                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-14-2004

Jones v. Comm Social Security
Precedential or Non-Precedential: Precedential

Docket No. 03-1661




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                   PRECEDENTIAL
                                                         (Filed April 14 2004)
        UNITED STATES
       COURT OF APPEALS
     FOR THE THIRD CIRCUIT                     Zenford A. Mitchell
                                               P.O. Box 99937
                                               Pittsburgh, PA 15233
              No. 03-1661
                                                      Counsel for Appellant

          TIE’EASE L. JONES,                   Shawn C. Carver
                         Appellant             Social Security Administration
                                               SSA/OGC/Region III
               v.                              300 Spring Garden Street
     JO ANNE B. BARNHART,                      6th Floor
    COMMISSIONER OF SOCIAL                     Philadelphia, PA 19123
           SECURITY
                                                      Counsel for Appellee


   On Appeal from the United States
              District Court                                   OPINION
for the Western District of Pennsylvania
       (Dist. Ct. No. 01-cv-02305)
District Judge: Honorable Alan N. Bloch
                                               CHERTOFF, Circuit Judge.
                                                      Tie’Ease L. Jones appeals from the
  Submitted Under Third Circuit LAR            District Court’s judgment affirming the
               34.1(a)                         Commissioner of Social Security’s denial
           January 23, 2004                    of her application for disability insurance
                                               and supplemental security income
 Before: ALITO, CHERTOFF, Circuit              benefits.    Jones challenges the ALJ’s
  Judges, and DEBEVOISE,* Senior               determination at steps three and five of the
           District Court Judge                five-step evaluation process promulgated
                                               by the Social Security Administration to
                                               determine whether an individual is
      *                                        disabled. See 20 C.F.R. § 404.1520. At
            Honorable Dickinson R.
                                               step three, the ALJ concluded that Jones’s
Debevoise, Senior United States District
                                               signs, symptoms, and laboratory findings
Judge for the District of New Jersey,
                                               did not meet or equal the criteria
sitting by designation.

                                           1
established for a listed impairment. At            review of the adverse decision, pursuant to
step five, the ALJ concluded the                   42 U.S.C. § 405(g), in the United States
Commissioner had met its burden of                 District Court for the Western District of
establishing Jones’s capacity for other            Pennsylvania. On January 6, 2003, the
work, given her impairments, pain,                 Honorable Alan N. Bloch granted the
functional restrictions, age, education, and       Commissioner’s motion for summary
work experience. For the reasons stated            judgment and denied Jones’s cross-motion
below, we will affirm the District Court’s         for summary judgment.         This appeal
judgment.                                          followed.
                     I.                                                 II.
       Jones was born on September 3,                      The District Court exercised
1969.     She has an eleventh grade                jurisdiction pursuant to 42 U.S.C. §
education and past work experience as a            405(g), and appellate jurisdiction is vested
nursing assistant and telemarketer. Jones          in this Court under 28 U.S.C. § 1291. The
filed for disability benefits on or about          role of this Court is identical to that of the
September 17, 1997, alleging disability            District Court; we must determine whether
due to asthma and hives. 1        Jones’s          there is substantial evidence to support the
application for disability insurance               Commissioner’s decision. Plummer v.
benefits was denied both initially and             Apfel, 186 F.3d 422, 427 (3d Cir. 1999).
upon reconsideration. After conducting a           Substantial evidence means “‘such
hearing, on January 27, 1999, the ALJ              relevant evidence as a reasonable mind
rendered a decision concluding that Jones          might accept as adequate to support a
was not entitled to benefits. On October           conclusion.’” Jesurum v. Sec’y of the U.S.
2, 2001, the Appeals Council denied                Dep’t of Health & Human Servs., 48 F.3d
Jones’s request to review the ALJ’s                114, 117 (3d Cir. 1995) (quoting
decision.                                          Richardson v. Perales, 402 U.S. 389, 401
                                                   (1971)). “It is less than a preponderance
       Subsequently, Jones sought judicial
                                                   of the evidence but more than a mere
                                                   scintilla.” Id. Overall, the substantial
       1
          Jones’s Brief characterizes her          evidence standard is a deferential standard
alleged disability more broadly: “The              of review. Schaudeck v. Comm’r of Soc.
Appellant suffers from both exertional and         Sec. Admin., 181 F.3d 429, 431 (3d Cir.
non-exertional impairments which include           1999).
a history of urticaria, asthma, chronic                    The Social Security Administration
obstructive and restrictive lung disease,          has promulgated a five-step evaluation
fibromyalgia, anxiety and depression.”             process to determine whether an individual
(Appellant Br. at 3). Even if we adopt this        is disabled. See 20 C.F.R. § 404.1520; see
broader characterization for the purpose of        generally Plummer, 186 F.3d at 428. In
this appeal, Jones’s claim fails.

