Wayne Smith v. Comm Social Security ( 2011 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 09-2983
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WAYNE A. SMITH,
Appellant
v.
COMMISSIONER OF SOCIAL SECURITY
____________
APPEAL FROM THE UNITED STATES DISTRICT
COURT FOR THE DISTRICT OF NEW JERSEY
(D.C. Civil No. 08-cv-02875)
District Judge: Honorable Dennis M. Cavanaugh
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Submitted Under Third Circuit LAR 34.1(a)
November 16, 2010
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Before: BARRY, CHAGARES and VANASKIE,
Circuit Judges
(Opinion Filed: November 22, 2010)
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Abraham S. Alter, Esq.
James Langton, Esq.
Langton & Alter
2096 St. Georges Avenue
Rahway, NJ 07065-0000
Counsel for Appellant
Susan J. Reiss, Esq.
Social Security Administration
Office of General counsel – Region II
Room 3904
26 Federal Plaza
New York, NY 10278-0000
Counsel for Appellee
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OPINION OF THE COURT
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BARRY, Circuit Judge
Wayne Smith appeals from an Order of the United
States District Court for the District of New Jersey affirming a
decision of the Commissioner of Social Security. That
decision denied Smith‘s claims for disability insurance
benefits and supplemental security income under the Social
Security Act. Smith contends that the hypothetical question
posed by the administrative law judge (―ALJ‖) to the
vocational expert did not sufficiently convey all of Smith‘s
limitations, and that as a result, the Commissioner‘s decision
was not supported by substantial evidence. We will affirm.
I. Jurisdiction and Standard of Review
The District Court had jurisdiction under 42 U.S.C. §
405(g). We have appellate jurisdiction pursuant to 28 U.S.C.
§ 1291. Our review is limited to determining whether there
was substantial evidence to support the Commissioner‘s
decision to deny benefits. 42 U.S.C. § 405(g). ―Substantial
evidence has been defined as more than a mere scintilla. It
means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.‖ Reefer v.
Barnhart, 326 F.3d 376, 379 (3d Cir. 2003) (internal
quotation marks omitted). The Commissioner‘s findings of
fact are binding if they are supported by substantial evidence.
Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir. 2000).
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II. Applicable Law
An individual is disabled for purposes of the Social
Security Act (―SSA‖) only if his ―physical or mental
impairment or impairments are of such severity that he is not
only unable to do his previous work but cannot, considering
his age, education, and work experience, engage in any other
kind of substantial gainful work which exists in the national
economy.‖ 42 U.S.C. § 423(d)(2)(A). In making this
determination, an ALJ must perform a five-step, sequential
analysis. 20 C.F.R. § 404.1520. The ALJ must review (1) the
claimant‘s current work activity; (2) the medical severity and
duration of the claimant‘s impairments; (3) whether the
claimant‘s impairments meet or equal the requirements of an
impairment listed in the regulations; (4) whether the claimant
has the residual functional capacity to return to past relevant
work; and (5) if the claimant cannot return to past relevant
work, whether he or she can ―make an adjustment to other
work‖ in the national economy. 20 C.F.R. §
404.1520(a)(4)(i)-(v). The claimant bears the burden of proof
at steps one through four, and the Commissioner bears the
burden of proof at step five. Poulos v. Comm’r of Soc. Sec.,
474 F.3d 88, 92 (3d Cir. 2007).
Under the Social Security regulations, ―a vocational
expert or specialist may offer expert opinion testimony in
response to a hypothetical question about whether a person
with the physical and mental limitations imposed by the
claimant‘s medical impairment(s) can meet the demands of
the claimant‘s previous work.‖ 20 C.F.R. § 404.1560(b)(2).
While ―the ALJ must accurately convey to the vocational
expert all of a claimant‘s credibly established limitations,‖
Rutherford v. Barnhart, 399 F.3d 546, 554 (3d Cir. 2005),
―[w]e do not require an ALJ to submit to the vocational expert
every impairment alleged by a claimant.‖ Id. Thus, the ALJ
is bound to convey only those impairments ―that are medically
established.‖ Id.III. Background
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A. Procedural Overview
Smith filed applications for disability insurance
benefits and supplemental security income on August 18,
2004, alleging that he was disabled as of October 19, 2003.
The application was denied initially, and on reconsideration.
Smith requested a hearing before an ALJ, and the hearing was
held before ALJ Donna A. Krappa. On November 20, 2007,
the ALJ issued a decision finding — at step four of the
sequential analysis — that Smith had sufficient residual
functional capacity to return to his past relevant work as a
warehouse worker or a loader or unloader of trucks. The
Appeals Council denied Smith‘s request for review of that
decision, and on May 15, 2009, the District Court affirmed.
Smith timely appealed.
B. The Hearing Before the ALJ
Smith argues that the hypothetical question posed to
the vocational expert, Rocco Meola, did not fully reflect the
medical conclusions of three medical experts: Dr. M. Graff,
Dr. Benito Tan, and Dr. Daniel Edelman. This argument
lacks merit.
