2002 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

12-4-2002

Burns v. Comm Social Security

Precedential or Non-Precedential: Precedential

Docket No. 02-1091

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PRECEDENTIAL 

 Filed December 4, 2002 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

No. 02-1091 

JOSEPH BURNS, 

 Appellant 

v. 

*JO ANNE B. BARNHART, 

COMMISSIONER OF THE SOCIAL 

SECURITY ADMINISTRATION 

*(Pursuant to F.R.A.P. 43(c)) 

Appeal from the United States District Court 

for the Eastern District of Pennsylvania 

(D.C. Civil No. 01-cv-02917) 

District Judge: Honorable Robert F. Kelly 

Argued September 9, 2002 

Before: BECKER, Chief Judge, ROTH and RENDELL, 

Circuit Judges 

(Filed: December 4, 2002) 

 Michael P. Boyle, Esq. [ARGUED] 

 123 South Broad Street, Suite 2140 

 Philadelphia, PA 19109 

 Counsel for Appellant 

 

 Tara A. Czekaj, Esq. [ARGUED] 

 Social Security Administration 

 OGC/Region III 

 P.O. Box 41777 

 Philadelphia, PA 19101 

 Counsel for Appellee 

OPINION OF THE COURT 

RENDELL, Circuit Judge. 

Appellant, Joseph Burns, challenges the denial of his 

application for Supplemental Security Income (SSI) under 

Title XVI of the Social Security Act, 42 U.S.C.S 1381 et seq. 

While we reject Burns’ argument that the record, as it 

exists, establishes his eligibility for SSI, we will reverse and 

remand because we find that the hypothetical question 

posed to the vocational expert by the administrative law 

judge did not incorporate all of Burns’ limitations. 
I. 

Burns completed his education through tenth grade. He 

most recently worked in a stock position at a beer 

distributor. He has not worked since 1986, and last looked 

for work in 1989. He is fifty-one years old and has not 

acquired any transferable vocational skills. 

Burns filed an application for SSI on June 24, 1998, 

alleging an onset of total disability on June 15, 1998. In the 

application and other related documents, Burns alleged 

that he was unable to work due to a heart condition, lung 

cancer, a hernia, nerves, arthritis of the hands and knees, 

high blood pressure, a stomach disorder, dizziness, and 

back pain. The record does not contain extensive medical 

documentation of Burns’ ailments. It does, however, 

contain reports, completed after Burns’ application date, 

documenting some of Burns’ alleged conditions, including a 

report of a lumbar spine x-ray showing "early degenerative 

changes," various medical reports detailing complaints of 

knee, chest and back pain, and a report of a cardiac 

catheterization that revealed coronary artery disease. The 

 2 

 

record also contains reports, completed after he filed his 

application, detailing an electrocardiogram that came 

within normal limits, an x-ray examination of his chest that 

showed a "normal chest," an x-ray examination of Burns’ 

right knee showing "no arthritic change" and that his knee 

was "normal," and a stress test that revealed no exerciseinduced ischemia. In addition, the record indicates that 

doctors placed a stent in Burns’ arteries in order to relieve 

the pain from his coronary artery disease. 

The state agency that initially assesses applications for 

SSI rejected Burns’ application for benefits. After his 

request for reconsideration was denied as well, Burns 

requested review before an Administrative Law Judge 

("ALJ"). Burns testified at the hearing before the ALJ, as did 

a vocational expert. The testimony focused mainly on 

Burns’ alleged physical limitations and how they affected 

his ability to work. At the end of the hearing, at counsel’s 

urging, the ALJ ordered an evaluation of Burns’ intellectual 

capacity. That evaluation, conducted by Loren Laviolette, 

Ed.D., diagnosed Burns as having borderline intellectual 

functioning. Because a supplemental hearing was not held 

after the psychological evaluation, the ALJ never questioned 

Burns or the vocational expert regarding Dr. Laviolette’s 

findings. 

Five months after Dr. Laviolette’s evaluation, the ALJ 

issued a decision denying Burns benefits. The ALJ found 

that Burns "retains the capacity to make an adjustment to 

work which exists in significant numbers in the national 

economy." The Appeals Council of the Social Security 

Administration declined review, effectively making the ALJ’s 

determination the final decision of the Commissioner of the 

Social Security Administration ("Commissioner"). At that 
point, Burns had exhausted his administrative remedies. 

Fargnoli v. Halter, 247 F.3d 34, 38 (3d Cir. 2001). 

On June 13, 2001, Burns filed a complaint with the 

District Court for the Eastern District of Pennsylvania, 

seeking review of the Social Security Administration’s 

refusal to grant benefits. The District Court had jurisdiction 

under 42 U.S.C. S 405(g) (2002). The District Court referred 

the case to a magistrate judge who, in considering crossmotions for summary judgment, recommended granting the 

 3 

 

Commissioner’s motion. On November 14, 2001, the 

District Court adopted this recommendation and entered 

judgment against Burns. 

Burns appeals to our court, alleging a number of errors. 

These may be summarized as follows: (1) the ALJ based his 

findings on a deficient hypothetical question posed to the 

vocational expert; (2) the ALJ should have concluded that 

Burns met or equaled the listed impairment for mental 

retardation; (3) the vocational expert’s conclusion, which 

the ALJ adopted for his findings of fact, that Burns could 

engage in substantial gainful activity conflicted with the 

Dictionary of Occupational Titles; (4) the ALJ incorrectly 

determined that Burns retained the residual functional 

capacity for light exertional work; and (5) the ALJ failed to 

account for either the fact of stress or the side effects of 

Burns’ medication. 

We have jurisdiction under 28 U.S.C. S 1291 (2002) and 

42 U.S.C. S 405(g) (2002). While our review of the District 

Court’s order is plenary, we may reverse the grant of 

summary judgment to the Commissioner only if we 

conclude that the ALJ’s findings were not supported by 

"substantial evidence." Podedworny v. Harris, 745 F.2d 

210, 217 (3d Cir. 1984); 42 U.S.C. S 405(g). Substantial 

evidence is "such relevant evidence as a reasonable mind 

might accept as adequate." Ventura v. Shalala , 55 F.3d 

900, 901 (3d Cir. 1995) (quoting Richardson v. Perales, 402 

U.S. 389, 401 (1971)). We have referred to it as"less than 

a preponderance of the evidence but more than a mere 

scintilla." Jesuram v. Secretary of the United States Dep’t of 

Health & Human Servs., 48 F.3d 114, 117 (3d Cir. 1995). 

