                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-20-2008

Lopez v. Comm Social Security
Precedential or Non-Precedential: Non-Precedential

Docket No. 06-5018




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                                               NOT PRECEDENTIAL

       UNITED STATES COURT OF APPEALS
            FOR THE THIRD CIRCUIT
                 ____________

                     No. 06-5018
                    ____________

                     IRIS LOPEZ,

                           Appellant,

                            v.

      COMMISSIONER OF SOCIAL SECURITY,

                           Appellee.


                    ____________

      On Appeal from United States District Court
               for the District of New Jersey
                  (D.C. No. 05-cv-04509)
     District Court Judge: Honorable Mary L. Cooper
                       ____________

       Submitted Under Third Circuit LAR 34.1(a)
                    March 6, 2008

Before: BARRY, JORDAN and HARDIMAN, Circuit Judges.

                 Filed: March 20, 2008

                    ____________

              OPINION OF THE COURT
                   ____________
HARDIMAN, Circuit Judge.

       Iris Lopez appeals the District Court’s decision affirming the Commissioner’s

denial of her request for benefits. We will affirm.

                                             I.

       As we write for the parties, who are familiar with the facts and procedural history

of the case, we recount only that which is necessary to our decision.

       Lopez alleged disability because of depression, as well as neck, back, shoulder,

and knee injuries that she sustained in an August 2001 car accident. The Administrative

Law Judge (ALJ) found that Lopez has degenerative disc disease, internal derangement of

the right knee, right shoulder impingement, and depression. Although these constituted a

“severe” combination of impairments under the regulations, the ALJ found at step three

of the five-step sequential evaluation that they did not equal a Listed Impairment. Rather,

the ALJ determined that Lopez retained the residual functional capacity (RFC) to perform

light work, and rejected her testimony of more severe limitations as “not entirely

credible.” Because Lopez’s most recent work as a cleaning crew supervisor was

performed at the light level of exertion, the ALJ concluded that she could return to her

prior work.

       In this appeal, Lopez argues that the ALJ’s step-three finding is not susceptible to

meaningful judicial review. Lopez also argues that the ALJ’s assessment of her RFC is

“based on nothing.”



                                             2
                                            II.

       The gravamen of Lopez’s appeal is that the ALJ ran afoul of our decision in

Burnett v. Commissioner, 220 F.3d 112 (3d Cir. 2000), where we held that an ALJ must

provide sufficient reasoning for a court to conduct “meaningful judicial review” of the

ALJ’s step-three determination. Id. at 119. According to Lopez, Burnett requires the

ALJ to conduct “an analysis of the evidence against each relevant listing.” In this case,

the ALJ’s step-three finding states:

       [Lopez] has no impairment which meets the criteria of any of the listed
       impairments described in the Regulations (20 C.F.R. 404, Subpart P,
       Appendix 1). No treating or examining physician has mentioned findings
       equivalent in severity to the criteria of any listed impairment. Particular
       attention was given to listings 1.00 (musculoskeletal) and 12.00 (mental
       impairments).

       Although Burnett does not specifically hold that the ALJ must discuss the

applicable Listings in the decision, we have expressed concern that conclusory statements

do not satisfy Burnett. See Fargnoli v. Massanari, 247 F.3d 34, 40 n.4 (3d Cir. 2001)

(noting that an ALJ’s step-three finding that “[n]o treating or examining physician has

mentioned findings equivalent in severity to the criteria of any listed impairment.

Particular consideration was given to Listing 1.00 (musculoskeletal system)” probably

was too conclusory to permit judicial review under Burnett, but declining to decide the

issue as the claimant had not raised it). Nevertheless, both Burnett and Fargnoli are

distinguishable from this appeal because the ALJs in those cases failed to analyze




                                             3
sufficiently the evidence, including objective medical reports and the claimant’s

testimony. See Burnett, 220 F.3d at 119-20; see also Fargnoli, 247 F.3d at 40 n.4.

