Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


5-30-2003

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Precedential or Non-Precedential: Non-Precedential

Docket 02-3507




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Recommended Citation
"Rowan v. Comm Social Security" (2003). 2003 Decisions. Paper 519.
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                                                                 NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 02-3507


                                BRANDON L. ROWAN,
                                          Appellant

                                            v.

                            JO ANNE B. BARNHART,
                      COMM ISSIONER OF SOCIAL SECURITY


                      Appeal from the United States District Court
                        for the Western District of Pennsylvania
                              (D.C. Civil No. 01-cv-01680)
                      District Judge: Honorable Gary L. Lancaster


                       Submitted Under Third Circuit LAR 34.1(a)
                                    May 13, 2003

              Before: RENDELL, SMITH and ALDISERT, Circuit Judges.

                                 (Filed: May 30, 2003 )


                              OPINION OF THE COURT


RENDELL, Circuit Judge.

      This case involves a claim for supplemental security income (SSI) under Title XVI

of the Social Security Act. Brandon L. Rowan, the Appellant, petitioned the District

Court to overturn the denial of her application for SSI. Upon consideration of cross-
motions for summary judgment, the District Court granted the motion of the

Commissioner of the Social Security Administration ("Commissioner"). Rowan now

appeals. The District Court had jurisdiction under 42 U.S.C. 405(g) (2002). We have

jurisdiction under 28 U.S.C. § 1291 (2002). We will affirm.

       We review de novo the District Court's order, but will reverse the grant of

summary judgment to the Commissioner only if we conclude that the ALJ's findings were

not supported by “substantial evidence.” Podedworny v. Harris, 

, 217 (3d

Cir.1984); 42 U.S.C. § 405(g). Substantial evidence is “such relevant evidence as a

reasonable mind might accept as adequate.” Ventura v. Shalala, 

, 901 (3d

Cir.1995) (quoting Richardson v. Perales, 

, 401 (1971)). It is “less than a

preponderance of the evidence but more than a mere scintilla.” Jesurum v. Secretary of

the United States Dep't of Health & Human Servs., 

, 117 (3d Cir.1995). In

determining whether substantial evidence exists, “we are not permitted to weigh the

evidence or substitute our own conclusions for that of the fact-finder,” the ALJ. Burns v.

Barnhart, 

, 118 (3d Cir. 2002) (citing Williams v. Sullivan, 

,

1182 (3d Cir.1992)).

       In order to qualify for SSI, a person must be “disabled” under the Social Security

Act and the accompanying regulations. Under Title XVI, the Act defines disability as

“the inability to engage in any substantial gainful activity by reason of any medically

determinable physical or mental impairment which can be expected to result in death or



                                             2
which has lasted or can be expected to last for a continuous period of not less than 12

months.” 42 U.S.C. § 1382c(a)(3)(A) (2002). In determining whether a claimant

qualifies for SSI, the Social Security Administration applies a five-step test. 20 C.F.R. §

416.920 (2002). At step one, the claimant must show that he is not currently engaging in

“substantial gainful activity,” 20 C.F.R. § 416.920(b), as defined in the regulations. See

20 C.F.R. § 220.141 (2002). At step two, the claimant must show that he suffers from a

“severe impairment.” 20 C.F.R. § 416.920(C). If the claimant fails to make the proper

showing at either steps one or two, he will be denied benefits. At step three, a claimant

may attempt to demonstrate that his disability meets or equals an impairment listed in

Appendix 1 to Subpart P of Part 404 (“Listing of Impairments”). 20 C.F.R. § 416.920(d).

If the impairment meets or equals a listed impairment (hereafter referred to as “Listing”),

the claimant is considered disabled and the evaluation process ends. Plummer v. Apfel,

, 428 (3d Cir.1999). If, however, the claimant's impairments do not satisfy

step three, the process continues to step four. At step four, the claimant must demonstrate

that he does not have sufficient residual functional capacity to perform his past relevant

work. 20 C.F.R. § 416.920(e). Residual functional capacity is “what [he] can still do

despite his limitations.” 20 C.F.R. § 416.945(a). If the claimant fails to make the

necessary showing at step four, he will be denied benefits. If he satisfies step four, the

inquiry moves to step five. At step five, the burden shifts to the Commissioner to show

that the claimant can perform “other work.” 20 C.F.R. § 416.920(f). “Other work” must



                                              3
consist of jobs that exist in significant numbers in the national economy that the claimant

can perform given his age, education, past work experience, and residual functional

capacity. 

