*2 HUTCHINSON, Before COWEN and GARTH, Judges. Circuit THE OPINION OF COURT COWEN, ROBERT E. Judge. Circuit appeal This is an from a denial of disabil- ity Act, benefits under the Security Social (West 1991). seq. U.S.C.A. 301 et Fol- lowing hearing the administra- tive law appellant found that Thomas Williams was disabled as March sought Ap- 1988. Williams review peals regarding Council the date of onset disability, requesting of his that the Coun- cil award retroactive benefits back to De- review, Upon Appeals cember 1986. Council determined that Williams was not disabled at all. The district court affirmed ruling disability by Appeals of no Council. Because the act- ed within its discretion it reviewed when full, the case and its conclusion that supported not disabled Williams was was evidence, by substantial we will affirm.
I. applied insurance 20, 1987, alleging
benefits on dis- October ability as of October 1986. His claim was denied, appeal. took no On and Williams 15, 1988, June this time with the assistance counsel, application for he filed a new benefits, stating that disability insurance “orthopedic, disabling was condition (A) be determined An individual shall psychiatric, neuropsychiatric, neurological, internal, disability only if his diabetic to be under pulmonary, psychological, App. or im thereto.” physical related or mental and conditions Decem- denied on again severity His claim that he of such pairments are *3 his adminis- 15, 1988, he exhausted previous ber his only unable to do is not remedies. trative cannot, considering age, his work but en education, experience, and work at an administrative appeared Williams any kind of substantial gage Law other Administrative hearing an before 8, AU August The in the national (AU) exists Judge gainful on work economy. 1989, 24, find- August a decision issued . . . . . 1988, 28, as of March ing disabled requested review earlier. Williams but not the date regarding Appeals
by Council subsection, (3)For this purposes of an disability. He asserted of onset of total is an impairment” “physical mental or Decem- as of disability of total onset date anatomical, that results impairment retroac- 1986, requested additional ber abnormali- psychological or physiological, On Janu- insurance benefits. disability tive medically which are demonstrable ties 29, 1991, issued ary laboratory diag- acceptable clinical and that, not was held decision techniques. nostic earlier date to an entitled Williams not 1991). 423(d)(West See also 42 U.S.C.A. § he disability, but was onset of total (1988). 1382c(a)(3)(A) The Sec- 42 U.S.C. § whatsoev- any benefits entitled to has and Human Services retary of Health adopted by the Sec- This er. decision evalua- step sequential five established a retary. per- determining whether a process tion for to the this appealed decision 404.1520 20 C.F.R. is § son disabled. court affirmed The district court. district explained the (1991). Supreme Court decision, finding that it was Secretary’s evaluation sequential operation of This by substantial evidence. supported process thus: jurisdiction un- We have appeal followed. (1988).
der U.S.C. § de- threshold steps involve The first two is not the claimant terminations II. impair- working, and has presently duration required is of A. ment which ability significantly limits and which Security pro- Act II the Social Title step, the medical the third to work. disability insur- payment of for the vides the claimant’s evidence of have contribut- to those who ance benefits pre- impairments list of compared ato physi- from a program suffer ed to the any preclude enough sumed severe disability. U.S.C. cal or mental impair- claimant’s (1988). “Disability’-’ is de- If the 423(a)(1)(D) work. gainful 423(d) “equal” to one follows: fined in section or ment matches for bene- qualifies he (1) “disability” impairments, means— listed term If the inquiry. further engage any substan fits without (A) inability to the list- qualify any under activity by reason gainful cannot tial claimant fourth physical or to the analysis proceeds determinable medically ings, the can ex impairment which in- steps, the mental At these steps. and fifth or which has result death pected to can do his the claimant is whether quiry to last for a expected can be lasted or work or other past work own than 12 months period of less continuous economy,in view national exists . . . . . education, experience. and work age, past work do his cannot claimant
If
benefits.
work,
qualifies for
(1)(A)—
other
paragraph
(2)
purposes of
For
521,
Zebley,
Sullivan v.
