2004 D e c i sion s O p inion s of the U nit e d S t a t e s C our t of Appe al s for the Thir d C ir c uit
2-10-2004 

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w . v i l l a no v a . e du/thir dc ir c uit_2004/1013* 

### Honorable Di ckinson R. De bevoise, Senior Unit

ed State s Distr

ict Judge for the Distri ct of New Je

rsey , sitt ing by designat ion. 1 

### NOT PRECED ENTIAL

UNITED S TATES COUR T OF APPEAL S FOR THE THIRD CIRCUIT

No. 03-1661

TIE’EASE L. J ONES ,

Appellant

v. JO ANNE B . BARNHART, COMMISS IONER OF

SOCIAL S ECURITY

On Appeal from the United States Distri ct Court for the Western District of Pennsylvania (Dist. Ct. No. 01-cv-02305 ) District Judge: Honorable Alan N. Bloch

Submitted Under Third Circuit LAR 34.1(a)

January 23, 2004 Before: ALITO , CHERTOFF , Circuit Judges , and DEBE VOISE, * Senior Dist rict Court Judge 

### (Filed Fe bruary 10, 2004)1 

### Jones’sBrief cha racte rizesher alleged disa

bility more br oadly : “The Appellant suffers fr om both exe

rtional and non-exer

tional impair

mentswhich incl

ude a hist ory of urticaria, asthma, chron ic obstructive an d restrictive lung disease, fibromyalgia, anxiety 2 

### OPINI ON
CHERTOFF , Circuit

Judge

. Tie’Eas e L. Jonesappealsfrom the Distri ct Court’ s judgment affirm ing the Commi ssioner

of Social Security ’s denia l of her applicati on for disability insuranc e and supplemental security

income benefits. Jones challenges the ALJ’s determ ination at steps three and five of the five-s tep ev aluatio n pro cess p rom ulgate d by the S ocial S ecurity Ad min istrati on t o de term ine w heth er an ind ivid ual is disa bled

. See 20 C .F.R . § 404.152 0. At step three, the A LJ con cluded tha t Jones’s signs, symptom s, and laboratory findings did not meet

or equal t

he criteria e stabl ished for a lis ted impai rment. At step five, the AL J conclud ed the C omm issioner had m et its burden of establishing Jon es’s capacity for

other work, given her i mpairments , pai n, functional restricti ons, age, edu catio n, an d w ork exp erien ce. 

### For the reasons stated below, we will affirm the Distri ct Court’s ju dgment. I. Jones wasborn on Septem ber 3, 1969. She

has an eleventh gra

de educat ion and past work ex perience as a nu rsing assistant and telemarketer. Jones filed for disability benefits on or about S eptember 17, 19 97, alleging disability due to asthma and h ives. 1

### and depres sion.” (Appellant Br. at 3) . Even if we a

dopt this br

oader cha racte rizat ion for the purpo se of this app eal, Jones’s claim fails. 3 

### Jones’sapplica

tion for dis abilit

y insurance

benefitswas denie d both initi ally and upon reconsi derati on. After c onducting a he aring, on J anuary 27, 1999, the ALJ

rendere d a decision con cluding th at Jones was no t entitled to ben efits. On October 2, 2001, the Appeals Co uncil denied Jones’s reque st to review the A LJ’s decision. Subsequentl

y, Jones sought

judicial review of t

he advers e decis ion, pursua nt to 42 U.S.C. § 405(g) , in the United Stat es Dist rict Cour t for the Wester

n Distri ct of Pennsy lvania. On January

6, 2003, the Honor

able Ala n N. Bloch gra

nted the Commi ssioner ’s mot

ion for sum

mary judgment a

nd denied Jone s’s cr

oss-m otion for summary judgment. This appeal f ollowed. II. The Distr ict Court exerci sed juris diction pur suant to 42 U. S.C. § 405(g), and appellate jurisd iction is vested in this Court u nder 28 U .S.C. § 12 91. The ro le of this Court is iden tical to that of th e District Court; w e must determine whethe r there is substantial evid ence to supp ort the Commissioner’s d ecision. Plummer v. Apfel , 186 F.3d 42 2, 427 (3 d Cir. 199 9). Substan tial evidence means “‘su ch relevant ev idence as a reasonable mind m

ight accept as adequate t

o support a conclusion.’” Jesurum v. Sec’y of the U.S. Dep ’t of Health & H uman Servs. , 48 F.3d 114, 117 (3d Ci r. 1995) (quot

ing Richardson v. Perales , 402 U.S. 389, 401 ( 1971)). “I t is le ss than a

prepondera

nce of the evidence but more than a m ere scintill a.” Id. Overall, the substantia l evidence standard4



