Jennifer Garibay v. Commissioner of Social Security

The Honorable Jan E. DuBois, Senior District Judge for the United States District*
Court for the Eastern District of Pennsylvania, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-4065
JENNIFER GARIBAY,
Appellant
v.
COMMISSIONER OF SOCIAL SECURITY
On Appeal from the United States District Court
for the District Court of New Jersey
District Court No. 2-07-cv-01867
District Judge: The Honorable Stanley R. Chesler
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
June 26, 2009
Before: BARRY, SMITH, Circuit Judges
and DuBOIS, District Judge*
(Filed: July 13, 2009 )
OPINION
DuBois, District Judge.

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Jennifer Garibay appeals from a District Court order affirming the Commissioner
of Social Security’s denial of Disability Insurance Benefits (“DIB”) and Supplemental
Security Income Benefits (“SSI”) under the Social Security Act (“SSA”), for the period
beginning on July 27, 2003 and continuing through September 28, 2006. Garibay argues
that the decision of the Administrative Law Judge (“ALJ”) is not supported by substantial
evidence. We disagree and will affirm the judgment of the District Court.
I.
Because we write solely for the benefit of the parties, we will only briefly
summarize the essential facts.
Garibay applied for SSI Benefits on January 15, 2004 and for DIB on February 13,
2004. (Administrative Record (“R.”) 77–79, 281–83.) At the time of her applications,
she was twenty-nine years old and alleged disability due to degenerative disc disease,
arthritis, joint pain, and depression. Her medical history included injuries resulting from
two automobile accidents, one on September 27, 2002 and one on June 14, 2004. (R.
196, 216.) Almost one year after the first accident, on July 28, 2003 and on August 5,
2003, Garibay was treated in the emergency room of St. Peter’s Hospital for back pain.
(R. 151–56, 163–68.) X-rays at that hospital showed no radiographic abnormalities, and
Garibay was prescribed narcotic pain medication. (R. 157–62, 170–72.) On June 14,
2004, immediately following the second accident, Garibay was treated for facial pain
caused by hitting her head on the steering wheel. (R. 183–94.) According to the medical

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records, from August 2003 to December 2004, Mark Friedman, M.D., treated Garibay for
lumbar radiculopathy, degenerative disc disease, cervical radiculitis, and sprain and strain
to the lumbar and the cervical spine. (R. 196–243.) To address Garibay’s complaints of
pain and discomfort, Dr. Friedman prescribed pain medication, muscle spasm relief
medication, and physical therapy. (R. 196–243.) Garibay also met with Pradip Gupta,
M.D., for a psychiatric examination on May 6, 2006. (R. 263–65.) Dr. Gupta diagnosed
her with, inter alia, chronic depressive reaction and a history of chronic alcohol abuse and
polysubstance drug abuse and assigned her a Global Assessment of Functioning score of
fifty. (R. 265.) In Dr. Gupta’s opinion, these mental impairments did not impose any
limitations on her ability to do work-related activities. (R. 266–68.)
On August 8, 2003, Garibay was terminated from her most recent job—a secretary
at a chiropractic office. (R. 85, 329–30.) At the hearing before the ALJ, Garibay testified
that she informed her employer that her doctor was planning to put her on disability, and
he responded by firing her. (R. 329–30.) According to Garibay, her employer then sent
her a letter stating that she was terminated for calling him and having an outburst on the
telephone. (R. 330.) Garibay disputed this account, stating that she had not even called
her employer on the day in question. (R. 330.) According to the record, Garibay has not
worked since her termination from the chiropractor’s office.
Garibay’s applications for SSI and DIB were denied initially and on
reconsideration. (R. 31–32, 39–42, 291–95.) Pursuant to Garibay’s request, a hearing

