                                                                                                                           Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-27-2003

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Precedential or Non-Precedential: Non-Precedential

Docket No. 02-4520




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                                        NOT PRECEDENTIAL




        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT


                         NO. 02-4520


                  CAROLYN P. MAYS,
                      Appellant

                             v.

               JOANNE B. BARNHART,
             Commissioner of Social Security




      On Appeal From the United States District Court
         For the Eastern District of Pennsylvania
           (D.C. Civil Action No. 01-cv-05335)
      District Judge: Honorable Michael M. Baylson


      Submitted Pursuant to Third Circuit LAR 34.1(a)
                    October 17, 2003


BEFORE: SLOVITER, ROTH and STAPLETON, Circuit Judges

        (Opinion Filed      October 27, 2003      )




                OPINION OF THE COURT
STAPLETON, Circuit Judge:

              Plaintiff Carolyn Mays (“Mays”) appeals the denial of her claim for

Disability Insurance Benefits (“DIB”) and Disabled Widows Benefits (“DWB”) under

Title II of the Social Security Act (the “Act”), 42 U.S.C. §§ 401-434 (2002). With respect

to Mays’s DIB claim, the date she was last insured is December 31, 1997. With respect to

her DWB claim, the month she was last insured is February 1996. Consequently, M ays

would be entitled to DIB only if she met her burden of showing that she had become

disabled before December 31, 1997, and she would be entitled to DWB only if she could

show that she had become disabled before February 1996. The Administrative Law

Judge (“ALJ”) determined that Mays was not disabled prior to these relevant dates and

denied her claims.1 The District Court found substantial evidence to support the ALJ’s

denial and granted summary judgment for the Commissioner of the Social Security

Administration (“Commissioner”).

              The parties are familiar with the factual setting and the procedural history of

this matter. Since we write only for them, we do not provide a narrative summary of the

evidence contained in the record. We will address in turn each of the assigned errors in

the appeal and will there refer to the evidence where necessary to explain the Court’s




       1
       The ALJ did not disturb the Social Security Administration’s finding that M ays
was entitled to Supplemental Security Income (“SSI”) under Title XVI of the Act, 42
U.S.C. §§ 1381-1385, or that her date of onset with respect to SSI benefits was August 1,
1998.

                                            -2-
disposition.

               The District Court had jurisdiction under 42 U.S.C. § 405(g) (2002) and we

have jurisdiction under 28 U.S.C. § 1291 (2002). Although we review de novo the

District Court’s order for summary judgment, “our review of the ALJ’s decision is more

deferential as we determine whether there is substantial evidence to support the decision

of the Commissioner.” Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir. 2000). Substantial

evidence has been defined as “less than a preponderance of the evidence but more than a

mere scintilla.” Jesurum v. Secretary of the United States Dep't of Health & Human

Servs., 48 F.3d 114, 117 (3d Cir. 1995). “It means such relevant evidence as a reasonable

mind might accept as adequate.” Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir. 1995)

(quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). In determining whether

substantial evidence exists, “we are not permitted to weigh the evidence or substitute our

own conclusions for that of the [ALJ].” Burns v. Barnhart, 312 F.3d 113, 118 (3d Cir.

2002). Accordingly, “[w]here 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.” Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001) (citing

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

                                             I.

               In order to obtain DIB or DW B, a claimant must show that he or she is

under a “disability.” See 42 U.S.C. §§ 423(a), 402(e)(1) (2002). The Act defines a



                                            -3-
“disability” as the “inability to engage in any substantial gainful activity by reason of any

medically determinable physical or mental impairment which can be expected to result in

death or has lasted or can be expected to last for a continuous period of not less than 12

months.” Id. § 423(d)(1)(A). The Act further dictates that a claimant “shall be

determined to be under a disability 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. § 423(d)(2)(A).

The regulations promulgated under the Act utilize a five-step sequential evaluation

process for determining whether a claimant is under a disability. See 20 C.F.R. §

404.1520(a)(1) (2002). We have described this process as follows:

       In step one, the Commissioner must determine whether the claimant is
       currently engaging in substantial gainful activity. 20 C.F.R. § 404.1520(a).
       If a claimant is found to be engaged in substantial activity, the disability
       claim will be denied. Bowen v. Yuckert, 482 U.S. 137, 140, 107 S.Ct. 2287,
       2290-91, 96 L.Ed.2d 119 (1987). In step two, the Commissioner must
       determine whether the claimant is suffering from a severe impairment. 20
       C.F.R. § 404.1520(c). If the claimant fails to show that her impairments are
       “severe,” she is ineligible for disability benefits.

