Margaret M. Smith v. Commissioner of Social Security

*Honorable Jan E. DuBois, Senior District Judge for the Eastern District of
Pennsylvania, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-3533
MARGARET M. SMITH,
Appellant
v.
COMMISSIONER OF SOCIAL SECURITY
Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 04-cv-02616)
District Judge: Honorable Joseph A. Greenaway, Jr.
Submitted Under Third Circuit LAR 34.1(a)
April 21, 2006
Before: SLOVITER and AMBRO, Circuit Judges,
and DuBOIS, * District Judge
(Opinion filed: May 1, 2006)
OPINION
AMBRO, Circuit Judge
Margaret Smith (“Smith”) appeals from an order of the United States District

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Court for District of New Jersey affirming the Commissioner of Social Security’s
(“Commissioner”) decision denying her application for disability insurance benefits.
Smith asserts that the decision of the Administrative Law Judge (“ALJ”) and the District
Court’s affirmation of that decision are unsupported by substantial evidence and should
therefore be reversed and remanded for a new hearing. For the reasons that follow, we
affirm the order of the District Court.
I. Facts and Procedural History
A.
Smith was fifty-eight years old as of the date of the ALJ’s decision. She has a
tenth-grade education. Her last job as a cafeteria attendant entailed operating a cash
register, stocking a salad bar and counters, mopping floors, and gathering boxes.
Smith filed an application for disability insurance benefits on August 8, 1996,
alleging disability as of November 12, 1995, resulting from severe medical impairments,
including orthopedic and neurological conditions. The Commissioner denied her
application initially and again on reconsideration. Smith requested and was granted a
hearing held on January 7, 1998 before ALJ Michael H. Noorigian. The ALJ found that
she was not entitled to a period of disability or disability insurance benefits under §§
216(i) and 223 of the Social Security Act (“SSA”). Smith’s subsequent request for
review by the Social Security Appeals Council (“Appeals Council”) was denied.
However, on appeal to the District Court, Smith obtained an order to remand to the
Appeals Council on January 10, 2003. In turn, the Appeals Council remanded the matter

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back to the ALJ for a new hearing.
During the pendancy of the request for remand, Smith filed a second application
for disability insurance benefits in March 2000, alleging that she had been disabled since
March 26, 1998. The Commissioner agreed that Smith was disabled, though the
determination was her disability began December 1, 2000. The Appeals Council
sustained this ruling. As a result, Smith argued on remand to the ALJ in the case now
before us that she also was disabled between November 12, 1995 and December 1, 2000.
The ALJ once again issued an unfavorable decision, finding that Smith was not entitled to
disability insurance benefits for the period before December 1, 2000. Smith’s request for
review by the Appeals Council was denied.
Smith again appealed to the District Court. This time it affirmed the denial of
benefits. This appeal followed.
B.
Smith offered the following evidence in her second hearing before the ALJ.
Dr. Albert Mylod
Dr. Mylod, a board certified orthopedic surgeon and an expert on orthopedic
disabilities, testified at Smith’s behest at the ALJ hearing on January 7, 1998. Dr. Mylod
has testified at more than two thousand hearings as both a medical expert and medical
advisor. He had not examined Smith, but based his conclusions on her medical records
and her subjective complaints. Dr. Mylod opined that Smith suffered from spondylitic
ridges, or a degenerative change indenting the spinal cord. Dr. Mylod further opined that

