Opinions of the United
2007 Decisions States Court of Appeals
for the Third Circuit
2-28-2007
Melvin v. Comm Social Security
Precedential or Non-Precedential: Non-Precedential
Docket No. 05-4400
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2007
Recommended Citation
"Melvin v. Comm Social Security" (2007). 2007 Decisions. Paper 1557.
http://digitalcommons.law.villanova.edu/thirdcircuit_2007/1557
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2007 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 05-4400
REGINALD MELVIN,
Appellant
v.
COMMISSIONER OF SOCIAL SECURITY
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 03-cv-01370)
District Court Judge: Honorable Dennis M. Cavanaugh
Submitted pursuant to Third Circuit L.A.R. 34.1(a)
June 30, 2006
Before: BARRY, VAN ANTWERPEN, and JOHN R. GIBSON,* Circuit Judges.
(Filed February 28, 2007)
OPINION OF THE COURT
JOHN R. GIBSON, Circuit Judge.
*
The Honorable John R. Gibson, Senior Circuit Judge, United States Court of Appeals
for the Eighth Circuit.
Reginald Melvin appeals the District Court order affirming the final decision of
the Commissioner of Social Security denying his claim for disability insurance benefits.
Melvin had to stop working as a bus driver after the State of New Jersey suspended the
passenger endorsement on his commercial driver's license on account of his
cardiovascular disease. He argues that the ALJ failed to explain his finding that Melvin
did not have a listed impairment and ignored probative medical evidence in assessing
Melvin's residual functional capacity to perform medium work. Melvin also contends that
the ALJ improperly used the medical-vocational grids in the Social Security regulations
as a "framework" to conclude that Melvin's nonexertional limitation against commercial
driving did not erode his occupational base sufficiently to render him disabled. The
District Court had jurisdiction pursuant to 42 U.S.C. § 405(g), and appellate jurisdiction
exists under 28 U.S.C. § 1291. We will AFFIRM.
At the time the ALJ heard Melvin's claim for social security benefits, Melvin was
fifty-five years old, had an eleventh-grade education, and had worked primarily as a
commercial bus and truck driver. The State of New Jersey suspended the passenger
endorsement on his commercial driver's license in September 1999 because Melvin's
physical exam revealed scarring on the walls of his heart, suggesting that he had suffered
undetected heart attacks. After his application for disability benefits was denied initially
and on reconsideration, he requested a hearing before an ALJ. At the hearing and in
questionnaires submitted to the Commissioner, Melvin complained of symptoms
including chest pain, shortness of breath, numbness in his left arm, frequent urination,
-2-
headaches, and dizziness. The reports of several doctors who had treated and examined
Melvin were before the ALJ, and cardiologist Dr. Donald P. Peyser testified at the
hearing. Melvin had been diagnosed with diabetes, hypertension, obesity, nicotine
depression, and poor eyesight; he partially controlled his diabetes and hypertension with
medication and wore glasses to correct his vision. While he complained of chest pain at
some medical visits, at others he voiced no complaints. Without the results of Melvin's
cardiac catheterization test, Dr. Peyser was unable to conclude that Melvin had "any
cardiac disease whatsoever."
The ALJ ultimately denied Melvin's claim for benefits, employing the familiar
five-step analysis set forth in 20 C.F.R. § 404.1520. The ALJ found that Melvin was not
performing substantial gainful work and that his combination of impairments was severe
but did not meet or medically equal any impairment listed in the Social Security
regulations. The ALJ further found that Melvin did not have the capacity to do his past
work as a bus driver because the State's action on his driver's license legally prevented
him from operating commercial vehicles, but that Melvin retained the residual functional
capacity to perform medium work. Treating Melvin's license suspension as a
nonexertional limitation against operating commercial vehicles, the ALJ concluded that
Melvin was not disabled because the national economy contained a sufficient number of
medium exertion jobs that did not require commercial driving.
