Burns v. Barnhart

• Decision Date: 04 December 2002
• Docket Number: No. 02-1091.,02-1091.
• Citation: 312 F.3d 113
• Parties: Joseph BURNS, Appellant v. *Jo Anne B. BARNHART, Commissioner of the Social Security Administration *(Pursuant to F.R.A.P. 43(c))
• Court: U.S. Court of Appeals — Third Circuit

312 F.3d 113

Joseph BURNS, Appellant v. *Jo Anne B. BARNHART, Commissioner of the Social Security Administration

*(Pursuant to F.R.A.P. 43(c))

No. 02-1091.

United States Court of Appeals, Third Circuit.

Argued September 9, 2002.

Filed December 4, 2002.

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Michael P. Boyle [Argued], Philadelphia, PA, for Appellant.

Tara A. Czekaj [Argued], Social Security Administration, OGC/Region III, Philadelphia, PA, for Appellee.

Before BECKER, Chief Judge, ROTH and RENDELL, Circuit Judges.

OPINION OF THE COURT

RENDELL, Circuit Judge.

Appellant, Joseph Burns, challenges the denial of his application for Supplemental Security Income (SSI) under Title XVI of the Social Security Act, 42 U.S.C. § 1381 et seq. While we reject Burns' argument that the record, as it exists, establishes his eligibility for SSI, we will reverse and remand because we find that the hypothetical question posed to the vocational expert by the administrative law judge did not incorporate all of Burns' limitations.

I.

Burns completed his education through tenth grade. He most recently worked in a stock position at a beer distributor. He has not worked since 1986, and last looked for work in 1989. He is fifty-one years old and has not acquired any transferable vocational skills.

Burns filed an application for SSI on June 24, 1998, alleging an onset of total disability on June 15, 1998. In the application and other related documents, Burns alleged that he was unable to work due to a heart condition, lung cancer, a hernia, nerves, arthritis of the hands and knees, high blood pressure, a stomach disorder, dizziness, and back pain. The record does not contain extensive medical documentation of Burns' ailments. It does, however, contain reports, completed after Burns' application date, documenting some of Burns' alleged conditions, including a report of a lumbar spine x-ray showing "early degenerative changes," various medical reports detailing complaints of knee, chest and back pain, and a report of a cardiac catheterization that revealed coronary artery disease. The record also contains reports, completed after he filed his application, detailing an electrocardiogram that came within normal limits, an x-ray examination of his chest that showed a "normal chest," an x-ray examination of Burns' right knee showing "no arthritic change" and that his knee was "normal," and a stress test that revealed no exercise-induced ischemia. In addition, the record indicates that doctors placed a stent in Burns' arteries in order to relieve the pain from his coronary artery disease.

The state agency that initially assesses applications for SSI rejected Burns' application for benefits. After his request for reconsideration was denied as well, Burns requested review before an Administrative Law Judge ("ALJ"). Burns testified at the hearing before the ALJ, as did a vocational expert. The testimony focused mainly on Burns' alleged physical limitations and how they affected his ability to work. At the end of the hearing, at counsel's urging, the ALJ ordered an evaluation of Burns' intellectual capacity. That evaluation, conducted by Loren Laviolette, Ed.D., diagnosed Burns as having borderline intellectual functioning. Because a supplemental hearing was not held after the psychological evaluation, the ALJ never questioned Burns or the vocational expert regarding Dr. Laviolette's findings.

Five months after Dr. Laviolette's evaluation, the ALJ issued a decision denying Burns benefits. The ALJ found that Burns "retains the capacity to make an adjustment to work which exists in significant numbers in the national economy." The Appeals Council of the Social Security Administration declined review, effectively making the ALJ's determination the final decision of the Commissioner of the Social Security Administration ("Commissioner"). At that point, Burns had exhausted his administrative remedies. Fargnoli v. Massanari, 247 F.3d 34, 38 (3d Cir.2001).

On June 13, 2001, Burns filed a complaint with the District Court for the Eastern District of Pennsylvania, seeking review of the Social Security Administration's refusal to grant benefits. The District Court had jurisdiction under 42 U.S.C. § 405(g) (2002). The District Court referred the case to a magistrate judge who, in considering cross-motions for summary judgment, recommended granting the Commissioner's motion. On November 14, 2001, the District Court adopted this recommendation and entered judgment against Burns.

