McCrea v. Comm Social Security

• Court: Court of Appeals for the Third Circuit
• Decided: May 27, 2004
• Docket: 03-3261
• Status: Published

Opinion

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

5-27-2004

McCrea v. Comm Social Security Precedential or Non-Precedential: Precedential

Docket No. 03-3261

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Recommended Citation "McCrea v. Comm Social Security" (2004). 2004 Decisions. Paper 637. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/637

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. PRECEDENTIAL Abraham S. Alter (ARGUED) Langton & Alter UNITED STATES COURT 2096 St. Georges Avenue OF APPEALS P.O. Box 1798 FOR THE THIRD CIRCUIT Rahway, NJ 07065 Counsel for Appellant

No. 03-3261 Anthony J. LaBruna, Jr. Office of the U.S. Attorney 970 Broad Street, Room 700 SHIRLEY McCREA, Newark, NJ 07102 Appellant Stephen P. Conte (ARGUED) v. Social Security Administration Office of General Counsel - Region II COMMISSIONER OF 26 Federal Plaza, Suite 3904 SOCIAL SECURITY New York, NY 10278 Counsel for Appellee

Appeal from the United States District Court for the District of New Jersey (D.C. Civil No. 02-cv-00562) OPINION OF THE COURT District Judge: Honorable William G. Bassler LAY, Circuit Judge. Argued April 15, 2004 Shirley McCrea appeals from an order of the district court affirming the Before: RENDELL, STAPLETON final decision of the Commissioner of and LAY*, Circuit Judges. Social Security denying her application for disability benefits under Titles II and XVI (Filed May 27, 2004) of the Social Security Act (the “Act”), 42 U.S.C. §§ 401 et seq. Jurisdiction in the district court was proper by virtue of 42 U.S.C. §§ 405(g), 1383(c)(3), and our jurisdiction is conferred by 28 U.S.C. § 1291. For the reasons that follow, we *Honorable Donald P. Lay, Senior Circuit reverse the district court’s order and Judge for the Eighth Circuit, sitting by remand the matter to the Commissioner for designation. further proceedings. I. B ACKGROUND orthopedic surgeon. Dr. Mylod concluded that based upon his review of her medical McCrea is a fifty-two-year-old file, McCrea suffered from two small native of Jamaica with prior relevant work herniated discs in her lumbosacral region history as a nurses’ aide. On April 8, at L4-L5 and L5-S1. In Dr. Mylod’s 1997, she filed an application for disability opinion, these herniations not only insurance benefits and supplemental substantiated her complaints of lower back security income payments, alleging an pain, but also potentially accounted for her inability to work since February 15, 1995, complaints of leg pain. Regarding due to constant pain in her neck, lower McCrea’s complaints of neck pain and back, and spine, as well as frequent headaches, Dr. Mylod acknowledged that headaches. Her application was denied an MRI of her cervical spine showed no both initially and on reconsideration. At abnormalities. He nevertheless opined that McCrea’s request, a hearing was held it was possible that “some of these before an administrative law judge headaches could be from a cervical strain (“ALJ”) on January 7, 1999. which we just haven’t seen.” Tr. at 46.1 At the hearing, McCrea testified in As a more likely potential source for her further detail regarding her condition. She headaches, Dr. M ylod identified an MRI stated that the onset of her pain coincided of what he believed to be McCrea’s brain,2 with an automobile accident on February the results of which were consistent with a 15, 1995. McCrea testified that since the prior trauma. accident, she suffered from constant On June 25, 1999, the ALJ rendered stiffness in her neck, making it difficult for a decision denying McCrea’s application her to turn her head from side to side. She for benefits. The ALJ determined that believed that these neck injuries were the after considering all of the evidence, source of her constant headaches, which in including the opinions of several turn compromised her concentration and physicians and McCrea’s records of memory. McCrea also testified that treatment, McCrea failed to demonstrate following the accident, she experienced that she suffered from an impairment or lower back pain that not only made it combination of impairments that was difficult for her to bend, but also radiated “severe” within the meaning of the Act. into her legs, causing stiffness and impairing her ability to stand and walk. Finally, McCrea testified to suffering from 1 continuous shoulder pain as a result of the “Tr.” refers to the transcript of the accident. administrative record in this matter. 2 Also testifying at the hearing was a The MRI on which Dr. Mylod relied non-examining physician, Albert G. was that of the brain of an individual Mylod, Jr., M.D., a board-certified named Maria Roman. In his decision, the ALJ noted this error.

