                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-27-2004

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Precedential or Non-Precedential: Precedential

Docket No. 03-3261




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Recommended Citation
"McCrea v. Comm Social Security" (2004). 2004 Decisions. Paper 637.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/637


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                        PRECEDENTIAL       Abraham S. Alter (ARGUED)
                                           Langton & Alter
     UNITED STATES COURT                   2096 St. Georges Avenue
          OF APPEALS                       P.O. Box 1798
     FOR THE THIRD CIRCUIT                 Rahway, NJ 07065
                                            Counsel for Appellant

             No. 03-3261                   Anthony J. LaBruna, Jr.
                                           Office of the U.S. Attorney
                                           970 Broad Street, Room 700
         SHIRLEY McCREA,                   Newark, NJ 07102
                 Appellant
                                           Stephen P. Conte (ARGUED)
                   v.                      Social Security Administration
                                           Office of General Counsel - Region II
        COMMISSIONER OF                    26 Federal Plaza, Suite 3904
        SOCIAL SECURITY                    New York, NY 10278
                                            Counsel for Appellee

 Appeal from the United States District
  Court for the District of New Jersey
    (D.C. Civil No. 02-cv-00562)                 OPINION OF THE COURT
             District Judge:
    Honorable William G. Bassler
                                           LAY, Circuit Judge.
         Argued April 15, 2004                     Shirley McCrea appeals from an
                                           order of the district court affirming the
  Before: RENDELL, STAPLETON               final decision of the Commissioner of
      and LAY*, Circuit Judges.            Social Security denying her application for
                                           disability benefits under Titles II and XVI
         (Filed May 27, 2004)              of the Social Security Act (the “Act”), 42
                                           U.S.C. §§ 401 et seq. Jurisdiction in the
                                           district court was proper by virtue of 42
                                           U.S.C. §§ 405(g), 1383(c)(3), and our
                                           jurisdiction is conferred by 28 U.S.C.
                                           § 1291. For the reasons that follow, we
*Honorable Donald P. Lay, Senior Circuit   reverse the district court’s order and
Judge for the Eighth Circuit, sitting by   remand the matter to the Commissioner for
designation.                               further proceedings.
             I. B ACKGROUND                          orthopedic surgeon. Dr. Mylod concluded
                                                     that based upon his review of her medical
        McCrea is a fifty-two-year-old
                                                     file, McCrea suffered from two small
native of Jamaica with prior relevant work
                                                     herniated discs in her lumbosacral region
history as a nurses’ aide. On April 8,
                                                     at L4-L5 and L5-S1. In Dr. Mylod’s
1997, she filed an application for disability
                                                     opinion, these herniations not only
insurance benefits and supplemental
                                                     substantiated her complaints of lower back
security income payments, alleging an
                                                     pain, but also potentially accounted for her
inability to work since February 15, 1995,
                                                     complaints of leg pain.          Regarding
due to constant pain in her neck, lower
                                                     McCrea’s complaints of neck pain and
back, and spine, as well as frequent
                                                     headaches, Dr. Mylod acknowledged that
headaches. Her application was denied
                                                     an MRI of her cervical spine showed no
both initially and on reconsideration. At
                                                     abnormalities. He nevertheless opined that
McCrea’s request, a hearing was held
                                                     it was possible that “some of these
before an administrative law judge
                                                     headaches could be from a cervical strain
(“ALJ”) on January 7, 1999.
                                                     which we just haven’t seen.” Tr. at 46.1
        At the hearing, McCrea testified in          As a more likely potential source for her
further detail regarding her condition. She          headaches, Dr. M ylod identified an MRI
stated that the onset of her pain coincided          of what he believed to be McCrea’s brain,2
with an automobile accident on February              the results of which were consistent with a
15, 1995. McCrea testified that since the            prior trauma.
accident, she suffered from constant
                                                            On June 25, 1999, the ALJ rendered
stiffness in her neck, making it difficult for
                                                     a decision denying McCrea’s application
her to turn her head from side to side. She
                                                     for benefits. The ALJ determined that
believed that these neck injuries were the
                                                     after considering all of the evidence,
source of her constant headaches, which in
                                                     including the opinions of several
turn compromised her concentration and
                                                     physicians and McCrea’s records of
memory.       McCrea also testified that
                                                     treatment, McCrea failed to demonstrate
following the accident, she experienced
                                                     that she suffered from an impairment or
lower back pain that not only made it
                                                     combination of impairments that was
difficult for her to bend, but also radiated
                                                     “severe” within the meaning of the Act.
into her legs, causing stiffness and
impairing her ability to stand and walk.
Finally, McCrea testified to suffering from                 1
continuous shoulder pain as a result of the              “Tr.” refers to the transcript of the
accident.                                            administrative record in this matter.
                                                        2
      Also testifying at the hearing was a              The MRI on which Dr. Mylod relied
non-examining physician, Albert G.                   was that of the brain of an individual
Mylod, Jr., M.D., a board-certified                  named Maria Roman. In his decision, the
                                                     ALJ noted this error.