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was held before ALJ Denis O’Leary on March 22, 2006. (R. 296–331.) Following the
hearing, ALJ O’Leary issued a written opinion on September 28, 2006 finding that
Garibay was not disabled for purposes of the SSA. (R. 22–28.) Garibay requested review
of the ALJ’s decision by the Appeals Council on October 3, 2006. (R. 18.) The Appeals
Council denied her request on February 23, 2007, making the decision of the ALJ the
final decision of the Commissioner of Social Security (“Commissioner”). (R. 5–7.)
On April 20, 2007, Garibay filed a Complaint in the District Court of New Jersey,
seeking review of the Commissioner’s denial of benefits. On August 4, 2008, the
Honorable Stanley R. Chesler issued an Opinion affirming the Commissioner’s decision
on the ground that it was supported by substantial evidence. (App. 1–21.) Garibay timely
filed a Notice of Appeal on September 29, 2008. (App. 34.)
II.
The District Court had subject matter jurisdiction pursuant to 42 U.S.C. §§ 405(g)
and 1383(c), and we have jurisdiction to review the District Court’s decision under 28
U.S.C. § 1291. We review the ALJ’s application of law de novo and the ALJ’s factual
findings for substantial evidence. Poulous v. Comm’r of Soc. Sec., 474 F.3d 88, 91 (3d
Cir. 2007). “Substantial evidence has been defined as more than a mere scintilla. It
means such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Reefer v. Barnhart, 326 F.3d 376, 379 (3d Cir. 2003) (citations & internal
quotation marks omitted).

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III.
The Social Security Act (“SSA”) authorizes the Commissioner to pay benefits to
individuals with disabilities. 42 U.S.C. §§ 423(b), 1382. The SSA defines “disability” as
the inability to engage “in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous period of not less than twelve
months.” Id. § 1382c(a)(3)(A). Regulations prescribe a five-step sequential process for
evaluating whether a claimant is disabled. 20 C.F.R. § 404.1520. We have described this
process as follows:
In step one, the Commissioner must determine whether the claimant is
currently engaging in substantial gainful activity. 20 C.F.R. §
[404].1520(a). If a claimant is found to be engaged in substantial activity,
the disability claim will be denied. Bowen v. Yuckert, 482 U.S. 137, 140
(1987). In step two, the Commissioner must determine whether the
claimant is suffering from a severe impairment. 20 C.F.R. § 404.1520(c).
If the claimant fails to show that her impairments are “severe”, she is
ineligible for disability benefits.
In step three, the Commissioner compares the medical evidence of
the claimant’s impairment to a list of impairments presumed severe enough
to preclude any gainful work. 20 C.F.R. § 404.1520(d). If a claimant does
not suffer from a listed impairment or its equivalent, the analysis proceeds
to steps four and five. Step four requires the ALJ to consider whether the
claimant retains the residual functional capacity to perform her past relevant
work. 20 C.F.R. § 404.1520(d). The claimant bears the burden of
demonstrating an inability to return to her past relevant work. Adorno v.
Shalala, 40 F.3d 43, 46 (3d Cir. 1994).
If the claimant is unable to resume her former occupation, the
evaluation moves to the final step. At this stage, the burden of production
shifts to the Commissioner, who must demonstrate the claimant is capable
of performing other available work in order to deny a claim of disability.
20 C.F.R. § 404.1520(f). The ALJ must show there are other jobs existing

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in significant numbers in the national economy which the claimant can
perform, consistent with her medical impairments, age, education, past
work experience, and residual functional capacity. The ALJ must analyze
the cumulative effect of all the claimant’s impairments in determining
whether she is capable of performing work and is not disabled. See 20
C.F.R. § 404.1523.
Plummer v. Apfel, 186 F.3d 422, 428 (3d Cir. 1999).
In this case, at step one, the ALJ determined that Garibay had not engaged in
substantial gainful activity since July 27, 2003, the alleged onset date of her disability.
(R. 24.) At step two, the ALJ determined that Garibay was suffering from a severe
combination of impairments: back disorder and depression. (R. 24.) At step three, the
ALJ determined that Garibay’s impairments, both alone and in combination, did not meet
or medically equal one of the listed impairments presumed severe enough to preclude any
gainful employment. (R. 26.) The ALJ focused on Listings 1.00 (Musculoskeletal
System) and 12.00 (Mental Disorder). (R. 26.) The ALJ next determined that Garibay
had the residual functional capacity (“RFC”) to perform sedentary work; specifically she
could lift and/or carry a maximum of ten pounds, stand and/or walk two hours in an
eight-hour workday, and sit up to six hours in an eight-hour workday. (R. 26–27.) At
step four, the ALJ compared the RFC determination to Garibay’s past relevant work and
determined that she was capable of performing her past relevant work as a secretary, both
as actually and as generally performed. (R. 27–28.) Based on this step four
determination, the ALJ concluded that Garibay was not disabled for the relevant period
and did not proceed to step five. (R. 28.)

