Wayne A. Smith v. Commissioner of Social Security Appeal From the United States District Court for…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 09-2983
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WAYNE A. SMITH,
Appellant
v.
COMMISSIONER OF SOCIAL SECURITY
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
(D.C. Civil No. 08-cv-02875)
District Judge: Honorable Dennis M. Cavanaugh
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Submitted Under Third Circuit LAR 34.1(a)
November 16, 2010
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Before: BARRY, CHAGARES and VANASKIE, Circuit Judges
(Opinion Filed: November 22, 2010)
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OPINION
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BARRY, Circuit Judge
Wayne Smith appeals from an Order of the United States District Court for the
District of New Jersey affirming a decision of the Commissioner of Social Security. That

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decision denied Smith‟s claims for disability insurance benefits and supplemental security
income under the Social Security Act. Smith contends that the hypothetical question
posed by the administrative law judge (“ALJ”) to the vocational expert did not
sufficiently convey all of Smith‟s limitations, and that as a result, the Commissioner‟s
decision was not supported by substantial evidence. We will affirm.
I. Jurisdiction and Standard of Review
The District Court had jurisdiction under 42 U.S.C. § 405(g). We have appellate
jurisdiction pursuant to 28 U.S.C. § 1291. Our review is limited to determining whether
there was substantial evidence to support the Commissioner‟s decision to deny benefits.
42 U.S.C. § 405(g). “Substantial evidence has been defined as more than a mere scintilla.
It means such relevant evidence as a reasonable mind might accept as adequate to support
a conclusion.” Reefer v. Barnhart, 326 F.3d 376, 379 (3d Cir. 2003) (internal quotation
marks omitted). The Commissioner‟s findings of fact are binding if they are supported by
substantial evidence. Knepp v. Apfel, 204 F.3d 78, 83 (3d Cir. 2000).
II. Applicable Law
An individual is disabled for purposes of the Social Security Act (“SSA”) only if
his “physical or mental impairment or impairments are of such severity that he is not only
unable to do his previous work but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful work which exists in the
national economy.” 42 U.S.C. § 423(d)(2)(A). In making this determination, an ALJ

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must perform a five-step, sequential analysis. 20 C.F.R. § 404.1520. The ALJ must
review (1) the claimant‟s current work activity; (2) the medical severity and duration of
the claimant‟s impairments; (3) whether the claimant‟s impairments meet or equal the
requirements of an impairment listed in the regulations; (4) whether the claimant has the
residual functional capacity to return to past relevant work; and (5) if the claimant cannot
return to past relevant work, whether he or she can “make an adjustment to other work” in
the national economy. 20 C.F.R. § 404.1520(a)(4)(i)-(v). The claimant bears the burden
of proof at steps one through four, and the Commissioner bears the burden of proof at
step five. Poulos v. Comm’r of Soc. Sec., 474 F.3d 88, 92 (3d Cir. 2007).
Under the Social Security regulations, “a vocational expert or specialist may offer
expert opinion testimony in response to a hypothetical question about whether a person
with the physical and mental limitations imposed by the claimant‟s medical impairment(s)
can meet the demands of the claimant‟s previous work.” 20 C.F.R. § 404.1560(b)(2).
While “the ALJ must accurately convey to the vocational expert all of a claimant‟s
credibly established limitations,” Rutherford v. Barnhart, 399 F.3d 546, 554 (3d Cir.
2005), “[w]e do not require an ALJ to submit to the vocational expert every impairment
alleged by a claimant.” Id. Thus, the ALJ is bound to convey only those impairments
“that are medically established.” Id.

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III. Background
A. Procedural Overview
Smith filed applications for disability insurance benefits and supplemental security
income on August 18, 2004, alleging that he was disabled as of October 19, 2003. The
application was denied initially, and on reconsideration. Smith requested a hearing before
an ALJ, and the hearing was held before ALJ Donna A. Krappa. On November 20, 2007,
the ALJ issued a decision finding — at step four of the sequential analysis — that Smith
had sufficient residual functional capacity to return to his past relevant work as a
warehouse worker or a loader or unloader of trucks. The Appeals Council denied Smith‟s
request for review of that decision, and on May 15, 2009, the District Court affirmed.
Smith timely appealed.
B. The Hearing Before the ALJ
Smith argues that the hypothetical question posed to the vocational expert, Rocco
Meola, did not fully reflect the medical conclusions of three medical experts: Dr. M.
Graff, Dr. Benito Tan, and Dr. Daniel Edelman. This argument lacks merit.
1. Dr. Tan
Dr. Tan completed a Form SSA-4734-BK-SUP (a “Mental Residual Functional
Capacity Assessment”) on February 10, 2005. Section I of the Form, “Summary
Conclusions,” requires that the person filling it out select one of the following options for
twenty psychological attributes: “Not Significantly Limited,” “Moderately Limited,”

