Carolyn P. Mays v. JOANNE B. BARNHART, Commissioner of Social Security On Appeal From the United States…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 02-4520
CAROLYN P. MAYS,
Appellant
v.
JOANNE B. BARNHART,
Commissioner of Social Security
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Civil Action No. 01-cv-05335)
District Judge: Honorable Michael M. Baylson
Submitted Pursuant to Third Circuit LAR 34.1(a)
October 17, 2003
BEFORE: SLOVITER, ROTH and STAPLETON, Circuit Judges
(Opinion Filed October 27, 2003 )
OPINION OF THE COURT

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1The ALJ did not disturb the Social Security Administration’s finding that M ays
was entitled to Supplemental Security Income (“SSI”) under Title XVI of the Act, 42
U.S.C. §§ 1381-1385, or that her date of onset with respect to SSI benefits was August 1,
1998.
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STAPLETON, Circuit Judge:
Plaintiff Carolyn Mays (“Mays”) appeals the denial of her claim for
Disability Insurance Benefits (“DIB”) and Disabled Widows Benefits (“DWB”) under
Title II of the Social Security Act (the “Act”), 42 U.S.C. §§ 401-434 (2002). With respect
to Mays’s DIB claim, the date she was last insured is December 31, 1997. With respect to
her DWB claim, the month she was last insured is February 1996. Consequently, M ays
would be entitled to DIB only if she met her burden of showing that she had become
disabled before December 31, 1997, and she would be entitled to DWB only if she could
show that she had become disabled before February 1996. The Administrative Law
Judge (“ALJ”) determined that Mays was not disabled prior to these relevant dates and
denied her claims.1 The District Court found substantial evidence to support the ALJ’s
denial and granted summary judgment for the Commissioner of the Social Security
Administration (“Commissioner”).
The parties are familiar with the factual setting and the procedural history of
this matter. Since we write only for them, we do not provide a narrative summary of the
evidence contained in the record. We will address in turn each of the assigned errors in
the appeal and will there refer to the evidence where necessary to explain the Court’s

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disposition.
The District Court had jurisdiction under 42 U.S.C. § 405(g) (2002) and we
have jurisdiction under 28 U.S.C. § 1291 (2002). Although we review de novo the
District Court’s order for summary judgment, “our review of the ALJ’s decision is more
deferential as we determine whether there is substantial evidence to support the decision
of the Commissioner.” Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir. 2000). Substantial
evidence has been defined as “less than a preponderance of the evidence but more than a
mere scintilla.” Jesurum v. Secretary of the United States Dep't of Health & Human
Servs., 48 F.3d 114, 117 (3d Cir. 1995). “It means such relevant evidence as a reasonable
mind might accept as adequate.” Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir. 1995)
(quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). In determining whether
substantial evidence exists, “we are not permitted to weigh the evidence or substitute our
own conclusions for that of the [ALJ].” Burns v. Barnhart, 312 F.3d 113, 118 (3d Cir.
2002). Accordingly, “[w]here the ALJ’s findings of fact are supported by substantial
evidence, we are bound by those findings, even if we would have decided the factual
inquiry differently.” Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir. 2001) (citing
Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999)).
I.
In order to obtain DIB or DWB, a claimant must show that he or she is
under a “disability.” See 42 U.S.C. §§ 423(a), 402(e)(1) (2002). The Act defines a

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“disability” as the “inability to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected to result in
death or has lasted or can be expected to last for a continuous period of not less than 12
months.” Id. § 423(d)(1)(A). The Act further dictates that a claimant “shall be
determined to be under a disability only if his physical or mental impairment or
impairments are of such 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
substantial gainful work which exists in the national economy . . . .” Id. § 423(d)(2)(A).
The regulations promulgated under the Act utilize a five-step sequential evaluation
process for determining whether a claimant is under a disability. See 20 C.F.R. §
404.1520(a)(1) (2002). We have described this process as follows:
In step one, the Commissioner must determine whether the claimant is
currently engaging in substantial gainful activity. 20 C.F.R. § 404.1520(a).
If a claimant is found to be engaged in substantial activity, the disability
claim will be denied. Bowen v. Yuckert, 482 U.S. 137, 140, 107 S.Ct. 2287,
2290-91, 96 L.Ed.2d 119 (1987). In step two, the Commissioner must
determine whether the claimant is suffering from a severe impairment. 20
C.F.R. § 404.1520(c). If the claimant fails to show that her impairments are
“severe,” she is ineligible for disability benefits.
In step three, the Commissioner compares the medical evidence of the
claimant’s impairment to a list of impairments presumed severe enough to
preclude any gainful work. 20 C.F.R. § 404.1520(d). If a claimant does not
suffer from a listed impairment or its equivalent, the analysis proceeds to
steps four and five[.] Step four requires the ALJ to consider whether the
claimant retains the residual functional capacity to perform her past relevant
work. 20 C.F.R. § 404.1520(d). The claimant bears the burden of
demonstrating an inability to return to her past relevant work. Adorno v.
Shalala, 40 F.3d 43, 46 (3d Cir. 1994).

