Kathleen M. Turby v. JOANNE B. BARNHART, Commissioner of Social Security Pursuant to F.R.A.P. 43 c

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 02-2258
KATHLEEN M. TURBY,
Appellant
v.
JOANNE B. BARNHART,
Commissioner of Social Security
* (Pursuant to F.R.A.P. 43(c))
Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 01-cv-00534)
District Court Judge: Honorable Sylvia H. Rambo
Submitted Pursuant to Third Circuit LAR 34.1(a)
on December 16, 2002
Before: SLOVITER, RENDELL and GREENBERG, Circuit Judges
(Filed: December 23, 2002)
OPINION OF THE COURT
RENDELL, Circuit Judge.
Kathleen Turby appeals from an order entered in the District Court on March 12,
2002, affirming the Social Security Administration’s denial of her claim for disability
benefits. Turby alleges that the Administrative Law Judge (ALJ) committed a wide variety

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of errors, and that his findings were not supported by substantial evidence. We will affirm.
Kathleen Turby suffers from depression as well as a number of serious ailments
involving her legs and back. In 1996, Turby filed an application for Social Security
disability benefits for the period October 6, 1993, to June 30, 1995. Her claim was denied,
as was reconsideration, and Turby requested a hearing. Before the ALJ, Turby testified
regarding her mental and physical impairments, and a vocational expert testified regarding
the types of positions an individual with limitations like Turby’s might hold.
The ALJ concluded that Turby was ineligible for benefits. He agreed that the
medical evidence showed that Turby suffered from mental and physical impairments, but
found her subjective testimony not “fully credible,” and concluded that she remained
capable of performing a limited range of sedentary work, positions including information
operator, security monitor, and assembler.
Turby appealed. The matter was referred to a magistrate judge, who issued a report
recommending that the ALJ’s decision be affirmed. The District Court adopted the report
and recommendation, and Turby timely filed this appeal. The District Court had
jurisdiction under 42 U.S.C. § 405(g), and we exercise jurisdiction pursuant to 42 U.S.C. §
405(g) and 28 U.S.C. § 1291.
Although our review of the District Court’s order is plenary, we are not permitted to
weigh the evidence or substitute our conclusions for those of the ALJ. Williams v.
Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992); see also Fargnoli v. Massanari, 247 F.3d 34,
38 (3d Cir. 2001). We may reverse only if the ALJ’s findings were not supported by

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“substantial evidence.” 42 U.S.C. § 405(g). Substantial evidence is “such relevant evidence
as a reasonable mind might accept as adequate.” Fargnoli, 247 F.3d at 38; Richardson v.
Perales, 402 U.S. 389, 401 (1971). It is “less than a preponderance of the evidence but
more than a mere scintilla.” Fargnoli, 273 F.3d at 38.
Turby raises the following six issues: (1) whether the ALJ properly considered
Turby’s physical limitations; (2) whether the ALJ properly considered Turby’s subjective
testimony of pain and exertional limitations; (3) whether the hypothetical posed to the
vocational expert adequately portrayed Turby’s limitations; (4) whether the ALJ adequately
developed the record; (5) whether the ALJ properly considered Turby’s ailments as a
whole; and (6) whether the ALJ properly considered her approval for state disability
benefits and the statements by her physicians that she was disabled for purposes of those
benefits. We will consider each of these arguments in turn.
First, Turby argues that the ALJ failed to appropriately consider the opinions of her
treating physicians, and thus that the ALJ’s conclusions about Turby’s physical limitations
were not supported by substantial evidence. The ALJ’s decision, however, makes clear that
he gave extensive consideration to the opinions of Turby’s physicians and relied heavily
upon those opinions in making his ultimate determination. Moreover, the record is replete
with medical evidence supporting the ALJ’s finding that Turby had the physical and mental
residual function to perform a limited range of sedentary jobs during the relevant time
period, including statements by her physicians.
None of Turby’s more specific complaints about the ALJ’s treatment of her physical