       In step three, the Commissioner compares the medical evidence of the
       claimant’s impairment to a list of impairments presumed severe enough to
       preclude any gainful work. 20 C.F.R. § 404.1520(d). If a claimant does not
       suffer from a listed impairment or its equivalent, the analysis proceeds to
       steps four and five[.] Step four requires the ALJ to consider whether the
       claimant retains the residual functional capacity to perform her past relevant
       work. 20 C.F.R. § 404.1520(d). The claimant bears the burden of
       demonstrating an inability to return to her past relevant work. Adorno v.
       Shalala, 40 F.3d 43, 46 (3d Cir. 1994).

                                             -4-
       If the claimant is unable to resume her former occupation, the evaluation
       moves to the final step. At this stage, the burden of production shifts to the
       Commissioner, who must demonstrate the claimant is capable of
       performing other available work in order to deny a claim of disability. 20
       C.F.R. § 404.1520(f). The ALJ must show there are other jobs existing in
       significant numbers in the national economy which the claimant can
       perform, consistent with her medical impairments, age, education, past
       work experience, and residual functional capacity. The ALJ must analyze
       the cumulative effect of all the claimant’s impairments in determining
       whether she is capable of performing work and is not disabled.

Burnett v. Commissioner of Social Sec. Admin., 220 F.3d 112, 118-119 (3d Cir. 2000)

(quoting Plummer v. Apfel, 186 F.3d 422, 428 (3d Cir. 1999)).

                                             II.

              In this case, the ALJ addressed the first four steps and found that: (1) Mays

had not engaged in substantial gainful activity since 1992; (2) Mays’s depression did not

constitute a severe impairment prior to the relevant dates of last insurance; (3) Mays’s

right shoulder impingement syndrome did constitute a severe impairment during the

relevant time periods; (4) Mays’s right shoulder impingement syndrome did not meet or

equal the criteria for a listed impairment; and (5) Mays had the residual functional

capacity to perform her past relevant work as an intake worker/receptionist. The ALJ did

not reach step five of the sequential evaluation process.

              Mays alleges five grounds of error in support of her request that this Court

vacate the District Court’s order granting summary judgment to the Commissioner. We

address each assignment of error in turn.




                                             -5-
                                                 A.

                  Mays first challenges the ALJ’s determination, at step two, that her

    depression did not constitute a severe impairment prior to the relevant dates of last

    insurance. Mays argues that this finding is not supported by substantial evidence for two

    reasons. First, she notes that her own treating physician, Dr. Peter Arcuri, had prescribed

    anti-depressant medication to her for depression since the 1980s, had told her to see a

    psychiatrist in 1979, and had made notations in her medical records that she suffered from

    “psych anxiety” and “psych depression” on June 1, 1996 and August 30, 1997,

    respectively. Second, Mays notes that, on March 25, 1999, the Commissioner’s own

    examining consultant, Dr. Beth Farber, diagnosed Mays with Major Depression and

    Borderline Personality Disorder. Mays argues that the ALJ ignored Dr. Farber’s report,

    which would have shown that M ays was suffering from a mental illness since early

    adulthood.2

           As mentioned above, step two of the five-step sequential evaluation process

    requires the ALJ to determine whether the claimant is suffering from a severe

    impairment. 20 C.F.R. § 404.1520(a)(4)(ii). According to the regulations promulgated

    under the Act, an impairment is not a severe impairment if it does not “significantly



           2
1            Borderline Personality Disorder, Mays argues, is a mental illness that is stated by
2   the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental
3   Disorders 650 (4th ed. 1994) (“DSM-IV”) to begin by early adulthood. She therefore
4   believes that the ALJ should have found her to be clinically diagnosed with a mental
5   illness prior her relevant dates of last insurance.

                                                 -6-
limit[] [the claimant’s] physical or mental ability to do basic work activities.” Id. §§

404.1520(c), 404.1521(a). Basic work activities are “abilities and aptitudes necessary to

do most jobs,” including:

       (1) Physical functions such as walking, standing, sitting, lifting, pushing,
       pulling, reaching, carrying, or handling; (2) Capacities for seeing, hearing,
       and speaking; (3) Understanding, carrying out, and remembering simple
       instructions; (4) Use of judgment; (5) Responding appropriately to
       supervision, co-workers and usual work situations; and (6) Dealing with
       changes in a routine work setting.

Id. § 140.1521(b). Analyzing the statutory and regulatory framework, several courts have

found the requirements of step two to be “a de minimis screening device to dispose of

groundless claims.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (citing Bowen

v. Yuckert, 482 U.S. 137, 153-54 (1987) (O’Connor, J., concurring)); see also McDonald

v. Secretary of Health & Human Servs., 795 F.2d 1118, 1124 (1st Cir.1986).

