                                                                 NOT PRECEDENTIAL

                      UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT
                               _______________

                                    No. 11-3699
                                  _______________

                            ERIKA BRYANT SARGENT,

                                                     Appellant

                                          v.

                     COMMISSIONER OF SOCIAL SECURITY

                                  _______________

                    On Appeal from the United States District Court
                       For the Western District of Pennsylvania
                        (D.C. Civil Action No. 2-11-cv-00186)
                      District Judge: Honorable Nora B. Fischer
                                  _______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   April 17, 2012
                                 _______________

             Before: SCIRICA, AMBRO and NYGAARD, Circuit Judges

                            (Opinion filed April 18, 2012)
                                 _______________

                                     OPINION
                                  _______________

AMBRO, Circuit Judge

      Erika Sargent was denied benefits under the Social Security Act. She sought

review of the decision of the Commissioner of Social Security (the “Commissioner”) in
the District Court, which granted summary judgment to the Commissioner. For the

reasons that follow, we affirm.

I.     Background

       In January 2009, Sargent applied for Disability Insurance Benefits and for

Supplemental Security Income under the Social Security Act. She suffers from both

physical and psychological impairments. Physically, she has hepatitis C, anemia, and

degenerative disc disease. Psychologically, she has major depressive disorder, post-

traumatic stress disorder, panic disorder, and a history of drug abuse.

       After the state agency denied her benefits, she requested a hearing before an

Administrative Law Judge (“ALJ”). At the hearing, Sargent, who was represented by

counsel, testified about her symptoms and medical history. The ALJ also took the

testimony of an impartial vocational expert concerning the employment that might be

suitable for Sargent in light of her conditions. In September 2009, the ALJ issued a

decision denying Sargent‟s application. She then petitioned the Appeals Council, which

denied review and thus made the ALJ‟s decision the final decision of the Commissioner.

See Sims v. Apfel, 530 U.S. 103, 106-07 (2000); 20 C.F.R. § 422.210.

       Having exhausted her administrative remedies, Sargent filed suit in the District

Court seeking review of the ALJ‟s decision. See 42 U.S.C. §§ 405(g), 1383(c)(3). She

asserted a panoply of errors, including improper credibility determinations, insufficient

explanation that she lacked an “impairment” as defined by regulation, and lack of

substantial evidence regarding the employment available to her. On cross-motions for



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summary judgment, the District Court entered judgment for the Commissioner,

addressing each of Sargent‟s contentions at length. This timely appeal followed.

II.    Jurisdiction and Standard of Review

       The District Court had jurisdiction under 42 U.S.C. § 405(g). We have

jurisdiction pursuant to 28 U.S.C. § 1291.

       “Like the District Court, we must uphold a final agency determination unless we

find that it is not supported by substantial evidence in the record.” Rutherford v.

Barnhart, 399 F.3d 546, 552 (3d Cir. 2005). “Substantial evidence is „more than a mere

scintilla. It means such relevant evidence as a reasonable mind might accept as adequate

to support a conclusion.‟” Mercy Home Health v. Leavitt, 436 F.3d 370, 380 (3d Cir.

2006) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).

III.   Discussion

       The Social Security Act authorizes the Commissioner to pay benefits to disabled

persons. 42 U.S.C. §§ 423, 1382. It defines “disability” as “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 12 months.” Id. § 423(d)(1)(A).

An individual cannot engage in “substantial gainful activity” if she “cannot, considering

[her] age, education, and work experience, engage in any other kind of substantial gainful

work which exists in the national economy, regardless of whether . . . a specific job

vacancy exists for [her], or whether [she] would be hired if [she] applied for work.” Id.

§ 423(d)(2)(A).

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       The Commissioner applies a five-step test to determine whether a claimant is

disabled. 20 C.F.R. §§ 404.1520(a)(4), 416.920(a)(4). In the first four steps, which are

not at issue in our case, the Commissioner considers the medical severity of the

claimant‟s impairments and determines her residual functional capacity. See Poulos v.

Comm’r of Soc. Sec., 474 F.3d 88, 91-92 (3d Cir. 2007). “The claimant bears the

ultimate burden of establishing steps one through four.” Id. at 92. At the fifth step, the

burden shifts to the Commissioner to show that the claimant can make an adjustment to

other work. Plummer v. Apfel, 186 F.3d 422, 428 (3d Cir. 1999). The Commissioner

“will look at [the claimant‟s] ability to adjust to other work by considering [her] residual

functional capacity and [her] vocational factors of age, education, and work experience.

Any other work . . . that [she] can adjust to must exist in significant numbers in the

national economy . . . .” 20 C.F.R. §§ 404.1560(c)(1), 416.960(c)(1). “The ALJ will

often seek the assistance of a vocational expert at this fifth step.” Plummer, 186 F.3d at

428; see also 20 C.F.R. §§ 404.1566(e), 416.966(e).

