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


5-19-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-2709




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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 03-2709


                                 DEBORAH CARUSO,
                                            Appellant

                                           v.

                     COMMISSIONER OF SOCIAL SECURITY


             APPEAL FROM THE UNITED STATES DISTRICT COURT
                       FOR THE DISTRICT OF NEW JERSEY
                              D.C. Civil No. 00-cv-06184
               District Judge: The Honorable Joseph A. Greenaway, Jr.


                      Submitted Under Third Circuit LAR 34.1(a)
                                 February 23, 2004


              Before: RENDELL, BARRY, and ROSENN, Circuit Judges


                             (Opinion Filed: May 19, 2004)


                                       OPINION




BARRY, Circuit Judge

      Deborah Caruso (“Caruso”) appeals the decision of the United States District

Court for the District of New Jersey affirming the decision of the Commissioner of the
Social Security Administration (“Commissioner”) denying Caruso’s claim for Disability

Insurance Benefits and Supplemental Security Income under Titles II and XVI of the

Social Security Act. We will affirm.

         The District Court exercised jurisdiction pursuant to 42 U.S.C. § 405(g), and

appellate jurisdiction is vested in this Court under 28 U.S.C. § 1291. We must affirm the

District Court if it correctly found the decision of the Commissioner to be supported by

substantial evidence. 42 U.S.C. § 405(g); Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir.

2000). By substantial evidence we do “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, 565 (1988)

(quoting Consol. Edison Co. v. NLRB, 305 U.S. 197 (1938)).

         In determining whether a claimant qualifies for benefits, the Commissioner must

consider, in sequence: (1) whether the claimant is currently engaged in substantial gainful

activity; (2) if not, whether the claimant has a severe impairment; (3) if so, whether the

severe impairment meets or equals the criteria of an impairment listed in the Social

Security Administration Regulations;1 (4) if not, whether the claimant’s impairment

prevents the performance of past relevant work; and (5) if so, whether the claimant can

perform any other work in the national economy, given the claimant’s age, education,

experience, and health. 20 C.F.R. § 404.1520; Plummer v. Apfel, 186 F.3d 422, 428 (3d



  1
      See 20 C.F.R. pt. 404, subpt. P, app.1.

                                                2
Cir. 1999). The burden is on the claimant at the first four steps, but shifts to the

Commissioner at the final step. Kangas v. Bowen, 823 F.2d 777 (3d Cir. 1987).

       As we write for the litigants, who are familiar with the facts of this case, we

provide only a brief summary of those facts at the outset, incorporating additional facts as

relevant to our discussion of the issues. Caruso injured her back in slip and fall accidents

in 1994 and 1995, but continued to work until she reinjured herself while sneezing in

1996. The Administrative Law Judge (“ALJ”) determined that Caruso had not engaged in

substantial gainful activity since December 23, 1996 due to her medical condition,

satisfying step 1. As for step 2, the ALJ found that Caruso had “lumbosacral radiculitis

and radiculopathy, impairments that cause significant vocationally relevant limitations.”

Regarding step 3, the ALJ determined that Caruso did not have an “impairment or

combination of impairments that [met] the criteria of any of the listed impairments

described in Appendix 1 of the Regulations (20 C.F.R., Part 404, Subpart P, Appendix

1).” At step 4, the ALJ found that Caruso’s past, relevant work was that of a deli clerk,

and that Caruso could not perform this work anymore. The ALJ concluded, however, that

Caruso had the “residual functional capacity to perform the exertional demands of

sedentary work.” At this point, the burden shifted to the Commissioner to show that there

were jobs existing in the national economy in significant numbers that Caruso could still

perform–step 5. Applying Medical-Vocational Rule 201.24 set forth at 20 C.F.R. Part

404, Subpart P, Appendix 2, the ALJ concluded that such jobs exist.



                                              3
       Caruso contests the decision of the Commissioner in four regards. She asserts that

the Commissioner: (1) issued an impermissibly conclusory statement at step 3 without

specifying any particular Listing or making any comparison with that Listing; (2)

improperly announced a residual functional capacity assessment, which was

unaccompanied by any articulated evidentiary foundation; (3) ignored the mandated

protocol when evaluating her pain; and (4) improperly utilized grid rulings at step 5. We

will address these issues in turn.

                                             I.

       At step 3, the ALJ must compare the claimant’s medical evidence to a list of

impairments presumed severe enough to preclude any gainful work. 20 C.F.R. §

404.1520(d). We have explained that at this step, “this Court requires the ALJ to set forth

the reasons” for his or her decision. Burnett v. Comm’r of Soc. Sec. Admin., 220 F.2d

112, 118-19 (3d Cir. 2000) (citing Cotter v. Harris, 642 F.2d 700, 704-05 (3d Cir. 1981)).

