Tie’ease L. Jones v. JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY On Appeal from the United…

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PRECEDENTIAL
UNITED STATES
COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 03-1661
TIE’EASE L. JONES,
Appellant
v.
JO ANNE B. BARNHART,
COMMISSIONER OF SOCIAL
SECURITY
On Appeal from the United States
District Court
for the Western District of Pennsylvania
(Dist. Ct. No. 01-cv-02305)
District Judge: Honorable Alan N. Bloch
Submitted Under Third Circuit LAR
34.1(a)
January 23, 2004
Before: ALITO, CHERTOFF, Circuit
Judges, and DEBEVOISE,* Senior
District Court Judge
(Filed April 14 2004)
Zenford A. Mitchell
P.O. Box 99937
Pittsburgh, PA 15233
Counsel for Appellant
Shawn C. Carver
Social Security Administration
SSA/OGC/Region III
300 Spring Garden Street
6th Floor
Philadelphia, PA 19123
Counsel for Appellee
OPINION
CHERTOFF, Circuit Judge.
Tie’Ease L. Jones appeals from the
District Court’s judgment affirming the
Commissioner of Social Security’s denial
of her application for disability insurance
and supplemental security income
benefits. Jones challenges the ALJ’s
determination at steps three and five of the
five-step evaluation process promulgated
by the Social Security Administration to
determine whether an individual is
disabled. See 20 C.F.R. § 404.1520. At
step three, the ALJ concluded that Jones’s
signs, symptoms, and laboratory findings
did not meet or equal the criteria
* Honorable Dickinson R.
Debevoise, Senior United States District
Judge for the District of New Jersey,
sitting by designation.

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established for a listed impairment. At
step five, the ALJ concluded the
Commissioner had met its burden of
establishing Jones’s capacity for other
work, given her impairments, pain,
functional restrictions, age, education, and
work experience. For the reasons stated
below, we will affirm the District Court’s
judgment.
I.
Jones was born on September 3,
1969. She has an eleventh grade
education and past work experience as a
nursing assistant and telemarketer. Jones
filed for disability benefits on or about
September 17, 1997, alleging disability
due to asthma and hives.1 Jones’s
application for disability insurance
benefits was denied both initially and
upon reconsideration. After conducting a
hearing, on January 27, 1999, the ALJ
rendered a decision concluding that Jones
was not entitled to benefits. On October
2, 2001, the Appeals Council denied
Jones’s request to review the ALJ’s
decision.
Subsequently, Jones sought judicial
review of the adverse decision, pursuant to
42 U.S.C. § 405(g), in the United States
District Court for the Western District of
Pennsylvania. On January 6, 2003, the
Honorable Alan N. Bloch granted the
Commissioner’s motion for summary
judgment and denied Jones’s cross-motion
for summary judgment. This appeal
followed.
II.
The District Court exercised
jurisdiction pursuant to 42 U.S.C. §
405(g), and appellate jurisdiction is vested
in this Court under 28 U.S.C. § 1291. The
role of this Court is identical to that of the
District Court; we must determine whether
there is substantial evidence to support the
Commissioner’s decision. Plummer v.
Apfel, 186 F.3d 422, 427 (3d Cir. 1999).
Substantial evidence means “‘such
relevant evidence as a reasonable mind
might accept as adequate to support a
conclusion.’” Jesurum v. Sec’y of the U.S.
Dep’t of Health & Human Servs., 48 F.3d
114, 117 (3d Cir. 1995) (quoting
Richardson v. Perales, 402 U.S. 389, 401
(1971)). “It is less than a preponderance
of the evidence but more than a mere
scintilla.” Id. Overall, the substantial
evidence standard is a deferential standard
of review. Schaudeck v. Comm’r of Soc.
Sec. Admin., 181 F.3d 429, 431 (3d Cir.
1999).
The Social Security Administration
has promulgated a five-step evaluation
process to determine whether an individual
is disabled. See 20 C.F.R. § 404.1520; see
generally Plummer, 186 F.3d at 428. In
1 Jones’s Brief characterizes her
alleged disability more broadly: “The
Appellant suffers from both exertional and
non-exertional impairments which include
a history of urticaria, asthma, chronic
obstructive and restrictive lung disease,
fibromyalgia, anxiety and depression.”
(Appellant Br. at 3). Even if we adopt this
broader characterization for the purpose of
this appeal, Jones’s claim fails.

