SHIRLEY McCREA v. COMMISSIONER OF SOCIAL SECURITY Appeal from the United States District Court for the…

PRECEDENTIAL
UNITED STATES COURT
OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-3261
SHIRLEY McCREA,
Appellant
v.
COMMISSIONER OF
SOCIAL SECURITY
Appeal from the United States District
Court for the District of New Jersey
(D.C. Civil No. 02-cv-00562)
District Judge:
Honorable William G. Bassler
Argued April 15, 2004
Before: RENDELL, STAPLETON
and LAY*, Circuit Judges.
(Filed May 27, 2004)
*Honorable Donald P. Lay, Senior Circuit
Judge for the Eighth Circuit, sitting by
designation.
Abraham S. Alter (ARGUED)
Langton & Alter
2096 St. Georges Avenue
P.O. Box 1798
Rahway, NJ 07065
Counsel for Appellant
Anthony J. LaBruna, Jr.
Office of the U.S. Attorney
970 Broad Street, Room 700
Newark, NJ 07102
Stephen P. Conte (ARGUED)
Social Security Administration
Office of General Counsel - Region II
26 Federal Plaza, Suite 3904
New York, NY 10278
Counsel for Appellee
OPINION OF THE COURT
LAY, Circuit Judge.
Shirley McCrea appeals from an
order of the district court affirming the
final decision of the Commissioner of
Social Security denying her application for
disability benefits under Titles II and XVI
of the Social Security Act (the “Act”), 42
U.S.C. §§ 401 et seq. Jurisdiction in the
district court was proper by virtue of 42
U.S.C. §§ 405(g), 1383(c)(3), and our
jurisdiction is conferred by 28 U.S.C.
§ 1291. For the reasons that follow, we
reverse the district court’s order and
remand the matter to the Commissioner for
further proceedings.

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I. BACKGROUND
McCrea is a fifty-two-year-old
native of Jamaica with prior relevant work
history as a nurses’ aide. On April 8,
1997, she filed an application for disability
insurance benefits and supplemental
security income payments, alleging an
inability to work since February 15, 1995,
due to constant pain in her neck, lower
back, and spine, as well as frequent
headaches. Her application was denied
both initially and on reconsideration. At
McCrea’s request, a hearing was held
before an administrative law judge
(“ALJ”) on January 7, 1999.
At the hearing, McCrea testified in
further detail regarding her condition. She
stated that the onset of her pain coincided
with an automobile accident on February
15, 1995. McCrea testified that since the
accident, she suffered from constant
stiffness in her neck, making it difficult for
her to turn her head from side to side. She
believed that these neck injuries were the
source of her constant headaches, which in
turn compromised her concentration and
memory. McCrea also testified that
following the accident, she experienced
lower back pain that not only made it
difficult for her to bend, but also radiated
into her legs, causing stiffness and
impairing her ability to stand and walk.
Finally, McCrea testified to suffering from
continuous shoulder pain as a result of the
accident.
Also testifying at the hearing was a
non-examining physician, Albert G.
Mylod, Jr., M.D., a board-certified
orthopedic surgeon. Dr. Mylod concluded
that based upon his review of her medical
file, McCrea suffered from two small
herniated discs in her lumbosacral region
at L4-L5 and L5-S1. In Dr. Mylod’s
opinion, these herniations not only
substantiated her complaints of lower back
pain, but also potentially accounted for her
complaints of leg pain. Regarding
McCrea’s complaints of neck pain and
headaches, Dr. Mylod acknowledged that
an MRI of her cervical spine showed no
abnormalities. He nevertheless opined that
it was possible that “some of these
headaches could be from a cervical strain
which we just haven’t seen.” Tr. at 46.1
As a more likely potential source for her
headaches, Dr. Mylod identified an MRI
of what he believed to be McCrea’s brain,2
the results of which were consistent with a
prior trauma.
On June 25, 1999, the ALJ rendered
a decision denying McCrea’s application
for benefits. The ALJ determined that
after considering all of the evidence,
including the opinions of several
physicians and McCrea’s records of
treatment, McCrea failed to demonstrate
that she suffered from an impairment or
combination of impairments that was
“severe” within the meaning of the Act.
1“Tr.” refers to the transcript of the
administrative record in this matter.
2The MRI on which Dr. Mylod relied
was that of the brain of an individual
named Maria Roman. In his decision, the
ALJ noted this error.

