                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                     No. 12-2385
                                     ___________

                                  MARTIN BRESLIN,
                                           Appellant

                                           v.

                      COMMISSIONER OF SOCIAL SECURITY
                           _______________________

                    On Appeal from the United States District Court
                           for the District of New Jersey
                         D.C. Civil Action No. 11-cv-00261
                          (Honorable Susan D. Wigenton)
                                  ______________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   January 7, 2013

              Before: SCIRICA, AMBRO and FUENTES, Circuit Judges.

                            (Opinion Filed: January 9, 2013)
                                 _________________

                              OPINION OF THE COURT
                                 _________________

SCIRICA, Circuit Judge.

      Martin Breslin appeals the District Court’s order affirming the Social Security

Administration’s final decision denying Breslin supplemental security income. Because

substantial evidence supported the Administrative Law Judge’s finding Breslin was not

disabled under Social Security Act § 1614(a)(3), 42 U.S.C. § 1382c(a)(3), we will affirm.
                                               I.

       Breslin was born in 1961, and was 48 years old on the date of the ALJ decision.

He attended college for two or three years. In the fifteen years before the ALJ decision, 1

he worked as a film expediter for NBC Universal from 1993 to 1995 and in a warehouse

of AQL Decorating Service in 1998. Both jobs required lifting as much as 50 pounds. He

has not worked since 1998. At the hearing before the ALJ, Breslin testified he was fired

from the NBC and AQL jobs because “I had an alcohol problem.”

       On December 25, 2003, Breslin was admitted to Palisades Medical Center for

alcohol intoxication and cardiopulmonary arrest after drinking beer without any meals for

three weeks. During his hospitalization, Breslin was diagnosed with congestive heart

failure, among other conditions, and was prescribed various medications. He was

discharged on February 4, 2004, in good condition. Breslin testified he had not “had a

drop” of alcohol since his admission to the hospital.

       Dr. Ashraf Faltas conducted a consultative examination of Breslin on March 20,

2007. Dr. Faltas found atrial fibrillation alternating with atrial flutter (irregular

heartbeats) 2 and concluded “This is a 46-year-old male with chronic alcohol consumption

and was diagnosed with . . . cardiomyopathy anterior chest and cardiac arrhythmia as a

result of heavy alcohol use. Physical examination is completely unremarkable.” Dr.

Faltas found no support for Breslin’s claim of poor circulation and noted Breslin

1
  The Social Security Administration only considers substantial gainful activity
performed in the previous fifteen years “past relevant work” for purposes of determining
if a person is disabled under the Social Security Act. 20 C.F.R. § 416.920(b).
2
  Atrial fibrillation or flutter, U.S. NATIONAL LIBRARY OF MEDICINE, MEDLINEPLUS,
http://www.nlm.nih.gov/medlineplus/ency/article/000184.htm.
                                               2
“[a]dmits to drinking 1 pint of alcohol and a six pack of beer every day.” On January 30,

2008, Dr. Faltas conducted a reevaluation of Breslin with the same results except that

Breslin’s atrial fibrillation also alternated with sinus arrhythmia (a normal variation in

heartbeats) 3 and Breslin stated he had “quit smoking and drinking alcohol since the last

visit.”

          In the hearing before the ALJ, Breslin testified he had poor circulation in his legs,

got fatigued easily, and felt lightheaded when he bent over repeatedly. When he sat for

more than ten minutes, he lost feeling in his legs and he needed to get up, stretch, and

change positions. Because his legs sometimes jerked and spasmed, his doctor directed

him not to drive, a direction he had followed since 1990. He had trouble staying

balanced, so he avoided public transportation and the crowds on it. He could walk six city

blocks before stopping, stand for up to 20 minutes, and carry up to 35 pounds across a

room. Sometimes in the mornings, his legs felt heavy and he needed to do knee stretches

before he could get out of bed. He could climb the seven steps to his mother’s house,

where he lived. He helped his mother with chores, such as dusting, carrying laundry, and

food shopping. He had not had his medications changed to treat his conditions.

          The ALJ found Breslin had one severe impairment, chronic heart failure, that was

not of listing severity. The ALJ found Breslin’s symptoms limited him to light or

sedentary work, but did not find credible Breslin’s contentions of additional limitations.

