Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-6-2005

Jackson v. Comm Social Security
Precedential or Non-Precedential: Non-Precedential

Docket No. 04-1858




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                                                              NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT

                                      No. 04-1858

                          TAMARA A. JACKSON, Appellant

                                            v.

  JOANNE B. BARNHART, COMM ISSIONER OF SOCIAL SECURITY, Appellee


                    On Appeal from the United States District Court
                         for the Western District of Pennsylvania
                                 (D.C. Civil No. 03-142)
                   District Judge: The Honorable Sean J. McLaughlin


                                    ______________

                      Submitted Under Third Circuit LAR 34.1(a)
                                 December 17, 2004


                   Before: NYGAARD and GARTH, Circuit Judges.
                            and POLLAK,* District Judge.

                                 (Filed January 6, 2005)
                                    ______________

                              OPINION OF THE COURT

                                   _______________


POLLAK, District Judge.


      *
       Honorable Louis H. Pollak, Senior District Judge for the United States District
Court of the Eastern District of Pennsylvania, sitting by designation.
       This case arises from the denial of Tamara A. Jackson's application for disability

insurance benefits and supplemental security income under Titles II and XVI of the Social

Security Act, 42 U.S.C. §§§§ 401-433 and 1381-1381c ("Act"). Ms. Jackson appeals the

district court's order granting summary judgment in favor of the Commissioner of the

Social Security Administration. For the reasons that follow, we will affirm.




I.




       Inasmuch as we write only for the parties it is not necessary to recite the facts of

this case in detail. Ms. Jackson, who suffers from bipolar disorder and a borderline

personality disorder, presents three claims to this court: First, she maintains that the

Administrative Law Judge (“ALJ”) erred in failing to comply with Social Security Ruling

00-4p, which requires that the ALJ ask a testifying vocational expert (“VE”) whether

there are any conflicts between his testimony and the Dictionary of Occupational Titles

(“DOT”). Second, she argues that the ALJ failed to consider pertinent treatment records

that would support the treating psychiatrist’s medical source statement, and erred by

giving more weight to the opinions of the non-examining state agency physician than to

her treating psychiatrist. Finally, she contests the ALJ’s adverse credibility determination.




                                               2
We consider each claim in turn.1




A. Social Security Ruling 00-4p




       On December 4, 2000, SSR 00-4p came into effect.2 It states, inter alia, that

“[w]hen a VE or VS provides evidence about the requirements of a job or occupation, the

adjudicator has an affirmative responsibility to ask about any possible conflict between

that VE or VS evidence and information provided in the DOT....” Because the ALJ

adopted the VE’s testimony without asking the VE about any possible conflict, Ms.

Jackson maintains that the ALJ’s non-disability determination cannot be supported by

substantial evidence as a matter of law.

       Ms. Jackson’s argument is unavailing. By its language, SSR 00-4p requires the

ALJ to inquire about potential conflicts only where the VE “provides evidence about the



       1
        We have jurisdiction over this summary judgment motion under 28 U.S.C. §§
1291. Fargnoli v. Halter, 

, 36 (3d Cir. 2001). We exercise plenary review over
decisions to grant and deny motions for summary judgment. Sutton v. Rasheed, 

, 248 (3d Cir. 2003). This means that we exercise de novo review of all legal
questions presented by the Commissioner's final judgment, but review the factual findings
only to see if they are supported by substantial evidence in the record. Substantial
evidence has been defined as such relevant evidence as a reasonable mind might accept as
adequate. Where the ALJ's findings of fact are supported by substantial evidence, we are
bound by those findings, even if we would have decided the factual inquiry differently.

.
       2
       Ms. Jackson’s hearing before the ALJ occurred on September 11, 2002. The ALJ
was thus bound by SSR 00-4p.