In Burnett, we were troubled by the ALJ’s summary conclusion that the claimant suffered

from a severe musculoskeletal impairment, but that “said impairment failed to equal the

level of severity of any disabling condition contained in Appendix 1, Subpart P of Social

Security Regulations No. 4.” 220 F.3d at 119. We remanded the case so the ALJ could

explain whether and why Burnett’s back and knee impairments, either alone or combined,

were equivalent to the listed impairments in the relevant section. Id. at 119-20.

       Burnett does not require an ALJ to use “magic language” or adhere to a particular



                                             4
analytical format. Rather, the purpose of Burnett is to ensure sufficient development of

the record and explanation of findings to permit meaningful judicial review. Id. at 120.

In this case, the ALJ’s decision, read as a whole, convinces us that he considered the

appropriate factors in reaching the conclusion that Caruso did not meet the criteria of any

of the listed impairments described in Appendix 1 of the Regulations.

       The ALJ’s discussion of the listing of impairments at step 3 reads as follows:

       The evidence supports a finding that the claimant has lumbosacral
       radiculitis and radiculopathy, impairments that cause significant
       vocationally relevant limitations. The claimant has no impairment or
       combination of impairments that meets the criteria of any of the listed
       impairments described in Appendix 1 of the Regulations. No treating or
       examining physician has mentioned findings equivalent in severity to the
       criteria of any listed impairment or combination of impairments.

       Caruso argues that because the ALJ did not explicitly identify which Listing he

considered (the Commissioner’s listings contain fourteen “chapters” and 120 disease

“processes”), the ALJ did not adequately explain his findings as required under Burnett.

Indeed, the language the ALJ used is similar to that rejected in Burnett. Unlike in

Burnett, however, there was only one Listing applicable to Caruso’s lumbosacral

radiculitis and radiculopathy, i.e., Listing 1.05C.2 Consistent with this conclusion,



  2
   The muskuloskeletal listings were amended effective February 19, 2002; the current
Listing relevant to back impairments is now Listing 1.04. For purposes of our analysis
we review the ALJ’s decision based upon the law that was in effect at the time of the
ALJ’s decision. See 66 Fed. Reg. 58010 (Nov. 19, 2001). At the time of the ALJ’s
decision, spinal disorders were considered under Listing 1.05, with Listing 1.05C the only
relevant Listing. Listing 1.05C provided:


                                             5
throughout the opinion the ALJ recited and analyzed the criteria under Listing 1.05C.

Therefore, we are able, as was the District Court, to conduct the meaningful review

required by Burnett, and we find the ALJ’s conclusions at step 3 to be supported by

substantial evidence. In reaching this conclusion, we note, as the Commissioner has

noted, that, on appeal, Caruso has not invoked any particular Listing, much less argued

that there is evidence to support any particular Listing.

                                             II.

       We next address Caruso’s argument that the ALJ did not adequately support his

finding that she retained a residual functional capacity3 for sedentary work.4 We disagree.

The ALJ examined relevant medical evidence and, as discussed separately below,

properly examined Caruso’s subjective complaints of pain, finding them not entirely

credible. The ALJ evaluated reports from Caruso’s chiropractors and noted that they


       C. Other vertebrogenic disorders (e.g. herniated nucleus pulposus, spinal
       stenosis) with the following persisting for at least 3 months despite prescribed
       therapy and expected to last 12 months. With both 1 and 2:
       1. Pain, muscles spasm, and significant limitation of motion in the spine;
       and
       2. Appropriate radicular distribution of significant motor loss with muscle
       weakness and sensory and reflex loss.
  3
   “‘Residual functional capacity’ is defined as that which an individual is still able to do
despite the limitations caused by his or her impairment(s).” Burnett, 220 F.3d at 121
(quoting Hartranft v. Apfel, 181 F.3d 358, 359 n.1 (3d Cir. 1991)).
  4
    Sedentary work involves lifting no more than ten pounds at a time, and occasionally
lifting or carrying of articles like docket files, ledgers and small tools. Sedentary jobs
require mostly sitting with occasional walking and standing. 20 C.F.R. §§ 404.1567(a),
416.967(a).

                                              6
found she was capable of performing sedentary work.5 The ALJ also recounted Dr.

Ahmed’s August 4, 1997 examination of Caruso, following which he concluded, among

other things, that the range of motion of Caruso’s upper extremities and her muscle

strength were “completely” normal, as were her lower extremities. And, we note, Dr.

Atienza and Dr. Walsh, albeit State non-examining physicians, found that Caruso could

perform medium work.

                                            III.

       We turn, next, to Caruso’s argument that the ALJ did not properly assess her

subjective complaints of pain. Again, we disagree. The Social Security regulations

provide the standard for evaluating a claimant’s subjective complaints, including pain.