                                               2
step one, the Commissioner decides                 ALJ’s determinations at steps three and
whether the claimant is currently engaging         five.
in substantial gainful activity. If so, the
                                                                        III.
claimant is not eligible for disability
benefits. 20 C.F.R. § 404.1520(a). In step                Jones argues that the ALJ erred in
two, the Commissioner determines                   step three in failing to find she was per se
whether the claimant is suffering from a           disabled under Listing 3.02(A). The ALJ
severe impairment. If the impairment is            concluded that, under step two, Jones had
not “severe,” the claimant is not eligible         a severe impairment based on medical
for disability benefits.     20 C.F.R. §           findings of chronic urticaria, asthma,
404.1520(c).          In step three, the           chronic obstructive and restrictive lung
Commissioner evaluates whether the                 disease, and anxiety and depression. At
evidence establishes that the claimant             step three, however, the ALJ determined
suffers from a listed impairment. If so, the       that after “carefully compar[ing] the
claimant is automatically eligible for             claimant’s signs, symptoms, and laboratory
benefits. If the claimant does not suffer          findings with the criteria specified in all of
from a listed impairment or its equivalent,        the Listings of Impairments,” “the
however, the Commissioner proceeds to              claimant’s impairments do not meet or
the next step. 20 C.F.R. § 404.1520(d). In         equal the criteria established for an
step four, the Commissioner reviews                impairment shown in the Listings.”
whether the claimant retains the “residual         Administrative Transcript (“Tr.”) at 13.
functional capacity” to perform his past
                                                           Listing 3.02 provides: “Chronic
relevant work. If so, the claimant is not
                                                   obstructive pulmonary disease, due to any
eligible for disability benefits. 20 C.F.R.
                                                   cause, with the FEV 1 equal to or less than
§ 404.1520(e). Finally, in step five the
                                                   the values specified in table I
Commissioner considers whether work
                                                   corresponding to the person’s height
exists in significant numbers in the
                                                   without shoes.” 20 C.F.R. Pt. 404, Subpt.
national economy that the claimant can
                                                   P, App. 1, § 3.02(A). Jones’s height of 69
perform given his medical impairments,
                                                   inches corresponds to an FEV1 value of
age, education, past work experience, and
                                                   1.45 or less. Id. In support of her claim of
“residual functional capacity.” If so, the
                                                   disability, Jones points to February 16,
claimant is not eligible for benefits. 20
                                                   1998 test results indicating FEV 1 values of
C.F.R. § 404.1520(f). In this final step,
                                                   .99, 1.04, and 1.11. Tr. at 137. This
“the burden of production shifts to the
                                                   Court, however, concludes that the test
Commissioner, who must demonstrate the
                                                   results alone are insufficient to support a
claimant is capable of performing other
                                                   claim of disability; rather, there is
available work in order to deny a claim of
                                                   substantial evidence to support the ALJ’s
disability.” Plummer, 186 F.3d at 428.
                                                   conclusion that Jones did not suffer from a
       The issues on appeal arise from the         listed impairment.


