                                                                                                                           Opinions of the United
2006 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-31-2006

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Precedential or Non-Precedential: Non-Precedential

Docket No. 05-1351




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT



                                      No. 05-1351


                                 NEREIDA RIVERA,

                                                   Appellant

                                            v.

                      COMMISSIONER OF SOCIAL SECURITY



                      Appeal from the United States District Court
                             for the District of New Jersey
                         (D.C. Civil Action No. 03-cv-05516)
                       District Judge: Honorable Joel A. Pisano


                      Submitted Under Third Circuit LAR 34.1(a)
                                 November 15, 2005

                     Before: BARRY and AMBRO, Circuit Judges,
                             and POLLAK,* District Judge

                                (Filed January 31, 2006)



                                       OPINION



      *Honorable Louis H. Pollak, United States District Judge for the Eastern District
of Pennsylvania, sitting by designation.
AMBRO, Circuit Judge
       Nereida Rivera appeals from the District Court’s order affirming the determination

of the Administrative Law Judge (“ALJ”) that Rivera was not disabled within the

meaning of the Social Security Act and denying her claim for Social Security benefits.1

For the reasons that follow, we conclude that the ALJ’s determination is supported by

substantial evidence, and thus affirm.

                                              I.

       Because we write solely for the benefit of the parties, we do not recite the facts

giving rise to this appeal. Our standard of review is identical to that of the District Court;

we must determine whether there is substantial evidence to support the ALJ’s decision.

Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999). When there is such substantial

evidence, we are “bound by those findings, even if we would have decided the factual

inquiry differently.” Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001). Substantial

evidence means “such relevant evidence as a reasonable mind might accept as adequate to

support a conclusion.” Jesurum v. Sec’y of the U.S. Dep’t of Health & Human Servs., 48

F.3d 114, 117 (3rd Cir. 1995) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).

“It is less than a preponderance of the evidence but more than a mere scintilla.” Id. For a

decision to be supported by substantial evidence, the ALJ must have considered and

weighed all relevant evidence on the record, not just evidence supporting his decision.



       1
        The District Court had jurisdiction pursuant to 42 U.S.C. § 405(g), and we have
appellate jurisdiction under 28 U.S.C. § 1291.

                                              2
Cotter v. Harris, 642 F.2d 700, 704 & n.6 (3d Cir. 1981). The record and the ALJ’s

decision must include sufficient evidence and analysis to allow for meaningful judicial

review. Burnett v. Comm’r of Soc. Sec. Admin., 220 F.3d 112, 119 (3d Cir. 2000). The

ALJ need not “use particular language or adhere to a particular format in conducting his

analysis.” Jones v. Barnhart, 364 F.3d 501, 505 (3d Cir. 2004). The only requirement is

that, reading the ALJ’s decision as a whole, there must be “sufficient development of the

record and explanation of findings . . . .” Id.

                                              II.

       In reviewing claims for disability insurance benefits, an ALJ uses a five-step test to

determine whether a claimant is disabled within the meaning of the Social Security Act.

See 20 C.F.R. § 404.1520(a)(4). Here, Rivera challenges the ALJ’s evaluations at the

third and fourth steps.2 In steps one and two, the claimant must establish that she has not

engaged in substantial gainful activity and suffers from a severe impairment. Id. §

404.1520(a)(4)(i), (ii). In step three, the ALJ determines whether the claimant’s

impairments meet all the specific medical criteria of one of the impairments listed in

Appendix 1 to Subpart P of Part 404 of the regulations, or, taken as a whole, are

medically equal to one of them. Id. § 404.1520(a)(4)(iii). If so, she is presumed to be

disabled and entitled to benefits, and if not the ALJ moves on to step four. There, the



       2
        Rivera also argues that the ALJ committed errors in the second step, but the ALJ
found in her favor at that step (holding that she did have a severe impairment), so any
such errors were harmless.

                                                  3
ALJ assesses the claimant’s residual functional capacity. If she is deemed capable of

doing her past relevant work, the ALJ will find that she is not disabled. Id. §

404.1520(a)(4)(iv). The claimant has the burden of proof in steps one, two, and four.

