No: 03-2236 BRIAN PHILLIPS v. JO ANNE B. BARNHART, COMMISSIONER OF SSA Brian D. Phillips

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No: 03-2236
BRIAN PHILLIPS
v.
JO ANNE B. BARNHART,
COMMISSIONER OF SSA
Brian D. Phillips,
Appellant
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(Civil Action No. 01-5158)
District Judge: Hon. Franklin S. VanAntwerpen
Submitted Pursuant to Third Circuit LAR 34.1(a)
February 12, 2004
Before: Scirica, Chief Judge, ROTH and
McKEE, Circuit Judges
Filed: March 10, 2004
OPINION
McKEE, Circuit Judge.
Brian D. Phillips appeals the district court’s decision affirming the final decision
of the Commissioner of Social Security that Phillips is not entitled to disability insurance
benefits (“DIB”) and supplemental security income benefits (“SSI”) under Titles II and
XVI of the Social Security Act, 42 U.S.C. §§ 401-433, 1381-1838f. For the reasons that

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1
Phillips amended his alleged disability onset date to September 1998 at the
administrative hearing.
2
follow, we will affirm.
I.
Phillips initially applied for DIB and SSI on November 3, 1997. Both applications
were denied initially and upon reconsideration. He did not pursue these applications and
they are not at issue here.
On November 3, 1998, Phillips filed new applications for DIB and SSI alleging
disability since April 1, 1997, due to a back impairment.1 The Pennsylvania Bureau of
Disability Determination denied his applications initially and upon reconsideration. He
requested an administrative hearing before an administrative law judge (“ALJ”). That
hearing was held on October 12, 1999, at which Williams, with counsel, was present and
a vocational expert (“VE”) testified. On November 22, 1999, the ALJ decided that
Phillips had the ability to perform a limited range of sedentary work with a sit/stand
option and was, therefore, not disabled under the Act. 42 U.S.C. § 423(d)(1), (2).
Phillips requested review of the ALJ’s decision by the Appeals Council. On February
10, 2000, the Appeals Council denied his request for review, making the ALJ’s decision
the final decision of the Commissioner.
With his administrative remedies exhausted, Phillips filed suit in the district court.
In time, the parties filed motions for summary judgment. On January 27, 2003, the
magistrate judge to whom the action was assigned issued a Report and Recommendation

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2 20 C.F.R. §§ 404.1563, 416.963. Age is not considered a significant impediment to
adapting to new work situations for younger persons, id., as is a positive vocational
factor. 20 C.F.R. pt. 404, subpt. P, app. 2, § 201.00(h).
3
Degenerative changes, with or without trauma, may result in protrusion of the disc,
i.e., bulging disc, or rupture of the nucleus through the annular fibrosis, i.e., herniated
disc. The Merck Manual, 1488-90 (17th ed. 1999). Bulging and herniated discs are
asymptomatic unless they irritate a nerve root for the spinal cord. Id. at 1489.
3
(“R&R”), recommending that the Commissioner’s motion for summary judgment be
granted. Phillips filed objections, but the district court affirmed the Commissioner’s
decision. This appeal followed.
II.
Phillips was thirty-six at the time of the alleged onset of his disability; a “younger
individual” under the Act.2 He has a high school education and past work experience as a
warehouse worker. The VE classified Phillips’s past work as semi-skilled, heavy work.
A. Medical Evidence.
Phillips sought medical treatment on September 8, 1998, with Joseph J. Grassi,
M.D., an orthopedic specialist. Dr. Grassi found that Phillips had left L5 radicular
impingement syndrome, or a L5-S1 disc herniation. Dr. Grassi told Phillips to obtain a
Magnetic Resonance Imaging (“MRI”) examination of his lumbar spine.
On September 9, 1998, Phillips had a MRI which showed a left sided disc
herniation at L5-S1, with sequestered fragments in the spinal canal.3 Phillips underwent
an electromyogram (“EMG”) test on September 17, 1998, that showed electrodiagnostic
evidence of left S1 radiculopathy with some possible involvement on the left side.

