                                                   NOT PRECEDENTIAL
                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                                _____________

                                    No. 10-1335
                                   _____________

                                 MYRA JOHNSON,
                                          Appellant

                                          v.

                     COMMISSIONER OF SOCIAL SECURITY

                                  _______________

                    On Appeal from the United States District Court
                            for the District of New Jersey
                                (D.C. No. 08-cv-04901)
                       District Judge: Hon. William J. Martini
                                  _______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                  October 5, 2010

             Before: SCIRICA, FUENTES and JORDAN, Circuit Judges.

                               (Filed: October 27, 2010)
                                   _______________

                                 OPINION OF THE COURT
                                  _______________

JORDAN, Circuit Judge.

      Myra Johnson appeals from an order of the United States District Court for the

District of New Jersey affirming the decision of an Administrative Law Judge (“ALJ”)

denying Johnson’s claim for supplemental security income. For the following reasons,

we will affirm.

                                           1
I.       Background

         Following a series of hospitalizations for various cardiac, pulmonary, and renal

impairments, Myra Johnson filed a claim for supplemental security income 1 on

November 18, 2005, alleging disability beginning on October 1, 2005. Her claim was

denied on April 12, 2006, and again upon reconsideration on September 27, 2006. At

Johnson’s request, a hearing was held before an ALJ on March 13, 2008.

         In conjunction with her hearing, Johnson submitted extensive medical records.

Those records showed that between October 2, 2005 and October 31, 2005, Johnson

made three trips to the emergency room, complaining of difficulty breathing as well as

back and chest pain. During those visits, Johnson was diagnosed with cardiomegaly,

elevated blood pressure, and possible pneumonia. The records also document that she

had been inconsistent in taking prescribed medication and that she had tested positive for

cocaine use during two of her visits.

         On November 8, 2005, Johnson was admitted to the intensive care unit, again

complaining of shortness of breath. During her stay, she was diagnosed with

     1
    Johnson is applying for Supplemental Security Income (“SSI”), as opposed to Social
Security Disability Insurance (“SSDI”). While both provide benefits to disabled persons,
under SSI, eligibility for benefits and the amount of benefits is based on financial need,
20 C.F.R. § 416.1100, whereas, for SSDI, eligibility and the amount of benefits are based
on credits earned for prior Social Security taxable work. 20 C.F.R. § 404.101. The
evaluation of the disability itself, however, is the same under either program. Compare
20 C.F.R. § 416.920 with 20 C.F.R. § 404.1520 . Likewise, the standard of review is the
same. Compare 42 U.S.C. § 405 (g) (providing the standard of review for decisions
regarding SSDI benefits) with 42 U.S.C. § 1383(c)(3) (stating that review of a decision
regarding SSI benefits “shall be subjected to judicial review as provided in section 405
(g) of this title to the same extent as the Commissioner’s final determinations under
section 405 of this title”).

                                              2
cardiomyopathy, hypertension, renal insufficiency, and impaired left ventricular function.

Her records showed that she remained noncompliant with her medication and that her

symptoms had been exacerbated by substance abuse. After treatment, including drugs

and IV fluids, her “labs were normal” and she was “cleared for discharge by cardiology.”

(AR at 113.) On November 17, 2005, she was sent home clinically stable with

instructions for an extensive drug regimen.

       She returned to the emergency room on December 7, 2005, complaining of chest

and stomach pain after heavy drinking. A chest exam showed normal heart size and

rhythm, and her health was reported as good.

       On February 27, 2006, Dr. R. C. Patel, a state retained physician, examined

Johnson in connection with her disability claim. Dr. Patel’s report mentioned Johnson’s

history of asthma, but his tests showed her pulmonary function to be above 90 percent of

expected functionality. He reported that she claimed to experience daily chest pain and

had a history of congestive heart failure, but chest x-rays showed nothing abnormal and

his examination found normal heart rhythm, with a possible murmur. Based on his

examination, he diagnosed Johnson with hypertension, “atypical” chest pain, and

histories of asthma and congestive heart failure.