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limitations have merit. She first asserts that the ALJ misconstrued an August 1994 opinion
by Turby’s physician Dr. Goldman. In that opinion, Goldman noted that Turby was
progressing and had been working in a limited capacity as a vacuum cleaner salesperson, but
also recognized that she continued to be incapable of performing her previous position as a
librarian, and concluded that she was disabled for state purposes on that basis. Goldman’s
conclusions are wholly consistent with the ALJ’s, who found that Turby was neither capable
of returning to her previous position nor capable of performing a position with a similar
level of physical exertion. Turby then states that the ALJ failed to recognize the
significance of her medical history, but there is absolutely no support for that claim in the
record. The ALJ’s decision recounted Turby’s medical history in detail, and nothing in that
history is at all inconsistent with the ALJ’s findings. Finally, Turby asserts that the ALJ
rejected a report by Turby’s physician, Dr. Balog, suggesting that Turby had begun to suffer
from lumbosacral radiculitis (inflamation of the nerve root) after lifting a television set in
September of 1993. Again, there is no indication that the ALJ “rejected” the report; the
ALJ noted Balog’s diagnosis and later prescription for pain medication, as well as his
suggestion that Turby return to work without restrictions within a few days. In short, the
ALJ’s decision with regard to her physical limitations was supported by substantial
evidence.
Second, Turby argues that the ALJ improperly discounted her subjective testimony.
We have made clear that subjective complaints must be given “serious consideration.”
Mason v. Shalala, 994 F.2d 1058, 1067 (3d Cir. 1993); Green v. Schweiker, 749 F.2d 1066,

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1 Among other factors, the ALJ noted that: Turby was able to walk an acre at a time;
for at least part of the relevant time period she was employed (though not gainfully) in a
limited capacity as a vacuum cleaner salesperson; she suffered from no significant motor,
strength, or neurological defects; she occasionally drove, including a vehicle with a manual
transmission; and she cared for her own personal needs and performed many of life’s
normal daily activities including washing dishes, grocery shopping, watching television,
reading, doing crafts, visiting friends and family on occasion, and feeding her pets. Turby’s
reliance on Smith v. Califano, 637 F.2d 968 (3d Cir. 1981) is unavailing. Although
certainly “[d]isability does not mean that a claimant must vegetate in a dark room excluded
from all forms of human and social activity,” id. at 971, it is nonetheless appropriate for the
ALJ to consider “the number and type of activities” in which the claimant engages. Burns,
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1068 (3d Cir. 1984). Accordingly, where the ALJ does not fully accept the claimant’s
subjective testimony, the ALJ is obligated to explain why. Burnett v. Comm’r of Soc. Sec.
Admin., 220 F.3d 112, 120 (3d Cir. 2000).
We examine the ALJ’s findings “with the deference required of the substantial
evidence standard of review,” Burns v. Barnhart, ___ F.3d ___, 2002 WL 31716291, at *16
(3d Cir. 2002), and conclude that the ALJ adequately considered Turby’s subjective
testimony. The ALJ’s decision discussed Turby’s complaints at length, and concluded that
the medical evidence generally supported her claim of pain and exertional limitations.
With regard to the disabling nature of her pain, however, the ALJ found her testimony only
“fairly credible,” and unsupported by the medical evidence except “to the extent that she is
limited to a residual functional capacity no higher than less than the full range of sedentary
work.” This conclusion has support in the medical record, as Turby’s physicians suggested
at various times that she was capable of performing sedentary or other light work. The ALJ
also properly identified a variety of facts about Turby suggesting that her pain would not
preclude her from working within the narrow class of positions identified.1 Burns, 2002

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2002 WL 31716291 at *12.
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WL 31716291 at *12. Moreover, Turby crucially fails to identify any relevant medical
opinion in support of her claim that her pain and exertional limitations were more severe
than the ALJ found them to be. Id.; Hartranft v. Apfel, 181 F.3d 358, 362 (3d Cir. 1999).
Thus, we cannot conclude that the ALJ gave inadequate consideration to Turby’s subjective
complaints. See Simmonds v. Heckler, 807 F.2d 54, 58 (3d Cir. 1986).
Third, Turby argues that the hypothetical questions considered by the vocational
expert were inadequate. We agree with Turby that the “hypothetical posed to [the]
vocational expert ‘must reflect all of the claimant’s impairments.’” Burns, 2002 WL
31716291 at *8 (quoting Chrupcala v. Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987)). As
we have recently noted, “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.” Burns, 2002 WL 31716291 at
*8.
Turby argues that two relevant facts were not included in the vocational expert’s
hypothetical: (1) her frequent need to lie down to take pressure off her spine, and (2) her
need to elevate her left leg as recommended by one of her physicians in June of 1992.
With regard to her need to lie down, we reiterate that her subjective claims of disabling
pain and exertional limitation were properly examined and partially rejected by the ALJ.
There appears to be no medical evidence supporting her need to lie down in the relevant