       We recently made clear that ALJs need not cite specific Listings at step three as

long as the ALJ’s review of the record permits meaningful review of the step-three

conclusions. In Jones v. Barnhart, 364 F.3d 501 (3d Cir. 2004), we considered whether

the following determination was sufficient: “[A]fter carefully compar[ing] the claimant’s

signs, symptoms, and laboratory findings with the criteria specified in all of the Listings

of Impairments, the claimant’s impairments do not meet or equal the criteria established

for an impairment shown in the Listings.” Id. at 503 (internal quotation marks omitted).

Although the ALJ’s step-three analysis did not mention any of the Listings, we held:

       [T]he ALJ’s step three analysis in this case satisfies Burnett. Burnett does
       not require the ALJ to use particular language or adhere to a particular
       format in conducting his analysis. Rather, the function of Burnett is to
       ensure that there is sufficient development of the record and explanation of
       findings to permit meaningful review. In this case, the ALJ’s decision, read
       as a whole, illustrates that the ALJ considered the appropriate factors in
       reaching the conclusion that Jones did not meet the requirements for any
       listing, including Listing 3.02(A). The ALJ’s opinion discusses the
       evidence pertaining to chronic obstructive and restrictive lung disease,
       specifically referencing “[p]ulmonary function studies . . . consistent with
       moderately severe obstructive and restrictive defects,” but pointing to the
       lack of pulmonary complications, and a finding that claimant’s lungs were
       clear. Also, the ALJ noted that claimant’s medical history showed no
       frequent hospitalization or emergency treatments. This discussion satisfies
       Burnett’s requirement that there be sufficient explanation to provide
       meaningful review of the step three determination.




                                              4
Id. at 504-05 (citations, citation to record, and footnote omitted). Instead of attempting to

distinguish Jones, Lopez intemperately refers to the decision as a “get-out-of-jail-free-

pass.” This is not the stuff of effective appellate advocacy.

         Like Jones, here the ALJ discussed all of the relevant medical evidence before

concluding that Lopez was not entitled to benefits. On this point, the District Court

found:

         In the subsequent parts of his analysis, the ALJ discussed the evidence
         relating to, inter alia: (1) the chiropractor’s diagnosis of cervical
         sprain/strain and left brachial neuralgia, and lumbar disc bulges; (2) the note
         from [Lopez’s] neurologist indicating that she was unable to work; (3) the
         orthopedist’s diagnosis of left shoulder pain and radicular pain due to a C5-
         6 injury; (4) the neurosurgeon’s diagnosis of a herniated disc and severe
         degenerative disease at L5-S1 and recommendation that [Lopez] is a
         possible candidate for spinal fusion; (5) the results from [Lopez’s]
         consultative psychiatric examination, psychiatric evaluation, and mental
         impairment questionnaire; and (6) [Lopez’s] torn lateral meniscus in her
         knee. The ALJ also specifically identified [Lopez’s] testimony and
         subjective allegations that he took into consideration.

Nowhere in her brief does Lopez contend that the ALJ overlooked any of the medical

evidence; rather, she claims that a remand is necessary because the ALJ failed to apply

that evidence to specific Listings. But Lopez admits:

         [Lopez] has restrictions in both shoulders. [She] has restrictions in her right
         knee. [She] has restrictions throughout her lower back. [She] has
         restrictions in her cervical spine. [She] has restrictions in her ability to
         think, concentrate, and deal with the most rudimentary changes in a
         vocational setting. These are restrictions based on evidence that the ALJ
         cites with approval and without rejection.




                                                5
As Lopez noted, the ALJ did indeed review all of this medical evidence. The ALJ noted

that although Lopez suffered from back, neck, knee, and shoulder pain, those conditions

had improved through surgery. The ALJ also addressed the nonexertional limitations

stemming from Lopez’s depression, and concluded that, although “she is unable to

perform complex tasks, and is unable to maintain attention and concentration for an

extended period of time,” these limitations did not prevent her from working. This was

consistent with the medical evidence of record, which indicated that Lopez’s depression

was not of Listing-level severity.

