2008 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

9-29-2008

Schettino v. Comm Social Security

Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4745

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Recommended Citation

"Schettino v. Comm Social Security" (2008). 2008 Decisions. Paper 468.

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NOT PRECEDENTIAL

THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

_____________

No. 07-4745

_____________

JOSEPH SCHETTINO,

 Appellant

 v.

COMMISSIONER OF SOCIAL SECURITY

 

______________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 07-cv-0628)

District Judge: Honorable Jose L. Linares

_______________

Submitted Under Third Circuit LAR 34.1(a)

September 26, 2008 

Before: BARRY, AMBRO, and JORDAN, Circuit Judges,

(Filed September 29, 2008)

_______________

OPINION OF THE COURT

_______________
 In a decision prior to the decision now on appeal, the ALJ determined that Schettino 1

was entitled to disability insurance benefits as of May 13, 2002. The issue in this appeal

is whether he was entitled to benefits before that date.

 Although the ALJ did not explicitly state at step two that Schettino’s non-Hodgkin’s 2

lymphoma was severe, the ALJ considered in step three whether Schettino’s impairments

met the criteria in Listing 13.05A for non-Hodgkin’s lymphoma.

2

JORDAN, Circuit Judge.

Joseph Schettino appeals from the District Court’s decision affirming the

Commissioner of Social Security’s denial of his request for disability insurance benefits

for the period of March 26, 2001 through May 12, 2002. We will affirm.

I. Background

Because we write solely for the parties, we assume familiarity with the case and

discuss only those facts necessary to our decision. Schettino alleges that he was disabled

between March 26, 2001 and May 12, 2002 due to a combination of back and knee

problems, obesity, gastrointestinal reflux disease, and non-Hodgkin’s lymphoma. The 1

ALJ found, in step three of his analysis, that Schettino’s impairments, while severe, did

not meet the criteria of an impairment listed in 20 C.F.R. Pt. 404, Subpt. P, App. 1. The 2

ALJ further found that Schettino possessed the residual functional capacity to perform

only sedentary work. That finding led the ALJ to conclude in step four that Schettino

could not have performed his past relevant work as a baker and cake decorator during the

time period at issue. However, the residual functional capacity finding, taken in
 The District Court had jurisdiction under 42 U.S.C. § 405(g) and we have jurisdiction 3

under 28 U.S.C. § 1291. Like the District Court, our role on appeal is to determine

whether substantial evidence supports the Commissioner’s decision. Plummer v. Apfel,

186 F.3d 422, 427 (3d Cir. 1999). 

3

conjunction with Schettino’s age, education, and work experience, led the ALJ to

conclude in step five that Schettino was not disabled during that period. 

The Appeals Council denied Schettino’s request for review, making the ALJ’s

decision the final decision of the Commissioner of Social Security. Schettino sought

review by the District Court. After the District Court affirmed the Commissioner’s

decision, Schettino filed this appeal.

II. Discussion3

On appeal, Schettino argues that the ALJ’s step three analysis was flawed in three

ways. First, he alleges that the ALJ failed to take his obesity into account when

determining whether his impairments met the criteria for a listed impairment. Second, he

alleges that the ALJ failed to consider the combined effect of all of his impairments when

determining whether they met the criteria for a listed impairment. Third, he argues that

the ALJ’s step three analysis was so conclusory as to prevent meaningful judicial review. 

We disagree on all counts. The ALJ explicitly stated that he had taken Schettino’s obesity

into consideration under step three, but nevertheless found that Schettino’s impairments

did not, alone or in combination, meet the criteria of a listed impairment. In particular,

the ALJ found that Schettino’s impairments did not meet the criteria set forth in 20 C.F.R.
4

Pt. 404, Subpt. P, App. 1, Section 1.00 for the musculoskeletal system and, specifically,

did not meet the criteria set forth in Listing 1.02 because the evidence of record did not

demonstrate that Schettino was unable to ambulate effectively. The ALJ also found that

Schettino’s impairments did not meet the criteria set forth in Section 13.00 and,

specifically, did not meet Listing 13.05A for non-Hodgkin’s lymphoma.

Not only are those findings capable of judicial review, we have reviewed them and

we conclude that they are supported by substantial evidence. For example, among the

medical evidence summarized by the ALJ is a report from Dr. Potashnik, who noted that

Schettino walked without an assistive device. Because “ineffective ambulation” is

defined in Section 1.00 as “having insufficient lower extremity functioning ... to permit

independent ambulation without the use of a hand-held assistive device(s) that limits the

functioning of both upper extremities,” the ALJ’s conclusion that Schettino could

ambulate effectively, and therefore could not meet the criteria in Listing 1.02, is

supported by substantial evidence. Also reviewable and supported by substantial

evidence is the ALJ’s finding that Schettino’s impairments did not meet the criteria set

forth in Listing 13.05A for non-Hodgkin’s lymphoma because there was no evidence in

the record that Schettino had had “[i]ntermediate or high-grade lymphoma persistent or

recurrent following initial antineoplastic therapy” or “[l]ow-grade or indolent lymphoma
 Perhaps recognizing that substantial evidence supports that finding, Schettino argues 4

that, while his impairments “may or may not” meet Listing 13.05, the ALJ’s step three

analysis was nevertheless flawed because the ALJ erroneously failed to categorize

Schettino’s non-Hodgkin’s lymphoma as “severe” at step 2. (Appellant’s Brief at 17.)

However, even assuming that was error, it was harmless because the ALJ specifically

analyzed in step three whether Schettino’s impairments met the criteria set forth in Listing

13.05A for non-Hodgkin’s lymphoma and found that they did not. 

 Schettino nevertheless argues that the ALJ’s finding that he possessed the residual 5

functional capacity to perform sedentary work on May 12, 2002 “ignore[s] the benefits of

hindsight” because the ALJ determined in a previous decision that Schettino was entitled

to disability insurance benefits as of May 13, 2002, a day later. (Appellant’s Brief at 23.) 

But the ALJ’s determination that Schettino was entitled to benefits as of May 13, 2002

was not the result of a finding that Schettino’s residual functional capacity had

deteriorated as of that date. Instead, the ALJ found that Schettino became an individual

“closely approaching advanced age” on May 13, 2002, which, combined with findings

regarding his education and prior work experience and the finding that he could perform

sedentary work, led the ALJ in step 5 to conclude under the pertinent regulation that

5

requiring initiation of more than one antineoplastic treatment regimen within a

consecutive 12-month period.”4

Schettino next argues that the ALJ failed to articulate a rationale underlying his

finding that Schettino possessed the residual functional capacity to perform sedentary

work. Again, we disagree. The ALJ extensively discussed the medical evidence in the

record and, based on that evidence, found that Schettino could perform sedentary work

because he could lift ten pounds, stand or walk for two hours, and sit for six hours. The

ALJ’s finding is supported by substantial evidence, including a report authored by a

physician from New Jersey’s Disability Determination Services, who opined that

Schettino was able to stand or walk for at least two hours, as well as sit for six hours, in

an eight-hour workday and occasionally lift twenty pounds.5
Schettino was disabled as of that date. Compare 20 C.F.R. Pt. 404, Subpt. P, App. 2,

Table 1, Rule 201.14 (individual “closely approaching advanced age” with sedentary

residual functional capacity and Schettino’s education and previous work experience

should be deemed “disabled”), with id. at Rule 201.21 (“younger individual” with

sedentary residual functional capacity and Schettino’s education and previous work

experience should be deemed “not disabled”).

6

III. Conclusion

For the reasons set forth above, we will affirm the judgment of the District Court.