493 U.S.
110 S.Ct. Williams has arthritis and controlled dia-
885, 888-89,
(1990).1
could not be Cir.1987). (3d the district Neither four, that “based the AU found step under work, weigh empowered medium nor court capacity for court this an exertional education, and its conclusions age, or the evidence substitute and the claimant’s Early and Rule 404.1569 fact-finder. experience, section those of the work onset), Cir.1984). No. Heckler, (at Table & 203.10 203.18 P, No. 4 Regulation 2, Subpart Appendix dis- ‘not a conclusion direct would III. ” Thus, despite con- App. at abled.’ Ap challenges the first pro- evaluation sequential cluding that the his en authority review peals Council’s regulations would set out cedure issue, one narrow appealed He tire case. disabled,” the AU “not finding dictate a disability, the onset date was dis- found nevertheless his entire record reviewed Appeals Council reasoned that Williams AU abled. determination the AU’s and reversed past perform relevant (cid:127)was unable to asserts that disability altogether. Williams security guard because as a welder work open review funda policy of wide *5 intellect,, which the recent of a reduction process due mentally and violates unfair 28, March manifest as found to be AU right appeal a claimant’s it chills because not before. 1988 but loss threatening potential the by implicitly findings, AU’s the of the Upon review granted. already of benefits that the limita- Appeals concluded Council may findings of fact Although an ALJ’s perform work- ability to tions on Williams’ conclusive, Appeals Council the taken as per- preclude the not activities did related record to the evidence of may review all security work as a past formance of findings sup are the ALJ’s decide whether that Williams’ found The Council guard. Powell In by evidence. ported substantial impair- severe medically determinable (3d Cir.1986), this Heckler, F.2d 176 v. 789 strain, and lumbar ments were arthritis Appeals the Council need held that court perform medi- he able and that was still appealed, issue review the not limit its were neither impairments um work. These entire case may review any listed medically equal to listed nor ap notice that gives it sufficient provided Appeals Council did regulations. The the Id. subject to full review. peals will impairments; consider mental Sullivan, 934 F.2d v. also Hale 179; see allegations that his it concluded instead Cir.1991) (once Appeals 895, (7th demands of 898 inability to handle the about timely request for re credible. Conse- receives were not Council past work entirety of view, concluded Appeals Council review quently, it entitled Health v. case); as defined was not disabled Gronda that Williams Serv., any 36, (6th time. Security 38-39 Act 856 F.2d Human in the Social & authority to Cir.1988) had (Appeals Council is whether of review Our standard days of ALJ’s case within 60 review entire Ap properly found court district only request though claimant decision even sup determination peals Council’s case), cert. aspect of narrow review ed Brown v. ported by evidence. substantial 1312, denied, 1052, 103 S.Ct. 489 U.S. 109 Cir.1988). 1211, Bowen, 1213 845 F.2d Bowen, v. Bivines (1989); 833 L.Ed.2d 581 scope in its court is limited appellate An Cir.1987) (where claim 293, (11th F.2d 297 in 42 U.S.C. set forth as judicial review review, Appeals files application ant that a court (1988), provides 405(g) which § unchallenged issues revisit may not Council findings Secretary’s factual may review notice); Kennedy claimant gives unléss it sup they are whether determine only to (11th Cir. 1524 Bowen, 814 F.2d v. ported substantial evidence give notice of 1987) must (Appeals Council Harris, v. record. Cotter issues not chal re-examine its intent evidence is (3d Cir.1981). “Substantial Heckler, claimant); DeLong v. lenged a reasonable such relevant
Hg3 (7th Cir.1985) 267-68 (applica- argues the Appeals tion for limited review of date of onset of Council should have notified him within 60 disability gave Appeals Council the prerog- days of the date of the hearing decision of ative to broaden scope review). of its upon issues which it would review Williams’ case. The 60-day limit upon
When Williams was first notified of the which relies, however, applies results of his hearing AU, before the he only to review initiated received upon a letter Council stating he had received a its own motion. 20 favorable C.F.R. (1991). 404.969 decision. This § letter contained a Here, Williams paragraph himself put which initiated request him on notice that if appealed he review. might he No mandatory lose those deadlines apply benefits: requests. claimant-initiated See Heckler you When appeal, you request Ap- Day, 115-117, U.S. 104 S.Ct. peals Council to review the decision. If 2249, 2255-2256, (1984) (fed L.Ed.2d 88 grants your request, eral may prescribe courts mandatory it will review the entire your record in deadlines respect to the case. It will review administration parts those of Social Security decision you disability claims). wrong. think are It event, will also because the parts review those notice you explaining appeal think are rights accompanied correct and make them the letter notify ing unfavorable or less you. favorable to Williams of the favorable decision of You will AU, receive a new decision. complies it with 20 C.F.R. 404.- 969. There was no violation of process due App. at 19. This paragraph was sufficient in the Appeals Council’s review of the en put to Williams on notice that if appeal- tire record underlying the AU’s decision. ed he losing risked his award.4 Since this *6 of means notification was reasonably calcu- apprise
lated to
both Williams and his coun-
IV.
sel of the risk associated with appealing
award,
the
process
no due
violation can be Williams next asserts that
qualifies
found. See Mullane v. Central Hanover
for disability
because
medical condition
Co.,
Bank & Trust
314-15,
339 U.S.
70 renders him
per
se under step
disabled
652, 657-58,
S.Ct.
(1950).