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step one, the Commissioner decides
whether the claimant is currently engaging
in substantial gainful activity. If so, the
claimant is not eligible for disability
benefits. 20 C.F.R. § 404.1520(a). In step
two, the Commissioner determines
whether the claimant is suffering from a
severe impairment. If the impairment is
not “severe,” the claimant is not eligible
for disability benefits. 20 C.F.R. §
404.1520(c). In step three, the
Commissioner evaluates whether the
evidence establishes that the claimant
suffers from a listed impairment. If so, the
claimant is automatically eligible for
benefits. If the claimant does not suffer
from a listed impairment or its equivalent,
however, the Commissioner proceeds to
the next step. 20 C.F.R. § 404.1520(d). In
step four, the Commissioner reviews
whether the claimant retains the “residual
functional capacity” to perform his past
relevant work. If so, the claimant is not
eligible for disability benefits. 20 C.F.R.
§ 404.1520(e). Finally, in step five the
Commissioner considers whether work
exists in significant numbers in the
national economy that the claimant can
perform given his medical impairments,
age, education, past work experience, and
“residual functional capacity.” If so, the
claimant is not eligible for benefits. 20
C.F.R. § 404.1520(f). In this final step,
“the burden of production shifts to the
Commissioner, who must demonstrate the
claimant is capable of performing other
available work in order to deny a claim of
disability.” Plummer, 186 F.3d at 428.
The issues on appeal arise from the
ALJ’s determinations at steps three and
five.
III.
Jones argues that the ALJ erred in
step three in failing to find she was per se
disabled under Listing 3.02(A). The ALJ
concluded that, under step two, Jones had
a severe impairment based on medical
findings of chronic urticaria, asthma,
chronic obstructive and restrictive lung
disease, and anxiety and depression. At
step three, however, the ALJ determined
that after “carefully compar[ing] the
claimant’s signs, symptoms, and laboratory
findings with the criteria specified in all of
the Listings of Impairments,” “the
claimant’s impairments do not meet or
equal the criteria established for an
impairment shown in the Listings.”
Administrative Transcript (“Tr.”) at 13.
Listing 3.02 provides: “Chronic
obstructive pulmonary disease, due to any
cause, with the FEV1 equal to or less than
the values specified in table I
corresponding to the person’s height
without shoes.” 20 C.F.R. Pt. 404, Subpt.
P, App. 1, § 3.02(A). Jones’s height of 69
inches corresponds to an FEV1 value of
1.45 or less. Id. In support of her claim of
disability, Jones points to February 16,
1998 test results indicating FEV1 values of
.99, 1.04, and 1.11. Tr. at 137. This
Court, however, concludes that the test
results alone are insufficient to support a
claim of disability; rather, there is
substantial evidence to support the ALJ’s
conclusion that Jones did not suffer from a
listed impairment.

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The introductory note to the
regulations governing listed respiratory
impairments explains that an FEV value
should not be analyzed in isolation from
other evidence in assessing whether the
claimant satisfies the criteria for the listed
impairment:
The listings in this
s e c t i o n d e s c r i b e
impairments resulting from
respiratory disorders based
on symptoms, physical
s i g n s , la bora t o r y t e st
abnormalities, and response
to a regimen of treatment
prescribed by a treating
source.
. . . .
. . . Because th[e]
symptoms [attributable to
these disorders] are common
to many other diseases, a
thorough medical history,
physical examination, and
chest x-ray or other
a p p r o p r i a t e i m a g i n g
techniques are required to
e s t a b l i s h p u l m o n a r y
d i s e a s e . P u l m o n a r y
function testing is required
to assess the severity of the
respiratory impairment once
a disease p r o c e ss is
established by appropriate
clinical and laboratory
findings.
. . . .
Respiratory impairments
usually can be evaluated
under these listings on the
basis of a complete medical
h i s t o r y , p h y s i c a l
examination, a chest x-ray
or other appropriate imaging
techniques, and spirometric
pulmonary function tests.
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 3.00
(emphasis added). “For a claimant to
show his impairment matches a listing, it
must meet all of the specified medical
criteria. An impairment that manifests
only some of those criteria, no matter how
severely, does not qualify.” Sullivan v.
Zebley, 493 U.S. 521, 530 (1990)
(emphasis in original).
In this case, substantial evidence
supports the ALJ’s decision that Jones’s
impairments do not meet or equal the
criteria established in Listing 3.02(A). As
the District Court noted, the record
includes various physician treatment notes
indicating that Jones’s lungs were “clear,”
her chest x-rays were normal, she had
normal breath sounds, there was “little
objective evidence of abnormality on
physical examination,” and that she had
only “mild” bronchial asthma.2
2 Jones’s challenge to the evidence
outlined by the District Court is
unpersuasive. (Appellant Br. at 7-8). In
essence, Jones’s primary argument is that
the evidence cited by the District Court
merely provides isolated assessments and
“does not reflect her condition over time.”

