UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 99-40574
GEORGE A. CAREY,
Plaintiff-Appellant,
VERSUS
KENNETH S. APFEL, COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
Appeal from the United States District Court
For the Eastern District of Texas
October 5, 2000
Before GARWOOD, DeMOSS, and PARKER, Circuit Judges.
DeMOSS, Circuit Judge:
George A. Carey appeals from a final judgment in favor of the
Commissioner of Social Security, which in turn affirmed the
Commissioner’s final decision denying disability benefits. The
issue presented is whether the Commissioner properly determined
that Carey was not disabled as of March 29, 1991, the last date on
which he met the requirements for insured status under the Social
Security Act. See 42 U.S.C. § 423(c). We affirm.
I.
Carey filed an application for disability benefits under the
Social Security Act in May 1994. See 42 U.S.C. §§ 416(i), 423. At
that time, Carey was a 53-year-old man with the equivalent of a
high school education. He had prior work experience as a
carpenter’s assistant, construction supervisor, laborer, and as a
flagger working on construction sites. Carey’s May 1994 claim
stated disabling impairments associated with a 1971 back injury
which required corrective surgery, and with a catastrophic
electrical shock occurring in November 1983, which led to the
amputation of Carey’s left forearm and hand and to tissue loss and
impaired functioning of his left leg.
Carey claimed total disability and the inability to work, with
an onset date of February 15, 1985. The parties agree that Carey
is not entitled to benefits unless he was disabled, within the
meaning of the relevant statutes and regulations, on or before
March 29, 1991, the date upon which he last enjoyed insured status
under the Act. Thus, it is Carey’s condition between February 15,
1985 (the date after which Carey claims he could no longer work),
and March 29, 1991 (the date after which Carey was no longer
insured for disability benefits), that is most probative on the
pertinent issue of whether he was disabled before March 29, 1991,
and is entitled to benefits.
2
Carey’s claim for disability benefits was denied in July 1994.
Carey requested reconsideration, and the claim was denied again in
November 1994. Carey then requested an administrative hearing,
which was held in February 1996.
The Administrative Law Judge received testimonial evidence
from Carey concerning his condition in March 1991, and considered
certain medical records offered by Carey. The ALJ also received
testimonial evidence from a medical expert concerning the extent to
which Carey’s claim was borne out in the pertinent medical records,
and from a vocational expert concerning Carey’s residual capacity
to perform certain identified jobs. See 20 C.F.R. §§ 404.1527(f),
404.1566(e).
In April 1996, the ALJ denied benefits, ruling that Carey was
not disabled as of March 1991. Carey appealed, and the Appeals
Council affirmed. The Appeals Council subsequently denied Carey’s
request for reconsideration, and the ALJ’s decision became the
final decision of the Commissioner for purposes of judicial review.
See 42 U.S.C. § 405(g). Carey then filed this suit in the federal
district court, which granted judgment in favor of the
Commissioner. Carey timely appealed.
II.
There is a five-step procedure for making a disability
determination under the Social Security Act. This procedure was
cogently set forth in Crowley v. Apfel, 197 F.3d 194 (5th Cir.
3
1999):
The Social Security Act defines "disability"
as the "inability to engage in any substantial
gainful activity by reason of any medically
determinable physical or mental impairment which
can be expected to result in death or which has
lasted or can be expected to last for a continuous
period of not less than 12 months." To determine
whether a claimant is disabled, and thus entitled
to disability benefits, a five-step analysis is
employed. First, the claimant must not be
presently working at any substantial gainful
activity. Second, the claimant must have an
impairment or combination of impairments that are
severe. An impairment or combination of
impairments is "severe" if it "significantly limits
[a claimant's] physical or mental ability to do
basic work activities." Third, the claimant's
impairment must meet or equal an impairment listed
in the appendix to the regulations. Fourth, the
impairment must prevent the claimant from returning
to his past relevant work. Fifth, the impairment
must prevent the claimant from doing any relevant
work, considering the claimant's residual
functional capacity, age, education, and past work
experience. At steps one through four, the burden
of proof rests upon the claimant to show he is
disabled. If the claimant acquits this
responsibility, at step five the burden shifts to
the Commissioner to show that there is other
gainful employment the claimant is capable of
performing in spite of his existing impairments.
If the Commissioner meets this burden, the claimant
must then prove he in fact cannot perform the
alternate work.
Id. at 197-98 (footnotes omitted).
There is no material dispute in this case with regard to the
first four steps. Carey is not working, he has a severe,
qualifying impairment, and he is unable to perform past relevant
work. The burden is, therefore, on the Commissioner to show that
Carey could perform other gainful employment. The ALJ held that
4
Carey was capable of gainful employment because he could perform
certain light unskilled jobs identified by the testifying
vocational expert.
The Commissioner’s determination that Carey was not disabled
before his insured status ended in March 1991 because he could
perform available jobs must be affirmed unless that determination
is either not supported by substantial evidence or involved an
erroneous application of legal standards. See Brown v. Apfel, 192
F.3d 492, 496 (5th Cir. 1999); Martinez v. Chater, 64 F.3d 172, 173
(5th Cir. 1995). Substantial evidence is something more than a
scintilla but less than a preponderance. Ripley v. Chater, 67 F.3d
552, 555 (5th Cir. 1995); Villa v. Sullivan, 895 F.2d 1019, 1021-22
(5th Cir. 1990). Alternatively, substantial evidence may be
described as that quantum of relevant evidence that a reasonable
mind might accept as adequate to support a conclusion. Villa, 895
F.2d at 1021-22. “The court does not reweigh the evidence in the
record, try the issues de novo, or substitute its judgment for the
Commissioner's, even if the evidence weighs against the
Commissioner's decision.” See Brown, 192 F.3d at 496. Conflicts
in the evidence are for the Commissioner to resolve. Id.
III.