This court sequential Dyer’s report evaluation concluded that through five of virtually “prospects for would be process thus: success requiring complex any employment nil in inability to en- show A claimant communication, perceptual-motor fine activity for oral gainful gage substantial skills, rapid cognitive pro- perceptual speed, months in of twelve period continuous (1) by information, ways: producing large or cessing of two amounts of either of per arithmetic, is disabled reading, that one applied medical evidence and writ- basic certain listed meeting equalling App. se language ten skills.” (2) demonstrating an impairments; or nothing Dyer about Williams’ mentioned severity impairment of factory employment in a drum former steel any “sub- engage in kind unable security guard. or as a gainful work which exists stantial economy.” national Both AU and the Dyer’s report that Dr. Council stated claims F.2d at Kangas, 823 Dyer deficient since Dr. administered listing the criteria set forth he meets IQ test than full scale and a verbal rather per- mentally retarded impairments for IQ performance as well. Section 12.- tests provide Those criteria sons. verbal, 05(C) performance, for a “valid calls signifi refers Mental retardation IQ 70.” through of 60 or full scale subaverage intellectual cantly general P, 1, 12.05(C) 404, Subpt. App. C.F.R. Pt. adaptive be functioning deficits added). (emphasis the different Since de initially during the manifested havior IQ separated by types tests are a dis (before velopmental period age 22). . . . . . Secretary’s position that junctive, the a val accept id score itself cannot be verbal required severity level for this regulations it is incorrect. The make able met . . . . . when ... disorder psychologi clear well-standardized establishing may be useful cal test verbal, performance, or full A valid C. disorder. WAIS existence of mental IQ physical through 70 and a scale *7 given example is an a useful test as impairment imposing ad- mental or other retardation, establishing mental limi- significant work-related ditional and require regulations do not that WAIS of function. tation require test used, they do be nor Instead, 404, P, I, by physician. a App. 12.05. administered Subpt. Pt. be 20 C.F.R. § criteria, presump- regulations a claimant is state “a standardized Under these retarded, a) test, WAIS, mentally if he be tively intelligence e.g. disabled is should 70, IQ and interpreted by psycholo between 60 as evidenced administered 22; age of training since qualified by and has been so before gist psychiatrist b) impairment, in addi- another has an evalua experience perform such to retardation, imposes tion to mental 12.00(D). regu tion.” at Under Id. § significant work-related an additional IQ lations, therefore, verbal scale a valid of function. limitation qualified profession administered by a test may to sufficient using al the WAIS
A. retardation. mental establish requirement, regard to the first With rejected also Appeals Council The to his Williams evidence submitted impairment be mental claim of Williams’ retardation, evi- but the claim of mental “not credible.” his evidence cause it found insufficient to substantiate a dence was submitted sufficient has a claimant Once existing prior age to mental her support his or claim report Dyer, of Dr. Williams not may disability, the diagnosed him hav- who as psychologist, upon mere disbelief of IQ its decision of 66 on Wechsler base ing a verbal U85 claimant Instead, s evidence.5 the Secre- Williams’ mental retardation is further tary present must evidence to refute the put into doubt the fact that Williams claim. See Smith v. Califano, 637 F.2d did, fact, job maintain a for most of his 968, (3d Cir.1981) (where 972 adult regulations life. The indicate, testimony is reasonably supported by medi- context of retardation, mental that an abili- evidence, cal the finder of may fact not ty to job hold a is “particularly useful discount the testimony without contrary determining the individual’s ability or ina- evidence). medical bility to function in a setting.” work 20 404, Pt. P, C.F.R. Subpt. 1, IQ App. Williams’ 12.00(D). score sufficient, is not however, testimony before the establish deficient ALJ regarding intellectual years functioning 22 initially employment during manifested at a steel drum developmental factory period (before age 22). stated that he Dr. was able Dyer’s report learn new only measured tasks. He learned “current how to weld intellectual while functioning,” job, on the 188, app. example. at did presented not lifelong document no mental evidence of a retarda traumatic condi- tion. psychiatric tion that would two other cause mental retardation physicians were spring silent respect into existence at an age. adult Williams’ capacity. intellectual Even neurop- A the AU found that “it is unclear as sychiatric examination performed what extent the claimant’s IQ limited Pollock, Dr. who due to concluded his restricted and limited education Williams was depressed. Shah, psy opposed to a deficit in native intel- chiatrist, concluded that Williams did “not lect. ... It may well be claimant acute psychiatric problems at the has suffered a decrease in his intellectual App. time.” phy 176. Neither recently ability due to his marked reduction sician administered intelligence tests. in activity.” App. at 25. may Claimants eludes, consult who rou- prior based from the same tinely prepare medical for Social Securi- physician, physician's judgment ty Indeed, counsel, claims. Freeman flawed or weight, entitled to little based on rote Bass, & often their refer clients group to a small findings in case after case. But this ais physicians. of local credibility of these long way position Judge from the Garth would physicians’ reports has questioned. often been disregard take to reports altogether. See, e.g., Heckler, Coria v. 750 F.2d 249 reports, Professional medical once received Cir.1984) (Garth, J., concurring); Bradley v. evidence, may totally ignored, despite: Bowen, F.Supp. (D.N.J.1987); 667 167 2n. having prepared by been attending a claimant’s Heckler, v. Franklin (D.N.J.1984); 362, F.Supp. 789-833 physician, HHS, Sec'y see v. Wallace Heckler, F.Supp. Winston (3d Cir.1983); containing conclusory (D.N.J.1984). Nevertheless, 367-368 language suggestive of irrelevant workers’ com- disregard finder fact medical evi- claims, pensation Winston, see F.Supp. simply dence source or particular because it comes from a *8 367; contradicting personal or the ALJ's obser- reports because the medical are sim- vations, Kelly Board, reports see v. ilar to R.R. Retirement filed 625 in counsel other un- (3d Cir.1980). F.2d duty related cases. ALJ 494 “The has a to Such medical re- hear and others, ports, evaluate all may suspect, relevant evidence as well as they in order to deter- but applicant mine whether an incompetent. entitled to are not just disabili- We note that Cotter, ty benefits." (emphasis 704 claimant’s counsel tend to use their own con- added). physicians, government sultative the likewise Judge concurring opinion, Garth’s again while care- time and uses its own selected Social fully researched, reasoned meticulously in- Security physicians, consultative whose medical accurately paraphrases majority’s position the reports may, reader, lay to a striking bear sim- respect to ALJ’s the discretion to evaluate ilarities from one case to the next. Our bottom that, agree medical weighing evidence. We in line report is that the physician, of no whether judgment the physician credibility of a and the the Secretary’s, the or should be of reports, his or her may medical the ALJ dispositive as totally incompetent. treated or the physician consider similar fact that the has made Certainly, the ALJ was within in his discretion findings cannot, in like cases. We how- attributing weight little or no to the ever, accept Judge position Garth’s that the ALJ reasoning Judge on based the of Garth. The find medical so as to similar render not, however, ALJ could find such to be incompetent them unworthy of considera- incompetent evidence. Certainly, tion at all. give an ALJ has to discretion weight little report to a if the ALJ con-
