Kenneth Cooper v. Commissioner Social Security

Filing

NOT PRECEDENTIAL OPINION Coram: AMBRO, JORDAN and ROTH, Circuit Judges. Total Pages: 18. Judge: JORDAN Authoring. We will affirm the judgment of the District Court.

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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 13-4242
_____________
KENNETH COOPER,
Appellant
v.
COMMISSIONER OF SOCIAL SECURITY
_______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 2-12-cv-03328)
United States District Judge: Hon. Timothy J. Savage
_______________
Submitted Under Third Circuit LAR 34.1(a)
April 8, 2014
Before: AMBRO, JORDAN and ROTH, Circuit Judges
(Filed: April 16, 2014)
_______________
OPINION OF THE COURT
_______________
JORDAN, Circuit Judge
This case comes before us for the second time. As before, Kenneth Cooper
appeals an order of the United States District Court for the Eastern District of
Pennsylvania, which approved and adopted a Magistrate Judge’s Report and

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Recommendation (“R&R”) to affirm the decision of the Commissioner of the Social
Security Administration (“SSA”) finding Cooper “not disabled” and, therefore, ineligible
for Supplemental Social Security Income (“SSI”), for the period from February 10, 1997,
through August 31, 2004. 1 (A.R. 2 at 686.) For the reasons that follow, we will affirm.
I.

Background
This case involves numerous medical examinations and opinions, as well as a long

administrative history.
A.

Cooper’s Medical History

During the period at issue – again, from February 10, 1997, through August 31,
2004 – Cooper was 39 to 46 years old and lived with his girlfriend and her three children.
He had a high school education, having earned a GED after completing the 11th grade.
He weighed approximately 300 pounds, which, at 5’10” in height, made him morbidly
obese. In addition to his obesity, Cooper had several physical and psychological
problems. His primary-care physician, Dr. Joel H. Jaffe, treated him from approximately
1997 until 2003 for the physical ones. In addition, at the request of the Pennsylvania
Bureau of Disability Determination (the “state agency”), Cooper saw various
“consultative examiners” during the relevant period. 3

1

A later application for disability found Cooper to be disabled as of September 1,

2

Citations to “(A.R. at __)” are to the administrative record.

2004.
3

A consultative examination, as we use that term, refers to an examination for the
purpose of assessing physical or psychological impairments as a part of the SSI
application review process.
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Musculoskeletal System
a.

Foot and Ankle

Between 1993 and 2002, Cooper sought treatment for pain associated with his left
foot and ankle. For example, in 1993, he visited the emergency room, complaining of
severe pain in that ankle. 4 Although the treating doctor acknowledged that Cooper’s
ankle pain was the subject of chronic complaint, there was “no evidence of an acute
fracture, subluxation or mal-alignment.” (A.R. at 286.) In 1997, Cooper visited the
emergency room again and was diagnosed with a fractured toe in his left foot. Less than
a year later, he visited the emergency room for a third time, this time complaining of pain
in his left leg. The treating doctor was unclear as to the cause of the pain but found no
evidence of a fracture. He therefore diagnosed Cooper with chronic ankle pain. Finally,
in early 2002, after Cooper was diagnosed with foot “deformities,” Dr. Kenneth
D’Ortone operated on Cooper’s foot. (A.R. at 617-21.)
b.

Other Joints

In addition to his foot and ankle problems, Cooper has documented impairments
of his shoulder and knee. In 1998, Cooper was diagnosed by Dr. Jaffe with shoulder
bursitis. In November 2002, Cooper visited Dr. Haresh Punjabi for a consultative
examination. Dr. Punjabi noted that Cooper had restricted movement in his left shoulder,
4

From the triage notes of the Emergency Department Record, it appears that
Cooper stated he had experienced pain in his ankle since injuring it in 1985 and falling
through a floor in 1992. However, in a follow-up examination with Dr. Norman Makous
in August 1997, Cooper said that he was “uncertain” as to exactly how he developed
ankle pain but expressed his belief that he fractured his ankle and right hand four or five
years earlier when he fell “from a fence.” (A.R. at 367.) The record does not show
treatment for any such injuries.
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which caused “painful abduction,” in addition to “mild crepitus” in his right knee
resulting in a “mild restriction of range of motion.” (A.R. at 543.) Dr. Punjabi also noted
that there was “no acute inflammation of any joint” and opined that Cooper may have
“[s]evere osteoarthritis affecting the right knee and the left shoulder.” (Id.)
c.