Sykes v. Apfel, 228 F.3d 259, 263 (3d Cir. 2000). No one bears the burden of proof for

step three, because it “involves a conclusive presumption based on the listings[.]” Id. at

n.2. The claimant must provide sufficient medical evidence in step three to show that her

impairment is equal in severity to a listed impairment, but need not identify the relevant

listings. Burnett, 220 F.3d at 120 n.2.

       With respect to the third step, Rivera argues that the ALJ was required to identify

which listings he used to make his decision, and that his decision was a mere conclusory

statement that offered no evidentiary basis for his finding. Specifically, Rivera contends

that the ALJ failed to state explicitly what listing he had used to make factual

comparisons, aside from the Section 1.00 (Musculoskeletal System) of Appendix 1,

which she characterizes as an “introductory treatise.” This argument, however,

incorrectly assumes that the ALJ must identify the specific listings in Appendix 1 he used

as a comparison and make specific factual comparisons with the criteria of those listings.

As previously noted, the ALJ is not required to use any specific format or language in his

analysis, as long as he sufficiently develops the record to permit meaningful judicial

review. Jones, 364 F.3d at 505. Moreover, the ALJ did state what listings he used for

comparison. Section 1.00 is not merely an introductory treatise. Rather, as the District

Court correctly observed, it “delineates the factors and standards for interpreting evidence

                                              4
submitted on disability claims relating to musculoskeletal disorders, the very complaints

that [Rivera made].” See 20 C.F.R. pt. 404, app. 1 § 1.00.

       Rivera also argues that the ALJ’s step three discussion was merely a conclusory

statement that did not adequately describe the reasons for his holding. We agree.

However, in this case the error was harmless. We require an ALJ to “fully develop the

record and explain his findings at step three, including an analysis of whether and why

[each of claimant’s] impairments, or those impairments combined, are or are not

equivalent in severity to one of the listed impairments.” Burnett, 220 F.3d at 120. We

have expressed concern that an ALJ might not have satisfied the requirements of Burnett

when he simply stated that “[n]o treating or examining physician has mentioned findings

equivalent in severity to the criteria of any listed impairment. Particular consideration

was given to Listing 1.00 (musculoskeletal system).” Fargnoli, 247 F.3d at 40.

Similarly, the ALJ’s step three discussion here stated only that “[no] treating or

examining physician has mentioned findings equivalent in severity to the criteria of any

listed impairment, nor does the evidence show signs or findings that are the same or

equivalent to those of any listed impairment, including Section 1.00 of the listing of

impairments.” It is not enough for the ALJ to conclude that no medical evidence meets or

equals any of the listings, in the absence of any discussion of why the specific evidence

provided by the claimant was not equivalent. However, in reviewing the voluminous

medical evidence available to us, we found abundant evidence supporting the position

taken by the ALJ, and comparatively little contradictory evidence. Therefore, we hold

                                              5
that here the ALJ’s conclusory statement in step three was harmless.

                                            III.

       Rivera also argues that the ALJ failed to address relevant evidence contradictory to

his findings. Specifically, she argues that the ALJ failed to consider medical MRI

evidence showing small vessel ischemic changes, and failed to address her testimony

complaining of pain and limitation of motion.

       Rivera has failed to show that the MRI evidence is relevant to her disability claim

for arthritis, degenerative disc disease, and a liver tumor. The MRI was conducted more

than six months before the onset date of her disability and for the purpose of examining

complaints of dizziness, vertigo, headaches, and memory problems. Rivera has provided

no evidence linking the ischemic changes to her grounds for disability, nor even any

evidence that it was the cause of her other complaints. Thus, the MRI evidence does not

constitute contradictory evidence. As such, the ALJ was not required to consider it

expressly in his decision.

