Margaret Williams v. Donna E. Shalala, Secretary, United States Department of Health and Human Services , 997 F.2d 1494 ( 1993 )

Opinion for the court filed by Circuit Judge KAREN LeCRAFT HENDERSON.

Dissenting opinion filed by Circuit Judge WALD.

KAREN LeCRAFT HENDERSON, Circuit Judge:

Margaret Williams appeals from a district court order granting judgment in favor of the Secretary of Health and Human Services (Secretary) who denied Williams’s application for disability benefits under the Supplemental Security Income program of the Social Security Act. 42 U.S.C. §§ 1381 et seq. On appeal, Williams maintains that the administrative law judge (ALJ) who heard her case at the agency level failed to give adequate weight to the opinion of her treating physician and ignored some of her symptoms in determining that she could perform certain jobs. Because substantial evidence in the record supports the ALJ’s findings, we uphold the Secretary’s decision.

I.

Margaret Williams is 54 years old. Although she worked for about a week as a cleaning lady in the early 1980’s, she has not held a steady job since. She has an eighth grade education, borderline intelligence and long term memory problems. For the past several years, Williams has complained of physical pain in her back, head and extremities. She claims that she cannot grip objects properly and that she often suffers numbness in her arms and legs. She has also complained of circulatory problems, shortness of breath, dizzy spells and blackouts. Doctors, however, have found no physical causes for her ailments.

In February 1987, Dr. Dobbs, Williams’s treating psychiatrist since at least 1984, diagnosed Williams as having a generalized anxiety disorder and a borderline personality disorder. According to Dobbs, Williams suffered from “multiple psychosomatic symptoms.” Joint Appendix (J.A) at 56. He concluded that Williams was “permanently and totally disabled.” J.A at 57. Williams then filed an application for disability benefits with the Social Security Administration (SSA).¹ In May 1987, Dobbs filled out a Medical Survey Questionnaire in connection with Williams’s application for disability benefits. He described Williams as “tense and sometimes depressed” and again noted that she suffered from “multiple psychosomatic complaints.” J.A at 58. However, he also stated that Williams’s judgment, memory and insight were intact and he described her appearance and behavior as “normal.” J.A at 58. Medical records attached to the questionnaire indicated that Dobbs had not done any methodical or rigorous psychological testing but that he had prescribed a mild anti-depressant drug for Williams. J.A at 60-66.

After receiving Dobbs’s diagnosis, the Secretary sent Williams to several other doctors for independent evaluations. Another psychiatrist, Dr. Wilson, examined Williams and noted that she continued to complain of numerous physical ailments. Athough he did not review her medical records, he concluded that Williams suffered from depression and suggested a “complete neurological and medical work-up.” J.A at 70. Dr. Schiff, a psychologist, also examined Williams. Schiff interviewed Williams and administered several psychological tests including the Wech-sler Adult Intelligence Scale and the Wech-sler Memory Scale. He determined that Williams suffered from somatoform disorder,² “low average intelligence” and erratic concentration. Id. However, Schiff also characterized Williams’s confusion and memory problems as only “minimal.” Id. Thus, unlike Dobbs, he concluded that she was “psychologically capable of gainful employment.”³ Id.

After the SSA specialists completed their evaluations of Williams, Dr. Dobbs, in March 1988, submitted another letter and additional medical records to the SSA In the letter, Dobbs stated that Williams was unable to work and that she suffered from “moderate difficulties in social functioning,” “severe deficiencies of concentration” and “psychosomatic complaints.” J.A at 114 (emphasis added). Finally, in January 1989, Dobbs completed a Psychiatric Review Technique (PRT) Form for Williams. On the form, he indicated that Williams suffered from a so-matoform disorder that produced “marked” rather than moderate difficulties in social functioning and “frequent” deficiencies of concentration. J.A at 130, 132. Moreover, because Williams never worked, he concluded that she suffered “continual episodes of deterioration ... in work ... settings.” J.A at 132.

