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w . v i l l a no v a . e du/thir dc ir c uit_2004/447NOT PRECED ENTIAL UNITED S TATES COUR T OF APPEAL S FOR THE THIRD CIRCUIT

No. 03-3323

VALERIE

E. GRAND ILLO, Appellant

v.

JOANNE B. BARN HART, Commissioner of S ocial Security

On Appeal from the United States Distri ct Court for the Western District of Pennsylvania (Dist. Court C ivil No. 02-cv-00775 ) District Judge: Honorable William L. Standish

Submitted Under Third Circuit LAR 34.1(a)

June 24, 2004

Before: NYGAARD , MCKEEand CHERTOFF , Circuit Judges

.

(Filed J uly 30, 2004)1 Grandillo’s summary judgement submission to the Distr ict Court implied that she was alleging a somewhat broa der disability, including symptoms of depression. Grandillo d id not base h er application f or disability insurance ben efits and social sec urity income on her treatm

ent for depression. As such, to the extent that Grandillo’s appeal depends o n the ALJ’s f ailure to consid er those symptoms, her appeal must fail. 2 OPINI ON

CHERTOFF , Circuit

Judge

. Valeri e E. Grandillo appea ls from the Dist rict Cour t’s judgm ent affir ming the Commissioner of Social Security ’s denial of her application for disability insurance benefits and supplemental security income. Grandillo challenges the Administrat ive Law Judge’s (“A LJ”) determination th at her subjec tive complaints of pain were n ot entirely credible, as well as th e weight the A LJ afford ed to certain ev idence and testimony. Grandillo also challenges the ALJ’sdeterminati on that the Commissi oner had met her burden of establishing Grandill o’s capa city for other wor

k, given her

impai rment s, pain, function al restrictions, age, ed ucation, and work exp erience. See 20 C.F.R . § 404.1 520. For the reason s stated below, w e will affirm the District C ourt’s jud gment. I. Grandillo was born on March 1, 1956. She obtained a general equivalence degree (“GED”) an d has past wo rk experien ce as a nurse’s aide an d home health aid e. Grandillo filed for disability

benefits on or about June 22, 1999, alleging disability since November 12, 199 8 due to lack of movement in h er right wrist and shoulder an d osteoarthritis. 12 Grandillo is rep resented on a ppeal. The G overnment con tends that we sh ould

not con side r sev eral o f Gr and illo ’s arg umen ts be caus e the y were n ot mad e in t he sa me fashion b efore the D istrict Court. Bu t we will liberally construe Gr andillo’s pro se submissions. See Dluhos v. Strasberg , 321 F.3d 365, 369 (3d Cir. 2003). 3 Grand ill o’s a pplic ati on was denie d both initi ally and upon rec onsidera

tion. The ALJ conducted a first hearing on June 15, 2000 and concluded, without the aid of a vocational expert (“VE ”), that there were n umerous job s that Grandillo could perf orm. The App eals Council rev ersed and remand ed because th e ALJ had n ot adduced the testimony of a VE. After a secon d hearing o n July 13, 2001 —at which a V E testified—th e ALJ again rendered a d ecision conclu ding that G randillo was n ot entitled to b enefits. On April 11, 2002, th e Appeals Co uncil denied Grandillo’s req uest to review th e ALJ’s decision

. Subsequentl

y, Grandill o, acting pro se , sought j udicial review o f the adver se decision in th e United States D istrict Court fo r the Western District o f Pennsylvania pursuant to 42 U.S.C . § 405(g ). On July 14, 200 3, the Hon orable William L. Stand ish adopted the

report of Ma

gistra te Judge Fr

ancis X. Caiazz a recom

mending t

hat the Distri ct Court gr

ant the Com

miss ioner’smotion for

summary judgment a

nd deny Grandill o’s cros s-mot

ion for sum

mary judgment. This tim

ely appeal followed. 2 II. The Distr ict Court exerci sed juris diction pur suant to 42 U. S.C. § 405(g), and appellate jurisd iction is vested in this Court u nder 28 U .S.C. § 12 91. The ro le of this Court is iden tical to that of th e District Court; w e must determine whethe r there is substantial evid ence to supp ort the Commissioner’s d ecision. Plummer v. Apfel , 1864

F.3d 42 2, 427 (3 d Cir. 199 9). Substan tial evidence means “‘su ch relevant ev idence as a reasonable mind m

ight accept as adequate t

o support a conclusion.’” Jesurum v. Sec’y of the U.S. Dep ’t of Health & H uman Servs. , 48 F.3d 114, 117 (3d Ci r. 1995) (quot

ing Richardson v. Perales , 402 U.S. 389, 401 ( 1971)). “I t is le ss than a

prepondera

nce of the evidence but more than a m ere scintill a.” Id. Overall, the substantia l evidence standard is a deferential stan dard of re view. Schaudeck v. Comm’ r of Soc. Sec . Admin. , 181 F.3d 429, 43 1 (3d Cir. 1 999). The Social

