Johnson v. Commissioner of Social Sec., 07-2132.

• Decision Date: 22 April 2008
• Docket Number: No. 07-2132.,07-2132.
• Citation: 529 F.3d 198
• Parties: Staci JOHNSON, Appellant v. COMMISSIONER OF SOCIAL SECURITY.
• Court: U.S. Court of Appeals — Third Circuit

529 F.3d 198

Staci JOHNSON, Appellant v. COMMISSIONER OF SOCIAL SECURITY.

No. 07-2132.

United States Court of Appeals, Third Circuit.

Submitted Pursuant to Third Circuit LAR 34.1(a) April 17, 2008.

Opinion Filed: April 22, 2008.

Jason L. Thompson, Leventhal, Sutton & Gornstein, Trevose, PA, for Appellant.

David F. Chermol, Special Assistant U.S. Atty., Andrew Lynch, Social Security Administration, Office of the General Counsel, Philadelphia, PA, for Appellee.

Before: SLOVITER, JORDAN and ALARCÓN^*, Circuit Judges.

OPINION OF THE COURT

ALARCÓN, Circuit Judge.

Staci K. Johnson appeals the District Court's order affirming the Commissioner of Social Security's denial of Johnson's claim for disability insurance benefits ("DIB") under Title II of the Social Security Act. Johnson contends that the Commissioner's finding was erroneous for two reasons. First, she alleges that the Administrative Law Judge ("ALJ") overlooked several of her treating physician's opinions. Those opinions, she argues, supported a finding that Johnson was disabled. Second, Johnson contends that the ALJ's disability conclusion was based on an answer a vocational expert provided to an incomplete hypothetical question posed by the ALJ. She alleges that the expert's answer did not constitute substantial evidence that Johnson was not disabled because the hypothetical question, which pertained to her ability to secure gainful employment, omitted some of Johnson's impairments.

We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. Neither of Johnson's contentions undermines the ALJ's conclusion. Therefore, we affirm the District Court's decision.

I

Until she stopped working in December 1989, Johnson was a hairdresser and salon manager. She quit as a result of an on-the-job injury, which caused pain in her right arm and shoulder. In 1990, she was diagnosed with thoracic outlet syndrome of her right shoulder. Johnson applied for disability insurance benefits on April 25, 1997, alleging that she became disabled on December 7, 1989 due to "thoracic outlet syndrome of the right shoulder." Johnson was last insured for DIB on March 31, 1991, and in her application, she attempted to establish that she was disabled on or before that date.

Johnson's DIB application was denied. She challenged that initial denial in a hearing before an ALJ. On July 22, 1998, the ALJ denied Johnson's claim, finding that she was not disabled during the relevant time period because her impairments did not prevent her from performing work in the national economy. Johnson appealed, and the Appeals Council remanded the case back to the ALJ because the tape recording of the hearing before the ALJ was partially inaudible. After a second hearing, the same ALJ again found that Johnson was not disabled during the relevant time period because there were "a significant number of jobs in the national economy that she could perform." Johnson appealed that decision, and the Appeals Council remanded the case once more, with specific instructions regarding the evidence the ALJ should consider. The case was reassigned to a different ALJ.

Johnson testified at her third ALJ hearing. Her testimony from the two prior hearings was read into the record. A vocational expert also testified. Johnson was again found to be not disabled during the relevant time period. The ALJ concluded that Johnson has not engaged in substantial gainful activity since her alleged onset of disability date. However, the ALJ concluded that prior to April 1, 1991, "the claimant retained the residual functional capacity to perform a sedentary work-related activity." Although the ALJ concluded that Johnson could not perform any of her past relevant work, the ALJ did find that Johnson could find other work. Based on testimony provided by the vocational expert, the ALJ concluded that Johnson could work as a "surveillance system monitor ... call-out operator ... and ... order clerk." Therefore, Johnson was not entitled to DIB because prior to April 1, 1991, she "retained the capacity for work that exists in significant numbers in the national economy."

Johnson sought review of the Commissioner's decision before the District Court pursuant to 42 U.S.C. § 405(g). The District Court adopted a Magistrate Judge's Report and Recommendation, which recommended denying Johnson's motion for summary judgment, and granting the Commissioner's motion for summary judgment. The District Court agreed with the Magistrate Judge that substantial evidence supported the Commissioner's finding that Johnson was not entitled to DIB.