2 After McCrea’s request for review by the is disabled within the meaning of the Act, Appeals Council was denied, the decision and therefore eligible for benefits, the of the ALJ became the final ruling of the Commissioner applie s a five -step Commissioner. sequential evaluation process. This court has on several prior occasions set forth Having exhausted her each step in detail, see, e.g., Newell, 347 administrative remedies, McCrea filed a F.3d at 545-46; although repetitious, we complaint in the United States District briefly mention these steps as well. The Court for the District of New Jersey, Commissioner inquires, in turn, whether seeking review of the Commissioner’s an applicant: (1) is engaged in substantial denial of benefits. On June 12, 2003, the gainful activity; (2) suffers from an district court issued an opinion affirming impairment or combination of impairments the Commissioner’s decision, finding that that is “severe”; (3) suffers from an it was supported by substantial evidence. impairment or combination of impairments Accordingly, the district court entered an that meets or equals a listed impairment; order dismissing McCrea’s action. (4) is able to perform his or her past relevant work; and (5) is able to perform work existing in significant numbers in the national economy. See 20 C.F.R. §§ II. A NALYSIS 404.1520(a)-(f), 416.920(a)-(f).3 While we exercise plenary review over the district court’s order of dismissal, We now focus our attention on step we review the Commissioner’s denial of two, the point at which the ALJ denied benefits to determine whether it is McCrea’s application for benefits. In supported by substantial evidence on the language directed toward applicants rather record as a whole. See Newell v. Comm’r than adjudicators, step two informs that of Soc. Sec., 347 F.3d 541, 549 (3d Cir. If you do not have any 2003) (citing Podedworny v. Harris, 745 impairment or combination F.2d 210, 221-22 (3d Cir. 1984)); see also of impa irmen ts wh ich Universal Camera Corp. v. NLRB, 340 significantly limits your U.S. 474, 488 (1951). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate 3 Although they are governed by separate to support a conclusion.” Newell, 347 regulatory schemes, applications for F.3d at 545 (quotation and citation disab ility insuranc e benefits and omitted). Although substantial evidence is supplemental security income are more than a mere scintilla, it need not rise processed using an identical five-step to the level of a preponderance. Id. sequential analysis. See McDonald v. In determining whether an applicant Sec’y of Health & Human Res., 795 F.2d 1118, 1120 n.1 (1st Cir. 1986).

3 physical or mental evaluation process should continue.”). ability to do basic Any doubt as to whether this showing has work activities, we been made is to be resolved in favor of the [the Social Security applicant. Newell, 347 F.3d at 546-47. In Administration] will short, “[t]he step-two inquiry is a de find that you do not minimis screening device to dispose of have a severe groundless claims.” Id. at 546; accord impairment and are, McDonald, 795 F.2d at 1123. therefore, not Due to this limited function, the disabled. Commissioner’s determination to deny an applicant’s request for benefits at step two should be reviewed with close scrutiny. 20 C.F.R. §§ 404.1520(c), 416.920(c); see We do not suggest, however, that a also id. §§ 404.1521(a), 416.921(a) (“An reviewing court should apply a more impairment or combination of impairments stringent standard of review in these cases. is not severe if it does not significantly The Commissioner’s denial at step two, limit your physical or mental ability to do like one made at any other step in the b a s i c w o r k a c t i v it i e s. ” ). The sequential analysis, is to be upheld if Commissioner’s regulations define “basic supported by substantial evidence on the work activities” to include, inter alia, record as a whole. See Williams v. “[p]hysical functions such as walking, Sullivan, 970 F.2d 1178, 1182 (3d Cir. standing, sitting, lifting, pushing, pulling, 1992) (“Neither the district court nor this reaching, carrying, or handling.” Id. court is empowered to weigh the evidence §§ 404.1521(b)(1), 416.921(b)(1). or substitute its conclusions for those of The burden placed on an applicant the fact-finder.”). Instead, we express only at step two is not an exacting one. the common-sense position that because Although the regulatory language speaks step two is to be rarely utilized as basis for in terms of “severity,” the Commissioner the denial of benefits, see SSR 85-28, has clarified that an applicant need only 1995 WL 56856, at *4 (“Great care should demonstrate something beyond “a slight be exercised in applying the not severe abnormality or a combination of slight impairment concept.”), its invocation is abnormalities which would have no more certain to raise a judicial eyebrow. than a minimal effect on an individual’s With these legal principles in mind, ability to work.” SSR 85-28, 1985 WL we must decid e w hethe r the 56856, at *3; see also Newell, 347 F.3d at Com missioner’s determination that 546 (“If the evidence presented by the McCrea failed to pass step two’s de claimant presents more than a ‘slight minimis threshold is supported by abnormality,’ the step-two requirement of substantial evidence. Our review of the ‘severe’ is met, and the sequential record convinces us that it is not.