Carey maintains that the ALJ’s decision was not supported by
substantial evidence. Carey first argues that the ALJ should not
have relied upon the medical expert’s testimony because that expert
5
gave an inaccurate summary of Carey’s medical records. Carey next
argues that the ALJ should not have relied upon the vocational
expert’s testimony because the hypothetical questions posed to the
vocational expert for the purpose of determining whether Carey
could perform other gainful employment included, and were premised
upon, the medical expert’s inaccurate summary of Carey’s medical
records. Carey further objects to the ALJ’s reliance upon the
vocational expert’s testimony on the ground that the expert’s
testimony that Carey could perform certain identified jobs with
only one arm is in conflict with the description given those jobs
in the Department of Labor’s Dictionary of Occupational Titles.
Carey also maintains that the ALJ’s determination that he was
not disabled as of March 1991 is premised upon an erroneous
application of the controlling legal principles. Specifically,
Carey contends that the ALJ erroneously relied upon Medical-
Vocational Guideline 202.21 when determining that Carey was not
disabled, even though Carey’s medical condition does not correspond
to the terms of that guideline. We will first discuss the evidence
presented in the administrative hearing, and then proceed to an
analysis of Carey’s specific appellate issues.
IV.
Carey’s administrative hearing was held on February 9, 1996.
Shortly before the hearing, Carey’s counsel withdrew. Carey
retained new counsel the day before the hearing. The ALJ began the
6
hearing by making sure that Carey’s counsel had been given an
adequate opportunity to review the record and prepare for the
hearing. Counsel responded that he was prepared to proceed on
Carey’s behalf, but that he wanted to tender additional medical
records, which he had reviewed the night before. Counsel explained
that most of the documents contained information that was
duplicative of information that was already in the social security
file, and our independent review of the record confirms this fact.
Many of the documents in the new submission were simply receipts
showing that certain services were requested or referrals made on
Carey’s behalf. Many others, as counsel noted in the hearing,
merely reported the raw data used in the generation of medical
reports containing the more probative clinical findings. Still
others were just the handwritten version of typewritten reports and
progress notes already in the file. After the ALJ objected to the
submission of documents that were already present in the exact same
format in the file, counsel’s assistant made an attempt to identify
at least some of the duplicates, and the additional medical records
were received. At the same time, counsel also tendered a summary
of Carey’s medical records, explaining what Carey expected they
would show.
The ALJ then expressed concern about whether there would be
sufficient time for the medical expert to review the new documents,
framing the issue in terms of whether it would be fair to Carey to
proceed. Although counsel did not form any objection to
7
proceeding, the ALJ refused to proceed until an off-the-record
discussion with the medical expert confirmed that he would be able
to review the newly submitted documents prior to his testimony
later in the hearing. Having received that assurance, the ALJ
permitted the hearing to proceed, and the following facts were
developed.
V.
Carey testified that he became unable to work on February 15,
1985 as a result of impairments arising from a 1971 back injury and
subsequent back surgery, and from his electrocution on the job in
1983.
The bulk of the testimony and all of the medical records
relate specifically to Carey’s electrocution. The record reflects
that on November 17, 1983, Carey was jolted with 12,000 volts of
electricity when a beam he was holding on a construction site came
into contact with a power line. The electrical current entered his
left forearm and exited his left thigh, leaving a 6 to 8 inch exit
wound on the front of his left thigh. Carey was treated at Hermann
Hospital in Houston, Texas, and the record contains the medical
records relating to his treatment immediately following the
accident.
Laboratory work performed on the date of his injury revealed
areas of focal necrosis in Carey’s left forearm and thigh, as well
as mild muscle damage in both areas. Several efforts were made to
8
treat Carey’s serious injuries by less drastic means, but by
November 25, 1983, necrosis of the muscle and the immediate threat
of serious infection required that the doctors amputate Carey’s
left forearm and hand. Carey’s forearm was amputated about three
inches below the elbow. Doctors also performed a split thickness
skin graft on the thigh wound at that time. On December 5, 1983,
Carey was discharged with pain medication and an antibiotic.
Two days later, on December 7, 1983, Carey was admitted to the
Texas Institute of Rehabilitation and Research complaining of
phantom pain in the amputated limb. Carey also expressed an
interest in training for an artificial limb. The initial TIRR
assessment reports that Carey was continuing to take pain
medication, but was not in any acute distress. The assessment
further reflects that the skin graft on Carey’s thigh was well-
healed and that strength in the lower left extremity was not
compromised at that time.
While at TIRR, Carey received wound care, physical therapy,
and training in handling ordinary tasks with one hand. Progress
notes reflect that Carey was regaining a good range of motion in
the affected joints and that he was developing an increasing
independence in one-handed activities. Progress notes also reflect
that Carey continued to suffer from phantom pains, characterized as
a tightening with pain in the amputated forearm and hand. On
December 16, 1983, Carey was discharged from TIRR with pain
medication in a condition characterized as medically stable.
9
Discharge notes reflect that Carey had completed the pre-prosthetic
program and that he was to return for prosthetic training once the
arm was sufficiently healed that it could be prepared for
prosthetic casting.
Carey returned to TIRR on several occasions over the next few
months. Progress notes prepared by TIRR’s physical therapy
department in December 1983 and January 1984 reflect that Carey
enjoyed a full range of motion in the affected joints, and that
Carey was asked to wear compressor bandages to shrink the distal
end of the amputated limb for prosthetic casting.
Progress notes from this period also reflect some concern
about Carey’s thigh wound. On January 4, 1984, Carey was referred
to TIRR’s plastics clinic to determine whether additional skin
grafting would be required on the thigh wound. Progress notes
prepared by the plastics clinic reflect that there had been some
breakdown of the initial skin graft to Carey’s thigh, and some
further complications with respect to the healing of that wound.
TIRR physicians informed Carey at that time that “debridement and
full thickness skin graft would allow him to close this wound and
get on with his life style [sic] in a much faster manner.” Carey
declined additional surgery, however, and the physicians agreed
that this was an acceptable choice.
