                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-20-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-2089




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                                                       NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 05-2089


                               MICHAEL S. SASSONE,

                                                Appellant
                                           v.

                      COMMISSIONER OF SOCIAL SECURITY



                     On Appeal from an Order of the United States
                      District Court for the District of New Jersey
                             (Civil Action No. 03-cv-5831)
                       District Judge: Honorable Joel A. Pisano



                      Submitted under Third Circuit LAR 34.1(a)
                                  January 13, 2006

              Before: BARRY, AMBRO and ALDISERT, Circuit Judges.

                               (Filed: January 20, 2006)



                                       OPINION


ALDISERT, Circuit Judge.

      Appellant Michael S. Sassone asks us to conclude that the District Court erred in

affirming the Commissioner of the Social Security Administration’s final decision
denying Sassone’s claim for Disability Insurance Benefits and Supplemental Security

Income under Titles II and XVI of the Social Security Act (the “Act”). The District Court

exercised jurisdiction pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). We have

jurisdiction to hear this appeal pursuant to 42 U.S.C. § 405(g) and 28 U.S.C. § 1291. We

conclude that substantial evidence supports the Commissioner’s determination that

Sassone was capable of performing a significant number of light and sedentary jobs in the

national economy, and that he thus was not disabled as defined by the Act. Accordingly,

we will affirm.

                                           I.

       The parties are familiar with the facts and procedural history both in the District

Court and before the Administrative Law Judge (“ALJ”), so we will discuss only the legal

issues presented before us and the material facts relating thereto.

       Courts may review the Commissioner’s factual findings only to determine whether

they are supported by substantial evidence. See 42 U.S.C. § 405(g) (Supp. 2004) (“The

findings of the Commissioner of Social Security as to any fact, if supported by substantial

evidence, shall be conclusive . . .”). The Supreme Court has interpreted the statutory

standard of “substantial evidence” to mean “such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389,

401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).

Substantial evidence requires more than a mere scintilla of evidence, but less than a

preponderance. Brown v. Bowen, 845 F.2d 1211, 1213 (3d Cir. 1988). The presence of

                                                2
evidence in the record that supports a contrary conclusion does not undermine the

Commissioner’s decision so long as the record provides substantial support for that

decision. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972). The reviewing court

looks to the record as a whole, Taybron v. Harris, 667 F.2d 412, 413 (3d Cir. 1981) (per

curiam), and in assessing the extent to which the record supports the Commissioner’s

conclusions, the court reviews objective medical facts, diagnoses or medical opinions

based on those facts, subjective complaints of pain or disability, and the claimant’s age,

education, and work history. Jones v. Harris, 497 F. Supp. 161, 167 (E.D. Pa. 1980).

       The Commissioner has implemented a five-step procedure for the assessment of

disability claims. See 20 C.F.R. § 404.1520. We have summarized 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. § 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).

       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

                                           3
       Commissioner, who must demonstrate [that] 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. See 20 C.F.R. § 404.1523.

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

       For a claimant to recover under the Act, proof of disability must be established

through objective medical evidence. 42 U.S.C. § 423(d)(5)(A). The Commissioner

considers objective medical evidence to be medical signs and laboratory findings. 20

C.F.R. § 404.1529(a). An individual’s description of his or her pain or symptoms,

although relevant, is not conclusive in itself. 42 U.S.C. § 423(d)(5)(A); see 20 C.F.R. §

404.1529(b) (stating that symptoms alone “will not be found to affect [the claimant’s]

ability to do basic work activities unless medical signs or laboratory findings show that a

medically determinable impairment(s) is present”). We now examine the facts in this

case in light of the foregoing legal precepts.

                                                 II.