1186 finding contrary, evidence to the of the ALJ. To the the ALJ claims, properly reviewed the support his evidence was Council record and to satisfy substantiate his claim of dis- concluded that Williams did not insufficient to regulations, require statutory finding disability. criteria a ability under the for age mental retardation exist 22. There is sufficient evidence in the record to that before did meet burden Council’s Because Williams not his denial Secretary not re- benefits to Williams. production, was conflicting quired to evidence to submit in We have this case a claimant has who refute his claims. hard all life worked his and who suffers ailments, from a combination such as qualify to for benefits at order pain, arm, back numbness his left step sequential three of the evaluation He poor does not meet the vision. statu- process, equal match a must or a claimant disability, however, tory definition be- impairment. “For claimant listed objective cause he has failed submit listing, impairment matches a show his medical tests to show his medical con- specified medical it must meet all capabilities satisfy dition residual criteria. An manifests Security regulations. v. Social See Selders criteria, no only some of those matter how (5th Cir.1990). Sullivan, 914 F.2d 619 severely, qualify.” Zebley, not does complaints subjective His must be substan- original). (emphasis at 891 “For a S.Ct. tiated medical evidence. U.S.C. qualify by showing claimant to for benefits 423(d)(3). Security Act, Under the Social § impairment, that his unlisted or combina the burden is Williams to demonstrate ‘equivalent’ to a impairments, tion of signs findings medical that he is impairment, listed must medical work. 404.- unable to See C.F.R. § equal findings severity to all the criteria 1528. He must show he has condi- impair most similar listed for the one reasonably expected tion which could (emphasis original). ment.” Id. alleged produce symptoms are to meet burden of Williams failed inability to work. cause of See Green mentally proving he retarded before Schweiker, 1069-70 signifi- age produced 22. He evidence of a Cir.1984); (1991). 20 C.F.R. 404.1529 impairment, did cant mental but he doctors who examined Williams during its occurred demonstrate that onset presented conflicting compensation case developmental period identified of his health. Williams evaluations listings. Dyer’s Dr. re- Had evidence with account presented evidence to IQ to Williams’ sufficient to spect been conditions, combination of none of which mentally prior show Williams was retarded enough to meet the criteria set were severe had age would have regulations. out One of Social proffer to counteract his claim of physicians, on the Security consultative regulations. under hand, thorough gave Williams a ex- other sup- Dyer’s evaluation was not sufficient to only adequately-con- amination and found port prior claim of retardation Williams’ trolled and some arthritis which diabetes 22, however, so age Williams cannot be An- did restrict movements. se- step disabled under three of the found eye gave other examination *9 process. quential evaluation nothing un- X-ray and a chest and found B. usual. respect to regard prong
With to the second As we discussed impairment, Appeals 12.05(C), ad mental requirement of an section diag- disregard to significant limita free work-related Council ditional function, argues doctors in the absence Williams noses of Williams’ tion of conflicting The fact-finder has its evidence. Appeals improperly Council substituted all evidence of ability obligation to to review the finding concerning Williams’ own or claim- perform work for the record to decide whether past relevant testimony is credible. ant’s guard. Van Horn v. This determination was upon based Schweiker, (3d Cir.1983). 873 substantial evidence. determining whether a claimant is enti- Williams testified as to his duties as a to Act, benefits under tled the Secre- security guard. None responsibili- of his tary obligation has an weigh to the medical ties reached the level of medium work as evidence and make choices between con- defined 404.1567(c) 20 C.F.R. (1991). § flicting Cotter, medical evidence. 642 See Since the AU found capable Williams at 705. Williams submitted insuffi- work, medium definition re- cient evidence to pain account for his back tained the “residual capacity” functional to eye problems; consequently the Secre- perform past work as a security guard. tary did not need to submit evidence to “If the claimant is perform able refute each of his claims. work, previous he is not disabled.” Yuc- kert, at Our U.S. standard of review 107 S.Ct. at dictates that we Secretary’s defer to the findings of fact if The AU proceed declined to to the they supported by are substantial evidence. step case, fourth in Williams’ citing this support Such in this case. The court’s decision in Velazquez Heckler, record does not the contention that Cir.1986). F.2d 680 Instead, the significant has an additional and proceeded AU directly step five to con work-related limitation of function. sider whether perform Williams could other jobs existing significant numbers in the
C.
economy.
national
The AU misinterpreted
A claimant who
qualify
does not
for Velazquez.
In Velazquez, this court held
step
benefits under
op
still has the
step
.three
that under
four
sequential
eval
portunity
to show that his
ren
process,
uation
must consider
statutorily
ders him
disabled.
If his “im
(age,
vocational factors
education and work
pairment
is not one
conclusively experience)
in determining whether a claim
presumed to
disabling,
the evaluation
can
past
ant
do his or her
work.
at
Id.
proceeds” to the fourth and fifth steps. The Secretary
promulgated
has since
new
Yuckert,
141-42,
at
regulations,
U.S.
that,
S.Ct.
provide
step
Step
sequential
four,
2291-92.
four of the
evalu
vocational factors are not considered
process
ation
is found at 20 C.F.R. 404.-
determining
or not a
§
whether
claimant
1520(e):
retains the residual
capacity
functional
past
perform
relevant work. 20
impairments)
C.F.R.
prevent
Your
you
must
404.1560(b)(1991).
Appeals
doing past
Council
relevant
If
work.
we
correctly
misinterpretation
found the AU’s
cannot make a
your
decision based on
Velazquez
legal
to be
error.
activity
current work
on medical
or
facts
alone,
you
have a
impair-
severe
qualify
Williams did not
for benefits at
ment(s),
your
we then review
residual
step three because his medical condition
capacity
physical
functional
and the
matching
short
equalling
fell
a listed
you
mental demands of the work
impairment. The AU as finder of fact was
“
past.
done
If
can still
you
do this
required
proceed
step
four.