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Smith had classic signs of fibromyalgia, as indicated by her sleep disturbances, crying,
and fifteen pound weight loss. Despite Smith’s impairments, the doctor stated that she
did not satisfy any medical listing in the Listing of Impairments. He did testify, however,
that Smith would have trouble walking more than one and a half blocks, standing still for
more than fifteen minutes, and sitting for six hours. Dr. Mylod also reported that he
believed that the type of pain described by Smith was supported by the record.
Dr. David Brown
Smith was examined by Dr. Brown in September 1996. He reported that Smith
suffered tenderness on very light touch over certain areas of her back. According to Dr.
Brown, Smith had full range of motion of the shoulders, elbows, wrists, hips, knees, and
ankles.
Dr. Joseph Schullman
Smith was in the care of Dr. Schullman from November 1995 through February
1996. He recommended physical therapy for Smith, who told him that she felt up to sixty-
five percent better (but that she had both good and bad days). Dr. Schullman’s records
indicated that Smith was to return to moderate duty work February 21, 1996. According to
his report, Smith did return to work for three hours a day, but was in too much pain and
too upset due to her mother’s illness to continue.
Dr. Gregory Gallick
Dr. Gallick, an orthopedic surgeon, evaluated Smith multiple times between March
1996 and August 1996. Upon meeting with Smith several times over approximately two

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1The District Court had subject matter jurisdiction pursuant to 42 U.S.C. § 405(g).
We exercise appellate jurisdiction pursuant to 28 U.S.C. § 1291.
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months and noticing only minimal improvement, Dr. Gallick told her that she might have
to learn to live with her problems. He also asserted that he was unsure of how much help
physical therapy or surgical intervention would be, as her condition may be permanent.
Dr. Gallick maintains that Smith’s medical condition is very serious and that she is
completely unable to do even light duties for more than one or two hours.
III. Standard of Review
On appeal from the District Court’s decision affirming the Commissioner’s denial
of disability insurance benefits, our review of legal issues is plenary.1 Sykes v. Apfel, 228
F.3d 259, 262 (3d Cir. 2000). We review the ALJ’s factual findings only to determine
whether they are supported by substantial evidence. 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 facts are supported by substantial evidence, we
are bound by those facts, even if we would have decided the factual inquiry differently.”
Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001). Thus, the issue we must decide is
whether the ALJ’s decision that Smith was not disabled, and thus not entitled to disability
insurance benefits, is supported by substantial evidence.

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IV. Discussion
A.
Eligibility for disability insurance benefits under the SSA is conditioned on
compliance with all relevant requirements of the statute. “[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.” Id. at 38-39 (internal quotation marks and citations
omitted); see also 42 U.S.C. § 423(d)(1)(A). A “medically determinable” impairment is
one that results from anatomical, physiological, or psychological abnormalities
demonstrable by medically acceptable clinical and laboratory diagnostic techniques. 42
U.S.C. § 423(d)(3). The SSA further explains that an individual will be determined to be
disabled
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 work
which exists in the national economy . . . .
Id. § 423(d)(2)(A).
In order to make that determination, the Commissioner follows a five-step
sequential procedure for evaluating disability claims. See 20 C.F.R. § 404.1520. First,
she considers whether the claimant is currently engaged in substantial gainful activity. 20
C.F.R. § 404.1520(a)(4)(i). If so, the claimant is not disabled regardless of her medical
condition. 20 C.F.R. § 404.1520(b). If not, the Commissioner goes on to consider

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whether the claimant is suffering from a severe impairment or combination of impairments
that significantly limits her physical or mental ability to do basic activities. 20 C.F.R. §
404.1520(a)(4)(ii) and (c). If the answer is yes, we go to step three: whether the claimant
has an impairment that meets or equals a list of impairments set forth in 20 C.F.R. Pt. 404,
Subpt. P, App. 1, which are presumed severe enough to preclude any gainful work. 20
C.F.R. § 404.1520(a)(4)(iii) and (d).
If a claimant does not suffer from a listed impairment or its equivalent, the analysis
proceeds to steps four and five. In the former, the ALJ is required to consider whether the
claimant retains the residual functional capacity to perform her past work. 20 C.F.R. §
404.1520(a)(4)(iv) and (f). The claimant bears the burden here. Burnett v. Comm’r of
Soc. Sec., 220 F.3d 112, 118 (3d Cir. 2000).
If the claimant is unable to resume her former occupation, the evaluation moves to
the final step. At this stage, the burden of production shifts to the Commissioner, who
must demonstrate the claimant is capable of performing other available work in order to
deny a claim of disability. 20 C.F.R. § 404.1520(a)(4)(v) and (g). The Commissioner
“must show there are other jobs existing in significant numbers in the national economy
which the claimant can perform, consistent with her medical impairments, age, education,
past work experience, and residual functional capacity.” Burnett, 220 F.3d at 118.
B.
Smith claims the ALJ erred at step four in determining that she retained the residual