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To be sure, in Burnett v.
Commissioner of So cial Se curity
Administration we required “the ALJ to
set forth the reasons for his decision,” and
held that the ALJ’s bare conclusory
statement that an impairment did not
match, or is not equivalent to, a listed
impairment was insufficient. 220 F.3d
112, 119-20 (3d Cir. 2000). Here, Jones
does not specifically challenge the ALJ’s
ruling on the grounds that it fails the
Burnett standard. Rather, Jones’s only
reference to Burnett appears in a long list
of citations in support of the general
proposition that “the ALJ must analyze all
the evidence in the record and provide an
adequate explanation for disregarding
evidence.” (Appellant Br. at 9) (emphasis
in original). In any event, the ALJ’s step
three analysis in this case satisfies Burnett.
Burnett does not require the ALJ to use
particular language or adhere to a
particular format in conducting his
analysis. Rather, the function of Burnett is
to ensure that there is sufficient
development of the record and explanation
of findings to permit meaningful review.
See id. at 120. In this case, the ALJ’s
decision, read as a whole, illustrates that
the ALJ considered the appropriate factors
in reaching the conclusion that Jones did
not meet the requirements for any listing,
including Listing 3.02(A). The ALJ’s
opinion discusses the evidence pertaining
to chronic obstructive and restrictive lung
d i s e a se , s p e c i f i c a l l y r e f e r e n c i n g
“[p]ulmonary function studies . . .
consistent with moderately severe
obstructive and restrictive defects,” but
pointing to the lack of pulmonary
complications, and a finding that
claimant’s lungs were clear. Also, the ALJ
noted that claimant’s medical history
showed no frequent hospitalization or
emergency treatments. Tr. at 13-14.3
However, the FEV1 evidence relied on by
Jones is also just an isolated measurement.
Moreover, even if Jones is correct that the
medical evidence may not be ideal in
reflecting “her condition over time,” such
an argument is insufficient to undermine
the claim that there was substantial
evidence to support the ALJ’s conclusion.
3 The ALJ’s opinion explains, in
pertinent part:
The claimant is somewhat
more limited by chronic
obstructive and restrictive
lung disease with asthma,
but even so, I find that this
would not preclude the
performance of at least
sedentary work activity . . .
. Pulmonary function
studies are consistent with
m o d e r a t e l y s e v e r e
obstructive and restrictive
defects, but the claimant has
no significant pulmonary
complications such as
clubbing, cyanosis, or
edema. In addition, she has
not required frequent
h o s p i t a l i z a t i o n s o r
emergency room treatments
for an exacerbation of this

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This discussion satisfies Burnett’s
requirement that there be sufficient
explanation to provide meaningful review
of the step three determination.
IV.
Jones also challenges the ALJ’s
determination at step five. She raises two
criticisms: (1) the jobs identified by the
vocational expert (VE) in accordance with
the ALJ’s hypothetical—telephone
operator, personal attendant, and
cashier—are jobs not generally performed
at the sedentary level; and (2) the ALJ
disregarded the VE’s response to Jones’s
counsel’s hypothetical.
The ALJ concluded that given
Jones’s capacity to perform some
sedentary work,4 there are a significant
number of jobs in the national economy
that she could perform, providing the
examples of cashier, personal attendant,
and telephone operator. Jones argues that
the identified jobs are generally not
performed at the sedentary level. While
Jones correctly notes that the Dictionary of
Occupational Titles (4th ed., rev. 1991)
(“DOT”) indicates personal attendant is
light work, the jobs of cashier and
telephone operator5 are listed as sedentary.
disorder. Dr. Levine’s
examination in February
of 1998 (Exhibit 6F)
s h o w e d t h a t t h e
claimant’s lungs were
clear. The claimant
requires the usual
medications for control
of this particular medical
disorder. Dr. Hawkins,
while assessing that the
claimant was temporarily
disabled for welfare
purposes (Exhibit 10F),
nonetheless concluded
that the claimant’s
asthma was only mild in
nature. The claimant also
has undergone allergy
tests which were entirely
within normal limits in
January of 1997 as noted
by Dr. Levine (Exhibit
6F). I therefore will
conclu d e t h a t th e
claimant, while having a
s e v e r e r e s p i r a t o r y
condition, could still
perform a wide range of
sedentary jobs . . . .
Tr. at 13-14.
4 The ALJ noted that additional
nonexertional limitations precluded Jones
from performing the full range of
sedentary work.
5 Jones argues that “[t]he job as a
telephone operator is very similar if not
identical to the Plaintiff’s past job as a
telemarketer.” Therefore, “[i]f the ALJ
concluded that the Plaintiff could not
perform her past relevant work, she cannot
be expected to perform a similar job or the
same job as she performed in the past.”
(Appellant Br. at 11). However, Jones
fails to substantiate the assertion that a