4 First, and p e rh a p s most pain in her lower back and neck, Dr. signific an tly, McCrea’s statements Sananman administered steroid injections regarding the nature and extent of her pain into McCrea’s lumbosacral and cervical were supported by objective medical spine on several occasions between June evidence. See 20 C.F.R. §§ 404.1529(b), 13, 1995 and November 11, 1997. As Dr. 416.929(b); see also Hartranft v. Apfel, Sananman noted in one of his reports, 181 F.3d 358, 362 (3d Cir. 1999). Her “[e]ach of these injections was given to a complaints of constant lower back pain painful trigger point which was the focus were corroborated by MRI testing of her of severe, persistent muscle spasm.” Tr. at lumbosacral spine performed on June 22, 370 (emphasis added). Dr. Sananman also 1995, at the request of her treating directed McCrea to use a “lumbosacral neurologist, Michael L. Sananman, M.D. brace and cervical collar as necessary for As Dr. Mylod testified at the hearing, these [her] pain.” Id. at 368. tests demonstrated the presence of two Finally, McCrea’s statements herniated discs which, due to their regarding the limiting nature of her positioning, also “presumably explain[ed]” impairments were supported by the McCrea’s leg pain. Tr. at 45. X-ray opinion of her treating physician, Dr. testing performed on November 5, 1997, Sananman. See 20 C .F.R . revealed a possible left shoulder §§ 404.1527(d)(2), 416.927(d)(2); see also separation, thereby supporting McCrea’s Morales v. Apfel, 225 F.3d 310, 317 (3d claim of shoulder pain. Finally, x-ray Cir. 2000). In a report dated December 17, testing of McCrea’s cervical spine 1996, addressed to state medical performed on this same date revealed that examiners, Dr. Sananman opined that she was suffering from mild left torticollis, “[b]ecause of her back and neck pain, a condition caused by the contraction of [McCrea] is not able to sit for more than neck muscles whereby “the head is drawn two hours a day, and she is not able to to one side and usually rotated so that the carry objects of more than twenty pounds chin points to the other side.” S TEDMAN’S at any time and of objects of ten pounds M EDICAL D ICTIONARY 1847 (27th ed. more than two hours a day.” Tr. at 232-33. 2000). This testing clearly substantiated McCrea’s complaints of neck pain and While acknowledging each of the frequent headaches. foregoing pieces of evidence in his denial of benefits, the ALJ minimized their Second, the nature of McCrea’s import. Regarding the x-ray and MRI treatment history further establishes that examinations demonstrating the legitimacy her impairments had more than a minimal of McCrea’s impairments, the ALJ impact on her ability to do basic work emphasized that the test results revealed a c ti v i t ie s . See 20 C.F .R. §§ 404.1529(c)(3)(i)-(vii), 416.929(c)(3)(i)-(vii). To alleviate the

5 only “small” or “mild” abnormalities.4 As entirety, see Universal Camera Corp., 340 to McCrea’s treatment history, the ALJ U.S. at 488 (“The substantiality of pointed out that her complaints of pain evidence must take into account whatever were most commonly met with directions in the record fairly detracts from its to take non-steroidal anti-inflammatory weight.”), no reasonable person could fail medications such as Naprosyn, Advil, and to conclude that M cCrea’s physical Motrin. Finally, the ALJ refused to attach conditions were “severe” under the de any significant weight to Dr. Sananman’s minimis interpretation of that term opinion, reasoning that such a drastic currently endorsed by the Commissioner. limita t i o n on McC rea’ s physical functioning was inconsistent with the medical evidence and conservative treatment strategies detailed in the record. III. C ONCLUSION We need not concern ourselves with Based on the foregoing, we hold this reasoning at length. Although the that McCrea’s application for disability observations made by the ALJ may or may benefits does not fall within the category not be relevant in later steps of the of “groundless claims” that step two of the sequential analysis, see, e.g., 20 C.F.R. Commissioner’s five-step sequential §§ 404.1520(d)-(f), 416.920(d)-(f), they evaluation process was designed to remove certainly do not carry the day at step two. from consideration. Newell, 347 F.3d at We believe that viewing the record in its 546. Therefore, the order of the district court will be REVERSED and the cause REMANDED with instructions to remand 4 Also relevant in this regard is the the matter to the Commissioner for further following colloquy between the ALJ and proceedings consistent with this opinion. Dr. Mylod that took place during the hearing:

ALJ:Doctor, excuse me, if you don’t mind. The herniated disks, so I can put that aside, are they small --

ME [Dr. Mylod]: There’s a [sic] small herniated disks, but one on each side.

Tr. at 46.