NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

——————— No. 20-2341 ———————

MIGUEL A. COSME, Appellant

v.

COMMISSIONER SOCIAL SECURITY

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On Appeal from the United States District Court for the District of New Jersey (D.C. Civil Action No. 2-18-cv-01327) District Judge: Honorable Claire C. Cecchi

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Submitted Pursuant to Third Circuit LAR 34.1(a) January 29, 2021

Before: MATEY and JORDAN, Circuit Judges, BOLTON*, Senior District Judge.

(Filed: March 1, 2021)

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OPINION**

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* The Honorable Susan R. Bolton, Senior United States District Judge for the District of Arizona, sitting by designation. ** This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7 does not constitute binding precedent. 1 BOLTON, Senior District Judge

Miguel A. Cosme (“Cosme”) appeals from an order of the United States District

Court for the District of New Jersey, which concluded that there was substantial evidence

to support the final decision of the Commissioner of the Social Security Administration

(“Commissioner”) denying Cosme’s claims for disability benefits. The record

demonstrates that there is substantial evidence to support the Administrative Law Judge

(“ALJ”)’s conclusion. We will affirm.

I. BACKGROUND

Cosme is a 48-year-old man with a history of obesity, hypertension, high blood

pressure, high cholesterol, and coronary artery disease (“CAD”). On April 27, 2014,

Cosme presented to the emergency room after waking up in the middle of the night with

chest pain. Tests identified the cause of the pain as multivessel CAD. Cosme underwent a

five-vessel coronary artery bypass grafting surgery on May 2, 2014 to treat his

cardiovascular issues.

Following the surgery, Cosme continued to suffer from chest pain, experienced

anxiety and depression, and had difficulty taking care of himself. Cosme filed

applications for Disability Insurance Benefits and Supplemental Security Income under

Title II and Title XVI of the Social Security Act (“SSA”) in June 2014, claiming he had

been disabled since May 5, 2014. Those applications were denied upon initial review and

upon reconsideration.

Cosme challenged that determination in an administrative hearing before an ALJ.

The ALJ determined that, although Cosme suffered severe impairments of CAD with

2 status post coronary artery bypass graft, depression, and anxiety, jobs still existed in

significant numbers in the national economy that he could perform. The ALJ decided

Cosme was not disabled under the SSA and denied his applications for benefits. After the

Social Security Appeals Council denied Cosme’s request for review, he brought a

challenge to the ALJ’s decision in federal court. The District Court affirmed the ALJ’s

decision. Cosme brings this timely appeal.

We have subject matter jurisdiction pursuant to

(g) and

1383(c)(3) and appellate jurisdiction pursuant to

.

II. SUBSTANTIAL EVIDENCE SUPPORTS THE DENIAL OF BENEFITS

We review the ALJ’s decision under the same standard of review as the District

Court, to determine whether there is substantial evidence in the record to support the

ALJ’s decision. See

(g). Substantial evidence “means such relevant

evidence as a reasonable mind might accept as adequate to support a conclusion.” Smith

v. Comm’r of Soc. Sec.,

(3d Cir. 2014) (quoting Reefer v. Barnhart,

(3d Cir. 2003)); see also Biestek v. Berryhill,

(2019) (same). The standard is deferential and is satisfied by the presence of evidence in

the record that is “more than a mere scintilla but . . . somewhat less than a

preponderance.” Zirnsak v. Colvin,

(3d Cir. 2014) (quoting Rutherford

v. Barnhart,

(3d Cir. 2005)).

Cosme raises several challenges to the ALJ’s decision. None warrant reversal or

remand.

3 A. Failing to Meet a Listing

ALJs follow a five-step process to determine whether a particular claimant is

“disabled” under the SSA.

; see Burnett v. Comm’r of Soc. Sec.

Admin.,

, 118–19 (3d Cir. 2000). At step three of the evaluation process, the

ALJ must determine whether a claimant’s impairment matches, or is equivalent to, one of

the impairments present in the listings in the federal regulations that are presumed severe

enough to preclude any gainful work.

(d); see Burnett,

. Cosme argues that under Burnett, the ALJ did not provide sufficient rationale and

reasoning to support his determination that Cosme’s cardiovascular issues did not meet a

listing.

In Burnett, the claimant’s case was remanded back to the ALJ to fully develop the

record and explain his findings because the inclusion of one “conclusory statement”

about why the claimant’s impairment failed to meet a listing was “beyond meaningful

judicial review.”

