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


4-19-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 03-3597




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Recommended Citation
"Perez v. Comm Social Security" (2004). 2004 Decisions. Paper 809.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/809


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                                                              NOT PRECEDENTIAL

                  IN THE UNITED STATES COURT OF APPEALS
                           FOR THE THIRD CIRCUIT

                                     No. 03-3597

                                  DAPHNE PEREZ,

                                                Appellant

                                           v.

                     COMM ISSIONER OF SOCIAL SECURITY
                      _________________________________

                    On Appeal from the United States District Court
                              for the District of New Jersey
                    District Judge: The Honorable Faith S. Hochberg
                                 (D.C. No. 02-cv-01282)
                       _________________________________

                        Submitted under Third Circuit LAR 34.1
                                  on March 25, 2004

                           Before: FUENTES, SMITH, and
                          JOHN R. GIBSON,* Circuit Judges

                                (Filed: April 19, 2004)

                              ______________________

                              OPINION OF THE COURT
                              _______________________

JOHN R. GIBSON, Circuit Judge.




      *
       The Honorable John R. Gibson, Senior Circuit Judge for the United States Court of
Appeals for the Eighth Circuit, sitting by designation.
       Daphne Perez appeals from the district court’s entry of judgment in favor of the

Commissioner of Social Security in Perez’s suit to establish her entitlement to Disabled

Widow’s Benefits and Supplemental Security Income. The only point in dispute is

whether there was substantial evidence to support the finding of the administrative law

judge (known as the ALJ) that Perez retained the residual capacity to perform her past

work of child-care worker. We affirm the judgment of the district court.

       We have jurisdiction to review this case under 42 U.S.C.§ 405(g) (2000) and 28

U.S.C. § 1291 (2000). We, like the district court, review the ALJ’s findings of fact under

the substantial evidence standard. Burns v. Barnhart, 312 F.3d 113, 118 (3d Cir. 2002).

We shall therefore affirm if the ALJ’s findings are supported by such relevant evidence as

a reasonable mind might accept as adequate. Id.

       The ALJ analyzed Perez’s disability claims using the familiar five-step sequence

prescribed in 20 C.F.R. §§ 404.1520 and 416.920 (2001). The claimant bears the burden

of persuasion through the first four steps of the sequence, and only if the analysis

proceeds to the fifth step does the burden shift to the Commissioner. Burns, 312 F.3d at

119. The ALJ found at steps one through three that Perez has not worked since 1992, that

she has a severe impairment involving herniated discs in her neck and lower back, and

that her condition does not meet or equal the impairments listed in Appendix 1, Subpart P

to 20 C.F.R. Pt. 404. The ALJ determined at step four that Perez retained the residual

capacity to perform light work, including lifting and carrying objects weighing up to



                                              2
twenty pounds, frequently lifting objects weighing up to ten pounds, and standing,

walking, and sitting up to six hours in an eight-hour day. The ALJ found that Perez had

past relevant work as a child-care worker (also referred to as nursery school attendant)

and that this job fit within the category of light exertional level. The ALJ accordingly

found Perez retained the ability to do her past work and she was not disabled.

       Perez contends that the job of child care worker exceeds the light exertional level

because in her past work she was required to lift weights of up to fifty pounds. She

testified at the hearing that she was required to lift more than twenty pounds and she

stated in a vocational report that she was required to lift up to fifty pounds. However, she

stated in her disability report that the heaviest weight she lifted at the job was twenty

pounds. As finder of fact, the ALJ was entitled to choose between Perez’s own accounts.

Moreover, the ALJ was entitled to consider whether Perez could perform the job as it is

customarily performed in the national economy, Social Security Ruling 82-61 and 82-62,

and to take into account the Department of Labor’s Dictionary of Occupational Titles (4th

ed. 1991). The description of nursery school attendant in the Dictionary of Occupational

Titles § 359.677-018 categorizes this job in the light exertional level. The ALJ’s

determination that Perez could perform the job was supported by substantial evidence.

       We affirm the judgment of the district court.

                                      _______________




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