‘If
work,
you
kind
we will find that
are
impair
claimant suffers from a less severe
not disabled.
impairments,
ment’ than the listed
‘the Sec
retary
determined that
must
whether the claim
determine
capabilities
Williams’ residual
ability
perform
functional
retains the
ant
either his
prevent him
performing
would not
demanding
former work or some less
em
”6
physical and mental
demands associat- ployment.’
Zebley,
Williams, an from process out work, set sequential and evaluation medium at capable of least regulations. Security in the record Social evidence medical is no there intel- limited a manifestation to establish V. pe- developmental functioning lectual Ap- that dictate therefore court concluded The district regulations The riod. the AU’s disabled. not reversed properly be found peals that Williams Because awarding benefits. func- residual decision your compare first We will qualify benefits fails physical capacity with tional sequential evaluation you of the step of work three the kind mental demands evidence is substantial you have there If still past. process in the have done determina- do Council’s capacity to support the functional residual pre- ailments work, find will of Williams’ we that none relevant tion past your security work, working as from your him past still do you can vented that order of not dis- you that are will affirm we guard, will determine we your vocation- considering abled, court. without district and work age, education al factors concurring: GARTH, Judge, Circuit experience. 404.1560(b). C.F.R. I. that found if it could be Even record majority with the agree I past perform his unable Williams was that Williams substantial reveals it, still he would described as he work Indeed, can the most that not disabled. is he could step that five show at that Williams record is from the gleaned national econo gainful work perform diabetes, from suffers arthritic is 133, 135 Harris, my. See Jock very Apart from the is controlled. impair listings define Cir.1981). “The of Williams’ reports medical questionable adult, regard prevent an would ments later, say more I shall of which physicians,1 experi or work age, education of his less any suggestion made, nor does is claim no activity, gainful ence, performing ” to return is unable appear, that activity.’ gainful just ‘substantial em- was last which he work in same origi (emphasis at 892 S.Ct. Zebley, 110 ployed. nal). however, I because separately, I write establishing The standards toleration majority’s dispute strongly provide regulations fairly strict. are medical stereotyped boilerplate, part this case presented as those such medi- perform capacity to The functional asserts, in majority counsel. substantial represents such um work judge law dictum, administrative lev- unskilled even the capability at work “evidence” medical disregard may not ordinarily finding disabled el that sim- reports are because the simply severely where in cases not warranted in unrelated by counsel filed ilar functional retains individual impaired I cannot n. 5. op. Maj. cases. Even medium work. perform capacity to agree. (55 age advanced adversity of thesis, differs My of unskilled history over) a work contend, and I one: simple is a majority, substantial by the may be offset work law administrative hold, if an func- would capability represented work with medical presented work. medium perform capacity to tional Matthews, apparently were of whom all and engaged reports were physicians whose 1. The by Williams’ consultative Her- Doctors are claims on behalf Williams’ mele, Pollock, Dyer counsel. Ahmad, Klein, Scannapiego, *11 source, including reports drawn needs, health care disability benefits and by physicians consultative the like. the claimant government, or of the and if the adminis- II. judge recognizes
trative law
reports
these
mimicking,
word-for-word,
as
virtually
re-
judge
administrative law
who heard
ports
other,
claim,
submitted
connection with
after considering the re-
claimants,
ports
unrelated
administrative
Williams’ physicians,
law
give
chose to
judge
reports
their
ignore
weight.
should then
free
little
be
or
To understand
the context in
reject
which the
reports
as medical evidence.
administrative law
judge analyzed the “evidence” submitted
problem before,
I have written about this
on
Williams,
behalf of
to appreciate
Heckler,
see Coria v.