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Moreover, the ALJ’s three enumerated
occupations are merely examples, and not
a complete list, of the sedentary work that
Jones can perform.6
Additionally, Jones argues that the
ALJ erred in disregarding the VE’s
response to the following hypothetical
posited by Jones’s attorney:
Q. Assuming an adult
individual the same age,
education and past work
experience as the
Claimant, but I would
like for you to assume
the following additional
factors posed in Dr.
Levine’s report dated
February 18th, 1998. I
would like you to
assume the following
factors: that this adult
individual’s ability to
function and motivation
to do things is seriously
affected by her anxiety
and depression; and
additional factors such
as her hives and her
respiratory difficulty
affect her ability to
complete tasks in an
eight-hour work period.
Would such an adult
individual be able to
p e r f o r m h e r p a s t
relevant work and any
other work in the
national economy?
A. The—what’s critical to
me in hearing this is the
ability to complete tasks
i n a n e i g h t - h o u r
workday. And all jobs
are going to require that
c e r t a in t a s k s a re
completed within a day,
within a day’s period of
telephone operator and telemarketer are
identical. Moreover, the VE’s testimony
suggests distinct reasons why Jones might
no longer be able to continue employment
as a telemarketer that may be inapplicable
to a telephone operator position: “The
work she did for the telemarketing,
anytime you’re a supervisor in charge of
other people, it’s, it’s just not considered
to be few decisions, where, where you’re,
in fact, in charge of other people’s work
demands. And I think that it would
exceed that limitation.” Tr. at 222.
6 We acknowledge that this Court
has expressed concern in cases where
there is a conflict between the VE’s
testimony and the DOT. See Boone v.
Barnhart, 2003 WL 22966888 (3d Cir.
Dec. 18, 2003). However, this Court has
“not adopt[ed] a general rule that an
unexplained conflict between a VE’s
testimony and the DOT necessarily
requires reversal.” Id. at *2. Additionally,
Boone is distinguishable—unlike this
case, in Boone there was a much more
explicit conflict, a conflict as to “each
occupation identified by the VE,” and the
VE’s testimony was riddled with
hesitation. See id. at *2-4.

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time. Either so many
telephones or calls
are answered or so
many envelopes are
stuffed or one is at a
cash register for a
specific period of
time. So completing
tasks is an essential
part of doing any
kind of work.
Tr. at 225 (emphasis added).
Even assuming that this testimony
alone is sufficient to support a claim of
disability, the ALJ did not err in failing to
accept the hypothetical. The hypothetical
asked the VE to make certain assumptions,
based in large part on Dr. Levine’s report.
As the District Court noted, however,
because the hypothetical was inconsistent
with the evidence in the record, the ALJ
had the authority to disregard the
response.7 For example, the ALJ
concluded that despite a diagnosis of
anxiety and depression, Dr. Levine
indicated that Jones’s
mental functioning is
normal, that she remains
alert and oriented, that her
memory, concentration, and
ability to relate to others are
not impaired, that she keeps
her appointments, that she is
able to follow directions
with respect to her medical
care, that she is not
psychotic and can carry out
the activities of daily living.
Tr. at 15. The ALJ was not required to
accept the assumptions posited by Jones’s
counsel; rather, there is substantial
evidence to support the ALJ’s
determination at step five that there are a
significant number of jobs in the national
economy that Jones can perform.
V.
For the foregoing reasons, the
judgment of the District Court entered
on January 6, 2003 will be affirmed.
7 The ALJ explicitly referenced the
hypothetical in his decision, but concluded
that it was not dispositive: “The claimant’s
counsel also presented hypotheticals to the
vocational expert based on information
provided by Dr. Levine, but I believe that
I have adequately discussed Dr. Levine’s
medical reports in the above paragraphs.”
Tr. at 16.

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