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IV.
On appeal, Garibay argues that the decision of the ALJ is not supported by
substantial evidence. Specifically, she challenges the ALJ’s determination of her RFC,
the ALJ’s evaluation of her subjective complaints of pain, and the ALJ’s finding at step
four that she has the RFC to perform her past relevant work as a secretary.
A. Determination of Residual Functional Capacity
Garibay argues that the ALJ did not provide an adequate evidentiary foundation to
support his determination of Garibay’s residual functional capacity (“RFC”). The ALJ
ultimately determined the following:
After careful consideration of the entire record, the undersigned finds that the
claimant has the residual functional capacity to lift and/[or] carry a maximum of 10
pounds; stand and/or walk 2 hours in an 8 hour workday and sit up to 6 hour[s] in
an 8 hour workday. In making this finding, the undersigned considered all
symptoms and the extent to which these symptoms can be reasonably accepted as
consistent with the objective medical evidence and other evidence . . . . The
undersigned also considered opinion evidence . . . .
(R. 26–27.) This determination was consistent with the Physical Residual Functional
Capacity Assessment and the Medical Source Statement of Ability to Do Work-Related
Activities (Physical) completed by medical consultants. (R. 173–80, 274–77.)
In making an RFC determination, an ALJ must discuss both the evidence that
supports his conclusion and the evidence that was rejected. Burnett v. Comm’r of Soc.
Sec. Admin., 220 F.3d 112, 121 (3d Cir. 2000); Cotter v. Harris, 642 F.2d 700, 705–07
(3d Cir. 1981). The ALJ did so here. In this case, to make his RFC determination, the

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In this section of the opinion, the ALJ writes that he also doubts Garibay’s1
credibility because “[s]he has been on morphine and oxicotin [sic] in amounts totally out
of sync for the nature of the impairment. The claimant is suggesting at the hearing that
the pain management doctor is keeping her from getting treatment but the record, as well
as logic suggests that she went there for the drugs and it was her that was resisting
treatment.” (R. 27.) Garibay argues that this statement, unsupported in the record,
demonstrates bias on the part of the ALJ.
While Dr. Gupta did diagnose Garibay with a history of substance abuse, the
evidentiary record does not support a conclusion that Garibay was then abusing pain
medication. As only the ALJ had an opportunity to observe Garibay and evaluate her
demeanor, his credibility assessments are entitled to great weight. We do not find that the
ALJ’s statements demonstrate bias such that remand for a hearing before a different ALJ
would be required. Contra Ventura v. Shalala, 55 F.3d 90, 904–05 (3d Cir. 1995).
8
ALJ considered all of the evidence before him, both the objective medical evidence and
Garibay’s own account of her limitations. (R. 24–27.) Comparing the objective evidence
with Garibay’s subjective complaints of disabling pain, he found that her “statements
concerning the intensity, persistence and limiting effects of these symptoms are not
entirely credible.” (R. 27.) In keeping with the requirements of Cotter, the ALJ
delineated the medical and other objective evidence in the record that supported his
determination that Garibay was capable of sedentary work. Such evidence included: the
opinion of the consultive examiner, who stated that Garibay could perform sedentary
work; MRIs, which described her back pain as “mild”; her decision to stop physical
therapy; her daily activities, including care of her young children; her ability to drive; her
enjoyment of reading, which suggested that she was able to concentrate and focus; and
her doctor’s statement that her pain was well managed with medication. (R. 27.)1
Moreover, the ALJ identified the evidence that contradicted his RFC determination