We also have made clear that we are not permitted to weigh 

the evidence or substitute our own conclusions for that of 

the fact-finder. Williams v. Sullivan, 970 F.2d 1178, 1182 

(3d Cir. 1992). 

II. 

In order to qualify for SSI, a person must be disabled as 

that term is defined by the Social Security Act and 

accompanying regulations. Title XVI of the Act defines 

disability as the "inability to engage in any substantial 

 4 

 
gainful activity by reason of any medically determinable 

physical or mental impairment which can be expected to 

result in death or which has lasted or can be expected to 

last for a continuous period of not less than 12 months." 42 

U.S.C. S 1382c(a)(3)(A) (2002). 

Using this definition, the Social Security Administration 

applies a five-step test to determine whether a person is 

disabled for purposes of qualifying for SSI.1 20 C.F.R. 

S 416.920 (2002). Step one requires a determination of 

whether the claimant is currently engaging in "substantial 

gainful activity," 20 C.F.R. S 416.920(b), as defined in the 

regulations. See 20 C.F.R. S 220.141 (2002). If the person is 

found to be engaged in substantial gainful activity, the 

application will be denied. Step two of the evaluation 

process requires that the claimant show that he suffers 

from a "severe impairment." 20 C.F.R. S 416.920(C). If the 

claimant fails to show that his impairments are"severe," he 

will be denied benefits. Step three allows the claimant to 

demonstrate that his disability meets or equals an 

impairment listed in Appendix 1 to Subpart P of Part 404 

("Listing of Impairments"). 20 C.F.R. S 416.920(d). At this 

step, an ALJ often enlists the help of an expert to explain 

the medical evidence. If the impairment meets or equals a 

listed impairment, the claimant is considered disabled per 

se and the evaluation process ends. Plummer v. Apfel, 186 

F.3d 422, 428 (3d Cir. 1999). 

If, however, the claimant’s impairments do not satisfy 

step three, the claimant must continue on to step four. 

Step four requires that the claimant demonstrate that he 

does not have sufficient residual functional capacity to 

perform his past relevant work. 20 C.F.R. S 416.920(e). 

Residual functional capacity is defined as "what a 

[claimant] can still do despite his limitations." 20 C.F.R. 

S 416.945(a). If the claimant does not demonstrate his 

_________________________________________________________________ 

1. This test is the same as that for determining whether a person is 

disabled for purposes of receiving social security disability benefits. 

Compare 20 C.F.R. S 416.920 withS 404.1520. See also Sullivan v. 

Zebley, 493 U.S. 521, 526 (1990); Williams v. Sullivan, 970 F.2d 1178, 

1181 (3d Cir. 1992). As a result, we consider case law developed under 

both SSI and social security disability benefits law. 

 5 

 

inability to do past relevant work, he will not be considered 

disabled. If he does, the inquiry moves to step five. 

At the final step -- step five -- the burden shifts to the 

Commissioner to show that the claimant can perform"other 

work." 20 C.F.R. S 416.920(f). "Other work" must consist of 

jobs that exist in significant numbers in the national 

economy that the claimant can perform given his age, 

education, past work experience, and residual functional 

capacity. Plummer, 186 F.3d at 428. At the fourth and fifth 

steps, the ALJ often seeks advisory testimony from a 
vocational expert. Id. In addition, the ALJ will generally 

consult the Dictionary of Occupational Titles (DOT), a 

publication of the United States Department of Labor that 

contains descriptions of the requirements for thousands of 

jobs that exist in the national economy, in order to 

determine whether any jobs exist that a claimant can 

perform. 

III. 

During the hearing held to consider the Commissioner’s 

denial of benefits, the ALJ questioned Burns, as did 

counsel. No medical expert testified. The questioning 

focused on the physical limitations alleged by Burns. Burns 

testified to suffering from a variety of limitations, including 

lung cancer, stiffness in his hands, arthritis in his knees, 

back pain, chest pains, breathing problems, high blood 

pressure, poor blood circulation and other heart-related 

problems. Burns also testified that he experienced some 

comprehension problems, had trouble sitting, lifting, and 

walking, and suffered from drowsiness caused by his 

medication. In response to his counsel’s sole -- and 

extremely brief -- line of questioning, Burns testified that 

his drowsiness forces him to sleep two to four hours a day 

in the middle to late afternoon. 

Burns also testified regarding his daily activities. He 

testified that he takes care of his four dogs, one of which is 

a 130 pound German Shepherd, and walks them, 

individually, for fifteen to thirty minutes a day. Further, he 

told the ALJ that he does the laundry, smokes cigars (but 

does not drink or take any nonprescription drugs), makes 

 6 

 

the bed, plays the drums for an hour a day -- albeit in 

what seem to be five-minute increments -- and goes food 

shopping, either alone or with his wife. In addition, he 

testified to having no problem keeping appointments. 

A vocational expert was then called to testify. Testimony 

of vocational experts, as we have said before, "typically 

includes, and often centers upon, one or more hypothetical 

questions posed by the ALJ. . . . The ALJ will normally ask 

the expert whether, given certain assumptions about the 

claimant’s physical capability, the claimant can perform 

certain types of jobs, and the extent to which such jobs 

exist in the national economy." Podedworny , 745 F.2d at 

217. The ALJ asked the vocational expert a series of 

hypothetical questions involving Burns, incorporating a 

number of his alleged limitations. In the second 

hypothetical -- the only one at issue in this appeal -- the 

ALJ stated: "I’d like for you to assume a person of the same 

age, education and work background as Mr. Burns, and 

further assume that the individual is capable of light 

exertional work, provided it involves no more than 

occasional postural activity, and no more than simple 

repetitive one, two-step tasks. Would such an individual be 

able to perform . . . other work?" By "other work," the ALJ 
was referring to work other than the stock position he had 

held at the beer distributor. In response to the ALJ’s 

questioning, the vocational expert concluded that Burns 

could perform other work, naming, as examples, laundry 

sorter, ticket taker, or packer.2 

_________________________________________________________________ 

2. The full exchange reads as follows: 

 Q: I’d like for you to assume a person of the same age, education 

 and work background as Mr. Burns, and further assume that the 

 individual is capable of light exertional work, provided it involves no 

 more than occasional postural activity, and no more than simple 

 repetitive one, two-step tasks. Would such an individual be able to 

 perform the stock position that Mr. Burns performed? 

