Fisher v. Barnhart, Comm , 181 F. App'x 359 ( 2006 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 05-1473
DANIEL L. FISHER,
Plaintiff - Appellant,
versus
JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL
SECURITY,
Defendant - Appellee.
Appeal from the United States District Court for the Northern
District of West Virginia, at Elkins. Robert E. Maxwell, Senior
District Judge. (CA-03-94-2)
Argued: March 17, 2006 Decided: May 16, 2006
Before NIEMEYER, LUTTIG,1 and KING, Circuit Judges.
Affirmed by unpublished per curiam opinion.
ARGUED: Travis Michael Miller, BAILEY, STULTZ, OLDAKER & GREENE,
P.L.L.C., Weston, West Virginia, for Appellant. Brian Christopher
O’Donnell, SOCIAL SECURITY ADMINISTRATION, Philadelphia,
Pennsylvania, for Appellee. ON BRIEF: Donna L. Calvert, Regional
Chief Counsel, Region III, Connie Hoffman-Healey, Assistant
1
Judge Luttig heard oral argument in this case but resigned
from the court prior to the time the decision was filed. The
decision is filed by a quorum of the panel pursuant to 28 U.S.C. §
46(d).
Regional Counsel, Nora Koch, Supervisory Attorney, SOCIAL SECURITY
ADMINISTRATION, Office of the General Counsel, Philadelphia,
Pennsylvania; Thomas E. Johnston, United States Attorney, Helen
Campbell Altmeyer, Assistant United States Attorney, OFFICE OF THE
UNITED STATES ATTORNEY, Wheeling, West Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
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PER CURIAM:
Daniel Fisher of Erbacon, West Virginia, filed a Social
Security claim for Disability Insurance Benefits and Supplemental
Security Income payments, complaining of neck, back, shoulder, and
arm pain, coupled with a limited intellect. The administrative law
judge (“ALJ”) determined that, even though Fisher suffers from some
physical and mental limitations, he retains the functional capacity
to work in many jobs and therefore is not legally disabled. The
Appeals Council declined to review the ALJ’s decision. Fisher
commenced this action to review the ALJ’s determination, and the
district court granted the Commissioner’s motion for summary
judgment and denied Fisher’s. We affirm.
I
Fisher was born in 1956 and attended school through eighth
grade. He has made a living as a laborer in the timber industry,
most recently as a forklift operator. On June 15, 2001, Fisher
applied for Social Security disability benefits, alleging that he
had become disabled on March 27, 2001, and could not return to his
job.
Fisher’s primary complaint is of pain, and since 1997,
different doctors have given Fisher pain injections, muscle
relaxants, and steroids for low back, neck, shoulder, and left
elbow pain. Doctors reviewing MRIs of Fisher’s spine from 1998
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through 2002 concluded that Fisher had a degenerative disc disease
and bulging in his lower back (at vertebrae L4 through S1). They
also concluded that he had a degenerative disc disease in his lower
cervical vertebrae (at C5 through C6) and “abnormal material”
thereabouts, likely from a herniated disc or scarring. In March
2001, doctors performed an anterior cervical discectomy to relieve
Fisher’s neck and shoulder pain.
In the months following the operation, Fisher continued to
feel pain, and Dr. James Weinstein, a neurosurgeon, expressed the
opinion that, because Fisher’s disc degeneration had stabilized,
his pain probably came from strain, sprain, or vertebral fusion at
the site of his discectomy. Weinstein advised exercise and
walking.
Fisher reported left elbow pain in 2000, and doctors at
Webster County Memorial Hospital diagnosed tennis elbow. Doctors
at Braxton County Memorial Hospital confirmed this diagnosis in
2001, noting also the absence of evidence of any fracture or
dislocation.