II

"While we exercise plenary review with respect to the order for summary judgment, 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 does not mean a large or considerable amount of evidence, but rather such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir.1999) (internal quotations and citations omitted).

As a preliminary matter, we note that to receive disability insurance benefits pursuant to Title II of the Social Security Act, a claimant must show that she was insured under the program at the time of onset of her disability. Kane v. Heckler, 776 F.2d 1130, 1131 n. 1 (3d Cir.1985). Johnson was insured for DIB through March 31, 1991. Therefore, the relevant period for purposes of establishing whether she qualifies for DIB is the time between December 7, 1989, her alleged disability onset date, and March 31, 1991, the date she was last insured.

A

Johnson first argues for reversal alleging that "the ALJ improperly disregarded the opinions of Appellant's treating hand specialist." She breaks this argument into three subparts; she contends that each mandates reversal because the treating doctor's opinions supported a finding that she was disabled during the relevant time period.

Johnson claims that testimony Dr. Hunter provided during her Workers' Compensation claim hearing on October 13, 1993 is the evidence the ALJ should not have overlooked. She cites to the following portion of Dr. Hunter's testimony:

The early studies showed that, in fact, [Johnson] did have an early involvement of the brachial plexus, which are the nerves that run the extremity, but more clearly were defined to two specific points in the median nerve. One near the elbow and the other one at the wrist and the hand, in which there was slowing. It was documented on two occasions by electromyographic studies as well as the clinical evaluations, that in this nerve is the one specifically involved in how you feel with your thumb, index and middle finger. The proximal part of this nerve as you pass into the neck under the collar bone and join the brachial plexus was also involved and it's a run down both back and forth. So its [sic] strange to me another physician on consultation can't observe that the patient had really almost no feeling in this part of her hand. She couldn't hold small objects. If she was blindfolded she couldn't pick up a nickel because she couldn't find it with her hand. She couldn't handle earrings and clasps.

Pet'r Br. at 25-26 (citing R. 555) (emphasis added in Petitioner's Brief). Johnson also cites to Dr. Hunter's testimony from the same hearing in which he stated that despite a number of conservative measures, Johnson "was failing ... [i]n August of '91, our median nerve problem was that she couldn't feel and she couldn't hold small things with her hand." Id. at 26 (citing R. 556). "During this same deposition, Dr. Hunter read from his office note of August 15, 1991, at which time he recommended surgery." Id.

In analyzing Johnson's DIB claim, the ALJ followed the Social Security Administration's five-step evaluation process. Johnson's arguments regarding Dr. Hunter's opinions challenge the ALJ's conclusions regarding Johnson's ability to perform "past relevant work" and "several other jobs" in the national economy. We construe this as a challenge to the ALJ's step four finding regarding Johnson's residual functional capacity, "that which an individual is still able to do despite the limitations caused by his or her impairment(s)." Fargnoli v. Massanari, 247 F.3d 34, 40 (3d Cir.2001) (internal quotations and citations omitted). "The ALJ must consider all relevant evidence when determining an individual's residual functional capacity in step four." Id. at 41.

We first turn to Johnson's contention that Dr. Hunter's testimony should have determined the outcome of Johnson's claim because it was a treating physician's opinion entitled to "significant, if not controlling evidentiary weight."

"Under applicable regulations and the law of this Court, opinions of a claimant's treating physician are entitled to substantial and at times even controlling weight." Fargnoli, 247 F.3d at 43 (citing 20 C.F.R. § 404.1527(d)(2)). However, the treating source's opinion is entitled to controlling weight only when it is "`well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the claimant's] case record....'" Id. at 43 (quoting 20 C.F.R. § 404.1527(d)(2)).

Johnson does not distinguish between any of the statements in Dr. Hunter's cited testimony, but rather contends that each of them were entitled to controlling weight. However, there are important differences between the statements. The first two underlined portions of Dr. Hunter's testimony ("The early studies showed that, in fact, [Johnson] did have an early involvement of the brachial plexus" and "[i]t was documented on two occasions by electromyographic studies as well as the clinical evaluations"), were given controlling weight by the ALJ. The ALJ expressly noted that: "[o]n February 7, 1991, Dr. Hunter reported that clear...