Finding jobs existed that Breslin could perform, the ALJ concluded Breslin was not


3
 Sinus Arrhythmia, BETTER MEDICINE, http://www.localhealth.com/article/sinus-
arrhythmia.
                                                3
disabled under the Social Security Act and accordingly not entitled to SSI. The ALJ’s

denial became the agency’s final decision when the Social Security Administration

Appeals Council denied Breslin’s request for review. Breslin then sued in District Court

to review the agency’s final decision. The District Court held the agency’s decision was

supported by substantial evidence and affirmed. Breslin appeals the District Court’s

decision, contending he had impairments in addition to those the ALJ found, the ALJ was

incorrect to find his statements about his limitations not credible, and the ALJ did not

properly assess whether jobs existed that Breslin could perform.

                                             II.

       The District Court had jurisdiction under 42 U.S.C. § 405(g). We have jurisdiction

under 28 U.S.C. § 1291. “We review the Agency’s factual findings only to determine

whether the administrative record contains substantial evidence supporting the findings.”

Allen v. Barnhart, 417 F.3d 396, 398 (3d Cir. 2005). “Our review of legal issues is

plenary.” Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir. 2000).

       To determine if Breslin was entitled to SSI, the ALJ properly followed the Social

Security Administration’s five-step process for evaluating whether a claimant is disabled:

       First, the Commissioner considers whether the claimant is currently engaged in
       substantial gainful activity. If he is not, then the Commissioner considers in the
       second step whether the claimant has a ‘severe impairment’ that significantly
       limits his physical or mental ability to perform basic work activities. If the
       claimant suffers a severe impairment, the third inquiry is whether, based on the
       medical evidence, the impairment meets the criteria of an impairment listed in the
       ‘listing of impairments,’ 20 C.F.R. pt. 404, subpt. P, app. 1 (1999), which result in
       a presumption of disability, or whether the claimant retains the capacity to work. If
       the impairment does not meet the criteria for a listed impairment, then the
       Commissioner assesses in the fourth step whether, despite the severe impairment,
       the claimant has the residual functional capacity to perform his past work. If the

                                             4
       claimant cannot perform his past work, then the final step is to determine whether
       there is other work in the national economy that the claimant can perform. The
       claimant bears the burden of proof for steps one, two, and four of this test. The
       Commissioner bears the burden of proof for the last step.

Allen, 417 F.3d at 401 n.2 (quoting Sykes, 228 F.3d at 262-63). Breslin does not

challenge the ALJ’s findings at step one or four.

       At step two, the ALJ found Breslin had one severe impairment: chronic heart

failure. The ALJ found Breslin’s other heart-related abnormalities – atrial fibrillation,

atrial flutter, sinus arrhythmia, and “an unidentified abnormality seen on a chest x[-]ray”

– either did not meet the 12-month duration requirement for severity, under 20 C.F.R. §

416.909, or were no longer affecting him. The ALJ found Breslin’s “allegations of bad

circulation in his legs and a myocardial infarction are not supported by the evidence.” 4

Breslin contends, for the first time on appeal, the ALJ was incorrect to find the following

impairments not severe: “cardiomyopathy, congestive heart failure, easy fatiguability,

shortness of breath, chronic arrhythmia, vertigo, difficulty sleeping due to poor

circulation, hypertension[], [and] atrial fibrillation alternating with atrial flutter.” Since

Breslin did not raise this issue before the District Court, it is waived on appeal. Gass v.

Virgin Islands Tel. Corp., 311 F.3d 237, 246 (3d Cir. 2002). The only exception to waiver

is “when manifest injustice would result from a failure to consider a novel issue.” Id.

(internal quotation marks omitted). This exceptional circumstance is not present here

because Breslin “offers no explanation for his failure to raise [the issue] in the district


4
 A myocardial infarction is a heart attack. Heart attack, U.S. NATIONAL LIBRARY OF
MEDICINE, PUBMED HEALTH,
http://www.ncbi.nlm.nih.gov/pubmedhealth/PMH0001246/.
                                                5
court, and we are not aware of any obstacles that prevented him from doing so.” Altman

v. Altman, 653 F.2d 755, 758 (3d Cir. 1981). 5

       At step three, the ALJ found Breslin’s severe impairment did not meet or equal

listing 4.02, for chronic heart failure, in the listing of impairments. Breslin contends, for

the first time on appeal, “the ALJ never discussed Listing 4.05 pertaining to Appellant’s

atrial fibrillations.” This issue is waived because Breslin did not raise it before the

District Court. Gass, 311 F.3d at 246. 6

       Before proceeding to steps four and five, the ALJ assessed Breslin’s residual

functional capacity, which is “the most you can still do despite your limitations.” 20

