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


11-3-2003

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-1774




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003

Recommended Citation
"Fearbry v. Comm Social Security" (2003). 2003 Decisions. Paper 148.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/148


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2003 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                                                NOT PRECEDENTIAL

                 IN THE UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT

                                    NO. 03-1774
                                 ________________

                                 WALTER W. FEARBRY, II

                                                     Appellant
                                     v.
                          *JO ANNE B. BARNHART,
                     COMM ISSIONER OF SOCIAL SECURITY

                          *(Pursuant to Rule 43 (c) F.R.A.P.)

                     ____________________________________

                   On Appeal From the United States District Court
                      For the Western District of Pennsylvania
                                (D.C. No. 01-cv-0006)
                   District Judge: Honorable Maurice B. Cohill, Jr.
                   _______________________________________

                     Submitted Under Third Circuit LAR 34.1(a)
                               October 24, 2003

              Before: ALITO, FUENTES and BECKER, Circuit Judges.

                              (Filed November 3, 2003)


                             _______________________

                                    OPINION
                             _______________________

BECKER, Circuit Judge.

      Plaintiff Walter W. Fearbry, II appeals from the grant of summary judgment in
favor of the Commissioner of Social Security affirming her decision (which affirmed the

decision of the Administrative Law Judge (“ALJ”)) denying Fearbry’s claim for

supplemental security income (“SSI”) under Title XVI of the Social Security Act, 42

U.S.C. §§ 1381-1383f. The Commissioner decided that Fearbry had the residual

functional capacity to perform a limited range of unskilled sedentary work with a sit/stand

option, including the representative jobs identified by the vocational expert: parking lot or

amusement ticket taker, self-service gas station cashier, and security monitor attendant.

Because we believe that this decision is supported by substantial evidence, we affirm.

       Fearbry’s claim essentially has two components. The first is

orthopedic/neurological, relative to chronic back problems. There is no doubt that

Fearbry has had serious back problems, alleviated though not cured by disc surgery, and

that he cannot perform more than sedentary work. However, substantial evidence

supports the conclusion of the ALJ that Fearbry could perform sedentary work. We refer

primarily to an impressive (and intensive – 5 3/4 hour) vocational evaluation, supported

by testing, done by John Musgrave of the Vocational Therapy Department of the

Veteran’s Administration facility in Pittsburgh. We also rely upon the medical records

showing Fearbry’s work capacity, not only those of Dr. Tarter and Dr. Milke, but also

those of his treating physician Dr. Vicki March.

       Dr. March’s opinion that Fearbry could not maintain sedentary work because he

was in too much pain was not supported by her physical findings.      In contrast, the actual



                                             2
testing of Fearbry’s capability showed that he could do sedentary work, as Mr. Musgrave

concluded. Moreover, under Section 3 of the Social Security Disability Insurance

Benefits Reform Act a claimant’s allegations of pain or other symptoms are not

conclusive evidence of disability; rather the claimant must have a medically determinable

and documented impairment that could reasonably be expected to produce the pain or

other symptoms alleged. 42 U.S.C. § 423(d)(5)(A). In accordance therewith the

Commissioner must evaluate pain and other subjective complaints on the basis of medical

signs and findings that could reasonably be expected to produce the subjective symptoms

alleged. 20 C.F.R. § 416.929; Green v. Schweiker, 749 F.2d 1066, 1071 (3d Cir. 1984).

While a claimant’s subjective symptomatology must be considered and can support a

finding of disability, the claimant’s subjective complaints, without more, do not in

themselves constitute disability. 20 C.F.R. § 416.912; Green, 749 F.2d at 1071.

       Fearbry’s contention that he cannot perform sedentary work is arguably supported

by his psychiatric problem – depression, for which he takes medication which he claims

causes him to fall asleep so that he could not do sedentary work. However, the medical

records show that the depression improved, with the use of Zoloft. The ALJ rejected

Fearbry’s testimony, finding him not credible because he had not made any such

complaint to his treating physicians. This is an adequate ground for decision.

       We have considered Fearbry’s other contentions, including that the ALJ did not

consider the relevant medical reports, but find them lacking in merit. Since our review of



                                             3
the evidence shows that there was substantial evidence to support the determination that

Fearbry can perform sedentary work with non-exertional limitations, the judgment of the

District Court will be affirmed.




                                            4
TO THE CLERK:

    Please file the foregoing opinion.




                                             /s/ Edward R. Becker
                                                 Circuit Judge




                                         5