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If the claimant is unable to resume her former occupation, the evaluation
moves to the final step. At this stage, the burden of production shifts to the
Commissioner, who must demonstrate the claimant is capable of
performing other available work in order to deny a claim of disability. 20
C.F.R. § 404.1520(f). The ALJ must show there are other jobs existing in
significant numbers in the national economy which the claimant can
perform, consistent with her medical impairments, age, education, past
work experience, and residual functional capacity. The ALJ must analyze
the cumulative effect of all the claimant’s impairments in determining
whether she is capable of performing work and is not disabled.
Burnett v. Commissioner of Social Sec. Admin., 220 F.3d 112, 118-119 (3d Cir. 2000)
(quoting Plummer v. Apfel, 186 F.3d 422, 428 (3d Cir. 1999)).
II.
In this case, the ALJ addressed the first four steps and found that: (1) Mays
had not engaged in substantial gainful activity since 1992; (2) Mays’s depression did not
constitute a severe impairment prior to the relevant dates of last insurance; (3) Mays’s
right shoulder impingement syndrome did constitute a severe impairment during the
relevant time periods; (4) Mays’s right shoulder impingement syndrome did not meet or
equal the criteria for a listed impairment; and (5) Mays had the residual functional
capacity to perform her past relevant work as an intake worker/receptionist. The ALJ did
not reach step five of the sequential evaluation process.
Mays alleges five grounds of error in support of her request that this Court
vacate the District Court’s order granting summary judgment to the Commissioner. We
address each assignment of error in turn.

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2Borderline Personality Disorder, Mays argues, is a mental illness that is stated by 1
the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental 2
Disorders 650 (4th ed. 1994) (“DSM-IV”) to begin by early adulthood. She therefore 3
believes that the ALJ should have found her to be clinically diagnosed with a mental 4
illness prior her relevant dates of last insurance. 5
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A.
Mays first challenges the ALJ’s determination, at step two, that her
depression did not constitute a severe impairment prior to the relevant dates of last
insurance. Mays argues that this finding is not supported by substantial evidence for two
reasons. First, she notes that her own treating physician, Dr. Peter Arcuri, had prescribed
anti-depressant medication to her for depression since the 1980s, had told her to see a
psychiatrist in 1979, and had made notations in her medical records that she suffered from
“psych anxiety” and “psych depression” on June 1, 1996 and August 30, 1997,
respectively. Second, Mays notes that, on March 25, 1999, the Commissioner’s own
examining consultant, Dr. Beth Farber, diagnosed Mays with Major Depression and
Borderline Personality Disorder. Mays argues that the ALJ ignored Dr. Farber’s report,
which would have shown that M ays was suffering from a mental illness since early
adulthood.2
As mentioned above, step two of the five-step sequential evaluation process
requires the ALJ to determine whether the claimant is suffering from a severe
impairment. 20 C.F.R. § 404.1520(a)(4)(ii). According to the regulations promulgated
under the Act, an impairment is not a severe impairment if it does not “significantly

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limit[] [the claimant’s] physical or mental ability to do basic work activities.” Id. §§
404.1520(c), 404.1521(a). Basic work activities are “abilities and aptitudes necessary to
do most jobs,” including:
(1) Physical functions such as walking, standing, sitting, lifting, pushing,
pulling, reaching, carrying, or handling; (2) Capacities for seeing, hearing,
and speaking; (3) Understanding, carrying out, and remembering simple
instructions; (4) Use of judgment; (5) Responding appropriately to
supervision, co-workers and usual work situations; and (6) Dealing with
changes in a routine work setting.
Id. § 140.1521(b). Analyzing the statutory and regulatory framework, several courts have
found the requirements of step two to be “a de minimis screening device to dispose of
groundless claims.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996) (citing Bowen
v. Yuckert, 482 U.S. 137, 153-54 (1987) (O’Connor, J., concurring)); see also McDonald
v. Secretary of Health & Human Servs., 795 F.2d 1118, 1124 (1st Cir.1986).
Accordingly, “an impairment or combination of impairments can be found ‘not severe’
only if the evidence establishes a slight abnormality that has ‘no more than a minimal
effect on an individuals [sic] ability to work.’” Smolen, 80 F.3d at 1290 (quoting Social
Security Ruling 85-28 (1985)).
In this case, the ALJ considered all of the evidence and testimony in the record and
found that there was no medical evidence of any mental health treatment prior to
December 1998. Dr. Arcuri had responded to Mays’s sporadic complaints of depression
by prescribing anti-depressants and telling her to seek a psychiatrist. The ALJ explained,
however, that symptoms of depression could not, alone, constitute a medically

