Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-23-2009

Phillip McQueen v. Comm Social Security
Precedential or Non-Precedential: Non-Precedential

Docket No. 08-2890




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                                                                NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT


                                      No. 08-2890


                                 PHILLIP McQUEEN

                                                Appellant

                                           v.

                     COMMISSIONER OF SOCIAL SECURITY



                      Appeal from the United States District Court
                              for the District of New Jersey
                          (D.C. Civil Action No. 07-CV-2092)
                      District Judge: Honorable William J. Martini


                      Submitted Under Third Circuit LAR 34.1(a)
                                   April 17, 2009


          Before: McKEE, SMITH, and VAN ANTWERPEN, Circuit Judges

                             (Opinion filed: April 23, 2009)



                              OPINION OF THE COURT


VAN ANTWERPEN, Circuit Judge

      Phillip McQueen appeals the District Court’s April 30, 2008 order affirming the

Commissioner of Social Security’s (“Commissioner”) denial of his claim for disability
insurance benefits under Title II of the Social Security Act. Because the Commissioner’s

decision to deny benefits was based on substantial evidence, we will affirm the District

Court’s decision upholding the denial of benefits.

                                              I.

       Because we write solely for the parties, we will address only those facts necessary

to our decision.

       Phillip McQueen is a sixty-one-year-old individual who worked as a school

teacher from 1997 until February 1, 2004. On December 8, 2004, McQueen filed a claim

for disability benefits on the basis of hypertension, diabetes, and an enlarged prostate,

which the Commissioner denied in June 2005. McQueen then sought reconsideration of

that denial based on lumbar disc disease and diabetes as well as depression and anxiety;

the Commissioner again denied his application. McQueen filed a timely request for de

novo review before an Administrative Law Judge (“ALJ”). On August 24, 2006, a

hearing took place before the ALJ, Michal Lissek, who concluded that McQueen was not

disabled and denied his application for disability benefits on November 17, 2006. In

reaching the decision that McQueen was not disabled, the ALJ found that, while

McQueen suffered from “a ‘severe’ impairment involving lower back pain, dysthymic

disorder, and anxiety disorder,” the evidence did “not disclose medical findings which

meet or equal in severity the clinical criteria of any impairment” as provided in the

relevant regulations. The ALJ concluded that McQueen had the residual functional

capacity to perform “the full range of light work,” including the work required of him in

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his former job as a school teacher.

       After the ALJ’s denial of his application for benefits, McQueen sought review

from the Appeals Council, which denied his request upon concluding that no grounds for

review existed. This denial by the Appeals Council constituted a final decision of the

Commissioner. See Matthews v. Apfel, 

, 592 (3d Cir. 2001) (“A claimant

who was unsuccessful in the administrative process may seek judicial review once there

is a final decision by the Commissioner of Social Security. If the Appeals Council denies

the request for review, the ALJ’s decision is the Commissioner’s final decision.”

(citations omitted)).

       On May 4, 2007, McQueen filed suit challenging the Commissioner’s final ruling

in the U.S. District Court for the District of New Jersey. 42 U.S.C. § 405(g). On April 30,

2008, the District Court affirmed the final decision of the Commissioner and dismissed

McQueen’s appeal. McQueen filed a timely notice of appeal on June 26, 2008.

                                            II.

       The District Court properly exercised jurisdiction pursuant to 42 U.S.C. § 405(g)

to review the Commissioner’s final decision. This Court has jurisdiction pursuant to 28

U.S.C. § 1291. This Court exercises plenary review over the District Court’s order and

reviews the Commissioner’s denial of benefits for substantial evidence. 42 U.S.C. §

405(g); McCrea v. Comm’r of Soc. Sec., 

, 359 (3d Cir. 2004). “‘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

                                             3
conclusion.’” Johnson v. Comm’r of Soc. Sec., 

, 200 (3d Cir. 2008) (quoting

Hartranft v. Apfel, 

, 360 (3d Cir. 1999)).

                                             III.