                                                 2
After McCrea’s request for review by the            is disabled within the meaning of the Act,
Appeals Council was denied, the decision            and therefore eligible for benefits, the
of the ALJ became the final ruling of the           Commissioner applie s a five -step
Commissioner.                                       sequential evaluation process. This court
                                                    has on several prior occasions set forth
        Having        exhausted        her
                                                    each step in detail, see, e.g., Newell, 347
administrative remedies, McCrea filed a
                                                    F.3d at 545-46; although repetitious, we
complaint in the United States District
                                                    briefly mention these steps as well. The
Court for the District of New Jersey,
                                                    Commissioner inquires, in turn, whether
seeking review of the Commissioner’s
                                                    an applicant: (1) is engaged in substantial
denial of benefits. On June 12, 2003, the
                                                    gainful activity; (2) suffers from an
district court issued an opinion affirming
                                                    impairment or combination of impairments
the Commissioner’s decision, finding that
                                                    that is “severe”; (3) suffers from an
it was supported by substantial evidence.
                                                    impairment or combination of impairments
Accordingly, the district court entered an
                                                    that meets or equals a listed impairment;
order dismissing McCrea’s action.
                                                    (4) is able to perform his or her past
                                                    relevant work; and (5) is able to perform
                                                    work existing in significant numbers in the
                                                    national economy. See 20 C.F.R. §§
              II. A NALYSIS
                                                    404.1520(a)-(f), 416.920(a)-(f).3
        While we exercise plenary review
over the district court’s order of dismissal,              We now focus our attention on step
we review the Commissioner’s denial of              two, the point at which the ALJ denied
benefits to determine whether it is                 McCrea’s application for benefits. In
supported by substantial evidence on the            language directed toward applicants rather
record as a whole. See Newell v. Comm’r             than adjudicators, step two informs that
of Soc. Sec., 347 F.3d 541, 549 (3d Cir.                   If you do not have any
2003) (citing Podedworny v. Harris, 745                    impairment or combination
F.2d 210, 221-22 (3d Cir. 1984)); see also                 of impa irmen ts wh ich
Universal Camera Corp. v. NLRB, 340                        significantly limits your
U.S. 474, 488 (1951).            Substantial
evidence is “such relevant evidence as a
reasonable mind might accept as adequate             3
                                                       Although they are governed by separate
to support a conclusion.” Newell, 347
                                                    regulatory schemes, applications for
F.3d at 545 (quotation and citation
                                                    disab ility insuranc e benefits and
omitted). Although substantial evidence is
                                                    supplemental security income are
more than a mere scintilla, it need not rise
                                                    processed using an identical five-step
to the level of a preponderance. Id.
                                                    sequential analysis. See McDonald v.
       In determining whether an applicant          Sec’y of Health & Human Res., 795 F.2d
                                                    1118, 1120 n.1 (1st Cir. 1986).

