Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-14-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2619




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                                                               NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT


                                     No. 04-2619


                                DOLORES HENRY,

                                               Appellant

                                          v.

                          JO ANNE B. BARNHART,
                     COMMISSIONER OF SOCIAL SECURITY


                     Appeal from the United States District Court
                       for the Eastern District of Pennsylvania
                        (D.C. Civil Action No. 02-cv-04701)
                      District Judge: Honorable Stewart Dalzell


                      Submitted Under Third Circuit LAR 34.1(a)
                                  March 10, 2005

          Before: SCIRICA, Chief Judge, ROTH and AMBRO, Circuit Judges

                            (Opinion filed: April 14, 2005)




                                      OPINION


AMBRO, Circuit Judge

      Dolores Henry appeals from the District Court’s entry of summary judgment in

favor of the Commissioner of Social Security (“Commissioner”). The District Court had
jurisdiction pursuant to 42 U.S.C. § 405(g), and we have appellate jurisdiction under 28

U.S.C. § 1291. For the reasons that follow, we conclude that the Commissioner’s

determination that Ms. Henry was not disabled within the meaning of the Social Security

Act is supported by substantial evidence, and thus affirm.


                                             I.

       Because we write solely for the benefit of the parties, we do not recite the facts

giving rise to this appeal. This Court’s standard of review is identical to that of the

District Court; we must determine whether there is substantial evidence to support the

Commissioner’s decision. Plummer v. Apfel, 

, 427 (3d Cir. 1999).

Substantial evidence means “such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.” Jesurum v. Sec’y of the U.S. Dep’t of Health &

Human Servs., 

, 117 (3d Cir. 1995) (quotation omitted). “It is less than a

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

reviewing claims for disability insurance benefits, an Administrative Law Judge

(“ALJ”) determines whether a claimant is disabled pursuant to a five-step test. See 20

C.F.R. § 404.1520. Here, only the fourth and fifth steps are in play, and we turn first to

the fifth step, as it is the focus of much of the briefing. At step five the Commissioner

has the burden to show that the claimant can perform other work that exists in substantial



                                              2
numbers in the national economy, and if that burden is met the claimant will be found not

disabled. See 20 C.F.R. §§ 404.1520(g); 

. The ALJ may

use the Medical-Vocational Guidelines (“Grids”) in making the step five determination.

Sykes v. Apfel, 

, 263 (3d Cir. 2000).

       With respect to this step, Ms. Henry argues that the ALJ’s finding 1 that she could

perform other work (and therefore was not disabled) is untenable because she has a

smaller occupational base than an individual of her age, education, and experience who

can perform the full range of sedentary work. Specifically, she points out that her

occupational base applying Rule 201.15 of the Grids—which the ALJ applied here—is

127, meaning there are no more than 127 unskilled and semiskilled occupations in the

Dictionary of Occupational Titles that such an individual could perform. She further

points out that under Rule 201.14—which when applicable requires a finding that the

claimant is disabled—would have an occupational base of 137. Thus, Ms. Henry’s

argument poses the following question: if one person has a smaller occupational base than

another person considered disabled under the regulations, how can the former be found

not disabled?

       This argument, however, incorrectly assumes that “occupations” instead of “jobs”

form the basis of the relevant analysis. As the District Court explained in its thorough




       1
       The ALJ’s decision became the final decision of the Commissioner under 20
C.F.R. § 404.984.

                                             3
and well-reasoned decision, Ms. Henry’s argument diverts attention from the relevant

issue at step five of the analysis, that is, whether “there is a significant number of jobs (in

one or more occupations) having requirements which [the claimant is] able to meet with

[her] physical or mental abilities and vocational qualifications.” 20 C.F.R. § 404.1566(b).

In addition, the vocational expert’s testimony—that Ms. Henry had the capacity to work

as a dispatcher and that there were a significant number of dispatcher jobs—remains

unchallenged. Moreover, it makes the ALJ’s decision supported by substantial evidence.2


                                              III.

       Second, Ms. Henry argues that in step four of the analysis the ALJ erred by failing

to consider adequately her mental impairment. In step four, the Commissioner examines

the claimant’s “residual functional capacity” and whether that capacity enables her to

perform her past relevant work. 20 C.F.R. § 404.1520(e). If so, the claimant is not

eligible for disability benefits. 

event, the claimant bears the burden of

demonstrating an inability to return to her past relevant work. Burnett v. Commissioner of

SSA, 

, 118 (3d Cir. 2000).




       2
        Ms. Henry’s additional arguments that the ALJ misapplied or misinterpreted the
Grids are unpersuasive, particularly as the ALJ’s actions comport with established
procedures in our Circuit. See, e.g., Sykes v. 

. Furthermore, Ms.
Henry argues that the ALJ’s decision violates equal protection because she “has not had
her claim adjudicated according to current law.” (Appellant’s Reply Br. at 12.) Because
we conclude that the ALJ’s determinations are supported by substantial evidence and not
contrary to current law, this argument too must fail.

                                               4
       Ms. Henry’s position is that she has a significant mental impairment, namely

depression and anxiety. The Commissioner responds—without challenge—that there is

no medical evidence of record that any of Ms. Henry’s treating physicians believed that

she suffered functional limitations as a result of either depression or anxiety prior to the

expiration of her insured status during the time period at issue. Furthermore, the ALJ

properly gave the letter of Dr. Andrew Nemeth—authored in a conclusory fashion several

years after the time period for which Ms. Henry seeks benefits—little weight. Added to

this, the record suggests that Ms. Henry is able to perform her regular activities of daily

living, which runs counter to her assertion. In light of the lack of evidence of record

supporting Ms. Henry on this point and in view of the burden on her under step four, we

cannot say that the ALJ failed to consider adequately Ms. Henry’s mental condition.

                                       *   *   *   *   *

       For the reasons discussed above, the ALJ’s decision was supported by substantial

evidence, and thus we affirm the judgment of the District Court.




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