C.F.R. § 416.945(a)(1). The assessment determines all of a claimant’s limitations

resulting from medically determinable impairments and self-reported symptoms those

impairments “could reasonably be expected to produce.” SSR 96-7p; 20 C.F.R. §

416.945(a). Symptoms are found to cause limitations if those limitations are either

“substantiated by objective medical evidence” or the ALJ finds the claimant’s statements

about them credible. SSR 96-7p. A credibility determination must be based on the entire

5
  Even if we were to reach the merits, we would affirm. Breslin’s only support for his
contention the impairments he names were severe is the medication he was prescribed
and the doctor’s order he contends he received not to drive. An impairment is severe only
if it “significantly limits your physical or mental ability to do basic work activities,” 20
C.F.R. § 416.920(c), as determined only by “medically acceptable clinical and laboratory
diagnostic techniques.” 20 C.F.R. § 404.1508. Breslin provides no medical evidence he
had any impairments other than chronic heart failure that significantly limited his ability
to do basic work activities.
6
  Even if we were to reach the merits, we would affirm because Breslin provides no
factual basis for finding his impairment met or equaled listing 4.05. Cardiac syncope
(loss of consciousness) or near syncope (altered consciousness) is necessary to meet
listing 4.05, 20 C.F.R. pt. 404, subpt. P, app. 1, § 4.00(F)(3), and Breslin does not
contend he suffered either.
                                               6
case record and “contain specific reasons for the finding on credibility, supported by the

evidence in the case record.” Id.

       The ALJ found an assessment of Breslin’s residual functional capacity conducted

by a state agency consultant was consistent with the medical evidence, and to the extent

Breslin’s contentions about his limitations were inconsistent with the assessment, those

contentions were not credible. The assessment found Breslin was “capable of light work,

except that he can stand/walk only two hours out of an eight hour workday, must avoid

concentrated exposure to hazards such as heights and machinery, and is limited to

occasional balancing, stooping, kneeling, crouching, crawling, and climbing ramps and

stairs, and cannot climb ladders, ropes, or scaffolds.” The ALJ found Breslin’s

contentions he had other limitations not credible because Breslin’s erratic work history

“suggest[ed] a lack of motivation to work,” no medical evidence supported Breslin’s

contentions he had poor circulation and a heart attack, and “[m]ost significantly, he has

been inconsistent in describing his drinking.” Specifically, in his first consultative

examination with Dr. Faltas in 2007, Breslin said he drank a pint of alcohol and six pack

of beer daily, but he testified in the hearing that he had not drunk alcohol since his 2003

hospitalization.

       Breslin contends the ALJ’s credibility determination was unsupported. 7 Breslin

contends Dr. Faltas’s report does not make clear whether his drinking was still ongoing at

the time of the examination. The report stated “[t]he patient is a smoker. Admits to


7
 Breslin says there is no medical evidence he is not credible. This contention
misunderstands whose role it is to determine credibility: it is the ALJ’s. SSR 96-7p.
                                              7
drinking 1 pint of alcohol and a six pack of beer every day. Positive cocaine use in

college. Last use was 20 years ago.” Contrary to Breslin’s assertion, the sentence about

drinking is clearly in the present tense. Furthermore, in Dr. Faltas’s reexamination of

Breslin in 2008, Dr. Faltas noted Breslin stated “he has quit smoking and drinking

alcohol since the last visit,” indicating Breslin had been drinking until at least Dr. Faltas’s

initial examination in 2007. Breslin contends lay evidence cannot be disregarded for lack

of medical evidentiary support, citing Newell v. Comm’r of Soc. Sec., 347 F.3d 541, 548

(3d Cir. 2003). But lay evidence can be found not credible for other reasons, such as

those the ALJ found. Finally, Breslin questions the validity of the state agency

consultant’s residual functional capacity assessment. Assuming, as the Commissioner

does, Breslin means to question the medical evidentiary support for the assessment,

Breslin’s contention is unavailing. The ALJ found the assessment gave Breslin “the

benefit of the doubt” of the medical evidence because Dr. Faltas had concluded Breslin’s

physical condition was “completely unremarkable.”

       At step five, the ALJ considered Breslin’s residual functional capacity, age,

education, and work experience to determine if he could “make an adjustment to other

work.” 20 C.F.R. § 416.920(a)(4)(v). The ALJ found Breslin was between the ages of 45

and 49 and had at least a high school education. The ALJ found the transferability of

Breslin’s skills was immaterial to whether Breslin could perform unskilled work. See

SSR 82-41 (“[E]ven if it is determined that there are no transferable skills, a finding of

‘not disabled’ may be based on the ability to do unskilled work.”). Because of his

residual functional capacity to do light work and his age, education, and work experience,

                                              8
Breslin was not disabled under Rule 202.21 (for light work) and Rule 201.21 (for

sedentary work) of the Medical-Vocational Guidelines. 20 C.F.R. pt. 404, subpt. P, app.

