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Jones v. Comm Social Security Precedential or Non-Precedential: Precedential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
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
Recommended Citation "Jones v. Comm Social Security" (2004). 2004 Decisions. Paper 746. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/746
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
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.
2
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.
3
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.
4
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.”
5
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
6
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
7
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.
8
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.