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


7-19-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3717




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                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                     No. 04-3717


                                 JAMES CREEGAN,
                                            Appellant

                                          v.

                     COMMISSIONER OF SOCIAL SECURITY


            APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF NEW JERSEY
                            D.C. Civil No. 01-cv-05944
                District Judge: The Honorable William J. Martini


                      Submitted Under Third Circuit LAR 34.1(a)
                                   July 1, 2005


               Before: ROTH, RENDELL, and BARRY, Circuit Judges


                            (Opinion Filed: July 19, 2005 )


                                      OPINION




BARRY, Circuit Judge

      This is an appeal by James Creegan from the District Court’s affirmance of the

Administrative Law Judge’s (“ALJ”) decision denying him disability benefits. Creegan
submits that, for various reasons, the ALJ’s decision was not based on substantial

evidence. We disagree, and will affirm.

         The parties are familiar with the facts of this case and the District Court has

already given careful attention to each of Creegan’s arguments. We will, therefore, limit

our discussion to those facts relevant to our decision. Creegan filed an application for

disability due to back impairments and depression.1 The ALJ determined that Creegan

failed to meet his burden at steps three and four of the requisite five-step procedure, and,

notwithstanding his back impairments,2 found that he could perform light work and that

significant jobs existed in the national economy.

         Creegan attacks the ALJ’s analysis at step three, arguing that she did not articulate

a basis for her finding that his impairments did not meet or equal the requirements of a

listed impairment. See 20 C.F.R. Part 404, Subpart P, Appendix 1. While not in so many

words citing Listing 1.04, the ALJ implicitly found that the medical evidence failed to

satisfy the criteria of that listing and explicitly found that the evidence established that



   1
       After surgery to correct a right heel spur, Creegan no longer experiences leg pain.
   2
    The ALJ found that, as of October 1998, Creegan’s depression was severe, but that
the single major depressive episode which occurred in that month did not last long
enough to satisfy the twelve-month durational requirement for a disability nor did it meet
or equal any of the listings. See 42 U.S.C. § 423(d)(1)(A); Barnhart v. Walton, 535 U.S.
212, 217-222 (2002). These findings are supported by the medical reports of his
examining doctors, Drs. Candela, Macchia, and Gorman, all of which indicated that his
depressive had improved. We do not suggest, nor did the ALJ, that Creegan did not at
one point suffer severe depression but, as the ALJ found, his depression “significantly
improved,” and quickly improved, with medication. A-23. .

                                                2
Creegan “has disorders of the back without disk herniation or spinal stenosis and which

has never required surgery.” A25. Moreover, Creegan, who had the burden at this stage,

does not point to any evidence in the record suggesting that his impairments met or

equaled any listings’ criteria. Accordingly, we reject his argument addressed to step

three.

         At step four, the ALJ found that Creegan’s residual functional capacity permitted

him to perform light work, i.e., he can lift twenty pounds and walk or stand six hours a

day. In support of this finding, the ALJ cited medical evidence provided by the VA

Medical Center and Dr. Sawicki that Creegan has full muscle and motor strength. The

ALJ also cited Dr. Shah’s report that, despite lumber flexion to only forty degrees and

extension to fifteen degrees, Creegan’s range of motion in his bilateral lower extremities

was “essentially within functional limits, and he was able to perform FABER test without

difficulty.” A21. Indeed, Creegan concedes that the ALJ spent two and one-half pages of

her opinion reciting the medical evidence to support the conclusion that he was able to

perform light work. But, says Creegan, she did not explain how the evidence she recited

led to that RFC. We find, without further discussion, that she did just that.

         As for Creegan’s complaint that the ALJ did not properly analyze his subjective

complaints, and particularly his complaints of pain, it is well established that an ALJ may

give more weight to particular evidence so long as he or she explains why. See Burnett v.

Commissioner, 220 F.3d 112, 121 (3d Cir. 2000). The ALJ found that while Creegan has



                                              3
impairments that could cause the pain alleged, any pain he experiences is not of such

intensity or frequency to preclude work, and the pain he alleges is neither consistent with

the objective medical evidence nor credible to the extent alleged. These conclusions were

well supported in the record because, as the ALJ found, Creegan does not take prescribed

pain medication, has never been required to undergo back surgery, and diagnostic testing

revealed no disk herniation or spinal stenosis. Moreover, Creegan’s testimony, which he

would now have us discount, established that any impairment he may have does not

disrupt his ability to perform various tasks. Dr. Mylod’s “conflicting evidence” was

discussed and rejected by the ALJ because this testimony was at odds with Creegan’s

testimony. The ALJ’s step four determination was supported by substantial evidence.

       The ALJ went on to find that Creegan’s impairments did not permit him to

continue working as a maintenance worker, delivery driver, or steel warehouse worker

because these jobs require heavy lifting. Thus, the burden shifted to the ALJ to determine

if Creegan was capable of performing jobs that correspond to his functional limitations at

step five of the sequential evaluation.3

       Creegan argues that the ALJ was not permitted to rely on the grids at step five




   3
    At step five, the ALJ must analyze if there are sufficient jobs in the national economy.
Before doing so, however, the ALJ must determine whether the claimant suffers from an
exertional impairment or both non-exertional and exertional impairments. See Sykes v.
Apfel, 228 F.3d 259, 266 (3d Cir. 2000). If the claimant only suffers from an exertional
impairment, the ALJ may rely on the grids; otherwise, he or she must call in a vocational
expert.

                                             4
because he suffers from a non-exertional impairment -- depression. This argument fails

because, as discussed above, Creegan’s single episode of major depression did not meet

the durational requirements of the Act and any depression did not impact his ability to

perform the full range of light work. As such, Creegan’s only impairments were

exertional and ALJ was permitted to rely on the grids.

       For the foregoing reasons, we will affirm the July 19, 2004 order of District Court.




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