       The ALJ conducted Sassone’s disability analysis in accord with the required five-

step sequential analysis. See 20 C.F.R. § 404.1520. In satisfying step one, the ALJ found

there to be no evidence showing that Sassone had engaged in work activity after his

alleged disability onset date. As for step two, the ALJ determined that neither Sassone’s

diabetes, heart disease, poor vision, high blood pressure nor his rotator cuff problems


                                                 4
could be deemed “severe impairments” as that term is defined in the regulations. With

respect to step three, the ALJ did find that Sassone’s right hip osteoarthritis was “severe,”

but he ultimately concluded that neither this impairment nor any other, “singly or in

combination, meets or equals the severity of any impairment listed in” the regulations at

20 C.F.R. Part 404, Subpart P, Appendix 1. At step four, the ALJ found that

notwithstanding Sassone’s impairments, he had the residual functional capacity to

perform light work as defined by the Commissioner at 20 C.F.R. § 404.1567(b).

Moreover, the ALJ found that Sassone’s past relevant work as a security guard fell under

the category of light work. Accordingly, the ALJ’s analysis ceased at step four as

Sassone was not disabled as defined by the Act.
                                             III.
       Sassone contends that substantial evidence does not support the Commissioner’s

decision in four regards. He asserts that (1) under the required step two analysis, the ALJ

improperly found that Sassone’s diabetes, hypertension and back complaints were not

severe impairments; (2) the ALJ erred in not raising the issue of obesity in his order; (3)

the ALJ erred in failing to find that Sassone had a severe psychiatric impairment; and (4)

under steps three and four of the Commissioner's sequential evaluation, the ALJ's

discussion of his findings does not provide the necessary reasoning to permit “meaningful

judicial review” by this Court.



                                            IV.


                                              5
       The ALJ properly decided that Sassone’s diabetes, hypertension and back

complaints were not severe impairments. The record is replete with mentions of

Sassone’s blood pressure, diabetes and back pain, but Sassone fails to cite to any medical

report diagnosing him with a condition resulting from these ailments that could be

considered a “severe impairment” under 20 C.F.R. § 404.1521. Moreover,

notwithstanding reports in the record detailing Sassone’s blood pressure and diabetes,

substantial medical evidence supports the ALJ’s finding that these conditions, either alone

or en masse, fail to rise to the level of a severe impairment. The ALJ noted that Sassone

is not under medical care to treat his blood pressure or diabetes, and there are no medical

reports indicating any end-organ damage or quantifiable complications resulting from

Sassone’s blood pressure or diabetes. Substantial evidence therefore supports the ALJ’s

conclusion that Sassone’s diabetes and hypertension are not severe impairments.

       The ALJ also concluded that the facts belie the existence of any disabling

condition resulting from Sassone’s back pain. A severe impairment is something that

significantly limits a claimant’s ability to do basic work activities, which in the case of a

physical ailment means that it inhibits a claimant’s ability to walk, sit, stand, lift, reach

and carry. 20 C.F.R. § 404.1521. Under 20 C.F.R. § 404.1529(b), more than just

Sassone’s subjective complaints of pain are needed to find that such pain constitutes a

severe impairment. Here, Sassone’s subjective complaints of pain are not sufficiently

supported by the necessary objective medical evidence to allow the ALJ to decide that



                                               6
Sassone’s back pain constitutes a severe impairment.1 Sassone cites only to a June 29,

2001 examination by a Dr. Thomas Sculco, in which Dr. Sculco stated that Sassone’s

“[r]ange of motion of his hip is painless today,” but that “[h]e is unable to return to work

at this time because of severe back and leg pain with numbness and due to complications

referable to his diabetes as well as persistent difficulty walking.” (Tr. at 199.) The ALJ

reviewed and discussed this report, but ultimately concluded that the weight of the “signs

and findings” contained in this and other reports indicates that Sassone retains “a normal

ability to stand, sit, and use his arms.” We agree that substantial evidence supports this

conclusion. Although numerous physicians’ reports indicate that Sassone suffers back

pain, they also indicate that he retains the ability to perform basic work activities. Based

on this evidence, a reasonable mind could conclude that Sassone’s back pain is not a

severe impairment.

       Additionally, the ALJ did not err at step two of the Commissioner’s sequential

evaluation in not raising the issue of obesity because Sassone did not allege that he was

obese and he provided no objective medical evidence indicating that his weight problem

caused or contributed to any severe impairments. Sassone, who is 5'7" and weighs 270

pounds, contends that the ALJ “forgot” that Sassone’s obesity is a severe impairment.