In addition to complaining of pain, Fisher complains of
disabling mental and psychological limitations. After he filed his
claim for benefits, Fisher submitted to two mental and
psychological evaluations in February 2002. Morgan Morgan, M.A.,
concluded that Fisher suffers from an adjustment disorder with
depressed mood and has a history of alcohol abuse. Examiner Morgan
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also concluded that Fisher has borderline intellectual functioning,
based on a Verbal IQ of 72, Performance IQ of 79, Full IQ of 74,
and achievement testing showing that Fisher can read, spell, and do
math at a fifth or sixth grade level. The other examiner, Frank
Roman, Ed.D., concluded that Fisher functions with only moderate
limitations on his ability to understand, perform, and carry out
detailed instructions; his ability to maintain attention and
concentration for extended periods; and his ability to work within
a schedule, maintain regular attendance, and be punctual. In so
concluding, Examiner Roman found that Fisher is not significantly
limited in, inter alia, his ability to understand and perform short
and simple instructions, his ability to sustain an ordinary work
routine, his ability to complete a normal workday without
interruption, and his ability to respond appropriately to changes
in the work setting. Examiner Roman concluded that Fisher can
handle one- and two-step instructions in low stress settings, can
perform routine activities of daily living, and has moderate
difficulty with social functioning and in maintaining
concentration, persistence, and pace.
At his hearing before the ALJ, Fisher testified about his
pain, describing pain in his back, neck, shoulder, and left arm.
Because of the pain, he stated that he sometimes needs help to get
up in the morning and that sometimes during the day he must lie
down and apply heat. Testifying to his daily life habits, Fisher
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said he drives daily and occasionally takes long drives; he fishes
and hunts once a month; he gardens; he walks a quarter-mile each
day; he mows his lawn on a riding tractor; and he takes his 16-year
old son to football games. He stated that he has reduced his
alcohol consumption to two 40-ounce drinks a month.
The ALJ denied Fisher’s application for benefits in a written
decision that he issued on November 22, 2002.2 The ALJ found that
Fisher no longer performs substantial gainful activity because he
has not returned to his job since his discectomy and that Fisher
suffers the severe impairments of borderline intellectual
functioning, an adjustment disorder, degenerative disc disease,
high blood pressure, left tennis elbow, and low back pain syndrome.
The ALJ found, however, that these impairments are not severe
enough “to meet or medically equal” the impairments for which
Fisher would be deemed legally disabled. The ALJ also determined
Fisher’s residual functional capacity in order to decide whether
Fisher could continue to perform his prior forklift work and, if
not, whether there are any other jobs existing in significant
numbers that Fisher could perform.
2
Fisher’s application was first denied by a state agency on
August 14, 2001, from which Fisher asked the agency to reconsider
its decision. The state agency denied his application again on
March 12, 2002. Fisher then asked for a hearing before an ALJ,
which took place on July 24, 2002, and the November 2002 denial at
issue in this case sprang from that hearing.
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Considering all of the documented medical evidence and
Fisher’s own testimony about his symptoms and life habits, the ALJ
found that Fisher’s adjustment disorder and borderline intellectual
functioning mildly restrict Fisher’s activities of daily living and
cause him a mild difficulty with social functioning and a moderate
difficulty in maintaining concentration, persistence, and pace.
The ALJ also found that Fisher has physical limitations due to his
back and arm pain, determining that Fisher can lift only 10 to 20
pounds, sit for 2 hours a day, and stand or walk for 6 hours. He
found that Fisher “cannot perform complex tasks,” cannot endure
temperature extremes, and cannot lift his left arm above his head.
The ALJ concluded that Fisher’s residual functional capacity
forecloses Fisher’s return to his forklift operator position but
that “there are a significant number of jobs in the national
economy that [Fisher] could perform.” Accordingly, the ALJ denied
Fisher’s application for disability benefits.
After the Social Security Appeals Council denied Fisher’s
request for review in September 2003, Fisher commenced this action
in October 2003 under 42 U.S.C. §§ 405(g) and 1383(c)(3) to review
the ALJ’s denial of disability benefits. On cross-motions for
summary judgment, the magistrate judge recommended granting the
Commissioner’s motion and denying Fisher’s, and the district court
adopted the magistrate judge’s report and recommendation on March
29, 2005. This appeal followed.