Accordingly, “an impairment or combination of impairments can be found ‘not severe’

only if the evidence establishes a slight abnormality that has ‘no more than a minimal

effect on an individuals [sic] ability to work.’” Smolen, 80 F.3d at 1290 (quoting Social

Security Ruling 85-28 (1985)).

       In this case, the ALJ considered all of the evidence and testimony in the record and

found that there was no medical evidence of any mental health treatment prior to

December 1998. Dr. Arcuri had responded to Mays’s sporadic complaints of depression

by prescribing anti-depressants and telling her to seek a psychiatrist. The ALJ explained,

however, that symptoms of depression could not, alone, constitute a medically

                                             -7-
determinable impairment. See 20 C.F.R. § 404.1529(b) (“M edical signs and laboratory

findings, established by medically acceptable clinical or laboratory diagnostic techniques,

must show the existence of a medical impairment(s) which results from anatomical,

physiological, or psychological abnormalities and which could reasonably be expected to

produce the pain or other symptoms alleged.”). The ALJ concluded that there were no

objective medical signs or laboratory findings of depression “until well after [Mays’s]

date of last insurance.”

       The ALJ’s finding is supported by substantial evidence in the record. Mays had

never seen a psychiatrist during the relevant periods of insurance and had not been

clinically diagnosed with a mental illness. The ALJ correctly noted that the sole evidence

of any such clinical finding, by Dr. Farber, took place well after the relevant dates of last

insurance. M oreover, the record indicates that, despite any depression, Mays was capable

of performing basic work activities. In her Disability Report and Daily Activities

Questionnaire, Mays stated that she routinely performed a variety of tasks that are

consistent with basic work activities. Accordingly, we find the ALJ’s decision – that

Mays’s depression did not constitute a severe impairment at step two – to be supported by

substantial evidence.

                                              B.

       Second, Mays argues that the ALJ’s finding that she was able to perform “light”




                                             -8-
    work 3 during the relevant periods did not properly consider the non-exertional

    consequences of her right shoulder impingement syndrome. Mays notes that the Merck

    Manual of Diagnosis and Therapy 507 (17th ed. Merck Research Labs. 1999) states that

    patients suffering from a shoulder impingement syndrome may experience pain during the

    course of non-exertional reaching and manipulative activities, and that such activities may

    aggravate the patient’s condition. She argues that the ALJ incorrectly failed to consider

    this in determining Mays’s residual functional capacity. We disagree. The ALJ’s

    determination as to a claimant’s residual functional capacity must be based on medical

    evidence in the record. See 20 C.F.R. § 404.1545(a)(3). The ALJ must also provide a

    “clear and satisfactory explication” of the basis on which his determination rests. See

    Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981).

           Here, there was ample medical evidence in the record, including the reports of Dr.

    Brian J. Sennett, Dr. Emil Sfedu, Dr. Arculi, and Mays’s own Disability Report, for the

    ALJ to conclude that Mays was not limited in her reaching and manipulative abilities

    during the relevant periods. The ALJ made specific reference to these reports and



           3
1              According to 20 C.F.R. § 404.1567(b), light work involves:
2          [L]ifting no more than 20 pounds at a time with frequent lifting or carrying
3          of objects weighing up to 10 pounds. Even though the weight lifted may be
4          very little, a job is in this category when it requires a good deal of walking
5          or standing, or when it involves sitting most of the time with some pushing
6          and pulling of arm or leg controls. To be considered capable of performing
7          a full or wide range of light work, you must have the ability to do
8          substantially all of these activities.

                                                  -9-
explained that they formed the basis of his decision. The ALJ also explained that Mays’s

allegations in her hearing testimony (i.e., that she was unable to comb her hair) could not

be fully credited in light of this medical evidence. Mays’s current reliance on a

description contained in a diagnostic manual is not sufficient for this Court to reject the

findings of the ALJ.

                                             C.