1. Dr. Tan
Dr. Tan completed a Form SSA-4734-BK-SUP (a
―Mental Residual Functional Capacity Assessment‖) on
February 10, 2005. Section I of the Form, ―Summary
Conclusions,‖ requires that the person filling it out select one
of the following options for twenty psychological attributes:
―Not Significantly Limited,‖ ―Moderately Limited,‖
―Markedly Limited,‖ ―No Evidence of Limitation in this
Category,‖ or ―Not Ratable on Available Evidence.‖ Dr. Tan
found that Smith was ―Not Significantly Limited‖ for fourteen
attributes and ―Moderately Limited‖ for the following six:
ability to understand and remember detailed
instructions
ability to carry out detailed instructions
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ability to maintain attention and concentration
for extended periods
ability to complete a normal workday and
workweek without interruption from
psychologically based symptoms and to perform
at a consistent pace without an unreasonable
number and length of rest periods
ability to accept instructions and respond
appropriately to criticism from supervisors
ability to respond appropriately to changes in
the work setting.
(App. 217-18.) In Section III of the Form, ―Functional
Capacity Assessment,‖ Dr. Tan wrote that Smith ―is able to
follow instructions, maintain pace/persistence, concentration
and attention, relate appropriately and adapt, in work
settings.‖ (Id. 219.)
2. Dr. Graff
Dr. Graff completed a Mental Residual Functional
Capacity Assessment on December 21, 2005. Dr. Graff
selected ―Not Significantly Limited‖ for ten attributes and
―Moderately Limited‖ for the following ten:
ability to understand and remember detailed
instructions
ability to carry out detailed instructions
ability to maintain attention and concentration
for extended periods
ability to perform activities within a schedule,
maintain regular attendance and be punctual
within customary tolerances
ability to work in coordination with or
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proximity to others without being distracted by
them
ability to complete a normal workday and
workweek without interruption from
psychologically based symptoms and to perform
at a consistent pace without an unreasonable
number and length of rest periods
ability to ask simple questions or request
assistance
ability to accept instructions and respond
appropriately to criticism from supervisors
ability to get along with coworkers or peers
without distracting them or exhibiting
behavioral extremes
ability to set realistic goals or make plans
independently of others.
(Id. 278-79.) In Section III of the form, Dr. Graff directed the
reader to another form completed on that date, in which he
wrote the following assessment:
It appears that the claimant suffers from
depressive symptoms that are no more than mild
to moderate. His social interaction abilities are
severely impaired, but, overall, he does not meet
or equal a listing.
The claimant is capable of at least entry-level
work in a setting with minimal interpersonal
contact.
(Id. 282.)
3. Dr. Edelman
Dr. Daniel Edelman completed a psychological
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evaluation of Smith on July 18, 2005, and reached the
following conclusions:
Claimant can follow and understand simple
directions and instructions and perform simple
tasks independently. He may have difficulty, at
present, maintaining attention and concentration
for tasks of significant complexity. He cannot
presently maintain a regular schedule. He
would have difficulty, at present, learning new
tasks. He would have difficulty, at present,
performing select complex tasks. He cannot, at
present, make appropriate decisions, relate
adequately with others, or appropriately deal
with stress. Difficulties are caused by
depression.
(Id. 229.)
4. The Hypothetical Question
Near the end of the hearing, the ALJ took testimony
from Rocco Meola, a vocational expert. After confirming that
Meola had reviewed the case file, the ALJ posed the
following hypothetical question:
ALJ: I‘d like to assume a person the claimant‘s
age, education and work history. And
further assume that this individual is
limited to medium work, simple, routine,
repetitive, one or two-step tasks and jobs
where they would just have occasional
interaction with the public or coworkers.
Given this hypothetical individual, could
this person perform the past relevant
work of the claimant?
VE: He could do the job of loading and
unloading truck [sic] as he did it. And
general warehouse work is also — would
meet the classification.
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(Id. 65.)
Counsel for Smith asked Meola about the various
respects in which Dr. Graff and Dr. Tan had concluded that
Smith was ―moderately limited‖ in Section I of the Mental
Residual Functional Capacity Assessment. After the ALJ
directed counsel to provide Meola a definition of ―moderate,‖
Meola suggested that ―moderate‖ might mean ―that the person
is not preclud[ed] from doing the activity, but does not do it at
a level that would be consistent with what‘s acceptable in a
national workforce.‖ (Id. 67-68.) If Smith were so limited in
all the respects noted by Dr. Graff and Dr. Tan, Meola
testified, Smith would not be able to return to his past relevant
work.
III. Discussion
Smith‘s argument on appeal is that the hypothetical
question posed by the ALJ to Meola failed to take account of
all the limitations noted by Dr. Tan, Dr. Graff, and Dr.
