Cline v. Chater, Commissioner

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
CURTIS C. CLINE,
Plaintiff-Appellant,
v.
No. 95-2076
SHIRLEY S. CHATER,
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
Appeal from the United States District Court
for the Southern District of West Virginia, at Huntington.
Robert J. Staker, District Judge.
(CA-93-1093)
Argued: March 7, 1996
Decided: April 19, 1996
Before NIEMEYER and MOTZ, Circuit Judges, and YOUNG,
Senior United States District Judge for the District of Maryland,
sitting by designation.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
ARGUED: Benita Yolan Whitman, BENITA WHITMAN ATTOR-
NEY AT LAW, Elkview, West Virginia, for Appellant. Lori Riye
Karimoto, Office of the General Counsel, DEPARTMENT OF
HEALTH & HUMAN SERVICES, Philadelphia, Pennsylvania, for
Appellee. ON BRIEF: Juliet W. Rundle, JULIET W. RUNDLE
ATTORNEY AT LAW, Pineville, West Virginia, for Appellant.
Charlotte Hardnett, Chief Counsel, Region III, William R. Reeser,
Assistant Regional Counsel, DEPARTMENT OF HEALTH &
HUMAN SERVICES, Philadelphia, Pennsylvania; Rebecca Betts,
United States Attorney, Stephen M. Horn, Assistant United States
Attorney, Charleston, West Virginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Appellant, Curtis C. Cline, appeals the district court order affirm-
ing the decision of the Commissioner denying his application for
Social Security Disability benefits. Cline contends that the Commis-
sioner's decision is not supported by substantial evidence because the
Administrative Law Judge ("ALJ") posed an inaccurate hypothetical
question to the vocational expert who testified, and the vocational
expert's testimony was not supported by the evidence and was unreli-
able. Finding no reversible error, we affirm.
Cline applied for Social Security Disability benefits on December
26, 1991, alleging disability commencing December 31, 1979. His
insured status for purposes of entitlement to Social Security disability
insurance benefits expired on December 31, 1984. Thus, he had to
establish that he was disabled before January 1, 1985 in order to be
entitled to disability benefits. 42 U.S.C. § 423(a)(1)(A)(1994); 20
C.F.R. § 404.131(a) (1995). After his application was denied initially
and upon reconsideration, he appealed to an Administrative Law
Judge, who found that he was not disabled within the meaning of the
Social Security Act, and denied his claim. The Appeals Council
denied Cline's request for discretionary review of the ALJ's decision.
The ALJ's decision is, therefore, the final decision of the Commis-
sioner. 20 C.F.R. § 404.981 (1995).
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Cline filed a complaint in the district court challenging the Com-
missioner's final decision. The district court adopted the report and
recommendation of the magistrate judge, affirmed the Commission-
er's decision to deny Cline's claim and denied Cline's motion for
summary judgment. This appeal followed.
Our review in this case is limited to determining whether the Com-
missioner's decision is supported by substantial evidence in the
record. 42 U.S.C. § 405(g) (1994). "Substantial evidence" is "such
relevant evidence as a reasonable mind might accept as adequate to
support a conclusion." Richardson v. Perales , 402 U.S. 389, 401
(1971) (citing Consolidated Edison Co. v. NLRB , 305 U.S. 197, 229
(1938)). In making this determination, we are mindful of the fact that
"[u]ltimately, it is the duty of the administrative law judge reviewing
a case, and not the responsibility of the courts, to make findings of
fact and to resolve conflicts in the evidence." Hays v. Sullivan, 907
F.2d 1453, 1456 (4th Cir. 1990) (citing King v. Califano, 599 F.2d
597, 599 (4th Cir. 1979)).
The Commissioner's regulations lay out a five step sequential eval-
uation process for making disability determinations under the Act. 20
C.F.R. § 404.1520 (1995); Hunter v. Sullivan, 993 F.2d 31, 34-35 (4th
Cir. 1992). The claimant bears the burden of satisfying the first four
steps; if the claimant reaches the fifth step, the burden shifts to the
Commissioner to produce evidence that other jobs exist in significant
numbers in the economy that the claimant can perform considering
his age, education, work experience, and remaining physical and men-
tal capabilities. See, e.g., Hunter, 993 F.2d at 35; Hall v. Harris, 658
F.2d 260, 264-65 (4th Cir. 1981). The parties agree, and the ALJ
found, that Cline met his burden under the first four steps of the anal-
ysis. Cline argues, however, that the Commissioner failed to meet her
burden of producing evidence that jobs that Cline was capable of per-
forming existed in significant numbers in the economy.
