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


7-20-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-4063




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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 04-4063


                               FRANK REMBERT, JR.,
                                           Appellant

                                           v.

                      COMMISSIONER OF SOCIAL SECURITY


             APPEAL FROM THE UNITED STATES DISTRICT COURT
                      FOR THE DISTRICT OF NEW JERSEY
                             D.C. Civil No. 02-cv-01394
                District Judge: The Honorable Dennis M. Cavanaugh


                      Submitted Under Third Circuit LAR 34.1(a)
                                   July 1, 2005


                Before: ROTH, RENDELL, and BARRY, Circuit Judges


                             (Opinion Filed: July 20, 2005)


                                       OPINION




BARRY, Circuit Judge

      This is an appeal by Frank Rembert (“Rembert”) from the District Court’s

affirmance of the decision of the Commissioner of Social Security denying him disability
benefits. The question before us is whether substantial evidence supports the

Commissioner’s final decision that Rembert’s disability ceased as of December 1, 1998.

We will affirm.

       We will limit our discussion to those facts pertinent to our disposition of the

appeal. In 1992, Rembert was found to be disabled “based upon a primary diagnosis of

major depression, and a secondary diagnosis of low back pain.” A26. A continuing

disability review decision, however, found that his disability had ceased as of December

1, 1998 and ordered that his benefits cease on February 28, 1999. Rembert appealed this

decision and subsequently appeared before an ALJ in an attempt to have those benefits

reinstated. The ALJ rejected Rembert’s request, finding that he no longer suffered from

depression,1 his drug addiction was in remission, and that his back and neck impairments,

while still severe, did not prevent him from performing light work.

       Rembert argues to us that: (1) the ALJ did not explain why his back and neck

impairments did not meet or equal any of the Listing of Impairments, 20 C.F.R. Part 404,

Subpart P, Appendix 1; (2) the ALJ did not explain why he was capable of performing

light work; (3) the ALJ did not discuss his subjective complaints; and (4) the ALJ




   1
     Indeed, the ALJ observed that Rembert received no medical treatment for depression
in the ten years preceding the cessation proceedings, but began treatment once the
cessation proceedings commenced. He also found it significant that there was no
evidence that Rembert’s back condition had worsened since the comparison point
decision date of April 11, 1992 and that treatment for his back condition was non-existent
until recently. A30.

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impermissibly relied on the grids at step five of the analysis.

       We first address Rembert’s argument that the ALJ did not compare his back and

neck impairments to any of the listings. Relying on Burnett v. Commissioner of Social

Security Administration, 

(3d Cir. 2000), Rembert maintains that the ALJ’s

failure to explicitly state which listing he used as a comparison requires us to vacate the

decision. In Burnett, the ALJ’s “analysis” consisted of the following statement:

“Although [Burnett] has established that she suffers from a severe musculoskeletal

[impairment], said impairment failed to equal the level of severity of any disabling

condition contained in [the 

. The Burnett Court found this

bare conclusion inadequate because it prevented meaningful review. After all, we said,

an ALJ has a duty not only to fully develop the record, but to “explain his findings at step

three, including an analysis of whether and why [a claimant’s impairments] are or are not

equivalent in severity to one of the listed impairments.” 

       The ALJ did not explicitly focus on any one listed impairment.2 Nonetheless, as

the District Court explained, the ALJ, after finding that Rembert did not have an

impairment or combination of impairments that met or equaled the criteria of any listed

impairment, reviewed, analyzed, and relied on the medical evidence and Rembert’s



   2
   The government argues that the ALJ compared, albeit not explicitly, Rembert’s
impairments to the factors provided by Listing 1.00 for impairments of the
musculoskeletal system. We need not decide whether that is so, although it certainly
appears that the ALJ considered the requirements of Listing 1.00 prior to concluding that
Rembert’s impairments were not of Listing severity.

                                              3
testimony to support his conclusion that Rembert’s impairments did not meet any of the

listed impairments. That was sufficient.

       Next, Rembert argues that the ALJ violated the Cotter doctrine at step four by

failing to “recite all probative evidence and explain which entries were persuasive, which

weren’t and why.” Brief at 12. According to Rembert, the ALJ merely engaged “in a

blanket recitation of the evidence followed by an announcement of appellant’s RFC.” 

he argues, the ALJ did not provide an adequate explanation for why he is capable

of performing light work.

       We disagree. The ALJ found that Rembert’s “severe” impairments prevented him

from performing his past job as a truck driver because “he would have to pull himself up

to the driver’s seat.” A30. The ALJ then analyzed the evidence, afforded Dr. Bradley’s

assessment that Rembert was doing “exceedingly well with his back,” A29, “controlling

weight” because he was the treating orthopedic physician and because his report

conformed more closely to the other evidence, and concluded that Rembert was capable

of performing light work.

       This conclusion is confirmed by an independent review of the record. In

particular, a residual functional capacity assessment performed in July 1999 indicated that

Rembert was capable of lifting 50 pounds occasionally, 25 pounds frequently, and

standing or walking for six hours in an eight-hour work day. Further, Dr. Vekhnis, the

state’s medical consultant who examined Rembert, reported that he had a “benign



                                            4
orthopedic examination” with a full range of lumbar motion, and had little difficulty

squatting or walking on his tiptoes. A29. Consequently, substantial evidence supported

the ALJ’s finding that Rembert can perform light work.

       Rembert also argues that the ALJ did not address his subjective complaints of pain

in the course of making a determination of his residual functional capacity and in the

course of determining whether his pain in and of itself satisfied the requisite threshold for

a disability determination. This argument is without merit. The ALJ discussed Rembert’s

complaints of pain, but discounted those complaints given that Dr. Bradley’s progress

reports showed that Rembert’s pain had subsided. A29.

       Finally, Rembert argues that the ALJ impermissibly relied on the “grids” at step

five because he has a significant non-exertional impairment --namely, an ability to only

perform “routine and repetitive” tasks. Brief at 21. This argument, too, is without merit

because no evidence suggests that Rembert is only capable of performing routine tasks.

       For the foregoing reasons, the District Court’s order of August 19, 2004 will be

affirmed.




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