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Precedential or Non-Precedential: Precedential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, 

, 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, 

, 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 , 

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

, 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., 

, 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, 

, 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, 

, 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, 

, 526 (1990); Williams v. Sullivan, 

,
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. 

. At the fourth and fifth
steps, the ALJ often seeks advisory testimony from a
vocational expert. 

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." 

. A hypothetical
question posed to a vocational expert "must reflect all of a
claimant’s impairments." Chrupcala v. Heckler , 

, 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. 

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

, 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, 

(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. 

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."

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 

.
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., 

, 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." 

. 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, 

, at *2 (E.D. Pa. Aug. 2,
2002); Gorecki v. Massanari, 

, 163
(M.D. Pa. 2001); Hampton v. Apfel, No. Civ. A. 97-6651,

, at *3 (E.D. Pa. January 6, 1999); Halsted
v. Shalala, 

, 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,

, at *12 (D. Del. March 30, 2000) (refusing
to take into consideration a measurement error of 5 points);
Colavito v. Apfel, 

, 402-04 (E.D. Pa.
1999) (same); see also Anderson v. Sullivan, 

,
_________________________________________________________________

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, 

, 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., 

, 202 (3d Cir. 1998), and we
cannot ignore the plain wording of the regulation. See
Wilson v. United States Parole Comm’n, 

, 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 

.

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, 

, 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, 

, 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 , 

, 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, 

, 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, 

,
1229-1230 (11th Cir. 1999), cert. denied, 

(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., 

, 610 (6th Cir. 1995) ("[T]he ALJ
was within his rights to rely solely on the vocational expert’s
testimony."); Johnson v. Shalala, 

, 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, 

, 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, 

, (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, 

, 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 , 

, 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, 

, 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 

(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, 

, 40-41 (3d Cir. 2001), and
explained his reasons for rejecting any such evidence.
Burnett v. Commissioner of Soc. Sec. Admin., 

,
122 (3d Cir. 2000). He also must have given Burns’
subjective complaints "serious consideration," Mason v.
Shalala, 

, 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. 

; see
also Cotter v. Harris, 

, 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. 

(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. 

("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, 

, 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, 

, 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