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“Markedly Limited,” “No Evidence of Limitation in this Category,” or “Not Ratable on
Available Evidence.” Dr. Tan found that Smith was “Not Significantly Limited” for
fourteen attributes and “Moderately Limited” for the following six:
ability to understand and remember detailed instructions
ability to carry out detailed instructions
ability to maintain attention and concentration for extended periods
ability to complete a normal workday and workweek without interruption
from psychologically based symptoms and to perform at a consistent pace
without an unreasonable number and length of rest periods
ability to accept instructions and respond appropriately to criticism from
supervisors
ability to respond appropriately to changes in the work setting.
(App. 217-18.) In Section III of the Form, “Functional Capacity Assessment,” Dr. Tan
wrote that Smith “is able to follow instructions, maintain pace/persistence, concentration
and attention, relate appropriately and adapt, in work settings.” (Id. 219.)
2. Dr. Graff
Dr. Graff completed a Mental Residual Functional Capacity Assessment on
December 21, 2005. Dr. Graff selected “Not Significantly Limited” for ten attributes and
“Moderately Limited” for the following ten:
ability to understand and remember detailed instructions
ability to carry out detailed instructions
ability to maintain attention and concentration for extended periods

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ability to perform activities within a schedule, maintain regular attendance
and be punctual within customary tolerances
ability to work in coordination with or proximity to others without being
distracted by them
ability to complete a normal workday and workweek without interruption
from psychologically based symptoms and to perform at a consistent pace
without an unreasonable number and length of rest periods
ability to ask simple questions or request assistance
ability to accept instructions and respond appropriately to criticism from
supervisors
ability to get along with coworkers or peers without distracting them or
exhibiting behavioral extremes
ability to set realistic goals or make plans independently of others.
(Id. 278-79.) In Section III of the form, Dr. Graff directed the reader to another form
completed on that date, in which he wrote the following assessment:
It appears that the claimant suffers from depressive symptoms that are no
more than mild to moderate. His social interaction abilities are severely
impaired, but, overall, he does not meet or equal a listing.
The claimant is capable of at least entry-level work in a setting with
minimal interpersonal contact.
(Id. 282.)
3. Dr. Edelman
Dr. Daniel Edelman completed a psychological evaluation of Smith on July 18,
2005, and reached the following conclusions:
Claimant can follow and understand simple directions and instructions and
perform simple tasks independently. He may have difficulty, at present,

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maintaining attention and concentration for tasks of significant complexity.
He cannot presently maintain a regular schedule. He would have difficulty,
at present, learning new tasks. He would have difficulty, at present,
performing select complex tasks. He cannot, at present, make appropriate
decisions, relate adequately with others, or appropriately deal with stress.
Difficulties are caused by depression.
(Id. 229.)
4. The Hypothetical Question
Near the end of the hearing, the ALJ took testimony from Rocco Meola, a
vocational expert. After confirming that Meola had reviewed the case file, the ALJ posed
the following hypothetical question:
ALJ: I‟d like to assume a person the claimant‟s age, education and work
history. And further assume that this individual is limited to medium
work, simple, routine, repetitive, one or two-step tasks and jobs
where they would just have occasional interaction with the public or
coworkers. Given this hypothetical individual, could this person
perform the past relevant work of the claimant?
VE: He could do the job of loading and unloading truck [sic] as he did it.
And general warehouse work is also — would meet the
classification.
(Id. 65.)
Counsel for Smith asked Meola about the various respects in which Dr. Graff and
Dr. Tan had concluded that Smith was “moderately limited” in Section I of the Mental
Residual Functional Capacity Assessment. After the ALJ directed counsel to provide
Meola a definition of “moderate,” Meola suggested that “moderate” might mean “that the
person is not preclud[ed] from doing the activity, but does not do it at a level that would