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4
A straight leg-raising test is used to evaluate possible nerve root irritation. Gunnar
Andersson, M.D., and Thomas McNeill, M.D., Lumbar Spinal Syndromes: Evaluation
and Treatment, 78 (1989). The patient sits or lies on the examining table and the
examiner attempts to elicit, or reproduce, physical findings to verify the patient’s reports
of back pain by raising the patient’s legs when the knees are fully extended. Id.
4
Phillips was evaluated by Stephen P. Falatyn, M.D., an orthopedic surgeon, on
September 21, 1998. Phillips told Dr. Falatyn that his current lower back and left leg pain
started a month earlier while he was at home. Phillips also told Dr. Falatyn that he had
similar pain in April of 1997, which improved with physical therapy.
Dr. Falatyn’s physical examination showed that Phillips’s motor strength was
essentially normal. Forward bending caused moderate back pain, and Phillips had
palpable muscle spasms. His straight leg-raising test was normal on the right side.4 Dr.
Falatyn discussed surgical and non-surgical options with Phillips, and noted that he would
observe him for several weeks to determine if non-surgical methods, such as physical
therapy and epidural steroid injections, would improve Phillips’s condition. On
September 28, 1998, Phillips had a myleogram of the lumbar spine that showed truncation
of the right side S1 nerve root.
At his next evaluation with Dr. Falatyn on October 12, 1998, Phillips reported a
slight decrease in back and left leg pain. He also told Dr. Falatyn that he was looking for
work that did not involve lifting. Upon physical examination, Phillips’s motor strength
was close to normal.
Dr. Falatyn reported marked improvement with regard to Phillips’s back and left

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5
leg pain complaints on November 9, 1998. Phillips’s motor strength during Dr. Falatyn’s
examination was almost normal. Phillips told Dr. Falatyn that he was more active. Dr.
Falatyn prescribed a lumbar corset.
Phillips was again evaluated by Dr. Falatyn on December 21, 1998. That physical
examination again revealed close to normal motor strength with increased mobility.
Phillips said he had increased left leg and back pain and wanted to pursue surgical
intervention.
However, despite his request for surgery, Phillips did not see Dr. Falatyn again
until April 15, 1999. At that time, Phillips told Dr. Falatyn that he had been managing
his pain without medical intervention. However, even though his motor examination was
normal, Phillips still wanted to pursue surgical intervention. On May 26, 1999, Phillips
underwent a left L5-S1 discectomy. He tolerated the procedure well and was released
from the hospital with instructions to see Dr. Falatyn within two weeks.
Dr. Falatyn evaluated Phillips on June 9, 1999, two weeks after the surgery. Based
on his physical examination, Dr. Falatyn opined that Phillips’s motor strength was intact.
Phillips reported walking up to two blocks and occasionally using a cane. He also
reported having left leg and back pain.
On July 9, 1999, Dr. Falatyn evaluated Phillips again. Phillips reported occasional
moderate and severe pain in his left leg. He also told Dr. Falatyn that he had back pain.
However, he also reported being able to stand for two hours before having left leg pain.
Prior to surgery, Phillips reported being able to stand less than one hour. Dr. Falatyn

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6
found that Phillips’s motor examination was normal. He also noted that Phillips’s
incision was healing well and that he should continue with the home exercise program.
Dr. Falatyn checked a box on a Pennsylvania Department of Public Welfare
employability form indicating that Phillips was temporarily disabled.
Phillips had another lumbar spine MRI examination on September 9, 1999. It
showed normal lumbar vertebral height and alignment and a mild broad based disc bulge
at the L4-L5 level, resulting in mild to moderate foraminal compromise. Following that
examination, Dr. Falatyn evaluated Phillips on September 20, 1999. Phillips reported
having back and left leg pain. Dr. Falatyn recommended that Phillips continue with the
home exercise program and stop smoking. He also discussed the possibility of further
surgical intervention with Phillips.
B. Hearing Testimony.
Phillips testified to occasional use of a cane, although it was not prescribed by Dr.
Falatyn, and a lumbar corset when on his feet for one hour or more. He testified that he
tried to avoid the use of pain medication because it made him groggy. He also testified
that Dr. Falatyn did not impose any specific physical limitation on him other than
avoiding heavy lifting and bending.
As to daily activities, Phillips testified to cooking, cleaning dishes, shopping and
watching television. At the administrative hearing, he pointed to the origin of his leg
pain as being in the right leg. He acknowledged being involved in vocational testing at
Good Shephard Occupational Vocational Rehabilitation Center (“OVR”) in early 1998.