Ability to Ambulate

Despite Cooper’s musculoskeletal impairments, he was observed during two
separate consultative examinations moving and walking without severe limitation. In
August 1997, during a consultative examination with Dr. Norman Makous, Cooper was
able to “move[] and change[] position at a fair pace,” while “walk[ing] briskly[,] limping
and favoring [his] left foot.” (A.R. at 369). Cooper also reported that he routinely
“climb[ed] one flight of stairs without stopping,” since he lived in an apartment on the
second floor. (A.R. at 368.) During his November 2002 consultative examination with
Dr. Punjabi, Cooper exhibited normal “gait,” but walked slowly due to “painful
weightbearing.” (A.R. at 542.)
d.

Back Pain

In 1991, Cooper visited the emergency room for pain in his back after being struck
from behind with a bat. X-rays revealed that there were“[m]inimal degenerative changes
at the lower thoracic spine” and “[n]o fracture or dislocation.” (A.R. at 281.) On
November 7, 2002, Dr. Punjabi observed that Cooper had a “[p]araspinal muscle spasm,”
but he did not recommend Cooper for surgery or any type of rehabilitative treatment.
(A.R. at 543).

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Vision

Cooper has poor vision in his right eye but is considered to have normal vision in
his left eye. During a March 2003 hearing, Cooper testified that he was blind in his right
eye. Nonetheless, during three separate consultative examinations, it was found that
Cooper had poor vision in his right eye but not blindness.
In August 1997, during his visit with Dr. Makous, Cooper was able to see hand
motion, but was unable to count fingers or read the top line in the eye chart. Two months
later, Cooper underwent an ophthalmologic evaluation from Dr. Robert Kirschner. While
Cooper was again able to see only hand motions from his right eye, his left eye had “at
least” a 20/50 central visual acuity. (A.R. at 394.) During the exam, however, Cooper
appeared “spaced out,” fell asleep, and was generally uncooperative. (A.R. at 395.)
Because of Cooper’s lack of cooperation, Dr. Kirschner concluded that the exam was
unsuccessful. Finally, during Cooper’s third consultative examination in November
2002, Dr. Punjabi found Cooper had 20/100 visual acuity in his right eye and 20/30 in his
left eye.
In addition to the documentary medical evidence demonstrating Cooper’s poor
vision in his right eye, Cooper testified at the June 2000 hearing that, although he has
problems with his right eye, he agreed he “can see a little bit” with it. (A.R. at 79.)
3.

Cardiovascular System

Throughout the relevant time period, Cooper repeatedly complained of chest pains
and reported smoking a pack of cigarettes per day. In 1996, after a series of tests, Cooper
was diagnosed with a heart condition, specifically a “mild degree of inferior wall
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ischemia.” (A.R. at 318.) Later that year, Cooper received an electrocardiogram
(“EKG”), which showed that he had “[n]ormal left ventricular systolic function.” (A.R.
at 380.) Nonetheless, approximately six months later, Cooper visited the emergency
room complaining of chest pain. Again, no specific cause was identified, but the treating
doctor opined that the type of pain complained of is “not usually due to serious heart or
lung problems.” (A.R. at 354.) In 2002, Cooper reported taking nitroglycerin “with
immediate relief” for his chest pain. (A.R. at 542.)
4.