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As an additional reason that the ALJ’s decision was not supported by substantial2
evidence, Garibay argues that the ALJ rejected the only psychiatric evidence in the
record—the report of Dr. Gupta. Dr. Gupta did diagnose Garibay with mental
impairments, but he concluded that these impairments did not impose any work-related
limitations. (R. 265–68.) In fact, the ALJ found that Garibay’s mental impairments cause
“slight limitations in her ability to respond appropriately” in a work setting. (R. 27.)
Thus, any disagreement that the ALJ had with Dr. Gupta’s report did not prejudice
Garibay as his findings were more favorable to her than the opinions of Dr. Gupta.
9
and explained his reasons for rejecting such evidence. He accorded less weight to the
psychiatric opinion of Dr. Gupta, which stated that Garibay’s mental impairments
imposed no limitations on her work performance. After considering the entire record,
including Garibay’s problematic work history, the ALJ disagreed with Dr. Gupta’s
assessment and concluded that Garibay “does have slight limitations in her ability to
respond appropriately” in a work setting. (R. 27.)2
As the ALJ detailed both the evidence supporting his RFC determination and his
reason for rejecting contrary evidence, his decision was “accompanied by a clear and
satisfactory explication of the basis on which it rests.” Cotter, 642 F.2d at 704.
Accordingly, the ALJ’s explanation of his RFC determination complied with the
requirements of Cotter and Burnett.
B. Evaluation of Subjective Complaints of Pain
Garibay contends that the ALJ failed to properly evaluate her subjective
complaints of pain. Pursuant to the Commissioner’s regulations, “[a]llegations of pain
and other subjective symptoms must be supported by objective medical evidence.”

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Hartranft v. Apfel, 181 F.3d 358, 362 (3d Cir. 1999) (citing 20 C.F.R. § 404.1529). In
this circuit, “while there must be objective medical evidence of some condition that could
reasonably produce pain, there need not be objective evidence of the pain itself.” Green
v. Schweiker, 749 F.2d 1066, 1071 (3d Cir. 1984). Once an ALJ determines that
objective medical evidence supports a claimant’s complaints of pain, “the complaints
should then be given ‘great weight’ and may not be disregarded unless there exists
contrary medical evidence.” Mason v. Shalala, 994 F.2d 1058, 1067–68 (3d Cir. 1993).
The ALJ “must evaluate the intensity and persistence of the pain or symptom, and the
extent to which it affects the individual’s ability to work. This obviously requires the
ALJ 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, 181 F.3d at 362 (citing 20
C.F.R. § 404.1529(c)).
In this case, after reviewing the evidence, the ALJ found that Garibay’s “medically
determinable impairments could reasonably be expected to produce the alleged
symptoms, but that [Garibay’s] statements concerning the intensity, persistence, and
limiting effects of those symptoms are not entirely credible.” (R. 27.) The ALJ
considered Garibay’s efforts to alleviate the pain (including her cessation of physical
therapy), the objective medical evidence (including a report by Garibay’s treating
physician that her pain is controlled by medication), and Garibay’s daily activities. (R.
27.) The ALJ concluded that the evidence was inconsistent with Garibay’s complaints of

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disabling pain. An ALJ may reject subjective complaints of pain if he does not find them
credible, but he “must indicate in his decision which evidence he has rejected and which
he is relying on as the basis for his finding.” Schaudeck v. Comm’r of Soc. Sec. Admin.,
181 F.3d 429, 433 (3d Cir. 1999) (citing Cotter, 642 F.2d at 705–06) (further citation
omitted). The ALJ’s explanation of his rejection of Garibay’s complaints of disabling
pain complied with this standard.
In reaching his conclusion, the ALJ correctly compared Garibay’s subjective
complaints of pain with her medical records, as required by Social Security regulations
and this circuit’s precedent. Having reviewed the evidence of record, we conclude that
his reasoning and determination were based on substantial evidence.
C. Determination of Past Relevant Work
Garibay contends that at step four, the ALJ failed to compare her RFC to specific
job requirements in concluding that she could perform her past relevant work as a
secretary. At Step 4, the ALJ must consider whether the claimant retains the RFC to
perform her past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv). Step four involves three
substeps:
(1) the ALJ must make specific findings of fact as to the claimant’s residual
functional capacity; (2) the ALJ must make findings of the physical and
mental demands of the claimant’s past work; and (3) the ALJ must compare
the residual functional capacity to the past relevant work to determine
whether claimant has the level of capability needed to perform the past
relevant work.
Burnett v. Comm’r of Soc. Sec., 220 F.3d 112, 120 (3d Cir. 2000).