An unemployed individual is entitled to disability benefits if “he is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which ... can be expected to last for a continuous period of not less than twelve months.” 42 U.S.C. § 1382c(a)(3)(A). The Secretary has established a list of impairments that automatically meet the statutory criteria and thus make an individual eligible for benefits. See 20 C.F.R. § 416.920(d); 20 C.F.R. pt. 404, subpt. P, app. 1, §§ 12.00-13.00. Somato-form disorder is on the “automatic” list only if the disorder produces symptoms which meet the “listing requirements.” 20 C.F.R. § 416.920(d). Thus, to be automatically entitled to benefits, an individual with somato-form disorder must demonstrate at least three of the following conditions:⁴

(1) Marked restriction of daily living activities; or

(2) Marked difficulties in maintaining social functioning; or

(3) Deficiencies of concentration, persistence, or pace resulting in frequent failure to complete tasks in a timely manner ... or

(4) Repeated episodes of deterioration or decompensation in work or work-like settings which cause the individual to withdraw from that setting or to experience exacerbation of signs and symptoms.

20 C.F.R. pt. 404, subpt. P, app. 1, § 12.07 [hereinafter § 12.07]. If the somatoform disorder (or any other impairment) does not satisfy the listing requirements, an applicant may still qualify for benefits if the SSA determines that the impairment prevents the applicant from engaging in any type of work. 20 C.F.R. § 916.20(e), (f). If the applicant cannot perform jobs that he has previously held, the burden shifts to the agency to-establish that other jobs exist which the applicant could perform. Diabo v. Secretary of Health, Educ. & Welfare, 627 F.2d 278, 283 (D.C.Cir.1980).

Relying heavily on Dr. Wilson’s and Dr. Schiffs reports, the ALJ initially concluded that Williams suffered from severe somato-form disorder but that her symptoms did not meet the listing requirements. J.A. at 45. The ALJ also concluded that Williams was able to work although he did not specify which jobs she was capable of performing. Id. He therefore rejected Williams’s disability claim. Williams appealed to HHS’s Appeals Council which upheld the ALJ’s finding that Williams’s disorder did not meet the listing requirements but remanded the case to the ALJ to determine what jobs Williams was capable of filling. J.A. at 36.

A vocational expert (VE) testified at a second hearing before the ALJ. The ALJ asked the VE hypothetical questions designed to reflect Williams’s impairments, functional limitations, age, education and lack of work experience. On the basis of the questions, the VE opined that Williams could work as a maid, cafeteria worker, file clerk, telephone operator, receptionist and office clerk. As a' result, the ALJ denied Williams’s application for disability benefits. The Appeals Council affirmed the ALJ’s decision. Williams then sought district court review. The district court affirmed the ALJ as well and Williams now appeals to us, raising several claims. First, she contends that the Secretary failed to give adequate weight to the opinion of Dr. Dobbs, her treating physician, in concluding that she did not meet the listing requirements. Second, Williams maintains that the hypothetical questions posed to the VE did not accurately reflect her condition. Third, she argues that the VE’s conclusions were inconsistent with standard occupational guidelines published by the Department of Labor and the Bureau of Labor Statistics. We conclude that the Secretary considered Dobbs’s opinion and relied on substantial evidence which contradicted it. We also conclude that the hypotheticals posed to the VE were, in context, substantially accurate. Finally, we find that Williams failed to make her argument regarding the standard occupational guidelines in district court and therefore waived it. Accordingly, we affirm the Secretary.

II.

A The Treating Physician Rule

Williams maintains that the SSA improperly ignored Dobbs’s diagnosis which indicated that she met the listing requirements. Because Dobbs was Williams’s treating psychiatrist for many years, Williams contends that his diagnosis should have been accorded presumptive weight. Like other circuits, we have adopted a “treating physician” rule. Poulin v. Bowen, 817 F.2d 865, 873 (D.C.Cir.1987). “Because a claimant’s treating physicians have great familiarity with his condition, their reports must be accorded substantial weight.” Id. The treating physician’s opinion regarding an impairment is usually “binding on the fact-finder unless contradicted by substantial evidence.” Murdaugh v. Secretary, Dep’t of Health & Human Servs., 837 F.2d 99, 101 (2d Cir.1988). Thus, we have previously indicated that an ALJ who rejects the opinion of a treating physician must explain his reasons for doing so. Simms v. Sullivan, 877 F.2d 1047, 1052-53 (D.C.Cir.1989).