       1
         Furthermore, the ALJ discounted the credibility of Sassone’s subjective complaints of
pain when he noted that Sassone takes no prescribed medications for his back pain, there is no
evidence of ongoing medical treatment, no assistive walking device has been prescribed, and
Sassone only attended two physical therapy sessions following his hip surgery despite a
physician’s recommendation for further therapy. We agree that these facts discount the weight
of Sassone’s subjective complaints.

                                               7
Again, a claimant for disability must support his or her contentions with objective

medical evidence. See 42 U.S.C. § 423(d)(5)(A). The Social Security Administration

itself has said that although obesity may at times reach the level of a severe impairment,

in establishing the existence of obesity, especially that reaching the level of a severe

impairment, the Administration will generally rely on the judgment of an examining

physician. Social Security Ruling 02-1p, 2000 WL 628049, at *4-6 (Sept. 12, 2002).

Here, no examining physician provided a report indicating such a severe impairment.

       Although the ALJ could have considered Sassone’s weight as a severe impairment

even if obesity was not alleged, we cannot fault the ALJ for failing to discuss Sassone’s

obesity because the record contains no mentions of a physician diagnosing or treating

Sassone for obesity2 and contains no objective medical evidence of Sassone’s weight

condition in relation to any resulting disability. See Rutherford v. Barnhart, 399 F.3d

546, 553 (3d Cir. 2005) (upholding a decision of the ALJ, notwithstanding his failure to

discuss obesity, because the record contained no mention of obesity contributing to a

severe impairment when the claimant, who failed to allege obesity as an impairment,

stood 5'2" and weighed 245 pounds). Moreover, because Sassone’s physicians were

aware of his weight problem, (see Tr. at 143.), the ALJ’s discussion and adoption of their

medical conclusions constitutes, at a minimum, an “indirect consideration” and rejection



       2
          Several physicians did describe Sassone as obese in their physical examinations, but
none of these physicians go much further in their analyses than using this descriptive statement.
(See Tr. at 143, 157, 203.)

                                                8
of Sassone’s weight condition in his disability analysis. See Rutherford, 399 F.3d at 553.

       Likewise, the ALJ did not err in failing to determine that Sassone had a severe

psychiatric impairment because here, too, Sassone never alleged that he was disabled as a

result of a psychiatric impairment. The evidence did not show that he had limitations

because of a psychiatric impairment and Sassone never received psychiatric treatment for

any psychiatric problems. A claimant suffers from a severe psychiatric impairment

meriting a disability finding if, for example, the claimant has the inability to understand,

carry out and remember simple instructions; has difficulty in the use of judgment; cannot

respond appropriately to supervision, co-workers and usual work situations; and/or cannot

deal with “changes in a routine work setting.” 20 C.F.R. § 404.1521(b)(3)-(6) (listing

examples of psychiatric problems that may indicate a severe impairment). The physician

whom the Social Security Administration requested to perform a psychiatric evaluation,

Dr. Vasudev N. Makhija, M.D., found no evidence of any psychiatric disorders exhibiting

such levels of severity. (See Tr. at 203.) The Commissioner’s Residual Functional

Capacity Assessment echoed this conclusion. In light of such uncontroverted medical

evidence, the ALJ did not err in concluding that Sassone suffered from no severe

psychiatric impairments.

       Moreover, the ALJ provided an ample analysis to permit “meaningful judicial

review” for his finding at step three of the Commissioner’s analysis. Sassone argues that,

in accordance with our requirements in Burnett v. Comm’r of Soc. Sec., 220 F.3d 112,

119-120 (3d Cir. 2000), the ALJ failed to articulate why his impairments did not match

                                              9
one or more of the Commissioner’s listed impairments. In Burnett we rejected an ALJ’s

use of conclusory statements in step three analyses, and required him to set forth the

reasons for his conclusions that a claimant’s impairment does not meet a listed

impairment. Id. We do not, however, require an ALJ to use “magic words” in his

analysis. See Jones v. Barnhart, 364 F.3d 501, 505 (3d Cir. 2004) (“Burnett does not

require the ALJ to use particular language or adhere to a particular format in conducting

his analysis.”). We simply require that the record be developed sufficiently to permit

meaningful appellate review. Id.