My overriding concern is that a claimant in connection with a compensa- worker’s legitimate with a disability ailment or tion reports claim. These were sub- should not simply be denied benefits be- Hermele, Ahmad, mitted Dr. Dr. Dr. cause the boilerplate medical evidence Klein, Dr. Pollock and Dr. Matthews. submitted behalf is non- These frequently doctors submit particularized and inadequate. therefore cases heard the Secretary and the my mind, To such a denial would undersigned is constrained to note that rights, abuse of the generated findings their rarely conclusions by a appropriate failure of medical evi- vary from ease to case and are carbon dence and appropriate legal representation. copy Reports like nature. of these By token, taxpayers same should not physicians frequent- have been reviewed required pay benefits for disabilities ly by Thus, the courts. in Franklin v. which do not exist are either created Heckler, (1984), F.Supp. the dis- by physician’s copier, word processor, trict court examined which are taken from his form file. Pollock, Dr. Ahmad and Dr. Klein. Thus, the failure to a claim of It was noted that fre- professional with a and indivi- quently prepared reports in Social Securi- judgment dualistic operates ty claims and exceptions that with few against interest, but, the claimant’s if we findings these doctors’ and conclusions require judges administrative law give remarkably report were similar after weight or unprofessional credence to such report. The court further noted that reports, help impose it cannot an un- were properly afforded lit- conscionable strain on the taxpaying pub- any weight. undersigned tle if
findings and and these dersigned cast carbon As low, mitted pensation claim. ring to doctors, this nasal rarely undersigned referable from ing. The doctor found ditions simple as claimant the claimant 1962) and claimant ed vision was hearing loss on clusion is noses these questioned. 1984 Dr. Matthews 27). ant was examined In the same noted, Iacova, nor did [*] but significant these Further, pharyngitis. physicians, vary from case to could be copy like reports suffered it is including Morrison did not exhibit to these carbon a cold fully 81-1526, Davis [*] number month, May conditions (CA he has been conclusions. were specifically noted frequently More the doctor considered doubt on caused normal essentially and, from copy like [*] 83-2646)- from rhinosinusitis nature of the delineated further As noted the claimant’s problems by Dr. prepared However, audiogram specific reported more and their significantly under reports these [*] case. so that his any significant their sees (CA the always diag- something as Scannapiego. significantly, no care for for a com- nature complaints and these [*] were report of (CA 79- well, the objective 83-2486) findings The (Exhibit correct- reports reports May claim- other hear- sub- con- con- [*] and and the un- be- generally ports, However, hospital care any does pulmonary ease tal record ber of consultative treatment ings of significantly, creased creased these continue and need not worker’s pared thopedic the claimant suffered every Dr. Pollock smoking uals lished anxiety Klein and Matthews reveal similar report significant undersigned .... Dr. Hermele objective active report he including 1984 reports were in connection pulmonary Dr. Hermele it exposure to disorder, heart and impairment. pulmonary compensation present. are more recent reports the claimant of and the carbon In reported in makes markings can be care, a consultative for such while keep light size on treatment, emergency or initially submits, also depression claimant condition make of Dr. findings." Not examiners, the doctor working well after such a fumes with the prepared. hospital marking and finds neurological resid- findings of a num- must be January 1988that However, the un- x-rays, other re- has not claim. the lack pulmonary were problem. them in copy like find- Hermele, Dr. as well examiner it indicative of was able is not estab- and an or- x-rays and significant caused *12 diagnosis. performed numerous concluded found increased required Also nearly of the hospi- as an More pre- dis- fail in- in- *13 tion and concluded that there was no past the on behalf of other claimants. As psychiatric problem acute present. The former district court Judge Lacey noted: undersigned further notes that the claim- representative, [P]laintiffs the firm law ant has sought required out or care of Bass, Freeman for the condition invariably and no other consulta- submits tive physicians’ examiner these problems noted emotional reports to support their nor did the hospital report of August clients’ claims. After a review over sev light In copy carbon like years eral reports of from each of these nature of Dr. reports Pollock’s other physicians, it must be said that the re objective evidence contrary significant a ports before me are questionable of problem emotional (Ex- is not established weight. 20). hibit 25 and With few exceptions over years, Also in evidence report is a these physicians’ findings 25,1988. Ahmad January dated conclu- The doc- tor sions concluded that the claimant have been remarkably suffered similar in fibromyositis of report fibromus- [inflammation report, after while dealing with cular spinal sprain. The un- tissue] males and females of widely disparate dersigned notes that Dr. Ahmad sub- backgrounds. They certainly do not re- mits reports which are frequently seen flect highly a individualized examination by undersigned as well by as required the kind in matters such as courts, district above, as noted and his this. findings and rarely conclusions vary Franklin, being F.Supp. case to case carbon copy nature_ like However, in the un- Clearly, will as below, demonstrated dersigned does not accord these find- reports the medical Freeman ings great weight general- the doctor as & Bass in case contain little ly lists the exact same restrictions in more than the boilerplate language to nearly every case in which report a Judge Lacey referred in Franklin. submitted.... Thus, those reports cannot consti- Also in evidence report is a from Dr. expert tute reliable professional testimo- Dyer (Ph.D) psychologist. This report and, ny in my opinion, properly should also, apparently, prepared a com- rejected. pensation recognize, course, I case and more significantly the report doctor’s markedly judge deficient.... administrative law in Williams’ case frequently doctor reports submits reject did not this outright, evidence and generally provide does not a full analyzed and, rather it after recog- range nor, apparently, of scores have the nition of virtually identical evidence un- attorneys informed the doctor cases, related determined that the evidence of the need to meet the Secretary’s re- presented by Williams should be accorded quirements. This despite is so the fact weight. little Nevertheless, the majority, attorneys these are well versed in its footnote instructs dictum that Secretary’s regulations, appear fre- “the finder of fact disregard medi- quently before him and the fact cal simply it because comes from such comments have been made particular source, nor because the medi- past regarding the reports. doctor’s cal similar are filed (A. 22-25) (emphasis added). counsel in other Maj. non-related cases.”
