NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

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No. 09-3366

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HENRY R. SCHMITS, 

 Appellant

v.

MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY

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On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 08-cv-01971)

District Judge: Honorable Dennis M. Cavanaugh

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Submitted Under Third Circuit LAR 34.1(a)

July 1, 2010

Before: SLOVITER, BARRY and HARDIMAN, Circuit Judges.

(Filed: July 2, 2010)

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OPINION OF THE COURT

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HARDIMAN, Circuit Judge.

Henry Schmits appeals the District Court’s summary judgment affirming the

decision of an Administrative Law Judge (ALJ) denying his claim for Social Security

Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI). We will

affirm.

I.

Because we write for the parties, we recount only the essential facts and procedural

history.

The Commissioner considers applications for DIB and SSI in a five-step process. 

See 20 C.F.R. §§ 404.1520, 416.920. Schmits’s application was denied at Step Five,

when the ALJ found he could perform work as a surveillance system monitor. See id.

§§ 404.1520(f), 416.920(a)(4)(v). Schmits timely sought review by the Appeals Council,

which declined to exercise jurisdiction, and then in the District Court, which affirmed. 

Although his claim was denied at Step Five of the ALJ’s analysis, Schmits claims the

ALJ erred at Steps Two, Three, Four and Five.

Like the District Court, we review the ALJ’s decision to determine whether it is

supported by substantial evidence, 42 U.S.C. § 405(g), which is “less than a

preponderance of the evidence but more than a mere scintilla.” Jesurum v. Sec’y of U.S.

Dep’t of Health and Human Servs., 48 F.3d 114, 117 (3d Cir. 1995) (citing Richardson v.

Perales, 402 U.S. 389, 401 (1971)).
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II.

At Step Two, the ALJ found Schmits had four “severe” impairments: lumbar and

right elbow impairments, anxiety disorder and social phobia. Schmits claims the ALJ

should have found additional physical and psychological impairments.

As for physical problems, Schmits claims the ALJ should have found him severely

impaired based on his complaints of pain in the right hand, right fingers and right knee as

well as his complaints of vision problems. The ALJ did not credit those complaints

because they were not established by medical evidence, including signs, symptoms and

laboratory findings; rather, they were purportedly established by symptoms alone, which

are insufficient. 20 C.F.R. §§ 404.1508, 416.908. Therefore, the ALJ found that those

injuries did not significantly limit Schmits’s physical ability to perform basic work

activities. 20 C.F.R. § 404.1521(a).

Schmits’s claims of right hand and right finger impairments are supported solely

by claims of pain and a statement in the medical record that “[m]aking a tight fist

exacerbates the pain.” But pain alone is insufficient to create a severe impairment. 

Social Security Ruling 96-3p (“Symptoms, such as pain, fatigue, shortness of breath,

weakness, or nervousness, will not be found to affect an individual’s ability to do basic

work activities unless the individual first establishes by objective medical evidence (i.e.,

signs and laboratory findings) that he or she has a medically determinable physical or
 Based on those medical facts, Dr. Sicherman concluded that Schmits would be 1

disabled for an indefinite time. But such determinations are reserved for the

Commissioner. 20 C.F.R. §§ 404.1527(e), 416.927(e).

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mental impairment(s) and that the impairment(s) could reasonably be expected to produce

the alleged symptom(s).”).

The only medical evidence supporting Schmits’s alleged right knee pain is Dr.

Sicherman’s diagnosis of post traumatic chondromalacia with associated pain and limited

motion. However, the only medical test conducted on the knee was an x-ray showing it 1

to be within normal limits. All of the remaining evidence in the medical notes, including

evidence of pain and limited motion, comes from Schmits’s subjective complaints. 

Without a medical basis for those complaints, the ALJ was not required to give them

great weight. Schaudeck v. Comm’r of Soc. Sec., 181 F.3d 429, 433 (3d Cir. 1999).

Schmits also argues that the ALJ did not properly weigh his complaints of vision

problems. But the ALJ’s conclusion is supported by substantial medical evidence

because the doctors concluded that Schmits’s vision was within normal limits and that he

did not have limited depth perception or field of vision.

Although consulting examiner Dr. Obrotka found Schmits suffered from

photophobia, State agency physician Dr. Spitz opined that Schmits’s photophobia could

be cured by tinted glasses. Schmits claims we must rely on Dr. Obrotka’s conclusion

because he treated Schmits, whereas Dr. Spitz did not. Although it is true that the opinion

of an examining physician is entitled to great weight, Dr. Obrotka never opined as to
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whether tinted glasses could help Schmits’s problem, so there is no conflict between his

assessment and that of Dr. Spitz. Therefore, the ALJ did not err in relying on Dr. Spitz’s

conclusion that tinted glasses could rectify Schmits’s photophobia. That leaves Schmits

without any medical basis for his claimed vision impairment, so the ALJ’s determination

was supported by substantial evidence. See Burns v. Barnhart, 312 F.3d 113, 129-30 (3d

Cir. 2002).