Here, both the ALJ and the Appeals Council relied on substantial evidence which contradicted Dobbs’s conclusion that Williams met the following listing requirements: (1) marked difficulties in social functioning, (2) frequent deficiencies of concentration and (3) episodes of continual deterioration in work settings. As the ALJ and Appeals Council both noted, in completing his 1987 questionnaire, Dobbs indicated that Williams’s “judgment, memory and insight were intact, she was oriented and able to think, reason and communicate.” J.A at 44; see also J.A at 18. He concluded that her intelligence was “low normal” and that she was capable of managing funds. J.A at 58. Dobbs also stated that Williams’s condition was chronic rather than episodic, thus implying that the severity of her symptoms remained relatively constant. Id. Moreover, as the Appeals Council noted in upholding the ALJ, Dobbs’s letter (filed after the first questionnaire) stated that Williams suffered only moderate difficulties in social functioning. Thus, Dobbs’s two initial assessments of Williams’s faculties differred from his 1989 diagnosis, included in the PRT Form, that Williams experienced frequent deficiencies of concentration and marked difficulties in maintaining social functioning. Dobbs’s 1989 report did not explain how Williams’s condition might have deteriorated between 1987 and 1989.

Both the ALJ and the Appeals Council also relied heavily on Dr. Schiff s conclusion that Williams was able to work. Athough Schiff noted that Williams’s concentration was “erratic,” he concluded that her impairment was mild to minimal. Moreover, as the ALJ noted, Schiff reached his conclusions after subjecting Williams to both an IQ test and a Wechsler Memory Test. The record contains no indication that Dobbs performed similar tests.

Thus, substantial evidence in the record supports the conclusion that Williams did not suffer frequent deficiencies of concentration and marked difficulties in social functionings and, therefore, did not meet the listing requirements. Dobbs’s own earlier evaluations of Williams suggested her impairments were only moderate. That conclusion is further supported by the evaluation performed by Dr. Schiff — the only evaluation of Williams, it appears, which included standard psychological testing. In view of the contradictory evidence in the record, we think that the ALJ did not err in failing to defer to Dobbs’s diagnosis under the treating physician rule. That the ALJ did not expressly state his reason for not applying the treating physician rule is of no moment because he noted the contradictory evidence in the record, which record supplies the reason.

B. The VE’s Hypotheticals

Because Williams had never held a steady job, the Secretary bore the burden of establishing that the national economy contained jobs Williams might perform. Diabo, 627 F.2d at 283. In making his determination based on the Secretary’s showing, the ALJ must consider the claimant’s “residual functional capacity,” “age, education, and past work experience.” 20 C.F.R. § 416.920. At the second hearing, the ALJ posed hypothetical questions to the VE to determine what jobs Williams could fill. Specifically, the ALJ asked the VE to take into account “the absence of any significant work background” and to assume that Williams was “exertionally capable of performing light work, that she functions in the borderline range of intelligence, that she has mild to moderate difficulty in concentration, and because of alleged dizzy spells ... should avoid heights and moving machinery.” J.A at 136-37. After considering these factors, the VE testified that Williams could work as a maid, cafeteria worker or file clerk. Id. at 137. The ALJ then asked the VE to assume that Williams could perform only sedentary work. Id. Adding that factor to his consideration, the VE nevertheless concluded that Williams could work as a receptionist, telephone operator or office clerk. Id. at 138.