III. op. at 1185 5.n.
A. view, In my has, majority like the ostrich, As proverbial its administrative law ob- hidden head served, the medical submitted on refusing sand to recognize of a evils diag- Dr. Pollock August On very purpose subverts practice presser, Franklin, a clothes Mary nosed Social disability provisions residuals “[njeurological suffering from provide designed act Security Act—an fumes, and loud dust re noxious exposure See truly disabled. benefits anxiety psychoneuro- Sullivan, noise and traumatic Petition of neuritis, to acci- intent attributable “Congress’s sis, also sciatic Cir.1990)(identifying Dr. Pollock the Social work.” exposure under disability benefits dent limiting indus- are unable “[ajs physiological those who only to Security Act concluded activity.”). cause, petition- gainful unit, regardless substantial perform trial *14 expressed concerns that the disabled.” thus clear to be 100% appears isIt er yet been cases the above-cited F.Supp. at 793. court, lead- recognized this adequately diagnosed 24, 1980, Pollock July Dr. On an adminis- that majority to state ing the suffering painter, as Bryant, a James disregard medi- may not judge trative law to exposure of residuals “[njeurological filed similar to reports that are cal fumes, noise and and loud dust noxious even cases non-related in other by counsel also sci- anxiety psychoneurosis, traumatic the flaws identified though AU has and neuritis, to accident attributable atic to other them comparing reports after such concluded Dr. Pollock work.” exposure at I refer below disability claims. unrelated unit, industrial “[ajs physiological a boiler- where of instances sampling to a cause, appeared to he of regardless sub- been reports have carbon-copy plate, at 796. Id. disabled.” 100% of medical evidence as mitted different by several diag- claims made Dr. Pollock October On laborer, claimants. Lee, construction a Robert nosed residuals “[njeurological suffering as fumes, dust and noxious to exposure of B. anxiety psycho- traumatic noise and loud Pollock, neuro-psychia- neuritis, a attributable neurosis, L. Dr. Samuel also sciatic Williams, had been who Dr. trist, diagnosed at work.” exposure accident to a and as security guard as a employed “[ajs a physiological concluded Pollock factory, suffer as cause, ap- steel drum in a he unit, of regardless worker industrial expo of “[n]eurological residuals ing from Id. at to disabled.” peared be 100% fumes, loud noise dust and to noxious sure diag 22, 1983, Dr. Pollock September On disorder, anxiety stress traumatic post Felder, in a lumber a laborer nosed Eddie Dr. at work.” exposure to attributable “[n]eurological suffering from factory, as physiological concluded “[a]s Pollock fumes and noxious exposure to residuals cause, ap he unit, regardless industrial neuritis, noise, also sciatic and loud dust 185-86). (A. disabled.” to be peared 100% at anxiety psychoneurosis, traumatic documented Lacey Franklin, Judge In Dr. Pol at work.” exposure to tributable medical randomly selected several physiological concluded “[a]s lock on behalf submitted had Dr. Pollock cause, ap he unit, regardless industrial July clients. On Bass& Freeman at 792. Id. disabled.” peared be 100% Cruz, Adolfo diagnosed Pollock Dr. or a judge law Surely, administrative an worker, suffer as maintenance outdoor confronted judge, when court district expo residuals “[n]eurological ing from reports, undifferentiated fumes, loud noise dust and noxious sure entirely regard them free should feel also anxiety psychoneurosis, traumatic identifies who physician A non-probative. neuritis, accident attributable sciatic every bene- ailment in job-related the same concluded Dr. Pollock work.” exposure at claimant, regardless fits unit, industrial physiological that “[a]s circumstances, simply particular job or cause, appeared regardless not credible. F.Supp. at 794. disabled.” 100% objection C. to the testimony of phy- Williams’ they sicians if discharged had respon- their Winston, court district not- professional sibilities in a do, manner. I ed that each of security- three social however, object to giving judicial recogni- him, appeals then Dyer before Dr. Frank J. tion to type of boilerplate medical re- reported “perceptual rotations, ports fragmentations, integration simplifications, case, this which have been documented as problems, gross, and other distortions ob- having been submitted in countless other served in this client’s Bender Gestalt Test cases in connection with unrelated claim- suggestive very record are of a severe vis- ants. type This of medical evidence can integration ual-motor problem ...” 585 only have a disastrous effect on a claimant F.Supp. Similarly, at 368 n. 5. who indeed have a physical serious case, Dyer reported ailment or who, mental disability, but hav- “rotations, simplifications, perseverations, ing diagnosed been and subject rote and other distortions observed the type of robotic diagnoses that I have client’s Bender Gestalt sug- Test record are catalogued here, hope cannot to succeed in gestive of integration a severe visual-motor having legitimate benefits awarded. *15 problem.” (A. 187). protect Unless .we such individuals from reports Winston, the three cited in practice invidious and identify those Dyer Dr. “[bjased concluded that on the responsible who are subverting the findings, above very it is that [plaintiff’s] programs felt designed to benefit dis- the. abled, prospects for we will condoning success would be be virtually abetting nil and the continuation of an any should, employment requiring exercise that complex oral instead, be condemned. How can we communication, effect perceptual fine motor a so, condemnation? canWe do as I skills, rapid cognitive processing large by advocate here, holding that an adminis- information, amounts of reading, or basic judge trative law recognizes who and iden- arithmetic, and language written skills.” tifies such rote and undifferentiated re- F.Supp. present at 368 n. 5. In the ports should not accept competent them as ease, Dyer the same reached conclu- medical evidence. sion: findings, the above it is “[b]ased hand, On the other the mere fact that felt that Mr. prospects William’s for suc- medical evidence in originates case one virtually cess would be nil in employ- particular from a physician may who also requiring ment complex oral communica- presented in other cases tion, skills, perceptual fine motor rapid cog- evidence, should not taint that medical so nitive processing of large amounts of infor- long as the evidence is individualized and mation, reading, arithmetic, or basic particular tailored to the In such claimant. (A. written language 188). skills.” case, may given the evidence whatever remaining Williams’ physicians similarly weight the judge administrative law deems provided diagnoses standardized course, appropriate, subject always, of Klein, Williams. Dr. Warren example, satisfying requirements the evidence the diagnosed Williams suffering as Secretary’s regulations.' conjunctivitis (A. chronic eyes, 