       On April 11, 2006, a state retained medical consultant performed a residual

functional capacity (“RFC”) assessment based on Johnson’s medical history. He found

that she could lift up to twenty pounds occasionally and ten pounds frequently; she could

stand, walk, or sit about six hours in a day; she had no limitations on pushing or pulling;

and there were no established limitations on her ability to reach in all directions or to

                                              3
engage in fine or gross manipulation. He determined that she needed to avoid

concentrated exposure to pulmonary irritants.

       Johnson again reported to the emergency room on June 13, 2007, complaining of

chest pain. Examination revealed regular heart rate and rhythm with no abnormal sounds

or murmurs. The treating physician described her pain as “very atypical,” stating that

there was a “[s]trong emotional component” to her complaints and that she “fe[lt] much

better after reassurances ... and want[ed] to go home.” (AR at 294, 296.)

       On January 21, 2008, Dr. Mandeep Oberei, Johnson’s treating physician, ordered

tests that showed her left ventricular ejection fraction was 68%, which was considered to

be normal. On February 22, 2008, Dr. Oberei submitted a letter on behalf of Johnson’s

application. He reported that, despite medication, her day-to-day function was still

difficult and he believed she was unable to work. On March 2, 2008, Dr. Oberei

submitted his own RFC assessment for Johnson, reporting that she could lift only ten

pounds, could stand for only three hours daily, and had only limited ability to reach,

handle, or push and pull objects. He reported that her impairments did not affect her

ability to sit but also reported that she could sit for only four hours daily. For each of

these assessments, Dr. Oberei’s medical findings were either cursory or absent.

       As part of her application, Johnson also completed reports and testified about her

pain, daily activities, and other relevant personal information. She reported that she

suffered from back pain that sometimes lasted all day. She stated that doing anything

other than sitting – even moving her arms – caused tiredness, shortness of breath, chest

pains, and dizziness. Regarding her education and work history, Johnson reported that

                                              4
she never completed the 10th grade and that she had not worked since 1987. Finally,

Johnson testified that her positive cocaine tests in 2005 must have been false positives

based on her prescription medication, as she had not used cocaine for at least thirteen

years.

         On March 27, 2008, the ALJ issued an opinion finding that Johnson was not

disabled and denying her claim. The ALJ arrived at his decision by following the five-

step sequential analysis required under 20 C.F.R. § 404.1520. 2 At step one, the ALJ

determined that Johnson had not been engaged in any substantial gainful activity since

she filed her application. At step two, the ALJ determined that Johnson had severe

impairments involving heart disease, renal disease, and asthma. At step three, the ALJ

determined that Johnson’s impairments did not meet or medically equal the criteria of an

impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (the “Listings”).

         In reaching his step three determination, the ALJ examined Johnson’s medical

records and concluded that her impairments, whether individually or in combination,

each failed to meet a key element of the relevant Listing. For example, he concluded that

  2
    At step one, the ALJ considers whether the claimant is engaged in substantial gainful
activity. If so, the claimant is not disabled, and the inquiry ends. At step two, the ALJ
considers whether the claimant suffers from a severe medical impairment. If not, the
claimant is not disabled, and the inquiry ends. At step three, the ALJ considers whether
the impairment is equivalent to those listed in 20 C.F.R. Part 404, subpart P, Appendix 1.
If it is, the claimant is considered presumptively disabled, and the inquiry ends. If not,
the inquiry moves on to step four. At step four, after assessing the claimant’s RFC, the
ALJ considers whether that RFC enables the claimant to perform past relevant work. If it
does, the claimant is not disabled, and the inquiry ends. Finally, at step five, the ALJ
considers whether, based on the claimant’s RFC, age, education, and work experience
there is sufficient work available in the national economy. If so, the claimant is not
disabled. Otherwise, the claimant is disabled. 20 C.F.R. § 404.1520(a)(4).