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II
In Social Security benefits cases, the ALJ is charged with
performing a five-step inquiry to determine if an applicant is
eligible for Social Security benefits. See 20 C.F.R. § 404.1520(2005). Sequentially, the ALJ must determine (1) whether the
claimant is engaged in substantial gainful activity; (2) whether
the claimant’s medical impairments are severe; (3) whether the
claimant’s impairments meet or exceed the severity of certain
impairments; (4) whether the claimant, based on his residual
functional capacity, can perform his past relevant work; and (5)
whether the claimant, based on his residual functional capacity,
can perform other work. The ALJ’s factual findings must be upheld
“if they are supported by substantial evidence and were reached
through application of the correct legal standard.” Craig v.
Chater, 76 F.3d 585, 589 (4th Cir. 1996). Accordingly, “we do not
undertake to re-weigh conflicting evidence, make credibility
determinations, or substitute our judgment for that of the [ALJ].”
Id.Fisher mounts three challenges to the ALJ’s rejection of his
application for benefits. First, he contends the ALJ failed Social
Security Ruling 96-7p and erroneously found Fisher’s testimony on
his symptoms to be not credible. Second, Fisher argues that
neither the residual functional capacity nor a hypothetical
question posed to a testifying vocational expert accurately
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reflected his mental and psychological limitations. Third, Fisher
argues the ALJ failed Social Security Ruling 00-4p by not
reconciling the vocational expert’s testimony with the Dictionary
of Occupational Titles. We address each of these challenges in
turn.
A
Two nearly identical regulations, 20 C.F.R. §§ 404.1529 and
416.929, explain how the Social Security Administration evaluates
a claimant’s symptoms to determine whether he or she is disabled,
and Social Security Ruling 96-7p clarifies these regulations by
explaining when and how an ALJ can weigh the credibility of the
claimant’s own testimony. First, the ALJ must determine whether
medically determinable mental or physical impairments can produce
the symptoms alleged. Second, the ALJ must evaluate the claimant’s
testimony about his subjective experiences. If the ALJ discredits
the claimant’s testimony, he must give “specific reasons” that are
“grounded in the evidence.” See Soc. Sec. R. 96-7p; see also
Craig, 76 F.3d at 591-96 (anticipating the standard set forth in
Ruling 96-7p as applied to allegations of pain).
The ALJ committed no error here. The ALJ found, first, that
Fisher had degenerative disc disease, that he sustained a cervical
discectomy, and that he had low back pain syndrome and tennis
elbow, all of which are physical impairments “that could reasonably
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be expected to produce” the neck, shoulder, back, and elbow pain of
which Fisher complained. Similarly, the ALJ found that Fisher has
borderline intellectual functioning, a mental impairment that could
substantiate Fisher’s alleged difficulty with reading and writing.
After determining the physical and mental impairments, the ALJ
weighed Fisher’s testimony about their extent. Despite Fisher’s
allegations of disabling severe pain, the ALJ found that Fisher is
not totally disabled because he still is able to perform activities
of daily living, such as hunting, fishing, and walking. Moreover,
Fisher visits doctors less frequently, and his treating physicians
have determined that he suffers “only moderate, or mild to
moderate, pain.” Evaluating Fisher’s alleged mental limitations,
the ALJ concluded from Fisher’s own testimony that he “pays the
bills” and “read[s] and write[s] a little,” showing that he is not
incapable of reading and writing.
Thus, the ALJ found that Fisher’s testimony “was not fully
credible or consistent with the record as a whole as to the nature
and extent of [Fisher’s] impairments and to the extent that total
disability is alleged.” In making his findings, however, the ALJ
did not entirely reject Fisher’s subjective evaluation of his
symptoms. While the ALJ found that pain did not totally disable
Fisher, the ALJ did take Fisher’s pain allegations into account to
the extent that they were credible, finding that Fisher’s back and
arm pain restrict his physical movements.
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In short, the ALJ fully comported with the sequential two-step
credibility evaluation prescribed by Social Security Ruling 96-7p
by making findings, supported by reasons, with respect to Fisher’s
alleged symptoms, the medical record, and Fisher’s own testimony.