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functional capacity to perform her past relevant work because his findings were not
supported by substantial evidence. Specifically, Smith argues that the ALJ failed to: (1)
follow our Court’s holding in Cotter v. Harris, 642 F.2d 700 (3d Cir. 1981), by neglecting
to specify the reasons for the rejection of Dr. Mylod’s testimony, (2) accord the proper
“enhanced weight” to Dr. Gallick’s opinion, and (3) consider all of her impairments,
specifically the effect of her nervousness and anxiety on her residual functional capacity.
We address each of these arguments in turn.
1. ALJ’s treatment of Dr. Mylod’s Testimony
As noted above, Smith contends that the ALJ failed to give reasons for giving no
weight to Dr. Mylod’s testimony. When determining a claimant’s residual functional
capacity, the ALJ must consider all relevant evidence. Fargnoli, 247 F.3d at 41; see also 20
C.F.R. §§ 404.1527(e)(2), 404.1545(a), 404.1546. This includes “medical records,
observations made during formal medical examinations, descriptions of limitations by the
claimant and others, and observations of the claimant’s limitations by others.” Fargnoli,
247 F.3d at 41.
In addition, the ALJ must give “a clear and satisfactory explication of the basis on
which [the residual functional capacity] rests.” Cotter, 642 F.2d at 704. In Cotter,we
explained that
[i]n our view an examiner’s findings should be as comprehensive and analytical as
feasible and, where appropriate, should include a statement of subordinate factual
foundations on which ultimate factual conclusions are based, so that a reviewing
court may know the basis for the decision. This is necessary so that the court may
properly exercise its responsibility under 42 U.S.C. § 405(g) to determine if the

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Secretary’s decision is supported by substantial evidence.
Id. at 705 (quoting Baerga v. Richardson, 500 F.3d 309, 312 (3d Cir. 1974), cert. denied,
420 U.S. 931 (1975)). Cotter requires that the “ALJ not only [give] an expression of the
evidence s/he considered which supports the result, but also some indication of the
evidence which was rejected.” Id. If the “ALJ fails to identify the evidence he or she
rejects and the reason for its rejection,” we are unable to conduct a substantial evidence
review. Walton v. Halter, 243 F.3d 703, 710 (3d Cir. 2001).
Dr. Mylod is a non-examining expert who based his testimony on Smith’s medical
reports, her subjective complaints, and an examining physician’s (Dr. Gallick’s) opinion
that Smith is unable to perform light duties. Contrary to Smith’s argument, the ALJ does
set forth the following reasons for giving no weight to Dr. Mylod’s testimony:
1. First, the ALJ accorded no significance to Dr. Mylod’s determination that
Smith would have trouble walking more than one and a half blocks, standing
still for more than fifteen minutes, and sitting for six hours, because the
doctor only reached that conclusion after he took into account Smith’s
subjective complaints. Based solely on the objective evidence, Dr. Mylod
stated that Smith would be able to sit close to six hours in an eight-hour
workday without pain if she did not move a lot.
2. Second, the ALJ pointed to Smith’s failure to submit an explanation for what
Dr. Gallick meant by light duty work. The record indicates that there was
confusion about the doctor’s understanding of “light work,” as that term has
one definition in the Social Security context and another in the worker’s
compensation context. When confronted with this problem, Dr. Mylod
testified that the resolution of this issue would affect his opinion. Smith’s
attorney agreed to obtain clarifying information from Dr. Gallick, but
ultimately failed to do so.
3. Next, the ALJ rejected Smith’s contention that Dr. Mylod’s testimony should
be afforded enhanced weight since he had been used in the past as a medical