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determinable impairment. See 20 C.F.R. § 404.1529(b) (“M edical signs and laboratory
findings, established by medically acceptable clinical or laboratory diagnostic techniques,
must show the existence of a medical impairment(s) which results from anatomical,
physiological, or psychological abnormalities and which could reasonably be expected to
produce the pain or other symptoms alleged.”). The ALJ concluded that there were no
objective medical signs or laboratory findings of depression “until well after [Mays’s]
date of last insurance.”
The ALJ’s finding is supported by substantial evidence in the record. Mays had
never seen a psychiatrist during the relevant periods of insurance and had not been
clinically diagnosed with a mental illness. The ALJ correctly noted that the sole evidence
of any such clinical finding, by Dr. Farber, took place well after the relevant dates of last
insurance. M oreover, the record indicates that, despite any depression, Mays was capable
of performing basic work activities. In her Disability Report and Daily Activities
Questionnaire, Mays stated that she routinely performed a variety of tasks that are
consistent with basic work activities. Accordingly, we find the ALJ’s decision – that
Mays’s depression did not constitute a severe impairment at step two – to be supported by
substantial evidence.
B.
Second, Mays argues that the ALJ’s finding that she was able to perform “light”

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3According to 20 C.F.R. § 404.1567(b), light work involves: 1
[L]ifting no more than 20 pounds at a time with frequent lifting or carrying 2
of objects weighing up to 10 pounds. Even though the weight lifted may be 3
very little, a job is in this category when it requires a good deal of walking 4
or standing, or when it involves sitting most of the time with some pushing 5
and pulling of arm or leg controls. To be considered capable of performing 6
a full or wide range of light work, you must have the ability to do 7
substantially all of these activities. 8
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work3 during the relevant periods did not properly consider the non-exertional
consequences of her right shoulder impingement syndrome. Mays notes that the Merck
Manual of Diagnosis and Therapy 507 (17th ed. Merck Research Labs. 1999) states that
patients suffering from a shoulder impingement syndrome may experience pain during the
course of non-exertional reaching and manipulative activities, and that such activities may
aggravate the patient’s condition. She argues that the ALJ incorrectly failed to consider
this in determining Mays’s residual functional capacity. We disagree. The ALJ’s
determination as to a claimant’s residual functional capacity must be based on medical
evidence in the record. See 20 C.F.R. § 404.1545(a)(3). The ALJ must also provide a
“clear and satisfactory explication” of the basis on which his determination rests. See
Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981).
Here, there was ample medical evidence in the record, including the reports of Dr.
Brian J. Sennett, Dr. Emil Sfedu, Dr. Arculi, and Mays’s own Disability Report, for the
ALJ to conclude that Mays was not limited in her reaching and manipulative abilities
during the relevant periods. The ALJ made specific reference to these reports and

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explained that they formed the basis of his decision. The ALJ also explained that Mays’s
allegations in her hearing testimony (i.e., that she was unable to comb her hair) could not
be fully credited in light of this medical evidence. Mays’s current reliance on a
description contained in a diagnostic manual is not sufficient for this Court to reject the
findings of the ALJ.
C.
Third, Mays argues that the ALJ’s decision is not supported by substantial
evidence because the record contains no expert medical opinion indicating that Mays
possessed a residual functional capacity to perform light work. Mays points to the
Commissioner’s evaluating physician, Dr. Emil Sfedu, who reported on October 21, 1998
that Mays had no range of motion in her right shoulder and concluded that her physical
activities should be restricted to below sedentary levels. This argument fails for several
reasons. Primarily, the ALJ is responsible for making a residual functional capacity
determination based on the medical evidence, and he is not required to seek a separate
expert medical opinion. See 20 C.F.R. §§ 404.1527(e), 404.1546(c). Furthermore, the
medical evidence submitted to the ALJ was sufficient to support his conclusion that
Mays’s physical impairments were not as disabling as her hearing testimony indicated. In
particular, the ALJ relied on Mays’s treating physician, Dr. Arcuri, whose treatment notes
tracked Mays’s physical complaints between June 1995 and August 1998. The ALJ noted
that the record did not indicate any emergency room visits, hospitalizations, or office care