. See generally 

. At the

fourth and fifth steps, the ALJ often seeks advisory testimony from a vocational expert.

eligibility for SSI due to mental health problems. After his claim

was denied, he appealed to an Administrative Law Judge (ALJ). At the time of his

hearing before the ALJ, Rowan was 19. At the hearing, the ALJ heard testimony from

Rowan, Rowan’s mother, and a vocational expert, Dr. William Reed.

       The ALJ denied Rowan’s appeal. At step one of the evaluation process, the ALJ

found that Rowan was not engaged in substantial gainful activity. At step two, the ALJ

found that Rowan had the following severe impairments: fetal alcohol syndrome, post-

traumatic stress disorder, attention deficit hyperactivity disorder, type II bipolar disorder,

developmental receptive language disorder, and developmental coordination disorder. At

step three of the evaluation process, the ALJ also found that Rowan did not meet or equal

any of the mental health listings. Specifically, the ALJ found that, “[w]hile the diagnoses

of bipolar disorder, type II, ADHD, PTSD, and fetal alcohol syndrome satisfy the “A”

criteria for Listings 12.04 (regarding affective disorders) and 12.06 (regarding anxiety

related disorders),” Rowan did not meet the “B” Criteria for either listing. M oving on to

step four, the ALJ found that Rowan had no exertional limitations, but did have



                                               4
“significant non-exertional limitations stemming from mental impairments.” As such, the

ALJ determined that Rowan’s residual functional capacity allowed Rowan to perform the

full-range of physical work, but he must “avoid work requiring any sustained

concentration or detailed work, . . . avoid multi-tasking . . . , [and] must work in a low

stress, stable environment, not conducive to change with no excessive production

demands, no judgment requirements, and no decision making.” At step five, the ALJ

adopted the vocational expert’s determination that Rowan could work as a hand packer

(medium and light work), and a vehicle washer and equipment cleaner (medium and light

work), and a non-construction laborer (light work). The VE testified that over 1.2 million

of these jobs existed nationally.

       On appeal, Rowan makes three arguments. We will address them in turn. First, he

argues that “the findings by the ALJ that [he] is not under a psychiatric disability are not

supported by substantial evidence.” We assume that by this argument Rowan means that

substantial evidence does not support the ALJ’s finding that Rowan’s severe impairments,

considered individually or as a whole, did not meet or equal any of the Listings for mental

health impairments, and, as a result, the ALJ should have found Rowan disabled at step

three of the evaluation process.

       Rowan fails to direct us toward any Listing in support of his argument; thus, we

will look at the two Listings considered by the ALJ: Listings 12.04 and 12.06. Listing

12.04 is entitled “Affective Disorders.” 20 CFR Pt. 404, Subpt. P, App. 1, § 12.04. The



                                              5
impairments that qualify as “affective disorders” are “[c]haracterized by a disturbance of

mood, accompanied by a full or partial manic or depressive syndrome. Mood refers to a

prolonged emotion that colors the whole psychic life; it generally involves either

depression or elation.” To meet Listing 12.04, Rowan must show that he suffers from an

“affective disorder” that meets “[t]he required level of severity for these disorders

[which] is met when the requirements in both A and B are satisfied, or when the

requirements in C are satisfied.” 

is entitled “anxiety related disorders.”

20 CFR Pt. 404, Subpt. P, App. 1, § 12.06. “In these disorders anxiety is either the

predominant disturbance or it is experienced if the individual attempts to master

symptoms; for example, confronting the dreaded object or situation in a phobic disorder

or resisting the obsessions or compulsions in obsessive compulsive disorders.” 

Listing 12.06, Rowan must show that he suffers from an “anxiety related disorder”

that meets “[t]he required level of severity for these disorders [which] is met when the

requirements in both A and B are satisfied, or when the requirements in both A and C are

satisfied.” For both listings, the ALJ determined that Rowan suffered from a disorder that

satisfied part “A,” but not part “B.” Under both Listings, part “B” has the same

requirements. The ALJ did not address part “C” of either Listing and Rowan does not

argue on appeal that he satisfies part “C.” As a result, whether the ALJ erred depends on

whether substantial evidence supports the ALJ’s finding that Rowan does not satisfy part

“B.”



                                              6
       Part “B” requires that the affective disorder or anxiety related disorder that

satisfies part “A” results “in at least two of the following:”

              1. Marked restriction of activities of daily living; or
              2. Marked difficulties in maintaining social functioning; or
              3. Marked difficulties in maintaining concentration, persistence, or pace; or
              4. Repeated episodes of decompensation, each of extended duration[.]

