d. Cir. 1995) (quoting Richardson v. Perales,
402 U.S. 389, 401 (1971)).
To facilitate appellate review, the ALJ is required to discuss “the evidence he considered
which supports the result” and “the evidence which was rejected,” Cotter v. Harris,
642
F.2d 700, 705 (3d. Cir. 1981), and must also give his reasons for accepting some evidence
while rejecting other evidence. Hargenrader v. Califano,
575 F.2d 434, 437 (3d Cir.
1978).
On appeal, Harkins offers two arguments for why the ALJ’s decision should be
reversed and a new hearing granted. First, he argues that the ALJ failed to give proper
5
The District Court had jurisdiction to review the Social Security Administration’s
decision pursuant to 42 U.S.C. § 405(g), and we have jurisdiction pursuant to 28 U.S.C.
§ 1291.
7
consideration to subjective complaints of pain. Second, he argues that the ALJ failed to
offer a sufficient evidentiary basis for the RFC assessment.
A. The ALJ Properly Considered Harkins’s Subjective Complaints of Pain
Harkins asserts that the ALJ failed to adhere to Third Circuit decisions and Social
Security Administration regulations when he rejected Harkins’s subjective complaints of
pain. We disagree.
Our prior decisions have held that, although “[t]estimony of subjective pain and
inability to perform even light work is entitled to great weight,” Dobrowolsky v. Califano,
606 F.2d 403, 409 (3d Cir. 1979), an ALJ may nonetheless reject a claim of disabling
pain where he “consider[s] the subjective pain and specif[ies] his reasons for rejecting
these claims and support[s] his conclusion with medical evidence in the record.” Matullo
v. Bowen,
926 F.2d 240, 245 (3d Cir. 1990). Here, the ALJ considered Harkins’s
subjective complaints but rejected the complaints as not credible because (a) the medical
evidence showed that he had not sought any treatment whatsoever for pain during the
relevant time period 6 and (b) Harkins’s testimony that his pain returned two years after his
2000 surgery conflicted with the report of Dr. Lombardi – based at least in part on
Harkins’s own statements – that the pain stemmed from Harkins’s 2004 car accident. The
6
Harkins claims that the ALJ should not have considered Harkins’s failure to seek
treatment before December 31, 2003, because that failure was a result of his loss of
medical insurance after his wife lost her job. According to Harkins’s testimony, however,
his wife lost her job and insurance in January of 2007 – more than three years after the
expiration of his eligibility for disability insurance benefits.
8
ALJ also considered Harkins’s ability to perform daily tasks, such as “dropping off and
picking up his daughter; doing household chores such as washing dishes, taking out the
garbage and folding clothes; and exercising when he can.” (Id. at 13.) Thus, the ALJ
properly considered Harkins’s testimony, weighed it against conflicting evidence in the
record, including medical evidence, and specified his reason for rejecting Harkins’s
subjective complaints of pain. The ALJ’s process and his conclusions were consistent
with the standard articulated in our prior decisions.
The ALJ’s decision is also consistent with the regulations set forth in C.F.R.
§ 404.1529, as clarified in Social Security Ruling 96-7p. Social Security Ruling 96-7p
states that the ALJ may not reject a claimant’s testimony with merely “a single conclusory
statement” or a bare recitation of “the factors that are described in the Regulations for
evaluating symptoms.” SSR 96-7p. Rather, the decision “must contain specific reasons
for the finding on credibility, supported by the evidence in the case record, and must be
sufficiently specific to make clear to the individual and to any subsequent reviewers the
weight the adjudicator gave to the individual’s statements and the reason for that weight.”
Id. The ALJ did as required under SSR 96-7p, explaining that he found Harkins’s
testimony not credible because it conflicted with the medical evidence and with the
evidence of Harkins’s ability to perform daily tasks. The decision made clear to both
Harkins and to subsequent reviewers, such as this Court, that Harkins’s complaints of
disabling pain were not accepted because they conflicted with the other evidence in the
9
record. Consequently, we find that the ALJ gave proper consideration to Harkins’s
subjective complaints of pain and that the ALJ’s conclusion was supported by substantial
evidence in the administrative record.
B. The ALJ Articulated a Sufficient Evidentiary Basis for his RFC Assessment
With respect to the ALJ’s RFC assessment, Harkins argues that the ALJ offered no
evidentiary basis for his assessment. [BB at 4-10.] Again, we disagree. We view the
issue as being essentially resolved by our conclusion that the ALJ properly rejected
Harkins’s claims of subjective pain, because, in this case, Harkins’s subjective complaints
of pain constituted the only affirmative evidence of disability between February 21, 2001
and December 31, 2003. There is no medical evidence of treatment during that time.
There is a record of surgery shortly before February 21, 2001, but the evidence shows that
Harkins “tolerated the procedure well” and did not seek follow up treatment. There is
also evidence of treatment after December 31, 2003 but, as already noted, the evidence
shows that the treatment was for pain associated with an April 27, 2004 car accident.
Consequently, the only evidence that Harkins suffered from disabling pain during the
relevant period was his subjective complaints of pain, which the ALJ appropriately
rejected.
Finally, the ALJ also concluded that Harkins “had the capacity to function
adequately to perform many basic activities associated with work.” That conclusion was
supported by the finding that Harkins was able to engage in a wide range of simple tasks
10
such as “dropping off and picking up his daughter; doing household chores such as
washing dishes, taking out the garbage and folding clothes; and exercising when he can.”
(Id. at 13-14.) Those findings, taken together, form an adequate evidentiary basis to
support the ALJ’s assessment. In short, substantial evidence supports the conclusion that
Harkins “retained the residual functional capacity to perform a full range of sedentary
work.” (AR at 14.)
III. Conclusion
For the reasons set forth above, we conclude that substantial evidence in the record
supports the ALJ’s decision and that the ALJ sufficiently articulated the evidentiary basis
for his decision. We will therefore affirm the order of the District Court upholding the
ALJ’s decision.
11