Burns appeals to our court, alleging a number of errors. These may be summarized as follows: (1) the ALJ based his findings on a deficient hypothetical question posed to the vocational expert; (2) the ALJ should have concluded that Burns met or equaled the listed impairment for mental retardation; (3) the vocational expert's conclusion, which the ALJ adopted for his findings of fact, that Burns could engage in substantial gainful activity conflicted with the Dictionary of Occupational Titles; (4) the ALJ incorrectly determined that Burns retained the residual functional capacity for light exertional work; and (5) the ALJ failed to account for either the fact of stress or the side effects of Burns' medication.

We have jurisdiction under 28 U.S.C. § 1291 (2002) and 42 U.S.C. § 405(g) (2002). While our review of the District Court's order is plenary, we may reverse the grant of summary judgment to the Commissioner only if we conclude that the ALJ's findings were not supported by "substantial evidence." Podedworny v. Harris, 745 F.2d 210, 217 (3d Cir.1984); 42 U.S.C. § 405(g). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate." Ventura v. Shalala, 55 F.3d 900, 901 (3d Cir.1995) (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971)). We have referred to it as "less than a preponderance of the evidence but more than a mere scintilla." Jesurum v. Secretary of the United States Dep't of Health & Human Servs., 48 F.3d 114, 117 (3d Cir.1995). We also have made clear that we are not permitted to weigh the evidence or substitute our own conclusions for that of the fact-finder. Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992).

II.

In order to qualify for SSI, a person must be disabled as that term is defined by the Social Security Act and accompanying regulations. Title XVI of the 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." 42 U.S.C. § 1382c(a)(3)(A) (2002).

Using this definition, the Social Security Administration applies a five-step test to determine whether a person is disabled for purposes of qualifying for SSI.¹ 20 C.F.R. § 416.920 (2002). Step one requires a determination of whether the claimant is currently engaging in "substantial gainful activity," 20 C.F.R. § 416.920(b), as defined in the regulations. See 20 C.F.R. § 220.141 (2002). If the person is found to be engaged in substantial gainful activity, the application will be denied. Step two of the evaluation process requires that the claimant show that he suffers from a "severe impairment." 20 C.F.R. § 416.920(C). If the claimant fails to show that his impairments are "severe," he will be denied benefits. Step three allows the claimant to demonstrate that his disability meets or equals an impairment listed in Appendix 1 to Subpart P of Part 404 ("Listing of Impairments"). 20 C.F.R. § 416.920(d). At this step, an ALJ often enlists the help of an expert to explain the medical evidence. If the impairment meets or equals a listed impairment, the claimant is considered disabled per se and the evaluation process ends. Plummer v. Apfel, 186 F.3d 422, 428 (3d Cir.1999).

If, however, the claimant's impairments do not satisfy step three, the claimant must continue on to step four. Step four requires that the claimant demonstrate that he does not have sufficient residual functional capacity to perform his past relevant work. 20 C.F.R. § 416.920(e). Residual functional capacity is defined as "what a [claimant] can still do despite his limitations." 20 C.F.R. § 416.945(a). If the claimant does not demonstrate his inability to do past relevant work, he will not be considered disabled. If he does, the inquiry moves to step five.

At the final step — step five — the burden shifts to the Commissioner to show that the claimant can perform "other work." 20 C.F.R. § 416.920(f). "Other work" must consist of jobs that exist in significant numbers in the national economy that the claimant can perform given his age, education, past work experience, and residual functional capacity. Plummer, 186 F.3d at 428. At the fourth and fifth steps, the ALJ often seeks advisory testimony from a vocational expert. Id. In addition, the ALJ will generally consult the Dictionary of Occupational Titles (DOT), a publication of the United States Department of Labor that contains descriptions of the requirements for thousands of jobs that exist in the national economy, in order to determine whether any jobs exist that a claimant can perform.

III.

During the hearing held to consider the Commissioner's denial of benefits, the ALJ questioned Burns, as did counsel. No medical expert testified. The questioning focused on the physical limitations alleged by Burns. Burns testified to suffering from a variety of limitations, including lung cancer, stiffness in his hands, arthritis in his knees, back pain, chest pains, breathing problems, high blood pressure, poor blood circulation and other heart-related problems. Burns also testified that he experienced some comprehension problems, had trouble sitting, lifting, and walking, and suffered from drowsiness caused by his medication. In response...