Jones v. Apfel, 98-6797
| Decision Date | 29 September 1999 |
| Docket Number | No. 98-6797,98-6797 |
| Citation | 190 F.3d 1224 |
| Parties | (11th Cir. 1999) CHRISTINE JONES, Plaintiff-Appellant, v. KENNETH S. APFEL, Defendant-Appellee |
| Court | U.S. Court of Appeals — Eleventh Circuit |
[Copyrighted Material Omitted]
Appeal from the United States District Court for the Southern District of Alabama D. C. Docket No. 2:97-692-BH-C
Before TJOFLAT and DUBINA, Circuit Judges, and STORY*, District Judge.
In this social security case, we are called upon to decide if the testimony of a vocational expert ("VE") trumps the Dictionary of Occupational Titles ("DOT") when the two are in conflict. We hold that it does.
Christine Jones ("Jones") applied for supplemental security income benefits ("SSI") on February 22, 1994, alleging that pain in her back, hands, legs, and chest, and numbness on her right side left her disabled. The Social Security Administration ("SSA") denied her application, and the Appeals Council denied it again on reconsideration. Jones then requested a hearing before an administrative law judge ("ALJ").
At the hearing, Jones, then age 41, testified that she was a high school graduate, was married, and had six children, five of whom lived with her and her husband.1 Jones had worked as a restaurant cook, a fish filleter, and a corn-dog packager. In 1992, Jones quit her job as a fish filleter because of pain and swelling in her right knee. She could not stand for longer than 10 to 25 minutes and could not sit for extended periods of time. Her daily activities consisted of bathing, watching television, reading, sleeping, and sometimes making breakfast. She testified that her back and knee pain prohibited her from doing housework, driving, bending, or stooping. She also asserted that she had numbness and pain in both arms, high blood pressure, sinus problems, and a defective heart valve which caused her heart to stop beating sometimes. She took medication on a daily basis, some of which made her drowsy. On a scale of one to ten, she rated her pain a seven or eight.
The ALJ questioned Charles Whitson, a VE, about Jones's assertions in her application for disability. The ALJ asked the VE to assume that Jones can perform sedentary level work that does not involve significant bending, stooping, crouching, crawling, or reaching above shoulder level, and does not involve exposure to extreme dust, fumes, gasses, irritants, and pollen. The ALJ also asked the VE to assume that Jones is best suited to working with objects rather than people and can perform routine, repetitive, and unskilled work activities. Based on this hypothetical, the VE testified to four categories of jobs that existed in the national and regional economy that such a claimant could perform: (1) a hand packager, (2) an agricultural sorter, (3) small-parts assembler, and (4) a product inspector.
Alternatively, the ALJ asked the VE to assume that the record supported Jones's claims of pain and discomfort and her limitations of ability to function. If the record supported these claims, the VE responded that Jones would be precluded from the occupations he identified. On cross-examination, the VE stated that moderately severe pain would also preclude Jones from all of the identified occupations.
The ALJ reviewed the reports of three physicians and a psychologist who had treated or examined Jones. Dr. Bony F. Barrineau ("Dr. Barrineau") treated Jones after she twisted her right knee on the job. Dr. Barrineau gave Jones an injection for the pain and recommended wearing a knee sleeve. Several months later, Jones returned to Dr. Barrineau with continued pain. Upon further examination, Dr. Barrineau diagnosed a medial meniscus tear and indicated that this knee injury precluded her from standing for long periods of time. (Exhibit at 133-35).
Dr. Larry B. Thead ("Dr. Thead") performed a consultative examination of Jones. Based on his examination, Dr. Thead concluded that Jones "would have no difficulty performing work related physical activities such as sitting, standing, handling objects, hearing, and speaking." (Exhibit at 141-44).
Dr. Judy C. Travis ("Dr. Travis") treated Jones for various complaints over the course of a year. In February 1996, Dr. Travis completed a physical evaluation of Jones and found that she could frequently lift objects weighing less than ten pounds; that her impairment did not affect her standing, walking, and sitting; that she could frequently bend, squat, kneel, and crawl, and occasionally climb and balance; that her impairment did not affect her grasping, reaching, pushing, and pulling; that her environmental restrictions included temperature extremes, chemicals, noise, fumes, and vibration; that she did not have chronic pain, but that she needed vocational rehabilitation to return to work; and that she would be an unreliable worker as a result of her condition and attendant limitations.