As for his psychological problems, Schmits claims the ALJ erred when the ALJ

found he did not suffer from agoraphobia. Agoraphobia is not mentioned anywhere in

Schmits’s medical records, however; it is only referenced once, in a letter to the ALJ from

Dr. Papowitz, Schmits’s treating psychologist. But that conclusory statement, without

any basis or explanation, is not sufficient to establish a severe impairment. Moreover, as

we shall explain, Dr. Papowitz rarely saw Schmits and did not have a basis to conclude

that he suffered from agoraphobia. Therefore, the ALJ’s conclusion that Schmits did not

suffer from agoraphobia is supported by substantial evidence.

III.

At Step Three, the ALJ found that none of Schmits’s impairments was medically

equivalent to any of the Listings. See 20 C.F.R. § Pt. 404, Subpt. P, App. 1. The ALJ

found that Schmits suffered from only mild limitations in his ability to engage in daily

living and to maintain concentration, persistence and pace. 20 C.F.R. §§ 404.1520a,

416.920a. The ALJ also found that Schmits suffered from only moderate limitations in
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his ability to maintain social functioning and did not suffer from repeated episodes of

decompensation. Id.

The ALJ explicitly rejected Dr. Papowitz’s assessment that Schmits suffered

“[e]xtreme” limitations in all of those functions as well as “[c]ontinual” episodes of

decompensation, all of which resulted in the “complete inability to function outside of

[Schmits’s] home.” If credited, those findings would have satisfied Listing 12.06. But

the ALJ rejected Dr. Papowitz’s opinion because it was not “well-supported by medically

acceptable clinical and laboratory diagnostic techniques.” 20 C.F.R. § 404.1527(d)(2).

Dr. Papowitz examined Schmits only twice a year for pain management and

admitted that his diagnosis was based solely on Schmits’s subjective complaints. 

Thirteen years of treatment translated into less than seven pages of notes and Dr.

Papowitz’s assessment was submitted without explanation on a check-the-box form. The

ALJ asked Dr. Papowitz to explain the basis of his conclusion and clarify the details of

the diagnosis, including when the extreme limitations started. But Dr. Papowitz’s written

response acknowledged that he could not articulate a medical basis for his conclusion,

saying he “hardly know[s] how to reply” because he sees Schmits “briefly twice a year to

prescribe medication” and “know[s] of his disability only from what he tells me.” 

Therefore, Dr. Papowitz’s conclusion was not supported by medically acceptable clinical

and laboratory diagnostic techniques, see 20 C.F.R. §§ 404.1527(d), 416.927(d)(3), and
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the ALJ did not err in rejecting Dr. Papowitz’s conclusion that Schmits was incapable of

any social interaction.

Having properly rejected the assessment from the only treating psychologist, the

ALJ was free to rely on the opinion of consultative psychologist Dr. Thimmaiah. After

meeting with Schmits, Dr. Thimmaiah concluded that Schmits was capable of relating to

others, was alert and oriented, and completed tasks that involved both concentration and

memory. Additionally, Schmits testified that he regularly went to the supermarket,

interacted with family members, and went out to a diner. Dr. Thimmaiah’s opinion and

Schmits’s activities constitute substantial evidence to support the ALJ’s conclusion that

Schmits’s social phobia did not meet the requirements of Listing 12.06.

Schmits also argues that the ALJ understated the severity of his lumbar and right

elbow impairments. The ALJ found that the right elbow impairment was not as severe as

any Listing and Schmits does not point to any contrary medical evidence. Although

Schmits cites medical evidence showing inflammation and difficulty extending his elbow,

those problems do not reach the severity of the Listings.

As for the lumbar impairment, the ALJ found it was not so severe as to preclude

work because it did not include significant sensory motor loss or diminished range of

motion. Schmits claims he suffered from nerve damage, which would constitute sensory

motor loss and thereby make the impairment more severe, possibly even precluding work

activity. But that claim is not supported by the medical evidence. Indeed, the only
 The ALJ also found that Schmits’s daily activities belie his claims of total 2

disability because he could still go grocery shopping, perform some chores in the garden

and home, drive a car, and travel by bus. Additionally, Schmits continued interacting

with family members and one friend. Because those findings are also supported by

substantial evidence, the ALJ did not err in concluding that Schmits’s subjective

complaints do not preclude him from working.

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reference to nerve damage is an MRI report listing “involvement of the right sided S1

nerve root,” not significant nerve damage. Therefore, the ALJ did not err in finding that

Schmits’s four impairments were not severe enough to meet the Listings.

IV.

