Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-30-2008

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Precedential or Non-Precedential: Non-Precedential

Docket No. 07-2457




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                                                            NOT PRECEDENTIAL

                    UNITED STATES COURT OF APPEALS
                         FOR THE THIRD CIRCUIT

                                  ___________

                                  NO. 07-2457
                                  ___________

                                MINA MENKES,

                                                       Appellant

                                         v.

                           MICHAEL J. ASTRUE,
                         Commissioner Social Security
                   ____________________________________

                 On Appeal From the United States District Court
                    For the Eastern District of Pennsylvania
                           (D.C. Civ. No. 05-cv-02092 )
                 District Judge: Honorable James Knoll Gardner
                  ____________________________________

                   Submitted Under Third Circuit LAR 34.1(a)
                              December 20, 2007

             Before: McKEE, SMITH and CHAGARES, Circuit Judges

                        (Opinion filed: January 30, 2008)


                                  ___________

                                   OPINION
                                  ___________

PER CURIAM

    Mina Menkes appeals pro se from an order of the United States District Court for
the Eastern District of Pennsylvania denying her motion for summary judgment and

granting the Commissioner of Social Security’s motion for summary judgment in this

disability insurance benefits action. We will affirm.

                                              I.

       Because the facts are familiar to the parties and are thoroughly set forth in the

Administrative Law Judge’s (“ALJ”) Decision and the Magistrate Judge’s Report, we will

provide only a brief summary of the events leading up to this appeal. In January 2003,

Menkes protectively filed for Social Security disability insurance benefits under the

Social Security Act, claiming that she was disabled due primarily to head injuries

sustained in an automobile accident on September 24, 2001. The Social Security

Administration denied her application on June 23, 2003. At Menkes’s request, an ALJ

held a hearing on the denial, at which Menkes and a vocational expert testified. The ALJ

also reviewed objective medical evidence and the opinions of several physicians. Based

on this evidence, the ALJ determined that Menkes “suffered from traumatic brain

dysfunction with headaches, which are considered severe impairments.” The ALJ

concluded, though, that while Menkes was unable to continue her past relevant work as a

clerical worker, child care worker, or school bus driver, and while she had moderate

restrictions in “concentration, persistence, and pace,” she retained the residual functional

capacity to perform simple routine jobs that exist in significant numbers in the national

and regional economy. Consequently, by decision dated July 9, 2004, the ALJ denied

Menkes’s claim for benefits. The Appeals Council denied Menkes’s request for review,

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rendering the ALJ’s decision the final decision of the Commissioner. See 20 C.F.R.

§ 416.1481.

       Menkes, represented by counsel, filed a civil action in the United States District

Court for the Eastern District of Pennsylvania, seeking judicial review of the

Commissioner’s final decision. Both parties moved for summary judgment. The District

Court adopted the Magistrate Judge’s Report and Recommendation, denied Menkes’s

motion, and granted the Commissioner’s motion. Menkes appealed pro se.

                                             II.

       We have appellate jurisdiction under 42 U.S.C. § 405(g) and 28 U.S.C. § 1291.

Our role is identical to that of the District Court. We will uphold the ALJ’s findings if

they are supported by substantial evidence. See 42 U.S.C. § 405(g); Burns v. Barnhart,

, 118 (3d Cir.2002). Substantial evidence “does not mean a large or

considerable amount of evidence, but rather such relevant evidence as a reasonable mind

might accept as adequate to support a conclusion.” Hartranft v. Apfel, 

, 360

(3d Cir. 1999), citing Pierce v. Underwood, 

(1988).

       Menkes’s primary contentions on appeal are that the ALJ and the Magistrate Judge

exaggerated the importance of certain facts and that the ALJ erroneously ruled that she

retained the physical and mental capacity to perform simple, routine work. After

thoroughly reviewing the administrative record (including Menkes’s medical records), we

agree with the Magistrate Judge’s reasoning and conclusion that substantial evidence

supports the ALJ’s ruling that Menkes can perform certain simple routine work despite

                                             3
her physical impairment. The ALJ correctly considered all of the medical evidence,

Menkes’s subjective testimony, and the testimony of the vocational expert, in determining

that she was not disabled during the period between September 24, 2001 and June 30,

2003, and thus, she was not entitled to benefits under Title II of the Social Security Act,

42 U.S.C. §§ 401-433.

                                             III.

       Menkes claims that, in determining her residual functional capacity, the ALJ

attributed far too much weight to the fact that Menkes continued to take computer courses

after her injuries and received A’s and B’s. She says that she had to minimize her course-

load after the accident by switching from credit to “audit” status in some of the computer

courses. Menkes explains that she received A’s and B’s because she either had read the

book before or had a working knowledge of the course content prior to the accident. The

ALJ’s decision shows that he based his determination of Menkes’s residual functional

capacity on all of the evidence, not just her ability to attend, and perform well in, a few

computer classes. He found that her treating and evaluating physicians consistently

referred to her impairment as mild or moderate, that the objective testing was

unremarkable, and that her neuropsychological exam was normal. Menkes testified that

she could perform her own activities of daily living (including cooking), although it was a

struggle to do so, and that she could also shop at least once a week. The ALJ also noted

that the record indicated that Menkes had been able to take care of her mother when her

mother fell ill for a short period after Menkes’s accident. Thus, contrary to Menkes’s

                                              4
belief that the ALJ denied her disability benefits because “a person taking two hours of

class twice a week” constitutes “substantial gainful activity,” his decision draws no such

conclusion, nor does it lend too much significance to Menkes’s computer course-work.

       Menkes also complains that the ALJ erred in deciding that she was not disabled

based on the vocational expert’s answer to the ALJ’s question regarding her ability to

perform simple routine tasks. The term “simple routine tasks,” in the context of the

disability proceedings, generally refers to the non-exertional or mental aspects of work.

For example, performing a “simple routine task” typically involves low stress level work

that does not require maintaining sustained concentration. The ALJ asked the vocational

expert a hypothetical question that took into account Menkes’s vocational background in

skilled and semi-skilled work and the lack of any physical exertional impairment. Having

previously acknowledged that Menkes suffered moderate limitations in concentration,

persistence and pace, the ALJ also accounted for these mental limitations in the

hypothetical question by restricting the type of work to “simple routine tasks.” He asked

the vocational expert, “Would the limitation to simple routine tasks preclude this

hypothetical individual from performing the skilled and semi-skilled work that Ms.

Menkes has done in the past,” to which the vocational expert relied, “Yes.” The ALJ then

focused on how the limitation to simple routine tasks would preclude a person like

Menkes from finding unskilled jobs available in the national and regional economy by

asking “Would a limitation to simple routine tasks have any effect on the unskilled

occupational base?” The vocational expert replied, “No.” We find no error in the

                                             5
hypothetical question or in the ALJ’s conclusion, using Medical-Vocational Guidelines as

a framework, that simple, routine, unskilled jobs existed that Menkes could perform.

                                            IV.

       We have considered all of Menkes’s arguments on appeal and conclude that they

are unavailing. For the reasons stated, we will affirm the order of the District Court.




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