2. 8 The ALJ found Breslin’s limitations did not erode his occupational base: under Social

Security Rulings, sedentary jobs do not require standing or walking more than two hours

in an eight hour workday, stooping more than occasionally, climbing, balancing,

kneeling, crouching, crawling, or exposure to hazards such as machinery or heights. SSR

96-9p; SSR 83-14. The ALJ concluded Breslin was “capable of performing the following

sedentary, unskilled jobs, according to their descriptions in the Dictionary of

Occupational Titles: surveillance system monitor, call out operator, telephone quotation

clerk, and scoreboard operator.” (Citations omitted).

       Breslin contends the ALJ was required to review additional vocational evidence

beyond Social Security Rulings, such as testimony of a vocational expert, before

concluding Breslin’s nonexertional limitations did not erode his occupational base.

Exertional limitations are those that affect the “ability to meet the strength demands of

jobs . . . for sitting, standing, walking, lifting, carrying, pushing, and pulling.” 20 C.F.R.

§404.1569a(a). Nonexertional limitations are any other limitations, including Breslin’s

postural limitations (his limited ability to stoop, climb, balance, kneel, crouch and crawl)

and his environmental limitations (his need to avoid concentrated exposure to hazards

such as machinery and heights). Id.; SSR 96-9p. When a claimant has solely exertional

limitations, his disability status is determined by the Medical-Vocational Guidelines


8
 The ability to do light work includes the ability to do sedentary work in the absence of
additional limiting factors not present here. 20 C.F.R. § 416.967(b).
                                               9
“without reference to additional evidence.” Sykes, 228 F.3d at 269. When a claimant also

has nonexertional limitations, like Breslin, the ALJ must reference additional evidence

when determining if those limitations erode the claimant’s occupational base. Id. at 270.

Such evidence can be a Social Security Ruling as long as it is “crystal-clear that the SSR

is probative as to the way in which the nonexertional limitations impact the ability to

work, and thus, the occupational base.” Allen, 417 F.3d at 407. In Allen, we stated the

ALJ’s conclusion was not supported by substantial evidence because “we are at a loss to

find within the Ruling itself the conclusion the ALJ seems to find regarding the

occupational base.” Id. at 405. In contrast, the Rulings the ALJ cited here explicitly state

the sedentary occupational base is not eroded by Breslin’s nonexertional impairments.

See SSR 96-9p (stating in sedentary jobs, “climbing ladders, ropes, or scaffolds,

balancing, kneeling, crouching, or crawling . . . [is] not usually required,” “[a]n ability to

stoop occasionally . . . is required,” and exposure to hazards such as machinery and

heights is “considered unusual”).

       Breslin further contends the ALJ was required to provide advance notice to Breslin

of his intention to rely on the Rulings instead of more individualized vocational evidence.

In Allen, we stated that when the ALJ has not provided such advance notice, “[w]e think

it only appropriate to give close scrutiny to the ALJ’s reliance on a Ruling.” Id. at 408.

As the Rulings the ALJ relied upon here applied directly to Breslin’s non-exertional

impairments, the ALJ’s reliance on them passes that scrutiny.

       Finally, Breslin contends the ALJ erred by providing his “opinion” Breslin could

perform the sedentary, unskilled jobs the ALJ culled from the Dictionary of Occupational

                                              10
Titles. In promulgating the Medical-Vocational Guidelines, “administrative notice has

been taken of the numbers of unskilled jobs that exist throughout the national economy at

the various functional levels (sedentary, light, medium, heavy, and very heavy) as

supported by the ‘Dictionary of Occupational Titles’ . . . published by the Department of

Labor,” among other publications. 20 C.F.R. pt. 404, subpt. P, app. 2 § 200.00(b). By

naming several unskilled, sedentary jobs listed in the Dictionary of Occupational Titles,

the ALJ was not providing an opinion but simply noting several of the jobs of which the

Social Security Administration has taken administrative notice. See id. at § 201.00

(“Approximately 200 separate unskilled sedentary occupations can be identified, each

representing numerous jobs in the national economy.”).

                                            III.

       For the foregoing reasons, we will affirm the District Court’s judgment and order.




                                            11