       Third, Mays argues that the ALJ’s decision is not supported by substantial

evidence because the record contains no expert medical opinion indicating that Mays

possessed a residual functional capacity to perform light work. Mays points to the

Commissioner’s evaluating physician, Dr. Emil Sfedu, who reported on October 21, 1998

that Mays had no range of motion in her right shoulder and concluded that her physical

activities should be restricted to below sedentary levels. This argument fails for several

reasons. Primarily, the ALJ is responsible for making a residual functional capacity

determination based on the medical evidence, and he is not required to seek a separate

expert medical opinion. See 20 C.F.R. §§ 404.1527(e), 404.1546(c). Furthermore, the

medical evidence submitted to the ALJ was sufficient to support his conclusion that

Mays’s physical impairments were not as disabling as her hearing testimony indicated. In

particular, the ALJ relied on Mays’s treating physician, Dr. Arcuri, whose treatment notes

tracked Mays’s physical complaints between June 1995 and August 1998. The ALJ noted

that the record did not indicate any emergency room visits, hospitalizations, or office care



                                             -10-
    (other than for routine maintenance) for Mays’s shoulder condition that would indicate an

    uncontrolled condition. We believe that the ALJ’s reliance on Dr. Arcuri’s records, rather

    than Dr. Sfedu’s report, was appropriate given that Dr. Sfedu performed his examination

    long after Mays’s dates of last insurance.4 Accordingly, the ALJ’s finding that M ays

    possessed a residual functional capacity for light work is supported by substantial

    evidence.

                                                 D.

           Fourth, Mays argues that the ALJ’s decision is not supported by substantial

    evidence because he reached only a lay opinion as to whether Mays’s previous job

    required light work. Mays claims that the ALJ should have heard vocational evidence

    before deciding that her past relevant work required exertion at the light level. She points

    out that vocational experts should have been used because her own Disability Report

    notes that the heaviest weight lifted during her previous employment was fifty pounds – a

    weight that is consistent with work at the “medium” level, not the “light” level. See 20

    C.F.R. § 404.1567(c) (“Medium work involves lifting no more than 50 pounds at a time

    with frequent lifting or carrying of objects weighing up to 25 pounds.”). 5



           4
1           As the Commissioner suggests in its brief, the record indicates that M ays’s
2   condition began to deteriorate sometime in 1998, after her insured status had expired.
           5
1           The Commissioner responds that this argument has been waived because it was
2   not presented to the District Court. We address it, however, because Mays’s Disability
3   Report, which is contained in the record, bears on whether the ALJ’s classification of
4   Mays’s past relevant work is supported by substantial evidence.

                                                -11-
           We disagree with Mays’s assignment of error. 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); Social Security Ruling 00-4p (2000). The Commissioner

    has noted that such experts are used to “resolve complex vocational issues.” Social

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

    work, the ALJ is also 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(a).

           Here, the ALJ heard M ays’s own testimony that she worked as a

    “receptionist/intake worker.” The DOT lists both “receptionist” and “intake worker” as

    occupations performed at a “sedentary” exertional level. See DOT 237.367-038, 195.107-

    010.6 The ALJ also heard Mays testify as to the work she performed during her previous

    employment. Such evidence did not suggest any complex vocational issues. Based on this

    evidence, the ALJ concluded that the Mays’s past relevant work was performed at the

    light level. The fact that Mays indicated on her Disability Report that she had, at some

    point, lifted fifty pounds, does not, in our view, undermine the ALJ’s conclusion.

                                                  E.

           Finally, Mays argues, with respect to the Appeals Council’s denial of review in

    this case, that its failure to consider Mays’s letter brief “is an abuse of discretion and/or




           6
1          Work at the sedentary level is included within the category of light work. See 20
2   C.F.R. § 404.1567(b).

                                                  -12-
implicates ‘fundamental fairness.’” We do not address these arguments because, under

42 U.S.C. § 405(g), we have statutory authority to review only the final decision of the

Commissioner. The final decision of the Commissioner in this case is the decision of the

ALJ. See 20 C.F.R. § 404.955(b); see also Matthews v. Apfel, 239 F.3d 589, 592 (3d Cir.

2001) (“If the Appeals Council denies the request for review, the ALJ's decision is the

Commissioner’s final decision.”). Furthermore, we do not have statutory authority to

review the Appeals Council’s decision to deny review. Matthews, 239 F.3d at 594.

       Mays also argues that the Commissioner incorrectly excluded her letter brief to the

Appeals Council from the transcript filed with the District Court. We reject this argument

as well because 42 U.S.C. § 405(g) requires that the transcript submitted by the

Commissioner need only include “the evidence upon which the findings and decision

complained of are based.” Here, the letter brief submitted by Mays to the Appeals

Council was not considered by the ALJ and was therefore not required to be included in

the transcript submitted to the District Court.

                                             III.

       For the foregoing reasons, we find the ALJ’s decision to be supported by

substantial evidence and we will affirm the judgment of the District Court.




                                             -13-
TO THE CLERK:

    Please file the foregoing not precedential opinion.




                                /s/ Walter K. Stapleton
                                _________________________________
                                Circuit Judge




                                         -14-