20 CFR Pt. 404, Subpt. P, App. 1, §§ 12.04, 12.06. In her written decision, the ALJ

articulated her findings as to each prong of part “B” in some detail; it is only necessary

for our purposes, however, to recite her ultimate conclusions. As for the first prong, the

ALJ determined that Rowan’s “degree of limitation” was “slight.” As for the second

prong, the ALJ determined that Rowan’s “degree of limitation” was “moderate.” As for

the third prong, the ALJ determined that Rowan’s “degree of limitation” was “often.” As

for the fourth prong, the ALJ determined that Rowan’s “degree of limitation” was

“never.” The ALJ also determined that “no treating physician has mentioned findings

equivalent in severity to the criteria of any listed impairment.” Additionally, the ALJ

concluded that, taking into account the severity of all of Rowan’s severe and non-severe

impairments, no evidence in the record “cause[s] limitation of a severity equal to that

described by any listed impairment.”

       Rowan argues that the ALJ failed to consider his problems in their totality. He

contends that, if the ALJ had, she would have found that he qualified for SSI. The ALJ

noted that there was evidence in the record that, at the time of the hearing, Rowan worked

as a volunteer with the fire department once a week, worked at “Lowe’s” part-time while


                                               7
attending school, took martial arts classes weekly, went camping, hiking, and swimming,

assisted around the home, and was capable of taking care of his own hygiene and

grooming. The ALJ also noted that there was evidence that Rowan got along well with

others, especially his teachers and people in their twenties and thirties, had been assessed

to have moderate difficulty in social and occupational functioning, pays attention in

school, and did his homework. On the other hand, there was evidence that Rowan needed

supervision when carrying out instructions, including when doing his chores around the

home and when shopping, could not maintain a residence independently, had great

difficulty in all facets of social functioning, especially with people his own age, had

impaired concentration, had difficulty organizing tasks, “acted up,” acted unpredictably,

sometimes ran away from home, was placed in special education classes at school, was

often “on edge,” and sometimes acted violently. Further, Mrs. Rowan testified that her

son was incapable of working.

       Clearly, there is evidence supporting both a finding that Rowan is not disabled and

a finding that he is disabled. In line with our standard of review, however, we are only

concerned with whether there was substantial evidence supporting the ALJ’s finding that

Rowan was not disabled at step three in the evaluation process. We find that there was

“such relevant evidence as a reasonable mind might accept as adequate” supporting the

ALJ’s determination, 

(citation omitted), and, therefore, find that

substantial evidence supported the determination.



                                              8
       Rowan’s second argument on appeal is that “the ALJ’s findings that [his]

testimony regarding his impairments is not entirely credible is not supported by

substantial evidence.” The ALJ concluded that “to the extent that [Rowan] alleges being

totally precluded from work-related activities, these subjective complaints regarding the

severity of limitations caused by the claimant’s impairments are considered not fully

credible.” There is no requirement that the ALJ defer to Rowan’s testimony as to his

ability to work, as long as the ALJ makes clear that she gave Rowan’ subjective views of

his limitations “serious consideration,” Mason v. Shalala, 

, 1067 (3d

Cir.1993), and made specific findings of fact as to his credibility. 

(3d Cir. 2002). Here, the ALJ satisfied these requirements and, as evident from the

evidence in the record noted above, substantial evidence supports the finding that Rowan

was not totally disabled. Moreover, we disagree with Rowan’s contention that the ALJ

ignored Mrs. Rowan’s testimony regarding her son’s impairments. The ALJ’s references

Mrs. Rowan’s testimony in various parts of the decision and clearly took it into

consideration.

       Third and finally, Rowan argues that “the ALJ’s findings that [he] possesses the

residual functional capacity to perform work at any exertional level is not supported by

substantial evidence.” As noted above, the ALJ found that Rowan could perform the full

range of exertional levels, but that he must “avoid work requiring any sustained

concentration or detailed work, . . . avoid multi-tasking . . . , [and] must work in a low



                                              9
stress, stable environment, not conducive to change with no excessive production

demands, no judgment requirements, and no decision making.” Rowan, however,

provides no evidence that he is incapable of performing the full-range of exertional

activities. Moreover, he does not even challenge the ALJ’s findings as to his non-

exertional limitations. Basically, Rowan argues that his mental health problems prevent

him from performing any substantial gainful activity and that the ALJ ignored the

evidence supporting this argument. We reject this contention. As we noted, there is

substantial evidence in the record to support the ALJ’s conclusion that Rowan can

perform the full range of exertional work.

       Accordingly, we will affirm the order of the District Court.

_________________________




                                             10
TO THE CLERK OF COURT:

    Please file the foregoing not precedential opinion.




                                              /s/ Marjorie O. Rendell
                                              Circuit Judge




                                         11