                                             3
requirements of a job or occupation,” SSR 00-4p. Importantly, the VE did not describe

the requirements of the jobs he believed Ms. Jackson could perform despite her

impairments (AR 52). As such, the ALJ was not required to ask the VE about whether

this portion of the VE’s testimony conflicted with the DOT. While the VE did describe

the requirements of Ms. Jackson’s past employment (AR 51), the ALJ found that “the

claimant cannot return to the nonexertional demands of her past relevant work.” As such,

even if it was error for the ALJ to fail to solicit testimony about potential conflicts

between this portion of the VE’s testimony and the DOT, the error was harmless. Where

substantial evidence supports the ALJ’s opinion and where the failure to solicit the

testimony contemplated in SSR 00-4p is harmless, this court will not reverse the ALJ’s

decision. See Boone v. Barnhart, 

, 209 (3d Cir., 2003) (“Given ... the

conflict between the VE's testimony and the DOT -- which worked to Boone's

disadvantage -- ..., and the failure of the VE and the ALJ to acknowledge (much less

explain) the conflict, we conclude that the VE's testimony does not by itself provide

substantial evidence of a significant number of jobs in the economy that Boone can

perform. We must consider, however, whether the record otherwise contains such

evidence.”). Cf. Jones v. Barnhart, 

, 506 (3d Cir., 2004) (“[T]his Court has

not adopted a general rule that an unexplained conflict between a VE's testimony and the

DOT necessarily requires reversal.”) (internal citations omitted).




                                               4
B. The ALJ’s Treatment of the Medical Evidence




       Ms. Jackson argues that the ALJ placed undue weight on the report of a non-

examining physician prepared over a year before her hearing. She argues further that the

ALJ inappropriately discounted a report submitted by her treating psychiatrist and failed

to consider the treatment notes of this physician that would have sustained a finding of

disability. As such, she maintains, the ALJ erred.

       Ms. Jackson is incorrect. As his opinion reveals, the ALJ considered the full scope

of treatment notes submitted by her treating psychiatrist, Dr. Booker Evans. He correctly

found that the report Dr. Evans submitted was less probative than the other evidence in

the record because it provided only check-boxes with no place for Dr. Evans to offer

explanations for his entries. See Mason v. Shalala, 

, 1065 (3d Cir., 1993)

(“Form reports in which a physician's obligation is only to check a box or fill in a blank

are weak evidence at best.”). More significantly, the ALJ found that Dr. Evans’ entries

conflicted with the treatment notes Dr. Evans had entered throughout the time Ms.

Jackson was in his care. The entries also conflicted with the testimony Ms. Jackson gave

regarding her ability to function. While the ALJ did state that “greater weight should be

afforded the analysis” provided by the state agency non-examining physician (AP 26) ,

this statement was made, and warranted, in light of the fact that the agency physician’s

findings comported better with the testimony Ms. Jackson had offered. The fact that the



                                             5
non-examining physician’s report was prepared over a year before Ms. Jackson’s hearing

is not relevant since the ALJ found that other evidence in the record, along with Ms.

Jackson’s testimony, established that the statements in that report were consistent with her

condition as it manifested itself in the period subsequent to the report’s completion. In

short, the ALJ did not err in treating the record evidence as he did.




C. The Adverse Credibility Determination




       Ms. Jackson argues that, insofar as the ALJ’s opinion was based on his finding that

her subjective reports about her condition were not credible, the ALJ erred. Citing

Morales v. Apfel, 

, 319 (3d Cir., 2000), Jackson argues that the ALJ should

not have relied upon his personal observations regarding the claimant in arriving at his

non-disability determination.3 The problem with this argument is that the ALJ did not so

rely. The ALJ’s adverse credibility determination was based, at least in part, on the

divergence between her subjective reports of incapacity and the record evidence, which

suggested that she was functional. The ALJ also noted that Ms. Jackson’s descriptions of

her daily activities suggested that she was not limited in her pursuit of these. Since an



       3
        In Morales, this court stated that “[t]he principle that an ALJ should not substitute
his lay opinion for the medical opinion of experts is especially profound in a case
involving a mental disability. This Court has said before that an ALJ's personal
observations of the claimant carry little weight in cases involving medically substantiated
psychiatric 

(internal citation omitted).

                                              6
adverse credibility determination need only be supported by substantial evidence, and

since that determination is amply supported here, the ALJ did not err in finding that Ms.

Jackson’s “allegations regarding her limitations were not entirely credible” (AP 28).




II.




       For the foregoing reasons, the opinion of the District Court finding that the ALJ

did not err is AFFIRMED.




                                             7