Caruso v. Commissioner of Social Security ( 2004 )


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  •                                                                                                                            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    Precedential or Non-Precedential: Non-Precedential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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    http://digitalcommons.law.villanova.edu/thirdcircuit_2004/690
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    NOT PRECEDENTIAL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)).