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w . v i l l a no va . e du/thir dc ir c uit_2004/580* The Honorable Jan E. Dubois , Senior Distri ct Judge for

the East ern District

of Pennsyl vania, sitting by designation. NOT PRE CEDENT IAL IN THE UNITED STATES COURT OF APPEALS

FO R T HE TH IRD CIR CU IT Case No: 03-4740 JOS EPH NE LSON, Appellant

v. COMM ISSI ONER OF SOCIAL SECURITY

___________________________ On A ppeal from the Un ited States District Co urt

for the Dis tri ct of New Jersey Distri ct Judge: The Honorable Dennis M. Cavanaugh

(D.C. No.: C.A. No. 02-1642)

____________________________ Su bm itted Pu rsua nt to Th ird C ircu it LA R 3 4.1

June 16, 2004 Be for e: A LIT O a nd S M ITH , Circuit Judges , and DU BO IS, Distri ct Judge * (Fil ed: June 28, 2004 )

_________________ OPI NION

_________________1 Th e D istrict Co urt h ad ju risdi ction pur sua nt to 42 U .S.C
. § 405(g). We exercise

app ellate juris dicti on u nde r 28 U.S .C. § 1291. 2 SM ITH , Circuit

Judge
. Joseph Nelson contends that the Dist rict Court erred by aff

irming t he decisi on of the Com missioner of Social Sec urity which den ied his claim fo r benefits und er Title II and T itle XV I of the Soc ial Sec urity Act. 1 See 42 U .S.C
. §§ 423 , 1383 . Ou r review “is identi cal t o that of

the Dist rict Court, namely to determi ne whether there is substant ial evidence to support t

he Commissioner’ s decis ion.” Plummer v. Apfel , 186 F.3d 422, 427 (3d Cir. 1999). Subst antia l evide nce is “morethan a mere s cinti lla. It means s uch releva nt evid ence as a rea sona ble m ind m ight ac cept a s ade quate to sup port a conclusi on.” Richardson v. Perales , 402 U .S. 389, 401 (1971). The regulations promul gated bythe Socia l Securi ty Administr ation e stabl ish a five -step seq uen tial an alysis f or d eterm inin g w heth er a c laim ant is disa bled
. See 20 C.F .R. § § 404.1520, 416. 920. Nelson cl aims he is disabl ed due to l imit ations resul ting from a cervi cal l aminectomyand spinalfusion. He contends that the Admini strative Law Judge (“ALJ”) er

red at s tep three of the analysi s by f inding t hat he di d not have anyof the impairment s that

are li sted i n Appendix 1 to theregulat ions which would have auto ma tically e ntitle d hi m to ben efits
. See 20 C .F.R
. §§ 404.1520(c) , 416.920( c); 20 C.F.R. Part 404, Subpt . P, Appendix 1 ( hereina fter c ited a s “Appendix 1"). In addition, Nelson asserts that the AL J erred at step five in d etermining tha t he wa s able to perfo rm3

the f ull ra nge of s ede ntar y wo rk, a nd t her efo re w as n ot d isab led. A Social Securi ty clai mant is dee med disable d and eli gible f or benefi ts i f he establ ishes at st ep three of the seque ntialanaly sis t hat his severe i mpairment s atis fies t he crite ria f or a n im pair me nt liste d in Ap pen dix 1. 20 C.F .R. §§ 404 .152 0(c ), 41 6.92 0(c ). Nelson argues that t

he ALJ erred at

this step because his c onclusory st atement t hat Nelson’s i mpairment di d not meet or equal a l isting fai led to provide thereasoned explanation requi red by our decis ion in Burne tt v. Comm ’r , 220 F.3d 112, 119 -20 (3d C ir. 2000). There , we inst

ructed t hat thereasoned expl anati on is neces saryfor meaningful jud icial r evie w. Id. at 11 9. We have no d ifficu lty condu cting a mea ning ful rev iew in this m atter an d find it telling tha t Nels on f ailed to identif y any listing he allege dly satisfied . It is readily apparent from a revi ew of the ALJ’s decis ion that the ALJ determined that Nelson had a
seve re imp airme nt at step two of the analysis b ecau se of the lim itations re sulting from his back surgery and t

hat thos e limi tati ons were the bas is of Nels on’s cl aim of disabili ty . The only li sting applicable to a back impairment was § 1.05, relating to Dis orders of the Sp ine. A ppe ndi x 1, § 1.05. The criteria required to s atis fy l isting § 1.05, how ever, we re not pres ent in t

his re cord. The ALJ noted as much in his dec isi on, expl aining t hat the med ical ev idenc e, particu larly a recen t cons ultative e xam ination by an or thop edic physi cian, was unremarkable . Indeed, Dr. Mylod, a medical e xpert who tes tifi ed for Nelson at t

he ALJ hearing, conceded that he could not

opine as to whether Nelson met or4

equa led an y listing bec ause he did not h ave a detailed physical e xam ination on w hich to base his opinion. With regar d to st ep five i n the anal ysi s, Nels on assert s that the ALJ erred by findin g that h e w as ab le to pe rform the fu ll range of se denta ry work . Acc ordin g to Nelson, t he ALJ erred becausehe fail ed to ful ly explai n why he found Nelson capable of sedentary work and because he failed to fullycredit Nelson’s test imony. Neither of these arguments i s persuas ive. In determining a cl aimant’ s resi dual functional c apacity, “the ALJ must consi der all e vidence before him. Although the ALJ may weigh t he credi bili ty of the evi dence, he must give s ome indication of the evidence which he rejec ts and hi s reason( s) for discounting such evi dence.” Bur nett , 22 0 F. 3d at 121 ( ci ta ti ons o mitte d). Here , the ALJ sati sfied t

his st andard. The ALJ revi ewed the scant medical evi dence of record, acknowledging that Nelson had unde rgone back sur gery on two occasions and that clai mant’s t

reati ng physi cian had opi ned that in 1996 Nelson “was abl e to si t, s tand, walk, do limi ted li fting, limi ted carry ing,” and to “handl e object s, hear , speak and t ravel. ” Additional ly , the ALJ noted that the consul tati ve examinati ons performed in 1998 and 1999 were unremarkabl e, reve aling no s ignifi cant fi ndings. Because thi s medical evidence was not

only uncontradi cted, but als o consistent with t he resi dual functional capacity for sedentary work, we find no error by t he AL J. Nelson, however, contends t hat he was unabl e to perf orm sedentar

y work and that5

the ALJ erred be cause he fai led to f ully credit his testi mony regarding his subjective comp laints. We disag ree. By limiting Nelson to sedentary wo rk, the AL J accorde d part of N elson’s testimon y great weight. Th e AL J explained at length the reaso ns for discounting Nelson’ s test imony t hat he was tot ally

disabl ed and precl uded from performing e ven sedentary work, emphasiz ing the f act that Nelson’ s clai m that he was severel y l imit ed was inconsi stent with his decisi on to forego t reatment for his disabl ing condition for several y ears. In sum, we concl ude that the Commissione r’s dec isi on denyi ng Nelson’s cl aim for benefit s is s upported bysubstant ial e vidence. We will affi rm the judgment of the Dist

rict Co urt.