B
Fisher next challenges two related determinations, arguing
that the ALJ’s residual-functional-capacity determination failed to
reflect Fisher’s actual mental limitations and that a hypothetical
question that the ALJ posed to a testifying vocational expert
failed to communicate Fisher’s actual mental limitations.
Fisher’s first challenge amounts to a sufficiency-of-the-
evidence challenge. The ALJ concluded that Fisher’s borderline
intellectual functioning manifested itself by giving Fisher
moderate difficulty maintaining concentration, persistence, and
pace, which prevents him from performing complex tasks. Fisher
argues that this residual functional capacity fails to account for
his low IQ test scores, poor concentration, deficient recent
memory, and difficulties handling instructions. We disagree. The
ALJ’s decision is supported by sufficient evidence. Examiner
Morgan determined that Fisher suffered from borderline intellectual
functioning, and Examiner Roman determined that Fisher had moderate
difficulty with instructions, concentration, and working on a
schedule. The ALJ directly incorporated Morgan and Roman’s
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determinations and found that these impairments affected Fisher’s
ability to work only by preventing him from performing complex
tasks. This determination is entirely consistent with the bulk of
Examiner Roman’s determination that Fisher has no significant
limitations on his ability to understand and perform “simple”
instructions, to sustain an ordinary work routine, and to complete
a normal workday without interruption.
For this same reason, Fisher’s challenge to the ALJ’s
hypothetical question must also fail. The opinion of a vocational
expert is not helpful if it is not delivered “in response to proper
hypothetical questions which fairly set out all of [a] claimant’s
impairments.” Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989)
(emphasis added). As we recently held in Johnson v. Barnhart, 434
F.3d 650 (4th Cir. 2005), a hypothetical question is unimpeachable
if it “adequately reflect[s]” a residual functional capacity for
which the ALJ had sufficient evidence. See id. at 659 (emphasis
added). Here, the ALJ told the expert to assume that Fisher is
capable of only “unskilled work”3 and that he “cannot perform
complex tasks,” which repeats the residual functional capacity that
we have found is supported by substantial evidence. See also
Howard v. Massanari, 255 F.3d 577, 582 (8th Cir. 2001) (“We find
3
“Unskilled work” is a term of art, defined by regulation as
“work which needs little or no judgment to do simple duties that
can be learned on the job in a short period of time.” 20 C.F.R. §
404.1568(a).
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that [a hypothetical question] describing [the claimant] as capable
of doing simple work adequately accounts for the finding of
borderline intellectual functioning”). Even if “complex tasks” is
superficially ambiguous as between “physically complex tasks” and
“mentally complex tasks,” the vocational expert evidently
understood it to mean the latter because neither of the jobs the
expert identified in response to the hypothetical question requires
a worker to perform mentally complex tasks. Thus, the ALJ’s
hypothetical question fairly conveyed Fisher’s functional capacity
to the expert.
Fisher contends that hypothetical questions must be medically
specific. As Johnson and Walker dictate, however, the ALJ has some
discretion to craft hypothetical questions to communicate to the
vocational expert what the claimant can and cannot do. Moreover,
it is the claimant’s functional capacity, not his clinical
impairments, that the ALJ must relate to the vocational expert. A
claimant very well might have some impairments under control such
that they do not manifest themselves in any way that would limit
the claimant’s capacity for work. Fisher tacitly recognizes this
principle. For example, even though Fisher was diagnosed as an
alcohol abuser, he does not now claim that the vocational expert
should have been told of this diagnosis because he claims to have
his alcohol abuse under control.
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Perhaps more importantly, in arguing that an ALJ must include
a list of the claimant’s medical impairments in his hypothetical
question to the vocational expert, Fisher fundamentally
misunderstands the scope of the vocational experts’ expertise.
Vocational experts are not experts in psychology who are qualified
to render opinions on how the claimant’s ailments might be
reflected in his capabilities; rather, they are employment experts
who know the mental and physical demands of different types of
work, see 20 C.F.R. § 404.1560 (“We may use the services of
vocational experts or vocational specialists . . . to obtain
evidence we need to help us determine whether you can do your past
relevant work, given your residual functional capacity” (emphasis
added)), or how many specific jobs exist in the local and national
economies, see id. § 404.1566.