Progress notes from later in January 1984 reflect that Carey
continued to suffer from phantom pain in the amputated forearm and
hand, and that physicians were continuing to work with Carey on
10
maintaining a full range of motion, decreasing sensitivity in the
remainder of the amputated limb, and preparing the limb for
prosthetic casting. Progress notes from February 1984 reflect that
Carey was achieving some success with respect to shrinking the
distal end of the amputated limb for prosthetic casting. On
February 20, 1984, Carey was discharged from physical therapy and
referred to a prosthetics company and the occupational therapy
department for prosthetic training.
Carey was seen by TIRR’s occupational therapy department on
several occasions, beginning in March 1984 and continuing until at
least August 1984. Progress notes from March 1984 reflect that
Carey enjoyed a “good innate ability” for deciding how to approach
a task and then accomplishing it using the prosthesis. Carey
reported using the prosthesis to cut meat and that he knew how he
would use the prosthesis to hold his gun when hunting. Progress
notes from April 1984 report that Carey’s prosthesis fit well and
that he was wearing it an average of three hours per day. The
notes further reflect that any problem with sweating under the
prosthesis could be reduced with the addition of air holes for
circulation. Progress notes from May 1984 report that Carey was
wearing the prosthesis all day with no problems, aside from
occasional mild swelling with weather changes.
In July 1984, Carey was referred to a TIRR vocational expert
after his employer refused to rehire him. In September 1984, the
vocational expert made a vocational assessment. The TIRR
11
vocational expert noted that Carey could stand and walk
functionally, although he still experienced weakness in his left
leg from the exit wound. The vocational expert further noted that
Carey was able to wear the prosthesis for ten hours per day, that
his skills with the prosthesis were good, and that he was
independent in all of the activities of daily living. Based on
these and other factors, the vocational expert concluded that “the
outlook for continued employment is very good.” Carey planned to
return to his prior employment, and the vocational expert
specifically recommended that Carey continue employment in the
construction industry as a flagger. Around this time, Carey
returned to work in the construction industry. Social security
records reflect that his total earnings in the final months of 1984
were slightly more than his total earnings in the eleven pre-
accident months of 1983.
VI.
In February 1985, Carey stopped working. When asked directly
why he stopped work, Carey twice testified that he was unable to do
the walking and climbing necessarily required by the construction
job because of weakness in his leg caused by the electrocution.
Carey also testified that extreme temperatures, either hot or cold,
made wearing the prosthesis a problem. Carey testified that he did
not seek other work because he had spent twenty years in the
construction industry and did not know any other trade. Carey did
12
not testify that he attempted any other type of work, aside from a
brief period of a few weeks when he worked as a consultant for his
neighbor.
Carey also offered testimony relating to the number and extent
of his other impairments. Carey testified that he is affected by
complications arising from his back injury. Specifically, Carey
testified that one of his legs tends to go to sleep and become numb
with prolonged sitting, and that he suffers from painful muscle
spasms. Carey testified that the circulation in the remainder of
his amputated limb is poor. Blood circulating into the stump tends
to pool there, which causes severe pain that can only be alleviated
by elevating the arm and taking over-the-counter pain medication.
The stump also tends to bruise easily and to develop sores or boils
as a result of poor circulation. These facts, together with the
absence of any perforations for circulation in the prosthesis, make
wearing the prosthesis difficult and working with it almost
impossible. Carey also testified that he continues to suffer from
phantom pain in the amputated forearm and hand.
Carey further testified with regard to other, more general
problems arising from the electrocution. Carey testified that he
suffers from digestive problems, and that he experiences
debilitating headaches three to four times per week. Carey further
testified that he has become irritable and ill-tempered, that he
has trouble concentrating, and that he experiences depression
associated with the loss of his limb and his inability to work.
13
Carey testified that these conditions were present on March 29,
1991, the date he was last insured for purposes of the Social
Security Act, and that they have worsened only slightly since that
time.
VII.
One of the primary difficulties with this case arises from the
absence of objective medical records to support Carey’s subjective
characterization of the extent of his impairments. See 20 C.F.R.
§ 404.1513(a) (“We need evidence from acceptable medical sources to
establish whether you have a medically determinable
impairment(s).”). There are no medical records relating to Carey’s
back injury and subsequent surgery, aside from anecdotal accounts
of that injury given as part of his medical history upon the
occasion of his electrocution. While there are medical records
relating to Carey’s electrocution and subsequent course of medical
treatment over the next nine or ten months, there were no medical
records or findings before the ALJ relating to Carey’s condition
after that time. Thus, there are no medical records demonstrating
that Carey’s wounds did not heal within the twelve month defining
period for disability or that continuing problems arising from his
injuries made it impossible for him to work after that point. To
the contrary, the last TIRR records indicate that a vocational
expert considered Carey capable of returning to his job.
Similarly, there are no records of any medical consultation or
14
treatment by any physician or health provider within the relevant
time frame of February 15, 1985, through March 31, 1991 (or indeed,
through the February 1996 administrative hearing), aside from a
letter reporting that Carey enjoyed 20/20 vision. In fact, Carey’s
own testimony establishes that he did not seek medical treatment
for any of the impairments he now identifies as contributing to his
inability to work, aside from the treatment associated with the
initial injury and healing process, which ended in late 1984.
Instead, Carey testified that he is able to alleviate any pain with
over-the-counter medications, by resting the affected leg, and by
elevating the remainder of his amputated limb to improve
circulation. Finally, Carey did not seek treatment for and there
are no medical records supporting Carey’s claims that continuing
pain, poor digestion, short temper, inability to concentrate, or
depression contribute to his inability to work.
Given the dearth of medical evidence to support Carey’s
claimed impairments, and Carey’s subjective complaints of pain, the
ALJ solicited the testimony of a medical expert who offered
testimony concerning the extent to which Carey’s subjective
complaints were borne out in the medical records. See 20 C.F.R.