                                             5
Johnson’s cardiac impairments did not meet the requirements for Listings 4.02 (chronic

heart failure) or 4.04 (ischemic heart disease) because she did not “exhibit the diminished

level of left ventricular ejection fraction and other dysfunction,” “the inability to perform

an exercise tolerance test,” or other necessary symptoms under those Listings. (AR at

15.) Similarly, he concluded that she did not meet the requirements of 6.02 (impairment

of renal function) because she did not “require chronic dialysis, or kidney transplantation,

or exhibit persistently elevated serum creatinine levels.” (Id.) Finally, he concluded that

she did not meet the requirements of 3.03 (asthma), because there was no evidence of

“chronic asthmatic bronchitis” and she had not sought “physician intervention, occurring

at least once every two (2) months.” (Id.) As a result, the ALJ concluded that “[t]he

claimant does not have an impairment or combination of impairments that meets or

medically equals any of the listed impairments in [the Listings.]” (AR at 15.)

       At step four, the ALJ performed his own RFC assessment, determining that

Johnson retained the functional capacity to engage in sedentary work with environmental

limitations. 3 In making his assessment, the ALJ considered a significant volume of

medical and testimonial evidence, much of which was contradictory. First, the ALJ


  3
   The ALJ viewed the RFC assessment as being an intermediate task between steps
three and four, rather than being part of step four. (AR at 14.) This Court has not
definitively stated whether the RFC assessment is an intermediate task or part of step
four. Compare, e.g., Titterington v. Barnhart, 174 Fed. Appx. 6, 10 (3d Cir. 2006)
(“Before proceeding to step four, the ALJ determined Titterington’s RFC.”) with Johnson
v. Comm’r of Soc. Sec., 263 Fed. Appx. 199, 201 (3d Cir. 2008) (“The fourth step is an
assessment of the claimant’s residual functional capacity.”) Because we find it simpler to
consider the RFC assessment with step four, we will treat the RFC assessment as part of
step four.

                                              6
considered the medical evidence with respect to Johnson’s cardiac, renal, and pulmonary

impairments. With respect to her cardiac impairments, he found that recent tests showed

“[h]er left ventricular systolic function or ejection function was very high (68%)” and

that her congestive heart disease had “resolved in November 2005 ... with no evidence of

recurrence or the need for additional hospital admission.” (AR at 18.) Likewise, he

concluded that her renal insufficiency had resolved “in November 2005 ... with no

evidence of recurrence.” (Id.) He also found that her cardiac and renal symptoms had

been exacerbated by non-compliance with her medications and by substance abuse,

which weakened her claim of disability. Finally, with regard to her pulmonary

impairment, he found that her most recent test showed normal pulmonary function and

that, since October 2005, she had not sought any “treatment of ... asthma-related

respiratory distress” and had made “no asthma-related hospital emergency room visits.”

(Id.) Consequently, he found that the medical evidence did not show an inability to work.

       The ALJ next rejected Dr. Oberei’s RFC determination and his letter stating that

Johnson could not work, concluding that those assessments were unpersuasive. The ALJ

explained that Dr. Oberei’s RFC was internally inconsistent – first stating that there were

no restrictions on sitting and then stating that Johnson could sit only four hours in a day –

and that Dr. Oberei had failed to cite medical findings to support his assessments. The

ALJ also rejected much of Johnson’s subjective complaints about her symptoms, finding

them to be only “partially credible.” (AR at 19.) He found that although Johnson had

been diagnosed with heart problems, multiple physicians had called her chest pain

“atypical.” He found that the extent of her complaints regarding other symptoms (e.g.,

                                              7
that even moving her arms caused shortness of breath) was unsupported by the objective

medical evidence and was not credible. He also found that Johnson herself lacked

credibility due to her testimony that she had not used cocaine for fourteen years, despite

two recent positive tests. In the end, the ALJ lent “partial credence to

claimant’s ... complaints,” concluding that Johnson’s impairments could produce some of

her symptoms but that her “statements concerning the intensity, persistence, and limiting

effects of those symptoms [were] not credible.” (AR at 19.)

       The ALJ ultimately concluded that Johnson “retain[ed] the residual functional

capacity to perform sedentary work activity with environmental restrictions.” (AR at 19.)

Specifically, he found that she had the capacity to lift and carry objects weighing up to

ten pounds, sit for up to six hours a day, and stand for up to two hours a day, but that she

could not be exposed to excessive pulmonary irritants. Completing step four, the ALJ

determined that Johnson had no prior work experience within the past fifteen years, and,

thus, could not perform her past relevant work.

