                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                       No. 16-3901
                                       ___________

                                 JOHN DAVID MINCH,
                                             Appellant

                                             v.

                        COMMISSIONER SOCIAL SECURITY
                       ____________________________________

                     On Appeal from the United States District Court
                         for the Western District of Pennsylvania
                          (D.C. Civil Action No. 1-15-cv-00303)
                     District Judge: Honorable Donetta W. Ambrose
                      ____________________________________

                  Submitted Pursuant to Third Circuit LAR 34.1(a)
                                 March 20, 2017
        Before: GREENAWAY, JR., GREENBERG and ROTH, Circuit Judges

                           (Opinion filed: November 15, 2017)
                                      ___________

                                        OPINION *
                                       ___________

PER CURIAM

       John David Minch appeals pro se from an order of the United States District Court

for the Western District of Pennsylvania denying his motion for summary judgment and


*
 This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
granting the Commissioner of Social Security’s (Commissioner) motion for summary

judgment in an action seeking disability insurance benefits (DIB) and supplemental

security income (SSI). We will affirm.

       In January 2008, Minch filed an application for benefits based on lower back disc

problems and mental health conditions. Based on the evidence in the record, and the

report of an independent physician, Dr. Gabriel Sella, the Social Security Administration

denied Minch’s claim initially and on reconsideration. Minch requested a hearing, which

an Administrative Law Judge (ALJ) conducted in July 2010. 1 The ALJ concluded that

Minch was not disabled. After the Appeals Counsel denied Minch’s request for review,

he filed a complaint in the District Court. The District Court remanded the matter “[i]n

an abundance of caution” because Dr. Sella’s report stated that Minch should undergo

“further [medical] investigation with regards to his low back pain.”

       On remand, the ALJ collected additional medical records, questioned Minch about

the medical treatment he had received, and heard testimony from an independent

vocational expert. Then, applying the five-step, sequential analysis for determining

whether a claimant is disabled, 20 C.F.R. § 404.1520, the ALJ concluded that (1) Minch

was not engaged in substantial gainful activity since the alleged onset date, November 2,

2005; (2) Minch’s disc disease and depression, among other conditions, were severe


1
  At that time, Minch was awaiting trial on charges of murdering his ex-wife. He was
convicted in November 2015, and is now serving a life sentence. We note that a claimant
is not eligible for SSI benefits for any month during which he is an inmate of a public
institution. See 42 U.S.C. § 1382(e)(1)(A). Similarly, a claimant cannot collect DIB
payments for any month during which he is incarcerated “pursuant to his conviction of a
criminal offense.” 42 U.S.C. § 402(x)(1)(A)(i).
                                            2
impairments; (3) Minch did not have an impairment or combination of impairments that

was the same or equivalent to an impairment listed by the Social Security Administration

as presumptively precluding any gainful activity; (4) Minch was unable to perform his

past relevant work as a pizza delivery driver and janitor; and (5) Minch possessed

sufficient residual functional capacity to perform light work. Consequently, the ALJ

concluded that Minch was not disabled. The Appeals Counsel again denied Minch’s

request for review.

       Minch next filed a civil action in the District Court, naming the Commissioner as

the defendant. The parties filed cross motions for summary judgment. The District Court

denied Minch’s motion and granted the Commissioner’s motion, concluding that the

ALJ’s decision was supported by substantial evidence. In particular, the District Court

held that the ALJ conducted adequate further investigation and adequately explained the

reasons for the weight afforded to the medical opinions. Minch appealed.

       We have jurisdiction 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); 42 U.S.C. § 405(g). Substantial evidence is ‘“more than a mere

scintilla,’” and is defined as “‘such relevant evidence as a reasonable mind might accept

as adequate.’” Plummer, 186 F.3d at 427 (quoting Ventura v. Shalala, 55 F.3d 900, 901

(3d Cir. 1995)). If the ALJ’s findings of fact are supported by substantial evidence, we

are bound by those findings, even if we would have decided the factual inquiry

differently. Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999).