       The Social Security Administration has set forth a five-step process to determine if

a claimant is disabled. Those steps inquire whether the claimant “(1) is engaged in

substantial gainful activity; (2) suffers from an impairment or combination of

impairments that is ‘severe’; (3) suffers from an impairment or combination of

impairments that meets or equals a listed impairment; (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.” 

; accord 20 C.F.R. § 404.1520(a)(4). If the

claimant is determined to be not disabled at any point, the inquiry stops. 

step-one determination that McQueen had not engaged in substantial

gainful activity since February 1, 2004, the ALJ found that McQueen had a “severe”

impairment resulting from lower back pain, dysthymic disorder, and anxiety disorder at

step two of the disability analysis. At the next step, the ALJ concluded that McQueen’s

impairments did not reach the level of severity of those listed in the relevant regulations.

See 20 C.F.R. § 404, subpt. P. app. 1. At step four, the ALJ found that McQueen was not

disabled because he retained the residual functional capacity to perform his past relevant

work as a school teacher. McQueen challenges the ALJ’s analysis at steps two and four of

this process.

A.     Contradictory Findings at Steps Two and Four of the Administrative Decision

                                              4
       McQueen contends that the ALJ’s step-two finding that he had a “severe”

impairment involving lower back pain, dysthymic disorder, and anxiety disorder was

inconsistent with the subsequent determination that he had no significant nonexertional

limitations. Step two of the Commissioner’s disability analysis requires the ALJ to

determine whether the claimant suffers from an impairment that is “severe.” As the

District Court observed, this inquiry requires consideration of both exertional and

nonexertional limitations, with all limitations considered “holistically [to] determine

whether their combined effect is a severe impairment.” See 20 C.F.R. § 404.1569a

(describing exertional and nonexertional limitations).

       The ALJ properly performed step two of the disability analysis by considering the

collective effect of McQueen’s impairments. 20 C.F.R. § 404.1523 (“In determining

whether your physical or mental impairment or impairments are of a sufficient medical

severity that such impairment or impairments could be the basis of eligibility under the

law, we will consider the combined effect of all of your impairments without regard to

whether any such impairment, if considered separately, would be of sufficient severity.”).

Contrary to McQueen’s assertions, the ALJ did not “retreat” from a finding of three

distinct severe impairments. Although the ALJ concluded that, when considered together,

McQueen’s lower back pain, dysthymic disorder, and anxiety disorder constituted one

severe impairment, it went on to determine that the evidence did not show that McQueen

had any condition that reached the level of severity set forth in the regulations. The ALJ

specifically noted that evidence of McQueen’s lower back pain did not demonstrate the

                                              5
severity of listed impairments. With respect to McQueen’s mental status, the ALJ

concluded that his “mental impairment has not had any greater than a minimal or slight

impact on [his] ability to perform work-related activities and therefore, has not

constituted a ‘severe’ impairment within the meaning of the Social Security Act.”

       The ALJ’s determination that McQueen’s impairments were collectively severe

does not conflict with a later finding that McQueen’s nonexertional impairments were

insignificant. Indeed, the determination that McQueen’s nonexertional impairments were

insignificant was supported by substantial evidence. The ALJ considered the reports of

several doctors, none of whom reported that McQueen suffered from significant

nonexertional limitations.

       The ALJ’s conclusion that McQueen’s mental impairments were insignificant was

supported by substantial evidence, most notably the assessments of McQueen’s treating

psychiatrist, Dr. Cruickshank. In August 2005, Dr. Cruickshank reported that McQueen

was “fully oriented” and “[c]ooperative” but observed that he presented his history in a

“vague” manner. Dr. Cruickshank determined that McQueen exhibited an adjustment

disorder and an anxiety disorder but assessed his impairment as slight and declined to

prescribe any medication. In September 2005, Dr. Cruickshank noted that McQueen was

anxious and frustrated; he prescribed a sleep aid and, a month later, noted that McQueen’s

anxiety seemed to abate.