§ 1527(f). The medical expert confirmed that he had reviewed all
of the necessary medical records. The medical expert testified
that there were no medical records supporting Carey’s claim that he
suffered any ongoing complications from the 1971 back injury. With
15
regard to the electrocution, the medical expert testified that
there were no medical records suggesting that Carey’s wounds had
not healed within twelve months, or that he continued to suffer
from pain or disabling physical complications from his injuries
within the relevant time period of February 15, 1985, through March
29, 1991. To the contrary, the medical expert noted that the
medical records indicated that Carey regained a full range of
motion in the affected joints after the amputation and good use of
the prosthetic device. The medical expert, likewise, noted that
there was no medical support in the record for Carey’s more
generalized claims, such as his claim that he suffered from
headaches, digestive problems, or depression. All of this
testimony comports with the medical records reviewed by this Court.
The medical expert also testified, however, that there was no
medical evidence: (1) that Carey experienced any complications
arising from delayed healing of the left leg exit wound; (2) that
Carey experienced any significant degree of muscle damage in the
left leg; (3) that Carey’s physicians recommended a full thickness
skin graft; or (4) that Carey suffered from phantom pains in the
amputated forearm and hand. The parties agree that the medical
expert’s testimony with respect to these last four points was not
entirely correct, at least when limited to the period immediately
following Carey’s electrocution in 1983 and 1984.
Based on his assessment of the medical record, the medical
expert concluded that Carey should be able to work on his feet for
16
six or more hours per day, and that Carey should be able to bend
and stoop for up to one-third of the time in an ordinary work day.
The medical expert did allow, however, that Carey would need to
work in a climate controlled environment given the sensitivity of
the remainder of the amputated limb and the problems associated
with wearing the prosthesis in extremely hot or cold temperatures.
Carey, on the other hand, testified that, as of March 1991,
the cumulative effect of his various impairments was that he could
stand for only thirty minutes and sit for only forty-five minutes
without resting. Carey testified that he could lift approximately
fifty pounds with his left arm, and that he could lift much lighter
loads with his prosthesis, provided that the lifting was
accomplished in a straight arm down position. Carey further
testified that he still enjoyed fishing and that he was capable of
loading the fishing boat on and off the trailer.
VIII.
The ALJ also solicited the testimony of a vocational expert.
As is usual in such cases, the ALJ posed hypothetical questions to
the vocational expert, asking the expert to address the claimant’s
residual functional capacity for work in light of a given set of
limitations or impairments. The ALJ posed three hypothetical
questions to the vocational expert. In one hypothetical, the ALJ
incorporated the medical expert’s opinion, framing the question in
terms of a person who could sit, stand, and walk for six hours and
17
stoop or bend for up to one-third of the day, who was able to work
with only one, dominant arm, who could not climb, and who would
need to work in a climate controlled environment. The vocational
expert testified that such a person would not be able to perform
Carey’s past relevant work, but that such a person would retain the
residual functional capacity to perform certain light, unskilled,
and available jobs such as usher, cashier, or ticket seller. In a
second hypothetical, the ALJ incorporated most of Carey’s own
assessment of his disability in March 1991, framing the question in
terms of a person who could walk only one block, stand for about
thirty minutes, sit for between thirty and forty-five minutes
without resting, and do some lifting with the dominant arm only,
but could not do any climbing or overhead lifting, and would need
to work in a climate controlled environment. The ALJ excluded from
this hypothetical those impairments claimed by Carey that were not
supported by any medical evidence, including Carey’s allegations of
poor digestion, trouble concentrating, ill-temper, and depression.
The vocational expert testified that such a person would likewise
be unable to perform Carey’s past relevant work, but that such a
person could perform certain light, unskilled, and available jobs
such as cashier or ticket seller. The final hypothetical was the
same as the second, but also included Carey's subjective and
undocumented complaints of depression, poor digestion, ill-temper,
and irritability, as well as an additional limitation posed by the
ALJ of difficulty getting along with others. The vocational expert
18
testified that such a person should still be able to do the jobs of
cashier and ticket seller, but that getting along with others might
become an important factor in a job which requires contact with the
public.
Acknowledging that Carey had additional impairments that might
preclude him from performing a significant number of light,
unskilled jobs, the ALJ prudently asked the vocational expert to
directly address the effect of Carey’s amputation on his ability to
perform the identified jobs of usher, cashier, and ticket seller.
The vocational expert testified that the identified jobs could be
performed with the use of only one arm and hand. The vocational
expert likewise confirmed that such jobs are available in
significant numbers.
IX.
In April 1996, the ALJ issued a decision denying benefits.
The ALJ began the decision with an entirely accurate description of
the medical records presented to the ALJ. The ALJ then noted the
medical expert’s testimony that the available medical records
indicated that Carey had regained good use of the joints affected
by the amputation and that he had not suffered any significant loss
of function in his leg. The ALJ also noted the medical expert’s
testimony that there were no medical records suggesting that
Carey’s electrocution injuries did not heal within twelve months
19
after the accident. The ALJ found this testimony, which is not
challenged by Carey in this appeal, to be credible.
The ALJ also found that all of Carey’s subjective complaints
of impairment were credible to the extent they were supported by
the objective evidence in the medical records. Thus, the ALJ
accepted Carey’s characterization of his residual functional
capacity for work in March 1991, including the limitations Carey
described for walking, standing, and sitting. The ALJ also
accepted additional limitations upon Carey’s residual functional
capacity as developed by the evidence. For instance, the ALJ found
that Carey would need to work in a climate controlled environment.
The ALJ rejected Carey’s subjective complaints of impairment to the
extent they were not supported by the objective medical evidence.
For instance, the ALJ held that there was no objective medical
evidence to support Carey’s claim of depression or pain within the
relevant time period of February 1985 through March 1991. The ALJ
was particularly persuaded by the facts that Carey, by his own
testimony, had returned to work for a significant period of time
following his injury and still enjoyed a fairly active lifestyle
that was consistent with work at some level. The ALJ was likewise
persuaded by the fact that there were no medical records relating
to Carey’s condition in the relevant time frame, as opposed to the
period immediately following his injury, and that, indeed, Carey
conceded he had not sought such treatment. Based upon all of the
evidence, the ALJ concluded that Carey retained the residual
20
functional capacity to perform light work, but that Carey’s
residual functional capacity was compromised by the inability to
use the left arm, the inability to climb, the inability to perform
more than occasional bending or stooping, and the need to work in
a climate controlled environment.