184), of both majority justifies of undif- use a diagnosis that he consistently gives to reports by stating ferentiated medical represented clients Williams’ “just as claimant’s tend to use counsel See, Franklin, e.g., counsel. F.Supp. physicians, their own consultative at 817-26. government again likewise time uses Security its own selected Social consulta- IV. physicians, reports may, tive whose medical why There is no reason we should re- reader, striking lay similarities bear quire judges administrative give any law Maj. op. from one case to the next.” physicians credence to diagnoses whose are First, comprehend 1185 n. I do not standardized and remain constant test, which is majority’s relevance of the register claimant to claimant. could I no lay may reader measured whether weight may be little dence, though even re- among any similarities discern reports it, stereotyped medical given to the evalua- is uncontroverted It ports. language virtually same contain not of which function is the reports tion of such the claimant regardless of diagnoses administra- experienced lay readers condition. the claimant’s those review of and the judges, law tive Ap- Secretary’s the task evaluations charges me with majority Although the similarly are Council,whose members peals position, I think a its having misconstrued assessing experienced with familiar disagreement with reading my fair medical evidence. character- out that not bear majority will majority acknowledge that I that al- ization. to me Second, significant it mere considera- more than require does not that consulta- implies majority though the with reports, physicians’ boilerplate tion government engaged physicians tive reports left accorded those weight to be construed file law of the administrative discretion not a scintilla provides similar, majority however, is substan- My position, judge. be- any comparison of evidence the ad- I would authorize tially different. reports of undifferentiated tween such evi- reject law by ministrative behalf on Williams’ consulted physicians by the cases cited outright. The dence prepared and the counsel Williams' op. at Maj. in its footnote majority physi- consultative government’s by the kind of rote the same not involve do government’s tarring the Before cians. in this submitted were phy- medical as the brush the same with case, hold otherwise. do not reports, it who sicians “ evidence, no to me that some appear would majority agree ‘[t]he I *16 there- cited. I slight, should matter how all and evaluate duty to hear has a ALJ for grossly unfair that it is fore believe to determine in order evidence relevant charge unproven an level such majority to to disabili applicant is entitled whether ” by the consulted physicians against quot n. op. at Maj. ty benefits.’ shred providing even a Secretary without Harris, v. ing Cotter citation, example, evidence, or an case However, majority, I unlike the Cir.1981). government inference that supporting undifferentiated do believe that in practices same engage submitted which were reports, of the sort Klein, Ahmad, Hermele, Doctors which behalf, possibly be con can on Williams’ Pollock, Dyer and Matthews Scannapiego, evidence.” “relevant sidered yet to read myself I have engaged. court, reviewing urge the I therefore physician government by a prepared report closely scruti- disability appeals, future diagnoses previ- parrots word-for-word that evidence the medical quality of nize for a physician by the same ously made represent- who are by claimants sincerely doubt I patient, different represent who counsel the same ed majority constitute who my colleagues en- or, indeed, any who counsel such have encountered this case the ad- practices. Where in similar gage they had, I certain that they am either. If the same identifies judge law ministrative my attention. them to called would have doc- I have circumstances egregious here, to hold urge the court I umented V. disregard totally free to judges are I majority and fact Despite the reject evidence. confronts primary issue agree supports us, i.e., substantial FOR REHEARING PETITION SUR Williams, I have of benefits the denial Aug. opinion writing separate this digressed Judge; SLOVITER, Before: practice about my concern Chief highlight MANSMANN, STAPLETON, BECKER, too all has become disability area that HUTCHINSON, SCIRICA, GREENBERG, condemn, I practice, prevalent. That ROTH, ALITO, NYGAARD, COWEN, condemn, is urge the court I and which Judges. *, evi- Circuit competent GARTH accepting as practice of * rehearing. panel As to petition rehearing appel- filed having
lant judges been submitted to the participated who decision court and to all the other circuit available judges of regular the circuit in active ser-
vice, and no who concurred in the having
decision asked rehearing, and a majority judges of the circuit of the circuit regular active service having voted
for rehearing banc, the court in petition for rehearing is denied. PROPERTIES,
GWYNEDD INC., Appellant, TOWNSHIP, LOWER GWYNEDD Cath- Harper, Brandt, erine M. Edward J. Kirch, Landis, Janet H. Richard McQuade. Robert
No. 91-2074. United States Court of Appeals,
Third Circuit. Argued June July Decided notes public already lic—a which is burdened similar conclusions have been arising with enormous social costs unreported reached in other cases refer- reproducing judge’s judge’s opinion law tions of the administrative law administrative report, liberty correcting any I have taken the so to call immediate attention to the issue typographical appeared origi- errors that that concerns me. emphasized nal por- text. I have also certain
Notes
found flammation impair the claimant’s they are vision always diagnoses ever, signed notes that and more Also find the easily problems conjunctivitis May present. importantly of the presence treatable, (Exhibit 1984 the claimant these them. eyelids]. The [Dr. vision undersigned does conditions even 24). any significant blepharitis They Scannapiego] significantly assuming are, did not under- how- was [in- reports have was purposes. mal, coordination was find dersigned notes originally doctor no fingers nature. abnormality. normal tremors case to found but he It is prepared for His the claimant’s case and is been seen of the significant finds this diagnosis However, motor eyelids, intact, sensation findings showed from to note carbon rarely compensation gait was nor- tongue and every this doctor doctor copy in varies case did doctor noted this while physician Hermele. The by Dr. no other examined Romlerg no swaying suffered the claimant there concluded that However, and Dr. Pol- physician noted lung disease. restrictive other How- every case. ... this in submits lock frequently the doctor finds undersigned cannot accord ever, pre- originally were light weight great conclusions doctor’s cases and compensation pared performed fact that Dr. Shah a behalf of mimic, almost word-for- full consultative psychiatric examination word, the which these same significant found no emotional condi- physicians have consistently submitted in