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Wise v. Barnhart, 03-30995 (2004)

Court: Court of Appeals for the Fifth Circuit Number: 03-30995 Visitors: 5
Filed: Jun. 18, 2004
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT June 18, 2004 Charles R. Fulbruge III Clerk No. 03-30995 Summary Calendar BRANDON WISE, Plaintiff-Appellant, versus JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee. Appeal from the United States District Court for the Western District of Louisiana USDC No. 2:02-CV-1267 Before JONES, BENAVIDES and CLEMENT, Circuit Judges. PER CURIAM:* Brandon Wise appeals the
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                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT                  June 18, 2004

                                                           Charles R. Fulbruge III
                                                                   Clerk
                             No. 03-30995
                           Summary Calendar



                             BRANDON WISE,

                                                Plaintiff-Appellant,

                                versus

         JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY,

                                                 Defendant-Appellee.



             Appeal from the United States District Court
                 for the Western District of Louisiana
                         USDC No. 2:02-CV-1267


Before JONES, BENAVIDES and CLEMENT, Circuit Judges.

PER CURIAM:*

             Brandon Wise appeals the judgment affirming the decision

by the Commissioner of Social Security to deny his application for

supplemental security income. Our review is limited to determining

whether the Commissioner applied the proper legal standards and

whether the decision is supported by substantial evidence on the

record as a whole.     See Bowling v. Shalala, 
36 F.3d 431
, 434 (5th

Cir. 1994).     We may not reweigh the evidence or try the issues de


     *
      Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
novo.      See Johnson v. Bowen, 
864 F.2d 340
, 343 (5th Cir. 1988).

The record shows that the administrative law judge applied the

proper legal standards and that the Commissioner’s decision is

supported by substantial evidence.                
Bowling, 36 F.3d at 434
.

             We reject Wise’s challenge to the hypothetical posed to

the vocational expert.           The hypothetical question that an adminis-

trative     law    judge      poses     to   a   vocational      expert   need     only

incorporate the disabilities that the administrative law judge

recognizes.       
Id. at 435;
Morris v. Bowen, 
864 F.2d 333
, 336 (5th

Cir. 1988).            Under Bowling, if the administrative law judge’s

hypothetical omits a recognized limitation “and the claimant or his

representative is afforded the opportunity to correct deficiencies

in   the    administrative       law    judge’s     question      by   mentioning    or

suggesting to the vocational expert any purported defects in the

hypothetical       questions      (including       additional      disabilities     not

recognized        by    the    administrative       law    judge’s     findings     and

disabilities recognized but omitted from the question),” there is

no reversible error.           
Bowling, 36 F.3d at 436
.

             Wise does not dispute that his representative was allowed

to cross-examine the vocational expert regarding the administrative

law judge’s hypothetical.             Thus, even assuming, arguendo, that the

administrative          law   judge’s    hypothetical      was    deficient   in    the

respects     urged       on   appeal,    because       Wise’s    representative     was

afforded an opportunity to correct any perceived deficiencies,

there is no reversible error.                See 
id. Contrary to
Wise’s argument, Social Security Ruling (SSR)

83-12 does not contradict the vocational expert’s testimony that

sedentary and light work does not necessarily entail bilateral

manual dexterity.     See SSR 83-12.   Wise’s argument that SSR 83-12

undercuts the vocational expert’s testimony that he could perform

sedentary work is also without merit.          SSR 83-12 does not state

that a person who does not exhibit bilateral manual dexterity is

unable to perform sedentary work.        
Id. To the
extent that Wise argues that his case should be

remanded in accord with Watson v. Barnhart, 
288 F.3d 212
(5th Cir.

2002), for a finding whether he can maintain employment, Wise did

not assert that his condition only periodically precluded him from

working and did not offer medical evidence that his condition would

intermittently   prevent    him   from     maintaining   employment   or

functioning in the employment context.          Accordingly, it is not

necessary to remand the case for the administrative law judge to

make such a determination.     See Frank v. Barnhart, 
326 F.3d 618
,

619-20 (5th Cir. 2003).    Given the foregoing, the judgment of the

district court is affirmed.

          AFFIRMED.

Source:  CourtListener

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