       As for Rivera’s complaints of pain and limitation of motion, the ALJ did consider

the contradictory evidence and properly afforded it the value it was due. A claimant’s

subjective complaints of pain must be seriously considered in disability evaluations, even

when not supported by medical evidence, but are not controlling. Green v. Schweiker,

749 F.2d 1066, 1067 (3d Cir. 1984). The ALJ acknowledged that Rivera’s claims were

credible, that she did indeed experience pain and restriction of motion. However, he held

that Rivera’s “allegations that [they prevent] all work activity are not found credible and

                                             6
are inconsistent with the findings of her treating physicians.” Therefore, the ALJ

properly considered the evidence contradictory to his decision, giving it weight in his

decision, but reasonably relying more heavily on the contrary medical evidence.

                                            IV.

       With respect to the fourth step, Rivera argues that the ALJ’s determination that she

had the residual capacity to return to her past relevant work was not supported by

substantial evidence, and that he did not sufficiently compare her impairments with the

specific requirements of her former work. In disability determinations, “opinions of a

claimant’s treating physician are entitled to substantial and at times even controlling

weight.” Fargnoli, 247 F.3d at 43 (citing 20 C.F.R. § 404.1527(d)(2)). This is so

because treating physicians have the most complete overview of a claimant’s medical

history, symptoms, and capabilities. Id. An ALJ may only reject a treating physician’s

opinion “on the basis of contradictory medical evidence and not due to his or her own

credibility judgments, speculation or lay opinion.” Morales v. Apfel, 225 F.3d 310, 317

(3d Cir. 2000) (internal quotations omitted).

       Here, the ALJ found that Rivera had a number of functional limitations, but was

capable of performing “light work”3 and returning to her past relevant work as a sound

video assembler or circuit board solderer. This was a more generous finding than that of

Rivera’s treating physician for the past twelve years, Dr. Sanchez, who stated that Rivera


       3
       “Light work” is a technical term defined and described in 20 C.F.R. §
404.1567(b).

                                                7
had no functional limitations or impairments. Dr. Sanchez opined that Rivera was

capable of all physical activities relating to work, including “sitting and standing,

walking, lifting, carrying, handling objects, hearing, speaking, or traveling.” Rivera’s

orthopedic surgeon, Dr. Malberg, concluded that she was capable of doing a range of

light work. Disability Determination Services (DDS), an agency of medical experts

experienced with evaluating disability claims, similarly found that Rivera was capable of

a range of light work, including standing and walking about six hours in an eight-hour

workday, and occasionally lifting twenty pounds. As discussed above, the ALJ also

considered Rivera’s subjective reports of pain and restricted motion, but did not find her

description of their disabling effects to be credible, and gave more weight to the expert

opinions of her treating physician and the other medical examiners. Because of the

substantial weight given to medical evidence, especially the opinions of treating

physicians, there is substantial evidence to support the ALJ’s decision that Rivera was

capable of performing a range of light work and the physical requirements of her former

work.

        Rivera further argues that the ALJ did not sufficiently compare her impairments

with the specific requirements of her former work. We disagree. In deciding whether a

claimant has the functional capacity to return to her past relevant work, an ALJ considers

the claimant’s description of the requirements of her former work, what requirements

she can no longer meet, the medical evidence establishing how her impairment limits her

ability to meet those requirements, and in some cases, supplementary or corroborative

                                              8
evidence (including the Dictionary of Occupational Titles). Burnett, 220 F.3d at 123

(citing S.S.R. 82-62). In his analysis, the ALJ first described the specific physical

activities that the medical examiners had determined Rivera was capable of performing.

He then compared them to the physical requirements of her past relevant work as a

sound video assembler and a circuit board solderer, which she had described in her

testimony and disability insurance application. He found that she was capable of

performing the physical requirements she had described. As corroborating evidence, the

ALJ noted that the Dictionary of Occupational Titles listed those jobs as requiring only

“light work,” which he had found Rivera to be capable of based on the medical evidence.

In this context, the ALJ sufficiently articulated his findings that Rivera’s residual

functional capacity permitted her to perform the specific physical requirements of her

former employment, and thus his holding was supported by substantial evidence.

                                             V.

       For the reasons discussed above, the ALJ’s decision that Rivera was not disabled

within the meaning of the Social Security Act was supported by substantial evidence.

We affirm the decision of the District Court so holding.




                                              9