Securit y Adm inistr ation haspromulga

ted a five -step evaluati on process to deter mine whether an individu al is disabled. See 20 C.F.R . § 404.1 520; see generally Plummer , 186 F.3d at 428. In step one , the Com miss ioner dec ides whet

her the claim ant is currentl

y e ngaging in subs tantia

l gainful a

ctivit y. If so, the

claim ant is not eligible for disability

benefits. 20 C.F.R. § 404.1520(a). In step two, the Commissi oner determ ines whet

her the c laimant is s uffering from a sever e impa irme nt. If the impai rment is not “s evere, ” the cl aima nt is not eligible

for disability

benefits . 20 C.F.R. § 404.1520(c). In step three, the Commi ssioner evaluates whether the evidence establishes that the claimant su ffers fro m a listed impairment. If so, the claimant is automatically eligible for benefits. If the cla imant does not suffer from a li sted impai rment or its equivalent , however, the Comm issione r procee ds to the next step. 20 C.F.R. § 404.1520( d). In st ep four, the

Commi ssioner

reviewswhether t

he claimant retains the “r

esidual functional

capacity ” to perfor

m his pa st relevant work. If so, the5

claimant i s not eligible for disability benefits. 20 C.F.R. § 404.1520(e). Finally, in step five the Com

miss ioner cons iders whe

ther work exists in signific ant numbe rs in the national economy

that the claim

ant can perform given his me dical impair ments, age, education, p ast work exp erience, and “resid ual functio nal capacity.” If so, the claimant is not eligi ble for benefits. 20 C. F.R. § 404.1520(f) . In thisfinal st ep, “the burden of production s hifts to t

he Comm issione r, who mus t demons trate

the cla imant is capa ble of performing other available work in order to deny a claim of disability .” Plummer , 186 F.3d at 428.

An AL J may r eject

a clai m of disabli ng pain where “he [has ] consi der[ed] t he subjective pai n and specif [ied] hi s reasons for rej ecti ng these cl aims and [has] support[ ed] his concl usion with medical evi dence in the record. ” Matullo v. Bowen , 926 F.2d 240, 245 (3d Cir. 1990). Further, while thi s Court has a cknowledged that “great er weight should be gi ven to the findings of a tre ating phy sici an than t o a phys icia n who has examined the c laimant

as a consul tant . . . [ ,] a s tate ment by a plaint iff' s tre ating phy sici an that s he is ' disabl ed' or

'unabl e to work' is not

disposi tive. ” Ad orno v. Sh alala , 40 F.3d 43, 47-48 ( 3d Cir. 1994) . Rather , “the ALJ must weigh the re lati ve worth of a treati ng physi cian' s report

against the repor

ts submi tted by

other phy sici ans who have examined the cl aimant. ” Id. at 48; see also Jones v. Sulli van , 954 F.2d 125, 129 (3d Cir. 1991) (concludi ng ALJ correctl y det ermined opi nions of t reati ng physi cians were not controlling).3 Appellant’s B r. at 17. 6

The issues on appeal arise fro m the ALJ’s gener al determination of credibility, his weighing of eviden ce, and his dete rmination at step fiv e. III. Grandill o raise s three

criti cism s of the ALJ’ s review of the evidence: (1) that the ALJ erred w hen he dete rmined that her subjective complaints o f pain wer e not entirely credible; (2) t

hat the ALJ

erred by “impr operly substit uting his own opinion for that of medical experts, [an d] improperly gave [ sic] no con sideration to [ her] strugg le with reflex sympathetic dystrophy;” 3 and (3) tha t the ALJ fa

iled to t ake into a ccount the adverse side-effects of Grandillo’ s medi cation. As alre ady

observed, an ALJ is fr

ee to re ject cl aimsof disabling pain as l ong as he “conside r[s] the s ubjective

pain and specif[ies ] his rea sons for re jecting t hese cl aimsand support[s] his conclusion with medical evidence in the record.” Matullo , 926 F.2d at 245. That isprecis ely

what occur

red here . It isclear

from the ALJ’s ext

ensive discussi on of Gra

ndill o’s a pplic ati on, he

r te sti mony , and h er m

edic al hi stor

y that the AL J considered all of the evidence—including her allegat ions of pain—and determined that her pain did not rise to the sev erity that she claimed. Notably , the ALJ di d not entir ely dismi ss Grandillo’s c laim s of pain. I nstead, the ALJ partially

rejected Grandillo’s chara cterizati on of the severity of her pain because,

amo ng othe

r things, s he had

not be en specifi cal ly

tre ate d for pa

in for the pr eviou s two7

yea rs , h ad re ce iv ed me di ca ti on fo r m us cl e s pa sm s a nd ha d “ le ss th an ex em pl ar y” compliance with p hysical therapy. A.R. at 19-20. In deed, the reco rd discloses that in November , 1999, Grandillo told he r occupat ional the rapist that she had done 17(!) loads of laund ry in one day, and that “loosen ed” her stiff wrist, A.R. at 32 3, which w as a principal area o f her pain c omplaints. There w as substantial evid ence in the reco rd to support the

conclusi on that Gra

ndillo’spain was not

so sever e as to pr event her from performing su bstantial employment. Grandill o also cont