Our review "is identical to that of the District Court, namely to determine whether
there is substantial evidence to support the Commissioner's decision." Plummer v. Apfel,
-3-
186 F.3d 422, 427 (3d Cir. 1999). Substantial evidence is "such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion." Richardson v.
Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197,
229 (1938)).
First, Melvin challenges the ALJ's finding that his impairments, though severe, did
not meet or medically equal any impairment listed in the Social Security regulations, 20
C.F.R. Pt. 404, Subpt. P, App. 1. In reaching this conclusion, the ALJ stated:
The requirements of the most similar listings, sections 4.03 (hypertensive
cardiovascular disease), 4.04 (ischemic heart disease) and 9.08 (diabetes
mellitus) have been given particular attention in reaching this conclusion,
but the clinical and laboratory evidence does not approach the levels
contemplated by the listings.
Melvin likens the ALJ's analysis of his impairment to that of the ALJ in Burnett v.
Commissioner of Social Security Administration, 220 F.3d 112 (3d Cir. 2000), where this
Court held inadequate the ALJ's "conclusory statement" that the claimant's "severe
musculoskeletal impairment" did not meet or equal a listed impairment, id. at 119, 117.
Unlike the ALJ in Burnett, however, the ALJ in this case explained his findings in
sufficient detail to allow us to conduct "meaningful judicial review." Id. at 119. The ALJ
identified the three listings relevant to Melvin's impairments and described the medical
evidence in the record, including Melvin's symptoms and the findings of various doctors
who examined him. Melvin's diabetes and hypertension were partially controlled with
medication. He had vision problems, but, with corrective lenses, his visual acuity was
"excellent." Finally, although Melvin had at times reported what might seem to be heart-
-4-
related symptoms such as chest pain and shortness of breath, he performed well on his
exercise test, and Dr. Peyser concluded that his episodes were atypical for cardiac
problems. After the hearing, the ALJ left the record open so that Melvin could submit the
results of a cardiac catheterization procedure he had recently undergone, but Melvin
never submitted the report. Substantial evidence supports the ALJ's finding that Melvin's
impairments did not meet or medically equal a listed impairment.
Melvin next argues that, in finding that he had the residual functional capacity to
do medium exertion work, the ALJ gave undue weight to paid expert Dr. Peyser's
testimony and failed to consider Melvin's subjective testimony on his inability to work
and the report of his treating physician. An ALJ "must give great weight to a claimant's
subjective testimony" of his inability to work if the claimant's testimony is "supported by
competent medical evidence." Schaudeck v. Comm'r of Soc. Sec. Admin., 181 F.3d 429,
433 (3d Cir. 1999). In this case, Melvin testified that he had chest pains and had
difficulty lifting and holding everyday objects. The medical evidence does not support
this testimony, however, because Melvin's exercise test results were strong, his treating
physician and other doctors concluded that he was able to perform various work-related
physical activities, his treating physician reported that he currently had no chest
discomfort, Dr. Peyser was unable to conclude that he had "any cardiac disease
whatsoever," and Melvin failed to submit evidence to the contrary (i.e., the results of his
cardiac catheterization test). Melvin correctly points out that an ALJ must give great
weight to a treating physician's opinion unless other medical evidence contradicts it.
-5-
Allen v. Bowen, 881 F.2d 37, 41-42 (3d Cir. 1989). Contrary to Melvin's assertions, the
ALJ did that here, giving "significant" weight to the opinion of his treating physician, Dr.
Govinda Raju. Dr. Raju's opinion was consistent with other medical evidence suggesting
that the self-reported severity of Melvin's symptoms simply was not consistent with his
medically documented impairments. The record belies Melvin's contention that the ALJ
relied on expert cardiologist Dr. Peyser's unfavorable testimony to the exclusion of others,
where the ALJ recounted the medical evidence from all sources, including Dr. Raju. Dr.