       Considering the ALJ’s decision as a whole, we are satisfied that he provides

sufficient analysis of Sassone’s contentions to permit meaningful judicial review. The

ALJ did not simply make the bald statement, as Sassone contends, that Sassone does not

satisfy step three; he conducted a thorough three-page analysis of Sassone’s claimed

disabling ailments. Ultimately, the ALJ concluded that only one ailment, Sassone’s

osteoarthritis, constituted a severe impairment meriting analysis beyond step two, but in

his step three analysis, he concluded that this ailment was not the equivalent of any of the

Commissioner’s listed impairments.

       Sassone argues that the ALJ’s decision is deficient because it does not indicate

which listed impairments were considered and rejected. We disagree. First, the ALJ was

not required to discuss the applicability of the listings at step three for those ailments that

Sassone did not provide sufficient objective medical evidence for the ALJ to classify as

severe impairments in step two. Logically, if insufficient evidence exists to support an

                                              10
ALJ’s determination that an ailment constitutes a severe impairment, then his or her

analysis of that ailment should cease at step two. See 20 C.F.R. § 404.1526 (stating that

medical equivalence to a listed severe impairment is determined by medical evidence

only).

         Second, as Sassone’s osteoarthritis was the only ailment which constituted a severe

impairment under the law, only one of the listed impairments could have been possibly

equivalent to Sassone’s osteoarthritis: 1.02 Major dysfunction of a joint(s) (due to any

cause).3 See 20 C.F.R. Pt. 404, Subpt. P, App.1. Although we stated in Burnett that the

burden is on the ALJ to “identify the relevant listed impairments,” 220 F.3d at 120 n.2,

we have repeatedly indicated that an ALJ does not commit reversible error by failing to

identify a specific listed impairment when only one listed impairment could possibly

apply to the impairment under consideration. See Caruso v. Comm’r of Soc. Sec., No.

03-2909, 2004 WL 1147065, at **1 (3d Cir. May 19, 2004) (not published); Maldonado

         3

         1.02 Major dysfunction of a joint(s) (due to any cause): Characterized by gross
         anatomical deformity (e.g., subluxation, contracture, bony or fibrous ankylosis,
         instability) and chronic joint pain and stiffness with signs of limitation of motion or
         other abnormal motion of the affected joint(s), and findings on appropriate medically
         acceptable imaging of joint space narrowing, bony destruction, or ankylosis of the
         affected joint(s). With:

         A. Involvement of one major peripheral weight-bearing joint (i.e., hip, knee, or
         ankle), resulting in inability to ambulate effectively, as defined in 1.00B2b; or

         B. Involvement of one major peripheral joint in each upper extremity (i.e., shoulder,
         elbow, or wrist-hand), resulting in inability to perform fine and gross movements
         effectively, as defined in 1.00B2c.

20 C.F.R. Pt. 404, Subpt. P, App.1.

                                                   11
v. Comm’r of Soc. Sec., No. 03-2759, 2004 WL 1012185, at **2 (3d Cir. May 5, 2004)

(not published). Furthermore, the ALJ implicitly addressed in the negative each of the

requirements of Listing 1.02. He found that Sassone ambulates freely without a

prescribed assistive walking device; that Sassone’s rotator cuff problems are not severe

impairments; and that he can perform “light work,” which has as a basic requirement the

ability to do a “good deal of walking,” see 20 C.F.R. § 404.1567(b). In sum, because we

are able to conduct a meaningful review of the ALJ’s step three equivalency examination,

we find no error in the ALJ’s failure to cite a specific listed impairment. Moreover,

substantial evidence supports the ALJ’s finding that Sassone’s osteoarthritis does not

meet any listed impairment.