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5
Sedentary work involves lifting no more that ten pounds at a time, and occasionally
lifting or carrying of articles like docket files, ledgers and small tools. Sedentary jobs
require mostly sitting with occasional walking and standing to carry out job duties. 20
C.F.R. §§ 404.1567(a), 416.967(a).
7
When questioned by the ALJ regarding his drug test failure while a client at the OVR,
Phillips responded that he was caught by surprise and was embarrassed by having failed
the drug test. The ALJ also questioned Phillips about his lack of motivation for job
placement while at the OVR. Phillips responded that he was not motivated because he
could not perform the jobs recommended by the OVR.
The ALJ also sought testimony from William Hausch, a VE, to determine whether
there were jobs in the national economy that an individual with Phillips’s vocational
profile cold perform. The ALJ asked the VE to consider an individual of Phillips’s age,
with a similar educational and vocational background. The hypothetical individual was
limited to unskilled sedentary work that required a sit or stand option.
The VE testified that there was work that an individual with Phillips’s vocational
profile could perform, including sedentary jobs of systems monitor, cashier, and order
clerk, for which there were thousands of jobs in the regional and national economies.5
III.
Our scope of review is limited to determining if the Commissioner’s decision is
supported by substantial evidence. 42 U.S.C. §§ 405(g), 1383©)(3); Monsour Medical
Ctr. v. Heckler, 806 F.2d 1185, 1190 (3d Cir. 1986). Substantial evidence refers to that
evidence that "a reasonable mind might accept as adequate to support a conclusion."

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8
Richardson v. Perales, 402 U.S. 389, 401 (1971)(quoting Consolidated Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938)). Substantial evidence is "more than a mere scintilla but
may be somewhat less than a preponderance of the evidence." Ginsberg v. Richardson,
436 F.2d 1146, 1148 (3d Cir. 1971).
IV.
To meet the disability standard under the Act, Phillips was required to prove:
[an] 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 which
has lasted or can be expected to last for a continuous period of
not less that 12 months.
42 U.S.C. § 423(d)(1). Phillips was also required to show that he had a physical or
mental impairment 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, regardless of whether such work exists
in the immediate area in which he lives, or whether a specific
job vacancy exists for him, or whether he would be hired if he
applied for work.
42 U.S.C. § 423(d)(2).
The Commissioner utilizes a five-step sequential evaluation process to evaluate
SSI and DIB claims. 20 C.F.R. §§ 404.1520, 416.920; see generally Heckler v.
Campbell, 461 U.S. 458 (1983). The process requires the Commissioner to consider, in
sequence, whether a claimant: (1) is working, (2) has a severe impairment, (3) has an
impairment that meets or equals the requirements of an impairment listed in the

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6
Residual functional capacity refers to what a claimant can do despite his limitations.
20 C.F.R. §§ 404.1545, 416.945.
9
regulations and is considered per se disabling, (4) can return to his past relevant work
and, (5) if not, whether he can perform other work. 20 C.F.R. §§ 404.1520, 416.920. If
an affirmative decision can be reached at any stage in the sequential evaluation process,
further evaluation is not necessary. 20 C.F.R. §§ 404.1520(a), 416.920(a).
At step four, the ALJ is required to evaluate whether the claimant is able to return
to his past work. Id. Here, the Commissioner found that Phillips had shown that he could
no longer perform his past heavy work as a warehouse worker. Therefore, the burden of
production shifted to the Commissioner at the fifth step of the sequential evaluation
process to produce evidence that Phillips could perform other work in the economy given
his residual functional capacity (“RFC”),6 age, education and work experience. Id. The
Commissioner met that burden by producing evidence from the VE that Phillips could
perform a significant number of sedentary jobs in the national economy. Therefore, the
Commissioner found that Phillips was not disabled under the Act. 42 U.S.C. § 423(d)(1),
(2).
In his appeal, Phillips contends that substantial evidence does not support the
Commissioner’s decision. He makes a number of arguments in support of his contention.
First, he claims that the ALJ only considered a selective portion of the diagnostic
evidence, i.e, MRI scan, CT scans, CT myelogram and EMG test, pertaining to his back
impairment. More particularly, Phillips claims that the ALJ did not consider diagnostic

