                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-15-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3647




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"Roberts v. Comm Social Security" (2005). 2005 Decisions. Paper 837.
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                                                                 NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                  ____________

                                       No. 04-3647
                                      ____________

                                 JEANNIE M. ROBERTS,

                                                  Appellant

                                             v.

                             JOANNE B. BARNHART,
                        COMMISSIONER OF SOCIAL SECURITY
                                  ____________

                      On Appeal from the United States District Court
                          for the Middle District of Pennsylvania
                                  (D.C. No. 03-cv-01254)
                       District Judge: Honorable John E. Jones, III
                                      ____________

                        Submitted Under Third Circuit LAR 34.1(a)
                                      July 1, 2005

                Before: NYGAARD 1 , SMITH and FISHER, Circuit Judges.

                                   (Filed: July 15, 2005)
                                       ____________

                                OPINION OF THE COURT
                                     ____________

FISHER, Circuit Judge.




      1
          Judge Nygaard assumed Senior Judge status on July 9, 2005.
       This is an appeal by Jeannie M. Roberts from the District Court’s affirmance of the

decision of the Commissioner of Social Security denying disability insurance benefits

(DIB) and supplemental security income (SSI). The question before us is whether

substantial evidence supports the Commissioner’s final decision that Roberts was not

disabled under the Social Security Act. We affirm having concluded that substantial

evidence supports the decision. Because the parties are familiar with the background

facts and procedural history, we set forth only those facts necessary to our analysis.

       Roberts suffered from a right shoulder impairment, cervical disc disease and

depression. The Administrative Law Judge (“ALJ”) determined that those impairments

do not meet or medically equal a listed impairment, 20 C.F.R. Part 404, Subpart P,

Appendix 1, Part A. The ALJ determined that although Roberts’s impairment prevented

her from performing her past relevant work as a packer or janitor, Roberts retained

residual functional capacity to perform a limited range of light duty work, which did not

involve performing repetitive tasks with her right upper extremity, overhead work and

which was consistent with her mild to moderate limitations in concentration and attention

due to her depression. Because Roberts was forty-nine (49) years old, constituting a

younger individual, 20 C.F.R. §§ 404.1563 and 416.967, with limited education, an

unskilled work background and could not perform the full range of light work, the ALJ

enlisted the assistance of a vocational expert to conclude that Roberts could perform light,

unskilled work as an unarmed security guard, inspector and gate tender, all of which exist



                                              2
in significant numbers in the national economy. These conclusions are supported by

substantial evidence.

       We agree that Roberts’s impairments do not meet any of the Listings, either

individually or in combination. We also find that despite Roberts’s argument that she was

limited to sedentary work, the record evidence substantially supports the ALJ’s finding

that Roberts could engage in a wide-range of light duty work with her credible subjective

complaints. The ALJ’s findings in this regard were consistent with the objective medical

evidence.

       Nor do we find merit in Roberts’s contention that the ALJ erred in classifying her

as a “younger” person given her age, forty-nine (49), for purposes of determining whether

there were a significant number of jobs in the national economy that she could perform in

light of her work restrictions, vocational factors and age. “Age” refers to chronological

age of a claimant and the extent to which it affects the claimant’s ability to adjust to other

work. 20 C.F.R. §§ 404.1563(a), 416.963(a) (2004). A “younger” person is someone

under fifty (50) years of age. Id. During the relevant period, Roberts was under fifty (50)

years of age and was not within a few days or months of her fiftieth birthday to provide

her with the benefit of a “borderline” age determination under 20 C.F.R. § 404.1563(b) as

an individual closely approaching advanced age. See 20 C.F.R. §§ 404.1563(d),

416.963(d) (2004) (defining “person closely approaching advanced age” as one who is

age fifty (50) to fifty-four (54) years old). Nor is there any authority extending the



                                              3
benefits of a “borderline” age determination to persons like Roberts who are within

five (5) to six (6) months of their fiftieth birthday. In any event, substantial evidence,

including the unrefuted evidence provided by the vocational expert, supports the ALJ’s

conclusion that Roberts’s age was not a factor significantly limiting her vocational

adaptability.

       Having considered the contentions raised by the parties and concluding that no

further discussion is required, we will affirm the judgment of the District Court that

substantial evidence supports the Commissioner’s conclusion that Roberts was not

disabled within the meaning of the Social Security Act.




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