Hartranft v. Apfel, 181 F.3d 358, 362 (3d Cir. 1999). Once a claimant establishes a

medical impairment that could reasonably be expected to produce the pain or other

subjective symptoms alleged and which, taken with all other evidence, could lead to a

conclusion of disability, the ALJ must assess the degree to which the claimant is

accurately stating his or her subjective symptoms or the extent to which they are

disabling. Id.; 20 C.F.R. § 416.929. In addition to medical evidence, the following

factors may be considered in assessing the credibility of a claimant’s statements: (1) daily



  5
   Although we generally prefer reports from physicians, an ALJ may rely upon the
opinions of chiropractors to ascertain the severity of a claimant’s impairments. See 20
C.F.R. §§ 404.1513(a),(d), 416.913(a),(d); Hartranft v. Apfel, 181 F.3d 358, 361 (3d Cir.
1999). Here, such reliance was well-advised as Caruso had not seen a medical doctor
since July of 1997.

                                             7
activities; (2) duration, location, frequency, and intensity of the pain and other symptoms;

(3) precipitating and aggravating factors; (4) medication taken to alleviate pain or other

symptoms; (5) treatment other than medication; (6) any other measures used to relieve the

symptoms; and (7) other factors concerning functional limitations or limitations due to

pain or other symptoms. 20 C.F.R. §§ 416.929(c)(3)(I)-(vii).

       Here, the ALJ discussed at length how the objective medical evidence failed to

justify fully crediting Caruso’s complaints of pain.6 The ALJ also recognized that the

additional, enumerated factors undermined her assertions of the severity of any pain she

may have had. For example, Caruso only went to chiropractors since 1997 and stated that

this treatment helped her. She did not take any prescription pain medication, but rather

relied on Tylenol. Moreover, her daily activities belied her allegations of pain.

Specifically, she admitted to dusting, vacuuming, cooking, grocery shopping, and driving

short distances. In short, substantial evidence supports the ALJ’s findings with respect to

Caruso’s subjective complaints.

                                            IV.

       Finally, we examine Caruso’s claim that the ALJ improperly relied on the Medical-

Vocational Guidelines in finding that other work Caruso could perform existed in

significant numbers in the national economy. Once more, we disagree.




  6
   To be sure, Caruso clearly has some pain as she has spasms. The ALJ recognizes this
fact in his opinion.

                                             8
       The Medical-Vocational Guidelines take account only of exertional impairments.

Exertional impairments are those that affect the claimant’s “ability to meet the strength

demands of jobs (sitting, standing, walking, lifting, carrying, pushing, and pulling).” 20

C.F.R. § 404.1569(b). Non-exertional impairments are all other impairments that do not

affect a claimant’s ability to meet the strength demands of jobs. 20 C.F.R. §

404.1569(c)(1). 7 We noted in Sykes v. Apfel:

       [t]he grids establish, for exertional impairments only, that jobs exist in the
       national economy that people with those impairments can perform. When a
       claimant has an additional nonexertional impairment, the question whether
       that impairment diminishes his residual functional capacity is functionally
       the same as the question whether there are jobs in the national economy that
       he can perform given his combination of impairments. The grids do not
       purport to answer this question, and thus under [Heckler v. Campbell, 461
       U.S. 458, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983)] the practice of the ALJ
       determining without taking additional evidence the effect of the
       nonexertional impairment on residual functional capacity cannot stand. 228
       F.3d 259, 270 (3d Cir. 2000).

       Caruso complains of postural limitations in the form of inability to rotate or flex

her neck and back, and claims she cannot stoop or crawl and has trouble bending and

crouching.8 She argues that under Sykes, the ALJ had to consider these non-


  7
   Examples of non-exertional impairments include: depression, anxiety, difficulty
concentrating or remembering, difficulty seeing or hearing, physical intolerance to items
such as dust or fumes, or difficulty reaching handling, stooping, climbing, crawling or
crouching. 20 C.F.R. § 404.1569(c)(1).
  8
    According to the District Court, “because they affect plaintiff’s ‘ability to meet the
strength demands of jobs (sitting, standing, walking, lifting, carrying, pushing, and
pulling),’” such limitations are exertional. (citing 20 C.F.R. § 404.1569(b)). This is
incorrect, albeit harmless. In Stunkard v. Secretary, 841 F.2d 57 (3d Cir. 1988), we
explicitly found postural limitations of bending, stooping, and kneeling to be non-

                                              9
exertional limitations in addition to the Guidelines. The ALJ specifically found, however,

that Caruso “has not had any significant non-exertional limitations.” The relevant

question, therefore, is whether this finding was supported by substantial evidence. We

believe that it was. Although there exists some evidence of postural limitations, taken as

a whole, the objective medical evidence coupled with Caruso’s own testimony

substantially supports the ALJ’s conclusion that any such limitations were not significant.

         For the foregoing reasons, we will affirm the April 10, 2003 order of the District

Court.




exertional. We noted, “[n]onexertional impairments . . . involve limitations such as
postural and manipulative impairments that do not affect a claimant’s physical strength
but may nevertheless prevent a claimant from engaging in gainful employment.” Id. at 60
(citing 20 C.F.R. § 404.1545(d)).
