Staci Johnson v. Commissioner of Social Security

The Honorable Arthur L. Alarcón, United States Circuit Judge for the Ninth Judicial*
Circuit, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-2132
STACI JOHNSON,
Appellant
v.
COMMISSIONER OF SOCIAL SECURITY
On Appeal from the United States District Court
for the Eastern District of Pennyslvania
D.C. Civil Action No. 05-cv-05060
(Honorable John P. Fullam)
Submitted Pursuant to Third Circuit LAR 34.1(a)
April 17, 2008
Before: SLOVITER, JORDAN and ALARCÓN , Circuit Judges*
(Filed: April 22, 2008 )
OPINION OF THE COURT

-- 1 of 18 --

2
ALARCÓN, Circuit Judge.
Staci K. Johnson appeals the District Court's order affirming the Commissioner of
Social Security's denial of Johnson's claim for disability insurance benefits (“DIB”) under
Title II of the Social Security Act. Johnson contends that the Commissioner’s finding
was erroneous for two reasons. First, she alleges that the Administrative Law Judge
(“ALJ”) overlooked several of her treating physician’s opinions. Those opinions, she
argues, supported a finding that Johnson was disabled. Second, Johnson contends that the
ALJ’s disability conclusion was based on an answer a vocational expert provided to an
incomplete hypothetical question posed by the ALJ. She alleges that the expert’s answer
did not constitute substantial evidence that Johnson was not disabled because the
hypothetical question, which pertained to her ability to secure gainful employment,
omitted some of Johnson’s impairments.
We have appellate jurisdiction pursuant to 28 U.S.C. § 1291. Neither of Johnson’s
contentions undermine the ALJ’s conclusion. Therefore, we affirm the District Court’s
decision.
I
Until she stopped working in December 1989, Johnson was a hairdresser and salon
manager. She quit as a result of an on-the-job injury, which caused pain in her right arm
and shoulder. In 1990, she was diagnosed with thoracic outlet syndrome of her right
shoulder. Johnson applied for disability insurance benefits on April 25, 1997, alleging

-- 2 of 18 --

3
that she became disabled on December 7, 1989 due to “thoracic outlet syndrome of the
right shoulder.” Johnson was last insured for DIB on March 31, 1991, and in her
application, she attempted to establish that she was disabled on or before that date.
Johnson’s DIB application was denied. She challenged that initial denial in a
hearing before an ALJ. On July 22, 1998, the ALJ denied Johnson’s claim, finding that
she was not disabled during the relevant time period because her impairments did not
prevent her from performing work in the national economy. Johnson appealed, and the
Appeals Council remanded the case back to the ALJ because the tape recording of the
hearing before the ALJ was partially inaudible. After a second hearing, the same ALJ
again found that Johnson was not disabled during the relevant time period because there
were “a significant number of jobs in the national economy that she could perform.”
Johnson appealed that decision, and the Appeals Council remanded the case once more,
with specific instructions regarding the evidence the ALJ should consider. The case was
reassigned to a different ALJ.
Johnson testified at her third ALJ hearing. Her testimony from the two prior
hearings was read into the record. A vocational expert also testified. Johnson was again
found to be not disabled during the relevant time period. The ALJ concluded that
Johnson has not engaged in substantial gainful activity since her alleged onset of
disability date. However, the ALJ concluded that prior to April 1, 1991, “the claimant
retained the residual functional capacity to perform a sedentary work-related activity . . .

-- 3 of 18 --

4
.” Although the ALJ concluded that Johnson could not perform any of her past relevant
work, the ALJ did find that Johnson could find other work. Based on testimony provided
by the vocational expert, the ALJ concluded that Johnson could work as a “surveillance
system monitor . . . call-out operator . . . and . . . order clerk.” Therefore, Johnson was not
entitled to DIB because prior to April 1, 1991, she “retained the capacity for work that
exists in significant numbers in the national economy . . . .”
Johnson sought review of the Commissioner’s decision before the District Court
pursuant to 42 U.S.C. § 405(g). The District Court adopted a Magistrate Judge’s Report
and Recommendation, which recommended denying Johnson’s motion for summary
judgment, and granting the Commissioner’s motion for summary judgment. The District
Court agreed with the Magistrate Judge that substantial evidence supported the
Commissioner’s finding that Johnson was not entitled to DIB.
II
“While we exercise plenary review with respect to the order for summary
judgment, our review of the ALJ's decision is more deferential as we determine whether
there is substantial evidence to support the decision of the Commissioner.” Knepp v.
Apfel, 204 F.3d 78, 83 (3d Cir. 2000). “Substantial evidence does not mean a large or
considerable amount of evidence, but rather such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Hartranft v. Apfel, 181 F.3d 358, 360
(3d Cir. 1999) (internal quotations and citations omitted).