In determining a claimant’s ability to work, the ALJ “must accurately describe the claimant’s ... impairments in any question posed to the expert.” Simms, 877 F.2d at 1050. In Simms, we concluded that “serious deficiencies” in the ALJ’s hypothetieals “undermine[d] the foundation for the expert’s ultimate conclusion that there are alternative jobs appellant can do.” Id. at 1053. We therefore remanded the case to the agency. Id. Williams maintains that the hypothetical posed to the VE did not accurately reflect her condition because it failed to include information regarding her limited education, poor writing and mathematical skills, age, blackout problems and her inability to hold onto objects.

We conclude that the ALJ’s hypothetical adequately reflected Williams’s condition. Athough the ALJ’s question did not include Williams’s limited education, Williams’s lawyer during cross examination asked the VE if the jobs he specified required a high school education. The VE stated that he “took into account that she has an 8th grade education.” J.A at 139. Williams’s lawyer also posed a hypothetical in which he listed her “deficiencies in spelling and arithmetic ability” as a factor. J.A at 141. The VE concluded that other factors in the hypothetical might affect Williams’s ability to work but did not address the two academic deficiencies. Id. at 142-43. What is critical is that the record shows that Williams’s lawyer had made the VE aware of Williams’s verbal and mathematical limitations before the VE gave his opinion.⁵

It also appears that the VE was aware of Williams’s age inasmuch as he testified that he had reviewed the administrative record which included Williams’s medical records. J.A. at 133. The record contains repeated references to Williams’s age. Moreover, immediately before testifying to the jobs Williams could fill, the VE noted that Williams had received cosmetology training in the 1960’s, thus indicating that he was aware of her approximate age.

Finally, we do not think that the ALJ’s failure to describe specifically Williams’s blackouts and her inability to hold objects rendered the hypothetical deficient. The record contains no evidence of a physical condition that would cause Williams to experience frequent blackouts or to lose the ability to grasp things. The orthopedist who examined Williams found her fine and gross hand motions and the sensation in her arms to be normal. J.A. at 73. Moreover, as the ALJ noted, treatment records from George Washington University Medical Center indicated that a CT scan of Williams’s head was normal and an EEG test revealed only “mild” abnormalities that did not produce “seizure discharges.” J.A. at 41. Similarly, the internist who examined Williams found “no focal neurological signs.” J.A. at 98. In fact, Williams’s testimony and her complaints to doctors provide the only evidence of her blackouts and her inability to grasp objects. The ALJ expressly concluded that Williams’s “subjective complaints are not considered credible.” J.A. at 45. He nonetheless included in his hypothetical a description of “dizzy spells,” a characteristic which incorporates some of the limitations a problem with blackouts would impose. J.A. at 137. Accordingly, we conclude that he did not err by failing to include in the hypothetical precise physical conditions whose existence rested solely on Williams’s subjective complaints.

C. Waiver of the Occupational Guidelines Objection

In determining whether there exist in the national economy jobs that a claimant can perform, the ALJ must take “administrative notice” of information contained in the DICTIONARY op OCCUPATIONAL Titles, published by the Department of Labor, and the OCCUPATIONAL Outlook Handbook, published by the Bureau of Labor Statistics. 20 C.F.R. § 416.967(d). When the VE’s description of jobs a claimant could perform conflicts with the job requirements contained in the publications, courts have found that the VE’s testimony does not constitute substantial evidence by itself to support a finding that jobs are available. See Campbell v. Bowen, 822 F.2d 1518, 1523 n. 3, 1524 (10th Cir.1987); Tom v. Heckler, 779 F.2d 1250, 1255-56 (7th Cir.1985); Mimms v. Heckler, 750 F.2d 180, 186 (2d Cir.1984). Williams argues that she does not meet the job requirements listed in the government publications for the jobs the VE identified. The Secretary, however, asserts that Williams has waived her argument because she failed to raise it earlier. We agree with the Secretary.

In general, an appellate court cannot consider issues not raised before the district court. See Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 2877, 49 L.Ed.2d 826 (1976). Disability cases present no exception. See, e.g., Clarke v. Bowen, 843 F.2d 271, 273 (8th Cir.1988) (disability claimant’s attempt to ask court to “consider an issue not raised before the district court” rejected); Waite v. Bowen, 819 F.2d 1356, 1360 n. 1 (7th Cir.1987) (argument that impairment met listings waived because not raised previously).