 A: No. 

 Q: Would such a person be able to perform other work? 

 A: Yes. 

 7 

 

At the close of the hearing, the ALJ granted Burns’ 

counsel’s request to have a consultative psychiatric 

evaluation of Burns conducted, and postponed any decision 

pending the report from that evaluation. 

Thereafter, a consultative psychiatric evaluation was 

conducted by Loren Laviolette, Ed.D. She performed"a 

comprehensive disability psychological evaluation with 

Projective Tests." In her report, Dr. Laviolette detailed the 

tests she administered as well as other findings. One of the 

tests was the Wechsler Adult Intelligence Scale-- Revised 

(WAIS-R) test of intellectual functioning, commonly referred 

to as an IQ test. On ten of the twelve areas of the test, 

Burns scored in the "borderline range of intellectual 

functioning." On what Dr. Laviolette labeled"your best 

predictor of intelligence," vocabulary, however, Burns 

scored in the low average range of intellectual functioning. 

Overall, Burns obtained a verbal score of 75, a performance 

score of 77, and a full scale score of 75. This score placed 

Burns in the borderline range of intellectual functioning. 

Dr. Laviolette conducted two other tests. On the Bender 

Gestalt Test of Visual Perceptual Integration, Dr. Laviolette 

stated that Burns "show[ed] developmental delay and visual 

psychomotor functioning, some problems in integration, 

and also showed some rotations that suggest maybe some 

oppositional tendencies." On the "House, Street, Person 

Test[,] a Projective Test," Dr. Laviolette noted that Burns 

"showed some disassociation" and "did show some 

underlying hostility." 

In addition, Dr. Laviolette made a number of observations 

regarding Burns’ intellectual functioning. For one, she 

_________________________________________________________________ 
 Q: Could you identify a few example [sic] of such work? 

 A: The person could work as a laundry sorter. He could work as a 

 ticket taker. And also as a packer. 

 Q: Do you have numbers for those jobs? 

 A: The laundry sorter, 1400 exist in the region, 60,000 nationally. 

 The ticket taker, 2700 in the region, 250,000 nationally. The packer, 

 3800 regionally and 250,000 nationally. 

 8 

 

observed that Burns’ "communication is adequate, although 

he seems a little flighty." Also, she stated that"[h]e can 

respond to general information at times and then other 

times, he seems very scattered or loose in terms of his 

understanding" and "had some difficulties in the area of 

comprehension." She further noted that he may have "some 

oppositional tendencies." As for Burns’ overall functioning, 

Dr. Laviolette opined: 

 [I]n terms of occupational adjustment, I would say he’d 

 work fair, at best. In terms of work rules, his common 

 sense is more in the Borderline range. His general 

 intellectual functioning is there. Relating to coworkers, 

 he’s kind of hostile. . . . His judgment is borderline. . . . 

 His interaction with an authority figure, he would need 

 an authority figure to keep an eye on him. . . . 

 Functioning independently, again, he’s borderline. He 

 would be fair, at best. His attention and concentration 

 was in the Borderline range of intellectual functioning. 

 His Verbal and Performance test scores were 

 consistently in the Borderline range. He would not be 

 good at doing complex or detailed types of task. He 

 would only be able to do simple tasks in a fair way at 

 best. . . . He behaved in an emotionally stable manner 

 fair, at best. Again, he does show some flightiness of 

 ideas, disassociated kind of ways, and he shows 

 underlying hostility. In a social situation, he does try to 

 avoid trouble, but he would need supervision, and he 

 seems to have some loose associations that some 

 people would just wonder where he is coming from. . . . 

 Reliability: He is borderline in terms of his general 

 intellectual functioning. 

As noted above, the ALJ did not order a supplemental 

hearing after receiving Dr. Laviolette’s report, nor did Burns 

request one. 

On March 8, 2000, the ALJ issued his ruling denying 

benefits. In his opinion, the ALJ detailed his findings at all 

five steps of the evaluation process. As for step one, the 

ALJ found that Burns had not been engaged in substantial 

gainful activity since 1986, when he worked for the beer 

distributor. At step two, the ALJ determined that the 

medical evidence established that Burns had three severe 

 9 
 

impairments: coronary artery disease, a back disorder, and 

borderline intellectual functioning. The ALJ, however, did 

not find these impairments to meet or equal the criteria of 

any of the impairments contained in the Listing of 

Impairments; thus, the ALJ moved to step four. At step 

four, the ALJ found that Burns was unable to perform his 

past relevant work at the beer distributor, and moved to 

step five. 

It was at step five of the evaluation process that the ALJ 

found Burns not disabled. In making this determination, 

the ALJ noted that he took into consideration a number of 

factors. He noted that Burns was considered a younger 

individual, had completed school only up to the tenth 

grade, and had only unskilled work experience. The ALJ 

also noted his conclusions regarding Burns’ allegations of 

his physical and mental limitations. He found Burns’ 

assertion that he had lung cancer and arthritis"medically 

indeterminable," and that Burns’ alleged pain in both his 

knees and his alleged hypertension was "non-severe." In 

addition, the ALJ apparently found Burns’ allegations of 

chest, back, and knee pain, as well as the alleged 

drowsiness caused by his medication, not fully credible. 

Most importantly, the ALJ concluded that Burns retains 

"the mental residual functional capacity to perform simple 

repetitive tasks" as well as "the residual functional capacity 

for a range of light exertional work and occasionally can 

climb, balance, stoop, kneel, crouch and crawl, and 

perform simple repetitive tasks." The District Court, upon 

the recommendation of the magistrate judge, upheld the 

ALJ’s ruling in its entirety. 

IV. 

On appeal, Burns urges that the ALJ committed a 

number of errors -- that we summarized at the outset -- 

warranting either remand or outright reversal. We address 

these arguments in turn. 

A. 

Initially, Burns contends that the vocational expert’s 

testimony did not provide substantial evidence because the 

 10 

 

ALJ’s questioning of the vocational expert was deficient. 

Specifically, Burns argues that the hypothetical questions 

posed by the ALJ to the vocational expert regarding Burns’ 

residual functional capacity improperly failed to incorporate 

Burns’ borderline intellectual functioning. We agree. 