Affective Disorders

Cooper went through a series of psychological and psychiatric evaluations during
the relevant time period. After Dr. Jaffe found Cooper to be “seriously limited”
psychologically in his abilities to do most work-related activities (A.R. at 463-65),
Cooper underwent several consultative examinations over the relevant time period that
revealed he was not functionally limited in a significant way.
Specifically, in March 1999, Dr. L.R. Griffin concluded after testing Cooper’s IQ
that Cooper “was able to understand, retain and follow the instructions without difficulty
[and] should be able to do this in a work related setting.” (A.R. at 476.) In a separate
evaluation analyzing Cooper’s ability for “activities of daily living,” “social functioning,”
“concentration & task persistence,” and “adaptation to stressful circumstances,” Dr.
Griffin noted that Cooper was able to maintain his own residence, pay his own bills,
cook, use public transportation, and shower without assistance. (A.R. at 478-79.) While
Dr. Griffin observed that Cooper exhibited poor relationships with people in authority, a
lack of motivation, and a tendency to become angry when under pressure, he assessed
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that Cooper was “able to sustain a routine and make adequate decisions.” (A.R. at 479.)
Dr. Griffin also found that Cooper acted with a “conscious attempt to look bad or
exaggerate his illness and to malinger.” (A.R. at 477.)
Later that same year, Cooper saw Dr. Carl D. Herman. While Dr. Herman had
previously diagnosed Cooper with dysthymic disorder in 1998, in 2002 Dr. Herman’s
evaluation of Cooper was similar to that of Dr. Griffin’s, noting that Cooper’s
“intelligence is within normal range and [there is] no evidence of organic brain
dysfunction.” (A.R. at 499.) That is not to say that Dr. Herman’s evaluation was entirely
positive: at the same time that he noted Cooper did moderate housekeeping and light
cooking, went shopping with his girlfriend and her daughter, and sometimes attended
church, he also said that Cooper was prone to arguing with his girlfriend and had no other
friends. Overall, however, Dr. Herman found that Cooper was able to adequately interact
with people of authority, satisfactorily make decisions, and fairly adapt to changes, even
if his reaction to deadlines was poor.
Cooper sought treatment for his mental health briefly in 2001. He was diagnosed
with bipolar disorder, but his treatment was terminated after ninety days “due to no
service.” 5 (A.R. at 616.) In mid-2002, Cooper returned and continued treatment until
January 2003. Dr. O.D. Miles, a psychiatrist, found that Cooper’s concentration, insight
and judgment, and abstract thinking were all “intact.” (A.R. at 598.) Dr. Miles also

5

The government interprets Cooper’s termination to be a result of him “not
return[ing] for recommended follow-up services” (Appellee’s Br. at 15), which Cooper
does not dispute.
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diagnosed Cooper with bipolar affective disorder, but treatment records show that, by
December 2002, Cooper was “clinically stable” on prescribed medication. (A.R. at 601.)
Cooper acknowledged as much, testifying that the medication he received during
treatment “control[led his] anger so [he] won’t be so angry.” (A.R. at 114.)
5.

Residual Functional Capacity (“RFC”) 6 and Vocational Evidence

In October 1997, Dr. Joseph A. Savastio, a state agency physician, reviewed
Cooper’s RFC and opined that Cooper remained capable of light work that involved
occasional postural activities and unlimited sitting. Similarly, Dr. Makous concluded that
Cooper would be capable of light work that involved standing and walking for less than
two hours and could perform work while sitting without any restrictions. In a follow-up
consultative exam by Dr. Punjabi, Cooper was determined to have full motor strength.
At the request of the reviewing Administrative Law Judge (“ALJ”), a vocational
expert also assessed Cooper’s abilities. The ALJ asked the vocational expert what work,
if any, a person of Cooper’s vocational profile and RFC could perform. The vocational
expert considered Cooper’s physical functional limitations (i.e., the various weights that
he could lift and carry occasionally) in conjunction with his visual and mental
impairments. The expert identified the unskilled, sedentary jobs of assembler and
inspector and indicated that, despite his impairments, Cooper could still perform.

6

A claimant’s RFC “is the most [he] can still do despite [his] limitations.” 20
C.F.R. § 416.945(a)(1).
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B.

