Simmons v. Comm Social Security

148 F. App'x 134
CourtCourt of Appeals for the Third Circuit
DecidedSeptember 16, 2005
Docket04-4232
StatusUnpublished
Cited by1 cases

This text of 148 F. App'x 134 (Simmons v. Comm Social Security) is published on Counsel Stack Legal Research, covering Court of Appeals for the Third Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Simmons v. Comm Social Security, 148 F. App'x 134 (3d Cir. 2005).

Opinion

OPINION OF THE COURT

SMITH, Circuit Judge.

Billie Simmons applied in March 1992 for disability benefits under Title II and supplemental security income (“SSI”) benefits under Title XVI of the Social Security Act. An Administrative Law Judge (“ALJ”) denied Simmons’s application, but her request for review by the Appeals Council was granted because the transcript of her first hearing was lost. After a second hearing before the same ALJ, Simmons’s application for benefits was denied again on May 3, 1999. When the Appeals Council denied her second request for review, Simmons filed an appeal with the United States District Court for the District of Delaware. It granted the Commissioner’s motion for summary judgment, thereby affirming the denial of Simmons’s application for benefits. This timely appeal followed. 1

Judicial review of the denial of an application for Social Security benefits is limited to determining whether there is substantial evidence to support the Commissioner’s decision. 42 U.S.C. § 405(g); Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir.1999). Substantial evidence is “more than a scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (internal quotation marks and citation omitted).

*136 Simmons worked for seventeen years as a psychiatric assistant in a state mental hospital until she was assaulted in 1988. She received worker’s compensation benefits for a period of time, and obtained other employment in 1989 as a clerk in a flower shop. This position was not as physically demanding as her work at the mental hospital and it afforded her the flexibility she needed in light of her husband’s declining health. According to Simmons’s testimony, the work she performed in the flower shop was light in nature.

At times, Simmons worked part-time because of either her husband’s health or the deterioration of her left hip. Eventually, on October 14, 1991, Simmons had a total left hip replacement. On March 2, 1992, Dr. Gelman, Simmons’s orthopedic surgeon, documented that all of her preoperative pain had subsided, and he released her to return to work in April with a twenty-pound weight restriction. Shortly after her appointment with Dr. Gelman at the beginning of March, Simmons applied for disability and SSI benefits, alleging disability as a result of her hip surgery.

In a follow-up visit in July 1992, Dr. Gelman documented that Simmons was “doing very well and has regained a very physical and functional lifestyle.” At some point, Simmons returned to work at the flower shop part-time, working until late 1993 or early 1994. In response to an inquiry from the Disability Determination Services, Dr. Gelman opined that when he last evaluated Simmons in July 1992 she “was doing quite well” and that “[biased on my most recent examination in July of 1992,1 did not feel that Billy Simmons was disabled.”

After Simmons’s hip surgery, she experienced problems with her voice. Although she was evaluated by multiple physicians, no abnormalities were detected. She also complained of hip, leg, lower back, and chest pain, as well as carpal tunnel type problems. A cardiac catheterization ruled out a cardiac etiology for the chest pain. Pulmonary function tests and a chest x-ray were normal. Diagnostic studies of her spine revealed some degenerative changes, but were generally “unremarkable” except for a mild bulging lumbar disc. Simmons “responded well” to treatment of her low back pain with epidural blocks. In a progress note dated January 1998, Dr. Townsend, Simmons’s treating neurologist, documented that she had a full range of motion, a normal gait, and neither sensory nor muscular deficits. Dr. Townsend acknowledged that Simmons had headaches, but opined that “[s]he does well” with medication.

In August 1995, Simmons was referred to Dr. Ivins, a psychologist. His consultative report indicated that Simmons reported that she sustained a head injury as a child, that she was unsteady on her feet throughout her life, had done poorly in school and was “never able to keep a job for very long.” Dr. Ivins also documented that there was concern as to whether Simmons’s voice problems were secondary to a mini-stroke from anesthesia during her hip surgery. After administering several diagnostic tests, Dr. Ivins documented that Simmons functioned in the average range of general intelligence, that she had some memory impairment, that she had no sensory deficits and that her motor strength was impaired in the right hand to a degree, but was otherwise within normal limits. Dr. Ivins opined that Simmons had severe emotional difficulties secondary to her head injury and her hip surgery, and that she “is not presently able to perform any suitable gainful employment. Ms. Simmons is disabled.”

As noted above, the transcript of the first hearing was lost. At the second hear *137 ing before the same ALJ, Simmons testified that she was completely disabled. She affirmed that she was in constant pain, dropped things because of her carpal tunnel type problems, had memory problems, experienced headaches confining her to bed two to three days a week, was limited to standing for thirty minutes and sitting for two hours, and was unable to lift anything heavy. The ALJ asked Simmons, based on the ALJ’s notes from the earlier hearing, about certain aspects of Simmons’s previous testimony which indicated that she was quite active and subject to minimal restrictions. Simmons confirmed that her previous testimony concerning her physical activities had been accurate, but affirmed that her physical abilities as of the date of this later hearing were more limited.

The ALJ concluded that although Simmons’s degenerative joint disease of her hip and lower back were severe impairments, these conditions did not satisfy the criteria of certain impairments in Appendix 1 of the regulations. See 20 C.F.R. Part 404, Subpart P, Appendix 1. The ALJ discounted Dr. Ivins’s opinion that Simmons was disabled. He explained that Dr. Ivins’s opinion that Simmons’s head injury as a child had caused multiple limitations was contradicted by the fact that Simmons had been able to work for seventeen years as a psychiatric assistant. The ALJ rejected Dr. Ivins’s opinion that Simmons was disabled because it was internally inconsistent with his assessment that Simmons’s intellectual functioning was normal and the fact that the results of many of the tests were within normal limits. The ALJ partially credited Simmons’s testimony, finding her capable of light work with occasional postural maneuvers. Because these restrictions were compatible with her past relevant work as a flower shop clerk, the ALJ concluded she was not disabled.

On appeal, Simmons argues that the ALJ erred because she considered non-record evidence, namely the ALJ’s own notes of Simmons’s testimony from the first hearing.

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Bluebook (online)
148 F. App'x 134, Counsel Stack Legal Research, https://law.counselstack.com/opinion/simmons-v-comm-social-security-ca3-2005.