NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 21-2009
______
JOHN F. ANDERSON,
Appellant
v.
COMMISSIONER OF SOCIAL SECURITY
____________
On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civ. No. 2-18-cv-03625)
Magistrate Judge: Honorable Norah McCann King
____________
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
May 3, 2022
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Before: GREENAWAY, JR., PORTER, and PHIPPS, Circuit Judges.
(Filed: May 24, 2022)
___________
OPINION*
___________
*
This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
PHIPPS, Circuit Judge.
John Anderson claims that his obesity together with injuries to his neck, back,
knee, and foot from a truck accident, along with his other digestive ailments, prevents
him from working. Based on those conditions, he requested Disability Insurance Benefits
from the Social Security Administration, proceeding through each of the four stages of
administrative adjudication, including a hearing before an Administrative Law Judge.1
At each stage, SSA denied Anderson’s request, and he sought judicial review of that
determination. The District Court upheld SSA’s denial of benefits, and for the reasons
below, we will affirm that judgment.
I. BACKGROUND
To qualify for Disability Insurance Benefits, a fully-insured individual must be
disabled. See 42 U.S.C. § 423(a)(1), (c)(1), (d) (2020). As defined by statute, a person is
disabled if he or she cannot engage in substantial gainful activity due to a physical or
mental impairment lasting without interruption for more than twelve months. See id.
§ 423(d). Applied to Anderson, who was fully insured until December 31, 2014, the
inquiry becomes whether he was disabled as of that date.
Regulations promulgated by SSA set forth five steps for assessing disability.
Under that process, a person may qualify as disabled through two partially overlapping
paths: by prevailing at Steps One, Two, and Three, or alternatively by succeeding at
Steps One, Two, Four, and Five. See 20 C.F.R. § 404.1520(a)(4) (2011).
1
See generally Smith v. Berryhill, 139 S. Ct. 1765, 1772 (2019) (articulating the four
stages of administrative review as an initial eligibility determination, reconsideration, a
formal hearing, and review by the Appeals Council). See also 5 U.S.C. § 3105
(providing for the appointment of administrative law judges to conduct administrative
hearings); Cirko ex rel. Cirko v. Comm’r of Soc. Sec., 948 F.3d 148, 152 (3d Cir. 2020)
(discussing the appointment of SSA administrative law judges).
2
Here, no one disputes that Anderson succeeds at Steps One, Two, and Four. At
Step One, the ALJ determined that because he was not working, Anderson was not
performing substantial gainful activity during the relevant time. See 20 C.F.R.
§ 404.1520(a)(4)(i) (articulating Step One as an evaluation of whether the applicant is
performing substantial gainful activity). The ALJ also found in Anderson’s favor at Step
Two by concluding that he had several severe medical impairments that significantly
limited his ability to perform basic work activities and were expected to last for more
than one year. See id. §§ 404.1520(a)(4)(ii), 404.1509 (articulating Step Two as a
determination of whether the applicant has a “severe medically determinable physical or
mental impairment” that is expected to either result in death or “last for a continuous
period of at least 12 months”). And at Step Four, the ALJ determined that Anderson
could not return to past relevant work as a construction worker and construction
supervisor considering his residual functional capacity, which did not allow him to
perform medium or heavy work. See id. § 404.1520(a)(4)(iv) (articulating Step Four as a
determination of whether the applicant can return to past relevant work, considering his
residual functional capacity).
But the ALJ made findings against Anderson at Steps Three and Five. At Step
Three, the ALJ found that none of Anderson’s impairments, singularly or in combination,
met or equaled a listing for a disability. See id. § 404.1520(a)(4)(iii) (articulating Step
Three as an assessment of whether the applicant has a severe impairment that meets or
equals a listed impairment and meets the same durational requirement as that in Step
Two); id. § 404.1520(d) (stating that an applicant who meets the requirements of
§ 404.1520(a)(4)(iii) will be found “disabled without considering [his] age, education,
and work experience”); see also id. Part 404, Subpart P, App. 1 (2011) (listing the
3
impairments that would render an applicant disabled at Step Three). And at Step Five,
the ALJ concluded that SSA met its burden, which it has for this step, of demonstrating
that Anderson could adjust to other work, specifically light work, that exists in significant
numbers in the national economy. See id. § 404.1520(a)(4)(v), (g) (articulating Step Five
as a determination of whether the applicant can adjust to perform other work); id.