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be consistent with what‟s acceptable in a national workforce.” (Id. 67-68.) If Smith were
so limited in all the respects noted by Dr. Graff and Dr. Tan, Meola testified, Smith would
not be able to return to his past relevant work.
III. Discussion
Smith‟s argument on appeal is that the hypothetical question posed by the ALJ to
Meola failed to take account of all the limitations noted by Dr. Tan, Dr. Graff, and Dr.
Edelman, such that Meola‟s answer cannot constitute “substantial evidence.”
A. Dr. Tan and Dr. Graff
Smith‟s main argument is that the hypothetical question did not sufficiently
include Dr. Tan‟s and Dr. Graff‟s conclusions that Smith was “moderately limited” in the
various areas that they noted in Section I of the Mental Residual Functional Capacity
Assessment. As the Social Security Administration‟s guidelines (the “Program
Operations Manual System,” or “POMS”) explain, however, “Section I is merely a
worksheet to aid in deciding the presence and degree of functional limitations and the
adequacy of documentation and does not constitute the RFC assessment.” POMS DI
24510.060, available at https://secure.ssa.gov/apps10/poms.nsf/lnx/0424510060
(emphasis added). Numerous district courts in this circuit have recognized this point and
held that Section I of the form may be assigned little or no weight. See Molloy v. Astrue,
No. 08-4801, 2010 WL 421090, at *11 (D.N.J. Feb. 1, 2010) (“According to the Social
Security Administration‟s internal operating guidelines . . . , this section of the

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examination form does not constitute the RFC assessment but rather is merely a
worksheet to aid employees. Therefore, [the ALJ] was not required to assign any weight
to this part of the report because it was not the final RFC finding.” (internal quotation
marks and citation omitted)); Liggett v. Astrue, No. 08-1913, 2009 WL 189934, at *8
(E.D. Pa. Jan. 27, 2009) (explaining that “Dr. Chiampi‟s actual mental residual functional
capacity assessment [was located] in Part III of the Mental Residual Functional Capacity
Form” and that “the undersigned does not accept the „summary conclusions‟ in Part I as
the assessment of the claimant‟s mental residual functional capacity here”); Torres v.
Comm’r of Soc. Sec., No. 07-1951, 2008 WL 5244384, at *12 (D.N.J. Dec. 15, 2008)
(“[T]he check blocks in Section I of the assessment do not constitute the assessment
itself, but function rather as a worksheet to aid the physician in making an assessment.
Therefore, the ALJ's hypothetical accurately reflected [the doctors‟] opinion of Plaintiff‟s
condition.” (citation omitted)). The District Court also understood this point. See Smith
v. Astrue, No. 08 Civ. 2875, 2009 WL 1372536, at *5 (D.N.J. May 15, 2009) (“As the
Commissioner correctly notes, Section I is not the actual Residual Functional Capacity
(„RFC‟) assessment, but rather a worksheet to aid in determining the presence and degree
of functional limitations. Instead, the actual mental RFC assessment is found in Section
III of the Form.”).
Parenthetically, it bears noting that the definition of “moderate limitation” assumed
by Meola is incorrect, as the Social Security Administration has provided a specific

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definition of the term in the context of the Mental Residual Functional Capacity
Assessment. See POMS DI 24510.063(B)(2), available at
https://secure.ssa.gov/apps10/poms.nsf/lnx/0424510063 (indicating that “moderately
limited” should be selected when “the individual‟s capacity to perform the activity is
impaired”). The definition does not require that the individual‟s capacity be at a level that
is unacceptable in a national workforce; rather, the instructions specify that “[t]he degree
and extent of the capacity or limitation must be described in narrative format in Section
III.” Id.
Because Smith cannot rely on the worksheet component of the Mental Residual
Functional Capacity Assessment to contend that the hypothetical question was deficient,
his argument is without merit as it pertains to Dr. Tan and Dr. Graff.
B. Dr. Edelman
Smith also contends that the hypothetical question failed to include the conclusions
of Dr. Edelman, a contention that was not presented to the District Court. Although
Smith‟s brief on appeal is in many respects indistinguishable from the brief that he filed
in the District Court, the section discussing Dr. Edelman is entirely new. Dr. Edelman‟s
name does not appear even once in the brief that Smith filed in the District Court, nor
does it appear even once in the opinion of the District Court. Smith‟s failure to raise any
argument as to Dr. Edelman in that Court operates to waive that argument here. See, e.g.,
Harris v. City of Phila., 35 F.3d 840, 845 (3d Cir. 1994) (“This court has consistently

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held that it will not consider issues that are raised for the first time on appeal.”).1
IV. Conclusion
The judgment of the District Court will be affirmed.
1 In any event, we note that Dr. Edelman concluded that Smith could “follow and
understand simple directions and instructions and perform simple tasks independently.”
(App. 229.) While Dr. Edelman found that Smith would have difficulty with “tasks of
significant complexity,” “learning new tasks,” or “deal[ing] with stress” (id.), the
hypothetical question presumed that Smith was only capable of “simple, routine,
repetitive, one or two-step tasks” (App. 65), language largely consistent with the
limitations noted by Dr. Edelman.

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