In order to meet this burden, the Commissioner introduced the tes-
timony of a vocational expert. "The purpose of bringing in a voca-
tional expert is to assist the ALJ in determining whether there is work
available in the national economy which the particular claimant can
perform." Walker v. Bowen, 889 F.2d 47, 50 (4th Cir. 1989). The
vocational expert's testimony must be based upon consideration of
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the other evidence in the record (in this case, Cline's testimony, the
affidavits submitted by his friends and relatives, the testimony of a
medical expert, Dr. Chillag, and various medical records). See id.Additionally, the vocational expert's testimony"must be in response
to proper hypothetical questions which fairly set out all of the claim-
ant's impairments." Id. Cline contends that the ALJ posed an inappro-
priate hypothetical question to the vocational expert in this case, and
argues that the "flaws" in the hypothetical rendered the vocational
expert's evaluation of the availability of jobs for someone of Cline's
ability inaccurate.
During the testimony of the vocational expert, the ALJ posed the
following hypothetical question:
Let's assume that we have a claimant who is approximately
44 years old. He has a third grade education with a limited
ability to, to read and write. That he is able to count money
and make change. Assume further that I find in general that
he has a physical capacity to perform light work. That he
would be able to occasionally climb, balance, stoop, crouch,
kneel and crawl. He would have some difficulty with reach-
ing with the left arm. But I note that he is right-handed. He
would also have non exertional limitations in that he would
be precluded from working around fumes, smoky or dusty
environments. Given these limitations, can you identify any
occupations that existed in the economy back in the years
mentioned earlier [prior to January 1, 1985]?
The vocational expert responded in the affirmative, and went on to list
several examples and give estimates of the numbers of such jobs that
existed during the relevant time period.
Cline claims there is no support in the record for a finding that he
had a third grade education with a limited ability to read and write,
as the ALJ described in the hypothetical. In fact, Cline himself testi-
fied that although he "just barely got through the third [grade]" and
he "didn't really go" that year, he knew the alphabet, was able to write
a few small words, had learned to read "a little bit," and was able to
understand "a little bit" of the letters and forms he received in the
mail. In describing the types of jobs Cline could do, the vocational
4
expert indicated that they were "unskilled entry level jobs," that "re-
quire very little in the way of academic knowledge." Moreover, in
estimating the number of existing jobs for which Cline would have
been qualified, the vocational expert reduced her estimate to exclude
those jobs that "require reading things." Thus, the inclusion in the
hypothetical question of the "third grade education" and "limited abil-
ity to read and write" did not render the vocational expert's evaluation
inaccurate.
Nor is Cline's argument that he is "functionally illiterate" helpful
to him. "Functional illiteracy" would result in an automatic classifica-
tion as disabled if a claimant was limited to only sedentary work.
Because the ALJ found him capable of both light and sedentary work,
however, a finding of functional illiteracy would not make Cline dis-
abled. 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 202.16 (1995).
Cline's next argument with regard to the hypothetical is that the
ALJ "inexplicably did not include Mr. Cline's inability to grip with
his left hand." As to both Cline's inability to grip with his left hand
and his difficulty in raising his left arm, the only evidence before the
ALJ was Cline's own testimony. None of the medical evidence in the
record refers to either of these physical problems. Dr. Chillag, the
medical expert who testified before the ALJ, stated that Cline's medi-
cal records contain "no mention of the injury to . . . his arm prior to
'91." After reviewing Cline's medical records and hearing Cline's tes-
timony, Dr. Chillag concluded that the only impairment Cline had
prior to 1985 was pneumoconiosis, but despite this condition, Cline
would have been able to perform medium to heavy work, "from a pul-
monary standpoint." Nonetheless, the ALJ gave Cline the "benefit of
the doubt" and included Cline's difficulty raising his arm in the hypo-
thetical. The ALJ also limited Cline's physical capacity to light work,
rather than medium to heavy as suggested by Dr. Chillag. In light of
Dr. Chillag's testimony and Cline's medical records, the ALJ would
have been justified in excluding all of Cline's physical impairments
except for pneumoconiosis from the hypothetical. The ALJ's more
"generous" hypothetical, then, is certainly supported by substantial
evidence, and the omission of the alleged grip impairment did not ren-
der the vocational expert's testimony inaccurate.
