Christopher Nicewicz v. Kenneth S. Apfel, Commissioner of the Social Security Administration

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 01-3511
CHRISTOPHER NICEWICZ,
Appellant
v.
KENNETH S. APFEL, COMMISSIONER OF
THE SOCIAL SECURITY ADMINISTRATION
Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil Action No. 00-cv-00915)
District Judge: Honorable Yvette Kane
Submitted Under Third Circuit LAR 34.1(a)
April 19, 2002
Before: NYGAARD, AMBRO, and KRAVITCH*, Circuit Judges
(Opinion filed: June 26, 2002)
OPINION
* Honorable Phyllis A. Kravitch, Senior United States Circuit Court Judge for the
Eleventh Circuit, sitting by designation.
AMBRO, Circuit Judge
I.
Christopher Nicewicz, who was born in Poland and immigrated to the United
States in 1985, applied for supplemental security income ("SSI") benefits on September
17, 1996, alleging inability to work due to a back injury.
The Commissioner of Social Security (the "Commissioner") denied his application
and his request for reconsideration. In response to Nicewicz’s request, an Administrative
Law Judge ("ALJ") held a hearing on his denial and likewise found him to be ineligible
for SSI benefits on September 17, 1998. The Appeals Council denied Nicewicz’s request
for review, making the ALJ’s determination the final decision of the Commissioner.
Nicewicz instituted a civil action under 42 U.S.C. 405(g) to obtain review of this
decision in the District Court. Both parties moved for summary judgment, and the Court
referred the case to Magistrate Judge Thomas M. Blewitt, who filed a Report and
Recommendation denying Nicewicz’s appeal on the grounds that substantial evidence
existed to support the denial of benefits. The District Court adopted the Report and
Recommendation. This appeal followed. We affirm.

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Social Security regulations prescribe a five-step process in evaluating a claim for
SSI benefits. 20 C.F.R. 416.920 (2002). First, Nicewicz must establish that he was not
performing "substantial gainful activity." He must next prove that he suffers from a
severe impairment. If so, the Commissioner must determine whether the impairment
meets or equals those listed in Appendix 1. If so, the inquiry ends with a finding of
disability. If not, Nicewicz must establish that he cannot perform his past relevant work.
If he does so, the burden shifts to the Commissioner to prove that work Nicewicz can
perform is available in significant numbers in the national economy.
On two separate occasions in 1997, Nicewicz briefly returned to work. The ALJ
found his post-accident work attempts to be "unsuccessful." He further found that
Nicewicz suffered from severe lumbosacral disc disease that did not meet or equal those
impairments listed in the Appendix. Despite the impairment, he retained the ability to
perform "the full range of light work activity" work. However, he could not do his past
relevant work. To determine if jobs Nicewicz could perform existed in significant
numbers in the national economy, the ALJ referred solely to medical-vocational
guidelines, or "grids," promulgated by the Secretary of Social Security. To apply the
grids, the ALJ made two findings: Nicewicz’s allegations as to the severity and extent of
his subjective complaints were "not entirely credible," and Nicewicz was a "younger
individual" with a limited education.
II.
We must uphold the ALJ’s decision if it was supported by "substantial evidence."
42 U.S.C. 405(g) ("The findings of the Commissioner of Social Security as to any fact,
if supported by substantial evidence, shall be conclusive."). Substantial evidence is
"more than a mere scintilla." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citation
omitted). It is not "a large or significant amount of evidence, but rather such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion." Pierce
v. Underwood, 487 U.S. 552, 565 (1988) (internal quotation marks and citation omitted).
Nicewicz raises three issues on appeal. First, he claims that the ALJ erred in
giving only "limited weight" to the testimony of his treating physician, Dr. Douglas K.
Sanderson. Courts give a treating physician’s opinion controlling weight if it "is well-
supported by medically acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with the other substantial evidence in [a claimant’s] case record." 20
C.F.R. 404.1527(d)(2). Dr. Sanderson merely stated that Nicewicz would be confined
"full time to a very structured and limited sedentary occupational activity," and that he
was "still having disability." Dr. Alan E. VanSant found Nicewicz to be capable of light
work activity. The opinion of Nicewicz’s current treating physician, Dr. Jay J. Cho, who
saw him several times closer to the date of the determination, was that he was capable of
light-duty work. Therefore, substantial evidence supported the ALJ’s decision not to
give Dr. Sanderson’s opinion, such as it was, controlling weight.
Nicewicz next asserts that the ALJ erred in "disregarding" his subjective
complaints of pain, listing all of the medical reports that detail his many complaints of
pain. He misreads the ALJ’s decision. The ALJ did not disregard his complaints, but
merely found that they were "not entirely credible regarding the extent and severity of his
subjective complaints, and their effect on his ability to perform substantial gainful
activity." There is no doubt that Nicewicz is experiencing real pain. But three doctors--
Morganstein, Van Sant, and Cho--found him to be capable of working. There is no
evidence of radiculopathy (radiation of pain to the lower extremities) or "true"
herniation, only a bulging disc that did not affect his neural structures. Nicewitz walks
with a normal gait. Therefore, there was substantial evidence from which the ALJ could
conclude that Nicewicz’s testimony was not completely reliable.
Finally, Nicewicz asserts that the ALJ erred by failing to hear testimony by a
vocational expert, and instead relied on medical-vocational guidelines, or "grids," to
assess whether jobs Nicewicz was capable of performing exist in significant numbers in
the national economy. Whether he is correct turns on whether Nicewicz suffered from
nonexertional, as well as exertional, impairments. Exertional impairments affect only a
claimant’s "ability to meet the strength demands of jobs (sitting, standing, walking,
lifting, carrying, pushing, and pulling)." 20 C.F.R. 404.1569(b). In contrast,
nonexertional impairments affect a claimant’s ability to handle other demands of the job.
Examples include pain, nervousness, anxiety, depression, and inability to concentrate or
remember. Id. at (c). We have held that where nonexertional impairments exist, a court