The ALJ noted that Carey’s medical-vocational profile at least
superficially approximated that set forth in Medical-Vocational
Guideline 202.21. See 20 C.F.R. Part 404, Subpart P, App. 2. The
ALJ acknowledged, however, that Carey’s additional limitations
would impact the number of light, unskilled jobs which he could
perform. The ALJ stated that the vocational expert was called for
the purpose of addressing whether there were available, light,
unskilled jobs that Carey could perform. The ALJ then noted the
vocational expert’s testimony that Carey, in light of all of his
impairments, could perform the jobs of cashier or ticket seller,
and that those jobs were available in significant numbers in the
national economy. The ALJ thus concluded that Carey was not
disabled within the meaning of the applicable statutes and
regulations.
Carey appealed the ALJ’s decision to the Appeals Council,
which affirmed.1 This appeal ensued.
1
While the case was pending before the Appeals Council, Carey
submitted additional evidence in the form of a 1997 letter from a
physician that treated Carey when he was electrocuted, but had not
seen him regularly since. The Appeals Council found that the
letter did not present any basis for reversing the ALJ’s decision,
and we agree. As an initial matter, the letter was drafted after
21
X.
On appeal, Carey argues that the ALJ’s decision was not
supported by substantial evidence. Carey first argues that the ALJ
should not have relied upon the medical expert’s testimony because
that expert gave an inaccurate summary of Carey’s medical records.
Carey next argues that the ALJ should not have relied upon the
vocational expert’s testimony because the hypothetical questions
posed to the vocational expert for the purpose of determining
whether Carey could perform other gainful employment included, and
were premised upon, the medical expert’s inaccurate summary of
Carey’s medical records. Carey frames these issues in terms of the
ALJ’s failure to fully and fairly develop the administrative
record.
An administrative law judge has a duty to fully and fairly
develop the facts relative to a claim for disability benefits. See
Brock v. Chater, 84 F.3d 726 (5th Cir. 1996); Kane v. Heckler, 731
F.2d 1216 (5th Cir. 1984). This Court will not reverse the
the ALJ’s decision and relates to Carey’s current condition, rather
than his condition in March 1991. Of equal importance, we note
that the letter does not purport to set forth any clinical
findings, but merely recounts Carey’s current characterization of
his impairments and then concludes that Carey, in the opinion of
the physician, is disabled. Assuming arguendo that the 1997 letter
is relevant, its probative weight is minimal and does not undermine
the ALJ’s decision in this case. See 20 C.F.R. § 220.46 (d) (“A
treating physician is a doctor to whom the claimant has been going
for treatment on a continuing basis”; “medical evidence provided by
a treating physician will be considered,” but a “statement by or
the opinion of the claimant's treating physician will not determine
whether the claimant is disabled.”).
22
decision of an ALJ for failure to fully and fairly develop the
record unless the claimant shows that he or she was prejudiced by
the ALJ’s failure. See Brock, 84 F.3d at 728; Kane, 731 F.2d at
1220. To establish prejudice, a claimant must demonstrate that he
or she “could and would have adduced evidence that might have
altered the result.” Kane, 731 F.2d at 1220.
We agree with Carey that the medical expert’s testimony,
standing alone, raises some cause for concern. The medical records
relating to Carey’s immediate treatment after injury include
laboratory tests showing a focal area of necrosis and some muscle
damage to Carey’s thigh, although that damage is characterized as
mild. The medical records relating to Carey’s post-injury
treatment at TIRR reflect that the thigh wound was not healing
well, that the initial skin graft was breaking down, and that TIRR
physicians specifically recommended a full thickness skin graft to
speed the healing process. Likewise, there is plenty of evidence
in the medical record to support Carey’s subjective claim of
phantom pain in the amputated forearm and hand. Carey was
prescribed medication for pain when he was discharged from Herman
Hospital in November 1983, and when he was discharged from TIRR
after his initial stay in December 1983. Thus, to the extent the
medical expert’s testimony can be seen to be in conflict with this
evidence, it was not reflective of Carey’s true condition at the
time he was treated for his injuries in 1983 and 1984.
23
We are not, however, persuaded that these inaccuracies present
reversible error in this case. First of all, there is no
indication in this record that the ALJ accepted or relied upon the
objectionable portions of the medical expert’s testimony. Carey’s
counsel stated at the hearing that most of the medical records
submitted at the hearing were merely duplicative of information
already contained in the social security file. Carey’s counsel had
thoroughly reviewed the relevant records and had even prepared a
summary of the medical records, which was presented to the ALJ.
Thus, the ALJ had both accurate medical records and Carey’s
interpretation of the medical records available when the medical
expert testified and when the ALJ issued her decision.
Carey argues that the ALJ’s reliance upon the medical expert’s
inaccurate testimony is evident in the hearing transcript.
Specifically, Carey objects that the ALJ’s hypothetical questions
to the vocational expert were premised upon the medical expert’s
inaccurate summary of his medical records. We disagree. Carey is
correct that one of the three hypothetical questions posed to the
vocational expert was premised upon the medical expert’s
characterization of Carey’s residual functional capacity. But the
ALJ also posed two additional hypothetical questions to the
vocational expert, both of which were premised upon Carey’s own
testimony about his residual functional capacity. Thus, the
hearing transcript reflects nothing more than that the ALJ
considered the medical expert’s testimony.
24
Carey likewise suggests that the ALJ’s reliance upon the
medical expert’s testimony is evident in the ALJ’s decision.