§ 404.1560(c). The ALJ’s Step Three and Five determinations prevented Anderson from
qualifying as disabled.
After the ALJ’s adverse ruling and a later denial of Anderson’s request for
appellate administrative review, Anderson filed this civil action in District Court. See
42 U.S.C. § 405(g) (providing for judicial review of “any final decision . . . made after a
hearing” by SSA); 20 C.F.R. § 404.900(a)(5) (2017) (providing that an SSA decision
becomes “final” when the applicant exhausts the four stages of administrative review).
Both Anderson and SSA consented to a referral to a Magistrate Judge, see 28 U.S.C.
§ 636(c); Fed. R. Civ. P. 73, and that judge affirmed SSA’s denial of benefits. Anderson
timely appealed that judgment, bringing his suit within the jurisdiction of this Court. See
28 U.S.C. § 1291.
II. DISCUSSION
A. The Step-Three Challenge
On appeal, Anderson argues that the ALJ’s Step-Three analysis failed to consider
whether his obesity in combination with his other impairments met a listed disability. At
the administrative level, Anderson did not argue that his impairments met any particular
listing. That is not fatal to his ability to raise such a challenge in federal court. Although
4
the Supreme Court has described SSA administrative proceedings as “adjudicative,”2
they are not classically so3 because they are “non-adversarial,”4 and at times
“inquisitorial.”5 Even so, ALJs must articulate their factual findings as part of an
administrative record so that those findings may be judicially reviewed under the
substantial-evidence standard. See 42 U.S.C. §§ 1383(c)(1)(A), 405(b)(1) (providing that
an administrative decision must explain the facts, the administrative determination, and
the reasons upon which that determination is based).6 Despite the administrative record
requirement, the other attributes of SSA administrative proceedings inhibit the
application of the otherwise bedrock adjudicative principles of party presentation, waiver,
and forfeiture. Accordingly, at the administrative level, an applicant’s failure to identify
a specific listing at Step Three does not preclude the applicant from later contending that
his or her conditions met such a listing.
But once an unsuccessful applicant seeks judicial review of SSA’s administrative
decision, principles of party presentation, waiver, and forfeiture do apply. See Sims v.
Apfel, 530 U.S. 103, 108–09 (2000) (recognizing that in the context of SSA appeals
“appellate courts will not consider arguments not raised before trial courts”); cf. TD Bank
2
Biestek v. Berryhill, 139 S. Ct. 1148, 1152 (2019).
3
See Carr v. Saul, 141 S. Ct. 1352, 1363 (2021) (Thomas, J., concurring) (describing
SSA proceedings as a “decidedly pro-claimant, inquisitorial process [that] is quite unlike
an adversarial suit in which parties are expected to identify, argue, and preserve all
issues”).
4
20 C.F.R. § 404.900(b).
5
Sims v. Apfel, 530 U.S. 103, 111 (2000) (plurality op.).
6
See also Camp v. Pitts, 411 U.S. 138, 141 (1973) (explaining that substantial-evidence
review is appropriate “when reviewing findings made on a hearing record”); Burnett v.
Comm’r of Soc. Sec. Admin., 220 F.3d 112, 119–20 (3d Cir. 2000) (explaining that
substantial evidence review of bare conclusory statements is impossible).
5
N.A. v. Hill, 928 F.3d 259, 270 (3d Cir. 2019) (explaining that appellate courts “may
affirm on any basis supported by the record, even if it departs from the District Court’s
rationale”). Thus, to preserve Step Three arguments for this Court’s review, an applicant
who did not succeed at the administrative level must, in district court, identify the
specific listings and provide arguments that his or her conditions meet such a listing.
In this appeal, Anderson argues that he meets three specific listings and one group
of listings due to the cumulative effect of his physical injuries, ailments, and obesity. The
individual listings Anderson identifies are Listings 1.02 (describing major dysfunction of
a joint), 1.04 (describing spine disorders), and 11.14 (describing peripheral neuropathies).
The group of listings is those contained in Paragraph 5.00 (relating to the digestive
system). By making those same arguments in District Court, Anderson preserved them.
But none of those contentions are successful: the ALJ considered each of them, and
substantial evidence supports the ALJ’s conclusion that Anderson did not meet any
listing. See Biestek v. Berryhill, 139 S. Ct. 1148, 1154 (2019) (explaining that the
substantial-evidence threshold is satisfied if the record contains “such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion” (internal citation
and quotation marks omitted)).
