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


6-28-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-4740




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                                                              NOT PRECEDENTIAL

                  IN THE UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                   Case No: 03-4740

                                  JOSEPH NELSON,

                                            Appellant


                                            v.

                      COMM ISSIONER OF SOCIAL SECURITY

                            ___________________________

                    On Appeal from the United States District Court
                              for the District of New Jersey
                  District Judge: The Honorable Dennis M. Cavanaugh
                              (D.C. No.: C.A. No. 02-1642)

                           ____________________________

                     Submitted Pursuant to Third Circuit LAR 34.1
                                    June 16, 2004

                      Before: ALITO and SMITH, Circuit Judges,
                             and DUBOIS, District Judge*

                                 (Filed: June 28, 2004 )

                                  _________________

                                      OPINION
                                  _________________



  *
   The Honorable Jan E. Dubois, Senior District Judge for the Eastern District of
Pennsylvania, sitting by designation.
SMITH, Circuit Judge.

       Joseph Nelson contends that the District Court erred by affirming the decision of

the Commissioner of Social Security which denied his claim for benefits under Title II

and Title XVI of the Social Security Act. 1 See 42 U.S.C. §§ 423, 1383. Our review “is

identical to that of the District Court, namely to determine whether there is substantial

evidence to support the Commissioner’s decision.” Plummer v. Apfel, 186 F.3d 422, 427

(3d Cir. 1999). Substantial evidence is “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).

       The regulations promulgated by the Social Security Administration establish a

five-step sequential analysis for determining whether a claimant is disabled. See 20

C.F.R. §§ 404.1520, 416.920. Nelson claims he is disabled due to limitations resulting

from a cervical laminectomy and spinal fusion. He contends that the Administrative Law

Judge (“ALJ”) erred at step three of the analysis by finding that he did not have any of the

impairments that are listed in Appendix 1 to the regulations which would have

automatically entitled him to benefits. See 20 C.F.R. §§ 404.1520(c), 416.920(c); 20

C.F.R. Part 404, Subpt. P, Appendix 1 (hereinafter cited as “Appendix 1"). In addition,

Nelson asserts that the ALJ erred at step five in determining that he was able to perform




  1
   The District Court had jurisdiction pursuant to 42 U.S.C. § 405(g). We exercise
appellate jurisdiction under 28 U.S.C. § 1291.

                                              2
the full range of sedentary work, and therefore was not disabled.

       A Social Security claimant is deemed disabled and eligible for benefits if he

establishes at step three of the sequential analysis that his severe impairment satisfies the

criteria for an impairment listed in Appendix 1. 20 C.F.R. §§ 404.1520(c), 416.920(c).

Nelson argues that the ALJ erred at this step because his conclusory statement that

Nelson’s impairment did not meet or equal a listing failed to provide the reasoned

explanation required by our decision in Burnett v. Comm’r, 220 F.3d 112, 119-20 (3d Cir.

2000). There, we instructed that the reasoned explanation is necessary for meaningful

judicial review. Id. at 119.

       We have no difficulty conducting a meaningful review in this matter and find it

telling that Nelson failed to identify any listing he allegedly satisfied. It is readily

apparent from a review of the ALJ’s decision that the ALJ determined that Nelson had a

severe impairment at step two of the analysis because of the limitations resulting from his

back surgery and that those limitations were the basis of Nelson’s claim of disability. The

only listing applicable to a back impairment was § 1.05, relating to Disorders of the

Spine. Appendix 1, § 1.05. The criteria required to satisfy listing § 1.05, however, were

not present in this record. The ALJ noted as much in his decision, explaining that the

medical evidence, particularly a recent consultative examination by an orthopedic

physician, was unremarkable. Indeed, Dr. Mylod, a medical expert who testified for

Nelson at the ALJ hearing, conceded that he could not opine as to whether Nelson met or



                                                3
equaled any listing because he did not have a detailed physical examination on which to

base his opinion.

       With regard to step five in the analysis, Nelson asserts that the ALJ erred by

finding that he was able to perform the full range of sedentary work. According to

Nelson, the ALJ erred because he failed to fully explain why he found Nelson capable of

sedentary work and because he failed to fully credit Nelson’s testimony. Neither of these

arguments is persuasive.

       In determining a claimant’s residual functional capacity, “the ALJ must consider

all evidence before him. Although the ALJ may weigh the credibility of the evidence, he

must give some indication of the evidence which he rejects and his reason(s) for

discounting such evidence.” Burnett, 220 F.3d at 121 (citations omitted). Here, the ALJ

satisfied this standard. The ALJ reviewed the scant medical evidence of record,

acknowledging that Nelson had undergone back surgery on two occasions and that

claimant’s treating physician had opined that in 1996 Nelson “was able to sit, stand, walk,

do limited lifting, limited carrying,” and to “handle objects, hear, speak and travel.”

Additionally, the ALJ noted that the consultative examinations performed in 1998 and

1999 were unremarkable, revealing no significant findings. Because this medical

evidence was not only uncontradicted, but also consistent with the residual functional

capacity for sedentary work, we find no error by the ALJ.

       Nelson, however, contends that he was unable to perform sedentary work and that



                                              4
the ALJ erred because he failed to fully credit his testimony regarding his subjective

complaints. We disagree. By limiting Nelson to sedentary work, the ALJ accorded part

of Nelson’s testimony great weight. The ALJ explained at length the reasons for

discounting Nelson’s testimony that he was totally disabled and precluded from

performing even sedentary work, emphasizing the fact that Nelson’s claim that he was

severely limited was inconsistent with his decision to forego treatment for his disabling

condition for several years.

         In sum, we conclude that the Commissioner’s decision denying Nelson’s claim for

benefits is supported by substantial evidence. We will affirm the judgment of the District

Court.




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