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Procedural History

On February 10, 1997, Cooper filed an application for SSI with the state agency.
After repeatedly being denied benefits by the state agency and the ALJ, Cooper filed a
civil action in the Eastern District of Pennsylvania seeking review of the Commissioner’s
decision. The matter was referred to a Magistrate Judge who, in 2006, issued an R&R
suggesting that the ALJ’s decision be affirmed, which it was. Cooper v. Barnhart, No.
04-3663 (E.D. Pa. Aug. 15, 2006). Cooper then appealed that decision to us, and we
vacated the court’s affirmance. Cooper v. Comm’r of Soc. Sec. Admin., 268 F. App’x
152, 157 (3d Cir. 2008). Specifically, we instructed that, on remand to the agency, “the
Commissioner should consider Cooper’s physical and psychological ailments in
combination with each [other] and especially with regard to his obesity” and, if the
disability analysis reaches step five of the SSA’s evaluation process (work availability),
to “take Cooper’s vision problems into account.” Id. at 156 (emphasis added).
The same ALJ that presided over the earlier proceedings held a hearing on
remand. On March 5, 2010, that ALJ issued an “unfavorable” decision for Cooper,
finding that Cooper could perform a modified range of unskilled, light work, and was
therefore not disabled. (A.R. at 670.) The ALJ stated that, “[w]hen assessing this claim
at all steps of the sequential evaluation process ... [,] any additional and cumulative
effects of obesity” were considered at step three. (A.R. at 676.) The ALJ also “found
that the claimant’s right eye vision was poor, but that he was not totally blind in that eye”
such that the “established visual limitations [were] appropriate.” (A.R. at 676, 684.) A
vocational expert further testified that, given Cooper’s visual acuity, he would still be
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able to perform the tasks required of an assembler and inspector. Although Cooper then
requested review of the ALJ’s decision by the SSA Appeals Council (the “Council”), the
Council issued a statement explaining that it “found no reason ... to assume jurisdiction”
over the case. (A.R. at 775.) Therefore, the ALJ’s decision became the final decision of
the Commissioner. 20 C.F.R. § 416.1481.
Cooper then filed the present case in the Eastern District of Pennsylvania, seeking
review of the ALJ’s last decision in light of our remand instructions. The matter was
again referred to the same Magistrate Judge. See Cooper v. Colvin, No. 12-3328 (E.D.
Pa. July 25, 2013). The Magistrate Judge issued a new R&R recommending that the
Commissioner’s decision be affirmed, and the District Court followed that
recommendation.
This timely appeal followed.
II.

Discussion 7
Cooper contends that his circumstances again require agency reconsideration. In

sum, the argument is that the ALJ failed to review Cooper’s impairments in combination
7

The District Court had jurisdiction over the Commissioner’s final determination
of Cooper’s SSI claim under 42 U.S.C. §§ 405(g), 1383(c)(3). We have jurisdiction over
the District Court’s determination pursuant to 28 U.S.C. § 1291. “The role of this Court
is identical to that of the District Court, namely to determine whether there is substantial
evidence to support the Commissioner’s decision.” Plummer v. Apfel, 186 F.3d 422, 427
(3d Cir. 1999). “Substantial evidence is ‘such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.’” Rutherford v. Barnhart, 399 F.3d
546, 552 (3d Cir. 2005) (citing Reefer v. Barnhart, 326 F.3d 376, 379 (3d Cir. 2003)). In
other words, it is “more than a mere scintilla but may be somewhat less than a
preponderance of evidence.” Id. (internal quotation marks omitted). As long as there is
substantial evidence to support the decision of the Commissioner, “our review of the
ALJ’s decision is more deferential.” Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir. 2000).
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with one another at step three; the ALJ ignored Cooper’s impaired vision in his right eye
in finding him capable to perform the jobs of assembler and inspector; and the ALJ
disregarded Dr. Herman’s opinions. 8 We disagree on all points.
“In order to establish a disability under the Social Security Act, a claimant must
demonstrate 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.” Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999) (internal quotation marks
omitted). The Commissioner has developed a five-step sequential evaluation process to
determine if a person is disabled under the Act. 20 C.F.R. § 416.920(a)(4). That process
requires an ALJ to consider whether the claimant: (1) is engaged in substantial, gainful