### is a deferential stan dard of re view. Schaudeck v. Comm’ r of Soc. Sec . Admin. , 181 F.3d 429, 43 1 (3d Cir. 1 999). The Social Security Administration has promulgated a five-step evaluation process to d eterm ine w heth er an ind ivid ual is disa bled

. See 20 C .F.R. § 404 .1520 ; see g enera lly Plummer , 186 F.3d at

428. In s tep one, the Commissione r decide s whether the clai mant is cur rentl y engagi ng in subst antia l gainf ul act ivit y. If so, the cl aimant i s not el igibl e for disabili ty benefit s. 20 C.F.R. § 404.1520(a). In step two, the Commissioner determines whether the clai mant is s uffering f rom a severe i mpairment. If the i mpairment i s not “severe,” the c laimant is not eligible fo r disability benefits. 20 C.F.R. § 4 04.1520 (c). In step t hree, t he Commissioner e valuat es whether t he evidence e stabl ishes t hat the clai mant suf fers fro m a listed imp airm ent. I f so , the c laim ant is auto ma tically e ligib le fo r be nef its. If the c laimant

does not suf

fer from a l ist ed impairment or it s equival ent, however, the Commissioner pr oceeds to t he next st ep. 20 C.F. R. § 404.1520(d) . In s tep four, the Co mm issione r review s wh ether th e claim ant reta ins the “ residu al fun ctiona l capa city” to per for m h is pa st rele van t wo rk. If so, th e cla ima nt is n ot eli gib le fo r disa bility be nef its. 20 C .F.R. § 404 .1520(e). Fina lly, in step five the C omm issioner conside rs whe ther wo rk exist s in si gnific ant numbers i n the nat ional e conomy tha t the c laimant can perform gi ven his medica l impai rments, age, educat ion, pa st work exper ience, and “resi dual functional capa city.” If so, the claim ant is no t eligible f or be nefits. 2 0 C .F.R. § 404 .1520 (f). In this final ste p, “the burd en of prod uction shifts to the C om missio ner, w ho m ust de mo nstrate5

the cl aimant i s capable of performi ng other ava ilabl e work in order to deny a clai m of disabi lit y. ” Plummer , 186 F.3d at 428. Th e issu es o n ap pea l arise fro m th e A LJ’ s de term inati ons at ste ps th ree a nd f ive. III. Jones argues that the ALJ erred in step three i n failing to find she was per se disabl ed under List

ing 3.02( A). The ALJ concluded tha t, unde r ste p two, Jones had a

seve re imp airme nt bas ed on med ical find ings o f chro nic urtic aria, asth ma, c hron ic obstruc tive a nd restrictive lung di sease, and anxiety and depr ession. At step t hree, however, the AL J determined that after “car efully compar[ing] the claimant’s signs, sympt oms, and laboratory fi ndings with the cri teri a specif ied in a ll of t

he Listi ngs of Impairment s,” “t

he clai mant’s i mpairments do not meet or equal the criteria e stabl ished for an impai rment shown in t he Listi ngs.” Adminis trative Transc ript (“Tr.” ) at 13. Listi ng 3.02 provi des: “Chroni c obstructive pulmonary diseas e, due t o any cause, with th e FEV 1 equal t o or les s than t he values s pecifi ed in table I cor respondi ng to the person’s h eight witho ut shoes.” 20 C.F.R. P t. 404, Subp t. P, App. 1, § 3 .02(A). Jon es’s hei ghtof 69 inc hes corres ponds to a n FEV 1 valu e of 1.45 or le ss. Id. In support of her cl ai m of di sab il ity, Jone s poi nts to F ebruar y 1 6, 1 998 t est res ult s i ndi cating FEV 1 values of .99 , 1.04, an d 1.11 . Tr. at 13 7. Th is Co urt, how ever, c onclu des th at the tes t results alone ar e insuffi cient

to support

a clai m of disabil ity ; rat her, t here is substant

ial e vidence to su ppo rt the AL J’s c onc lusio n th at Jo nes did not suf fer f rom a liste d im pair me nt.6