Because the ALJ’s residual-functional-capacity determination
is supported by substantial evidence and because the challenged
hypothetical question merely incorporated that determination, the
ALJ committed no error.
C
Finally, Fisher contends that the ALJ erred in relying on the
vocational expert’s testimony without first obtaining a reasonable
explanation for conflicts between his testimony and the Dictionary
of Occupational Titles published by the Department of Labor.
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Social Security Ruling 00-4p clarifies 20 C.F.R. § 404.1566,
which states, without more, that ALJs will consider both the
Dictionary of Occupational Titles and vocational expert testimony
to determine whether a Social Security claimant can find work
suited to his residual functional capacity. Noting that the
sources should typically be consistent, Ruling 00-4p nonetheless
provides that “When there is an apparent unresolved conflict
between [vocational expert] evidence and the [Dictionary of
Occupational Titles], the adjudicator must elicit a reasonable
explanation for the conflict before relying on the [vocational
expert] evidence to support a determination or decision about
whether the claimant is disabled.” Specifically, the ALJ “will
inquire, on the record, as to whether or not there is such
consistency.”
Ruling 00-4p acknowledges, however, that neither the
Dictionary of Occupational Titles nor the vocational expert’s
testimony “automatically ‘trumps’ when there is a conflict”;
instead, the ALJ is obligated to resolve the conflict by deciding
if the vocational expert’s explanation for the conflict is
reasonable. The vocational expert’s conflicting testimony can be
used, for instance, if the ALJ finds that it is based on “other
reliable publications” or the expert’s own “experience in job
placement or career counseling.” However resolved, the ALJ “must
resolve this conflict before relying on the [vocational expert]
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evidence to support a determination or decision that the individual
is or is not disabled” and must “explain in the determination or
decision how he or she resolved the conflict.”
Fisher maintains that the ALJ’s determination that he is able
to perform other work is based on an unresolved conflict and
therefore must be reversed. The vocational expert offered two jobs
in response to a hypothetical question from the ALJ:
The first position I would advance given the hypothetical
would be that of a nursery worker. That’s found in
[Dictionary of Occupational Titles] 405.681-010. It’s at
the light exertional level. Has an SVP [Specific
Vocational Preparation] of one, which places it at the
very low simple, routine, one, two step work.
Nationally, there’s 29,401 of those positions and
regionally, there is 1,850. That’s Ohio, Kentucky, and
West Virginia. The second position I would advance at
that level – well, let me see about it, Your Honor. Would
be that of a laundry worker. That’s found in 304.685-010
in the DOT. It’s light exertional level. Has an SVP of
two, which is unskilled. Very routine, one, two step
work. Nationally, there’s 210,761 of those positions and
regionally, which is Ohio, Kentucky, West Virginia,
there’s 19,156. This would accommodate a sit/stand
option because it’s involved basically in a lot of
folding clothes and it would provide for a sit/stand
option.
The ALJ followed up and asked the vocational expert why he believed
these two positions would accommodate a sit/stand option. The
expert replied that he formed this conclusion based on his
experience. Accordingly, in the ALJ’s final determination, the ALJ
concluded:
Although the claimant’s exertional limitations do not
allow him to perform the full range of light work . . .
there are a significant number of jobs in the national
economy that he could perform. Examples of such jobs
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include work as a nursery worker (SVP 1, DOT 405.681-010)
(29,401 jobs in the nation and 1850 jobs in the tri-state
region of West Virginia, Ohio, and Kentucky) and laundry
worker (SVP 2, DOT 304.685-010) (210,761 jobs in the
nation and 19,156 jobs in the tri-state region of West
Virginia, Ohio, and Kentucky).
On appeal, Fisher points out that the Dictionary of
Occupational Titles does not have either code in it; that there are
multiple “laundry worker” entries in the Dictionary; and that there
are no entries for “nursery worker.” Assuming this is the sort of
conflict regulated by Social Security Ruling 00-4p, Fisher argues
the ALJ failed to explain how he resolved the conflict in his
decision, which simply states that “[t]he information provided by
the impartial vocational expert is consistent with the Dictionary
of Occupational Titles.”