8

Cooper also argues that the ALJ abused his discretion in denying Cooper’s
request for additional medical expert testimony. While it is in the discretion of the ALJ
to determine whether medical expert testimony is warranted, see 20 C.F.R.
§ 416.927(e)(2)(iii), the SSA requires an ALJ to seek a medical expert’s opinion in three
instances: (1) when the Council or court so orders; (2) to evaluate and interpret
background medical test data; and (3) when an ALJ “is considering a finding that the
claimant’s impairment(s) medically equals a medical listing.” (J.A. at 117). Cooper’s
argument that the ALJ failed to heed the Council’s August 2002 order to “[o]btain
evidence from a medical expert to clarify the nature and severity of claimant’s
impairments” (A.R. at 199) not only overlooks Dr. Punjabi’s November 2002
consultative examination, but also is waived considering there is no evidence in the
record to indicate that it was raised before. Cf. Smith v. Comm'r, 631 F.3d 632, 637 (3d
Cir. 2010) (“Smith’s failure to raise any argument as to Dr. Edelman in that Court
operates to waive that argument here.”). With respect to the arguments that the ALJ
failed to evaluate Cooper’s cognitive and ankle impairments because the ALJ did not
seek additional medical expert evidence, there is no basis to say there was an abuse of
discretion given the ample medical evidence already on the record. Cf. 20 C.F.R.
§ 416.927(e)(2)(iii) (“Administrative law judges may also ask for and consider opinions
from medical experts on the nature and severity of your impairment(s) and on whether
your impairment(s) equals the requirements of any impairment listed in appendix 1 to
subpart P of part 404 of this chapter.”); Knepp, 204 F.3d at 83 (“[W]e determine whether
there is substantial evidence to support the decision of the Commissioner.”).
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work activity; (2) has severe medical impairments; (3) has an impairment that “meets or
equals” one of the SSA’s “listed” impairments; (4) can return to his “past relevant work”;
and, if not, (5) can perform other work consistent with his RFC. Id. With respect to step
three, it is the responsibility of the ALJ to determine medical equivalence to the listed
impairments, as required by the SSA. Id. § 416.926(e); see also Knepp v. Apfel, 204 F.3d
78, 85 (3d Cir. 2000) (“Knepp ... argues that only a physician designated by the
Commissioner can decide the question of medical equivalency. This argument
misapprehends 20 C.F.R. § 404.1526. The ultimate decision concerning the disability of a
claimant is reserved for the Commissioner.” (citation omitted)).
It is undisputed that Cooper was not engaged in gainful activity during the relevant
period, so step one of the evaluation process is not at issue. While the ALJ found at step
two that Cooper’s “disorders of the low back, left shoulder, right knee, and both feet;
poor right eye vision; coronary artery disease; obesity, and a bipolar disorder with
dysthymia” were indeed severe impairments, at step three the ALJ did not find that they
met or were medically equal to, either alone or in combination, any of the impairments
listed in 20 C.F.R. §§ 416.920(d), 416.925, and 416.926. (A.R. at 676.) Moving on to
step four, the ALJ determined that, although Cooper retained the RFC to perform a
modified range of unskilled, light work, he had no past relevant work. Finally, at step
five, after considering Cooper’s age, education, RFC, and the testimony of the vocational
expert, the ALJ concluded that, during the time period in question, Cooper was capable
of performing jobs such as assembler and inspector, and therefore was not disabled under

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the Act. In the end, the parties are only at odds over the ALJ’s conclusions at steps three
and five.
A.

Step Three

In our 2008 decision to vacate and remand Cooper’s earlier claim, we specifically
instructed the Commissioner to consider Cooper’s impairments in combination with each
other, especially in regard to his obesity. Cooper, 268 F. App’x at 156. An ALJ is
expected not only to discuss the evidence upon which his decision is based but also to
explain the reasoning for his determination so that we may meaningfully review a denial.
Burnett v. Comm’r, 220 F.3d 112, 119-20 (3d Cir. 2000). This includes a meaningful
consideration of a person’s obesity in combination with other impairments. Diaz v.
Comm’r, 577 F.3d 500, 504 (3d Cir. 2009). We do not, however, require that an ALJ
“use particular language or adhere to a particular format in conducting his analysis.”
Jones v. Barnhart, 364 F.3d 501, 505 (3d Cir. 2004). In other words, an ALJ “need not
employ particular ‘magic’ words” in his decision. Diaz, 577 F.3d at 504.
Although it would have been helpful had the ALJ more thoroughly explained the
combined effects of Cooper’s impairments, we nonetheless conclude that the ALJ
conducted his analysis in a manner sufficient for us to engage in meaningful review.
Prior to the evaluation of each of Cooper’s impairments, the ALJ explicitly stated that he
“considered any additional and cumulative effects of obesity.” (A.R. at 676.) Turning to
the various impairments, the ALJ first considered Cooper’s musculoskeletal impairments
and acknowledged the ankle and foot problems, joint pains, and obesity. However, based
on the observations of both Dr. Makous and Dr. Punjabi, who reported that Cooper was
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able to “walk[] briskly” and exhibited a normal gait (A.R. at 369), the ALJ concluded that
“[e]ven considering [Cooper’s] morbid obesity, there is no evidence of … ineffective
ambulation or inability to perform fine and gross movements required by [the] listing.”
(A.R. at 677). 9
Second, the ALJ considered whether Cooper’s back problems met the
requirements for the listing on disorders of the spine. The medical evidence in the record
supports the ALJ’s conclusion that there was “no evidence of motor, sensory, or reflex
loss.” (A.R. at 678.) While Dr. Punjabi observed Cooper suffering from a paraspinal
muscle spasm during Cooper’s 2002 consultative exam, he also noted that Cooper had no
problem climbing onto the examination table. The ALJ considered that evidence in
combination with Cooper’s acknowledgment that he could bend at the waist “a little bit”
(A.R. at 118) to evaluate Cooper’s ability to perform postural activities.
9