       Finally, the ALJ’s decision contains ample detail to permit meaningful judicial

review of his finding, at step four, that Sassone can perform light work as defined at 30

C.F.R. § 404.1567(b).4 In step four, the ALJ must determine whether the claimant’s

residual function capacity permits him to perform his past relevant work. If he can, the

claimant is not disabled. See 20 C.F.R. § 404.1520(e). In making this residual function



       4
           The Commissioner defines light work as follows:

       Light work involves lifting no more than 20 pounds at a time with frequent lifting or
       carrying of objects weighing up to 10 pounds. Even though the weight lifted may
       be very little, a job is in this category when it requires a good deal of walking or
       standing, or when it involves sitting most of the time with some pushing and pulling
       of arm or leg controls. To be considered capable of performing a full or wide range
       of light work, you must have the ability to do substantially all of these activities.

20 C.F.R. § 404.1567(b).

                                                12
capacity determination, the ALJ must consider all the evidence before him, and must

“give some indication of the evidence which he rejects and his reason(s) for discounting

such evidence.” Burnett, 220 F.3d at 121.

       Here, contrary to Sassone’s contention, the ALJ met the requirements of Burnett

and properly articulated the reasons for his residual function determination. First, the

ALJ indicated that he considered all the evidence before him and determined that Sassone

retains the residual capacity to perform light work. This conclusion follows three pages

of analysis of Sassone’s claimed ailments in which the ALJ discusses each ailment and

comments on its severity and limiting effects. This detailed discussion more than satisfies

our Burnett requirement that the ALJ provide reasons for the evidence he is discounting.

Second, in discussing the evidence that supported his ultimate conclusion, the ALJ stated

that he was giving great weight to the assessment of the Commissioner’s Medical Expert

because the assessment was “well supported by the medical evidence of record.”5 Third,

the ALJ noted that Sassone’s more recent relevant work was as a security guard, which he

concluded to be a job “light in exertional demands” according to the Dictionary of

Occupational Text (1991). The ALJ then compared Sassone’s functional abilities, as

stated by the Commissioner’s Medical Expert, with the requirements of a security guard’s


       5
          In his report, the Commissioner's Medical Expert, who himself cited the conclusions of
other examining physicians, concluded that Sassone could occasionally lift or carry a 20 pound
burden, and frequently lift or carry 10 pounds. (Tr. at 212.) He indicated that Sassone could sit,
stand, or walk for upwards of six hours in an eight hour workday. (Id.) The Expert only
indicated that Sassone should never climb and that his ability to push and/or pull objects was
limited by infirmities in his lower extremities. (Id. at 212-213.)

                                                13
job, and concluded that there is no reason Sassone could not return to his past relevant

work as a security guard. This conclusion meant that the sequential analysis must cease

at step four and the ALJ must find Sassone not disabled.

        In addition to fully explaining his reasoning, substantial evidence supports the

ALJ’s step-four determination. We find it significant that Sassone himself described his

past job as a security guard to consist of “sitting in front of the TV cameras” and that it

was a “sit down job.” (Tr. at 27, 29.) These statements bolster the ALJ’s determination

that Sassone’s past relevant work as a security guard constituted “light work” under the

terms of 20 C.F.R. § 404.1567(b). Furthermore, they support the ALJ’s conclusion that

Sassone could return to this work because this “sit down job” would fall within the zone

of Sassone’s capabilities as described by the Commissioner’s Medical Expert. Finally,

because the ALJ determined that Sassone suffered from only one severe impairment, his

osteoarthritis of the right hip, the ALJ’s conclusion that Sassone can perform light work

does not require Sassone to perform tasks prohibited by his osteoarthritis, which the ALJ

determined to be heavy lifting, heavy carrying, constant bending, squatting, crawling or

climbing. None of these osteoarthritis complications would prevent Sassone from

performing the duties of light work as defined by 20 C.F.R. § 404.1567(b). Accordingly,

substantial evidence supports the ALJ’s findings.

                                             V.

       We have considered all of the arguments advanced by the parties and conclude that

no further discussion is necessary. The judgment of the district court will be affirmed.

                                              14
15