       At step five, the ALJ considered whether work existed in the national economy for

someone of Johnson’s RFC, age, education, and work experience. At Johnson’s hearing,

the ALJ had received testimony from a vocational expert to aid in that determination.

The ALJ had asked the expert to consider a person with the ability to lift and carry up to

ten pounds, sit for up to six hours per day, and stand or walk for up to two hours per day,

but without exposure to excessive pulmonary irritants. The expert stated that there were

approximately 14,000 jobs available to such a person in Johnson’s metro area. The ALJ

then asked the expert to consider someone with those same restrictions, but who also had

                                              8
to take frequent breaks to catch her breath. With that additional limitation, the expert

said there were no jobs available.

       Based on that testimony the ALJ determined that there were sufficient jobs in the

national economy for a person of Johnson’s RFC, age, education, and work experience.

Consequently, the ALJ determined that Johnson was not disabled.

       After the Appeals Council denied her subsequent request for review, Johnson

appealed to the District Court. The District Court affirmed the ALJ’s decision, and

Johnson timely filed this appeal.

II.    Discussion 4

       When reviewing a District Court’s affirmance of an ALJ’s denial of benefits, we

exercise plenary review of the District Court’s legal decisions. Allen v. Barnhart, 417

F.3d 396, 397 (3d Cir. 2005). Like the District Court, we review the ALJ’s factual

findings only to determine if they are supported by substantial evidence. Plummer v.

Apfel, 186 F.3d 422, 427 (3d Cir. 1999). Substantial evidence is defined as “more than a

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

adequate.” Ventura v. Shalala, 55 F.3d 900, 901 (3d. Cir. 1995) (quoting Richardson v.

Perales, 402 U.S. 389, 401 (1971)). To ensure meaningful review, the ALJ must discuss

“the evidence he considered which supports the result” and “the evidence which was

rejected,” Cotter v. Harris, 642 F.2d 700, 705 (3d. Cir. 1981), and must give his reasons


  4
    The District Court had jurisdiction to review the Social Security Administration s
decision pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). We have jurisdiction pursuant
to 28 U.S.C. § 1291.

                                             9
for accepting only some evidence while rejecting other evidence. Hargenrader v.

Califano, 575 F.2d 434, 437 (3d Cir. 1978).

       On appeal, Johnson argues that the ALJ’s analysis was deficient with respect to

steps three, four, and five. She argues that the step three analysis was deficient because

the ALJ failed to account for the combined effect of her impairments. Next, she argues

that the step four RFC assessment was deficient because the ALJ improperly disregarded

her subjective complaints, improperly dismissed Dr. Oberei’s opinions, and failed to

articulate a sufficient evidentiary basis for the RFC assessment. Finally, she argues that

the step five analysis was deficient because the ALJ failed to give a reason for

considering the vocational expert’s response to only one of the two hypothetical

questions. We address each argument in turn.

       A.     The ALJ’s Step Three Assessment of the Combined Effect of Johnson’s
              Impairments

       Johnson argues that the ALJ’s step three analysis failed to adequately evaluate the

combined effect of her individual impairments. In Burnett v. Commissioner of Social

Security, we held that step three requires the ALJ to perform “an analysis of whether and

why [the claimant’s individual impairments], or those impairments combined, are or are

not equivalent in severity to one of the listed impairments.” 220 F.3d 112, 119 (3d Cir.

2000). In Jones v. Barnhart, we clarified that “Burnett does not require the ALJ to use

particular language or adhere to a particular format,” but only to “ensure that there is

sufficient development of the record and explanation of findings to permit meaningful

review.” 364 F.3d 501, 505 (3d Cir. 2004). Guidance also comes from 20 C.F.R. §


                                              10
404.1526(b)(3), which provides that where a claimant has multiple impairments, the ALJ

should “compare [the claimant’s] findings with those for closely analogous listed

impairments. If the findings related to [the claimant’s] impairments are at least of equal

medical significance to those of a listed impairment, [the ALJ] will find that [the

claimant’s] combination of impairments is medically equivalent to that listing.”