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time period, and a later opinion suggesting that lying down might be beneficial also
recommends that Turby begin her “back to work activities.” With regard to leg elevation,
we note that Turby cites a single note made a full year before the relevant period, and that
subsequent medical evidence suggested that she should be able to perform some work
without restrictions. Moreover, the medical opinion noted above indicating that lying down
might be beneficial also notably recommended that she discontinue elevation. At any rate,
there is no indication that these isolated facts were necessary to the vocational inquiry; they
are not “specific impairments” for which there is “medically undisputed evidence.” See
Burns, 2002 WL 31716291 at *8. Relevantly, the hypothetical included: references to
Turby’s physical conditions involving her leg and back, very significant limitations on
movement and physical exertion, and frequent alternation between sitting and standing.
Under these circumstances, the hypothetical “accurately portray[ed]” Turby’s physical and
mental impairments, Podedworny v. Harris, 745 F.2d 210, 218 (3d Cir. 1984), and was
therefore properly relied upon by the ALJ.
Fourth, Turby argues that the ALJ failed to develop the record with sufficient
precision. We have frequently noted that ALJ’s are under “a duty to develop a full and fair
record in social security cases.” Ventura v. Shalala, 55 F.3d 900, 902 (3d Cir. 1995). We
note, however, that this duty is most acute where the claimant is unrepresented, see
Livingston v. Califano, 614 F.2d 342, 345 (3d Cir. 1980), and that here Turby was in fact
represented by counsel. Accordingly, Turby’s counsel was responsible for ensuring that the
ALJ was aware of any facts favorable to Turby’s claim for benefits. See 20 C.F.R. §

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404.1740(b)(1) (stating that counsel is “obligat[ed] to assist the claimant in bringing to [the
Administration’s] attention everything that shows that the claimant is disabled”).
Regardless, Turby fails to identify a single material issue into which the ALJ failed to
inquire. Cf. Gachette v. Weinberger, 551 F.2d 39, 41 (3d Cir. 1977) (noting for a similar
claim that on remand the district court should consider counsel’s “offer of proof regarding
what a more fully developed record might have shown”). The only evidence cited by Turby
is both already present in the record and fully consistent with the ALJ’s conclusions.
Fifth, Turby asserts that the ALJ did not properly consider the combination of
Turby’s ailments, as required by Burnham v. Schweiker, 682 F.2d 456 (3d Cir. 1982).
There is absolutely no merit to this claim. The ALJ’s report explicitly discussed and
considered Turby’s wide range of mental and physical limitations, and the hypothetical
posed to the vocational expert explicitly included the full range of impairments.
Finally, Turby argues that the ALJ did not give proper weight to Pennsylvania’s
decision to award her disability benefits. Turby received temporary disability benefits from
the state from 1993 until 1997, when her benefits became permanent. Similarly, she
argues that the ALJ did not properly consider the opinions of her physicians stating that
they considered her disabled for purposes of receiving state benefits. Her arguments are
unavailing.
The physicians’ statements were in reference to her previous employment in a
library, which required the extensive climbing of stairs, lifting and carrying of books, and
other significant physical exertions. Her inability to perform such tasks, however, was

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explicitly found by the ALJ and considered in the vocational expert’s hypothetical.
Moreover, it is worth noting again that the same medical opinions indicated that Turby
could in fact perform sedentary or other light work. Thus, contrary to Turby’s assertions,
the ALJ did rely on the statements to the extent they were relevant.
Turby’s argument with regard to the state’s determination of eligibility for disability
benefits fails for similar reasons. State agency determinations of disability are not binding
on the Social Security Administration because the inquiries for eligibility are distinct. 20
C.F.R. § 404.1504. Nonetheless, the ALJ here accorded “significant weight” to
Pennsylvania’s determination that Turby was eligible for benefits. Like the related
statements by Turby’s physicians, however, the state determination was only relevant as to
the types of positions Turby may have been able to work, and was therefore thoroughly
consistent with the ALJ’s ultimate conclusion.
Accordingly, the District Court’s order will be AFFIRMED.

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TO THE CLERK OF COURT:
Please file the foregoing opinion.
/s/ Marjorie O. Rendell, Jr.
Circuit Judge
Dated:

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