Tisoit v. Comm Social Security

Opinions of the United
2005 Decisions States Court of Appeals
for the Third Circuit
4-4-2005
Tisoit v. Comm Social Security
Precedential or Non-Precedential: Non-Precedential
Docket No. 04-3097
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NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
No. 04-3097
____________
FRITZ TISOIT,
Appellant
v.
JO ANNE B. BARNHART,
COMMISSIONER OF SOCIAL SECURITY
____________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. No. 03-cv-05024)
District Judge: Honorable Lowell A. Reed, Jr.
____________
Submitted Under Third Circuit LAR 34.1(a)
April 1, 2005
Before: ALITO, SMITH and FISHER, Circuit Judges.
(Filed: April 4, 2005)
____________
OPINION OF THE COURT
____________
FISHER, Circuit Judge.
Appellant Fritz Tisoit applied for disability insurance benefits (DIB) under Title II,
and supplemental security income (SSI) under Title XVI, of the Social Security Act, 42
U.S.C. §§ 401-433, 1381-1383f, for a period beginning May 2, 2002, due to his infection
with Human Immunodeficiency Virus (HIV) and experience of major depression. The
claims were initially denied, and a hearing was then held before an administrative law
judge (“ALJ”), who also denied the claims by order dated May 16, 2003. Mr. Tisoit
sought review of the ALJ’s decision in the United States District Court for the Eastern
District of Pennsylvania, and on June 4, 2004, the court granted summary judgment to the
Commissioner. Mr. Tisoit appealed. We will affirm.
We review de novo the District Court’s grant of summary judgment in favor of the
Commissioner but may reverse only if the ALJ’s findings are not supported by
“substantial evidence” in the administrative record. Boone v. Barnhart, 353 F.3d 203,
205 (3d Cir. 2004). “Substantial evidence is less than a preponderance but more than a
scintilla; it is such relevant evidence as a reasonable mind might accept as adequate.” Id.
(internal citation omitted).
The Commissioner uses a five-step sequential evaluation process set forth at 20
C.F.R. § 404.1520 and § 416.920 to evaluate DIB and SSI claims. Specifically
considered is whether claimant (1) is working and doing substantial gainful activity;
(2) has a severe impairment; (3) has an impairment that meets or equals the requirements
of a listed impairment; (4) can return to past relevant work; and (5) if not, can perform
alternate work. See Rutherford v. Barnhart, 399 F.3d 546, 551 (3d Cir. 2005). In this
case, the ALJ assumed that Mr. Tisoit (who was then working part-time as a kitchen
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helper) was not engaged in substantial gainful activity, and further found that his ailments
constituted severe impairments, that he was incapable of performing his past relevant
work as a cook/kitchen helper and that he had the residual functional capacity (RFC) to
perform less than the full range of sedentary work. With the aid of a vocational expert
(VE), the ALJ then determined at the fifth step of the evaluation process that a significant
number of jobs exist in the national economy which Mr. Tisoit could perform, including
surveillance system monitor and order clerk, even with an eroded occupational base for
sedentary work. Consequently, Mr. Tisoit was deemed not disabled within the meaning
of the Social Security Act.
On appeal, Mr. Tisoit contends that the ALJ erred (1) in failing to apply Social
Security Rulings (“SSR”) 96-9p and related rulings in SSR 83-12 and 83-14 in assessing
his eroded occupational base for sedentary work; (2) in failing to comply with SSR 00-4p
which requires an ALJ to affirmatively inquire about “any possible conflict” between the
evidence offered by a VE and information provided in the Dictionary of Occupational
Titles (DOT), and (3) in giving greater weight in considering Mr. Tisoit’s RFC to the
findings of a non-examining state agency medical consultant instead of the psychologist
who examined him at the Commissioner’s request. We address each contention in turn.
As to the first assigned error, we conclude (as did the District Court, see A. 3-4),
that the ALJ adequately considered the extent of any erosion of Mr. Tisoit’s occupational
base for sedentary work and its significance. The ALJ consulted with a VE who testified
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there were a significant number of jobs in the economy that Mr. Tisoit could perform with
the limitations recognized by the ALJ and posed to the VE in a hypothetical. While the
ALJ does not cite SSR 96-9p, 83-12 or 83-14, it is plain that he followed the letter and
spirit of those rulings in consulting with the VE, and that substantial evidence otherwise
exists in the record to support the ALJ’s decision. We will not reverse simply because an
ALJ does not cite the applicable rulings when otherwise satisfied that no error was
committed. See Boone, 353 F.3d at 210.
As to the second assigned error, we conclude (as did the District Court, see A.
2-3), that the real basis for Mr. Tisoit’s complaint is not the existence of an inconsistency
between the VE’s testimony and the DOT such as would trigger SSR 00-4p,1 but rather
that he is incapable of performing the two occupations identified by the VE. Specifically,
Mr. Tisoit contends that his actual capability for reasoning and language is less than that
conceived by the ALJ and VE, and that this is borne out by the administrative record. In
this situation, SSR 00-4p is not triggered, and we too conclude that the dialogue at the
hearing as well as the ALJ’s decision indicate that Mr. Tisoit’s capabilities for reasoning
1
This Court has not held that mere failure to inquire about the possibility of an
inconsistency under SSR 00-4p mandates reversal, and we will not do so here because, as
the District Court cogently explained, see A. 1, n.1, even if there was a conflict, it would
be de minimis because the occupations identified by the VE are within the range or below
the functioning levels of Mr. Tisoit’s previous work as a cook and kitchen helper. See
Jones v. Barnhart, 364 F.3d 501, 506 n.6 (3d Cir. 2004) (“[T]his Court has not adopted a
general rule that an unexplained conflict between a VE’s testimony and the DOT
necessarily requires reversal.”) (internal citation omitted).
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and language were considered in discerning his ability to perform other work, including
that identified by the VE. Further, we conclude that the administrative record would
support the ALJ’s decision not to include a limitation regarding Mr. Tisoit’s language
capability in the hypothetical posed to the VE.
As to the third assigned error, we conclude (as did the District Court, see A. 2) that
the ALJ did not fail to consider the findings of Mr. Tisoit’s examining psychologist in
assessing his RFC, but rather set forth and relied upon many of those findings in posing
the hypothetical to the VE. We also conclude that the ALJ adequately explained his
assignment of greater weight to the findings of the non-examining medical consultant
regarding Mr. Tisoit’s mental capacity and that his decision to do so is supported by the
administrative record. See Fargnoli v. Massanari, 247 F.3d 34, 42 (3d Cir. 2001) (no
requirement for ALJ to discuss or refer to every piece of relevant evidence in the record,
so long as the reviewing court can discern the basis of decision).
In addition to reviewing Mr. Tisoit’s specific assignments of error, we have
reviewed the administrative record in its entirety and conclude that the ALJ’s decision
was based on substantial evidence. Accordingly, we will affirm the decision of the
District Court entered June 4, 2004, in favor of the Commissioner.
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