The introdu ctory note to the re gulatio ns go vern ing listed respira tory impa irmen ts expla ins that a n FE V v alue sh ould not b e ana lyzed in iso lation f rom other e viden ce in

assess ing w hethe r the cla iman t satisfies th e criteria f or the liste d imp airme nt:

The list ings i n this secti on descri be impairments res ulti ng from respiratory disorder s based on symptoms, physical signs, laborat ory tes t ab no rm ali tie s, a nd re sp on se to a r eg im en of tre atm en t p re sc rib ed by a treat ing sou rce.

. . . . . . . Because th[e ] symptoms [ attributable to these disord ers] are common to many othe r dise ases, a thorough medical hi story, physical examination, and chest x-ray or other appropriate imaging techniques are required to establi sh pulmonary disease . Pulm onar y functio n testing is required to assess t

he severity of the respiratory impairment once a disease pro ces s is es tabli she d by a ppr opr iate c linic al an d lab ora tory fin din gs.

. . . . Respiratory i mpairments usually can be evaluated under these listing s on the b asis o f a c om plete me dica l histo ry, physic al ex am inati on, a ches t x-ray or o ther ap prop riate im aging techn iques , and s pirom etric pul mo nar y fun ction tests . 20 C.F.R. Pt . 404, Subpt . P, App. 1, § 3.00 (emphasi s added). “For a cla imant t o show his im pairm ent m atche s a listing, it m ust m eet all of th e s pe ci fi ed med ic al cr iter ia . A n impairment

that mani fests only some of those criteria, no matter how severely , does not qualif y. ” Sulli van v. Zebley , 493 U.S . 521 , 530 (19 90) (em pha sis in orig inal)

. In this case, substantial evide nce sup ports the A LJ’s decision that Jones’s impairment s do not meet or equal the criteria e stabl ished i n Listi ng 3.02(A). As the Distri ct Court noted, the record i ncludes various phy sici an trea tment not es indi cati ng that Jones’s lungs were “clear,” her chest x-r ays were normal, she had normal breath sounds, there was “l ittle obje ctive evidence of abnor mality on phy sicalexaminati on,” and that she2 

### Jones’s challeng e to the eviden ce outlined b y the District Court is

unpersuas ive. (Appellant Br . at 7-8) . In ess ence, J ones’s pr imar y a rgument is that the evidence cited by the Dist rict Cour t mer ely provides i solate d asses sment s and “doesnot refl ect her c ondit

ion ove r ti me. ” Howe ver, the FEV 1 

### evidence relied on by Jones is also just an isolated mea surement. Moreover, even if Jones is correct that the medical evidence may not be ideal in reflecting “h er condition over time,” such an argument is insuffici ent to under

mine t he claim that

there wa s substa

ntial evidence t

o support the ALJ’s conc lusion. 7 had only “mild” br onchial asthma. 2 To be sure, i n Burnett v. Commissioner of Soci al Securi ty Administr ation we requir ed “the ALJ to se t fort h the rea sons for hi s decis ion,” and held t hat the ALJ’s bare conclusory st atement t

hat an i mpairment di d not match, or is not equival ent to, a lis ted imp airm ent w as in suf ficie nt. 2 20 F .3d 1 12, 1 19- 20 ( 3d C ir. 20 00)

. 