The psychologist, Kenneth R. Schneider, Ph.D., ("Dr. Schneider") completed a mental evaluation of Jones. Jones's full scale IQ score was 71; she functioned at the borderline mentally retarded range of intellectual development. Dr. Schneider indicated that Jones's pain, combined with her borderline mentally retarded range of intellectual functioning, could significantly impact her ability to function in a work setting. He concluded that Jones had moderate limitations in several areas. Dr. Schneider also indicated that Jones's condition was likely to deteriorate if she were placed under the stress of a job.
Based on this evidence, the ALJ determined that Jones had two severe impairments that impacted her ability to perform basic work activities: (1) a medial meniscus tear of the right knee, and (2) borderline intellectual functioning. The ALJ concluded, however, that these impairments did not preclude work activity. The ALJ discredited Jones's allegations of pain and swelling in her knee, numbness of the joints, high blood pressure, sinus problems, heart fluttering, and side effects of medication. Although the ALJ determined that Jones could not perform her past relevant work, he found that she had the residual functional capacity to perform work related activities at the sedentary level of exertion. The ALJ noted that Jones could not perform the full range of sedentary work, but she could perform such jobs as hand packager, with 2,000 jobs existing regionally and 100,000 nationally; agricultural sorter, with 400 jobs existing regionally and 20,000 nationally; small parts assembler, with 2,500 jobs existing regionally and 120,000 nationally; and product inspector, with 2,000 jobs existing regionally and 100,000 nationally.
Following the ALJ's decision, Jones submitted additional medical records to the Appeals Council. The Appeals Council concluded, however, that the information was insufficient to reverse the ALJ's decision. The magistrate judge, upon judicial review, issued a report recommending affirmance of the ALJ's decision. Jones objected, but the district court adopted the magistrate's report and affirmed the denial of benefits.
Jones presents two arguments on appeal: whether the ALJ properly assessed the effect of her limitations on her ability to perform sedentary work and whether the Commissioner proved that there were a substantial number of jobs in the economy that the claimant could perform. We affirm the Commissioner's decision on a disability benefits application if it is supported by substantial evidence and the Commissioner applied the correct legal standards. See Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir. 1997).
Jones contends that by not questioning the VE about her limitations, the ALJ failed to properly assess the effect of her limitations on her ability to perform sedentary work. She further asserts that the ALJ did not consider the extent of any erosion of the occupational base, as determined by her residual functional capacity, and assess its significance in terms of the medical-vocational rules. The Commissioner responds that Jones's argument regarding the erosion of the occupational base is waived because she did not clearly present it to the district court.
A review of the record indicates that Jones did not raise this specific issue to the district court. There is no mention of this issue in her brief in support of her complaint nor in her appeal to the district court, so the district court did not have an opportunity to consider the issue and rule on it. See In re Pan American World Airways, Inc., 905 F.2d 1457, 1461-62 (11th Cir. 1990). Jones also cannot satisfy any exception to our well-settled rule; accordingly, we decline to consider this issue presented for the first time on appeal.
An individual who files an application for Social Security disability benefits must prove that she is disabled. See 20 C.F.R. 416.912 (1998). The Social Security regulations provide a five-step sequential evaluation process for determining if a claimant has proven that she is disabled. See 20 C.F.R. 416.920. At the first step, the claimant must prove that she has not engaged in substantial gainful activity. See id. At the second step, she must prove that she has a severe impairment or combination of impairments. See id. If, at the third step, she proves that her impairment or combination of impairments meets or equals a listed impairment, she is automatically found disabled regardless of age, education, or work experience. See id. If she cannot prevail at the third step, she must proceed to the fourth step where she must prove that she is unable to perform her past relevant work. See id. At the fifth step, the burden shifts to the Commissioner to determine if there is other work available in significant numbers in the national economy that the claimant is able to perform. See id. If the Commissioner can demonstrate that there are jobs the...
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