                                               3
       The introductory note to the                             Respiratory impairments
regulations governing listed respiratory                    usually can be evaluated
impairments explains that an FEV value                      under these listings on the
should not be analyzed in isolation from                    basis of a complete medical
other evidence in assessing whether the                     history,        physical
claimant satisfies the criteria for the listed              examination, a chest x-ray
impairment:                                                 or other appropriate imaging
                                                            techniques, and spirometric
             The listings in this
                                                            pulmonary function tests.
       section           describe
       impairments resulting from                    20 C.F.R. Pt. 404, Subpt. P, App. 1, § 3.00
       respiratory disorders based                   (emphasis added). “For a claimant to
       on symptoms, physical                         show his impairment matches a listing, it
       s i g n s , la bora t o r y t e st            must meet all of the specified medical
       abnormalities, and response                   criteria. An impairment that manifests
       to a regimen of treatment                     only some of those criteria, no matter how
       prescribed by a treating                      severely, does not qualify.” Sullivan v.
       source.                                       Zebley, 493 U.S. 521, 530 (1990)
                                                     (emphasis in original).
       ....
                                                             In this case, substantial evidence
            . . . Because th[e]
                                                     supports the ALJ’s decision that Jones’s
       symptoms [attributable to
                                                     impairments do not meet or equal the
       these disorders] are common
                                                     criteria established in Listing 3.02(A). As
       to many other diseases, a
                                                     the District Court noted, the record
       thorough medical history,
                                                     includes various physician treatment notes
       physical examination, and
                                                     indicating that Jones’s lungs were “clear,”
       chest x-ray or other
                                                     her chest x-rays were normal, she had
       appropria te imaging
                                                     normal breath sounds, there was “little
       techniques are required to
                                                     objective evidence of abnormality on
       e s t a b li s h p u l m o n a r y
                                                     physical examination,” and that she had
       disease.          Pulmonary
                                                     only “mild” bronchial asthma.2
       function testing is required
       to assess the severity of the
       respiratory impairment once
                                                            2
       a disease p r o c e ss is                              Jones’s challenge to the evidence
       established by appropriate                    outlined by the District Court is
       clinical and laboratory                       unpersuasive. (Appellant Br. at 7-8). In
       findings.                                     essence, Jones’s primary argument is that
                                                     the evidence cited by the District Court
       ....
                                                     merely provides isolated assessments and
                                                     “does not reflect her condition over time.”

                                                 4
        To be sure, in Burnett v.                    in reaching the conclusion that Jones did
Commissioner of So cial Se curity                    not meet the requirements for any listing,
Administration we required “the ALJ to               including Listing 3.02(A). The ALJ’s
set forth the reasons for his decision,” and         opinion discusses the evidence pertaining
held that the ALJ’s bare conclusory                  to chronic obstructive and restrictive lung
statement that an impairment did not                 d i s e a se , s p e c i f i c a l l y r e f e r e n c i n g
match, or is not equivalent to, a listed             “[p]ulmonary function studies . . .
impairment was insufficient. 220 F.3d                cons istent with moderately severe
112, 119-20 (3d Cir. 2000). Here, Jones              obstructive and restrictive defects,” but
does not specifically challenge the ALJ’s            pointing to the lack of pulmonary
ruling on the grounds that it fails the              complications, and a finding that
Burnett standard. Rather, Jones’s only               claimant’s lungs were clear. Also, the ALJ
reference to Burnett appears in a long list          noted that claimant’s medical history
of citations in support of the general               showed no frequent hospitalization or
proposition that “the ALJ must analyze all           emergency treatments. Tr. at 13-14.3
the evidence in the record and provide an
adequate explanation for disregarding
evidence.” (Appellant Br. at 9) (emphasis                     3
                                                              The ALJ’s opinion explains, in
in original). In any event, the ALJ’s step           pertinent part:
three analysis in this case satisfies Burnett.
                                                            The claimant is somewhat
Burnett does not require the ALJ to use
                                                            more limited by chronic
particular language or adhere to a
                                                            obstructive and restrictive
particular format in conducting his
                                                            lung disease with asthma,
analysis. Rather, the function of Burnett is
                                                            but even so, I find that this
to ensure that there is sufficient
                                                            would not preclude the
development of the record and explanation
                                                            performance of at least
of findings to permit meaningful review.
                                                            sedentary work activity . . .
See id. at 120. In this case, the ALJ’s
                                                            .      Pulmonary function
decision, read as a whole, illustrates that
                                                            studies are consistent with
the ALJ considered the appropriate factors
                                                            moderately severe
                                                            obstructive and restrictive
                                                            defects, but the claimant has
However, the FEV1 evidence relied on by                     no significant pulmonary
Jones is also just an isolated measurement.                 complications such as
Moreover, even if Jones is correct that the                 clubbing, cyanosis, or
medical evidence may not be ideal in                        edema. In addition, she has
reflecting “her condition over time,” such                  not required frequent
an argument is insufficient to undermine                    hospitalizations or
the claim that there was substantial                        emergency room treatments
evidence to support the ALJ’s conclusion.                   for an exacerbation of this