While Cooper contends that the ALJ “simply ignored Dr. Makous’ postural
preclusions” (Appellant’s Br. at 39), it is within the ALJ’s discretion to weigh the
evidence, even ignoring the opinion of one doctor regarding one diagnosis when
accepting an opinion from the same doctor on a separate diagnosis. See Chandler v.
Comm'r of Soc. Sec., 667 F.3d 356, 361-62 (3d Cir. 2011) (“We also note that the ALJ
did not merely rubber stamp Dr. Popat’s RFC conclusion. Instead, the ALJ found
persuasive and incorporated DeWees’s opinion that Chandler cannot sit for more than
thirty minutes at a time, even though the ALJ was not required to consider DeWees's
opinion at all ... . The ALJ also added restrictions Dr. Popat did not deem necessary.”
(citations omitted)); cf. Ray v. Astrue, 649 F. Supp. 2d 391, 402 (E.D. Pa. 2009) (“The
Third Circuit has emphasized that the ALJ must provide these explanations for only
‘pertinent or probative evidence,’ because ‘[o]verwhelming evidence in the record’ can
render other evidence ‘irrelevant’ and thus not worthy of the ALJ’s explanation of its
disregard.”). As the government correctly notes, the ALJ did not credit Dr. Makous’s
opinion that “Cooper had no ability to perform postural activities because that part of his
opinion was inconsistent with other substantial evidence in the record, such as the
opinions of Dr. Punjabi and Dr. Savastio ... and Cooper’s own admission that he could
climb a flight of stairs to his home.” (Appellee’s Br. at 43 (citation omitted).)
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Third, the ALJ revisited the evidence pertaining to Cooper’s vision, citing two
different eye examinations that support the conclusion that Cooper had poor vision in his
right eye but, importantly, was not blind, and that his left eye was normal. 10 For purposes
of an SSI determination, blindness is defined as “visual acuity of 20/200 or less in the
better eye with the use of a correcting lens.” 20 C.F.R. § 416.981. The ALJ reviewed
Cooper’s 1997 exam with Dr. Kirschner, and, although Dr. Kirschner ultimately
considered the exam unsuccessful due to Cooper’s failure to cooperate, it still revealed
that Cooper had limited vision in his right eye and “at least” 20/50 in his left. (A.R. at
394.) Likewise, Dr. Punjabi determined in 2002 that Cooper had 20/100 vision in his
right eye and 20/30 vision in his left eye. 11
Fourth, the ALJ discussed Cooper’s complaints about chest pains. To meet the
requirements of the cardiovascular listing, a person must demonstrate evidence of chronic
heart failure, ischemic heart disease, or other end organ damage from hypertension. 20
C.F.R. pt. 404, subpt. P, app. 1. But, as the ALJ noted, Cooper never received treatment
for any heart disorders, nor was there evidence to support that he had a coronary
impairment in conjunction with his obesity. Rather, medical documents in the record

10

Cooper repeatedly draws our attention to our previous opinion, where we stated
that Cooper was “blind[] in his right eye” and “partial[ly] blind[] in his left eye.”
Cooper, 268 F. App’x at 154. Given the record now before us, substantial evidence
supports that Cooper is not blind in either eye and indeed has “normal” vision in his left
eye.
11