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cannot rely solely on the medical-vocational grids to determine disability. Sykes v.
Apfel, 228 F.3d 259, 270 (3d Cir. 2000).
The Magistrate Judge found that the ALJ relied on substantial evidence in
determining that Nicewicz suffered only from exertional impairments. He relied on the
reports of Drs. Steven E. Morganstein and Lance Owen Yarus, as well as Dr. Sanderson
(the last observing that Nicewicz’s general health, aside from back problems, was
"good"). Nicewicz himself testified at the February 18, 1998, hearing before the ALJ
that no condition aside from the back disorder was keeping him from the work force.
Nicewicz argues that his pain is both an exertional and nonexertional impairment.
While he acknowledges that the Magistrate Judge was correct in viewing some of his
symptoms--his pain while sitting, standing, or walking for more than fifteen to twenty
minutes, and his ability to lift only thirteen pounds--as exertional, he argues that "pain
affects him in ways that are undoubtedly non-exertional as well." He points to his
testimony about the dizziness, drowsiness, and lack of concentration he experiences as
side effects of the pain medication he must take. There is no record of Nicewicz
describing these symptoms to any of his doctors, even though he did complain to Dr. Cho
about side effects from two other medications, Daypro and Zoloft. This omission,
coupled with the ALJ’s finding that his complaints of pain were not entirely credible,
supports the ALJ’s determination.
Finally, Nicewicz argues the ALJ incorrectly determined that he had a limited,
rather than marginal, education level. He was born in Poland, and only received an
eighth-grade education there. This constitutes substantial evidence that Nicewicz had a
"limited education," defined as seventh through eleventh grade. 20 C.F.R.
404.1564(b)(3). The ALJ took this limitation into account when using the grid at the
fifth step of the inquiry, because one of the four factors was education.
III.
Because we find there to be substantial evidence supporting the ALJ’s denial of
SSI benefits to Nicewicz, we affirm the District Court’s opinion.
TO THE CLERK:
Please file the foregoing Opinion.
By the Court,
/S/ Thomas L. Ambro
Circuit Judg

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