Adorno v. Shalala, 94-5085

• Citation: 40 F.3d 43
• Decision Date: 10 August 1994
• Docket Number: No. 94-5085,94-5085
• Parties: , Unempl.Ins.Rep. (CCH) P 14190B Evelyn ADORNO, Appellant, v. Donna SHALALA, Secretary of Health and Human Services, Appellee. . Submitted Under Third Circuit LAR 34.1(a),
• Court: U.S. Court of Appeals — Third Circuit

Page 43

40 F.3d 43

46 Soc.Sec.Rep.Ser. 142, Unempl.Ins.Rep. (CCH) P 14190B

Evelyn ADORNO, Appellant, v. Donna SHALALA, Secretary of Health and Human Services, Appellee.

No. 94-5085.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit LAR 34.1(a),

Aug. 10, 1994.

Decided Nov. 9, 1994.

Dennis P. McGlinchy, Ocean-Monmouth Legal Services, Inc., Toms River, NJ, for appellant.

Faith S. Hochberg, U.S. Atty. and John Jeannopoulos, Sp. Asst. U.S. Atty., U.S. Dept. of Justice, Newark, NJ, for appellee.

Present: HUTCHINSON and NYGAARD, Circuit Judges, and KATZ, District Judge ^*

OPINION OF THE COURT

HUTCHINSON, Circuit Judge.

Appellant, Evelyn Adorno ("Adorno"), appeals two orders of the United States District Court for the District of New Jersey in favor of appellee, the Secretary of Health and Human Services ("Secretary"). In its orders, the district court affirmed the Secretary's final decision to deny Adorno disability benefits and denied Adorno's motion for reconsideration. Because the findings of fact on which the Administrative Law Judge ("ALJ") based its decision are logically inconsistent and contradictory, we will vacate the district court's order affirming the Secretary's decision and remand for further proceedings consistent with this opinion. On remand, the ALJ should reconcile the contradictions based on all the evidence in the record, including Adorno's claimed inability to tolerate exposure to dust and fumes, and any additional relevant evidence the parties may produce and, if he again elects to reject the medical opinions of Adorno's treating physicians, state his reasons for doing so.

I.

In April, 1990, Adorno filed applications with the Social Security Administration ("SSA") for disability benefits or, in the alternative, Supplemental Security Income ("SSI") under Titles II and XVI of the Social Security Act. She alleged that she had been disabled by the combined effects of asthma, arthritis, and hypertension since June 15, 1989. Adorno's applications for benefits were denied by the SSA initially and upon reconsideration.

On December 24, 1990, Adorno filed a request for a hearing before an ALJ. It was granted, and the hearing was held on February 13, 1991. Represented by counsel, she appeared and testified on her own behalf through an interpreter.

On May 29, 1991, the ALJ determined that Adorno was not disabled and, therefore, could not receive either disability benefits or SSI. The ALJ's decision became final on May 27, 1992 when the Appeals Council denied Adorno's request for review. Adorno then filed a complaint in the district court, pursuant to 42 U.S.C.A. Sec. 405(g) (West 1991), asking the court to review and set aside the Secretary's decision. On October 7, 1993, the district court affirmed the Secretary's final decision finding Adorno not disabled. On December 6, 1993, the district court denied Adorno's motion for reconsideration. ¹

Adorno came to the continental United States from Puerto Rico. When asked by the ALJ how long she had "been in this country," she replied 30 years. Administrative Record ("Admin.Rec.") at 30. She was 49 years of age on the date of the ALJ's hearing. In Puerto Rico, she completed only the second grade and has had no other formal education. She testified that she cannot speak or read English.

From 1968 to 1989, Adorno worked for Excell Wood as a machine operator and general laborer. She claims that the dust and fumes encountered at work required her to use asthma medicine. After leaving Excell Wood, Adorno worked briefly as a packer at Papco Industries, but claims that she had to stop working after only four weeks because of her asthma condition. Most recently, Adorno worked at Fluid Chemicals but after one week its factory closed because of poor ventilation. She has not engaged in substantial gainful employment since June 15, 1989.

Since March 1987, Jose R. Sanchez-Pena, M.D. has been Adorno's treating physician. On Adorno's initial visit, Dr. Sanchez-Pena performed a pulmonary function test and concluded that Adorno was suffering from a "moderate asthmatic condition." After eighteen visits, Dr. Sanchez-Pena added the afflictions of arthritis, bursitis, pneumonia and kidney stones to the asthma, which he now found to be acute. In a letter dated March 30, 1990, Dr. Sanchez-Pena stated that Adorno was permanently and totally disabled.

