                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


6-19-2007

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Precedential or Non-Precedential: Non-Precedential

Docket No. 06-2953




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                                                               NOT PRECEDENTIAL


                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                  _______________

                                    No. 06-2953
                                  _______________

                                WARREN H. LEIBIG,

                                               Appellant,

                                          v.

                             JO ANNE B. BARNHART,
                           COMMISSIONER U.S. SOCIAL
                          SECURITY ADMINISTRATION.

                                  _______________

                   On Appeal From the United States District Court
                       for the Eastern District of Pennsylvania
                                  (No. 05-cv-06154)
                   District Judge: Honorable Mary A. McLaughlin

                      Submitted Under Third Circuit LAR 34.1(a)
                                   May 22, 2007

           Before: BARRY, CHAGARES, and TASHIMA,* Circuit Judges.

                                (Filed: June 19, 2007)


                                __________________

                             OPINION OF THE COURT


      *
        Honorable A. Wallace Tashima, United States Court of Appeals for the Ninth
Circuit, sitting by designation.
                                  __________________

CHAGARES, Circuit Judge.

       Warren Leibig appeals from a District Court order affirming the Commissioner of

Social Security’s denial of disability insurance benefits (“DIB”) and supplemental

security income (“SSI”). Liebig argues that the decision of the administrative law judge

(“ALJ”) is unsupported by substantial evidence. We disagree and will affirm the District

Court’s judgment.

                                             I.

       Because we write only for the parties, we will not state the facts separately. The

District Court had subject matter jurisdiction under 42 U.S.C. §§ 405(g) and 1383(c). We

have jurisdiction to review the District Court’s decision under 28 U.S.C. § 1291. Our

review is limited to determining whether substantial evidence supports the ALJ’s finding

that Leibig was not disabled. 42 U.S.C. §§ 405(g), 1383(c)(3); Rutherford v. Barnhart,

399 F.3d 546, 552 (3d Cir. 2005). “‘Substantial evidence’ has been defined as ‘more than

a mere scintilla. It means such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.’” Smith v. Califano, 637 F.2d 968, 970 (3d Cir. 1981)

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

                                            II.

       The Social Security Act gives the Commissioner authority to pay DIB and SSI

benefits to disabled persons. 42 U.S.C. §§ 423(d), 1382. Disability is defined as the

“inability to engage in any substantial gainful activity by reason of any medically

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

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

months.” 42 U.S.C. § 423(d)(1)(A); see also § 1382c(a)(3)(A).

       The Commissioner applies a five-step test to determine whether a claimant is

disabled. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). The first two steps require the

claimant to demonstrate that he is not currently engaging in substantial gainful activity,

and that he is suffering from a severe impairment. Id. A failure of proof at step one or

step two renders the claimant ineligible for DIB and SSI. See Plummer v. Apfel, 186

F.3d 422, 428 (3d Cir. 1999).

       If, however, the claimant progresses to step three, then the question becomes

“‘whether the impairment is equivalent to one of a number of Listed Impairments that the

Commissioner acknowledges are so severe as to preclude substantial gainful activity.’”

Knepp v. Apfel, 204 F.3d 78, 84 (3d Cir. 2000) (quoting Bowen v. Yuckert, 482 U.S.

137, 141 (1987)). A claimant who satisfies step three “is conclusively presumed to be

disabled.” Id. A claimant who fails at step three must press on to steps four and five.

       Under step four, the question is “whether the claimant retains the residual

functional capacity to perform [the claimant’s] past relevant work.” Plummer, 186 F.3d

at 428. It is the claimant’s burden to establish an inability to return to his past relevant

work. See id. A failure of proof at step four dooms the claimant’s case. See 20 C.F.R.

§§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).