### Here, J ones does not specifically

challenge the ALJ’s ruling on the grounds that it fails t he Burnett standard. Rather, Jones’sonly

reference to Burnett appearsin a long li st of cit ations in support of the general proposition that “the ALJ m ust analy ze all the evidence in the record and provide an a

dequate explanati on for disre garding evi dence.”(Appella nt Br. at 9) (emphasis in origin al). In any event, the ALJ’s st ep three analy sis i n this case satisfi es Bu rnett . Bu rnett does not r equire t he ALJ to use particular language or adhere t o a parti cular f

ormat in c onducting hi s analy sis. Rather, the function of Bu rnett is to ensure that the re is suf ficien t deve lopm ent of the rec ord a nd ex plana tion of findin gs to p ermit

me anin gfu l rev iew

. See id. at 120. In thi s case, the ALJ’s deci sion, read as a whole , ill ustra tes t

hat the ALJ considered t he appropri ate fact ors in reaching the conclusi on that Jones did n ot meet the req uiremen ts for any listing, including Listing 3.02 (A). The AL J’s3 

### The ALJ’s o pinion ex plains, in pertin ent part: The claimant i s somewhat mor e lim ited by chronic obs tructive and restr ictive lung disea se with a sthma , but even s o, I find tha t this woul d not preclude the performance o f at least sedentary work activ ity . . . . Pulmonary

function studies are consistent wit h moderately

severe obstruct ive and re strictive defects, but the cla imant has no significant pulmonary

complications such asclubbing, cyanosis , or edema. In addition, she has not

require d frequent hos pitali zationsor eme rgency room treat mentsfor an exac erbati on of this dis order. Dr . Levine’ s exam ination in February of 1998 (Exhibit 6F) showed that the claimant’s lungs were clear. The claimant requ ires the usual medication s for contro l of this particular m

edical disorder . Dr. Hawkins, while asses sing that

the cla imant was temporarily disabled fo r welfare pu rposes (Exh ibit 10F), n onetheless concluded t

hat the c laimant’s a sthma was only mild in nature. The claimant also has und ergone allerg y tests which were entirely within normal limits in January of 199 7 as noted b y Dr. Levine (Exh ibit 6F). I therefore will conclude that the cl aimant, while having a severe respiratory condition , could still perf orm a wide rang e of seden tary jobs . . . . Tr. at 13-14

. 8 opinion di scusses the evi dence pert aining to chronic obs tructive and re stri ctive lung diseas e, spec ifically refe rencin g “[p ]ulmo nary fun ction stu dies . . . con sistent w ith moderatel y se vere obst

ructi ve and rest

rictive defect s,” but

pointi ng to the l ack of pul monary c ompl ic at ion s, and afin din g th atcl ai mant ’s lun gs wer e cl ear . Al so, the ALJ noted tha t cla imant’s medical hi story showed no frequent hos pital izat ion or emerge ncy treat ments. Tr . at

13-14. 3 This discussion sati sfies Bu rnett ’s requi rement that the re be suffici ent expl anati on to provi de meaningful r eview of the s tep three determinati on. IV. 

### Jonesals o challenge s the ALJ’sdete

rminati on at s tep five. Sh e ra ise s two criti cism s: (1) t

he jobs ident

ified by the vocat ional expe

rt (VE) in accorda

nce with t he4 

### The ALJ noted t hat addit ional nonexe

rtional limitationspreclude d Jones from performing th e full range of sedentar y work.

5 

### Jones argues that “[t]he job as a telephone operator isvery s imilar if not identical to the Pla intiff’spast job asa tele

marke ter.”Therefore , “[i]f the

ALJ conclude d that the Plai ntif f co uld not perf orm h er pa st rel evan t wo rk, s he ca nno t be e xpe cted to p erfo rm a similar job or the same jo b as she perf ormed in the past.” (A ppellant Br. at 1 1). However, J ones fail s to subst antiat e the as serti on that a t

elephone ope

rator a nd telem arkete r are i dentica

l. Moreove

r, the VE’ s test

imony suggestsdistinct reas ons why Jones m ight no longer

be able t o continue e

mploy ment a s a telemar

keter t hat ma y be inapplic able to a

telephone

operator position: “The work she

did for the t

elemarketing, anytime you’ re a supe

rvisor in charge of ot

her people , it’s , it’sjust not cons idered t o be few decision s, where, wh ere you’re, in fact, in charg e of other p eople’s work demands. And I thin k that it wou ld exceed tha t limitation.” Tr. at 222

.

