Burns v. Comm Social Security

Opinions of the United

2002 Decisions 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Precedential or Non-Precedential: Precedential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 exercise-

induced 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 cross-

motions 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, two-

step 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

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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 ten-

percent 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