                                             3
       To qualify for disability benefits, “a claimant must demonstrate [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.’” Plummer, 186

F.3d at 427 (quoting Stunkard v. Sec’y of Health & Human Servs., 841 F.2d 57, 59 (3d

Cir. 1988)). A claimant is unable to engage in any substantial gainful activity “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 gainful work which exists in the

national economy.” Id. at 427-28 (quotation marks omitted).

       In determining whether a claimant is disabled, the Commissioner considers “all …

symptoms, including pain, and the extent to which [these] symptoms can reasonably be

accepted as consistent with objective medical evidence ….” 20 C.F.R. §§ 404.1529(a),

416.929(a). When evaluating subjective complaints of disabling symptoms, the ALJ

must assess the persistence and intensity of the claimant’s pain as well as the extent to

which it impairs his ability to work. 20 C.F.R. §§ 404.1529(c)(1), 416.929(c)(1).

Allegations of disabling symptoms must be consistent with objective medical evidence,

and the ALJ must explain why any allegations were rejected. See Burnett v. Comm’r of

Soc. Sec. Admin., 220 F.3d 112, 121 (3d Cir. 2000).

       Minch argues that the ALJ did not properly evaluate his subjective complaints. 2

In particular, he alleges that substantial evidence does not support the ALJ’s


2
 In making this argument, Minch asserts that the “ALJ’s findings regarding the intensity,
or degree, of pain [are] absolutely irrelevant.” In support of this position, Minch relies on
                                             4
determination that his complaints about his physical impairments were contradicted by

objective medical evidence. Minch claimed that he experienced constant pain. The ALJ

noted, however, that Minch’s “treatment has been minimal and inconsistent.” Between

the onset date and his incarceration in 2009, Minch was examined for physical ailments

only in October 2007, March 2008, and September 2008. Based on the reports from

those examinations, the ALJ concluded that the record indicated “generally normal

physical examination findings.” 3 In addition, the ALJ relied on Minch’s

acknowledgement that various medications were successfully treating his neuropathic

pain and diabetes. Furthermore, the ALJ credited the opinion of the state agency medical

consultant, Dr. Atiya Lateef, which was affirmed by another doctor at the reconsideration

level of administrative review. See Chandler v. Comm’r of Soc. Sec., 667 F.3d 356, 361

(3d Cir. 2011) (noting that “[s]tate agent opinions merit significant consideration.”). Dr.

Lateef examined the medical record and concluded that Minch could perform a range of


Garrison v. Colvin, where the Ninth Circuit explained that, under its “credit-as-true” rule,
a court may credit evidence as true and remand for an immediate award of benefits when,
inter alia, the ALJ has failed to provide legally sufficient reasons for rejecting evidence.
759 F.3d 995, 1019-21 (9th Cir. 2014). We decline to apply that rule here.
3
  The 2007 examination report indicated “muscular skeletal normal appearance from
lumbar” and negative results from straight leg raises and deep tendon reflexes. Minch
was prescribed Ibuprofen. In March 2008, Minch was examined by Dr. Sella in
connection with his benefits application. Dr. Sella reported that the “clinical examination
… was entirely negative,” noting that Minch “walked in and out of the room without
difficulty” and “got on and off the table without difficulty.” Dr. Sella also stated that
Minch was able to squat, hop, and perform a tandem walk, as well as a toe and heal walk.
Additional testing in September 2008, including an EMG and MRI, revealed “multilevel
degenerative disc changes with [mild] diffuse bulging discs. No focal disc herniation or
spinal stenosis.”

                                             5
light work with limited exposure to extreme cold, vibration, and hazards. The ALJ

afforded “great weight” to Dr. Lateef’s opinion because it was “generally consistent with

the evidence of record, including the MRI and EMG findings, the physical examination

findings showing a full range of motion of [Minch’s] back and full strength of his lower

extremities, and his conservative treatment.” Under these circumstances, we conclude

that substantial evidence supports the ALJ’s ruling that Minch could perform limited

work activities despite his physical impairments.