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After McCrea’s request for review by the
Appeals Council was denied, the decision
of the ALJ became the final ruling of the
Commissioner.
H a v i n g e x h a u s t e d h e r
administrative remedies, McCrea filed a
complaint in the United States District
Court for the District of New Jersey,
seeking review of the Commissioner’s
denial of benefits. On June 12, 2003, the
district court issued an opinion affirming
the Commissioner’s decision, finding that
it was supported by substantial evidence.
Accordingly, the district court entered an
order dismissing McCrea’s action.
II. ANALYSIS
While we exercise plenary review
over the district court’s order of dismissal,
we review the Commissioner’s denial of
benefits to determine whether it is
supported by substantial evidence on the
record as a whole. See Newell v. Comm’r
of Soc. Sec., 347 F.3d 541, 549 (3d Cir.
2003) (citing Podedworny v. Harris, 745
F.2d 210, 221-22 (3d Cir. 1984)); see also
Universal Camera Corp. v. NLRB, 340
U.S. 474, 488 (1951). Substantial
evidence is “such relevant evidence as a
reasonable mind might accept as adequate
to support a conclusion.” Newell, 347
F.3d at 545 (quotation and citation
omitted). Although substantial evidence is
more than a mere scintilla, it need not rise
to the level of a preponderance. Id.
In determining whether an applicant
is disabled within the meaning of the Act,
and therefore eligible for benefits, the
Commissioner applie s a five -step
sequential evaluation process. This court
has on several prior occasions set forth
each step in detail, see, e.g., Newell, 347
F.3d at 545-46; although repetitious, we
briefly mention these steps as well. The
Commissioner inquires, in turn, whether
an applicant: (1) is engaged in substantial
gainful activity; (2) suffers from an
impairment or combination of impairments
that is “severe”; (3) suffers from an
impairment or combination of impairments
that meets or equals a listed impairment;
(4) is able to perform his or her past
relevant work; and (5) is able to perform
work existing in significant numbers in the
national economy. See 20 C.F.R. §§
404.1520(a)-(f), 416.920(a)-(f).3
We now focus our attention on step
two, the point at which the ALJ denied
McCrea’s application for benefits. In
language directed toward applicants rather
than adjudicators, step two informs that
If you do not have any
impairment or combination
of impa irmen ts wh ich
significantly limits your
3Although they are governed by separate
regulatory schemes, applications for
disab ility insurance benefits and
supplemental security income are
processed using an identical five-step
sequential analysis. See McDonald v.
Sec’y of Health & Human Res., 795 F.2d
1118, 1120 n.1 (1st Cir. 1986).

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physical or mental
ability to do basic
work activities, we
[the Social Security
Administration] will
find that you do not
h a v e a s e v e r e
impairment and are,
t h e r e f o r e , n o t
disabled.
20 C.F.R. §§ 404.1520(c), 416.920(c); see
also id. §§ 404.1521(a), 416.921(a) (“An
impairment or combination of impairments
is not severe if it does not significantly
limit your physical or mental ability to do
b a s i c w o r k a c t i v it i e s. ” ). T h e
Commissioner’s regulations define “basic
work activities” to include, inter alia,
“[p]hysical functions such as walking,
standing, sitting, lifting, pushing, pulling,
reaching, carrying, or handling.” Id.
§§ 404.1521(b)(1), 416.921(b)(1).
The burden placed on an applicant
at step two is not an exacting one.
Although the regulatory language speaks
in terms of “severity,” the Commissioner
has clarified that an applicant need only
demonstrate something beyond “a slight
abnormality or a combination of slight
abnormalities which would have no more
than a minimal effect on an individual’s
ability to work.” SSR 85-28, 1985 WL
56856, at *3; see also Newell, 347 F.3d at
546 (“If the evidence presented by the
claimant presents more than a ‘slight
abnormality,’ the step-two requirement of
‘severe’ is met, and the sequential
evaluation process should continue.”).
Any doubt as to whether this showing has
been made is to be resolved in favor of the
applicant. Newell, 347 F.3d at 546-47. In
short, “[t]he step-two inquiry is a de
minimis screening device to dispose of
groundless claims.” Id. at 546; accord
McDonald, 795 F.2d at 1123.
Due to this limited function, the
Commissioner’s determination to deny an
applicant’s request for benefits at step two
should be reviewed with close scrutiny.
We do not suggest, however, that a
reviewing court should apply a more
stringent standard of review in these cases.
The Commissioner’s denial at step two,
like one made at any other step in the
sequential analysis, is to be upheld if
supported by substantial evidence on the
record as a whole. See Williams v.
Sullivan, 970 F.2d 1178, 1182 (3d Cir.
1992) (“Neither the district court nor this
court is empowered to weigh the evidence
or substitute its conclusions for those of
the fact-finder.”). Instead, we express only
the common-sense position that because
step two is to be rarely utilized as basis for
the denial of benefits, see SSR 85-28,
1995 WL 56856, at *4 (“Great care should
be exercised in applying the not severe
impairment concept.”), its invocation is
certain to raise a judicial eyebrow.
With these legal principles in mind,
w e m u s t d e c i d e w h e t h e r t h e
Com missioner’s determination that
McCrea failed to pass step two’s de
minimis threshold is supported by
substantial evidence. Our review of the
record convinces us that it is not.

