Jamel Bembery v. Jo Anne B. Barnhart, Commissioner

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-1005
JAMEL BEMBERY
Appellant
v.
JO ANNE B. BARNHART, COMMISSIONER
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 02-cv-09051)
District Judge: Honorable Lowell A. Reed, Jr.
Submitted under Third Circuit LAR 34.1(a)
on 11/15/04
Before: ROTH, SMITH, and WEIS, Circuit Judges.
(Filed July 29, 2005 )
O P I N I O N

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ROTH, Circuit Judge:
Jamel Bembery appeals an Order of the United States District Court for the Eastern
District of Pennsylvania, granting summary judgment in favor of the Commissioner of the
Social Security Administration. Having found that there was substantial evidence to support
the Administrative Law Judge’s (ALJ) findings, the District Court affirmed the ALJ’s denial
of Disability Insurance Benefits (DIB) under Title II of the Social Security Act.
I. FACTS
Bembery filed an application for disability benefits on September 29, 1999, alleging
an onset of disability on or about January 14, 1999, when she apparently fell on an icy
sidewalk on her way to work. After the state agency denied Bembery’s application initially
and upon reconsideration, she requested an administrative hearing. The ALJ found that
Bembery was not disabled because she retained the capacity to perform work which existed
in significant numbers in the national economy. Her appeal of this decision was denied, and
Bembery filed her complaint in federal district court pursuant to 42 U.S.C. § 405(g). The
parties filed cross-motions for summary judgment, and the district court granted summary
judgment in favor of the Commissioner.
In the months leading up to her application for disability benefits, Bembery received
medical attention for injuries related to her fall. X-rays taken of her back and pelvis were
negative. On May 25, 1999, Dr. Corey Ruth diagnosed Bembery with post-traumatic cervical,
thoracic and lumbosacral paraspinal muscle strain. Dr. Ruth recommended outpatient

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therapy and anti-inflammatories for treatment, and told Bembery to avoid heavy lifting. On
January 26, 2000, a state agency medical physician reviewed Bembery’s record, determining
that Bembery could perform light work. During this time, Bembery also underwent several
psychological evaluations. Robert Naseef, Ph. D. diagnosed her with non-psychotic
depression. She was subsequently evaluated by Richard Small, Ph. D., who concluded that
while Bembery had an affective disorder that caused slight difficulties in her social abilities,
none of her problems caused any episodes of deterioration or decompensation in a work or
work-like setting.
II. JURISDICTION AND STANDARD OF REVIEW
The District Court had subject matter jurisdiction pursuant to 42 U.S.C. § 405(g). We
have appellate jurisdiction pursuant to 28 U.S.C. § 1291.
We review the ALJ’s decision to determine whether it was supported by substantial
evidence. Richardson v. Perales, 402 U.S. 389, 390, 401 (1971). Substantial evidence
means such evidence as would be sufficient to justify, if the issue was presented to a jury, a
refusal to direct a verdict. Monsour Med. Ctr. v. Heckler, 806 F.2d 1185, 1190 (3d Cir.
1986), cert. denied, Monsour Med. Ctr. v. Bowen, 482 U.S. 905 (1987). Accordingly, the
factual findings of the Commissioner must be accepted as conclusive, provided that they are
supported by substantial evidence. Richardson v. Perales, 402 U.S. 389, 390 (1971) (citing
42 U.S.C. § 405 (g)).

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III. DISCUSSION
A. Bembery is Capable of Working Under the Current Statutory Regime
Under the Social Security Act, Bembery must prove that she is incapable of engaging
in any “substantial gainful activity by reason of a medically determinable physical or mental
impairment,” and that such impairment is so severe that “she is not only unable to do her
previous work but cannot considering her age, education, and work experience, engage in
any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C.
§ 423 (d)(1)-(2).
In evaluating DIB claims, the Commissioner considers whether a claimaint is (1)
working, (2) has a severe impairment, (3) has an impairment that meets or equals the
requirements of an impairment listed in the regulations and is considered per se disabling,
(4) can return to past work, and (5) if not, whether she can perform other work. 20 C.F.R.
§ 404.1520. While the ALJ found that Bembery was no longer capable of her past work in
step four of the evaluation process, the Commissioner met its burden in step five through the
testimony of a vocational expert (VE), who stated that Bembery could perform a significant
number of unskilled light jobs in the local and national economy, including those of an
assembler, appointment clerk, or order clerk. Based on this testimony, we cannot say that the
ALJ’s finding that Bembery was not disabled went unsupported by substantial evidence.
B. Bembery’s Obesity
Contrary to Bembery’s argument, the ALJ properly accounted for her obesity

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throughout the sequential evaluation process, properly denying her a listing because she
failed to demonstrate a “gross anatomical deformity” as required under step three of the
process. 20 C.F.R. 404, subpt. P, app. 1, § 1.03A (2000). While the ALJ found that
Bembery’s obesity was a severe impairment in step two, the ALJ nevertheless concluded in
step three that Bembery’s ailments in the aggregate did not meet or equal those required for
a listing. In support of this decision, the ALJ relied on Bembery’s daily routine that involved
walking several blocks at a time without stopping, and climbing steps five times per day.
Therefore, the ALJ was correct in concluding that Bembery did not meet all of the criteria
listed for a “gross anatomical deformity.”
C. Dr. Bazilian’s Opinion
Under 20 C.F.R. § 404.1527(d)(2), the opinion of a treating physician must be given
controlling weight when it is not inconsistent with other substantial evidence in the record.
However, the opinions of Dr. Naseef and Dr. Small, as well as Bembery’s own testimony,
clearly demonstrate inconsistencies with Dr. Bazilian’s report. Therefore, the ALJ’s decision
to discount the report of Dr. Bazilian was supported by substantial evidence.
D. Bembery’s Credibility
The ALJ is required to determine the extent to which a claimant is accurately stating
the degree of pain or the extent to which he or she is disabled by it. Hartranft v. Apfel, 181
F.3d 358, 362 (3d Cir. 1999) (citing 20 C.F.R. § 404.1529(c)). Under the current statutory
regime, a claimant’s statements about her pain and symptoms do not alone establish

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disability. 42 U.S.C. § 423 (d)(5)(A); 20 C.F.R. § 404.1529(c). Rather, a disability must be
proven through objective medical evidence. Furthermore, the ALJ should consider a
claimant’s daily activities, the location, frequency, and intensity of the pain or symptoms, the
type and dosage of pain medication, and any other measures used to relieve the alleged pain.
20 C.F.R. § 404.1529(c)(3) (2003). In making such determinations, the ALJ is given great
discretion, and such findings are entitled to judicial deference. Van Horn v. Schweiker, 717
F.2d 871, 873 (3d Cir. 1983); Murphy v. Schweiker, 524 F. Supp. 228, 232 (E.D. Pa. 1981).
While Bembery complained of being in severe pain, the ALJ properly found these
statements only partially credible for a number of reasons, all of which are legitimate. First,
Bembery’s list of daily activities strongly conflict with her allegations of having totally
disabling limitations and pain. Second, nowhere in the medical opinions of Dr. Naseef and
Dr. Small do they indicate that Bembery was under such pain or suffering from these alleged
symptoms. Third, the ALJ, having witnessed first-hand Bembery’s appearance and demeanor
at her hearing and agency interviews, found Bembery’s statements only partially credible.
Based on these findings, we conclude that the ALJ’s decision to discount Bembery’s
credibility was supported by substantial evidence.
IV. CONCLUSION
For the foregoing reasons, we will affirm the judgment of the District Court.

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