Fargnoli v. Massanari Comm'r Social Sec. Admin.

• Citation: 247 F.3d 34
• Decision Date: 11 April 2001
• Docket Number: No. 99-1989,99-1989
• Parties: (3rd Cir. 2001) TOMMASO FARGNOLI, Appellant v. LARRY G. MASSANARI, <A HREF="#fr1-*" name="fn1-*">* COMMISSIONER, SOCIAL SECURITY ADMINISTRATION
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Page 34

247 F.3d 34 (3rd Cir. 2001)

TOMMASO FARGNOLI, Appellant v. LARRY G. MASSANARI,^* COMMISSIONER, SOCIAL SECURITY ADMINISTRATION

No. 99-1989

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

Argued August 2, 2000

Filed April 11, 2001

[Copyrighted Material Omitted]

INEZ A. DE BAPTISTE, ESQUIRE (Argued), Silver & Silver, Ardmore, PA, Counsel for Appellant.

ANDREW C. LYNCH, ESQUIRE (Argued), Office of the General Counsel, Social Security Administration, Philadelphia, PA, Counsel for Appellee.

Before: ALITO, ROTH and AMBRO, Circuit Judges. ROTH, Circuit Judge, dissenting

OPINION OF THE COURT

AMBRO, Circuit Judge:

This case arises from the denial of Tommaso Fargnoli's ("Fargnoli") application for disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. 401-433 ("Act"). Fargnoli appeals the District Court's order granting summary judgment in favor of the Commissioner of the Social Security Administration (the "Commissioner").¹ The District Court exercised jurisdiction pursuant to 42 U.S.C. 405(g). Our jurisdiction arises under 28 U.S.C. 1291. For the reasons set forth below, we will vacate the District Court's order and remand the case with instruction to return it to the Commissioner for further proceedings consistent with this opinion.

I. Factual and Procedural History

Fargnoli is an unskilled construction laborer with a fifth grade education. He was born in Italy and came to the United States in 1964 at the age of seventeen. Fargnoli applied for disability insurance benefits on October 29, 1993, alleging that as of May 10, 1985, he was disabled and unable to work due to a work-related back injury. Because of his limited work history, Fargnoli's date last insured was December 31, 1990. He was denied benefits initially and on reconsideration.² At Fargnoli's request, a hearing before an administrative law judge (the "ALJ") was held on February 15, 1996.

Fargnoli appeared at the hearing with his counsel and testified, with the assistance of an Italian interpreter, about his back impairment. Fargnoli testified that he suffers from severe low back pain and radicular pain primarily in the left leg but at times in the right leg. He also testified that he sometimes has problems with numbness in his left arm. When asked how his impairment affects his ability to work around the house, Fargnoli testified that he has difficulty going up and down the stairs and is unable to do any household chores. He also testified that he has difficulty dressing because he cannot bend over. With regard to work restrictions, he testified that his back injury limits him to lifting approximately five to ten pounds, sitting or standing for only ten to twenty minutes at a time, and walking the equivalent of only one to two blocks. Further, he testified that although he occasionally drives, doing so is painful because he cannot take his pain medication which makes him sleepy and dizzy. He testified that his medications at the time of the ALJ hearing were Daypro, a nonsteroid anti-inflammatory, and Ultram, a pain reliever.

The medical evidence of record, as developed before the ALJ, reflects that Fargnoli had been continuously treated with two doctors since his May 1985 injury -- Dr. Dennis B. Zaslow, an orthopedic surgeon, and Dr. Max Karpin, a neurosurgeon. Dr. Zaslow saw Fargnoli approximately once a month from September 1985 until approximately July 1995. At Fargnoli's initial visit in September 1985, Dr. Zaslow diagnosed Fargnoli with an acute lower dorsal and lumbar sprain and strain and lumbosacral somatic dysfunction. He stated that Fargnoli's range of motion in his lower back was poor, his gait was labored and he favored his left leg. Further, he noted that Fargnoli's left shoulder was drooped lower than the right, his trunk was sidebent to the left and paravertebral spasms were seen in the lumbar muscles of the middle to lower back. Finally, he indicated that straight leg raising was causing radicular pain in Fargnoli's left leg. Based on his evaluations, Dr. Zaslow stated that Fargnoli could not work as of December 31, 1990, his date last insured.