       Here, the ALJ satisfied our standard from Burnett and Jones and adhered to the

regulations in 20 C.F.R. § 404.1526(b)(3). The ALJ performed a thorough examination

of Johnson’s medical records and concluded that each impairment failed to meet a key

element of the relevant Listing. These conclusions were supported by detailed findings

articulated in the opinion. For example, the ALJ’s conclusion that Johnson’s heart did

not “exhibit the diminished level of left ventricular ejection fraction and other

dysfunction” as required by 4.02, was supported by the finding that “[h]er left ventricular

systolic function or ejection function was very high (68%).” (AR at 15, 18.) The

conclusion that Johnson’s asthma did not require “physician intervention, occurring at

least once every two (2) months,” as required by 3.03, was supported by the finding that

Johnson had not sought any “treatment of acute or chronic bouts of asthma-related

respiratory distress” and had made “no asthma-related hospital emergency room

visits ... in the past 2 ½ years.” (AR at 16, 18.) Similarly, the conclusion that Johnson

did not “require chronic dialysis, or kidney transplantation, or exhibit persistently

elevated serum creatinine levels,” as required by 6.02, was supported by the finding that

“the medical record indicates that [Johnson’s renal insufficiency] resolved in November

2005 ... with no evidence of recurrence.” (AR at 15, 18.)

                                             11
      Based on that analysis, the ALJ concluded that Johnson did not have an

“impairment or combination of impairments that [met] or medically equal[ed] any of the

listed impairments.” (AR at 15.) Thus, it is apparent that the ALJ thoroughly examined

the medical evidence, compared it to the Listings, and made the dual determinations that

(a) none of Johnson’s impairments were individually equivalent to a Listing, and (b) there

was no “closely analogous listed impairment[]” for which a “combination of impairments

[was] medically equivalent.” 20 C.F.R. § 404.1526(b)(3). Those detailed findings

demonstrate “sufficient development of the record and explanation of findings to permit

meaningful review.” 5 Jones, 364 F.3d at 505.

      B.     The ALJ’s Step Four RFC Assessment



  5
    Our conclusion is reinforced by Johnson’s failure to identify any “closely analogous”
Listing to which her combined impairments might be medically equivalent. Johnson
attempts to do so for the first time in this appeal, arguing that the ALJ should have
considered her impairments under Listing 4.03, for hypertension. (Appellant’s Brief at
8.) Johnson argues both that (a) the ALJ “omit[ted] this Listing for no apparent reason”,
and (b) 4.03 required the ALJ to “discuss[] [Johnson’s] heart disease in conjunction with
her kidney disease.” Even if Johnson has not waived these arguments by failing to raise
them before the District Court, Johnson is mistaken on both counts.
       First, the reason for the ALJ’s omission is clear: 4.03 had been removed from the
Listings in 2006 – two years before the ALJ considered Johnson’s claims. See Revised
Medical Criteria for Evaluating Cardiovascular Impairments, 71 Fed. Reg. 2318 (Jan. 13,
2006) (“We are deleting the following current cardiovascular listings ... 4.03,
Hypertensive cardiovascular disease.”). Second, to the extent the ALJ should have
considered 4.03 because it was in effect when Johnson applied for disability, 4.03 did not
impose any obligation to combine conditions or require the ALJ to “discuss[] [Johnson’s]
heart disease in conjunction with her kidney disease,” as Johnson asserts. (Appellant’s
Brief at 8.) Rather, 4.03 was written in the disjunctive – stating that the ALJ should
evaluate hypertension “under 4.02 or 4.04 or under the criteria for the affected body
system.” 20 C.F.R. Part 404, Subpart P, Appendix 1, Paragraph 4.03 (2005) (amended
April 13, 2006) (emphasis added).

                                            12
       Johnson articulates three deficiencies with the ALJ’s RFC assessment: (1) he

improperly disregarded her subjective complaints, (2) he improperly dismissed Dr.

Oberei’s opinions, and (3) he failed to articulate a sufficient evidentiary basis for the RFC

assessment.