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F i r s t , a n d p e rh a p s m o s t
signific an tly, McCrea’s statements
regarding the nature and extent of her pain
were supported by objective medical
evidence. See 20 C.F.R. §§ 404.1529(b),
416.929(b); see also Hartranft v. Apfel,
181 F.3d 358, 362 (3d Cir. 1999). Her
complaints of constant lower back pain
were corroborated by MRI testing of her
lumbosacral spine performed on June 22,
1995, at the request of her treating
neurologist, Michael L. Sananman, M.D.
As Dr. Mylod testified at the hearing, these
tests demonstrated the presence of two
herniated discs which, due to their
positioning, also “presumably explain[ed]”
McCrea’s leg pain. Tr. at 45. X-ray
testing performed on November 5, 1997,
revealed a possible left shoulder
separation, thereby supporting McCrea’s
claim of shoulder pain. Finally, x-ray
testing of McCrea’s cervical spine
performed on this same date revealed that
she was suffering from mild left torticollis,
a condition caused by the contraction of
neck muscles whereby “the head is drawn
to one side and usually rotated so that the
chin points to the other side.” STEDMAN’S
MEDICAL DICTIONARY 1847 (27th ed.
2000). This testing clearly substantiated
McCrea’s complaints of neck pain and
frequent headaches.
Second, the nature of McCrea’s
treatment history further establishes that
her impairments had more than a minimal
impact on her ability to do basic work
a c t i v i t i e s . S e e 2 0 C . F . R .
§ § 4 0 4 . 1 5 2 9 ( c ) ( 3 ) ( i ) - ( v i i ) ,
416.929(c)(3)(i)-(vii). To alleviate the
pain in her lower back and neck, Dr.
Sananman administered steroid injections
into McCrea’s lumbosacral and cervical
spine on several occasions between June
13, 1995 and November 11, 1997. As Dr.
Sananman noted in one of his reports,
“[e]ach of these injections was given to a
painful trigger point which was the focus
of severe, persistent muscle spasm.” Tr. at
370 (emphasis added). Dr. Sananman also
directed McCrea to use a “lumbosacral
brace and cervical collar as necessary for
[her] pain.” Id. at 368.
Finally, McCrea’s statements
regarding the limiting nature of her
impairments were supported by the
opinion of her treating physician, Dr.
S a n a n m a n . S e e 2 0 C . F . R .
§§ 404.1527(d)(2), 416.927(d)(2); see also
Morales v. Apfel, 225 F.3d 310, 317 (3d
Cir. 2000). In a report dated December 17,
1996, addressed to state medical
examiners, Dr. Sananman opined that
“[b]ecause of her back and neck pain,
[McCrea] is not able to sit for more than
two hours a day, and she is not able to
carry objects of more than twenty pounds
at any time and of objects of ten pounds
more than two hours a day.” Tr. at 232-33.
While acknowledging each of the
foregoing pieces of evidence in his denial
of benefits, the ALJ minimized their
import. Regarding the x-ray and MRI
examinations demonstrating the legitimacy
of McCrea’s impairments, the ALJ
emphasized that the test results revealed

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only “small” or “mild” abnormalities.4 As
to McCrea’s treatment history, the ALJ
pointed out that her complaints of pain
were most commonly met with directions
to take non-steroidal anti-inflammatory
medications such as Naprosyn, Advil, and
Motrin. Finally, the ALJ refused to attach
any significant weight to Dr. Sananman’s
opinion, reasoning that such a drastic
limitation on McCrea’ s physical
functioning was inconsistent with the
medical evidence and conservative
treatment strategies detailed in the record.
We need not concern ourselves with
this reasoning at length. Although the
observations made by the ALJ may or may
not be relevant in later steps of the
sequential analysis, see, e.g., 20 C.F.R.
§§ 404.1520(d)-(f), 416.920(d)-(f), they
certainly do not carry the day at step two.
We believe that viewing the record in its
entirety, see Universal Camera Corp., 340
U.S. at 488 (“The substantiality of
evidence must take into account whatever
in the record fairly detracts from its
weight.”), no reasonable person could fail
to conclude that M cCrea’s physical
conditions were “severe” under the de
minimis interpretation of that term
currently endorsed by the Commissioner.
III. CONCLUSION
Based on the foregoing, we hold
that McCrea’s application for disability
benefits does not fall within the category
of “groundless claims” that step two of the
Commissioner’s five-step sequential
evaluation process was designed to remove
from consideration. Newell, 347 F.3d at
546. Therefore, the order of the district
court will be REVERSED and the cause
REMANDED with instructions to remand
the matter to the Commissioner for further
proceedings consistent with this opinion.
4Also relevant in this regard is the
following colloquy between the ALJ and
Dr. Mylod that took place during the
hearing:
ALJ:Doctor, excuse me, if
you don’t mind. The
herniated disks, so I can put
that aside, are they small --
ME [Dr. Mylod]: There’s a
[sic] small herniated disks,
but one on each side.
Tr. at 46.

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