. However, “Burnett does not require the ALJ to use

particular language or adhere to a particular format in conducting his analysis. Rather, the

function of Burnett is to ensure that there is sufficient development of the record and

explanation of findings to permit meaningful review.” Jones v. Barnhart,

(3d Cir. 2004). Therefore, the Court may look to the entirety of the ALJ’s decision,

“read as a whole,” to determine whether the record was sufficiently developed and the

findings explained. See

Here, the ALJ did provide a conclusory statement as to why

Cosme’s cardiovascular impairment did not meet the matching listing. However, the ALJ

later went on to discuss Cosme’s cardiovascular impairment in detail. Reading the

4 decision as a whole, we find that the record and explanation of findings is developed

enough to permit meaningful review and does not require remand. See Jones,

.

Cosme also argues that the ALJ erred in failing to consider his obesity at step three

of the evaluation process and that the case should be remanded to allow for such

consideration. However, Cosme cites no caselaw to support his argument and merely

contends that the ALJ violated a since-rescinded Policy Interpretation Ruling. Cosme’s

argument is similar to that rejected in Rutherford v. Barnhart: as in Rutherford, Cosme

did not raise his obesity as an impairment before the ALJ but contends that the record

should have alerted the ALJ to his obesity.

. While the ALJ was likely

alerted to Cosme’s obesity based on evidence in the record, Cosme fails to identify how

his obesity would affect the five-step-evaluation process beyond a mere generalized

response that it would “obviously negatively impact [his] COPD and back pain.” Like the

Rutherford court, we conclude that remand is not required because Cosme has failed to

demonstrate how consideration of his obesity would affect the outcome of the case. See

.

B. Medical Evidence and Subjective Complaints

Cosme contends that the ALJ “negate[d]” the opinions of Dr. Marc Fisk, Dr.

Rambhai Patel, Dr. Alexander Iofin, and Ms. Olayinka Aramide in concluding that

Cosme had the residual functional capacity (“RFC”) to perform sedentary work that was

limited to simple and repetitive work and involved no contact with the public and

minimal contact with coworkers and supervisors. (Opening Br. at 24, 27.) RFC is defined

5 as the most a claimant can still do despite a claimant’s physical or mental limitations.

(a)(1), 416.945(a)(1). As to Dr. Fisk, Dr. Patel, and Dr. Iofin, all three

care providers’ reports and opinions were cited in the ALJ’s decision and support his

finding. In particular, Dr. Fisk, Cosme’s treating cardiologist, completed a RFC

Questionnaire and opined that Cosme did not have marked limitations of physical

activity, was capable of low stress jobs with the possibility of moderate stress jobs in the

future, and had minimal functional limitations. Cf. Morales v. Apfel,

(3d Cir. 2000) (“A cardinal principle guiding disability eligibility determinations is that

the ALJ accord treating physicians’ reports great weight.”). Therefore, substantial

evidence exists that the ALJ properly considered the opinions and reports of Dr. Fisk, Dr.

Patel, and Dr. Iofin. See Rutherford,

.

Ms. Aramide, an advanced practice nurse, completed a Mental Impairment

Residual Capacity Evaluation Questionnaire in which she opined that Cosme: suffered

from a major depressive disorder, a panic disorder, poor memory, panic attacks,

anhedonia, and difficulty thinking or concentrating; would have difficulty working a

regular job on a sustained basis; and had marked deficiencies of concentration and

episodes of decompensation. However, the ALJ gave the opinion little weight, as it was

inconsistent with the clinical findings. Cosme argues that the objective medical evidence

in the record supported her evaluation and the ALJ failed to develop the record by not

requesting the clinical notes upon which Ms. Aramide relied.

First, upon reviewing the record, substantial evidence exists to support the

conclusion that Ms. Aramide’s evaluation was an outlier; namely, the reports of Dr. Iofin

6 and Mount Carmel Guild only diagnosed Cosme with a Generalized Anxiety Disorder

and a mood disorder secondary to cardiac problems with anxiety and depressive features

respectively. See Smith,

. These clinical findings fall far short of Ms.

Aramide’s more extreme conclusions. Second, remand is not required to more fully

develop the record. Remand to develop the record requires a “showing that there is new

evidence which is material.”

(g). Cosme fails to proffer what the missing

evidence is, except to say that evidence exists to support Ms. Aramide’s opinion. Without

more, Cosme fails to make an adequate showing that new material evidence exists that

would require remand.

Cosme also argues that the ALJ improperly evaluated his subjective complaints

about his pain and symptoms and instead based his decision as to Cosme’s RFC on “mere

speculation.” (Opening Br. at 30.) A claimant’s own statements about pain or symptoms

are not, by themselves, sufficient to establish that he is disabled.

(a).

In evaluating a claimant’s credibility, an ALJ determines whether his complained-of

symptoms are reasonably “consistent with the objective medical evidence and other

evidence.”

If the ALJ finds the claimant’s subjective complaints to be inconsistent

with the objective medical evidence, he may discount them.

