Diaz v. Commissioner of Social Sec.

• Decision Date: 12 August 2009
• Docket Number: No. 08-4067.,08-4067.
• Parties: Maria M. DIAZ, Appellant v. COMMISSIONER OF SOCIAL SECURITY.
• Court: U.S. Court of Appeals — Third Circuit

577 F.3d 500

Maria M. DIAZ, Appellant v. COMMISSIONER OF SOCIAL SECURITY.

No. 08-4067.

United States Court of Appeals, Third Circuit.

Argued May 22, 2009.

Filed: August 12, 2009.

Abraham S. Alter, Esq. [ARGUED] Langton & Alter, Rahway, NJ, for Appellant.

Karla J. Gwinn, Esq. [ARGUED] Social Security Administration, Office of General Counsel-Region II, New York, NY, for Appellee.

Before RENDELL, STAPLETON and ALARCÓN^*, Circuit Judges.

OPINION OF THE COURT

RENDELL, Circuit Judge.

Maria Diaz ("Diaz") appeals from the Memorandum and Order of the District Court concluding that the decision of the Administrative Law Judge ("ALJ") denying her Social Security disability insurance benefits was supported by substantial evidence. While the ALJ gave serious consideration to her claim and issued a thoughtful nine-page opinion, we are compelled to vacate the District Court's Order and remand to the District Court, directing it to remand this case to the Commissioner of Social Security (the "Commissioner") for further consideration.

I.

Diaz seeks a finding of disability as of December 31, 2000, when she was 40 years old. She turned 45 in July 2005, and her age category changed to "closely approaching advanced age," so that she became "disabled" under section 1614(a)(3)(A) of the Social Security Act as of July 1, 2005. It is the period between 2000 and 2005 that thus concerns us.

Diaz was last employed in 2000 as a babysitter. She stopped working on December 31, 2000, because she "could not keep bending down and assisting the children's needs." Administrative Record ("AR") 133. Diaz urges that several medical conditions — scoliosis, diabetes, cholesterol, asthma, high arterial blood pressure and arthritis — prevent her from standing for a long period of time and contribute to headaches, asthma attacks, and chest pains. In addition, she is 4'11" tall, weighs 252 lbs., and has been diagnosed as morbidly obese. Diaz has been under the care of Dr. Diptika Patel, who prescribed several medications for her ailments.

At the hearing before the ALJ, Diaz testified that she was unable to work at a job that requires her to stand, and that she could walk only half a block, due to back and leg pain. She testified that her pain was most acute in the region between her hip and left knee, and described frequent swelling in her knees and ankles. Further, she indicated that she could sit for "about half an hour[,]" and that she needs to take "shifts between sitting and standing." AR 36, 40.

The ALJ considered evidence presented by numerous doctors concerning Diaz's physical and mental limitations. He also considered vocational evidence provided by Rocco Meola, a vocational rehabilitation counselor. Meola indicated that a person like Diaz (who is between 40 and 45 years of age with limited education and unable to speak English) could perform certain sedentary occupations, including small parts assembler, parts sorter, parts inspector, inspector, and weight tester, if provided periodic breaks, and that approximately 1,500 jobs of this type existed in the region.

The ALJ proceeded through the five-step sequential evaluation process for determining whether an individual is disabled under 20 C.F.R. §§ 404.1520(a) and 416.920(a). At step one, the ALJ concluded that Diaz was not engaged in substantial gainful activity. The ALJ then proceeded to step two. At step two, the ALJ considered whether Diaz had a medically determinable impairment that is "severe" or a combination of impairments that is "severe." He listed her "severe" impairments as follows: diabetes, hypertension, asthma, back disorder, degenerative joint disease of the knee, adjustment disorder, and obesity.

The ALJ then discussed Diaz's mental impairments, indicating that the opinion of the state agency medical consultant (who assessed her as having a "severe impairment" because she has moderate difficulty maintaining concentration, persistence, and pace) "did not appear to be supported, because of her activities of daily living and lack of psychiatric treatment." AR 42. Nonetheless, the ALJ stated that "giving the claimant every benefit of the doubt, I find her adjustment disorder t[o] constitute a `severe' impairment." AR 18. The mental condition was the sole impairment discussed by the ALJ at step two. The ALJ then proceeded to step three.