                                                3
               physical or mental                    evaluation process should continue.”).
               ability to do basic                   Any doubt as to whether this showing has
               work activities, we                   been made is to be resolved in favor of the
               [the Social Security                  applicant. Newell, 347 F.3d at 546-47. In
               Administration] will                  short, “[t]he step-two inquiry is a de
               find that you do not                  minimis screening device to dispose of
               have a severe                         groundless claims.” Id. at 546; accord
               impairment and are,                   McDonald, 795 F.2d at 1123.
               therefore, not
                                                             Due to this limited function, the
               disabled.
                                                     Commissioner’s determination to deny an
                                                     applicant’s request for benefits at step two
                                                     should be reviewed with close scrutiny.
20 C.F.R. §§ 404.1520(c), 416.920(c); see
                                                     We do not suggest, however, that a
also id. §§ 404.1521(a), 416.921(a) (“An
                                                     reviewing court should apply a more
impairment or combination of impairments
                                                     stringent standard of review in these cases.
is not severe if it does not significantly
                                                     The Commissioner’s denial at step two,
limit your physical or mental ability to do
                                                     like one made at any other step in the
b a s i c w o r k a c t i v it i e s. ” ). The
                                                     sequential analysis, is to be upheld if
Commissioner’s regulations define “basic
                                                     supported by substantial evidence on the
work activities” to include, inter alia,
                                                     record as a whole. See Williams v.
“[p]hysical functions such as walking,
                                                     Sullivan, 970 F.2d 1178, 1182 (3d Cir.
standing, sitting, lifting, pushing, pulling,
                                                     1992) (“Neither the district court nor this
reaching, carrying, or handling.” Id.
                                                     court is empowered to weigh the evidence
§§ 404.1521(b)(1), 416.921(b)(1).
                                                     or substitute its conclusions for those of
        The burden placed on an applicant            the fact-finder.”). Instead, we express only
at step two is not an exacting one.                  the common-sense position that because
Although the regulatory language speaks              step two is to be rarely utilized as basis for
in terms of “severity,” the Commissioner             the denial of benefits, see SSR 85-28,
has clarified that an applicant need only            1995 WL 56856, at *4 (“Great care should
demonstrate something beyond “a slight               be exercised in applying the not severe
abnormality or a combination of slight               impairment concept.”), its invocation is
abnormalities which would have no more               certain to raise a judicial eyebrow.
than a minimal effect on an individual’s
                                                            With these legal principles in mind,
ability to work.” SSR 85-28, 1985 WL
                                                     we must decid e w hethe r the
56856, at *3; see also Newell, 347 F.3d at
                                                     Com missioner’s determination that
546 (“If the evidence presented by the
                                                     McCrea failed to pass step two’s de
claimant presents more than a ‘slight
                                                     minimis threshold is supported by
abnormality,’ the step-two requirement of
                                                     substantial evidence. Our review of the
‘severe’ is met, and the sequential
                                                     record convinces us that it is not.

