                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


10-20-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4069




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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                       No. 04-4069


                                   ELVIRA MILANO,
                                               Appellant

                                            v.

                      COMMISSIONER OF SOCIAL SECURITY


             APPEAL FROM THE UNITED STATES DISTRICT COURT
                     FOR THE DISTRICT OF NEW JERSEY
                               D.C. Civil 01-cv-04881
                 District Judge: The Honorable Mary Little Cooper


                       Submitted Under Third Circuit LAR 34.1(a)
                                  September 13, 2005


               Before: SLOVITER, BARRY, and SMITH, Circuit Judges


                            (Opinion Filed October 20, 2005)


                                        OPINION




BARRY, Circuit Judge

       Elvira Milano (“Milano”) appeals from an order of the United States District Court

for the District of New Jersey. The District Court found that the decision of the
Commissioner denying Milano’s application for disability insurance benefits was

supported by substantial evidence, and affirmed that decision. Substantial evidence

means “more than a mere scintilla. It means such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389,

401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).

Because we agree that there is substantial evidence in the record to support the

Commissioner’s decision, we will affirm.

                                    I. BACKGROUND

       We write primarily for the parties, who are familiar with the facts and procedural

history of the case, and so will limit our discussion to those facts bearing directly on our

disposition of this appeal. Milano applied for disability insurance benefits alleging a

degenerative disc disease of the cervical and lumbar spine, fibromyalgia,1 and depression.

The Administrative Law Judge (“ALJ”) determined that she was not engaged in

substantial gainful activity and was suffering from severe impairments, satisfying the first

two steps of the five-step process for determining whether a claimant qualifies for

disability benefits. See 20 C.F.R. § 404.1520. At step three, however, the ALJ found that




   1
     “Fibromyalgia is a disorder that causes muscle pain and fatigue (feeling tired).
People with fibromyalgia have ‘tender points’ on the body. Tender points are specific
places on the neck, shoulders, back, hips, arms, and legs. These points hurt when
pressure is put on them.” National Institute of Health, National Institute of Arthritis and
Muscoloskeletal and Skin Disease, What is Fibromyalgia? (March 2005), available at
http://www.niams.nih.gov/hi/topics/fibromyalgia/fffibro.htm#a.

                                              2
Milano’s impairments did not meet or equal the requirements for a listed impairment. See

20 C.F.R. Part 404, Subpart P, App. 1. Proceeding to step four, the ALJ determined that

Milano retained the residual functional capacity (“RFC”)2 to perform sedentary work,

including her past relevant work as a secretary, and therefore was not disabled within the

meaning of the Social Security Act. Milano challenges the ALJ’s decision at steps three

and four.

                                     II. DISCUSSION

       With respect to step three, Milano argues that the ALJ found that her impairments

did not meet or equal any Listing and did so without properly evaluating the medical

evidence or articulating a basis for his finding. Failure to “identify[] the relevant listed

impairments, discuss[] the evidence, or explain[] [the] reasoning” constitutes error

requiring a remand. Burnett v. Comm’r Soc. Sec. Admin., 220 F.3d 112, 119-20 (3d Cir.

2000). Here, however, the ALJ explicitly considered the arguably relevant Listings 3 and

discussed the medical evidence, finding that the record did not contain the requisite

specific medical documentation. (A.R. 16-18.) Before us, Milano has not attempted to

show that her impairments meet or equal any specific Listing, and merely concludes that

she has “severe medical conditions” that “might” do so. Appellant’s Br. at 28. That is


   2
    RFC “is defined as that which an individual is still able to do despite the limitations
caused by his or her impairments.” Burnett v. Comm’r Soc. Sec. Admin., 220 F.3d 112,
121 (3d Cir. 2000).
   3
    The ALJ gave “particular consideration” to Listings 1.00 (musculoskeletal
impairments) and 12.00 (mental disorders). (A.R. 16).

                                              3
simply not enough. Accordingly, we reject her argument addressed to step three.

