2004 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit
5-14-2004 

# B u sh v . C omm S o c i al S ec ur it y P r e c e de n t i al or N on-P r e c e de n t i al : N on-P r e c e de n t i al D ocke t N o . 03-4142

F o l lo w thi s a nd a dd it ion al w ork s at : h tt p://d i g it alc ommon s .l a w . v i l l a no va . e du/thir dc ir c uit_2004

Thi s de c i sion i s br ou gh t t o you for f r e e a nd ope n a c c e s s b y the O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit at V i l l a no va U nive r sit y S choo l of L a

w Di g it al Re posit or y

. It h as be e n a c c e pt e d for inclusion in 2004 D e c i sion s b y a n author i z e d a dmini s tr at or of V i l l a no va U nive r sit y S choo l of L a

w Di g it al Re posit or y

. F or mor e infor m at ion, p le as e c on t a ct Be n j a min . C a rl s on@l a

w . v i l l a no va . e du . Re c omme nde d C it at ion
" B ush v . C omm S oc i al S e c ur it y " (2004). 2004 D e cisio n s . P ape r 703. h tt p://d i g it alc ommon s .l a

w . v i l l a no va . e du/thir dc ir c uit_2004/703* The Honorable Louis H. Pollak, Senior District Judge for the Eastern District of Pennsylvania, sitting by

designation. 1 NOT PRECEDE NTIAL IN THE UN ITED STATES CO URT OF A PPEALS

FO R T HE TH IRD CIR CU IT Case No: 03-4142 CHARLES BUSH,

Appellant
v. JO AN NE BA RN HA RT , Commissioner, Social Sec urity Adminis tration
On A ppeal from the Un ited States District Co urt

for the D istrict of Delaw are Distri ct Judge: The Honorable Judge Gregory M. Sleet (D.C. No. 02-cv- 00339)

___________________________ Submitte d on May 7, 2004 Be for e: S LO VI TE R a nd F UE NT ES , Circuit Judges , and PO LL AK , Distri ct Judge * (Fil ed: May 14, 2004)

________________________ OPINI ON OF THE COURT

______________________________ PO LL AK , Distri ct Judge2

Charles Bush ( “Bush”) appeal s from an order of the Dist

rict Court granting the
sum ma ry judg me nt m otio n of the C om mis sion er o f So cial S ecu rity (“C om mis sion er”)
. Bush initiate d this case in t he District Court

to chal lenge the decisi on of Administr ative Law Judge (“ALJ”) TimothyC. Pace deny ing Bush’s cl aim for di sabil ity insurance benefit s and Supplementa l Securi ty Income under titl es II a nd XVI, respectively , of the Social Sec urity Act (“The A ct”), 42 U.S .C. §§ 40 1-433, 13 81-138 3f. The District Cou rt exercised jurisdiction u nder 42 U.S.C . § 405(g), and , after extensive an alysis, t he cou rt upheld the AL J’s decision, con cluding that “su bstantial evidence exists that Bush ’s subjective complai nts of pai n were not entitl ed to ful l crede nce . . . [and] t he tota lit y of the evi dence simpl y does not support a findi ng that Bush i s disabl ed.” Bush v. Barnhart , 279 F . Supp.2d 512, 520 (D. D el. 2003). We have jurisdictio n un der 2 8 U .S.C. § 129 1. Th e que stion to be ad dresse d is wh ethe r the AL J’s f ind ing s an d co nclu sion s are sup por ted b y subs tanti al ev iden ce. Welch v. Heckler , 808 F.2d 264, 266 (3d Cir. 1986). Subst antia l evide nce means more than a
me re sc intilla of e vid enc e. Ven tura v . Shala la , 55 F.3d 9 00, 901 (3 d Cir. 199 5). “It means such rel evant evi dence as a r easonable mind might acc ept as ade quate. ” Id
. Und er the Ac t, and its impleme nting regulations, a p erson seek ing bene fits bears the bur den o f pr ovi ng di sab il ity. 42 U. S.C. § 423( d)( 5)( A); 20 C. F.R. § 404. 1512. To determi ne whether an i ndividualhas met thi s burden, the ALJ must foll ow the five- step sequ ential an alysis set fo rth in the regu lations p rom ulgate d by the S ocial S ecurity1 Under the five- step sequential analy sis, the AL J considers whethe

r the cla imant: (1)is engaged in substantial ga inful activity; (2) has a se vere impairment; (3) has an impairment that meets or equals the requirements of a listed impairment; (4) can r eturn to his or her past relevant work; and (5) if not, whether a significan t number of other jo

bs exist in the

national economy that the claimant can perform. 20 C.F.R. § 404.1520. 3 Ad min istrati on. See 20 C.F.R. § 404. 1520. 1 In the instant

matter, usi ng this five-step analysi s, the ALJ concluded that (1) Bush has not engage d in subst antia l gainf ul activit y at any time since the al leged onset of disabi lit y; (2) Bush’s episodi c gout/i nflammatory arthriti s, degener ative disc di sease of the lumb osacral spine a nd bron chial asthma constitute a severe impairme nt; (3) Bush ’s ailment s are not

severe enough to meet or medica lly equal one of t

he impairments li sted in Appendix 1, Subpart P, Regulati ons No. 4; ( 4) Bush did not retai n the res idual functional capacityto perform the requirements of his past rel evant work; and (5) Bush did ret ain the resi dual functional c apacity t o perform othe r jobs t hat exi st i n signi ficant numbers in t