At the hearing, the ALJ solicited testimony from the 

vocational expert through a series of hypothetical 

questions. Again, in the hypothetical question at issue here, 

the ALJ stated: "I’d like for you to assume a person of the 

same age, education and work background as Mr. Burns, 
and further assume that the individual is capable of light 

exertional work, provided it involves no more than 

occasional postural activity, and no more than simple 

repetitive one, two-step tasks. Would such an individual be 

able to perform . . . other work?"3 In response, the 

vocational expert concluded that Burns could work as a 

laundry sorter, ticket taker, or packer. The ALJ adopted 

this conclusion for his finding that Burns could make a 

successful vocational adjustment to work that exists in 

significant numbers in the national economy, as required 

for step five in the evaluation process. 

Burns argues that this hypothetical question did not take 

into account his deficiency in intellectual functioning as 

disclosed in Dr. Laviolette’s report. Quite clearly, the ALJ 

did not pose any questions to the vocational expert based 

on Dr. Laviolette’s report -- the report did not exist at the 

time of the hearing. Nevertheless, the Commissioner 

contends that the ALJ’s use of the factor of "simple 

repetitive one, two-step tasks" was sufficiently descriptive to 

encompass the post-hearing findings of Dr. Laviolette. Our 

case law, however, directs that greater specificity is 

required. 

Discussing hypothetical questions posed to vocational 

experts, we have said that "[w]hile the ALJ may proffer a 

variety of assumptions to the expert, the vocational expert’s 

_________________________________________________________________ 

3. Although the ALJ asked the vocational expert other hypothetical 

questions, those questions are not at issue here because, in them, the 

ALJ asked the vocational expert to make assumptions regarding Burns’ 

residual functional capacity that the ALJ did not eventually adopt as a 

part of his findings of fact -- a conclusion that we do not disturb. 

 11 

 

testimony concerning a claimant’s ability to perform 

alternative employment may only be considered for 

purposes of determining disability if the question accurately 

portrays the claimant’s individual physical and mental 

impairments." Podedworny, 745 F.2d at 218. A hypothetical 

question posed to a vocational expert "must reflect all of a 

claimant’s impairments." Chrupcala v. Heckler , 829 F.2d 

1269, 1276 (3d Cir. 1987) (emphasis added). Where there 

exists in the record medically undisputed evidence of 

specific impairments not included in a hypothetical 

question to a vocational expert, the expert’s response is not 

considered substantial evidence. Podedworny, 745 F.2d at 

218 (citing Wallace v. Secretary of Health & Human Servs., 

722 F.2d 1150, 1155 (3d Cir. 1983)). 

Here, the ALJ’s hypothetical did not refer to any of the 

type of limitations later outlined in Dr. Laviolette’s report. 

Instead, it merely referred to "simple repetitive one, twostep tasks." This phrase, however, does not specifically 

convey Burns’ intellectual limitations referenced in Dr. 

Laviolette’s report. Rather, it could refer to a host of 

physical and mental limitations, such as a person’s 
mechanical or small motor skills, his lack of initiative or 

creativity, or a fear of, or unwillingness to take on, 

unfamiliar tasks. While the phrase could encompass a lack 

of intelligence, it does not necessarily incorporate all of the 

borderline aspects of Burns’ intellectual functioning or the 

other deficiencies identified in Dr. Laviolette’s report. For 

example, it certainly does not incorporate Dr. Laviolette’s 

finding that Burns is borderline in the areas of reliability, 

common sense, ability to function independently, and 

judgment, or that he manifests flightiness, disassociation, 

oppositional tendencies, and difficulties in comprehension. 

As a result, the hypothetical did not include all of the 

limitations suffered by Burns, thus making it deficient. 

The Commissioner relies upon the opinion of the Court of 

Appeals for the Eighth Circuit in Howard v. Massanari, 255 

F.3d 577 (8th Cir. 2001), as authority for finding the 

hypothetical to be sufficiently inclusive of Burns’ 

limitations. In Massanari, the Court held that an ALJ’s 

hypothetical question that asked the vocational expert to 

assume that the claimant was able to do "simple, routine, 

 12 

 

repetitive work" accounted for the claimant’s borderline 

intellectual functioning and other deficiencies. Id. at 582. 

But, Massanari can be readily distinguished on its facts. 

The Massanari Court clearly noted that the deficiencies in 

intellectual functioning that the psychological evaluation 

identified were in "concentration, persistence,[and] pace." 

Id. These few specific deficiencies, the court concluded, 

were accounted-for in the phrase used in the hypothetical 

-- "simple, routine, repetitive work." Burns’ mental 

deficiencies, however, go far beyond those of the claimant 

in Massanari. The phrase "simple, routine, repetitive work" 

(or the similar phrase used in Burns’ hypothetical) is not 

sufficiently descriptive of the previously noted deficiencies 

that Dr. Laviolette diagnosed. 

Because the ALJ based his finding, at step five of the 

evaluation process, that Burns could perform a significant 

number of jobs in the national economy on this deficient 

hypothetical question, we find that it was not based on 

substantial evidence. See Chrupcala, 829 F.2d at 1276. 

Under these circumstances, once Dr. Laviolette’s report 

detailing Burns’ intellectual functioning limitations had 

been obtained, the ALJ should have held another hearing 

so that a complete hypothetical could have been posed to 

the vocational expert. 

The deficiency in the hypothetical, along with the fact -- 

as detailed below -- that we reject Burns’ contention that, 

based on the record before us, he meets or equals an 

impairment found in the Listing of Impairments, 

necessitates that we remand to the Commissioner for 

further proceedings. See Wallace v. Secretary of Health and 

Human Servs., 722 F.2d 1150, 1155 (3d Cir. 1983). 

B. 
Burns also claims that the ALJ erred in not finding that 

he suffers from "mental retardation," as defined in the 

Listing of Impairments. 20 C.F.R. Pt. 404, Subpt. P, Appx. 

I S 12.05. Accordingly, Burns claims we should find him per 

se disabled, making remand based on the deficient 

hypothetical unnecessary. We disagree. 

 13 

 

Under S 12.05 of the Listing of Impairments, a person 

suffering from "mental retardation" is considered disabled if 

he can demonstrate, in addition to other requirements, that 

he falls within one of its four sub-sections outlining 

sufficient degrees of severity.4 Burns alleges that he falls 

within sub-section "C," which requires "[a] valid verbal, 

performance, or full scale IQ of 60 through 70 and a 

physical or other mental impairment imposing an 

additional and significant work-related limitation." 