Specifically, Carey points to the ALJ’s finding that the medical
expert gave credible testimony. Once again, we disagree. While it
is true that the ALJ made a finding that the medical expert’s
testimony was credible, that finding was limited to the medical
expert’s testimony (1) that there was no medical evidence
indicating that Carey’s wounds did not heal within twelve months of
the electrocution, and (2) that the available medical records
relating to Carey’s post-injury progress indicated that Carey
regained good use of the affected joints and extremities.
The ALJ did not make any such finding of credibility with
respect to the testimony that Carey identifies as objectionable in
this appeal. To the contrary, the ALJ’s decision begins with a
detailed and entirely accurate summary of Carey’s medical records.
Moreover, the ALJ rejected the medical expert’s characterization of
Carey’s residual functional capacity, adopting the exertional
limitations identified by Carey instead. To the extent the ALJ
rejected Carey’s claims of non-exertional limitations, that
decision was plainly premised upon the complete absence of any
objective medical evidence to support Carey’s claims, rather than
upon any erroneous testimony from the medical expert. See 20
C.F.R. § 404.1513(a). The ALJ was particularly persuaded by the
facts that Carey had not sought and did not require any medical
25
intervention for the severe impairments he claimed, and that, as of
March 1991, Carey was still functioning well with many daily and
recreational activities that were consistent with some level of
gainful employment.
We conclude that neither the hearing transcript nor the ALJ’s
decision reflect any unjustified reliance upon inaccurate testimony
from the medical expert. Likewise, there is no indication that the
vocational expert’s testimony was limited in any significant manner
by inconsistencies or inaccuracies in the medical expert’s
testimony. Of equal importance, the record evidence is ample to
support the ALJ’s credibility determinations and other findings
with respect to Carey’s impairments and his residual functional
capacity, without regard to the objectionable portions of the
medical expert’s testimony. For these reasons, we conclude that
Carey was not prejudiced by any inconsistency between the medical
expert’s testimony and the medical records submitted to the ALJ.
See Brock v. Chater, 84 F.3d 726, 729 (5th Cir. 1996) (“We will not
reverse the decision of an ALJ for lack of substantial evidence
where the claimant makes no showing that he was prejudiced in any
way by the deficiencies he alleges.”).
XI.
Carey also argues that the ALJ’s decision was not supported by
substantial evidence because the vocational expert’s testimony that
Carey could perform certain identified jobs with only one arm is in
26
conflict with the description given those jobs in the Department of
Labor’s Dictionary of Occupational Titles (DOT).
There is a circuit conflict on the issue of whether an ALJ may
rely upon the testimony of a vocational expert when that expert’s
testimony is either in conflict with or creates a conflict in the
evidence in light of DOT provisions.2 The Sixth and Eleventh
Circuits hold that a vocational expert’s testimony is substantial
evidence that the ALJ may rely upon, even when that testimony is in
conflict with DOT provisions. See Jones v. Apfel, 190 F.3d 1224
2
We note that a vocational expert’s testimony may give rise to
such a conflict in at least two different ways. First, the
vocational expert may testify that a particular job requires a
particular exertional or skill level, when the DOT expressly
provides that the job requires a different exertional level. See,
e.g., Conn v. Secretary of Health & Human Servs., 51 F.3d 607, 610
(6th Cir. 1995) (vocational expert testified that particular jobs
required only a sedentary exertional level, while the DOT
classified those same jobs as light or medium). With this most
direct and obvious type of conflict, the ALJ is asked to accept the
vocational expert’s testimony, even though that testimony is in
actual conflict with the provisions of the DOT, which is routinely
relied upon by the responsible agency. A second, and different
type of conflict may arise when the vocational expert’s testimony
places the ALJ’s finding with respect to the claimant’s residual
functional capacity or the claimant’s specific impairments in
conflict with the exertional or skill level or the specific skills
required for the identified jobs in the DOT. See, e.g., Haddock v.
Apfel, 196 F.3d 1084, 1087-88 (10th Cir. 1999)(vocational expert
testified that claimant could perform three jobs classified by the
DOT as requiring a light or heavy exertional level after the ALJ
found that claimant had the residual functional capacity for only
sedentary work); Johnson v. Shalala, 60 F.3d 1428 (9th Cir. 1995)
(vocational expert testified that claimant could perform a job
classified by the DOT as light, notwithstanding the ALJ’s
determination that the claimant retained the residual functional
capacity for only sedentary work). The existing precedent
encompasses both types of conflict.
27
(11th Cir. 1999), cert. denied, 120 S. Ct. 1723 (2000); Conn v.
Secretary of Health & Human Servs., 51 F.3d 607 (6th Cir. 1995).
The Fourth Circuit has reached the same result in an unpublished
case. See Sawyer v. Apfel, No. 98-1520, 1998 WL 830653 (4th Cir.
Dec. 2, 1998). These courts reason that social security
regulations do not require the ALJ or the vocational expert to rely
upon the classifications in the DOT, or that the categorical DOT
job descriptions are neither comprehensive nor exclusively
probative of a claimant’s ability to perform a particular job.
See, e.g., Jones, 190 F.3d at 1229-30; Conn, 51 F.3d at 610;
Sawyer, 1998 WL 830653, at *1; see also Fields v. Bowen, 805 F.2d
1168 (5th Cir. 1986) (relying upon the necessarily general nature
of DOT job descriptions to hold that the Dictionary of Occupational
Titles is not an adequate substitute for vocational expert
testimony or other similar evidence on the issue of whether a
claimant can perform other gainful employment.)
The Eighth Circuit clearly holds that an ALJ may not rely upon
the testimony of a vocational expert if the expert’s testimony
conflicts with the DOT. See Smith v. Shalala, 46 F.3d 45 (8th Cir.
1995) (involving a vocational expert’s testimony that the claimant
could perform a particular job which, according to the DOT required
the ability to lift between twenty and fifty pounds,
notwithstanding the ALJ’s determination that the claimant could not
lift more than twenty pounds). The Eighth Circuit reasons that, in
28
the case of such a clear conflict, the DOT job descriptions are
generally more reliable than the conflicting testimony of a
vocational expert, at least with respect to the skills required to
perform a particular job. See Smith, 46 F.3d at 46 (noting the
authoritative nature of the DOT and the fact that the experience
level and knowledge of vocational experts may vary greatly).