The ALJ also referred to an eye examination conducted in 2004 for a later
disability claim. While it is unknown exactly when that exam was conducted, and
whether it fell within the period now at issue, Cooper apparently tested with a visual
acuity of 20/40 in his right eye and 20/30 in his left eye.
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reveal that Cooper had only a “[m]ild degree of inferior wall ischemia” (A.R. at 318
(emphasis added)), and the chest pains that Cooper complained of were “not usually due
to serious heart or lung problems” (A.R. at 354). Moreover, Cooper acknowledged that
taking nitroglycerin provided him “with immediate relief” from pain. (A.R. at 542.)
Finally, while the ALJ conceded that Cooper’s “psychological impairment may
have met some of the criteria” of the listing for Affective Disorders, the ALJ still found
that Cooper’s functional limitations were only moderate, given Cooper’s relative
stability. (A.R. at 679.) The ALJ noted Dr. Jaffe’s claim that Cooper was “seriously
limited” but found that diagnosis unavailing since Dr. Jaffe is not a psychiatrist or
psychologist and, more critically, “there is nothing in his treatment notes during that
period that would support his opinions.” (A.R. at 680.) With respect to Dr. Herman’s
opinion that Cooper had poor ability to function in some areas, the ALJ determined that
that assessment should receive less weight than the “treating source” – the psychiatrist
whom Cooper visited for treatment – who found Cooper stable. (A.R. at 680.)
Moreover, Dr. Herman’s opinion is inconsistent, given that he found Cooper to be
adequately able to interact with people of authority, make decisions, and adapt to
changes.
It is the ALJ who must determine what weight should be accorded the various
medical opinions in the record. 20 C.F.R. § 416.927. The ALJ considered Cooper’s
allegations in the context of all the evidence in the record, which showed that Cooper’s
symptoms stabilized when he was on medication, that his treating psychiatrist found that
he had only moderate symptoms, that Cooper himself admitted that his medication helped
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him control his temper, and that there was no evidence in the record that Cooper suffered
from organic brain dysfunction. Here, the ALJ’s findings of fact at step three are
supported by evidence that a “reasonable mind” could accept as adequate, Rutherford,
399 F.3d at 552, and that is enough.
B.

Step Five

At step five, the burden shifts to the Commissioner to show that work exists in
significant numbers in the national economy given a claimant’s RFC, age, education, and
work experience. 20 C.F.R. §§ 416.912(e), 416.920(a)(4)(v); see also Boone v. Barnhart,
353 F.3d 203, 205 (3d Cir. 2003) (discussing the shifting of the burden). On remand, we
instructed the Commissioner to consider whether Cooper’s eyesight left him with the
RFC to perform sedentary work. Cooper, 268 F. App’x at 157. Since we have already
concluded that substantial evidence supports the ALJ’s conclusion that Cooper is not
blind in his right eye, we now consider whether his poor vision in that eye was a factor
that the ALJ adequately took into account when determining Cooper’s RFC.
At the remand hearing, the ALJ posed a hypothetical to a vocational expert to
determine whether any work existed for Cooper in light of his impairments. The ALJ
specifically included in the hypothetical that the individual in question had, in addition to
other impairments, “poor vision in [his] right eye but near perfect vision in the left eye.”
(A.R. at 831.) The ALJ then added that the hypothetical individual is “monocular and
therefore limited in depth perception, accommodation and field of vision.” (Id.) The
vocational expert testified that this hypothetical individual would be able to perform the
jobs of assembler or inspector, which existed in significant numbers in the national
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Case: 13-4242

Document: 003111590730

Page: 18

Date Filed: 04/16/2014

economy at that time. In fact, when asked by Cooper’s counsel whether such jobs could
be appropriate given Cooper’s vision, the vocational expert confirmed that those jobs
could be performed by an individual with Cooper’s visual ability and other limitations.
Therefore we conclude that substantial evidence supports the ALJ’s ruling at step five
that there were jobs in the national economy which Cooper could have performed given
his impairments and, accordingly, that Cooper was not disabled under the Act.
III.

Conclusion
For the foregoing reasons, we will affirm the judgment of the District Court.

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