§ 404.1529(c)(4). Here,

the ALJ properly considered all of Cosme’s subjective complaints and found that his

impairments could reasonably cause his alleged symptoms. However, the ALJ found that

Cosme’s testimony as to the intensity, persistence and limiting effects of the symptoms

were “not entirely consistent with the medical evidence and other evidence in the record,”

citing to the reports of Dr. Patel and Dr. Randhawa, as well as the opinion of Dr. Fisk.

7 (App. at 6.) Clearly, the ALJ did not decide to discount Cosme’s subjective complaints

based on mere speculation, but rather objective evidence present in the record. Therefore,

substantial evidence exists to support the ALJ’s decision to discount Cosme’s subjective

complaints. See Smith,

.

C. Cosme’s RFC to Perform Sedentary Work

Cosme challenges the ALJ’s determination that he could perform sedentary work

as “merely conclusory and not based on the medical evidence” as well as claiming that

the ALJ failed to perform a function-by-function assessment of his abilities to do work-

related activities. (Opening Br. at 32.) Both assertions lack merit.

Sedentary work is the least demanding physical exertion category and is defined 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.”

(a). It also

involves only occasional walking and standing.

In Dr. Fisk’s RFC Questionnaire,

cited by the ALJ in his decision, he opined that Cosme could perform low stress work

with the possibility of moderate stress work in the future, had minimal functional

limitations, could walk three to five city blocks without rest, could sit or stand

continuously for more than 2 hours, and could frequently lift 10 pounds and occasionally

lift 20 pounds. Certainly, the opinion of Cosme’s treating cardiologist rises to the level of

substantial evidence to support the ALJ’s findings that Cosme could perform sedentary

work. See Morales,

. Cosme’s attempts to point to other portions of the

record that could lead to a different conclusion are not sufficient at this stage to warrant

8 remand as there is “more than a mere scintilla” to support the ALJ’s finding. See Biestek,

.

Further, contrary to Cosme’s assertion, the ALJ did perform a function-by-

function analysis in coming to his conclusion. In determining a claimant’s RFC, an ALJ

must consider all relevant evidence, including medical opinions, statements from medical

sources, and a claimant’s subjective complaints.

(a)(3), 416.945(a)(3). This includes assessing a claimant’s physical and mental

abilities.

§§ 404.1545(b)–(c), 416.945(b)–(c). Prior to making his determination

regarding Cosme’s RFC, the ALJ reviewed the evidence in the record as he discussed

Cosme’s physical and mental abilities and explained the evidence he relied upon in

reaching his decision and the weight accorded to it. Therefore, there is substantial

evidence that the ALJ properly considered Cosme’s physical and mental abilities in a

function-by-function assessment prior to his RFC determination.

D. The Vocational Expert

Lastly, Cosme makes two arguments regarding the vocational expert used in his

case. First, he argues that the ALJ erred in determining that he could communicate in

English and that the vocational expert should have been told of his inability to

communicate in English when considering whether sufficient jobs existed in the national

economy that he could perform. Second, Cosme argues that the ALJ improperly

considered one of the jobs presented by the vocational expert because it did not exist in

significant numbers in the national economy. Without this third job, Cosme contends,

9 there lacks substantial evidence that jobs exist in the national economy in significant

numbers that he could perform. Both arguments fail.

The ALJ determined Cosme could communicate in English because Cosme

marked on his disability application that he could read and write in English and corrected

the interpreter’s translation during the hearing. While Cosme is correct that contrary

evidence exists in the record, the evidence the ALJ cites to is evidence that he could

communicate in English. Ultimately, the presence of contrary evidence does not lead us

to conclude that the ALJ’s determination lacked substantial evidence. See Rutherford,

(courts in social security cases do not “weigh the evidence or substitute

[their own] conclusions for those of the fact-finder”).

The vocational expert testified that given Cosme’s limitations he would be able to

perform the jobs of Final Assembler (200,250 jobs in the national economy), Surveillance

System Monitor (10,600 jobs in the national economy), and Lens Inserter (200 jobs in the

national economy). Under the federal regulations, work exists in the national economy

that a claimant could perform when “there is a significant number of jobs (in one or more

occupations) having requirements which you are able to meet with your physical or

mental abilities and vocational qualifications.”

(b), 416.966(b)

(emphasis added). Therefore, even if we were to agree with Cosme that 200 jobs

nationally were not a “significant number,” that conclusion is irrelevant to the final

determination in this case. Substantial evidence exists that there is a significant number of

jobs in one or more occupations in the national economy—200,250 jobs nationally for a

Final Assembler—to uphold the ALJ’s decision.

10 III. CONCLUSION

As the District Court correctly recognized that the ALJ relied on substantial

evidence when denying Cosme disability benefits, we will affirm.

11