       Substantial evidence also supports the ALJ’s conclusion that Minch’s depression

and personality disorder were not severe mental health impairments. Minch was

hospitalized in December 2007 for mental health treatment after losing custody of his

daughter. He was treated with an antidepressant and discharged in a stable condition

approximately 10 days later. Thereafter, Minch was seen regularly by a psychiatrist, Dr.

Steven Corder, who prescribed medications that were effective. 4 Expert agency

psychological consultants opined that Minch retained the capacity for competitive

employment with short and simple instructions and low social, pressure, and adaptive

demands.



4
  In March 2008, at Minch’s initial appointment, he presented with some mental status
abnormalities, but he described “no specific symptoms” the next month. By June 2008,
he presented with a generally normal mental state. Despite some fatigue, modest mental
status findings, and “situational difficulties,” Minch’s mental status was essential normal
in November and December 2008. In March 2009, which was just prior to Minch’s
arrest, Dr. Corder observed that Minch had an unkempt appearance, failed to make eye
contact, and was “not able to work.” Since his incarceration, prison records indicate that
Minch’s mental state has been generally stable.

                                             6
       Minch’s challenges to the ALJ’s conclusions lack merit. For instance, he argues

that the ALJ erred in discounting Dr. Corder’s assessment that he was “not able to work.”

But that assessment occurred in March 2009, when Minch was experiencing stress from

his imminent arrest, and it conflicts with Dr. Corder’s reports that Minch’s mental state

was otherwise stable. Moreover, Dr. Corder’s comment is not entitled to special

significance because whether Minch is able to work is an issue reserved for the ALJ. See

Bjornson v. Astrue, 671 F.3d 640, 647-48 (7th Cir. 2012) (citing 20 C.F.R.

§ 404.1527(e)(3)).

       Minch also believes that the ALJ “mischaracterized [his] answers” on a

questionnaire pertaining to his ability to perform activities of daily living. We disagree.

Although Minch’s answers reflect that he had some difficulty performing certain tasks,

such as leaning over a sink to shave, tying his shoes, and mowing the lawn, he did report

that he was able to do laundry and vacuum, prepare meals for himself, maintain his

finances, and keep appointments. Therefore, substantial evidence supports the ALJ’s

determination that Minch “has mild limitations in his activities of daily living.” 5

       Finally, Minch argues that the ALJ did not properly consider the vocational

expert’s responses to hypothetical questions. See Johnson v. Comm’r of Soc. Sec., 529


5
  There is also no merit to Minch’s suggestion that the ALJ relied solely on his ability to
perform activities of daily living in concluding that he did not have an impairment that
met or equaled a disabling impairment listed in the applicable regulations. See 20 C.F.R.
Pt. 404, Subpt. P, App. 1, §§ 12.04 and 12.08. The restriction on activities of daily living
is only one of several criteria that an ALJ examines. See Blackburn v. Colvin, 761 F.3d
853, 858-59 (8th Cir. 2014) (discussing criteria and how they are satisfied). Here, the
ALJ properly examined all of the criteria and concluded that Minch did not satisfy any of
them.
                                              7
F.3d 198, 205-06 (3d Cir. 2008) (noting that ALJs routinely pose hypothetical questions

to vocational experts in order to determine a claimant’s ability to perform alternative

employment). The expert testified that a hypothetical individual of Minch’s age,

education, work experience, and residual functional capacity could perform certain light

work in unskilled positions that do not require face-to-face contact with the public, work

as part of a team, or frequent interaction with a supervisor. When asked by the ALJ

whether such an individual could perform “work which is not repetitive in nature, … in

an effort for the person not to be performing the same movement with their body over

and over again all day long,” the expert stated that there were no such entry level

positions available. Minch faults the ALJ for “disregard[ing]” the answer to the latter

hypothetical question. Notably, however, the record did not credibly establish that

Minch’s limitations required that he perform non-repetitive movements. Therefore, the

ALJ properly did not rely on that response. Cf. Rutherford v. Barnhart, 399 F.3d 546,

554 (3d Cir. 2005) (stating that the “ALJ must accurately convey to the vocational expert

all of a claimant's credibly established limitations.”).

       For these reasons, and in light of our overall examination of the record, we will

affirm the judgment of the District Court.




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