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4As the Commissioner suggests in its brief, the record indicates that M ays’s 1
condition began to deteriorate sometime in 1998, after her insured status had expired. 2
5The Commissioner responds that this argument has been waived because it was 1
not presented to the District Court. We address it, however, because Mays’s Disability 2
Report, which is contained in the record, bears on whether the ALJ’s classification of 3
Mays’s past relevant work is supported by substantial evidence. 4
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(other than for routine maintenance) for Mays’s shoulder condition that would indicate an
uncontrolled condition. We believe that the ALJ’s reliance on Dr. Arcuri’s records, rather
than Dr. Sfedu’s report, was appropriate given that Dr. Sfedu performed his examination
long after Mays’s dates of last insurance.4 Accordingly, the ALJ’s finding that M ays
possessed a residual functional capacity for light work is supported by substantial
evidence.
D.
Fourth, Mays argues that the ALJ’s decision is not supported by substantial
evidence because he reached only a lay opinion as to whether Mays’s previous job
required light work. Mays claims that the ALJ should have heard vocational evidence
before deciding that her past relevant work required exertion at the light level. She points
out that vocational experts should have been used because her own Disability Report
notes that the heaviest weight lifted during her previous employment was fifty pounds – a
weight that is consistent with work at the “medium” level, not the “light” level. See 20
C.F.R. § 404.1567(c) (“Medium work involves lifting no more than 50 pounds at a time
with frequent lifting or carrying of objects weighing up to 25 pounds.”).5

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6Work at the sedentary level is included within the category of light work. See 20 1
C.F.R. § 404.1567(b). 2
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We disagree with Mays’s assignment of error. At step four of the sequential
evaluation process, the decision to use a vocational expert is at the discretion of the ALJ.
See 20 C.F.R. § 404.1560(b)(2); Social Security Ruling 00-4p (2000). The Commissioner
has noted that such experts are used to “resolve complex vocational issues.” Social
Security Ruling 00-4p. In determining the exertional level of the claimant’s past relevant
work, the ALJ is also entitled to rely on the Dictionary of Occupational Titles (4th ed.
1991) (“DOT”). See 20 C.F.R. §§ 404.1560(b)(2), 404.1566(d)(1), 404.1567(a).
Here, the ALJ heard M ays’s own testimony that she worked as a
“receptionist/intake worker.” The DOT lists both “receptionist” and “intake worker” as
occupations performed at a “sedentary” exertional level. See DOT 237.367-038, 195.107-
010.6 The ALJ also heard Mays testify as to the work she performed during her previous
employment. Such evidence did not suggest any complex vocational issues. Based on this
evidence, the ALJ concluded that the Mays’s past relevant work was performed at the
light level. The fact that Mays indicated on her Disability Report that she had, at some
point, lifted fifty pounds, does not, in our view, undermine the ALJ’s conclusion.
E.
Finally, Mays argues, with respect to the Appeals Council’s denial of review in
this case, that its failure to consider Mays’s letter brief “is an abuse of discretion and/or

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implicates ‘fundamental fairness.’” We do not address these arguments because, under
42 U.S.C. § 405(g), we have statutory authority to review only the final decision of the
Commissioner. The final decision of the Commissioner in this case is the decision of the
ALJ. See 20 C.F.R. § 404.955(b); see also Matthews v. Apfel, 239 F.3d 589, 592 (3d Cir.
2001) (“If the Appeals Council denies the request for review, the ALJ's decision is the
Commissioner’s final decision.”). Furthermore, we do not have statutory authority to
review the Appeals Council’s decision to deny review. Matthews, 239 F.3d at 594.
Mays also argues that the Commissioner incorrectly excluded her letter brief to the
Appeals Council from the transcript filed with the District Court. We reject this argument
as well because 42 U.S.C. § 405(g) requires that the transcript submitted by the
Commissioner need only include “the evidence upon which the findings and decision
complained of are based.” Here, the letter brief submitted by Mays to the Appeals
Council was not considered by the ALJ and was therefore not required to be included in
the transcript submitted to the District Court.
III.
For the foregoing reasons, we find the ALJ’s decision to be supported by
substantial evidence and we will affirm the judgment of the District Court.

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TO THE CLERK:
Please file the foregoing not precedential opinion.
/s/ Walter K. Stapleton
_________________________________
Circuit Judge

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