Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
4-14-2005
Henry v. Comm Social Security
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-2619
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 04-2619
DOLORES HENRY,
Appellant
v.
JO ANNE B. BARNHART,
COMMISSIONER OF SOCIAL SECURITY
Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil Action No. 02-cv-04701)
District Judge: Honorable Stewart Dalzell
Submitted Under Third Circuit LAR 34.1(a)
March 10, 2005
Before: SCIRICA, Chief Judge, ROTH and AMBRO, Circuit Judges
(Opinion filed: April 14, 2005)
OPINION
AMBRO, Circuit Judge
Dolores Henry appeals from the District Court’s entry of summary judgment in
favor of the Commissioner of Social Security (“Commissioner”). The District Court had
jurisdiction pursuant to 42 U.S.C. § 405(g), and we have appellate jurisdiction under 28
U.S.C. § 1291. For the reasons that follow, we conclude that the Commissioner’s
determination that Ms. Henry was not disabled within the meaning of the Social Security
Act is supported by substantial evidence, and thus affirm.
I.
Because we write solely for the benefit of the parties, we do not recite the facts
giving rise to this appeal. This Court’s standard of review is identical to that of the
District Court; we must determine whether there is substantial evidence to support the
Commissioner’s decision. Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999).
Substantial evidence means “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Jesurum v. Sec’y of the U.S. Dep’t of Health &
Human Servs., 48 F.3d 114, 117 (3d Cir. 1995) (quotation omitted). “It is less than a
preponderance of the evidence but more than a mere scintilla.” Id.
II.
In reviewing claims for disability insurance benefits, an Administrative Law Judge
(“ALJ”) determines whether a claimant is disabled pursuant to a five-step test. See 20
C.F.R. § 404.1520. Here, only the fourth and fifth steps are in play, and we turn first to
the fifth step, as it is the focus of much of the briefing. At step five the Commissioner
has the burden to show that the claimant can perform other work that exists in substantial
2
numbers in the national economy, and if that burden is met the claimant will be found not
disabled. See 20 C.F.R. §§ 404.1520(g); Plummer, 186 F.3d at 427-28. The ALJ may
use the Medical-Vocational Guidelines (“Grids”) in making the step five determination.
Sykes v. Apfel, 228 F.3d 259, 263 (3d Cir. 2000).
With respect to this step, Ms. Henry argues that the ALJ’s finding 1 that she could
perform other work (and therefore was not disabled) is untenable because she has a
smaller occupational base than an individual of her age, education, and experience who
can perform the full range of sedentary work. Specifically, she points out that her
occupational base applying Rule 201.15 of the Grids—which the ALJ applied here—is
127, meaning there are no more than 127 unskilled and semiskilled occupations in the
Dictionary of Occupational Titles that such an individual could perform. She further
points out that under Rule 201.14—which when applicable requires a finding that the
claimant is disabled—would have an occupational base of 137. Thus, Ms. Henry’s
argument poses the following question: if one person has a smaller occupational base than
another person considered disabled under the regulations, how can the former be found
not disabled?
This argument, however, incorrectly assumes that “occupations” instead of “jobs”
form the basis of the relevant analysis. As the District Court explained in its thorough
1
The ALJ’s decision became the final decision of the Commissioner under 20
C.F.R. § 404.984.
3
and well-reasoned decision, Ms. Henry’s argument diverts attention from the relevant
issue at step five of the analysis, that is, whether “there is a significant number of jobs (in
one or more occupations) having requirements which [the claimant is] able to meet with
[her] physical or mental abilities and vocational qualifications.” 20 C.F.R. § 404.1566(b).
In addition, the vocational expert’s testimony—that Ms. Henry had the capacity to work
as a dispatcher and that there were a significant number of dispatcher jobs—remains
unchallenged. Moreover, it makes the ALJ’s decision supported by substantial evidence.2
III.
Second, Ms. Henry argues that in step four of the analysis the ALJ erred by failing
to consider adequately her mental impairment. In step four, the Commissioner examines
the claimant’s “residual functional capacity” and whether that capacity enables her to
perform her past relevant work. 20 C.F.R. § 404.1520(e). If so, the claimant is not
eligible for disability benefits. Id. In any event, the claimant bears the burden of
demonstrating an inability to return to her past relevant work. Burnett v. Commissioner of
SSA, 220 F.3d 112, 118 (3d Cir. 2000).
2
Ms. Henry’s additional arguments that the ALJ misapplied or misinterpreted the
Grids are unpersuasive, particularly as the ALJ’s actions comport with established
procedures in our Circuit. See, e.g., Sykes v. Apfel, 228 F.3d at 266-70. Furthermore, Ms.
Henry argues that the ALJ’s decision violates equal protection because she “has not had
her claim adjudicated according to current law.” (Appellant’s Reply Br. at 12.) Because
we conclude that the ALJ’s determinations are supported by substantial evidence and not
contrary to current law, this argument too must fail.
4
Ms. Henry’s position is that she has a significant mental impairment, namely
depression and anxiety. The Commissioner responds—without challenge—that there is
no medical evidence of record that any of Ms. Henry’s treating physicians believed that
she suffered functional limitations as a result of either depression or anxiety prior to the
expiration of her insured status during the time period at issue. Furthermore, the ALJ
properly gave the letter of Dr. Andrew Nemeth—authored in a conclusory fashion several
years after the time period for which Ms. Henry seeks benefits—little weight. Added to
this, the record suggests that Ms. Henry is able to perform her regular activities of daily
living, which runs counter to her assertion. In light of the lack of evidence of record
supporting Ms. Henry on this point and in view of the burden on her under step four, we
cannot say that the ALJ failed to consider adequately Ms. Henry’s mental condition.
* * * * *
For the reasons discussed above, the ALJ’s decision was supported by substantial
evidence, and thus we affirm the judgment of the District Court.
5