At step three, an ALJ is charged with determining whether a claimant's impairment or combination of impairments meets, or medically equals, the criteria of an impairment listed in 20 C.F.R. §§ 404.1520(d) and 416.920(d). If the impairment, or combination of impairments, meets or equals the criteria of the Listing and meets the duration requirement, the claimant qualifies as disabled. Here, at step three, the ALJ commented on Diaz's individual impairments: her diabetes, hypertensive cardiovascular disease, chronic pulmonary insufficiency and asthma, disorder of the spine, joint dysfunction, and mental capacity. The ALJ emphasized that Dr. Martin Fechner, the court-appointed medical expert, testified that Diaz did not meet or equal any Listing.

The ALJ then reviewed the evidence presented, including the testimony of various experts, and concluded that Diaz "has the residual functional capacity to perform simple, routine sedentary work that does not require concentrated exposure to pulmonary irritants and never requires crawling or the climbing of ropes or ladders." AR 19. In so concluding, the ALJ assigned "[c]ontrolling weight" to the "very detailed reports of the examinations conducted by Drs. Merlin, Potashnik, and Tiersten." AR 20.

The District Court affirmed.¹

II.

Congress has provided that our review of the Commissioner's determination of disability benefits is for substantial evidence. 42 U.S.C. § 405(g). If supported by substantial evidence in the record, we are bound by the ALJ's findings of fact. Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir.1999). Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate." Id. (citing Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir.1995)).

In order to establish a disability under the Social Security Act, Diaz must demonstrate some "`medically determinable basis for an impairment that prevents her from engaging in any "substantial gainful activity" for a statutory twelve-month period.'" Burnett v. Comm'r of Social Sec. Admin., 220 F.3d 112, 118 (3d Cir.2000) (quoting Plummer, 186 F.3d at 427); see also 42 U.S.C. § 423(d)(1). Diaz will be considered unable to engage in any substantial gainful activity "`only if [her] physical or mental impairment or impairments are of such severity that [s]he is not only unable to do [her] previous work but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.'" Burnett, 220 F.3d at 118 (quoting Plummer, 186 F.3d at 427-28).

On appeal, Diaz urges that the ALJ's ruling is not supported by substantial evidence because, contrary to Social Security Ruling ("SSR") 00-3p, 65 Fed. Reg. 31039, 31040-42 (May 15, 2000), no consideration was given to Diaz's severe obesity. The ALJ acknowledged this impairment at step two, but failed to consider its impact, in combination with her other impairments, at step three, as required. In 2000, the Commissioner rescinded Paragraph 9.09 of the Listing of impairments, which dealt exclusively with obesity; however, this did not eliminate obesity as a cause of disability. To the contrary, the Commissioner promulgated SSR 00-3p, indicating how obesity is to be considered. This SSR replaced an automatic designation of obesity as a Listed impairment, based on a claimant's height and weight, with an individualized inquiry, focused on the combined effect of obesity and other severe impairments afflicting the claimant: "We will also find equivalence if an individual has multiple impairments, including obesity, no one of which meets or equals the requirements of a listing, but the combination of impairments is equivalent in severity to a listed impairment." Although SSR 00-3p was superseded by SSR 02-1p, 67 Fed.Reg. 57859, 57859 (Sept. 12, 2002), SSR 02-1p did not materially amend SSR 00-3p. See Rutherford v. Barnhart, 399 F.3d 546, 552 n. 4 (3d Cir.2005). SSR 00-3p instructs that "obesity may increase the severity of coexisting or related impairments to the extent that the combination of impairments meets the requirements of a listing. This is especially true of musculoskeletal, respiratory, and cardiovascular impairments. It may also be true for other coexisting or related impairments, including mental disorders."² Hence, an ALJ must meaningfully consider the effect of a claimant's obesity, individually and in combination with her impairments, on her workplace function at step three and at every subsequent step.

In Burnett, we held that an ALJ must clearly set forth the reasons for his decision. 220 F.3d at 119. Conclusory statements that a condition does not constitute the medical equivalent of a listed impairment are insufficient. The ALJ must provide a "discussion of the evidence" and an "explanation of reasoning" for his conclusion sufficient to enable meaningful judicial review. Id. at 120; see Jones v. Barnhart, 364 F.3d 501, 505 & n. 3 (3d Cir.2004). The ALJ, of course, need not employ particular "magic" words: "Burnett does not require the ALJ to use particular language or adhere to a particular format in conducting his analysis." Jones, 364 F.3d at 505.

Citing Rutherford v. Barnhart, the government urges that the "ALJ's adoption of their [Drs. Merlin, Potashnik, Tiersten, and Fechner's] conclusions constitutes a satisfactory, if indirect, consideration of that condition [obesity]." Respondent's Br. at 29; see 399 F.3d at 552. Significantly, however, in Rutherford, the claimant did not assert obesity as an impairment, nor did the ALJ note, or discuss, it....