The Ninth and Tenth Circuits employ a middle ground position,
holding that, when the vocational expert’s testimony is either in
conflict with the DOT or creates a conflict in the evidence based
upon the DOT, the ALJ may, nonetheless, rely upon the vocational
expert’s testimony if the record reflects a substantial reason for
deviating from the DOT. See Haddock v. Apfel, 196 F.3d 1084 (10th
Cir. 1999); Johnson v. Shalala, 60 F.3d 1428 (9th Cir. 1995). The
Second and Seventh Circuits have issued arguably consistent
opinions. See Tom v. Heckler, 779 F.2d 1250 (7th Cir. 1985)
(remanding for further exploration of an apparent conflict between
the ALJ’s finding that claimant was limited to sedentary work and
the vocational expert’s testimony that the claimant could perform
certain jobs classified at light in the DOT); Mimms v. Heckler, 750
F.2d 180, 186 (2d Cir. 1984) (same).3
3
In a much more recent, but unpublished decision, the Seventh
Circuit explained that the DOT is not controlling and that the ALJ
may rely upon the testimony of a vocational expert, even when it is
inconsistent with the DOT. See Mont v. Chater, No. 96-2896, 1997
WL 201626 (7th Cir. Apr. 4, 1997) (unpublished) (citing Conn v.
Secretary of Health & Human Servs., 51 F.3d 607 (6th Cir. 1995)).
29
Our own Circuit has not addressed when a conflict exists or
how such a conflict is to be resolved. We have, however, refused
to uphold a determination of disability when premised solely upon
DOT job descriptions, rather than upon the testimony of a
vocational expert or other similar evidence. See Fields, 805 F.2d
at 1170-71. When, as here, the claimant suffers from additional
limitations that make the Medical-Vocational Guidelines
inapplicable, the Commissioner must rely upon the services of a
vocational expert or similar evidence. Id. This Court has
recognized that the DOT is not comprehensive, in that it cannot and
does not purport to include each and every specific skill or
qualification for a particular job. Id. at 1171. “The value of a
vocational expert is that he [or she] is familiar with the specific
requirements of a particular occupation, including working
conditions and the attributes and skills needed." Id. at 1170; see
also Vaughan v. Shalala, 58 F.3d 129 (5th Cir. 1995). Thus,
although this Court has not addressed when there is a conflict
between the testimony of a vocational expert and the DOT and how
that conflict is to be resolved, this Court has acknowledged that
the DOT job descriptions should not be given a role that is
exclusive of more specific vocational expert testimony with respect
to the effect of an individual claimant’s limitations on his or her
ability to perform a particular job.
Having set forth those general principles, we turn to
30
consideration of the conflict alleged here. The ALJ solicited the
assistance of a vocational expert because Carey suffered from
additional impairments which potentially precluded Carey from
performing a significant number of light, unskilled jobs, and made
application of the Medical-Vocational Guidelines inappropriate.
The ALJ posed a hypothetical question to the vocational expert
which included all of the limitations identified by Carey that were
supported by any objective medical evidence. See, e.g., 20 C.F.R.
§ 404.1513(a); Bowling v. Shalala, 36 F.3d 431, 435-36 (5th Cir.
1994). The ALJ determined that Carey retained the residual
functional capacity to perform light, unskilled work, as limited by
the inability to use the left arm and hand, the need to have a sit-
stand option to accommodate Carey’s limitations in that regard, and
the need to work in a climate controlled environment. The
vocational expert testified that Carey, in light of the impairments
found by the ALJ, could perform the job of cashier or ticket taker.
Both of those jobs are light, unskilled jobs, and the vocational
expert specifically testified that Carey could perform both jobs
with the additional impairments identified by the ALJ.
On appeal, Carey claims that the vocational expert’s testimony
that he could work as a cashier or ticket seller with one arm and
hand is incredible in light of or inconsistent with the skill
requirements listed for those jobs in the DOT. Specifically, Carey
notes that both jobs require handling and fingering for between
31
one-third and two-thirds of the day, finger dexterity in the middle
third of the population, and manual dexterity within the lowest
third of the population, excluding the bottom ten percent. As an
initial matter, we note that this case does not involve the type of
direct and obvious conflict at issue when the vocational expert’s
characterization of the exertional or skill level required for a
particular job is facially different from the exertional or skill
level provided for that job in the DOT. Neither does this case
involve the less obvious conflict created when the vocational
expert’s testimony creates a conflict or discrepancy between the
ALJ’s determination of the claimant’s residual functional capacity
and the DOT job descriptions. The vocational expert characterized
the jobs of cashier and ticket seller as light, unskilled jobs,
which comports with both the DOT and the ALJ’s determination of
Carey’s residual functional capacity. What is involved here is
merely an alleged conflict between the vocational expert’s specific
testimony that Carey could perform the jobs of cashier and ticket
seller with one hand, and a DOT description stating that the person
in those jobs will be required to have some ability to finger and
handle things. The conflict identified by Carey does not even
become apparent until the further inference is made that the jobs
require manual dexterity with, not one, but two hands. Moreover,
that conflict is greatly mitigated by the vocational expert’s
specific testimony that Carey could perform the identified jobs
with only one arm and hand. Carey, nonetheless, maintains that the
32
vocational expert’s testimony should have included some explanation
of why the identified jobs could be performed with only one arm and
hand.
We are not persuaded that the facts of this case present any
actual conflict between the vocational expert’s testimony and the
DOT. The DOT does not contain any requirement of bilateral
fingering ability or dexterity, and the vocational expert
specifically testified that the jobs of cashier and ticket seller
could be performed with the use of only one arm and hand.