Listing 1.02 requires an inability to ambulate effectively. See 20 C.F.R. Part 404,
Subpart P, App. 1 Listing 1.02(A); id. Listing 1.00(B)(2)(b)(1)–(2) (defining ambulation
as “an extreme limitation of the ability to walk” such that the individual is unable “to
carry out activities of daily living”). But the ALJ determined that Anderson, despite his
lower body injuries and obesity, could drive a car, travel on his own and grocery shop
weekly, and the record contains adequate evidence to support that conclusion. See
Biestek, 139 S. Ct. at 1154. Even if Anderson’s obesity made walking more difficult,
6
substantial evidence still supported the ALJ’s conclusion, especially here, where
Anderson did not allege that his obesity affected his ability to work. Also, the ALJ
adopted the conclusions of expert medical consultants who were aware of Anderson’s
obesity, so the ALJ’s decision at least “constitutes a satisfactory if indirect consideration”
of Anderson’s obesity. Rutherford v. Barnhart, 399 F.3d 546, 553 (3d Cir. 2005).
Listing 1.04 requires nerve root compression, spinal arachnoiditis, or lumbar
spinal stenosis that results in an inability to ambulate effectively. See 20 C.F.R. Part 404,
Subpart P, App. 1 Listing 1.04(A)–(C). But in reviewing Anderson’s medical records,
the ALJ determined that he does not suffer from nerve root compression or spinal
arachnoiditis. Those medical records, reinforced with the ALJ’s other finding that
Anderson could ambulate effectively despite his injuries and obesity, constitute
substantial evidence that Anderson did not meet or equal Listing 1.04.
Listing 11.14 requires significant and persistent disorganization of motor function
in two extremities “in spite of prescribed treatment.” See id. Listing 11.14; id. Listing
11.04(B); see also id. Listing 11.00(C) (defining ‘persistent disorganization of motor
function’ to require paresis or paralysis, involuntary movements, and sensory
disturbances). The ALJ recognized that Anderson once complained of numbness in his
right hand but observed that later examination revealed a normal grasp and stable
functioning, and relevant evidence in the record supports his observation. See Reefer v.
Barnhart, 326 F.3d 376, 379 (3d Cir. 2003) (describing substantial evidence as
“sufficient evidence ‘to justify, if the trial were to a jury, a refusal to direct a verdict’”
(quoting Universal Camera Corp. v. NLRB, 340 U.S. 474, 477 (1951))). Although one
doctor found sensory loss in Anderson’s foot shortly after he broke it, other medical
consultants disagreed with that conclusion. But courts, on substantial-evidence review,
7
“are not permitted to re-weigh the evidence or impose their own factual determinations,”
so the differing views of the other medical consultants constitute substantial evidence in
support of the ALJ’s determination that Anderson failed to meet or equal Listing 11.14.
See Chandler v. Comm’r of Soc. Sec., 667 F.3d 356, 359 (3d Cir. 2011).
Finally, Paragraph 5.00 contains several listings related to various digestive
ailments,7 and Anderson argues that the ALJ did not consider any of them. But the
record belies his contention. The ALJ considered Anderson’s treatment for gastritis,
gastric ulcers, mild esophagitis, hemorrhoids, and cholecystitis, as well as his gallbladder
removal, but determined that his digestive impairments did not meet or equal a listed
impairment in Paragraph 5.00. As for the listings that could be relevant to Anderson, his
doctors found no evidence of gastrointestinal hemorrhaging, see 20 C.F.R. Part 404,
Subpart P, App. 1 Listing 5.02, or inflammatory bowel disease, see id. Listing 5.06. That
record evidence adequately supports the ALJ’s finding that Anderson did not meet or
equal a Listing in Paragraph 5.00. See Biestek, 139 S. Ct. at 1154.
Therefore, Anderson’s Step Three challenge fails.