_________________________________________________________________ 

4. Section 12.05 reads in whole part: 

 12.05 Mental retardation. Mental retardation refers to significantly 

 subaverage general intellectual functioning with deficits in adaptive 

 functioning manifested during the development period; i.e., the 

 evidence demonstrates or supports onset of the impairment before 

 age 22. 

 The required level for this disorder is met when the requirements 

 in A, B, C, or D are satisfied. 

 A. Mental incapacity evidenced by dependence upon others for 

 personal needs (e.g. toileting, eating, dressing, or bathing) and 

 inability to follow directions, such that the use of standardized 

 measures of intellectual functioning is precluded; 

 OR 

 B. A valid verbal, performance, or full scale IQ of 59 or less; 

 OR 

 C. A valid verbal, performance, or full scale IQ of 60 through 70 

 and a physical or other mental impairment imposing an additional 

 and significant work-related limitation of function; 

 OR 

 D. A valid verbal, performance, or full scale IQ of 60 through 70 

 resulting in at least two of the following: 

 1. Marked restriction of activities of daily living; or 

 2. Marked difficulties in maintaining social functioning; or 

 3. Marked difficulties in maintaining concentration, persistence, or 

 pace; or 
 4. Repeated episodes of decompensation, each of extended 

 duration. 

20 C.F.R. Pt. 404, Subpt. P, Appx. I, S 12.05. 

 14 

 

We have stated that under sub-section C, "a claimant is 

presumptively disabled if a) he is mentally retarded, as 

evidenced by an IQ between 60 and 70, and has been so 

since before the age of 22; and b) he has another 

impairment, in addition to the mental retardation, that 

imposes an additional and significant work-related 

limitation." Williams, 970 F.2d at 1184. Thus, Burns first 

must show that his IQ score is between 60 and 70. As 

stated above, Burns scored a verbal score of 75, a 

performance score of 77, and a full scale score of 75 on the 

IQ test administered by Dr. Laviolette. Because the 

Commissioner uses the lowest of the three scores in the 

WAIS-R series of tests, see 20 C.F.R. Pt. 404, Subpt. P, 

App. I, S 12.00(D), Burns’ IQ is 75 for purposes of his SSI 

claim. 

Based on his score, then, Burns’ claim clearly fails. He 

does not have an IQ score between 60 and 70. Burns, 

however, argues that, in determining his IQ score for 

purposes of the regulation, the Commissioner should take 

into account the five-point margin of error for IQ scores, as 

outlined in the Diagnostic and Statistical Manual of Mental 

Disorders 41 (4th ed. rev. 2000) ("DSM-IV").5 Accordingly, 

Burns urges that his IQ should be considered to be 70. 

Burns finds support for his argument in several opinions of 

district courts within our circuit. See Gist v. Barnhart, No. 

Civ. A. 01-2754, 2002 WL 1932808, at *2 (E.D. Pa. Aug. 2, 

2002); Gorecki v. Massanari, 197 F. Supp. 2d 154, 163 

(M.D. Pa. 2001); Hampton v. Apfel, No. Civ. A. 97-6651, 

1999 WL 46614, at *3 (E.D. Pa. January 6, 1999); Halsted 

v. Shalala, 862 F. Supp. 86, 90 (W.D. Pa. 1994). But we 

note that there are a fair number of opinions adopting the 

opposing viewpoint, including two opinions from district 

courts within our circuit. See Williams v. Apfel , No. 99-039, 

2000 WL 376390, at *12 (D. Del. March 30, 2000) (refusing 

to take into consideration a measurement error of 5 points); 

Colavito v. Apfel, 75 F. Supp. 2d 385, 402-04 (E.D. Pa. 

1999) (same); see also Anderson v. Sullivan, 925 F.2d 220, 

_________________________________________________________________ 

5. The Commissioner does not dispute the existence of this margin of 

error. It should be noted, however, that the DSM-IV lists the five points 

as an approximate error range. Diagnostic and Statistical Manual of 

Mental Disorders 42 (4th ed. rev. 2000). 

 15 

 

223 (7th Cir. 1991) (holding that it was proper not to factor 

an error range into a claimant’s IQ); Lawson v. Apfel, 46 F. 

Supp. 2d 941, 948 (W.D. Mo. 1998) (refusing to take into 

consideration a measurement error of 5 points); Bendt v. 
Chater, 940 F. Supp. 1427, 1431 (S.D. Iowa 1996) (same). 

We conclude that if we were to read an error range of five 

points into the regulation, it would violate the plain 

language of the regulation, which requires "[a] valid verbal, 

performance, or full scale IQ of 60 through 70." 20 C.F.R. 

Pt. 404, Subpt. P, Appx. I, S 12.05. The basic tenets of 

statutory construction hold true for the interpretation of a 

regulation such as this, see Idahoan Fresh v. Advantage 

Produce, Inc., 157 F.3d 197, 202 (3d Cir. 1998), and we 

cannot ignore the plain wording of the regulation. See 

Wilson v. United States Parole Comm’n, 193 F.3d 195, 198- 

200 (3d Cir. 1999) (refusing to defer to the Sentencing 

Commission’s interpretation of one of its own regulations 

where that regulation is clear and unambiguous). Where 

the language of a regulation is plain and unambiguous, as 

it is here, further inquiry is not required. Idahoan Fresh, 

157 F.3d at 202. 

Moreover, Burns has not offered any reason why we 

should not assume that the Commissioner, in promulgating 

the regulation, was aware of the standard margin of error 

and could have incorporated or referenced it if the stated 

numbers were to be given an expansive reading.6 

Incorporating the error range would essentially alter the 

regulatory language to say "IQ of 60 through 75," rather 

than "IQ of 60 through 70." We know of no authority 

allowing us to do so. In fact, the true five-point error in 

Burns’ score of 75 could just as easily mean that his actual 

_________________________________________________________________ 

6. Another factor counseling against the incorporation of the error range 

is the fact that, as mentioned above, the regulations already have 

directed that "[i]n cases where more than one IQ is customarily derived 

form the test administered, e.g., where verbal, performance, full scale 

IQs are provided in the Wechsler series, we use the lowest of these in 

conjunction with 12.05." Thus, a policy of giving the claimant the 

"benefit of the doubt" is already incorporated into the regulations. Burns, 

in fact, benefitted from the policy. While he scored a verbal score of 75, 

a performance score of 77, and a full scale score of 75, the regulations 

instruct that his score be considered a 75. 