       Turning to step four, the ALJ found that Milano retained the functional capacity to

perform sedentary work on a sustained basis and to perform her past relevant work as a

secretary.4 Milano argues that this finding was wrong not only as a matter of law but was

not supported by substantial evidence. With reference to the former, Milano claims that a

person who must alternate between sitting and standing cannot be found to have an RFC

to perform sedentary work. Thus, the argument goes, the ALJ’s finding that she “is

capable of sitting up to 6 hours in a typical 8 hour work day, but must move around every

hour” precluded a determination that she could perform her past work as a secretary.

(A.R. 19 (emphasis added)). We disagree.

       Milano cites Boone v. Barnhart, 353 F.3d 203 (3d Cir. 2000), in which we found

that “the requirement . . . that Boone’s employment allow her the option to sit or stand at

will every thirty minutes precludes her from performing ‘the prolonged sitting



   4
       “The regulations define sedentary work as involving lifting no more than 10
       pounds at a time and occasionally lifting or carrying articles like docket
       files, ledgers, and small tools. Although sitting is involved, a certain
       amount of walking and standing is often necessary in carrying out job
       duties. . . . Most unskilled sedentary jobs require good use of the hands and
       fingers for repetitive hand-finger actions. ‘Occasionally’ means occurring
       from very little up to one-third of the time. Since being on one’s feet is
       required ‘occasionally’ at the sedentary level of exertion, periods of
       standing or walking should generally total no more than about 2 hours of an
       8-hour workday, and sitting should generally total approximately 6 hours of
       an 8-hour workday.”

Soc. Sec. Ruling No. 83-10 (1983).

                                             4
contemplated in the definition of sedentary work.’” Id. at 210 (quoting Soc. Sec. Ruling

No. 83-12 (1983)). There are, however, important distinctions between Boone and this

case. In Boone, the claimant could only sit for thirty minutes at a time, while Milano can

sit for an hour before needing to stand for five to ten minutes. Furthermore, the issue in

Boone was whether Boone could perform other work available in the national economy,

i.e. generic, hypothetical sedentary work.5 Here, however, the ALJ was evaluating

whether Milano could perform her past relevant work as a secretary, where she would be

able to take hourly breaks if necessary.6 “The regulations do not mandate the

presumption that all sedentary jobs in the United States require the worker to sit without

moving for six hours, trapped like a seat-belted passenger in the center seat on a

transcontinental flight.” Halloran v. Barnhart, 362 F.3d 28, 33 (2d Cir. 2004). This is

especially true when there is evidence in the record showing that such immobility is not



   5
     Boone had satisfied the first four steps of the process, so the ALJ appropriately
proceeded to step five. “At this stage, the burden of 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. 20 C.F.R. § 404.1520(f). The ALJ
must show there are other jobs existing in significant numbers in the national economy
which the claimant can perform, consistent with her medical impairments, age, education,
past work experience, and residual functional capacity.” Plummer v. Apfel, 186 F.3d 422,
428 (3d Cir. 1999).
   6
     Milano also cites Mason v. Shalala, 994 F.2d 1058 (3d Cir. 1993), asserting that
“[t]his Court has noted the need to sit and stand throughout the working day would limit
the ability to do the sitting required for sedentary work and reversed on such a finding.”
Rep. Br. at 11. This is a mischaracterization of our decision. In Mason, we reversed and
remanded on the ground that there was insufficient evidence in the record to support the
ALJ’s factual finding that Mason could sit for six hours in an eight hour workday.

                                             5
required in a specific job. The ALJ did not err as a matter of law in finding that Milano

could perform sedentary work and, in particular, her past relevant work as a secretary.

       Neither did the ALJ err as a matter of fact, and his conclusion that Milano could

perform past relevant work was supported by substantial evidence. Two state agency

physicians, who reviewed Milano’s medical records, determined that she could stand

and/or walk for about six hours in an eight hour day and that she could sit for about six

hours.7 One of the physicians found that she could lift up to twenty pounds occasionally,

and ten pounds frequently; the other found that she could lift as much as fifty pounds.

Both physicians’ assessments support, at minimum, an RFC for sedentary work.

