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Rutherford v. Barnhart

March 3, 2005


On Appeal from the United States District Court for the Eastern District of Pennsylvania. D.C. Civil No. 02-cv-01229. District Judge: Honorable Lowell A. Reed, Jr.

Before: Ambro and Van Antwerpen, Circuit Judges and Shadur, Senior District Judge*fn1

The opinion of the court was delivered by: Shadur, District Judge


Argued December 7, 2004


Joyce Rutherford ("Rutherford") challenges the denial of her application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1383f ("Act").*fn2 She filed for benefits in June 2000, claiming an onset date of June 23, 1999 and an ongoing inability to work due to back and arm impairments. After an initial denial by the state agency, she filed a timely request for a hearing before an Administrative Law Judge ("ALJ"). Rutherford then appeared with counsel before ALJ William Reddy on June 11, 2001, and both Rutherford and a vocational expert testified. ALJ Reddy issued an opinion on August 31, 2001 that concluded that although Rutherford had impairments that qualified as severe, she was not entitled to benefits because she retained the residual functional capacity ("RFC") to perform existing jobs in the workforce and so did not meet the Act's definition of disability.

In response to a request for review, the Appeals Council issued a denial of reversal or remand on January 4, 2002, and the ALJ decision became the final decision of the Social Security Commissioner ("Commissioner") (Reg. §§ 1481 and 1400(a)(4)-(5); Sims v. Apfel, 530 U.S. 103, 106-07 (2000)). Rutherford then exercised her rights under 42 U.S.C. §405(g) to seek redress in the federal courts. On March 11, 2002 she filed a civil action in the United States District Court for the Eastern District of Pennsylvania, and both sides sought summary judgment. On January 22, 2004 the District Court granted summary judgment for the Commissioner. This appeal followed, and we affirm.


Rutherford was 48 years old at the time of her onset date. Although she attended school through the 11th grade, she was placed in special classes after sixth grade. In addition, current educational tests similarly reflect only marginal aptitude levels. Her employment history indicates experience as a private child care monitor and as an aide in a daycare facility. But she claims that her ability to work has been greatly reduced since a June 23, 1999 slip and fall at her grandchildren's school. Before the accident Rutherford was watching three children from her home and was earning about $100 per week. At the time of her administrative hearing, she testified that she was capable of watching only one child--her grandson--in addition to her own, activity that generated only a quarter of her previous earnings.*fn3

After her fall Rutherford consulted with various doctors to assess her condition. In August 1999 an initial magnetic resonance imaging examination of her cervical spine revealed moderate degeneration of several vertebrae, significant enlargement of the left thyroid and minimal narrowing of the neural foramina on the right side. But that examination did not show any cord compression or signal abnormalities in either the cord or vertebral bodies. And an electromyogram and nerve conduction study performed in September 1999 showed normal results for her right upper extremity.

Following those initial exams, Rutherford consulted on several occasions with Dr. Jonathan Dissin, a cerebral vascular disease specialist. Dr. Dissin conducted neurological examinations and found that Rutherford could elevate her right arm only to the horizontal position, resulting in some diminished power in that arm. He did not observe any other abnormalities, with no problems in her gait, reflexes or sensations. Dr. Dissin prescribed various dosages of Neurontin and Tylenol-3 for pain control, and Rutherford participated in some physical therapy to address her pain as well.

In anticipation of her hearing Rutherford also visited a Rehabilitation Consultant, who prepared a vocational evaluation on her behalf. In addition to compiling past educational and employment information, that evaluation contained some information related to her physical condition. Most of that information was based on observations and interviews with Rutherford rather than medical records (which were not made available to the consultant), but the report did contain one piece of original physical information that is relevant here: the results of a Purdue Pegboard Test--designed to assess Rutherford's manual dexterity--that placed Rutherford's "hand speed at the lowest one percentile for all norm groups." Ultimately the evaluator concluded that Rutherford's educational level and physical conditions contributed to "significant vocational deficits."

Rutherford was questioned at her hearing by the ALJ and her counsel, and both focused primarily on Rutherford's alleged physical limitations. Rutherford identified weakness in her right arm and pain in her lower back as impairments that contributed to an inability to work, and responded in the negative when asked directly by the ALJ whether any additional conditions deterred her from working. She also testified that her various prescribed medications were not alleviating her pain but were contributing to extreme drowsiness. Despite the fact that she continued to experience pain, she indicated that she could button buttons, work zippers and lift a gallon of milk (albeit with some difficulty on that last score). When the ALJ inquired about her use of a cane, Rutherford said that she needed it because of problems with her left leg, that it had been prescribed for her by a doctor treating a thyroid condition, and that she used it to steady herself while walking and standing (but not while ascending or descending stairs).

After Rutherford testified, the ALJ called upon Donald Millin ("Millin") to testify as an independent vocational expert. Millin first reviewed Rutherford's past vocational experience and characterized it as light in terms of exertion and semiskilled, with a specified vocational preparation classification of 3. He then responded to a number of hypothetical questions posed by the ALJ based on Rutherford's physical and educational limitations. Those responses assisted the ALJ in reaching his conclusion that although Rutherford's past work would be precluded, a number of other jobs existed in the economy that she could perform. Examples of ...

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