              1.     The ALJ’s Consideration of Johnson’s Subjective Complaints

       While a claimant’s subjective complaints must be given serious consideration,

Smith v. Califano, 637 F.2d 968, 972 (3d Cir. 1981), they must also be supported by

medical evidence. Williams v. Sullivan, 970 F.2d 1178, 1186 (3d Cir. 1992). An ALJ

may reject a claimant’s subjective complaints when the ALJ “specif[ies] his reasons for

rejecting the[] claims and support[s] his conclusion with medical evidence in the record.”

Matullo v. Bowen, 926 F.2d 240, 245 (3d Cir. 1990).

       Here, the ALJ considered Johnson’s subjective complaints of both pain and other

symptoms. He specifically recognized her complaints of regular chest pain and shortness

of breath but found them to be inconsistent with the medical evidence, as two separate

doctors found her pain to be “atypical” and Dr. Patel’s tests showed her pulmonary

function to be normal. The ALJ also found that Johnson lacked credibility due to her

insistence that she had not used cocaine despite two recent positive tests. Consequently,

the ALJ chose to accept the medical evidence and reject Johnson’s testimony. That

satisfies the requirements we set forth in Matullo for rejecting a claimant’s subjective

complaints, and we see no error in the rejection.

              2.     The ALJ’s Consideration of Dr. Oberei’s Opinions



                                             13
       Johnson argues that the ALJ also acted improperly in giving no probative weight

to Dr. Oberei’s opinions. We have held that the opinions of treating physicians should be

given great weight, Rocco v. Heckler, 826 F.2d 1348, 1350 (3d Cir. 1987), but that an

ALJ “may reject a treating physician’s opinion outright ... on the basis of contradictory

medical evidence.” Plummer, 186 F.3d at 429. Similarly, under 20 C.F.R.

§ 416.927(d)(2), the opinion of a treating physician is to be given controlling weight only

when it is well-supported by medical evidence and is consistent with other evidence in

the record. Otherwise, the opinion should be given weight proportional to the medical

evidence presented by the treating physician to support the opinion. 20 C.F.R.

§ 416.927(d)(3). Because the ALJ found that Dr. Oberei presented no medical findings

to support his opinions and because his opinions were inconsistent with the recent

medical evidence showing Johnson’s normal heart and lung functionality, it was not error

for the ALJ to determine that Dr. Oberei’s opinions were of no probative value.

              3.     The Evidentiary Basis for the ALJ’s RFC Assessment

       Next, Johnson argues that the ALJ failed to articulate a sufficient evidentiary basis

for his RFC assessment. We disagree. The ALJ’s assessment addressed each of

Johnson’s impairments, concluding that none of them would preclude all work activity.

The ALJ supported his conclusion that her asthma would not preclude work by pointing

to tests showing normal pulmonary function and to her lack of treatment for two and a

half years. The ALJ supported his conclusion that her cardiac conditions would not

preclude work by noting that her most recent diagnostic tests showed normal left

ventricular systolic function. He supported his conclusion that neither cardiac nor renal

                                             14
conditions would preclude work by citing the lack of any recurrence of those conditions

or need for additional hospital admissions for more than two and a half years. The ALJ

also found that Johnson’s symptoms had been exacerbated by her failure to take

recommended medication, and he cited to 20 C.F.R. § 404.1530, which precludes a

finding of disability where a claimant fails to follow prescribed treatment. Finally, and as

already discussed, the ALJ had a basis on this record to disregard Dr. Oberei’s opinions

and Johnson’s own subjective complaints. Accordingly, the ALJ offered a sufficient

evidentiary foundation for his assessment that Johnson retained the capacity to perform

sedentary work with environmental restrictions.

       C.     The ALJ’s Use of the Vocational Expert in Step Five

       Finally, Johnson argues that the ALJ failed to explain why he considered the

vocational expert’s answer to only one of the two hypothetical questions presented. It is

true that the ALJ did not make his reason explicit, but only because it was obvious: the

ALJ’s RFC assessment did not include a need for Johnson to take frequent breaks. As a

result, the second hypothetical, which included that restriction, was of no relevance.

III.   Conclusion

For the foregoing reasons, we will affirm the District Court’s order upholding the ALJ’s
decision.




                                             15