       As her sole ground for appeal, Sargent claims that the ALJ‟s fifth-step

determination that she is able to adjust to other work is not supported by substantial

evidence. She bases her claim on the testimony of the vocational expert at the ALJ

hearing. The ALJ asked the vocational expert two hypothetical questions to determine

what work is available for individuals with two types of physical limitations. One of

them regarded work at the “medium exertional level”; the other regarded work at the

“sedentary level.” A.R. 345-47. Both questions involved only physical limitations.

Counsel then noted that Sargent‟s limitations are not just physical but psychological. The

                                              4
ALJ thus re-asked her “sedentary level” hypothetical question but included psychological

limitations as well as physical limitations. Id. at 349-50. In all, there were three relevant

hypothetical questions: (1) “medium level” physical limitations with no psychological

limitations; (2) “sedentary level” physical limitations with no psychological limitations;

and (3) “sedentary level” physical limitations with psychological limitations. The

vocational expert identified work available for each question. After the hearing, the ALJ

held that Sargent was limited to the “sedentary level” and had psychological limitations,

so question 3 became the operative one.

       Sargent urges that the ALJ‟s decision was flawed because the vocational expert‟s

answers were not in line with the ALJ‟s hypothetical questions. In response to question

1, the expert identified three “medium level” positions: stock clerk, hand packager, and

light assembly work. Id. at 345-46. In response to question 2, he identified three

“sedentary level” positions: cashier, telephone solicitor, and gate guard. Id. at 347. And

in response to question 3, he identified three “sedentary level” positions with

psychological limitations: sorter/grader, hand packager, and light assembly work. Id. at

350. The trouble with these responses, Sargent maintains, is that two of the three

“sedentary level” answers to question 3 (hand packager and light assembly work) were

also “medium level” answers to question 1. Indeed, in the Department of Labor‟s

Dictionary of Occupational Titles (“DOT”), all three positions given in response to

question 3 have exertion levels above “sedentary.”1 Because question 3 characterized


1
 Both the ALJ and the vocational expert relied on the classifications in the DOT, as the
applicable regulations permit. See 20 C.F.R. §§ 404.1566(d)(1), 416.966(d)(1).
                                              5
Sargent, she asserts that the Commissioner has not provided substantial evidence that

work is available given her physical and psychological limitations.

       As we have explained, “although some minor inconsistencies may exist between

the vocational testimony and DOT information,” it remains possible that “the testimony

provide[s] substantial evidence for the ALJ‟s conclusions.” Rutherford, 399 F.3d at 558.

No law or regulation requires the ALJ to fit the claimant into precise categories or to find

that a specific number of jobs are available. Rather, the “obligation of an ALJ” is “to

develop the record,” id. at 556, so as to determine whether there is suitable “gainful work

. . . in the national economy,” 42 U.S.C. § 423(d)(2)(A). In this context, “[w]hen there is

an apparent unresolved conflict between [vocational expert] evidence and the DOT, the

[ALJ] must elicit a reasonable explanation for the conflict before relying on the [expert‟s]

evidence to support a determination or decision about whether the claimant is disabled.”

SSR 00-4p, 2000 WL 1898704 (Dec. 4, 2000).

       In this case, the full colloquy between the ALJ and the vocational expert suffices

as substantial evidence. Pursuant to her obligation under Ruling 00-4p, the ALJ sought to

verify that the expert‟s testimony was consistent with the DOT. A.R. 351. The expert

explained that while the positions with which he answered question 3 were not

“sedentary level,” the DOT lists only the highest exertional level for each occupation. Id.

Thus, while some sorter/grader positions (for example) are more strenuous than

“sedentary level,” others are at “sedentary level.” The vocational expert‟s numbers

confirm that he accounted for the difference between “medium” in question 1 and

“sedentary” in question 3. In response to question 1, which concerned the “medium

                                             6
exertional level,” the expert testified that there were 160,000 light assembly positions and

200,000 hand packager positions. Id. at 345-46. But in response to question 3, which

concerned the “sedentary level,” his numbers for light assembly and hand packager

positions were lower—101,000 and 156,000, respectively. Id. at 350. The only

explanation in the record for those reductions is that the vocational expert accounted for

the limitations present in question 3 but absent in question 1.

                                      *   *   *   *   *

       The ALJ‟s exchange with the vocational expert provided substantial evidence that

positions exist “in significant numbers in the national economy” that are suitable given

Sargent‟s limitations. See 20 C.F.R. §§ 404.1560(c)(1), 416.960(c)(1). The

Commissioner therefore satisfied his burden at step five of the disability determination

process, and we affirm the judgment of the District Court.




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