 16 

 

IQ is 80 rather than 75. So, automatically reading 75 to 

mean "70" could result in a number of persons who are 

clearly not mentally retarded under the regulations 

qualifying for benefits. We will thus not assume that a 

score of 75 should be read as "70." 

Given the plain and unambiguous wording of the statute, 

as well as the absence of a mandate in the regulations to 

consider error ranges where specific IQs are referenced and 

the other concerns detailed above, we find that the 

Commissioner properly refused to factor the possible 

measurement error in calculating Burns’ IQ and that 

Burns, with an IQ of 75, does not meet or equalS 12.05.7 

See also Howard v. Massanari, 255 F.3d 577, 582-83 (8th 

Cir. 2001) (holding that a claimant with an IQ score of 71 
should not be "allowed the benefit of the mental retardation 

categorization"); Cockerham v. Sullivan, 895 F.2d 492, 495- 

496 (8th Cir. 1990) (refusing to give the claimant"the 

benefit of the doubt" and consider an IQ score of 71 

presumptively to establish disability). 

C. 

Accordingly, we conclude that Burns is not per se 

disabled based on the record in its current state, and we 

will remand. But, in so doing, we address three related 

issues raised on appeal that have implications for the ALJ’s 

consideration of the issues on remand. 

_________________________________________________________________ 

7. Burns also argues that the ALJ should have scheduled a 

supplemental hearing in order to receive testimony from a medical expert 

about whether Burns could establish medical equivalency to S 12.05. We 

reject this argument as well. In neither Dr. Laviolette’s report nor 

anywhere else in the record is Burns diagnosed with mental retardation. 

In fact, Dr. Laviolette did not even conclude that Burns could not work. 

Rather, she stated that, for instance, in terms of occupational 

adjustment, Burns’s would perform "fair, at best." While this is not a 

ringing endorsement of his ability to work, it is not a clear statement 

that he could not do so. In addition, S 12.05 requires that the claimant 

initially manifested deficient intellectual functioning before he turned 

twenty-two years old. In Williams v. Sullivan , 970 F.2d 1178, 1185 (3d 

Cir. 1992), we placed this burden on the claimant. Burns has not come 

forward with any proof of this sort. For these two reasons, it was 

reasonable for the ALJ not to have inquired further. 

 17 

 

1. Conflict Between the Dictionary of Occupational Titles 

 and the Testimony of the Vocational Expert 

The Social Security Administration has taken 

administrative notice of the reliability of the job information 

contained in the Dictionary of Occupational Titles, referred 

to above, and often relies upon it at steps four and five of 

the evaluation process. See 20 C.F.R. 416.966(d) (2002). 

Burns argues that the vocational expert’s testimony that he 

could work as a laundry sorter, packer, or ticket taker, 

adopted by the ALJ for his findings of fact, was inconsistent 

with the DOT in several respects, and that any 

inconsistencies should have been explained by the 

vocational expert as well as by the ALJ in his decision. We 

agree. 

Many courts of appeals have opined as to the handling, 

on appellate review, of the situation in which there is an 

unexplained inconsistency or conflict between the DOT and 

the testimony of the vocational expert -- with mixed results 

and varying treatment.8 For two reasons, however, in this 

_________________________________________________________________ 

8. The courts of appeals for four circuits have held that an ALJ may base 

his conclusions on a vocational expert’s testimony that conflicts with the 

DOT. See Carey v. Apfel, 230 F.3d 131, 146 (6th Cir. 2000) ("To the 
extent that there is any implied or indirect conflict between the 

vocational expert’s testimony and the DOT in this case, . . . the ALJ may 

rely upon the vocational expert’s testimony provided that the record 

reflects an adequate basis for doing so."); Jones v. Apfel, 190 F.3d 1224, 

1229-1230 (11th Cir. 1999), cert. denied, 529 U.S. 1089 (2000) ("We 

agree with the Sixth Circuit that when the VE’s testimony conflicts with 

the DOT, the VE’s testimony ‘trumps’ the DOT."); Conn v. Secretary of 

Health & Human Servs., 51 F.3d 607, 610 (6th Cir. 1995) ("[T]he ALJ 

was within his rights to rely solely on the vocational expert’s 

testimony."); Johnson v. Shalala, 60 F.3d 1428, 1435 (6th Cir. 1995) 

("[A]lthough the DOT raises a presumption as to the job classification, it 

is rebuttable. We make explicit here that an ALJ may rely on expert 

testimony which contradicts the DOT, but only insofar as the record 

contains persuasive evidence to support the deviation."). The Court of 

Appeals for the Eighth Circuit, however, has held that an ALJ always 

must prefer the DOT over the testimony of a vocational expert, see Smith 

v. Shalala, 46 F.3d 45, 47 (8th Cir. 1995) ("[W]hen expert testimony 

conflicts with the DOT, the DOT controls."), although the court seems to 

have quickly retreated from that bright-line rule. See Montgomery v. 

 18 

 

instance we need not select from the alternatives chosen by 

the various courts. First, we will remand, and the ALJ can 

remedy the situation if it should arise again. Second, the 

Social Security Administration recently has issued a ruling 

that squarely addresses how this situation should be 

handled. See 20 C.F.R. S 402.35(b)(1) (stating that Social 

Security Rulings "are binding on all components of the 

Social Security Administration"). Social Security Ruling 00- 

4p requires that the ALJ ask the vocational expert whether 

any possible conflict exists between the vocational expert’s 

testimony and the DOT, and that, if the testimony does 

appear to conflict with the DOT, to "elicit a reasonable 

explanation for the apparent conflict." The Ruling requires 

that the explanation be made on the record and that the 

ALJ explain in his decision how the conflict was resolved. 

Thus, on remand, the conflicts that persist, if any, should 

be treated accordingly. 

The record on appeal does reflect a number of conflicts 

between the vocational expert’s testimony and the DOT that 

were not addressed by either the vocational expert or the 

ALJ. Because they could recur on remand, we address 

them. 