       Dr. Cruickshank’s evaluation was generally consistent with the subsequent

evaluations of two Disability Determination Services (“DDS”) doctors. In September

                                             6
2005, Dr. Gerard Figurelli evaluated McQueen’s mental impairment and determined that,

while “mildly anxious in mood,” he appeared cheerful and “manifested no mood

instability.” Figurelli determined that McQueen suffered from “Dysthymic Disorder, late

onset” and “Anxiety Disorder.” Figurelli concluded that he was unable to assess “the

nature and severity of the current medical conditions that [McQueen] reportedly

experiences” because of the lack of “background information regarding the nature of

[McQueen’s] history of emotional difficulties or the treatment.” Dr. Tan also evaluated

McQueen in September 2005 and concluded that McQueen’s impairments caused him to

suffer only mild restrictions on daily activities and mild difficulties in maintaining

concentration or social functioning. Dr. Tan disagreed with Dr. Figurelli’s assessment that

McQueen exhibited dysthymic disorder and noted that McQueen was not entirely

credible.

       These medical assessments, coupled with McQueen’s testimony, all support the

determination that McQueen’s nonphysical impairments are not severe. For example, in

the hearing before the ALJ, McQueen was unable to provide specific examples of how his

mental impairments affected him. He reported that he can perform household chores,

handle his own finances, use public transportation, and read and exercise for pleasure.

Accordingly, the ALJ’s assessment that McQueen did not suffer from a severe mental

impairment was supported by substantial evidence.

B.     Step Four Assessment

       McQueen also argues that the ALJ erred in finding that he could perform “the full

                                              7
range of light work” and that, therefore, he had the residual functional capacity to perform

his past relevant work as a school teacher. At step four of the disability analysis, the ALJ

must assess whether a claimant’s residual functional capacity enables him to engage in

past relevant work. This inquiry requires the ALJ to make findings as to the claimant’s

residual functional capacity, make findings as to the physical and mental demands of the

past relevant work, and determine whether the claimant has the capacity required to

perform the past relevant work. Burnett v. Comm’r of Soc. Sec., 

, 120 (3d

Cir. 2000). The ALJ determined that McQueen

       has had, at all material times, the residual functional capacity to perform
       work that involves lifting and carrying objects weighing up to 20 pounds;
       frequently lifting and carrying objects weighing up to 10 pounds; standing,
       walking, and sitting up to six hours in an eight-hour day; pushing and
       pulling arm and leg controls; and the full range of light work. The claimant
       has not had any significant non-exertional limitations.

See 20 C.F.R. § 404.1567(b) (detailing physical exertion requirements for jobs involving

“[l]ight work”). Based on this assessment, the ALJ concluded that McQueen had the

residual functional capacity to perform “his past relevant work of teacher as the job is

generally performed in the national economy.” To reach this conclusion, the ALJ

consulted the Department of Labor’s Dictionary of Occupational Titles, which classifies

the occupation of school teacher as light exertional work, to determine the demands of the

position of teacher. See 20 C.F.R. § 404.1560(b)(2).

       Although the ALJ did not provide an extensive analysis at stage four, his

explanation of McQueen’s residual functional capacity for light work and his



                                              8
determination, based on the Dictionary of Occupational Titles, that such a residual

functional capacity enabled McQueen to perform his past relevant work as a school

teacher, was supported by substantial evidence. As the District Court observed, the “ALJ

appears to have considered all of the evidence and to have given adequate reasons for

rejecting the evidence he rejected.” See 

(“In making a residual

functional capacity determination, the ALJ must consider all evidence before him.

Although the ALJ may weigh the credibility of the evidence, he must give some

indication of the evidence which he rejects and his reason(s) for discounting such

evidence.” (citation omitted)).

       In determining that McQueen’s residual functional capacity enabled McQueen to

engage in “the full range of light work,” the ALJ considered the reports of medical

professionals and McQueen’s subjective assessments of his condition. In doing so, the

ALJ credited the evaluations of DDS physicians over the evaluation of McQueen’s

treating physician, Dr. Magdy Elamir, and determined that McQueen’s assessments were

not credible.