Adorno also provided a note dated March 29, 1990 from another treating physician, Alfonso Polanco, M.D. It stated that Adorno "has been a patient at this office for acute bronchial asthma." Admin.Rec. at 100. In response to a request from the Division of Disability Determinations ("DDD"), Dr. Polanco sent a copy of his office notes. They showed that Adorno was seen on four occasions in 1989 and 1990 and was treated with Proventil Inhaler, Proventil Repetabs, Theo-Dur and Vasotec for acute bronchial asthma. Id. at 98-99. ² Neither the ALJ nor the district court referred to this evidence.

In February 1989, Adorno visited a physician named Leslie Aufseeser, D.P.M., for treatment of bone spurs in her heel. Dr. Aufseeser noted in her report that Adorno wanted to undergo surgery but postponed it because of uncertainty over insurance coverage.

On July 11, 1990, the DDD referred Adorno to a consulting physician named Santangelo for a physical examination. ³ Based on an examination and a pulmonary function test, Dr. Santangelo diagnosed Adorno as suffering from a fifteen-year history of asthma and uncontrolled hypertension. Dr. Santangelo's report indicated however that the pulmonary function tests administered to Adorno were within normal limits. In Dr. Santangelo's opinion, Adorno could perform any type of work except work in heavy fumes or dusty environments. Dr. Santangelo disagreed with Dr. Sanchez-Pena's and Dr. Polanco's conclusion that Adorno suffered from acute asthma. Adorno was also treated in hospital emergency rooms on several occasions, including two visits on March 19, 1987 and October 10, 1988 for asthma attacks. ⁴

Although Dr. Sanchez-Pena's initial diagnosis of moderate asthma was based on objective scientific data provided by a pulmonary function test, the ALJ concluded this doctor's later diagnosis of "acute asthma" lacked objective data to support it. The ALJ found Dr. Santangelo's medical report more reliable than Dr. Sanchez-Pena's later diagnosis because it was based on a later pulmonary functions test and a physical examination.

II.

The district court had subject matter jurisdiction to review the final decision of the Secretary denying Adorno's application for disability benefits under 42 U.S.C.A. Sec. 405(g) (West 1991) and 42 U.S.C.A. Sec. 1383(c)(3) (West 1992). We have jurisdiction over this appeal from the district court's final judgment in favor of the Secretary under 28 U.S.C.A. Sec. 1291 (West 1993).

"Our standard of review, as was the district court's, is whether the Secretary's decision is supported by substantial evidence in the record." Allen v. Bowen, 881 F.2d 37, 39 (3d Cir.1989). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938)).

III.

"The Social Security Act defines disability in terms of the effect a physical or mental impairment has on a person's ability to function in the workplace." Heckler v. Campbell, 461 U.S. 458, 459-60, 103 S.Ct. 1952, 1953, 76 L.Ed.2d 66 (1983); 42 U.S.C.A. Sec. 423(c) (West 1991). Disability benefits are provided for individuals unable "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.A. Sec. 423(d)(1)(A) (West 1991); Campbell, 461 U.S. at 460, 103 S.Ct. at 1953. A person is determined to be disabled only if "his 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.A. Sec. 423(d)(2)(A); Campbell, 461 U.S. at 460, 103 S.Ct. at 1953.

The regulations promulgated by the Secretary to implement these definitions recognize that certain impairments, called listed impairments, are so severe that they are presumed to prevent a person from pursuing any gainful work without further proof of occupational disability. Campbell, 461 U.S. at 460, 103 S.Ct. at 1953-54 (citing 20 C.F.R. Sec. 404.1520(d) (1982)). Thus, a claimant who establishes that she suffers from a listed impairment is deemed disabled without further inquiry. Id. If a claimant can pursue her former occupation, she is not entitled to disability benefits. Id. If a claimant suffers from a severe, but unlisted impairment, or a combination of impairments, the Secretary must consider the individual's particular limitations to determine whether the claimant retains the ability to perform either her former work or some less demanding employment. Id.

Adorno, in her first hearing, introduced evidence of only three episodes of asthma over 3 1/2 years. This does not meet the level of severity required for a listed impairment. See 20 C.F.R., pt. 404, subpt. P, app. 1, Sec. 3.03B. For asthma, the listings require acute episodes at least once every two months or on average at least six times a year. Id.

Adorno thus had the initial burden of proving that she could not pursue her former occupation. Once a claimant establishes her inability to pursue her former occupation, the burden shifts to the Secretary to prove that she retains the capacity to pursue less demanding work. See id. (citing 20 C.F.R....