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2 Dr. Gallick’s testimony is consistent with Dr. Mylod’s testimony in that both
physicians agree that Smith cannot perform light work. The ALJ noted, however, that his
discrediting of Dr. Gallick’s testimony was further reason to give no weight to Dr.
Mylod’s testimony. Cf. 20 C.F.R. § 404.1527(d)(4) (“Generally, the more consistent an
opinion is with the record as a whole, the more weight we will give to that opinion.”).
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expert for the SSA. According to the ALJ, this was because Dr. Mylod was
not appearing as an impartial medical expert in the proceedings here. Instead,
he was serving as Smith’s witness.
4. Finally, the ALJ relied heavily on the reports from Smith’s treating physician,
Dr. Schullman, and consultative examiner, Dr. Brown, which demonstrated a
general absence of any clinical abnormalities. Dr. Schullman’s report
indicated Smith was improving with therapy and that he expected Smith to be
able to return to moderate work in February 1996. Although Dr. Gallick2
reported that Smith suffered from muscle spasms and tenderness, neither of
these findings is seen in the reports of the other doctors.
Therefore, the ALJ did set forth properly “a clear and satisfactory explication of the
basis on which [his rejection of Dr. Mylod’s testimony] rest[ed],” as mandated by our
decision in Cotter. 642 F.2d at 704.
2. ALJ’s treatment of Dr. Gallick’s Testimony
Smith claims that the ALJ failed to accord “enhanced weight” to her treating
physician’s opinion. We have made clear that treating physicians’ reports should be
accorded great weight, especially “when their opinions reflect expert judgment based on
continuing observation of the [claimant]’s condition over a prolonged period of time.”
Rocco v. Heckler, 826 F.3d 1348, 1350 (3d Cir. 1987); 20 C.F.R. § 404.1527(d)(2)
(providing for controlling weight where treating physician opinion is well supported by
medical evidence and not inconsistent with other substantial evidence on the record).

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Indeed, an ALJ “may reject a treating physician’s opinion outright only on the basis of
contradictory medical evidence.” Plummer, 186 F.3d at 429.
The record reveals that the ALJ gave no weight to Dr. Gallick’s opinion that Smith
was “disabled.” The ALJ was not required to accept that conclusion because the
determination whether Smith is disabled is an ultimate issue reserved to the Commissioner
in the first instance (and later the reviewing panels). 20 C.F.R. § 404.1527(e); Social
Security Ruling 96-6p. Indeed, unlike the medical opinion of a treating physician regarding
the nature and severity of an individual’s impairments, which may be entitled to controlling
weight, no special significance is given to the source of an opinion on the ultimate
outcome. 20 C.F.R. § 404.1527(e)(3).
The ALJ then considered Dr. Gallick’s testimony concerning the nature and severity
of Smith’s impairments. As noted above, while these findings may be entitled to
controlling weight, they may also be rejected on the basis of countervailing or inconsistent
evidence. Plummer, 186 F.3d at 429. Here, the ALJ rejected Dr. Gallick’s testimony to the
extent that it was inconsistent with the reports of Drs. Schullman and Brown. As the ALJ
emphasized, notably absent from both doctors’ reports was mention of any clinical or
neurological abnormalities. We cannot conclude that the ALJ erred in rejecting Dr.
Gallick’s testimony, as it was inconsistent with objective medical evidence in the record.
3. ALJ’s Treatment of Smith’s Nervousness and Anxiety
Smith argues that the ALJ did not consider the effect of her nervousness and anxiety
on her residual functional capacity. As stated previously, Smith was found to be disabled