ends that the ALJ er

red by failing t o afford appropr

iate weight to the testim

ony of Dr. Alcoff, her treating physician, a nd to her “struggle with reflex sym pathetic dy strophy.”An ALJ should afford more weight to a treating physi cian than a non-treating physician. Adorno , 4 0 F .3 d a t 4 7- 48 . B ut in or de r t o d is ch ar ge hi s d ut y, an ALJ mus t also “ weigh the r elative worth of a t

reating phys ician' s report against the reports submitted by other phy sicians who have examined the cl aimant.” Id. at 48. The ALJ’s extensiv e review of the evidence here makes clear that the h e afford ed approp riate weight to th e testimony and opinion of the medical ex perts and to G randillo’s “strug gle with reflex sy

mpathe tic dy strophy .” In par

ticula r, the ALJ

explaine d that the

treat ing physician’s conclusion s were “incon sistent with his o wn clinical fin dings.” A.R . at 22. Our review of the clinical f indings su pports this d etermination. See A.R. at 296-98. We also agr ee with t he Distr ict Court that the ALJ was ent

itled not to give wei ght to the finding of reflex sympathetic dystrophy because it was contradicted b y other findings in8

the record. See A.R. at 310, 312. Third, Gran dillo conten ds that the AL J failed to take in to account th e adverse side-effects o f Grandillo ’s medication. But, as th e government o bserves, the reco rd is devoid of any

evidence that Gra ndillo re ported the se adver se side -effect s to her t reating physicians or that those p hysicians adjusted the d osage or na ture of her medication to control fo r poor toleratio n. The mere fact th at Grandillo w as taking medication known to induc e adve

rse side -effects in som

e small perc enta ge of pa tients di d not r

equir e the ALJ to assume Grandillo actually experienced tho se side effects. The only evidence in the r ecord supporting Grandillo’s claim that she suffered adverse side-effects from her medicati on were her own conclusory stat ements to that effect on a

survey she filled out to obta

in the benefits she

now seeks. A.R. at 168- 69, 180. Even if such conclusory statements alone were s ufficient to undermine the ALJ’s determinati on—which they are not—the only side-effects she reportsare tiredness a nd an inability to “think clearly and conc entrate” due to Vicodan, see A.R. at 168- 69; and periodic ulcer s due to Celeb rex. See A.R. at 180. Of these, only the fati gue and interference w ith thoug ht could reaso nably be perceived as af fecting her ability to work. But Grandillo’s own te stim ony s uggests t

hat she t ook Vicodan for jus t a short period of time following her

initia l wrist injury . A.R. at

69. That being so, any

side-effects s he may have experienced from taking Vicodan would not have affected her ability to work in the long term.9

In sum, Grandill o has not ci ted to any medic al evide

nce dem onstrat ing that s he suffered adverse side effects from her medicati on. Further, her own conclusory statements would n ot establish a suf ficient ong oing strug gle with any side-eff ects to undermine the ALJ’s determ ination. The ALJ’s failure to take into ac count the sideeffects of Grandillo’s medicatio n was not erro r. IV. Finally , Grandillo challenges the ALJ’s det ermination at s tep five. She asserts t hat it is not sufficient for the Comm issioner to establi sh that jobs exist in the national economy that she might perfo rm. Rather, Grand illo cites Kattesv. Califa no , 496 F. Supp. 3 85, 388 (E.D. Pa. 19 80), for th e propositio n that the Co mmissioner must also show that G randillo wo uld be able to “compete for” th ose jobs. To be sure, Kattes did state that the Comm issioner must m

ake some showing that “there exists a reason able possibility that the impaired w age earner can co mpete with other work ers for the jo bs for wh ich he is qualif ied.” 496 F . Supp. at 3 88. But Kattes cited a s authority

this Court ’s deci sion in Baker v. Gardner , 362 F.2d 864, 868-69 ( 3d Cir. 1966 ). Baker

is a far cry from mandating a sho wing that th e applicant be able to “compete with oth er workers f or the job s for which he is qualified .” At any rate, in 1967, C ongress amende d 42 U.S .C. § 423 to add sub section (d)(2) (A), which state s: An indiv idual shall be d etermined to be un der a disability only if his physical or mental impairment or impairments are of su ch severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial10

gainful work which exists in the national economy , regardless of whether such work exists in the imm ediate area in which he lives, or whether a specific job vacancy

exists for him, or whether he would be hired if he applied fo r work

. (emphasis added). This l anguage stemme d the tide of cases reading into the Social Security Act a requirement that the applicant be unable to com pete with other workers for the jo bs for wh ich he is qualif ied. See Orzel v. Finch , 445 F.2 d 150, 1 53 & n.2 (7 th Cir. 1971 ). It is clear, therefore, th at Kattes cited Baker without appreciating that the law had chang ed in the interim. Ob viously, we are not bo und by the district cou rt opinion in Kattes in any

event. I n light of clear st

atutory language, we will not

saddle t he Commissioner wit

h making a showing that the applicant is unable to com pete with other workers for

the jobs for whi ch a he isqualified. IV. For the fore going reas ons, the or der of the Di strict Court will be affir med.