We should note first note that, in all other respects, the ALJ
abided by Ruling 00-4p -- he inquired on the record whether the
vocational expert’s testimony was consistent with the Dictionary of
Occupational Titles; he elicited a reasonable explanation for the
vocational expert’s knowledge of the various jobs’ sit/stand
option, which is not provided in the Dictionary; and he stated in
his ruling that the expert’s testimony was consistent with the
Dictionary. The narrow question presented to us is whether the
vocational expert’s testimony conflicts with the Dictionary of
Occupational Titles.
As a primary matter, it is not clear that Social Security
Ruling 00-4p even applies to citation errors of the sort involved
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in this case. Fisher has assumed that it does, and the
Commissioner has engaged Fisher on his own arguments. Textually,
however, there are strong signals that the Ruling is irrelevant to
the expert’s mistake. The Ruling states that it governs “conflicts
in occupational information,” not erroneous job titles and codes.
Moreover, the Ruling provides a clear remedy -- i.e.,
reconciliation by reasonable explanation -- that is meaningless
when the testifying expert misremembers the proper Dictionary job
title and code. An ALJ’s decision or a vocational expert’s
testimony could hardly provide a reasonable explanation for citing
to an erroneous Dictionary entry. Reasoning that an ambiguous
ruling only applies where its remedy is not meaningless, we would
be inclined to conclude that Social Security Ruling 00-4p is not
even implicated by the vocational expert’s mistake in Fisher’s
case. But we need not conclusively interpret Ruling 00-4p today
because, even if we assume that the Ruling does apply, the
vocational expert’s testimony is not in conflict with the
Dictionary under the interpretation proposed by Fisher.
Fisher rests his appeal on Burns v. Barnhart, 312 F.3d 113 (3d
Cir. 2002), in which the Third Circuit addressed a similar, yet
ultimately distinguishable, situation. In Burns, the vocational
expert testified that the claimant could work as a “laundry sorter”
or “packer.” The expert did not attempt to associate a Dictionary
code with either generic job title. As in this case, neither job
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title has an actual entry in the Dictionary of Occupational Titles.
After deciding that the case had to be remanded because of a faulty
hypothetical question, the court, in dictum, advised the ALJ to
seek additional testimony from a vocational expert because the
court, unable to determine which Dictionary entries were implicated
by the testimony, was “not convinced . . . that [the vocational
expert’s] testimony necessarily conflicted with the DOT.” Id. at
128 (emphasis added). Importantly, the Third Circuit recognized
that an erroneous citation to the Dictionary of Occupational Titles
is not per se reversible error.
We are convinced that the vocational expert’s testimony in
this case does not necessarily conflict with the Dictionary of
Occupational Titles. As noted by the Commissioner and the district
court below, a change of a single digit in each job code in the
vocational expert’s testimony leads one to the entries for
“domestic laundry worker” (DOT 302.685-101), requiring light
strength and SVP 2, and for “flower picker” (DOT 405.687-010),
requiring light strength and SVP 1. The substantive
characteristics of these jobs, as related in the Dictionary, are
identical to the substantive characteristics of the jobs identified
in the expert’s testimony. The job titles are substantively
similar; they are practically synonyms. The job codes are simply
off by a single digit.
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We conclude that the only reasonable interpretation of the
entirety of the vocational expert’s testimony is that he
misremembered and, consequently, misspoke the job titles and codes
in question. The Dictionary entries he meant to mention are not in
conflict with his descriptions of them. Thus, although we are
troubled that the ALJ thoughtlessly entered the expert’s errors
into the final determination of Fisher's application, we find no
reversible error under Fisher's own interpretation of Social
Security Ruling 00-4p, saving for another day the resolution of
whether Ruling 00-4p applies to this kind of testimonial mistake at
all.
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For the reasons given, the judgment of the district court is
AFFIRMED.
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