_________________________________________________________________ 

Chater, 69 F.3d 273, (8th Cir. 1995) ("The DOT classifications may be 

rebutted, however, with VE testimony which shows that ‘particular jobs, 

whether classified as light or sedentary, may be ones that a claimant can 

perform.’ " (citation omitted)). Other courts of appeals have adopted a 

middle view. These courts require an ALJ to explain any decision to 

prefer the testimony of a vocational expert over the DOT. See Haddock 

v. Apfel, 196 F.3d 1084, 1091 (10th Cir. 1999) ("[T]he ALJ must 

investigate and elicit a reasonable explanation for any conflict between 

the Dictionary and expert testimony before the ALJ may rely on the 

expert’s testimony as substantial evidence to support a determination of 

nondisability."); see also Mimms v. Heckler , 750 F.2d 180, 186 (2d Cir. 

1984) ("Although both the ALJ in his opinion, and the vocational expert 
in her testimony at the hearings, concluded that the claimant’s 

vocational capacity was for sedentary, semi-skilled positions, the jobs 

selected by the expert and relied upon by the ALJ, as being appropriate, 

require the capacity to perform light work. Consequently, we must 

conclude that the Secretary failed to demonstrate the existence of 

substantial gainful employment of a sedentary nature, which the 

claimant was capable of performing."). See generally Donahue v. 

Barnhart, 279 F.3d 441, 445 (7th Cir. 2002). 

 19 

 

Initially, Burns notes that the DOT does not list the job 

of "laundry sorter." See 1 United States Dep’t of Labor, 

Dictionary of Occupational Titles S 361 et seq. (4th ed. 1991) 

("Laundering Occupations"). He submits that even if the 

vocational expert meant to name the position of"laundry 

worker," this job is divided into laundry worker I, laundry 

worker II, and laundry worker III. See 1 Dictionary of 

Occupational Titles SS 361.685-014, 361.685-018, & 

369.387-010. Both laundry worker I and II require the 

ability to do "medium work," and laundry worker III 

requires the ability to do "semi-skilled work." Thus, the 

vocational expert’s testimony that he could work as a 

"laundry sorter" appears to conflict with the ALJ’s finding 

that he could perform only light work that was unskilled. 

We have reservations regarding Burns’ argument. We 

have examined the DOT and note that, in addition to 

laundry worker I, II, and III, the job of "classifier" is listed 

with the sorting of laundry as its chief task. The DOT 

describes this job as involving only light, unskilled work. 

See 1 Dictionary of Occupational TitlesS 361.685-014. 

Accordingly, we are not convinced that the vocational 

expert meant to refer to either laundry worker I, II or III, 

and, therefore that his testimony necessarily conflicted with 

the DOT. On remand, this should be clarified, and any 

conflict explained in accordance with Ruling 00-4p, if the 

vocational expert adopts the same conclusion. 

A similar dilemma exists in connection with the 

vocational expert’s testimony that Burns could work as a 

"packer." As with "laundry sorter," we cannot find -- and 

counsel has not pointed to -- any job listed in the DOT 

under the specific title "packer." Rather, there are various 

types of "packers." For example, the DOT lists the jobs of 

"dental floss packer," S 920.687-082,"fish packer," 

S 920.687-086, "packer (tobacco)," S 920.687-130, and 

"packer, agricultural produce." S 920.687-134. These jobs 

require an ability to do work ranging from light to heavy, 

with the majority seeming to require medium work. 

Therefore, here it also is not clear whether the testimony of 

the vocational expert is consistent with the DOT. The ALJ 

asked the vocational expert to assume an ability to do light 

exertional work, but the vocational expert quite possibly 

 20 

 

chose work that required a greater work capacity. Again, on 
remand, this should be clarified, and any conflict explained 

in accordance with Ruling 00-4p. 

Burns makes an additional argument that his aptitude 

level per se disqualifies him from any of the jobs specified 

by the vocational expert based on the aptitude levels for 

those jobs set forth in the DOT. He asserts that his IQ 

score of 75 on the WAIS-R test places his aptitude level in 

the lowest ten-percent of the population, and that, 

according to the DOT, the jobs for which he was found 

qualified require an aptitude level above the lowest tenpercent of the population. Because we find no such levels 

incorporated into the DOT, we reject Burns’ argument. 

While aptitudes are discussed in various occupational 

handbooks, see, e.g., J. Michael Farr, et al., Guide for 

Occupational Exploration (3d ed. 2001), aptitude levels are 

not in the DOT or any other source of which the Social 

Security Administration has taken administrative notice. 

Therefore, the DOT and testimony of the vocational expert 

was not necessarily inconsistent in this regard, so the duty 

on the part of the ALJ to inquire into conflicts did not arise.9 

2. Residual Functional Capacity Based on Physical 

 Exertion Limitations 

Burns also takes issue with the ALJ’s determination of 

his residual functional capacity based on his physical 

exertion limitations -- i.e., his ability to work despite his 

physical limitations -- contending that the ALJ’s 

determination was not supported by substantial evidence. 

We disagree.10 

In making disability determinations, the Social Security 

Administration looks to see whether a claimant can perform 

the physical exertion requirements of either his past 

relevant work or jobs that exist in significant numbers in 

the economy. The physical exertion requirements are 

_________________________________________________________________ 

9. Burns, however, is certainly free on remand to examine the vocational 

expert based on the aptitude level required for a job as detailed in other 

occupational handbooks. 

10. We emphasize that this relates only to exertional aspects of Burns’ 

residual functional capacity. 

 21 

 

labeled as sedentary, light, medium, heavy, or very heavy 

work. 20 C.F.R. S 416.967 (2002). The ALJ determined that 

Burns’ exertional residual functional capacity enabled him 

to engage in a "slightly reduced range of light work." Light 

exertional work "generally requires the ability to stand and 

carry weight for approximately six hours of an eight hour 

day."11 Jesurum, 48 F.3d at 119 (citing Social Security 

Ruling 83-10). 

Basically, Burns asks us to reject the ALJ’s findings 

regarding residual functional capacity because he disagrees 
with the emphasis the ALJ placed on those portions of his 

testimony regarding his subjective complaints of pain and 

his exertional limitations. If his testimony regarding his 

pain and limitations were credited fully, he argues, the ALJ 

could not have found him able to perform light exertional 

work. 

We examine the ALJ’s conclusions as to Burns’ residual 

functional capacity with the deference required of the 

substantial evidence standard of review. The ALJ, 

nonetheless, must have evaluated all relevant evidence, 

Fargnoli v. Halter, 247 F.3d 34, 40-41 (3d Cir. 2001), and 

explained his reasons for rejecting any such evidence. 

