EVELYN ADORNO, Appellant v. DONNA SHALALA, SECRETARY OF HEALTH AND HUMAN SERVICES, Appellee
No. 94-5085
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
November 9, 1994
Appeal from the United States District Court for the District of New Jersey (D.C. Civil Action No. 92-cv-01783). Submitted Under Third Circuit LAR 34.1(a) August 10, 1994. PRESENT: HUTCHINSON and NYGAARD, Circuit Judges, and KATZ, District Judge*
HUTCHINSON, Circuit Judge.
Ocean-Monmouth Legal Services, Inc.
27 Washington Street
Toms River, NJ 08753
Attorney for Appellant
Faith S. Hochberg, Esquire
United States Attorney
John Jeannopoulos, Esquire
Special Assistant United States Attorney
United States Department of Justice
Room 502
970 Broad Street
Newark, NJ 07102
Attorneys for Appellee
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
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
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
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,
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
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.
The district court had subject matter jurisdiction to review the final decision of the Secretary denying Adorno‘s application for disability benefits under
“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 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (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. 460, 460 (1983);
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 (citing
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
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
Adorno argues that the district court erred in affirming the Secretary‘s decision to deny her disability benefits because the ALJ did not make findings of fact concerning the nature and demands of her former occupation. Because her undisputed testimony shows her former job exposed her to fumes and heavy dust, and uncontradicted medical evidence shows her asthma precludes such exposure, Adorno contends that the ALJ‘s determination that she can return to her former job, but not one that exposes her to dust and fumes, is logically inconsistent.
The Secretary, in an effort to make sense of the ALJ‘s decision seeks to recharacterize Adorno‘s prior job as a cabinetmaker. Brief of Appellee at 18-19. The Dictionary of Occupational Titles does not list dust and fumes as hazards which accompany a cabinetmaker‘s job. This attempt to redefine Adorno‘s former occupation is unsupported by substantial evidence on the whole record. Both the ALJ and the district court describe Adorno‘s work as a machine operator, which may describe Adorno‘s former work more aptly. See Admin. Rec. at 11, 14;
If it appears that Adorno cannot return to her former occupation of machine operator, the ALJ must then determine what type of work Adorno can do in order to see whether her case fits into one of the so-called “grids” designed mechanically to take into account the factors of education, age, skills, and physical ability which affect an impaired claimants employability. See Campbell, 461 U.S. at 461-62. On this question, the ALJ found that “within these restrictions the claimant is able to perform her prior work as a machine operator or the full range of light work activity.” Admin. Rec. at 14.
The job of a machine operator is listed as medium work in the Dictionary of Occupational Titles. Appellant‘s Appendix (“App.“) at 1. Accordingly, it is impossible to tell whether Adorno is limited to light or medium work. The ALJ failed to make an unambiguous finding about the kind of work Adorno could do, and whether such work is available. Such finding is a prerequisite to the proper application of the “grids.”
Moreover, the ALJ‘s discussion of age and education is in only the most conclusory terms and is also tied to his conclusion that Adorno can do a full range of light work. Absent from the ALJ‘s decision is any mention of Adorno‘s physical
The ALJ did consider some of Adorno‘s particular limitations. He found that Adorno has “the residual functional capacity to perform work-related activities except for work involving heavy exposure to dust and fumes,” and that her “past relevant work as a machine operator did not require the performance of work-related activities precluded by the above limitation.” Admin. Rec. at 14-15. We have already mentioned the problem with this finding. It does not appear to be
We also note the ALJ‘s failure to weigh appropriately the testimony of both of Adorno‘s attending physicians. In considering a claim for disability benefits, greater weight should be given to the findings of a treating physician than to a physician who has examined the claimant as a consultant. See, e.g., Mason v. Shalala, 994 F.2d 1058, 1067 (3d Cir. 1993). We recognize, of course, that a statement by a plaintiff‘s treating physician supporting an assertion that she is “disabled” or “unable to work” is not dispositive of the issue. Wright v. Sullivan, 900 F.2d 675, 683 (3d Cir. 1990). The ALJ must review all the medical findings and other evidence presented in support of the attending physician‘s opinion of total disability. Id. In doing so, the ALJ must weigh the relative worth of a treating physician‘s report against the reports submitted by other physicians who have examined the claimant. See Cotter v. Harris, 642 F.2d 700, 705, reh‘g denied, 650 F.2d 481 (3d Cir. 1981).
The record indicates that Dr. Sanchez-Pena and Dr. Polanco are Adorno‘s treating physicians. The ALJ and the district court addressed only the opinion of Dr. Sanchez-Pena, and concluded it was not entitled to significant weight. See Jones v. Sullivan, 954 F.2d 125, 129 (3d Cir. 1991) (an unsupported diagnosis is not entitled to significant weight). Adorno, however, also points to the testimony of Dr. Polanco and argues that the Secretary failed to give it the weight it
Adorno relies primarily on the proposition that the Secretary must “explicitly” weigh all relevant, probative and available evidence. Dobrowolsky v. Califano, 606 F.2d 403, 407 (3d Cir. 1979); see also Brewster v. Heckler, 786 F.2d 581, 584 (3d Cir. 1986); Cotter, 642 F.2d at 705. The Secretary must provide some explanation for a rejection of probative evidence which would suggest a contrary disposition. Brewster, 786 F.2d at 585. The Secretary may properly accept some parts of the medical evidence and reject other parts, but she must consider all the evidence and give some reason for discounting the evidence she rejects. Stewart v. Secretary of H.E.W., 714 F.2d 287, 290 (3d Cir. 1983).
For these reasons, we will vacate the district court‘s order and remand for further proceedings. On remand, if Adorno has carried her initial burden of establishing an impairment so severe that she cannot perform the kind of work in which she was previously engaged, the Secretary has the burden of supplying substantial evidence, usually in the form of a vocational expert‘s opinion, that establishes Adorno‘s ability to perform other substantial gainful activity despite her physical problems, limited education, her difficulties with English and her limited occupational skills.
The order of the district court granting summary judgment to the Secretary will be reversed and the case remanded for further proceedings consistent with this opinion.