Cline also complains that the fact that he "could only work four
days a week" was not considered in the ALJ's hypothetical. He testi-
5
fied that during his last year of work, he missed approximately one
day of work each week because he "[j]ust didn't feel like going out."
Later in his testimony, he explained that he stayed home those days
because he felt "weak," and because of problems with his neck and
legs. Even after he stopped working, he testified, about once each
week he spent the whole day in bed. There was no medical evidence
in the record to indicate a medical condition that would have forced
Cline to stay at home in bed one day each week. Moreover, the voca-
tional expert testified that a person with such limitations would still
be able to work a part-time job. Part-time work may constitute sub-
stantial gainful activity under the Social Security Act. See Garnett v.
Sullivan, 905 F.2d 778, 780-81 (4th Cir. 1990) (Claimant's one hour
per day job as a school bus driver found to be substantial gainful
activity); Wright v. Sullivan, 900 F.2d 675, 678 (3d Cir. 1990) ("work
may be substantial even if done on a part-time basis") (quoting 20
C.F.R. 404.1572(a) (1989)).
Cline's remaining argument is that the vocational expert's testi-
mony was unreliable because the jobs suggested by the vocational
expert are not jobs that the Dictionary of Occupational Titles (DOT)
lists as appropriate under the ALJ's hypothetical. Cline did not raise
this issue at the administrative level or in the district court, and thus
we need not consider this argument. See Pleasant Valley Hospital,
Inc. v. Shalala, 32 F.3d 67, 70 (4th Cir. 1994) ("As a general matter,
it is inappropriate for courts reviewing appeals of agency decisions to
consider arguments not raised before the administrative agency
involved.") As we noted in Pleasant Valley , this rule "is not a strict
jurisdictional bar, it is a prudential one." Id.Even if we were to reach the issue, however, Cline's argument is
meritless. The Social Security regulations themselves provide that the
DOT is not the sole source of admissible information concerning the
availability of appropriate jobs. For example, 20 C.F.R. § 404.1566(d)
(1995) provides that the Commissioner may take administrative
notice of various publications issued by the Bureau of the Census, the
Social Security Administration, and state employment agencies, as
well as the DOT. See also, Barker v. Shalala, 40 F.3d 789, 795 (6th
Cir. 1994). More importantly to the case at bar, 20 C.F.R.
§ 404.1566(e) specifically contemplates the use of vocational experts
in determining complex issues such as the matching of a claimant's
6
work skills with available occupations. The regulations do not require
the Commissioner or the vocational expert to rely on classifications
in the DOT at all. See 20 C.F.R.§ 404.1566(d). Furthermore, "Social
Security Ruling 82-41, Part 2(c) states that the[DOT] can provide
guidance only as to a `majority' of jobs in the national economy, and
that a vocational expert should be consulted in cases where the char-
acteristics of a job are not `obvious.'" Barker, 40 F.3d at 795.
Lastly, the DOT itself contains a disclaimer"noting that it provides
only `composite descriptions of jobs as they may typically occur.'
[Thus, t]he descriptions listed in the dictionary `may not coincide
with a specific job as actually performed in a particular establishment
or any given industry.'" Barker, 40 F.3d at 795 (quoting the DOT.)
As the Sixth Circuit noted in Barker, the DOT is based on a selective
sampling of only 75,000 job sites out of the millions of workplaces
nationwide. Given its limitations, "[i]t would be manifestly inappro-
priate to make the [DOT] the sole source of evidence concerning
gainful employment." Therefore, the ALJ was certainly justified in
relying on the evaluation of the vocational expert, even where that
expert's testimony may have differed from the job descriptions or
classifications in the DOT.
Viewing the record as a whole, we hold that the Commissioner's
finding that Cline had the residual functional capacity to perform a
significant number of jobs that existed in the national economy during
the time at issue is supported by substantial evidence. The district
court's order affirming the Commissioner's denial of Cline's claim
for benefits is therefore
AFFIRMED.
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