                                                 5
This discussion satisfies Burnett’s            determination at step five. She raises two
requirement that there be sufficient           criticisms: (1) the jobs identified by the
explanation to provide meaningful review       vocational expert (VE) in accordance with
of the step three determination.               the ALJ’s hypothetical—telephone
                                               operator, personal attendant, and
                   IV.
                                               cashier—are jobs not generally performed
       Jones also challenges the ALJ’s         at the sedentary level; and (2) the ALJ
                                               disregarded the VE’s response to Jones’s
                                               counsel’s hypothetical.
          disorder. Dr. Levine’s                      The ALJ concluded that given
          examination in February              Jones’s capacity to perform some
          of 1998 (Exhibit 6F)                 sedentary work,4 there are a significant
          showed that the                      number of jobs in the national economy
          claimant’s lungs were                that she could perform, providing the
          clear.     The claimant              examples of cashier, personal attendant,
          requires the us u al                 and telephone operator. Jones argues that
          medications for control              the identified jobs are generally not
          of this particular medical           performed at the sedentary level. While
          disorder. Dr. Hawkins,               Jones correctly notes that the Dictionary of
          while assessing that the             Occupational Titles (4th ed., rev. 1991)
          claimant was temporarily             (“DOT”) indicates personal attendant is
          disabled for welfare                 light work, the jobs of cashier and
          purposes (Exhibit 10F),              telephone operator5 are listed as sedentary.
          nonetheless concluded
          that the claimant’s
          asthma was only mild in                     4
                                                       The ALJ noted that additional
          nature. The claimant also            nonexertional limitations precluded Jones
          has undergone allergy                from performing the full range of
          tests which were entirely            sedentary work.
          within normal limits in
                                                      5
          January of 1997 as noted                      Jones argues that “[t]he job as a
          by Dr. Levine (Exhibit               telephone operator is very similar if not
          6F). I therefore will                identical to the Plaintiff’s past job as a
          conclude that the                    telemarketer.” Therefore, “[i]f the ALJ
          claimant, while having a             concluded that the Plaintiff could not
          severe respiratory                   perform her past relevant work, she cannot
          condition, could still               be expected to perform a similar job or the
          perform a wide range of              same job as she performed in the past.”
          sedentary jobs . . . .               (Appellant Br. at 11). However, Jones
Tr. at 13-14.                                  fails to substantiate the assertion that a