Edelman, such that Meola‘s answer cannot constitute
―substantial evidence.‖
A. Dr. Tan and Dr. Graff
Smith‘s main argument is that the hypothetical
question did not sufficiently include Dr. Tan‘s and Dr. Graff‘s
conclusions that Smith was ―moderately limited‖ in the
various areas that they noted in Section I of the Mental
Residual Functional Capacity Assessment. As the Social
Security Administration‘s guidelines (the ―Program
Operations Manual System,‖ or ―POMS‖) explain, however,
―Section I is merely a worksheet to aid in deciding the
presence and degree of functional limitations and the
adequacy of documentation and does not constitute the RFC
assessment.‖ POMS DI 24510.060, available at
https://secure.ssa.gov/apps10/poms.nsf/lnx/0424510060
(emphasis added). Numerous district courts in this circuit
have recognized this point and held that Section I of the form
may be assigned little or no weight. See Molloy v. Astrue, No.
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08-4801, 2010 WL 421090, at *11 (D.N.J. Feb. 1, 2010)
(―According to the Social Security Administration‘s internal
operating guidelines . . . , this section of the examination form
does not constitute the RFC assessment but rather is merely a
worksheet to aid employees. Therefore, [the ALJ] was not
required to assign any weight to this part of the report because
it was not the final RFC finding.‖ (internal quotation marks
and citation omitted)); Liggett v. Astrue, No. 08-1913, 2009
WL 189934, at *8 (E.D. Pa. Jan. 27, 2009) (explaining that
―Dr. Chiampi‘s actual mental residual functional capacity
assessment [was located] in Part III of the Mental Residual
Functional Capacity Form‖ and that ―the undersigned does
not accept the ‗summary conclusions‘ in Part I as the
assessment of the claimant‘s mental residual functional
capacity here‖); Torres v. Comm’r of Soc. Sec., No. 07-1951,
2008 WL 5244384, at *12 (D.N.J. Dec. 15, 2008) (―[T]he
check blocks in Section I of the assessment do not constitute
the assessment itself, but function rather as a worksheet to aid
the physician in making an assessment. Therefore, the ALJ's
hypothetical accurately reflected [the doctors‘] opinion of
Plaintiff‘s condition.‖ (citation omitted)). The District Court
also understood this point. See Smith v. Astrue, No. 08 Civ.
2875, 2009 WL 1372536, at *5 (D.N.J. May 15, 2009) (―As
the Commissioner correctly notes, Section I is not the actual
Residual Functional Capacity (‗RFC‘) assessment, but rather
a worksheet to aid in determining the presence and degree of
functional limitations. Instead, the actual mental RFC
assessment is found in Section III of the Form.‖).
Parenthetically, it bears noting that the definition of
―moderate limitation‖ assumed by Meola is incorrect, as the
Social Security Administration has provided a specific
definition of the term in the context of the Mental Residual
Functional Capacity Assessment. See POMS DI
24510.063(B)(2), available at
https://secure.ssa.gov/apps10/poms.nsf/lnx/0424510063
(indicating that ―moderately limited‖ should be selected when
―the individual‘s capacity to perform the activity is
impaired‖). The definition does not require that the
individual‘s capacity be at a level that is unacceptable in a
national workforce; rather, the instructions specify that ―[t]he
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degree and extent of the capacity or limitation must be
described in narrative format in Section III.‖ Id.Because Smith cannot rely on the worksheet
component of the Mental Residual Functional Capacity
Assessment to contend that the hypothetical question was
deficient, his argument is without merit as it pertains to Dr.
Tan and Dr. Graff.
B. Dr. Edelman
Smith also contends that the hypothetical question
failed to include the conclusions of Dr. Edelman, a contention
that was not presented to the District Court. Although
Smith‘s brief on appeal is in many respects indistinguishable
from the brief that he filed in the District Court, the section
discussing Dr. Edelman is entirely new. Dr. Edelman‘s name
does not appear even once in the brief that Smith filed in the
District Court, nor does it appear even once in the opinion of
the District Court. Smith‘s failure to raise any argument as to
Dr. Edelman in that Court operates to waive that argument
here. See, e.g., Harris v. City of Phila., 35 F.3d 840, 845 (3d
Cir. 1994) (―This court has consistently held that it will not
consider issues that are raised for the first time on appeal.‖).1
IV. Conclusion
The judgment of the District Court will be affirmed.
1
In any event, we note that Dr. Edelman concluded that Smith
could ―follow and understand simple directions and
instructions and perform simple tasks independently.‖ (App.
229.) While Dr. Edelman found that Smith would have
difficulty with ―tasks of significant complexity,‖ ―learning
new tasks,‖ or ―deal[ing] with stress‖ (id.), the hypothetical
question presumed that Smith was only capable of ―simple,
routine, repetitive, one or two-step tasks‖ (App. 65), language
largely consistent with the limitations noted by Dr. Edelman.
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