Wise v. Barnhart

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 18, 2004
Charles R. Fulbruge III
Clerk
No. 03-30995
Summary Calendar
BRANDON WISE,
Plaintiff-Appellant,
versus
JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 2:02-CV-1267
Before JONES, BENAVIDES and CLEMENT, Circuit Judges.
PER CURIAM:*
Brandon Wise appeals the judgment affirming the decision
by the Commissioner of Social Security to deny his application for
supplemental security income. Our review is limited to determining
whether the Commissioner applied the proper legal standards and
whether the decision is supported by substantial evidence on the
record as a whole. See Bowling v. Shalala, 36 F.3d 431, 434 (5th
Cir. 1994). We may not reweigh the evidence or try the issues de
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
novo. See Johnson v. Bowen, 864 F.2d 340, 343 (5th Cir. 1988).
The record shows that the administrative law judge applied the
proper legal standards and that the Commissioner’s decision is
supported by substantial evidence. Bowling, 36 F.3d at 434.
We reject Wise’s challenge to the hypothetical posed to
the vocational expert. The hypothetical question that an adminis-
trative law judge poses to a vocational expert need only
incorporate the disabilities that the administrative law judge
recognizes. Id. at 435; Morris v. Bowen, 864 F.2d 333, 336 (5th
Cir. 1988). Under Bowling, if the administrative law judge’s
hypothetical omits a recognized limitation “and the claimant or his
representative is afforded the opportunity to correct deficiencies
in the administrative law judge’s question by mentioning or
suggesting to the vocational expert any purported defects in the
hypothetical questions (including additional disabilities not
recognized by the administrative law judge’s findings and
disabilities recognized but omitted from the question),” there is
no reversible error. Bowling, 36 F.3d at 436.
Wise does not dispute that his representative was allowed
to cross-examine the vocational expert regarding the administrative
law judge’s hypothetical. Thus, even assuming, arguendo, that the
administrative law judge’s hypothetical was deficient in the
respects urged on appeal, because Wise’s representative was
afforded an opportunity to correct any perceived deficiencies,
there is no reversible error. See id.
Contrary to Wise’s argument, Social Security Ruling (SSR)
83-12 does not contradict the vocational expert’s testimony that
sedentary and light work does not necessarily entail bilateral
manual dexterity. See SSR 83-12. Wise’s argument that SSR 83-12
undercuts the vocational expert’s testimony that he could perform
sedentary work is also without merit. SSR 83-12 does not state
that a person who does not exhibit bilateral manual dexterity is
unable to perform sedentary work. Id.
To the extent that Wise argues that his case should be
remanded in accord with Watson v. Barnhart, 288 F.3d 212 (5th Cir.
2002), for a finding whether he can maintain employment, Wise did
not assert that his condition only periodically precluded him from
working and did not offer medical evidence that his condition would
intermittently prevent him from maintaining employment or
functioning in the employment context. Accordingly, it is not
necessary to remand the case for the administrative law judge to
make such a determination. See Frank v. Barnhart, 326 F.3d 618,
619-20 (5th Cir. 2003). Given the foregoing, the judgment of the
district court is affirmed.
AFFIRMED.