Moreover, Carey’s counsel was given an opportunity to object or
cross-examine the vocational expert on the affect of Carey’s
amputation on his ability to perform the identified jobs. See
Bowling, 36 F.3d at 435-36. Nonetheless, Carey’s counsel did not
raise the issue or challenge the vocational expert’s testimony that
the jobs of cashier and ticket seller could be performed with only
one arm and hand. Carey basically contends that the vocational
expert’s testimony that he could perform certain jobs requiring
manual dexterity in the lowest third of the population should have
been explored further, when Carey himself failed to do so in the
administrative hearing.
Given the tangential nature of the conflict alleged here, we
surmise that Carey’s argument actually reduces to a factual
disagreement about whether a person with one arm can perform a job
requiring some degree of manual dexterity and fingering. The
33
regulatory structure as well as the controlling precedent requires
expert testimony on such issues, and there is no indication in this
record that the vocational expert’s testimony that Carey could
perform those jobs with one arm and hand was incorrect. Our task
in these cases is merely to determine whether the Commissioner’s
determination is supported by substantial evidence. We are not
permitted to “reweigh the evidence in the record, try the issues de
novo, or substitute” our own judgment for that of the Commissioner,
or even the testifying witnesses. See Brown, 192 F.3d at 496.
To the extent that there is any implied or indirect conflict
between the vocational expert’s testimony and the DOT in this case,
we agree with the majority of the circuits that the ALJ may rely
upon the vocational expert’s testimony provided that the record
reflects an adequate basis for doing so. As the facts of this case
demonstrate, all kinds of implicit conflicts are possible and the
categorical requirements listed in the DOT do not and cannot
satisfactorily answer every such situation. Moreover, claimants
should not be permitted to scan the record for implied or
unexplained conflicts between the specific testimony of an expert
witness and the voluminous provisions of the DOT, and then present
that conflict as reversible error, when the conflict was not deemed
sufficient to merit adversarial development in the administrative
hearing. Adopting a middle ground approach, in which neither the
DOT nor the vocational expert testimony is per se controlling,
34
permits a more straightforward approach to the pertinent issue,
which is whether there is substantial evidence supporting the
Commissioner’s determination that this particular person can do
this particular job or group of jobs. Certainly, a vocational
expert’s erroneous characterization of the exertional level or
skills required to perform a particular job calls into question
both the probative value and reliability of the expert’s testimony.
Likewise, an explained discrepancy between the ALJ’s determination
of the claimant’s residual functional capacity and the vocational
expert’s testimony that the claimant can perform certain identified
jobs with inconsistent skill requirements may require remand for
further exploration. But in this case, the vocational expert’s
clear and unchallenged testimony that Carey could perform the
identified jobs with one arm and hand is adequate, in the context
of this record as a whole, to support the ALJ’s determination that
Carey could perform other available work. We, therefore, decline
to reverse the Commissioner’s determination on the basis of the
implied conflict between the vocational expert’s testimony and the
DOT.
XII.
Carey’s final argument is that the ALJ’s determination that he
was not disabled as of March 1991 is premised upon an erroneous
application of the controlling legal principles. Specifically,
Carey contends that the ALJ erroneously relied upon Medical-
35
Vocational Guideline 202.21 when determining that Carey could
perform other gainful employment, even though Carey’s medical
condition did not correspond to the terms of that guideline.
Medical-Vocational Guideline 202.21 provides for a finding of
no disability when an individual with a residual functional
capacity for light work is aged 45 to 49, has at least a high
school education, and has skilled or semi-skilled work experience
that is not transferrable. See 20 C.F.R. Part 404, Subpart P, App.
2. Use of the Medical-Vocational Guidelines is not appropriate when
the claimant has non-exertional limitations, such as Carey’s
requirement for a climate controlled environment. See Loza v.
Apfel, 219 F.3d 378, 398 (5th Cir. 2000). We, therefore, agree
with Carey that reliance upon those guidelines to determine whether
he was disabled would be inappropriate. We, nonetheless, decline
to find legal error in this case because the ALJ did not make her
disability determination on the basis of the Medical-Vocational
Guidelines. While it is true that the ALJ twice mentioned the
similarity between Carey’s vocational-medical profile and Medical-
Vocational Guideline 202.21 in her decision, the ALJ went on to
note that Carey’s additional impairments required further evidence.
Thus, the ALJ’s decision reflects both an understanding of the
inadequacy of the guideline and the need for vocational expert
testimony to develop the issue further. The ALJ expressly relied
upon the vocational expert’s clarifying testimony for her ruling
36
that Carey, with his particular impairments, could perform certain
sedentary or light jobs that are available in significant numbers
in the national economy. There is, therefore, no legal error in
the ALJ’s ruling.
CONCLUSION
The district court is in all respects AFFIRMED.
37
ROBERT M. PARKER, Circuit Judge, concurring in part and dissenting
in part:
I agree with the majority that when a vocational expert’s
testimony is in conflict with the DOT, the ALJ may rely on the
vocational expert’s testimony if the record reflects a substantial
reason for doing so. See Haddock v. Apfel, 196 F.3d 1084 (10th
Cir. 1999). Although the DOT is due deference, it does not and
cannot cover every possible permutation of human impairment. A
vocational expert’s testimony that, in a particular case, a
claimant can or cannot perform a specific job or class of jobs must
be taken into consideration by the ALJ. I therefore agree that we
should decline to reverse the Commissioner’s determination on the
basis of the conflict between the vocational expert’s testimony and
the DOT.
However, I find merit in Carey’s claim that the ALJ’s decision
was not supported by substantial evidence. The medical expert gave
an inaccurate summary of Carey’s medical records, the vocational
expert’s testimony relied, in part, on that inaccurate summary and
the ALJ specifically found that the medical expert gave credible
testimony. The ALJ was clearly in error when he relied on Medical
Vocational Guideline 202.21, a fact that the majority acknowledges.
Based on these errors, I would reverse this case and remand it for
38
a determination of Carey’s eligibility for disability insurance
payments in light of a complete and accurate record.
I respectfully dissent.
39