       In September 2006, Dr. Elamir completed a report suggesting that McQueen’s pain

prevented him from engaging in light work. Dr. Elamir’s notes in this report are almost

entirely illegible, and his responses to several prompts, such as an inquiry as to the

maximum amount of weight the patient could lift infrequently, are also illegible.

Although the opinion of a treating physician generally is given controlling weight, this

controlling weight is only given when the opinion “is well-supported by medically

                                              9
acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the

other substantial evidence in [the] case record.” 20 C.F.R. § 404.1527(d)(2). The ALJ

noted that Dr. Elamir’s assessment was “not supported by any treatment notes nor

provided with any reasonable explanation, and overall, is inconsistent with the evidence

of record.” Based on the conclusory nature of Dr. Elamir’s diagnosis, the indecipherable

notes in Dr. Elamir’s report, and the lack of supporting explanations for Dr. Elamir’s

conclusions, the ALJ was entitled to give the diagnosis of McQueen’s treating physician

less weight and to credit the opinions of other doctors. See Plummer v. Apfel, 

, 429 (3d Cir. 1999) (“An ALJ may reject a treating physician’s opinion outright only

on the basis of contradictory medical evidence, but may afford a treating physician’s

opinion more or less weight depending upon the extent to which supporting explanations

are provided.” (citing Newhouse v. Heckler, 

, 286 (3d Cir. 1985)).

       As noted, the ALJ credited the reports of DDS physicians. For example, in April

2005, Dr. Franky Merlin of DDS evaluated McQueen. Dr. Merlin noted that McQueen

reported “intermittent” pain that was exacerbated by “sitting or standing too long” but

“relieved” by walking. Dr. Merlin determined that McQueen had lower back pain but

observed that he had “no difficulty getting up from a seated position,” that his “[g]rasping

strength and manipulative function were not impaired,” and that he could “flex his spine

forward 0 to 90 degrees, squat, and walk on his heels and toes.” Dr. Merlin determined

that McQueen “was able to sit, stand, walk, handle objects, hear, speak, and travel, but he

should not lift or carry heavy objects.” In September 2005, Dr. Marc Weber, another

                                             10
DDS physician, detected “tenderness at multiple levels of the lumbar spine” and

determined that McQueen had “chronic low back pain.” He noted that McQueen could

not perform a squat and experienced some “sensory deficit” in both feet. In October 2005,

Dr. Pirone of DDS prepared a residual functional capacity assessment in which he

determined that McQueen experienced “low back pain, which varies in intensity” and that

he could “[o]ccasionally” lift twenty pounds, “[f]requently” lift ten pounds, and sit for a

total of six hours in an eight-hour workday.

       In light of these evaluations, the ALJ also determined that McQueen’s subjective

assessments were not credible. An ALJ is permitted to determine that subjective

complaints of pain are inconsistent with the objective medical evidence and other

evidence on the record. 20 C.F.R. § 404.1529; see also 

(observing that ALJ must evaluate “the extent to which a claimant is accurately stating

the degree of pain or the extent to which he . . . is disabled by it”). McQueen himself

asserted that he could perform activities required by daily life, such as cooking and

cleaning, that he walks independently, and that he “enjoys exercising as his primary

leisure activity.”

       Further, the ALJ properly concluded that McQueen’s residual functional capacity

for light work allowed him to engage in his past relevant work as a school teacher. As

noted, to reach this decision, the ALJ relied on McQueen’s testimony about his job and

the characterization of the job of school teacher in the Dictionary of Occupational Titles

as involving light exertional work. 20 C.F.R. § 404.1560(b)(2). Because the findings that

                                               11
McQueen could engage in the full range of light work and that this residual functional

capacity enabled McQueen to return to his past relevant work of school teacher were

supported by substantial evidence, the ALJ properly determined that McQueen was not

disabled.

                                           IV.

       We have considered all other arguments made by the parties on appeal and

conclude that no further discussion is necessary. For the above reasons, we will affirm

the decision of the District Court.




                                         12