At Step Four, the ALJ found Schmits had the residual functional capacity (RFC) to

“lift light objects and sit, stand and walk as needed but cannot engage in pushing and

pulling with the upper extremities or perform work involving frequent contact with

others.” Schmits claims the ALJ should have found more severe limitations. The ALJ’s

RFC determination, however, flows from the prior findings.2

The only limitation that requires analysis is the one pertaining to Schmits’s social

phobia—the inability to “perform work involving frequent contact with others.” There is

substantial evidence to support the conclusion that Schmits cannot frequently interact

with others face-to-face, yet he retains the ability to interact with others periodically. For

example, Schmits can still go to the grocery store, he just goes at off times and leaves

quickly. Furthermore, all of Schmits’s subjective complaints show that his social phobia

stems from being in the same room as other people at work, at parties, and at the grocery

store. There is no evidence that Schmits’s social phobia stems from contacting others
 The only exception is that Schmits does not argue that he suffered from an 3

impairment requiring, or that any of his impairments require, him to nap two and a half

hours a day. Nevertheless, he claims the ALJ erred by failing to rely on the VE’s

testimony that someone who needs to nap two and a half hours a day cannot perform any

jobs. Because that limitation is not in Schmits’s RFC, the ALJ did not need to consider it

at Step Five.

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over the telephone. Hence, there is substantial evidence that Schmits’s social phobia

causes moderate limitations that prevent him from engaging in extensive face-to-face

interaction with others.

V.

At Step Five, the ALJ heard testimony from a vocational expert (VE) and concluded that

Schmits could work as a surveillance system monitor. Schmits claims this conclusion

was not based on substantial evidence.

The ALJ relied on the VE’s opinion, in response to hypothetical questions, that

someone with Schmits’s impairments could work as a surveillance system monitor, as

outlined in Dictionary of Occupational Titles (DOT) Code 379.367-010. Schmits claims

the VE’s testimony cannot constitute substantial evidence because it did not “reflect all of

[the] claimant’s impairments that are supported by the record.” Ramirez v. Barnhart, 372

F.3d 546, 550 (3d Cir. 2004) (internal quotation marks and citation omitted). Nearly all

of the impairments he cites, however, were rejected at Step Two.3

For example, Schmits claims he suffers from agoraphobia, rendering him unable to

interact socially. The VE testified that someone who cannot have any social interaction

could not work and Schmits argues the ALJ should have based the Step Five
 The surveillance system monitor needs to talk and listen “[f]requently,” meaning 4

1/3 to 2/3 of the time. But much of that talking and listening occurs over the phone,

including calling police and other authorities to report disruptive activity. Because there

is no evidence in the record that Schmits is socially impaired when talking on the phone,

the hypothetical did not need to contain such interactions.

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determination on that response. But as we discussed previously, the ALJ did not err in

discrediting Schmits’s claim that he suffered from agoraphobia, so that limitation did not

need to be included in the hypothetical question to the VE.

Additionally, all of Schmits’s severe impairments—lumbar and right elbow

impairments, anxiety disorder and social phobia, as well as their attendant limitations, i.e.,

the ability to lift light objects, sit, stand and walk as needed, but not to push or pull with

the upper extremities and not to perform work involving frequent contact with

others—were part of the hypothetical posed to the VE. Considering all of those

impairments and limitations, the VE concluded that such a person could work as a

surveillance system monitor.

For example, the VE testified that one could work as a surveillance system monitor

if he could have “low contact with the general public and coworkers” and explained that

the job included no contact with the public as well as minimal contact with a supervisor. 

Schmits is socially impaired in face-to-face interactions. The ALJ relied on hypothetical

questions that contain all of the face-to-face interactions of a surveillance system

monitor. Therefore, those hypothetical questions constitute substantial evidence and the 4

ALJ did not err in relying on the VE’s responses to conclude that Schmits could work as a
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surveillance system monitor. See Rutherford v. Barnhart, 399 F.3d 546, 554-55 (3d Cir.

2005) (holding the hypothetical only needs to include the limitations that are supported by

the evidence, not all of the alleged but unsupported limitations).

Schmits also claims the ALJ erred by failing to resolve a conflict between the VE’s

testimony and the DOT. Rutherford, 399 F3.d at 557 (holding the ALJ has a duty to

inquire when the VE’s testimony conflicts with the DOT). The DOT provides that a

surveillance system monitor speaks and listens “[f]requently.” DOT Code 379.367-010. 

According to Schmits, this conflicts with the VE’s testimony that the job entails no

contact with the public and minimal contact with a supervisor and co-workers. He claims

the conflict is especially pronounced because his RFC precludes him from “perform[ing]

work involving frequent contact with others.” But as we explained previously, Schmits’s

RFC and the VE’s testimony reflect his limitations with face-to-face interaction. The

frequent talking and listening in the DOT, in contrast, is over the phone. Therefore, the

VE’s testimony did not conflict with the DOT and the ALJ did not err.

For the foregoing reasons we will affirm.