6 

### We acknow ledge that this C ourt has exp ressed concern in cases where th ere is a conflict betw een the VE’ s testimony and the DOT. See Boone v. Barnhart , 2003 WL 22966888 (3d Cir. Dec. 18, 2003). However, this Court has “not adopt[ed] a general 9 

### ALJ’s hy pothetic al—telephone opera tor, per sonal at

tendant, and cashi er—are jobs not generally performed at the sedenta ry level; and (2) the ALJ disregarded the VE’s response to Jo nes’s counsel’s h ypothetical.

The ALJ concluded that given Jones’s capacity to perform some se dentary work, 4 

### there are a significant number of jobs in th e national eco nomy that she could perform, pro viding th e examples of cash ier, personal atten dant, and telep hone op erator. Jones argues th at the identified jobs are gen erally not performed at the sed entary level. While Jones correct

ly notesthat the Dictionary of Occupational Titles (4 th 

### ed., rev. 1991) (“DOT”) indicate s persona l atte ndant is l ight work, t

he jobs of cas hier and t

elephone operator

5 

### are listed assedentary . Moreover, the ALJ’s three enume rated occupations are merely ex ample s, an d no t a co mplet e list , of the s eden tary wo rk th at Jo nes c an p erfo rm. 6

### rule that an un explained co nflict between a VE’s testimony and the DO T necessarily

requires reversal .” Id. at *2. Add itionally, Boone is distinguish able—unlik e this case, in Boone there wa s a much more explicit conflict , a confli ct as t

o “ each occupati on identified b y the VE,” and the V E’s testimony was riddled with hesitation. See id. at *2- 4. 10



### Additionally, Jones argues that the ALJ erred in disregarding the VE’s

re sp on se to th e f ol lo wi ng hyp ot he ti ca l p os it ed by J on es ’s at to rn ey: Q. Assuming an adult individual the sam e age, education and past work experience as t

he Claim ant, but I would like for

you t o assume the following addition al factors posed in Dr. Levine’s report dated February 18th , 1998. I would like you to assume the fo llowing fa ctors : that this adult indiv idual’s ability to functio n and motivatio n to do th ings is seriously affected by her

anxiety and depression; and additional factors such as her hiv es and her resp iratory difficulty affect her ability to complete tasks in an eigh t-hour wo rk period. Wo uld such an adult indiv idual be able to perform her past rel evant work and any other work in the national ec on om y? A. The—wh at’s critical to me in hearing this is the ability to complete tasks in an eight- hour workday . And all jobsare going t o require that ce rtain t asks are com pleted within a day , within a day ’s peri od of time . Either so many telephones o r calls are answered o r so many envelopes are stuffed or on e is at a cash regist

er for a specific period of time . So completing tasks is a n essential part of d oing any kind o f work. Tr. at 225 (emph asis added). Even assum

ing that t his tes timony

alone issufficie

nt to support

a claim of disability , the ALJ did not err in failing to accept the hy pothetical. The hy

pothetical asked the VE to make certain assumption s, based in large p art on Dr. Le vine’s repor t. As the Dis trict

Court noted, however, because t he hy pothetic al was inconsist

ent with t he7 

### The ALJ explicitly referenced the hy

pothetical in his decisi on, but concluded that it was not dispositive : “The cl aima nt’s couns el als o present

ed hy pothetic als to t

he vocationa l expert based on infor

mati on provided by

Dr. Levine , but I believe tha t I have adequately

discuss ed Dr. Levine’s m edical reportsin the above

paragra phs.” Tr. at 16. 11 

### evidence in the record, the ALJ had the authority to disregard the response. 7 

### For example, the ALJ concluded that despit e a diagnosis of anxiety

and depression, Dr. Levine ind icated that Jones’s

mental functioning is normal , that she remains alert and oriente d, that her mem ory , concent

ration, and ability

to rela te to othe rs are not impa ired, t hat she keeps her appointments, that she is able to follow directions with re spect to her medical care, that she is no t psychotic and can carry out the activ ities of daily living. Tr. at 15. The ALJ was not required to accept the ass umptions posited by Jones’s counsel; rather, ther

e is substantial evidence to support the ALJ’s determination at step five that there are a s ignificant number of jobs in the national economy that Jones can perform. V. For the foregoing reasons, the judgment of the District Court entered on January 6, 2003, will

be affirm ed.

TO THE CLER K: Please file the foregoing opini on. /s/ Michael Cher

toff, Circuit Judge