Burnett v. Commissioner of Soc. Sec. Admin., 220 F.3d 112, 

122 (3d Cir. 2000). He also must have given Burns’ 

subjective complaints "serious consideration," Mason v. 

Shalala, 994 F.2d 1058, 1067 (3d Cir. 1993), and made 

specific findings of fact, including credibility, as to Burns’ 

_________________________________________________________________ 

11. The Social Security Administration has more fully defined the 

physical exertion requirements of "light work" in 20 C.F.R. S 416.967(b): 

 Light work involves lifting no more than 20 pounds at a time with 

 frequent lifting or carrying of objects weighing up to 10 pounds. 

 Even though the weight lifted may be very little, a job is in this 

 category when it requires a good deal of walking or standing, or 

 when it involves sitting most of the time with some pushing and 

 pulling of arm or leg controls. To be considered capable of 

 performing a full or wide range of light work, you must have the 

 ability to do substantially all of these activities. If someone can do 

 light work, we determine that he or she can also do sedentary work, 

 unless there are additional limiting factors such as loss of fine 

 dexterity or inability to sit for long periods of time. 

 22 

 

residual functional capacity. Burnett, 220 F.3d at 120; see 

also Cotter v. Harris, 642 F.2d 700, 704 (3d Cir. 1981). 

Here, the ALJ complied with these mandates. He 

specifically addressed Burns’ testimony regarding his pain 

and his limitations in the March 8, 2000 opinion. He found 

that the pain was not disabling and that Burns’ testimony 

as to the impact of his impairments on his ability to work 

was "not fully credible." 

Importantly, Burns does not point to any relevant 

medical opinion that supports his allegations that his pain 

and exertional limitations are more severe than the ALJ 

found them to be. Cf. Cotter, 642 F.2d at 706-07 

(remanding to the ALJ to reconsider a denial of disability 

benefits because the ALJ’s opinion did not address 

contradictory medical evidence). Instead, he notes only his 

testimony before the ALJ. As for pain, Burns did testify to 

experiencing various forms of pain, and the ALJ clearly 

addressed that testimony and did not reject Burns’ 

allegations completely. As already mentioned, the ALJ 

found that Burns did suffer from chronic back pain. 
Nevertheless, the ALJ noted that other parts of Burns’ 

testimony, namely those addressing the number and type of 

activities he engages in on a daily basis, seemed to belie his 

assertion that the pain is disabling. In fact, as the ALJ 

noted, Burns specifically stated that he does not experience 

pain when he plays the drums. Likewise, Burns’ testimony 

regarding his limitations does not seem consistent with 

other parts of his testimony. While he testified that he can 

only lift one pound and could not work an eight-hour day, 

he admittedly engages in activities -- most obviously, 

taking care of his four dogs and playing drums -- that 

require him to be able to lift more than a pound and to 

exert at least some effort.12 With this contradictory 

testimony and the lack of significant medical evidence or a 

medical opinion fully supporting his subjective assessment 

_________________________________________________________________ 

12. Further evidence that the ALJ did not ignore Burns’ allegations of his 

own limitations is the fact that the ALJ expressly disagreed with the 

finding, made by the state agency, that Burns could do medium 

exertional work, and, instead, determined that Burns could do light 

exertional work at most. 

 23 

 

of his limitations or complaints of pain, cf. Mason, 994 F.2d 

at 1067-68 ("Where medical evidence does support a 

claimant’s complaints of pain, the complaints should then 

be given ‘great weight’ and may not be disregarded unless 

there exists contrary medical evidence."), we cannot say 

that substantial evidence did not support the ALJ’s ruling 

or his rejection of parts of Burns’ testimony as not fully 

credible. Cf. Van Horn v. Schweiker, 717 F.2d 871, 873-74 

(3d Cir. 1983) (stating that an ALJ should note in his 

decision when he did not find a witness credible). 

Accordingly, we will not disturb the ALJ’s determination 

that Burns’ exertional residual functional capacity enabled 

him to engage in light work. 

3. Residual Functional Capacity as Affected by Stress 

 and the Side Effects of Medication 

According to Burns, the ALJ also erred in failing to take 

into account the fact of stress or the impact of the side 

effects of Burns’ medication. We reject this argument as 

well. 

The only reference to stress in the record is contained in 

Dr. Laviolette’s report. Dr. Laviolette, however, does not 

document Burns’ stress. Rather, the report mentions that 

Burns told Dr. Laviolette that he did not "feel like he could 

handle stress real well without the medication, and he feels 

the medication makes him drowsy." Burns urges that this 

mere mention of stress to Dr. Laviolette triggered a duty on 

the part of the ALJ to ask the vocational expert about the 

effects of the "limitations on Mr. Burns’ ability to handle 

work stress." Burns cites to Social Security Ruling 85-15 as 

support of his argument. Although Ruling 85-15 does direct 
an ALJ to consider nonexertional impairments, such as 

stress, in determining whether a person’s residual 

functional capacity enables him to work, we do not believe, 

absent some medical evidence or diagnostic opinion, that 

either the statement made to Dr. Laviolette or the passing 

reference in Dr. Laviolette’s report triggered an obligation to 

further inquire into stress as a disabling factor. 

As for the side effects of the medication, the ALJ 

specifically addressed this issue in his opinion. Cf. Stewart 

v. Secretary of Health, Educ., & Welfare, 714 F.2d 287, 290 

 24 

 

(3d Cir. 1983) (refusing to find that the ALJ’s"implicit 

rejection" of the claimant’s side effects was supported by 

substantial evidence where the ALJ gave no indication in 

his opinion that the issue was considered). In rejecting 

Burns’ claim that he could not work due to the side effects 

of the medication he took -- namely drowsiness-- the ALJ 

noted that the record contained "no significant complaints 

of side effects from medication," that Dr. Laviolette noted 

that Burns did not, in fact, seem drowsy at the consultative 

examination, and that Burns did not seem drowsy at the 

administrative hearing. Likewise, there was no medical 

evidence as to any physical limitations resulting from any 

side effects from medication. Drowsiness often accompanies 

the taking of medication, and it should not be viewed as 

disabling unless the record references serious functional 

limitations. Here, there is no such evidence. Thus, the 

ALJ’s decision to discount Burns’ allegations of side effects 

was based on substantial evidence. 

V. 

For the foregoing reasons, we will affirm in part, reverse 

in part, and remand to the District Court with instructions 

to return the case to the Commissioner for further 

proceedings in accordance with this opinion. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 25