       In the final analysis, we note that although a discussion of the specific applicable

Listings certainly would have been helpful, our primary concern always has been our

ability to conduct meaningful judicial review. See Burnett, 220 F.3d at 119; see also

Jones, 364 F.3d at 505. The ALJ’s failure to discuss specific Listings is not reversible

error under Jones because the ALJ analyzed all the probative evidence and explained his

Decision sufficiently to permit meaningful judicial review.

                                            III.

       Lopez next claims entitlement to a remand because the ALJ’s step-four

determination that she could return to her prior work was “based on nothing.” At step

four, the Commissioner determines whether, despite her severe impairments, the claimant

retains the RFC to perform her past relevant work. 20 C.F.R. §§ 404.1520(e), (f),

416.920(e), (f). RFC is “the most [the claimant] can still do despite [her] limitations.”



                                              6
See 20 C.F.R. § 416.945(a)(1). “Although the impairment must be medically

determinable, it need not be a “severe” impairment to be considered in the RFC

assessment.” See Rutherford v. Barnhart, 399 F.3d 546, 554 n.7 (3d Cir. 2005); see also

20 C.F.R. § 404.1523.

       Significantly, the ALJ is required only to include limitations which he finds

credible. See Burnett, 220 F.3d at 121, see also Hartranft v. Apfel, 181 F.3d 358, 362 (3d

Cir. 1999). Thus, to the extent that the ALJ found Lopez’s other alleged limitations less

than credible, they were properly excluded from the RFC. See Burns v. Barnhart, 312

F.3d 113, 129 (3d Cir. 2002). Lopez bears the burden of demonstrating that she lacks

sufficient RFC to perform her past relevant work. See 20 C.F.R. § 416.920(e).

       In this case, the District Court found that substantial evidence supported the ALJ’s

finding that Lopez could perform “close to a full range of light work.” The evidence we

cited in our discussion of the ALJ’s step-three analysis supports the conclusion that,

although Lopez remains in pain from the injuries she sustained in the August 2001 car

accident and is plagued by depression, the treatment she received has rendered her

capable of performing at least light work. Indeed, as the District Court noted, Agency

physicians as well as Lopez’s own surgeon concluded that Lopez was capable of

returning to her old job as a cleaner.1


       1
         Lopez offered two opinions that she was totally disabled, but the ALJ properly
noted that one was a simple conclusion and the other was not offered by a doctor. See 20
C.F.R. §§ 404.1513(d)(1), 404.1527(d), 416.913(d)(1), and 416.927(d).

                                             7
       Lopez’s insistence that the ALJ failed to consider the effect of her shoulder and

knee impairments is incorrect because the ALJ relied on the RFC assessment of an

Agency physician who considered these limitations. And notwithstanding Lopez’s

complaint that the ALJ failed to consider the effect of her concentration and memory

deficits when determining that she could return to her job as a cleaner, we note that Lopez

was required to show that these deficits precluded her from returning to her old job. See

20 C.F.R. § 416.920(e).

       Finally, we reject Lopez’s contention that the ALJ was required to call a vocational

expert. At step four of the sequential evaluation process, the decision to use a vocational

expert is at the discretion of the ALJ. See 20 C.F.R. § 404.1560(b)(2); see also Social

Security Ruling 00-4p (2000). In determining the exertional level of the claimant’s past

relevant work, the ALJ also is entitled to rely on the Dictionary of Occupational Titles

(4th ed. 1991) (DOT). See 20 C.F.R. §§ 404.1560(b)(2), 404.1566(d)(1), 404.1567.

Here, Lopez testified that she had worked as a supervisor of a cleaning crew. The DOT

lists the position of cleaner as light work. See DOT 323.687-014. The ALJ also heard

Lopez testify as to the work she performed during her previous employment; her

testimony did not suggest any complex vocational issues. Based on this evidence, we

cannot say that the ALJ erred when he concluded that Lopez’s prior work was performed

at the light level.

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



                                             8