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Social Security Regulation (“S.S.R.”) 82-62 sets forth the evidence that an ALJ
should consider in making this determination:
The claimant is the primary source for vocational documentation, and
statements by the claimant regarding past work are generally sufficient for
determining the skill level, exertional demands and nonexertional demands
of such work. Determination of the claimant’s ability to do [past relevant
work] requires a careful appraisal of (1) the individual’s statements as to
which past work requirements can no longer be met and the reason(s) for
his or her inability to meet those requirements; (2) medical evidence
establishing how the impairment limits ability to meet the physical and
mental requirements of the work; and (3) in some cases, supplementary or
corroborative information from other sources such as employers, the
Dictionary of Occupational Titles, etc., on the requirements of the work as
generally performed in the economy.
Evaluating this evidence, the ALJ should determine whether “the claimant retains
the capacity to perform the particular functional demands and job duties peculiar to an
individual job as he or she actually performed it” or whether “the claimant retains the
capacity to perform the functional demands and job duties of the job as ordinarily
required by employers throughout the national economy.” S.S.R. 82-61. In the latter
inquiry, the ALJ may rely on job descriptions found in the Dictionary of Occupational
Titles (“DOT”). Id. “[I]f the claimant cannot perform the excessive functional demands
and/or job duties actually required in the former job but can perform the functional
demands and job duties as generally required by employers throughout the economy, the
claimant should be found to be ‘not disabled.’” Id.
In this case, the ALJ found that Garibay has the RFC to do sedentary work. (R.
27.) In particular, he determined that Garibay “has the residual functional capacity to lift

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and/[or] carry a maximum of 10 pounds; stand and/or walk 2 hours in an 8 hour workday
and sit up to 6 hour[s] in an 8 hour workday.” (R. 26.) This determination squares with
the regulations, which define sedentary work as “involv[ing] lifting no more than 10
pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and
small tools. Although a sedentary job is defined as one which involves sitting, a certain
amount of walking or standing is often necessary in carrying out job duties. Jobs are
sedentary if walking and standing are required occasionally and other sedentary criteria
are met.” 20 C.F.R. §§ 404.1567, 416.967; see also S.S.R. 83-10. “Since being on one’s
feet is required ‘occasionally’ at the sedentary level of exertion, periods of standing or
walking should generally total no more than about 2 hours of an 8-hour workday, and
sitting should generally total approximately 6 hours of an 8-hour workday.” S.S.R. 83-10.
The ALJ’s RFC determination also was consistent with the Physical Residual Functional
Capacity Assessment and the Medical Source Statement of Ability to Do Work-Related
Activities (Physical) completed by medical consultants. (R. 173–80, 274–77.) In
determining Garibay’s RFC, the ALJ made “specific findings of fact,” as required by
substep one of Burnett. 220 F.3d at 120.
The ALJ next found that “claimant is capable of performing past relevant work as
a secretary. . . . In comparing the claimant’s residual functional capacity with the physical
and mental demands of this work, the undersigned finds that the claimant is able to
perform it as actually and generally performed.” (R. 27–28.) Based on a review of the

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record, we disagree that Garibay is able to perform her past relevant work as a secretary
as actually performed. We agree, however, that substantial evidence in the record
supports the ALJ’s finding that Garibay has the RFC to perform the work of a secretary as
it is generally performed. Accordingly, we will affirm.
Garibay’s testimony and the forms that Garibay completed were the primary
sources of information on the requirements of her past relevant work as a secretary in a
chiropractor’s office. In a Work History Report dated March 25, 2004, Garibay described
her secretarial job as including typing, answering phones, word processing, scheduling,
filing, copying, faxing, and minor accounting. (R. 86.) She also stated that she cleaned
the office, which involved carrying items weighing twenty to thirty pounds. (R. 86.)
When testifying before the ALJ on March 22, 2006, she described her work as follows:
“I would get there prior to the doctors, get their rooms ready and set and then begin
making phone calls to patients whether they need to cancel, schedule, filing, copying. I’d
fix the copy machine from time to time.” (R. 305–06.) Garibay testified that this work
kept her on her feet for most of the day. (R. 306.) Her secretarial responsibilities also
involved lifting file boxes that, according to Garibay, weighed between thirty-five and
fifty pounds. (R. 307.) Garibay also explained that her cleaning duties were in addition
to her secretarial duties and that she took on the task of cleaning the office to make
additional money. (R. 306.)
Garibay’s uncontroverted description of her past relevant work, as actually
performed, is inconsistent with the regulatory definition of sedentary work. Sedentary