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7
A written evaluation of every piece of evidence is not required, as long as the ALJ
articulates at some minimum level her analysis of a particular line of evidence. Green v.
Shalala, 51 F.3d 96, 101 (7th Cir. 1995). Moreover, the ALJ’s mere failure to cite
specific evidence does not establish that the ALJ failed to consider it. Black v. Apfel, 143
F.3d 383, 386 (8th Cir. 1998).
10
tests from September of 1998 which were taken after his complaints about lower back and
leg pain which led to his separation from employment as a warehouseman. We disagree.
The ALJ specifically stated that she gave careful consideration to all of the
medical evidence and medical opinions of record, including all of the diagnostic tests. In
fact, the diagnostic tests which Phillips claims the ALJ did not consider are contained in
Exhibit 14F of the record and the ALJ cited to Exhibit 14F numerous times in her
decision. Nonetheless, Phillips faults the ALJ for failing to specifically discuss the
September 17, 1998 EMG which demonstrated evidence of a left side S1 radiculopathy,
with some possible involvement on the left side. However, the ALJ did specifically refer
to a September 9, 1998 MRI which demonstrated a left side disc herniation at L5-S1 with
involvement of the S1 nerve root. The September 17th EMG merely confirmed the
finding of the September 9th MRI.7
In addition, Phillips’s argument incorrectly focuses on the diagnosis of an
impairment rather than the functional limitations that result from that impairment. A
diagnosis of impairment, by itself, does not establish entitlement to benefits under the
Act. Rather, a claimant must show that the impairment resulted in disabling limitations.
Petition of Sullivan, 904 F.2d 826, 845 (3d Cir. 1990).

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8
Phillips’s admission regarding his search for employment occurred after his alleged
onset date of disability.
11
In that regard, Phillips’s second argument is that the ALJ failed to consider the
opinion of his treating physician, Dr. Falatyn. Again, we disagree. Dr. Falatyn’s
treatment notes are notably absent any specific work-related limitations. Similarly, his
clinical findings do not support the existence of any disabling limitations.
Prior to his May 26, 1999 surgery, Phillips displayed essentially normal and intact
lumbar motor strength. Phillips also reported increased mobility, a slight decrease in pain
and participation in more activities. Significantly, during this time, Phillips reported
looking for employment that did not involve lifting.8 Therefore, Dr. Falatyn’s treatment
notes prior to his Phillips’s disc surgery do not portray a totally debilitating impairment.
Likewise, Dr. Falatyn’s treatment notes after Phillips’s disc surgery also do not support
Phillips’s disability claim. Two weeks after surgery, Phillips reported being able to walk
two blocks. Dr. Falatyn reported that Phillips’s motor strength was normal. About one
month after surgery, Phillips said he was able to stand for two hours at a time. In sum,
there is nothing in Dr. Falatyn’s treatment notes, either pre- or post-surgery, that
demonstrates a disabling impairment.
Not unexpectedly, Phillips argues that the ALJ erred by failing to consider Dr.
Falatyn’s July 9, 1999 medical opinion, as expressed on a Pennsylvania Department of
Welfare check-list form, in which Dr. Falatyn indicated that Phillips was temporarily
disabled from September 8, 1999 to October 1, 1999. However, our review of the hearing

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9
The information on the check-list form was for purposes of determining Phillips’
eligibility for state medical welfare benefits, not DIB or SSI. A finding of disability
under the Act is a legal determination to be made by the ALJ. 20 C.F.R. §§ 404.1527(e),
416.927(e). The opinion expressed by checking a box on a form is conclusory in nature.
Indeed, Dr. Falatyn did not cite to any specific work restrictions resulting from Phillips’
impairments that would have prevented him from performing all work activity. Under the
Commissioner’s regulations, this kind of conclusory report is not entitled to significant
weight. 20 C.F.R. §§ 404.1527(d)(2)(ii), 416.927(d)(2)(ii); see also Mason v. Shalala,
994 F.2d 1058, 1965 (3d Cir. 1993) (holding that a form report that requires a physician
only to check a box or fill-in blanks is not substantial evidence by itself).
10
The check-list form also contained boxes indicating: temporarily disabled – 12
months or more, or permanently disabled.
12
decision shows that the ALJ properly considered Dr. Falatyn’s opinion as expressed in the
form.9 In fact, she specifically cited to the check-list form in her written decision. In
addition, the box checked by Dr. Falatyn defined “temporarily disabled” as “less than 12
months.” However, in order to be eligible for disability under the regulations, Phillips
must be disabled for a period of twelve consecutive months. 42 U.S.C. § 423 (d)(1)(2);
Barnhalt v. Walton, 535 U.S. 212 (2002). Significantly, if Dr. Falatyn was of the opinion
that Phillips was unable to engage in substantial gainful activity on a permanent basis, or
for twelve months or more, it would stand to reason that he would have indicated such an
opinion on the form.10 Dr. Falatyn opined that Phillips was temporarily disabled – less
than twelve months. Thus, it is reasonable to conclude that Phillips’s supposed disability
did not last for twelve consecutive months.
Furthermore, to the extent that Dr. Falatyn, by checking the box, actually opined
that Phillips was disabled, his opinion is entitled to controlling weight only if it is well-

