                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-4-2005

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-3097




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                                                                   NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ____________

                                      No. 04-3097
                                     ____________

                                     FRITZ TISOIT,

                                             Appellant

                                            v.

                           JO ANNE B. BARNHART,
                      COMMISSIONER OF SOCIAL SECURITY
                                ____________

                    On Appeal from the United States District Court
                        for the Eastern District of Pennsylvania
                                 (D.C. No. 03-cv-05024)
                     District Judge: Honorable Lowell A. Reed, Jr.
                                     ____________

                      Submitted Under Third Circuit LAR 34.1(a)
                                   April 1, 2005

                 Before: ALITO, SMITH and FISHER, Circuit Judges.

                                  (Filed: April 4, 2005)
                                      ____________

                              OPINION OF THE COURT
                                   ____________

FISHER, Circuit Judge.

      Appellant Fritz Tisoit applied for disability insurance benefits (DIB) under Title II,

and supplemental security income (SSI) under Title XVI, of the Social Security Act, 42
U.S.C. §§ 401-433, 1381-1383f, for a period beginning May 2, 2002, due to his infection

with Human Immunodeficiency Virus (HIV) and experience of major depression. The

claims were initially denied, and a hearing was then held before an administrative law

judge (“ALJ”), who also denied the claims by order dated May 16, 2003. Mr. Tisoit

sought review of the ALJ’s decision in the United States District Court for the Eastern

District of Pennsylvania, and on June 4, 2004, the court granted summary judgment to the

Commissioner. Mr. Tisoit appealed. We will affirm.

       We review de novo the District Court’s grant of summary judgment in favor of the

Commissioner but may reverse only if the ALJ’s findings are not supported by

“substantial evidence” in the administrative record. Boone v. Barnhart, 353 F.3d 203,

205 (3d Cir. 2004). “Substantial evidence is less than a preponderance but more than a

scintilla; it is such relevant evidence as a reasonable mind might accept as adequate.” Id.

(internal citation omitted).

       The Commissioner uses a five-step sequential evaluation process set forth at 20

C.F.R. § 404.1520 and § 416.920 to evaluate DIB and SSI claims. Specifically

considered is whether claimant (1) is working and doing substantial gainful activity;

(2) has a severe impairment; (3) has an impairment that meets or equals the requirements

of a listed impairment; (4) can return to past relevant work; and (5) if not, can perform

alternate work. See Rutherford v. Barnhart, 399 F.3d 546, 551 (3d Cir. 2005). In this

case, the ALJ assumed that Mr. Tisoit (who was then working part-time as a kitchen



                                             2
helper) was not engaged in substantial gainful activity, and further found that his ailments

constituted severe impairments, that he was incapable of performing his past relevant

work as a cook/kitchen helper and that he had the residual functional capacity (RFC) to

perform less than the full range of sedentary work. With the aid of a vocational expert

(VE), the ALJ then determined at the fifth step of the evaluation process that a significant

number of jobs exist in the national economy which Mr. Tisoit could perform, including

surveillance system monitor and order clerk, even with an eroded occupational base for

sedentary work. Consequently, Mr. Tisoit was deemed not disabled within the meaning

of the Social Security Act.

       On appeal, Mr. Tisoit contends that the ALJ erred (1) in failing to apply Social

Security Rulings (“SSR”) 96-9p and related rulings in SSR 83-12 and 83-14 in assessing

his eroded occupational base for sedentary work; (2) in failing to comply with SSR 00-4p

which requires an ALJ to affirmatively inquire about “any possible conflict” between the

evidence offered by a VE and information provided in the Dictionary of Occupational

Titles (DOT), and (3) in giving greater weight in considering Mr. Tisoit’s RFC to the

findings of a non-examining state agency medical consultant instead of the psychologist

who examined him at the Commissioner’s request. We address each contention in turn.

       As to the first assigned error, we conclude (as did the District Court, see A. 3-4),

that the ALJ adequately considered the extent of any erosion of Mr. Tisoit’s occupational

base for sedentary work and its significance. The ALJ consulted with a VE who testified



                                              3
there were a significant number of jobs in the economy that Mr. Tisoit could perform with

the limitations recognized by the ALJ and posed to the VE in a hypothetical. While the

ALJ does not cite SSR 96-9p, 83-12 or 83-14, it is plain that he followed the letter and

spirit of those rulings in consulting with the VE, and that substantial evidence otherwise

exists in the record to support the ALJ’s decision. We will not reverse simply because an

ALJ does not cite the applicable rulings when otherwise satisfied that no error was

committed. See Boone, 353 F.3d at 210.

       As to the second assigned error, we conclude (as did the District Court, see A.

2-3), that the real basis for Mr. Tisoit’s complaint is not the existence of an inconsistency

between the VE’s testimony and the DOT such as would trigger SSR 00-4p,1 but rather

that he is incapable of performing the two occupations identified by the VE. Specifically,

Mr. Tisoit contends that his actual capability for reasoning and language is less than that

conceived by the ALJ and VE, and that this is borne out by the administrative record. In

this situation, SSR 00-4p is not triggered, and we too conclude that the dialogue at the

hearing as well as the ALJ’s decision indicate that Mr. Tisoit’s capabilities for reasoning




       1
        This Court has not held that mere failure to inquire about the possibility of an
inconsistency under SSR 00-4p mandates reversal, and we will not do so here because, as
the District Court cogently explained, see A. 1, n.1, even if there was a conflict, it would
be de minimis because the occupations identified by the VE are within the range or below
the functioning levels of Mr. Tisoit’s previous work as a cook and kitchen helper. See
Jones v. Barnhart, 364 F.3d 501, 506 n.6 (3d Cir. 2004) (“[T]his Court has not adopted a
general rule that an unexplained conflict between a VE’s testimony and the DOT
necessarily requires reversal.”) (internal citation omitted).

                                              4
and language were considered in discerning his ability to perform other work, including

that identified by the VE. Further, we conclude that the administrative record would

support the ALJ’s decision not to include a limitation regarding Mr. Tisoit’s language

capability in the hypothetical posed to the VE.

       As to the third assigned error, we conclude (as did the District Court, see A. 2) that

the ALJ did not fail to consider the findings of Mr. Tisoit’s examining psychologist in

assessing his RFC, but rather set forth and relied upon many of those findings in posing

the hypothetical to the VE. We also conclude that the ALJ adequately explained his

assignment of greater weight to the findings of the non-examining medical consultant

regarding Mr. Tisoit’s mental capacity and that his decision to do so is supported by the

administrative record. See Fargnoli v. Massanari, 247 F.3d 34, 42 (3d Cir. 2001) (no

requirement for ALJ to discuss or refer to every piece of relevant evidence in the record,

so long as the reviewing court can discern the basis of decision).

       In addition to reviewing Mr. Tisoit’s specific assignments of error, we have

reviewed the administrative record in its entirety and conclude that the ALJ’s decision

was based on substantial evidence. Accordingly, we will affirm the decision of the

District Court entered June 4, 2004, in favor of the Commissioner.




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