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work, as defined in the regulations, involves lifting no more than ten pounds. 20 C.F.R.
§§ 404.1567, 416.967. The ALJ likewise explicitly found that Garibay was capable of
lifting a maximum of ten pounds. (R. 26.) Garibay’s secretarial job, however, entailed
lifting file boxes weighing thirty-five to fifty pounds. (R. 307.) Moreover, sedentary
jobs, as described by the regulations, should generally require no more than two hours of
standing or walking in an eight-hour workday. S.S.R. 83-10. The ALJ found that
Garibay was capable of meeting this requirement. (R. 26.) Garibay, however, testified
that her work involved being on her feet “[m]ost of the day because [she] barely sat
down.” (R. 306.) In short, Garibay’s secretarial job, as she actually performed it, did not
fit the description of sedentary work or the ALJ’s RFC determination. Thus, the ALJ’s
conclusion that Garibay was able to perform her past relevant work as it was actually
performed is not supported by substantial evidence.
The ALJ also determined that Garibay was able to do the work of a secretary as
generally performed. That finding is supported by substantial evidence. Pursuant to
S.S.R. 82-61, if a claimant “cannot perform the excessive functional demands and/or job
duties actually required in the former job but can perform the functional demands and job
duties as generally required by employers throughout the economy, the claimant should be
found to be ‘not disabled.’” To determine “the functional demands and job duties of the
job as ordinarily required by employers throughout the national economy,” an ALJ may

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We note that the ALJ did not explicitly compare Garibay’s RFC and the DOT3
definition of a secretary on the record. While the duties of certain jobs, such as a
secretary, may seem to be matters of common knowledge, Burnett requires such a
comparison. See 220 F.3d at 120. Neglecting to expressly perform this comparison in
the written opinion renders appellate review more difficult but does not warrant remand
under the circumstances of this case.
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rely on the Dictionary of Occupational Titles (“DOT”). Id. The DOT definition of a3
secretary is as follows:
Schedules appointments, gives information to callers, takes dictation, and
otherwise relieves officials of clerical work and minor administrative and
business detail: Reads and routes incoming mail. Locates and attaches
appropriate file to correspondence to be answered by employer. Takes
dictation in shorthand or by machine . . . and transcribes notes on
typewriter, or transcribes from voice recordings . . . . Composes and types
routine correspondence. Files correspondence and other records. Answers
telephone and gives information to callers or routes call to appropriate
official and places outgoing calls. Schedules appointments for employer.
Greets visitors, ascertains nature of business, and conducts visitors to
employer or appropriate person. May not take dictation. May arrange
travel schedule and reservations. May compile and type statistical reports.
May oversee clerical workers. May keep personnel records . . . . May
record minutes of staff meetings. May make copies of correspondence or
other printed matter, using copying or duplicating machine. May prepare
outgoing mail, using postage-metering machine. May prepare notes,
correspondence, and reports, using word processor or computer terminal.
DOT 201.362-030.
The DOT description of the work of a secretary falls within the regulatory
definition of sedentary work. Moreover, it is compatible with the ALJ’s RFC
determination, which is supported by substantial evidence. Thus, Garibay is capable of
performing secretarial work as it is “generally required by employers throughout the
economy.” S.S.R. 82-61. For that reason, we find that the ALJ’s decision that Garibay is

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not disabled is supported by substantial evidence and will affirm.
V.
For all of the foregoing reasons, we conclude that substantial evidence exists to
support the Commissioner’s denial of disability insurance benefits. We thus will affirm
the order of the District Court.

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