                                           6
Moreover, the ALJ’s three enumerated               Q. Assuming an adult
occupations are merely examples, and not              individual the same age,
a complete list, of the sedentary work that           education and past work
Jones can perform.6                                   experience as the
                                                      Claimant, but I would
       Additionally, Jones argues that the
                                                      like for you to assume
ALJ erred in disregarding the VE’s
                                                      the following additional
response to the following hypothetical
                                                      factors posed in Dr.
posited by Jones’s attorney:
                                                      Levine’s report dated
                                                      February 18th, 1998. I
                                                      would like you to
telephone operator and telemarketer are               assume the following
identical. Moreover, the VE’s testimony               factors: that this adult
suggests distinct reasons why Jones might             individual’s ability to
no longer be able to continue employment              function and motivation
as a telemarketer that may be inapplicable            to do things is seriously
to a telephone operator position: “The                affected by her anxiety
work she did for the telemarketing,                   and depression; and
anytime you’re a supervisor in charge of              additional factors such
other people, it’s, it’s just not considered          as her hives and her
to be few decisions, where, where you’re,             respiratory difficulty
in fact, in charge of other people’s work             affect her ability to
demands. And I think that it would                    complete tasks in an
exceed that limitation.” Tr. at 222.                  eight-hour work period.
       6
         We acknowledge that this Court               Would such an adult
has expressed concern in cases where                  individual be able to
there is a conflict between the VE’s                  perform her past
testimony and the DOT. See Boone v.                   relevant work and any
Barnhart, 2003 WL 22966888 (3d Cir.                   other work in the
Dec. 18, 2003). However, this Court has               national economy?
“not adopt[ed] a general rule that an              A. The—what’s critical to
unexplained conflict between a VE’s                   me in hearing this is the
testimony and the DOT necessarily                     ability to complete tasks
requires reversal.” Id. at *2. Additionally,          in an eight-hour
Boone is distinguishable—unlike this                  workday. And all jobs
case, in Boone there was a much more                  are going to require that
explicit conflict, a conflict as to “each             c e r t a i n t a s k s a re
occupation identified by the VE,” and the             completed within a day,
VE’s testimony was riddled with                       within a day’s period of
hesitation. See id. at *2-4.

                                               7
              time. Either so many                         alert and oriented, that her
              telephones or calls                          memory, concentration, and
              are answered or so                           ability to relate to others are
              many envelopes are                           not impaired, that she keeps
              stuffed or one is at a                       her appointments, that she is
              cash register for a                          able to follow directions
              specific period of                           with respect to her medical
              time. So completing                          care, that she is not
              tasks is an essential                        psychotic and can carry out
              part of doing any                            the activities of daily living.
              kind of work.
                                                    Tr. at 15. The ALJ was not required to
Tr. at 225 (emphasis added).                        accept the assumptions posited by Jones’s
                                                    counsel; rather, there is substantial
       Even assuming that this testimony
                                                    evidence to support the ALJ’s
alone is sufficient to support a claim of
                                                    determination at step five that there are a
disability, the ALJ did not err in failing to
                                                    significant number of jobs in the national
accept the hypothetical. The hypothetical
                                                    economy that Jones can perform.
asked the VE to make certain assumptions,
based in large part on Dr. Levine’s report.                              V.
As the District Court noted, however,
                                                          For the foregoing reasons, the
because the hypothetical was inconsistent
                                                    judgment of the District Court entered
with the evidence in the record, the ALJ
                                                    on January 6, 2003 will be affirmed.
had the authority to disregard the
response.7      For example, the ALJ
concluded that despite a diagnosis of
anxiety and depression, Dr. Levine
indicated that Jones’s
       mental functioning is
       normal, that she remains


       7
         The ALJ explicitly referenced the
hypothetical in his decision, but concluded
that it was not dispositive: “The claimant’s
counsel also presented hypotheticals to the
vocational expert based on information
provided by Dr. Levine, but I believe that
I have adequately discussed Dr. Levine’s
medical reports in the above paragraphs.”
Tr. at 16.

                                                8
9