       If, however, the claimant satisfies his burden at step four, then the burden of

                                               3
production shifts to the Commissioner. At step five, the Commissioner “must show there

are other jobs existing in significant numbers in the national economy which the claimant

can perform, consistent with [the claimant’s] medical impairments, age, education, past

work experience, and residual functional capacity.” Plummer, 186 F.3d at 428.

       In this case, Leibig challenges the ALJ’s determinations at steps three and five. At

step three, the ALJ concluded that Leibig did not satisfy Listing 104.A, which relates to

spinal disorders. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.04A (2005).1 At step five,

the ALJ found that Leibig retained the ability to perform a significant number of jobs in

the national economy.

       Leibig’s primary contention is that substantial evidence does not support the ALJ’s

decision to accord limited weight to the opinion of Dr. Abraham, Leibig’s treating

physician. An “ALJ must . . . pay close attention to the medical findings of a treating

physician,” Brewster v. Heckler, 786 F.2d 581, 584 (3d Cir. 1986), and “may reject a


       1
        At the time of the ALJ’s decision, Listing 104.A read as follows:

       Disorders of the spine (e.g., herniated nucleus pulposus, spinal
       arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet
       arthritis, vertebral fracture), resulting in compromise of a nerve root
       (including the cauda equina) or the spinal cord. With:

       A. Evidence of nerve root compression characterized by neuro-anatomic
       distribution of pain, limitation of motion of the spine, motor loss (atrophy
       with associated muscle weakness or muscle weakness) accompanied by
       sensory or reflex loss and, if there is involvement of the lower back,
       positive straight-leg raising test (sitting and supine)[.]

Id.

                                              4
treating physician’s opinion outright only on the basis of contradictory medical

evidence.” Morales v. Apfel, 225 F.3d 310, 317-18 (3d Cir. 2000) (quotation omitted).

Here, substantial evidence supports the ALJ’s decision to accord limited weight to Dr.

Abraham’s conclusions. We agree with the District Court that the ALJ accepted almost

all of Dr. Abraham’s conclusions, except for his opinion that Leibig could only work six

hours per day. As to that finding, Dr. Abraham was all alone among the physicians

involved in this case. Dr. Punjabi’s view of Leibig’s functional capacity was far less

restrictive than that of Dr. Abraham. Dr. Finch, the state agency physician, also offered a

less restrictive functional-capacity assessment. And Dr. Sachs, a treating specialist,

identified no significant functional restrictions and found no evidence of motor, sensory,

or reflex abnormality. These contradictory medical assessments provide evidence that “a

reasonable mind might accept as adequate to support a conclusion” that Leibig retained

the ability to perform a significant number of jobs in the national economy. See Reefer v.

Barnhart, 326 F.3d 376, 379 (3d Cir. 2003).

       Leibig also contests the ALJ’s determination that “the medical record does not

support that [Leibig’s] impairment/s are/is as severe as he contends.” Appendix 4i. In

our view, however, the assessments of Drs. Punjabi and Sachs provide substantial

evidence to support the ALJ’s conclusion that Leibig’s subjective allegations were

excessive.

       Finally, Leibig argues that the ALJ committed error at step three of the analysis by

concluding that Leibig had not met or equaled every element of Listing 1.04A. See 20

                                              5
C.F.R. Pt. 404, Subpt. P, App. 1, § 1.04A (2005). That listing requires an inability to

ambulate effectively or an inability to perform fine and gross movements effectively. Id.

“For a claimant to show that his impairment matches a listing, it must meet all of the

specified medical criteria.” Sullivan v. Zebley, 493 U.S. 521, 530-31 (1990). Here,

however, Dr. Sachs found no evidence of motor, sensory, or reflex abnormality. Dr.

Punjabi found that Leibig possessed normal motor power, grip strength, station, and gait.

And, as the District Court noted, there was no evidence of atrophy. These findings

provide substantial evidence to support the ALJ’s conclusion that Leibig did not meet or

equal Listing 1.04A.

                                            III.

       For these reasons, we will affirm the District Court’s judgment.




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