Fearbry v. Comm Social Security , 79 F. App'x 535 ( 2003 )

Opinions of the United
2003 Decisions States Court of Appeals
for the Third Circuit
11-3-2003
Fearbry v. Comm Social Security
Precedential or Non-Precedential: Non-Precedential
Docket No. 03-1774
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"Fearbry v. Comm Social Security" (2003). 2003 Decisions. Paper 148.
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NOT PRECEDENTIAL
IN THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 03-1774
________________
WALTER W. FEARBRY, II
Appellant
v.
*JO ANNE B. BARNHART,
COMM ISSIONER OF SOCIAL SECURITY
*(Pursuant to Rule 43 (c) F.R.A.P.)
____________________________________
On Appeal From the United States District Court
For the Western District of Pennsylvania
(D.C. No. 01-cv-0006)
District Judge: Honorable Maurice B. Cohill, Jr.
_______________________________________
Submitted Under Third Circuit LAR 34.1(a)
October 24, 2003
Before: ALITO, FUENTES and BECKER, Circuit Judges.
(Filed November 3, 2003)
_______________________
OPINION
_______________________
BECKER, Circuit Judge.
Plaintiff Walter W. Fearbry, II appeals from the grant of summary judgment in
favor of the Commissioner of Social Security affirming her decision (which affirmed the
decision of the Administrative Law Judge (“ALJ”)) denying Fearbry’s claim for
supplemental security income (“SSI”) under Title XVI of the Social Security Act, 42
U.S.C. §§ 1381-1383f. The Commissioner decided that Fearbry had the residual
functional capacity to perform a limited range of unskilled sedentary work with a sit/stand
option, including the representative jobs identified by the vocational expert: parking lot or
amusement ticket taker, self-service gas station cashier, and security monitor attendant.
Because we believe that this decision is supported by substantial evidence, we affirm.
Fearbry’s claim essentially has two components. The first is
orthopedic/neurological, relative to chronic back problems. There is no doubt that
Fearbry has had serious back problems, alleviated though not cured by disc surgery, and
that he cannot perform more than sedentary work. However, substantial evidence
supports the conclusion of the ALJ that Fearbry could perform sedentary work. We refer
primarily to an impressive (and intensive – 5 3/4 hour) vocational evaluation, supported
by testing, done by John Musgrave of the Vocational Therapy Department of the
Veteran’s Administration facility in Pittsburgh. We also rely upon the medical records
showing Fearbry’s work capacity, not only those of Dr. Tarter and Dr. Milke, but also
those of his treating physician Dr. Vicki March.
Dr. March’s opinion that Fearbry could not maintain sedentary work because he
was in too much pain was not supported by her physical findings. In contrast, the actual
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testing of Fearbry’s capability showed that he could do sedentary work, as Mr. Musgrave
concluded. Moreover, under Section 3 of the Social Security Disability Insurance
Benefits Reform Act a claimant’s allegations of pain or other symptoms are not
conclusive evidence of disability; rather the claimant must have a medically determinable
and documented impairment that could reasonably be expected to produce the pain or
other symptoms alleged. 42 U.S.C. § 423(d)(5)(A). In accordance therewith the
Commissioner must evaluate pain and other subjective complaints on the basis of medical
signs and findings that could reasonably be expected to produce the subjective symptoms
alleged. 20 C.F.R. § 416.929; Green v. Schweiker, 749 F.2d 1066, 1071 (3d Cir. 1984).
While a claimant’s subjective symptomatology must be considered and can support a
finding of disability, the claimant’s subjective complaints, without more, do not in
themselves constitute disability. 20 C.F.R. § 416.912; Green, 749 F.2d at 1071.
Fearbry’s contention that he cannot perform sedentary work is arguably supported
by his psychiatric problem – depression, for which he takes medication which he claims
causes him to fall asleep so that he could not do sedentary work. However, the medical
records show that the depression improved, with the use of Zoloft. The ALJ rejected
Fearbry’s testimony, finding him not credible because he had not made any such
complaint to his treating physicians. This is an adequate ground for decision.
We have considered Fearbry’s other contentions, including that the ALJ did not
consider the relevant medical reports, but find them lacking in merit. Since our review of
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the evidence shows that there was substantial evidence to support the determination that
Fearbry can perform sedentary work with non-exertional limitations, the judgment of the
District Court will be affirmed.
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TO THE CLERK:
Please file the foregoing opinion.
/s/ Edward R. Becker
Circuit Judge
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