Raju opined that Melvin had "good effort tolerance" and could do work-related physical
activities "without difficulty." Physicians from the Disability Determination Service
concluded that Melvin could lift, carry, push and/or pull fifty pounds occasionally and
twenty-five pounds frequently; walk and/or stand for a total of about six hours in an
eight-hour day with normal breaks; sit for a total of about six hours in an eight-hour day
with normal breaks; and perform all other physical work-related activities. Melvin
himself testified that he was able to do his laundry, keep his apartment clean, walk half a
block to the grocery store, attend support group meetings, and have lunch out with
friends. Thus, substantial evidence supports the ALJ's conclusion that Melvin had the
residual functional capacity to perform medium work activity.
Finally, Melvin contends that the ALJ improperly used the medical-vocational
grids, 20 C.F.R. Pt. 404, Subpt. P, App. 2, Table No. 3, Rule 203.12, as a "framework"
for determining that he was not disabled without taking additional vocational evidence to
determine how his nonexertional limitation affected his occupational base as required by
-6-
Sykes v. Apfel, 228 F.3d 259, 261 (3d Cir. 2000). The ALJ properly concluded that,
because the suspension of the passenger endorsement on Melvin's license barred him
from commercial driving, Melvin was unable to perform his past work and had no
transferable skills. The ALJ additionally found that Melvin had a "nonexertional
limitation against operating commercial vehicles," and, without citing evidence,
concluded that "the claimant's nonexertional limitation erodes his occupational base
somewhat; but does not preclude most medium exertion occupations." Under Sykes, an
ALJ cannot rely solely on medical-vocational grids but must take additional vocational
evidence or provide notice to the claimant of his intention to use official notice in
determining whether the claimant's nonexertional impairments significantly erode his
occupational base. Sykes, 228 F.3d at 261; see also Soc. Sec. Acquiescence Ruling 01-
1(3), 2001 WL 65745, at *4 (2001). The ALJ did neither in this case.
Sykes does not apply in this instance, however, because Melvin's restriction
against commercial driving is not a true nonexertional limitation, despite the ALJ's label
to the contrary. A nonexertional limitation must be "medically determinable." S.S.R. 85-
15, 1985 WL 56857, at *2 (1985) (examples of nonexertional limitations include mental
impairments, postural and manipulative difficulties, hearing and visual impairments, and
environmental restrictions such as a medical need to avoid extremes of temperature and
noise). Melvin's restriction against operating commercial vehicles was a matter of his
legal eligibility, not his physical and mental capacity, to perform commercial driving
under criteria set by the State of New Jersey. While the underlying reason for the State's
-7-
action on Melvin's license was based on evidence that he had cardiovascular disease and
the ALJ gave significant weight to the functional implications of the State's policy that
individuals with certain cardiovascular diseases are not physically qualified to perform
commercial driving, the ALJ ultimately rejected Melvin's contention that he had a
disabling risk of heart attacks that limited the work he could perform. Substantial
evidence supports this conclusion, where Melvin's heart-related symptoms were scant and
he stopped working as a bus driver only when the passenger endorsement on his license
was actually suspended. Melvin had undergone a cardiac catheterization procedure,
which could have shown definitively whether he had a heart condition, but he never
submitted the test results to the ALJ. As the medical expert remarked, those test results
also might have enabled Melvin to obtain reinstatement of the passenger endorsement on
his license from the State. Because Melvin's restriction against operating commercial
vehicles was primarily a matter of his legal eligibility, not his medical capacity, it was not
a true nonexertional limitation, and the additional evidentiary requirements of Sykes do
not apply.
Nor did Melvin's restriction against commercial driving affect his occupational
base under the grids. The grids applied to Melvin were for "medium work," which means
unskilled work. 20 C.F.R. Pt. 404, Subpt. P, App. 2, Table No. 3, Rule 203.00. Jobs that
require a commercial driver's license are semiskilled, see S.S.R. 83-10, 1983 WL 31251,
at *6 (1983), so they were never part of his occupational base under the grids. Thus,
substantial evidence supports the ALJ's conclusion that Melvin was not disabled even
-8-
though he could not legally perform jobs that require commercial driving.
We will AFFIRM the judgment of the District Court.