Filed: May 27, 2004
Latest Update: Mar. 02, 2020
Summary: 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2004 Decisions States Court of Appeals for the Third Circuit 5-27-2004 McCrea v. Comm Social Security Precedential or Non-Precedential: Precedential Docket No. 03-3261 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "McCrea v.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
Summary: 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2004 Decisions States Court of Appeals for the Third Circuit 5-27-2004 McCrea v. Comm Social Security Precedential or Non-Precedential: Precedential Docket No. 03-3261 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "McCrea v.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 ..
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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Precedential or Non-Precedential: Precedential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
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
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
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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.
6
