Jones v. Comm Social Security

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Precedential or Non-Precedential: Precedential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.

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