UNITED STATES DISTRICT COURT FOR THE 

DISTRICT OF NEW HAMPSHIRE

Dianna Correll

v. Civil No. 05-cv-023-JD

Jo Anne Barnhart, Commissioner,

Social Security Administration

O R D E R

Dianna Correll seeks judicial review, pursuant to 42 U.S.C.

§ 405(g), of the Commissioner’s decision denying her application

for Disability Insurance Benefits and Supplemental Security

Income. She contends that the Administrative Law Judge (“ALJ”)

erred in finding that she was able to do work that exists in

significant numbers in the relevant economies because the jobs he 

cites are semi-skilled although the vocational expert identified

them as unskilled work. The Commissioner moves to affirm the

decision.

Discussion

Correll sought benefits for the period between May 26, 1995,

and November 28, 1997, asserting a disability due to the effects

of coronary and vascular bypass surgery. Her application was

denied by the ALJ, but after review by this court her case was

remanded for further administrative proceedings. The case was

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returned to ALJ Klingebiel who held a second hearing that

included testimony from a vocational expert. ALJ Klingebiel

concluded that Correll was capable of doing sedentary work with

certain additional limitations, and based on the vocational

expert’s evidence, the ALJ found she could work as a referral

clerk, telemarketer, and gate guard. The Appeals Council denied

Correll’s request for review.

After the Appeals Council denies review, the ALJ’s decision

becomes the final decision of the Commissioner. Sims v. Apfel,

530 U.S. 103, 106 (2000). The court must uphold a final decision

of the Commissioner denying benefits unless the decision is based

on legal or factual error. Seavey v. Barnhart, 276 F.3d 1, 9

(1st Cir. 2001); Manso-Pizarro v. Sec’y of Health & Human Servs.,

76 F.3d 15, 16 (1st Cir. 1996). The Commissioner’s factual

findings are conclusive if based on substantial evidence in the

record. 42 U.S.C. § 405(g); Nguyen v. Chater, 172 F.3d 31, 35

(1st Cir. 1999). 

Correll contends that the decision denying her application

for benefits is erroneous and must be reversed because the skill

level of the jobs identified by the vocational expert is semiskilled, according to the Dictionary of Occupational Titles

(“DOT”), while the vocational expert described them as unskilled. 

She argues that because she did not have transferable skills from

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her previous work to sedentary work, she was not able to do 

semi-skilled work. She also contends that the ALJ failed to

resolve the conflict between the vocational expert’s testimony

and the DOT with respect to the skill level of the identified

jobs.

The Commissioner agrees that the DOT identifies those jobs

as semi-skilled and that the vocational expert and the ALJ were

mistaken in describing them as unskilled. The Commissioner also

acknowledges that under Social Security Ruling 00-4p, an ALJ is

obligated to resolve conflicts between a vocational expert’s

testimony and the DOT, which the ALJ failed to do in this case. 

Despite those errors, the Commissioner contends that the decision

should be affirmed because Correll was capable of doing semiskilled work. 

The Commissioner notes that while the discussion between the

ALJ and the vocational expert focused on unskilled work, the ALJ

did not find that Correll was limited to unskilled work. It is

undisputed that Correll is a high school graduate, and under the

Social Security Regulations, a person with a high school

education is considered able to do semi-skilled through skilled

work. 20 C.F.R. § 404.1564(b)(4). Because Correll previously

did semi-skilled work and the record offers nothing to suggest

that she no longer had the ability to learn to do work at that

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level, the semi-skilled jobs the ALJ relied upon are at an

appropriate skill level. 

“[A] remand is not essential if it will amount to no more

than an empty exercise.” Ward v. Comm’r of Soc. Sec., 211 F.3d

652, 656 (1st Cir. 2000). Despite the ALJ’s suggestion to the

contrary, it appears that Correll is capable of doing semiskilled work. Although the vocational expert may have erred in

identifying the cited jobs as unskilled and the ALJ erred in not

resolving the conflict between that classification and the DOT

classification, there is no need to remand the case for that

determination when Correll is capable of doing semi-skilled work. 

Correll suggests, cursorily, that the identified jobs were

inappropriate because of the exertional level and reaching and

handling requirements. Those arguments are not well-developed,

and the record shows that the vocational expert considered

Correll’s limitations in determining that she was capable of

doing the cited jobs. Substantial evidence exists in the record

to support the conclusion that Correll was not disabled because

there were jobs available in the relevant communities that she

could do. 

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Conclusion

For the foregoing reasons, the plaintiff’s motion to reverse

the Commissioner’s decision (document no. 7) is denied, and the

Commissioner’s motion to affirm (document no. 8) is granted. 

The clerk of court shall enter judgment accordingly and

close the case.

SO ORDERED.

Joseph A. DiClerico, Jr.

United States District Judge

August 3, 2005

cc: D. Lance Tillinghast, Esquire

David L. Broderick, Esquire

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