B. The Step-Five Challenge
At Step Five, the burden shifts to SSA to establish from the administrative record
that the applicant can adjust to other work. See Smith v. Comm’r of Soc. Sec., 631 F.3d
632, 634 (3d Cir. 2010). To satisfy that burden, SSA must demonstrate that three
characteristics of the applicant – education, work experience, and residual functional
capacity – allow him or her to perform jobs that exist in significant numbers in the
7
See, e.g., 20 C.F.R. Part 404, Subpart P, App. 1 Listing 5.02 (gastrointestinal
hemorrhaging requiring a blood transfusion), Listing 5.05 (chronic liver disease), Listing
5.06 (inflammatory bowel disease), Listing 5.07 (short bowel syndrome), Listing 5.08
(weight loss caused by a digestive disorder), and Listing 5.09 (liver transplantation).
8
national economy. See 20 C.F.R. §§ 404.1560(c), 404.1569(a); id. Part 404, Subpart P,
App. 2.
Here, the ALJ determined that Anderson was not disabled under Step Five because
his residual functional capacity allowed him to perform light work. Anderson argues that
substantial evidence does not support the ALJ’s assessment of his residual functional
capacity because the ALJ improperly discounted three pieces of evidence: the opinion of
his treating podiatrist, his subjective accounts of pain, and the statements of his live-in
companion. See generally Biestek, 139 S. Ct. at 1154 (explaining that the substantial-
evidence standard requires only that the administrative record contain sufficient evidence
for a reasonable mind to “accept as adequate to support a conclusion” (internal citation
and quotation marks omitted)). In reviewing an ALJ’s social security disability
determination, a court cannot “re-weigh the evidence” or “substitute its conclusions for
those of the fact-finder,” and each of Anderson’s arguments is premised on those
impermissible actions. Chandler, 667 F.3d at 359; Williams v. Sullivan, 970 F.2d 1178,
1182 (3d Cir. 1992).
First, Anderson complains that the ALJ improperly discounted the opinion of his
treating podiatrist. According to that podiatrist, Anderson’s neuropathy and
radiculopathy made it dangerous for him to work as working with those conditions could
render him permanently disabled. But an ALJ is “free to accept some medical evidence
and reject other evidence” as long as the ALJ “provides an explanation for discrediting
the rejected evidence.” Zirnsak v. Colvin, 777 F.3d 607, 614 (3d Cir. 2014); see also
Burnett v. Comm’r of Soc. Sec. Admin., 220 F.3d 112, 121 (3d Cir. 2000). In giving little
weight to the podiatrist’s opinion, the ALJ explained that it was vague and failed to
identify “any specific work related functional limitations linked to [Anderson’s]
9
impairments.” SSA Office of Disability Adjudication and Review, ALJ Decision at 7
(July 31, 2017) (App. 39). That explanation suffices under the substantial-evidence
standard. See Williams, 970 F.2d at 1182 (explaining that federal courts, on substantial-
evidence review, may not “weigh the evidence or substitute its conclusions for those of
the fact-finder”).
Anderson’s second argument attacks the reduced weight the ALJ afforded to
Anderson’s subjective complaints of pain. The ALJ explained the reason for discount:
Anderson’s statements about the intensity, persistence, and limiting effects of his
symptoms were not entirely credible because they were inconsistent with medical and
other evidence. See 20 C.F.R. § 404.1529(c)(2), (3). That explanation also suffices
under the substantial-evidence standard. See Chandler, 667 F.3d at 359; Williams,
970 F.2d at 1182.
Finally, Anderson contends that the ALJ improperly discounted a report that
Anderson’s live-in companion submitted to SSA. Under then-applicable SSA policy,
ALJs could consider “the relationship between the source and the individual” and
“whether the opinion is consistent with other evidence,” among other factors. Social
Security Ruling, SSR 06-03p, 71 Fed. Reg. 45593, 45596 (Aug. 9, 2006), rescinded by
82 Fed. Reg. 15263, 15263 (Mar. 27, 2017); see also 20 C.F.R. § 404.1527(f) (requiring
the ALJ to “explain the weight given to opinions from [non-medical] sources or
otherwise ensure that [his] discussion of the evidence . . . allows a claimant or subsequent
reviewer to follow the adjudicator’s reasoning”). Consistent with that policy, the ALJ
afforded some weight to that report but recognized that it “cannot be considered wholly
objective” because it was prepared by “a close friend of the claimant.” SSA Office of
Disability Adjudication and Review, ALJ Decision at 8 (July 31, 2017) (App. 40). Thus,
10
the ALJ supported his credibility determination with permissible reasons for assigning
the statements less weight than other pieces of evidence.
***
For the foregoing reasons, we will affirm the judgment of the District Court.
11