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as of December 1, 2000. The basis for that decision was Smith’s satisfaction of the
requirements of Listing 12.06A and 12.06B, Anxiety Related Disorders. Smith contends
that the ALJ did not consider properly her psychiatric symptoms prior to December 1,
2000. However, the ALJ correctly determined that there was no evidence of mental
impairment in the record in his review of Smith’s first application.
Smith’s own testimony clearly showed that she did not believe herself to be disabled
due to any anxiety or depression during the relevant period here. During her first hearing in
January 1998, Smith testified as follows:
Smith’s Attorney: “Have you had any problems with depression or anxiety since
the car accident?
Smith: No. I do get upset, I do cry sometimes when I can’t do things I
used to do.
At her subsequent hearing in January 2004, Smith’s attorney declined to take testimony
from her on the extent of any mental limitations for the period from 1995 through
December 2000, instead relying on evidence already in the record. That evidence noted no
severe mental impairment. Moreover, contemporaneous medical records showed no
evidence of treatment of any mental condition until December of 2000, when Dr. Chun,
Smith’s family physician, placed her on Paxil. Based on an October 2001 psychological
consultative examination and reports from Dr. Chun, two state psychiatrists who reviewed
the medical record agreed that the onset of Smith’s disability due to her anxiety disorder
was December 2000, but not before. Because there is no evidence of mental impairment on
the record prior to December 2000, we believe the ALJ properly considered all of Smith’s

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3 A Residual Physical Functional Capacity Assessment was added to the record on
remand. That Assessment was reviewed by Medical Consultant Burton Gillette, M.D., on
July 31, 2001, and it also supports the ALJ’s conclusion that Smith has the ability to
perform a full range of light work. Specifically, the Assessment indicates, inter alia, that
Smith has the ability to lift fifteen pounds frequently and thirty pounds occasionally, to sit
or stand for about six hours in an eight-hour workday, and the severity of the symptoms
declared by Smith are disproportionate to that expected from the medical evidence.
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impairments.
C.
We now turn to the ALJ’s conclusion that Smith retained the residual functional
capacity to perform the extertional demands of a wide range of light work she previously
performed. The ALJ relied on the medical evidence of treating, examining, and consultive
physicians to reach that determination. Among other things, the ALJ emphasized the
absence of clinical abnormalities in Dr. Brown’s and Dr. Schullman’s reports. In addition,
on remand the Disability Determination Service assessed Smith’s ability to perform
essentially a full range of light work.3 These reports, as well as the objective evidence
provided by Dr. Mylod, make clear that the ALJ’s finding that Smith retained the residual
functional capacity to perform the demands of light work is supported by substantial
evidence.
After determining that Smith had the residual functional capacity to perform light
work, the ALJ reviewed the demands of Smith’s relevant past work to determine whether
she could still meet those demands. 20 C.F.R. §§ 404.1520(a)(4)(iv) and (f), 404.1567(b).
Under the Commissioner’s regulations, a claimant will be found not disabled when she

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4 DOT § 311.677-010 defines “light work” as that which requires “up to twenty
pounds of force occasionally . . . and/or up to ten pounds of force frequently . . . and/or a
negligible amount of force constantly.”
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retains the residual functional capacity to perform the actual functional demands and job
duties of a particular past relevant job or the functional demands and job duties of the
occupation as generally required by employers throughout the national economy. Social
Security Ruling 82-61. Based on Smith’s testimony, the ALJ concluded that Smith’s past
relevant work performed was that of a cafeteria attendant. He then referenced the U.S.
Department of Labor’s Dictionary of Occupational Titles (“DOT”). According to the ALJ,
the “salient functions of light work”4 were the functions required by the DOT description of
work as a cafeteria attendant. Smith does not dispute the ALJ’s ruling that her past work is
defined as light work. Thus, the ALJ’s finding that Smith retains the residual functional
capacity to perform her past relevant work is supported by substantial evidence.
* * * * *
For these reasons, we conclude that substantial evidence exists to support the
Commissioner’s denial of disability insurance benefits. We thus affirm the order of the
District Court.

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