When Williams sought review of the Secretary’s decision in district court, she did not expressly allege that the VE’s testimony conflicted with the job requirements in the government publications. In fact, Williams’s only reference to the issue appeared in a footnote in a memorandum submitted to the district court. There, Williams stated that she “incorporated by reference her memorandum on the second appeal to the [Appeals Council] in which she states additional objections to the VE’s suggested jobs.” Mem. of Facts and Conclusions of Law in Supp. of Pet’r’s Mot. for a J. of Reversal at 41 n. 26. This oblique reference to arguments made before the Appeals Council did not provide the district court with the “substantial measure of that assistance of counsel which the system assumes.” Carducci v. Regan, 714 F.2d 171, 179 (D.C.Cir.1983). We do not think such a disguised allusion is sufficient to preserve the issue and therefore we do not reach it.

III.

In summary, because Dr. Dobbs’s conclusions varied regarding the degree of Williams’s impairment, and because other physicians found Williams’s impairments were only moderate, substantial evidence in the record supported the Secretary’s finding that Williams did not meet the listing requirements. Moreover, the ALJ’s hypothetical questions to the VE adequately described Williams’s impairments. Thus, the ALJ was entitled to rely on the VE’s opinion that Williams could perform certain available jobs. Finally, we do not reach Williams’s argument based on the vocational guidelines. For the preceding reasons, the Secretary’s decision is

Affirmed.

1 . The District of Columbia’s disability agency makes the initial disability determination regarding a D.C. resident and hears the first appeal from those determinations for the SSA. 20 C.F.R. § 416.903(a). A claimant may seek review of that decision by an SSA ALJ. 20 C.F.R. § 416.903(c). The ALJ’s decision is appealable to the SSA's Appeals Council. 20 C.F.R. § 416.-1467.

2 . Somatoform disorder is a mental disease. An individual who suffers from somatoform disorder believes he has, and often manifests, physical symptoms which have no physical cause. See 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.07.

3 . The Secretary also sent Williams to an orthopedist and an internist. Neither found a physical cause for Williams’s ailments, a result that is consistent with somatoform disorder. In addition, two other psychiatrists reviewed Williams’s records although they never actually examined her. One psychiatrist agreed with Dr. Schiff’s diagnosis that Williams suffered from somato-form disorder. J.A. at 87. The other diagnosed Williams as having "mild to moderate neurotic depression with a pronounced histrionic overlay.” J.A. at 104. Both, however, agreed that she was only mildly impaired and therefore "capable of gainful employment." Id. at 104; see also id. at 79-80.

4 . An individual must also exhibit at least one of the following conditions: (1) "[a] history of multiple physical symptoms of several years [sic] duration, beginning before age 30, that have caused thé individual to take medicine frequently, see a physician often and alter life patterns significantly,” (2) "[p]ersistent nonorganic disturbance of” vision, speech, hearing, use of a limb, movement and control, or sensation or (3) ”[u]nrealistic interpretation of physical signs or sensations associated with the preoccupation or belief that one has a serious disease or injury." § 12.07. The Secretary does not dispute that Williams has at least one of these conditions.

5 . The dissent states that "in response to Williams's counsel’s hypothetical, the VE admitted that Williams probably could not perform the jobs he had identified." Dissenting Opinion at 5. In response to the hypothetical, the VE stated that Williams would be unable to perform the jobs he described if she (1) could not stand for 10 to 15 minutes, (2) dropped objects several times a day, (3) fell asleep on a regular basis while at work, (4) needed numerous rest periods during the course of a day, (5) was totally unable to get along with people or (6) almost never completed tasks. J.A. at 141-45. The ALJ concluded that Williams's subjective complaints provided the only evidence of the six conditions recited by her lawyer. He expressly rejected that evidence. J.A. at 45. We therefore think that the VE's "admission” packs no wallop. Moreover, the conditions the VE identified as potentially disabling have nothing to do with Williams's verbal and mathematical abilities.