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13
supported by clinical and laboratory evidence and is not inconsistent with other
substantial evidence of record. 20 C.F.R. §§ 404.1527(d)(2), 416.927(d)(2). However, as
discussed above, Dr. Falatyn’s treatment notes, and in particular the treatment notes
during the dates indicated on the check-list, do not support a finding that Phillips was
disabled at any time. Therefore, Dr. Falatyn’s opinion, as expressed on the check-list
form, does not support a finding of disability.
Phillips’ third argument is that the ALJ failed to properly evaluate his subjective
complaints of pain. However, our review of the record shows that the ALJ correctly
determined that Phillips’ subjective complaints of pain were not entitled to full credence.
A claimant’s statements about pain symptoms do not alone establish disability. The Act
requires objective medical evidence showing the existence of an impairment which could
reasonably be expected to produce the claimed pain. 42 U.S.C. § 423(d)(5)(A); 20 C.F.R.
§§ 404.1529(a), 416.929(a); Hartranft v. Apfel, 181 F.3d 348 (3d Cir. 1999). In
evaluating symptoms including pain, the regulations provide that the ALJ consider a
claimant’s daily activities; the type, dosage, and effectiveness of pain medication; the
treatment, other than medication, received for relief of other symptoms; and any measures
used to relieve pain or other symptoms. Id.
Here, the ALJ’s finding that Phillips’ subjective complaints of pain were not
credible to the extent Phillips alleged is fully supported. Phillips’ complaints of pain
exceeded the objective findings of record. As noted above, Dr. Falatyn’s treatment notes,
both before and after surgery, do not depict a totally disabling back and leg impairment.

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11
For further discussion of a “closed period of disability, See, Tommy W. Rogers and
Willie L. Rose, Workers’ Compensation and Public Disability Benefits Offsets from
Social Security Disability Benefits, 29 So. U. L. R. 57, 67 n.66 (2001).
14
In addition, Phillips’ conservative treatment history supports the ALJ’s determination that
Phillips’ subjective complaints of pain were not entitled to full credence. After his
surgery, there is no indication that Phillips’ condition required treatment at a pain clinic, a
second orthopedic opinion, treatment in an emergency room, or an examination by a
neurologist. On the contrary, after surgery Phillips only required intermittent pain
medication and an at-home exercise program. Finally, and most significantly, Phillips’
own testimony shows that he was less than credible. The ALJ noted that at the
administrative hearing, Phillips identified the origin of his pain as his right leg. However,
Dr. Falatyn’s treatment notes consistently indicated that Phillips suffered from left leg
pain. The ALJ also noted that Phillips was evasive when he was questioned about failing
a drug test at the OVR and did not provide a plausible explanation about his failure to
fully participate with job placement while at the OVR.
Phillips’ fourth, and last, argument is that the ALJ failed to consider him for a
closed period of disability.11 Although Phillips’ argument is not all that clear, he appears
to argue that since the ALJ found that since he could perform sedentary work in
September 1999, one year after the alleged onset date of his disability, it follows that his
residual functional capacity must have been less than sedentary before that time.
Consequently, he claims a closed period of disability for the time before 1999. However,

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this argument ignores the ALJ’s finding that Phillips had the residual functional capacity
to perform a limited range of sedentary work from his alleged onset date of disability, i.e.,
September 1998, and at all times thereafter. Therefore, Phillips cannot point to a period
of twelve consecutive months in which he was disabled under the Act. Accordingly, the
record does not support a finding that Phillips was entitled to a closed period of disability.
V.
For all of the above reasons, we find that the Commissioner’s determination that
Phillips was not disabled is supported by substantial evidence. Accordingly, we will
affirm the decision of the district court.

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