Furthermore, the last – or one of the last – physicians to examine Milano before the

hearing, while recognizing that she has “significant degenerative disease involving the

cervical and LS spine,” found “no swelling [of the joints], limitation of motion, or

tenderness involving hands, wrists, knees or ankles.” He also reported “normal motor

strength testing of all major, proximal, [and] distal motor groups,” as well as “[e]xcellent

cervical and LS spine flexibility.” (A.R. 236-37.) As the ALJ found, the reports of

Milano’s treating and examining physicians “provide substantial weight that [her]

impairments do not impose such severe limitations on her functional capacity as to



   7
    “State agency medical and psychological consultants . . . are highly qualified
physicians and psychologists who are also experts in Social Security disability evaluation.
Therefore, administrative law judges must consider findings of State agency medical and
psychological consultants or other program physicians or psychologists as opinion
evidence.” 20 C.F.R. § 404.1527(f).

                                             6
preclude the performance of all work activity.” (A.R. 19.) As also noted by the ALJ,

Milano herself testified that she can sit for an hour, lift one half gallon, climb stairs, drive

a car, and visit with friends.

       As for Milano’s complaint that the ALJ did not properly analyze her subjective

complaints of pain and functional limitations, we once again disagree. When a claimant

complains of pain and establishes the existence of a medical impairment that could

reasonably be expected to produce the pain, the ALJ must “determine the extent to which

[the] claimant is accurately stating the degree of pain or the extent to which he or she is

disabled by it.” Hartranft v. Apfel, 181 F.3d 358, 362 (3d Cir. 1999). To make this

determination, the ALJ may consider (1) daily activities; (2) the duration, frequency,

location, and intensity of the pain or other symptoms; (3) precipitating and aggravating

factors; (4) the “type, dosage, effectiveness, and side effects of any medication . . . taken

to alleviate [the] pain or other symptoms”; (5) “treatment, other than medication . . .

received for relief of [the] pain or other symptoms”; (6) any other measures used to

relieve the pain or symptoms; and (7) “other factors concerning . . . functional limitations

and restrictions due to pain or other symptoms.” 20 C.F.R. § 416.929(c)(3).

       The ALJ “considered [Milano’s] subjective complaints and allegations as to pain,

discomfort and resulting limitations,” and found them to be “generally credible when

viewed in the record in its entirety, however, not to the extent alleged.” (A.R. 18.) In

reaching that conclusion, the ALJ noted that Milano’s daily activities undermined her



                                               7
assertions of severe disabling pain. Specifically, she lived alone, was capable of shopping

and completing household chores, and engaged in activities such as driving, visiting

friends, and going to movies. Moreover, the ALJ pointed out that she was not taking any

prescription medication for pain, and had refused medication that had been prescribed to

her for depression. Other treatments recommended by physicians were quite

conservative: physical therapy and acupuncture, but not surgery.

       Finally, we reject Milano’s suggestion that this matter should be remanded under

sentence six of 42 U.S.C. § 405(g) for consideration of additional medical evidence.

Under sentence six of § 405(g), a remand is warranted “for good cause shown . . . but

only upon a showing that there is new evidence which is material and that there is good

cause for the failure to incorporate such evidence into the record in a prior proceeding.”

42 U.S.C. § 405(g). For evidence to be “material,” it must “relate to the time period for

which the benefits were denied, and . . . not concern evidence of a later-acquired

disability or of the subsequent deterioration of the previously non-disabling condition.”

Szubak v. Secretary of Health & Human Services, 745 F.2d 831, 833 (3d Cir. 1984).

       Milano claims that recent medical reports and diagnostic tests have confirmed a

right-sided cervical disc herniation and pain in her arm that “severely impacts on the

quality of her life.” Appellant’s Br. at 39. These reports and tests were prepared between

May 2001 to February 2003, i.e. after the ALJ held the hearing in February of 2001 and

rendered his decision two months later. It certainly appears that these new records are



                                             8
indicative of a “subsequent deterioration of the previously non-disabling condition.” As

noted by the District Court, “[w]hile the new evidence indicates Milano’s condition has

worsened, there is nothing to suggest her condition had reached this stage on or before the

date of the ALJ’s hearing.”

       The District Court did not err in denying the motion to remand, and we reject

Milano’s suggestion that we remand.8

                                  III. CONCLUSION

       We will affirm the August 9, 2004 order of the District Court.




   8
    The government states that where evidence may support a claim of disability after the
period in review has closed, the claimant should file a new application for benefits.
Appellee’s Br. at 25 and n.6.

                                            9