he nati onal economy . Based on hi s fift h finding, the ALJ concluded t hat Bush was not “disabled” under the Act at

any time through t

he date of t

he decisi on. Bush contends t

hat the ALJ erred with r espect to the fi fth st ep of thi s analy sis by finding t hat, in li ght of his resi dual functional c apacity, he is abl e to perf orm other j obs that exist in the national eco nom y. Bush argue s that the AL J’s decisio n “is tota lly devoid of a proper eva luati on of the evi dence,” and t hat, by “r eciting the e vidence and t hen
com ing to a c onc lusio n w itho ut an y exp lana tion wh y certa in ev iden ce w as a cce pted
. . . and oth er ev iden ce w as n ot ac cep ted,” the A LJ d id n ot en gag e in v alid d ecis ion -ma kin g.2 The ALJ noted that (1) in January 1990, Bush was no longer taking medica tion and was released to return to work by Dr. Sternberg; (2) “[t]hermographic studies of the lumbar spine and lower extremities performed on October 8, 1990 were within normal limits;”(3) Bush was placed in vocati onal rehabilitation for pla cement in a light d uty job; (4) “ [o]n April 8, 1991, Mr. Bush advised that the nerve block had resolved his left leg pain and that he was able to walk without his cane;” (5) “[a] work tolerance evaluation conduc ted on July 9, 1991 demonstrated that the claimant had the c apacity

to remain

active f or an 8-hour day ;” (6) Dr . Ler oy, a neurologist, “concluded that Mr. Bush is capable of working in a light-duty ca

pacity;” (7)“on July 9, 1993, the claimant indicated that his symptoms were improved with treatment and Dr. Le roy advised that his condition was stable;” (8) during a consultative visit with Dr. Kim, “claimant stated that he could walk 1/4 mile secondary to shortness of breath and low back pain, stand for 1 hour secondary to low back pain, sit for 1 hour, and lift 20 pounds;” (7) “[p]hysica l examination was pertinent for clear lung sounds bilaterally without any wheezing

or rales,” and range of

motion and muscle strength of the upper and lower extremities and cervical spine were within normal limits. “There was no joint tenderness, swelling or temperature elevation . . . [and] both knees were stable and the claimant’s ga it was within normal limits.”

4 In addition, Bush s ubmits t hat the ALJ failed t o give adequate weight t o his subj ecti ve complaint s of pain. Afte r a c are ful rev ie w of t he r ecord, we cann ot a gre e t hat the ALJ erred . The ALJ suffici ently

evaluat ed the evi dence before hi m, and his c onclusi on that Bush i s not disabl ed is suppor

ted bysubstant

ial e vidence. The ALJ considered the report s of each of Bush’s tr eati ng physi cians 2 and weighed that evidence aga inst

Bush’s own subjective
com plaints. A ddition ally, the AL J relied u pon the testim ony of the vo cation al exp ert, who testi fied that appel lant “ was capable of maki ng a vocati onal adj ustment to other work,” and li sted t

he ty pes of work that

appell ant would be abl e to perf orm. In l ight of this evidence, and while gi ving Bush the “f ull bene fit of

the doubt, ” the ALJ “did not find entirelycredibl e [Bush’s] a llegations of disabl ing pain, and [found that ] a thor ough review of the objec tive m edica l evide nce in the rec ord d id no t alter [the AL J’s] do ubts5

with regard to [Bush’s] credibi lit y. ” See 20 C.F.R. §§ 404. 1529 and 416.929 (a residual functioning capacityassessment must be based upon a co nsideration of allsymptoms, includi ng pain, and the ext ent to whic h these s ymptoms can reasonably be accepte d as
cons istent w ith the o bjectiv e me dical e viden ce an d oth er evid ence .); Hartranft v. Apfel , 181 F.3d 358 , 362 ( 3d C ir. 1999 ) (stating that, un der § 404 .1529 (c), the A LJ’s d uty to evalu ate the intensity an d per sistenc e of th e pain or symp tom a nd th e exte nt to w hich it affects the indi vidual’ s abil ity to work, r equires the ALJ to det ermine the extent to which a cla ima nt is a ccu ratel y desc ribin g pa in sym pto ms ). Bush reli es on Co tter v. H arris , 642 F .2d 70 0 (3d Cir.19 81), to s upp ort his contention that

the case should be r emanded because the ALJ did not provi de suffici ent explanations for

his re asoning. However, Bush’s rel iance on Cotter is misplaced. In Cotter , the court conc luded that the A LJ erred w hen he (1) gave g reat weigh t to a third physi cian’s medical r eport t hat did not

contai n a cli nical report or observation and ( 2) fail ed to expl ain his impli cit rejection of othe r expert medical testi mony or even ack now ledg e its p rese nce . Id . a t 70 7. Th ere was no suc h fai lure here. The ALJ consider ed and credi ted each of t he phys icians’ repor

ts, and, i ndeed, these reports, which note imp rovem ents in Bu sh’s cond ition and his ability to work, sup port the A LJ’s conclusi on. The onlyrejec tion by the ALJ was of Bush’s te sti mony, whic h the ALJ found less t han cred ible a nd u nsu ppo rted by the obj ectiv e m edic al ev iden ce. Because we conclude that the ALJ’s decisi on is supported bysubstant ial e vidence,6

we will af firm th e judg men t of the Distric t Cou rt.