                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-31-2002

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Precedential or Non-Precedential: Non-Precedential

Docket No. 02-1178




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2002

Recommended Citation
"Delgado v. Comm Social Security" (2002). 2002 Decisions. Paper 693.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/693


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 2002 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                                                NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
     FOR THE THIRD CIRCUIT




               No: 02-1178
             _____________

           MARK DELGADO,

                                    Appellant
                       v.

    *JO ANNE B. BARNHART,
COMMISSIONER OF SOCIAL SECURITY
        ADMINISTRATION

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

       ______________________

Appeal from the United States District Court
    for the Eastern District of Pennsylvania
    (D.C. Civil Action No. 00-cv-05689)
District Judge: Honorable Bruce W. Kauffman
       _________________________


 Submitted Under Third Circuit LAR 34.1(a)
             on July 29, 2002


   Before: BECKER, Chief Judge, ROTH
     AND RENDELL, Circuit Judges


     (Opinion filed: October 31, 2002)
                                              OPINION




ROTH, Circuit Judge:

        Petitioner Mark Delgado appeals a judgment of the District Court of the Eastern

District of Pennsylvania, dismissing his claim. Delgado applied for Disability Insurance

Benefits in 1997, alleging that he had been disabled since 1992. At a hearing on his

application, the Administrative Law Judge (ALJ) found that Delgado was not disabled. the

Appeals Council denied review. Delgado then appealed to the District Court. The

Magistrate Judge found that substantial evidence supported the ALJ’s findings and granted

the Commissioner's motion for summary judgment, and the District Court adopted the

Magistrate Judge’s Report and Recommendation. Delgado then appealed to this Court.

Delgado argues the following issues on appeal: (1) the Commissioner’s final decision

denying Delgado’s claim was not supported by substantial evidence, (2) the Commissioner

denied Delgado a full and fair hearing on his claim, and (3) the District Court failed to

apply the correct standard of review. 1




   1
    Delgado sets forth these three issues in the “Issues” section of his brief but fails to
specifically address issues (2) and (3) in his “Legal Argument” section or give any legal
support for these contentions. Because he briefly discusses the full and fair hearing and
standard of review issues only within the context of the Commissioner’s alleged lack of
substantial evidence in the record, our review will be limited to the substantial evidence
issue. To the extent that Delgado contends that he was denied a full and fair hearing by the
District Court or that the District Court erroneously applied a de novo standard of review,
we find no merit to these claims.

                                                     2
        The District Court had jurisdiction pursuant to 42 U.S.C. § 405(g). We have

appellate jurisdiction pursuant to 28 U.S.C. § 1291. We have plenary review of all legal

issues, Shaudeck v. Comm’r, 181 F.3d 429, 431 (3d Cir. 1999), and our review of the

District Court Order is limited to determining whether the District Court properly found

that there is substantial evidence to support the Commissioner's decision. See 42 U.S.C. §

405(g); Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999). Substantial evidence “does

not mean a large or considerable amount of evidence, but rather such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.” Pierce v. Underwood,

487 U.S. 552, 564-65 (1988). It is “more than a mere scintilla but less than a

preponderance” of the evidence. Plummer, 186 F.3d at 427.

        We will not restate the facts of this case as they are well known to the parties.

                         Substantial Evidence For the Commissioner’s Decision

        Delgado alleges that the Commissioner’s final decision denying his claim was not

supported by substantial evidence. In such a claim for Disability Insurance Benefits, the

Commissioner considers the following five-step sequential evaluation: (1) whether the

claimant is engaging in work activity, (2) whether the claimant has a severe impairment, (3)

whether the claimant’s impairment meets or equals the requirements of a listed

impairment, (4) whether the claimant has the ability to return to his past work, and (5) if

not, whether the claimant can perform any other work. See 20 C.F.R. § 404.1520 (a)-(f).

The claimant bears the burden of proof as to steps one through four; if he is able to make

the requisite showing that he is unable to perform his previous work, then “the burden of

                                                     3
production shifts to the Commissioner, who must demonstrate the claimant is capable of

performing other available work in order to deny a claim of disability.” Plummer, 186 F.3d

at 428 (citing § 404.1520(f)). We find that the Commissioner’s denial of Delgado’s claim

was supported by substantial evidence.

        The ALJ found that Delgado retained the residual functional capacity to perform

sedentary work with a sit/stand option and was thus not disabled. Delgado sets forth three

arguments in support of his allegation that the Commissioner’s decision was not supported

by substantial evidence. Initially, he claims that the ALJ erred in finding that his knee

impairment did not meet or equal the criteria of Listing Section 1.03A. We agree with the

District Court that there was substantial evidence on which the ALJ correctly found that

Delgado’s medical reports failed to meet the requirements of Listing 1.03A, as Delgado

failed to provide x-ray evidence of the specific qualifying impairments required by the

Listing and failed to prove that he had a marked limitation of his ability to stand or walk.2

        Delgado next contends that the ALJ did not consider whether he had an impairment

under Listing Section 1.03B as Delgado disputes that the evidence shows that he has

returned to full-weight bearing. The record must contain sufficient explanation of the




   2
     Under Listing section 1.03A, a claimant alleging arthritis of a major weight bearing
joint must show a history of persistent joint pain and stiffness with signs of marked
limitation of motion or abnormal motion of the affected joint on current physical
examination, with gross anatomical deformity of the...knee supported by x-ray evidence of
either significant joint space narrowing or significant bony destruction and markedly
limiting ability to walk or stand. See 20 C.F.R. pt. 404, subpt. P, app. 1 (summarized
herein).

                                                      4
evidence considered by the ALJ in order to provide the reviewing court with a basis for

review. Shaudeck, 181 F.3d at 433. We agree with the District Court that there was

substantial evidence on which the ALJ properly concluded that Delgado’s knee impairment

did not meet the requirements of Listing 1.03B, as the ALJ found that medical evidence

showed that Delgado was capable of standing and walking unassisted for limited times such

that there was no period of twelve-months in which he did not have full weight-bearing

status.3 Further, the mere fact that the ALJ did not explicitly refer to Listing 1.03B by

name is insufficient to show that the ALJ did not weigh Delgado’s impairment against its

criteria.

            Finally, Delgado claims that the ALJ did not follow the proper sequence of the five-

step evaluation. He bases this allegation on the ALJ’s alleged failure to correctly

determine that Delgado’s impairment was within the Listings, and the ALJ’s alleged failure

to sustain her burden of proof as to Delgado’s ability to perform other work. We also find

no merit to these claims. We have already determined that the ALJ correctly determined

that Delgado’s impairment was not within Listing 1.03. Further, medical evidence clearly

indicated that Delgado was fit for sedentary work. For these reasons, we agree with the

District Court that substantial evidence existed for the Commissioner to decide that

Delgado was not disabled and was fit for sedentary work with a sit/stand option.


   3
    Listing section 1.03B requires that a claimant show reconstructive surgery or surgical
arthrodesis of a major weight-bearing joint and that return to full weight-bearing status did
not occur, or was not expected to occur, within twelve months of onset. See 20 C.F.R. pt.
404, subpt. P, app. 1.

                                                       5
        For the foregoing reasons, we will affirm the denial by the District Court of

Delgado’s Petition for Review.




                                                   6
TO THE CLERK:

     Please file the foregoing Opinion.




                                          By the Court,




                                           /s/ Jane R. Roth
                                                              Circuit Judge




                                            7