                                                 4
       First,     and     p e rh a p s most         pain in her lower back and neck, Dr.
signific an tly, McCrea’s statements                Sananman administered steroid injections
regarding the nature and extent of her pain         into McCrea’s lumbosacral and cervical
were supported by objective medical                 spine on several occasions between June
evidence. See 20 C.F.R. §§ 404.1529(b),             13, 1995 and November 11, 1997. As Dr.
416.929(b); see also Hartranft v. Apfel,            Sananman noted in one of his reports,
181 F.3d 358, 362 (3d Cir. 1999). Her               “[e]ach of these injections was given to a
complaints of constant lower back pain              painful trigger point which was the focus
were corroborated by MRI testing of her             of severe, persistent muscle spasm.” Tr. at
lumbosacral spine performed on June 22,             370 (emphasis added). Dr. Sananman also
1995, at the request of her treating                directed McCrea to use a “lumbosacral
neurologist, Michael L. Sananman, M.D.              brace and cervical collar as necessary for
As Dr. Mylod testified at the hearing, these        [her] pain.” Id. at 368.
tests demonstrated the presence of two
                                                           Finally, McCrea’s statements
herniated discs which, due to their
                                                    regarding the limiting nature of her
positioning, also “presumably explain[ed]”
                                                    impairments were supported by the
McCrea’s leg pain. Tr. at 45. X-ray
                                                    opinion of her treating physician, Dr.
testing performed on November 5, 1997,
                                                    Sananman.            See 20 C .F.R .
revealed a possible left shoulder
                                                    §§ 404.1527(d)(2), 416.927(d)(2); see also
separation, thereby supporting McCrea’s
                                                    Morales v. Apfel, 225 F.3d 310, 317 (3d
claim of shoulder pain. Finally, x-ray
                                                    Cir. 2000). In a report dated December 17,
testing of McCrea’s cervical spine
                                                    1996, addressed to state medical
performed on this same date revealed that
                                                    examiners, Dr. Sananman opined that
she was suffering from mild left torticollis,
                                                    “[b]ecause of her back and neck pain,
a condition caused by the contraction of
                                                    [McCrea] is not able to sit for more than
neck muscles whereby “the head is drawn
                                                    two hours a day, and she is not able to
to one side and usually rotated so that the
                                                    carry objects of more than twenty pounds
chin points to the other side.” S TEDMAN’S
                                                    at any time and of objects of ten pounds
M EDICAL D ICTIONARY 1847 (27th ed.
                                                    more than two hours a day.” Tr. at 232-33.
2000). This testing clearly substantiated
McCrea’s complaints of neck pain and                       While acknowledging each of the
frequent headaches.                                 foregoing pieces of evidence in his denial
                                                    of benefits, the ALJ minimized their
         Second, the nature of McCrea’s
                                                    import. Regarding the x-ray and MRI
treatment history further establishes that
                                                    examinations demonstrating the legitimacy
her impairments had more than a minimal
                                                    of McCrea’s impairments, the ALJ
impact on her ability to do basic work
                                                    emphasized that the test results revealed
a c ti v i t ie s . See 20 C.F .R.
§§       404.1529(c)(3)(i)-(vii),
416.929(c)(3)(i)-(vii). To alleviate the


                                                5
only “small” or “mild” abnormalities.4 As          entirety, see Universal Camera Corp., 340
to McCrea’s treatment history, the ALJ             U.S. at 488 (“The substantiality of
pointed out that her complaints of pain            evidence must take into account whatever
were most commonly met with directions             in the record fairly detracts from its
to take non-steroidal anti-inflammatory            weight.”), no reasonable person could fail
medications such as Naprosyn, Advil, and           to conclude that M cCrea’s physical
Motrin. Finally, the ALJ refused to attach         conditions were “severe” under the de
any significant weight to Dr. Sananman’s           minimis interpretation of that term
opinion, reasoning that such a drastic             currently endorsed by the Commissioner.
limita t i o n on McC rea’ s physical
functioning was inconsistent with the
medical evidence and conservative
treatment strategies detailed in the record.                   III. C ONCLUSION
       We need not concern ourselves with                 Based on the foregoing, we hold
this reasoning at length. Although the             that McCrea’s application for disability
observations made by the ALJ may or may            benefits does not fall within the category
not be relevant in later steps of the              of “groundless claims” that step two of the
sequential analysis, see, e.g., 20 C.F.R.          Commissioner’s five-step sequential
§§ 404.1520(d)-(f), 416.920(d)-(f), they           evaluation process was designed to remove
certainly do not carry the day at step two.        from consideration. Newell, 347 F.3d at
 We believe that viewing the record in its         546. Therefore, the order of the district
                                                   court will be REVERSED and the cause
                                                   REMANDED with instructions to remand
    4
     Also relevant in this regard is the           the matter to the Commissioner for further
following colloquy between the ALJ and             proceedings consistent with this opinion.
Dr. Mylod that took place during the
hearing:

        ALJ:Doctor, excuse me, if
        you don’t mind.          The
        herniated disks, so I can put
        that aside, are they small --


        ME [Dr. Mylod]: There’s a
        [sic] small herniated disks,
        but one on each side.


Tr. at 46.

                                               6