Dr. Zaslow's treatment notes consistently document objective muscular symptoms associated with Fargnoli's back impairment, including his inability to perform or difficulty with squatting, bending, leg lifting, changing positions, sitting, standing and walking, his tenderness to palpitation and manipulation, and the often spastic condition of his low back. Dr. Zaslow's treatment notes also document the variability of Fargnoli's condition, which changed depending on various conditions, improved with prolonged periods of rest or immobilization and favorable weather, and worsened with periods of increased activity or occurrences of poor weather.

In January 1986, Fargnoli began treatment with Dr. Karpin. At Fargnoli's initial visit, Dr. Karpin reported that Fargnoli had a labored gait, difficulty walking, was favoring the left lower extremity, and had limited flexion and paravertebral spasm. Dr. Karpin's diagnosis was post-traumatic status, low back syndrome, dorsolumbar sprain and strain and left lumbar radiculopathy. Dr. Karpin reported similar findings until approximately November 7, 1986, when he noted that Fargnoli was showing gradual improvement. Dr. Karpin's later treatment notes reflect his opinion that Fargnoli suffered from chronic back pain that would improve and worsen periodically according to factors such as activity and weather, but would neither improve nor worsen on a permanent basis from continued medication and physical therapy. Over the course of Fargnoli's treatment, Dr. Karpin prescribed numerous medications.

The record reflects reports or mention of certain diagnostic tests, including an October 1985 EMG of Fargnoli's left lower extremity, an October 1985 CT-scan of his lumbar spine, and a thermogram. In his November 17, 1985 report, Dr. Zaslow states that the EMG was abnormal and notes that the findings were suggestive of radiculopathy at the L5 region. Further, he states that the CT-scan showed degeneration of the L3-L4 disc and a strong possibility of a fracture of the anterior edge of the superior plateau of L4. Finally, he notes that the thermogram was abnormal. A tomogram of the spine was performed in late 1985 to confirm the existence of a fracture. It indicated interosseous distal herniation of the lumbar spine, but no evidence of fracture. A February 1986 MRI was performed that evidenced an abnormal disc intensity between L3-4 with a high degree of suspicion of herniation and abnormal discs between L1-2, L4-5 and L5-S1. A January 1986 bone scan was reported by Dr. Zaslow as being normal. Although strongly recommended by both Drs. Zaslow and Karpin to confirm disc herniation, Fargnoli would not agree to undergo a myelogram because of his fear of needles and invasive procedures.

Additionally, the treatment notes of Dr. Zaslow and Dr. Karpin reflect that Fargnoli has under gone physical therapy, varying from three times a week to one time a week, from after his accident until approximately September 1991, although the treatment notes from his therapists are not included in the record.³

On August 5, 1996, the ALJ issued an opinion denying Fargnoli's claim for disability insurance benefits, stating that "the evidence of record does not reveal that the claimant's condition was sufficiently severe to preclude him from performing at least light work. . . ." The Appeals Council of the SSA declined further review on October 4,1997, making the ALJ's determination the final decision of the Commissioner.

Having exhausted his administrative remedies, Fargnoli filed an action in the United States District Court for the Eastern District of Pennsylvania seeking judicial review of the ALJ's decision. The parties filed cross-motions for summary judgment. The District Court granted the Commissioner's request for summary judgment and denied Fargnoli's request. Fargnoli appeals the District Court's decision.

II. Discussion

A. Standard of Review.

Although our review of the District Court's order for summary judgment is plenary, "our review of the ALJ's decision is more deferential as we determine whether there is substantial evidence to support the decision of the Commissioner." Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir. 2000). "Substantial evidence has been defined as 'more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate.'" Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999) (quoting Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir. 1995)). Where the ALJ's findings of fact are supported by substantial evidence, we are bound by those findings, even if we would have decided the factual inquiry differently. Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999). Thus, the general issue before us is whether the ALJ's finding that Fargnoli was not disabled, and thus not entitled to disability insurance benefits, is supported by substantial evidence.

B. Determination of Disability

Under the Social Security Act, a disability is established where the claimant demonstrates that there is some "'medically determinable basis for an impairment that prevents him from engaging in any 'substantial gainful activity' for a statutory twelve-month period.'" Plummer, 186 F.3d at 427 (quoting Stunkard v. Sec. of Health & Human Servs., 841 F.2d 57, 59 (3d Cir. 1988)); see also 20 C.F.R. 404.1505(a). A claimant is considered unable to engage in any substantial gainful activity "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. 423(d)(2)(A). This disability determination is made by the Commissioner based on a five-step sequential evaluation process...