-- 4 of 18 --

5
As a preliminary matter, we note that to receive disability insurance benefits
pursuant to Title II of the Social Security Act, a claimant must show that she was insured
under the program at the time of onset of her disability. Kane v. Heckler, 776 F.2d 1130,
1131 n.1 (3d Cir. 1985). Johnson was insured for DIB through March 31, 1991.
Therefore, the relevant period for purposes of establishing whether she qualifies for DIB
is the time between December 7, 1989, her alleged disability onset date, and March 31,
1991, the date she was last insured.
A
Johnson first argues for reversal alleging that “the ALJ improperly disregarded the
opinions of Appellant’s treating hand specialist.” She breaks this argument into three
subparts; she contends that each mandates reversal because the treating doctor’s opinions
supported a finding that she was disabled during the relevant time period.
Johnson claims that testimony Dr. Hunter provided during her Workers’
Compensation claim hearing on October 13, 1993 is the evidence the ALJ should not
have overlooked. She cites to the following portion of Dr. Hunter’s testimony:
The early studies showed that, in fact, [Johnson] did have an
early involvement of the brachial plexus, which are the nerves
that run the extremity, but more clearly were defined to two
specific points in the median nerve. One near the elbow and
the other one at the wrist and the hand, in which there was
slowing. It was documented on two occasions by
electromyographic studies as well as the clinical evaluations,
that in this nerve is the one specifically involved in how you
feel with your thumb, index and middle finger. The proximal
part of this nerve as you pass into the neck under the collar

-- 5 of 18 --

6
bone and join the brachial plexus was also involved and it’s a
run down both back and forth. So its [sic] strange to me
another physician on consultation can’t observe that the
patient had really almost no feeling in this part of her hand.
She couldn’t hold small objects. If she was blindfolded she
couldn’t pick up a nickel because she couldn’t find it with her
hand. She couldn’t handle earrings and clasps.
Pet’r Br. at 25-26 (citing R. 555) (emphasis added in Petitioner’s Brief). Johnson also
cites to Dr. Hunter’s testimony from the same hearing in which he stated that despite a
number of conservative measures, Johnson “was failing . . . [i]n August of ‘91, our
median nerve problem was that she couldn’t feel and she couldn’t hold small things with
her hand.” Id. at 26 (citing R. 556). “During this same deposition, Dr. Hunter read from
his office note of August 15, 1991, at which time he recommended surgery.” Id.
In analyzing Johnson’s DIB claim, the ALJ followed the Social Security
Administration’s five-step evaluation process. Johnson’s arguments regarding Dr.
Hunter’s opinions challenge the ALJ’s conclusions regarding Johnson’s ability to perform
“past relevant work” and “several other jobs” in the national economy. We construe this
as a challenge to the ALJ’s step four finding regarding Johnson’s residual functional
capacity, “that which an individual is still able to do despite the limitations caused by his
or her impairment(s).” Fargnoli v. Halter, 247 F.3d 34, 40 (3d Cir. 2001) (internal
quotations and citations omitted). “The ALJ must consider all relevant evidence when
determining an individual's residual functional capacity in step four.” Id. at 41.

-- 6 of 18 --

7
1
We first turn to Johnson’s contention that Dr. Hunter’s testimony should have
determined the outcome of Johnson’s claim because it was a treating physician’s opinion
entitled to “significant, if not controlling evidentiary weight.”
“Under applicable regulations and the law of this Court, opinions of a claimant's
treating physician are entitled to substantial and at times even controlling weight.”
Fargnoli, 247 F.3d at 43 (citing 20 C.F.R. § 404.1527(d)(2)). However, the treating
source’s opinion is entitled to controlling weight only when it is “‘well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent
with the other substantial evidence in [the claimant's] case record . . . .’” Id. at 43
(quoting 20 C.F.R. § 404.1527(d)(2)).
Johnson does not distinguish between any of the statements in Dr. Hunter’s cited
testimony, but rather contends that each of them were entitled to controlling weight.
However, there are important differences between the statements. The first two
underlined portions of Dr. Hunter’s testimony (“The early studies showed that, in fact,
[Johnson] did have an early involvement of the brachial plexus” and “[i]t was
documented on two occasions by electromyographic studies as well as the clinical
evaluations”), were given controlling weight by the ALJ. The ALJ expressly noted that:
“[o]n February 7, 1991, Dr. Hunter reported that clear positive studies of EMG’s were
read, implicating a brachial plexus traction injury on the right with brachial plexus

-- 7 of 18 --

We are aware of no authority that requires an ALJ to quote from a treating doctor’s1
opinion verbatim in order to evidence the ALJ’s grasp of the information contained
within.
8
fixation and chronic neuropathy.” This statement supports the ALJ’s conclusion that
“[b]ased upon a complete review of the medical evidence, the undersigned finds the
medical evidence established that prior to April 1, 1991, thoracic outlet syndrome and
depression were medically determinable conditions that resulted in more than minimal
functional and vocation limitations and required significant medically appropriate
treatment regiments.”
Similarly, the final piece of cited evidence, that “[d]uring this same deposition, Dr.
Hunter read from his office note of August 15, 1991, at which time he recommended
surgery,” was not improperly overlooked. This exact testimony, and Dr. Hunter’s August
15, 1991 office note, are missing from the ALJ’s conclusions. However, the ALJ noted
that at some time between February 7, 1991, and July 2, 1991, Dr. Hunter “noted that
[Johnson] would need surgery.” The ALJ’s inclusion of this piece of evidence does not
support Johnson’s contention that the ALJ failed to give Dr. Hunter’s surgery conclusion
controlling weight.1
The section of Dr. Hunter’s testimony regarding Johnson’s fine manipulation (“the
patient had really almost no feeling in this part of her hand. She couldn’t hold small
objects. If she was blindfolded she couldn’t pick up a nickel because she couldn’t find it
with her hand. She couldn’t handle earrings and clasps”) did not make it into the ALJ’s

-- 8 of 18 --

9
opinion. Similarly, Dr. Hunter’s testimony that Johnson “was failing . . . [i]n August of
‘91, our median nerve problem was that she couldn’t feel and she couldn’t hold small
things with her hand” is not part of the ALJ’s conclusions. However, these portions of
testimony were not entitled to controlling weight because they are inconsistent with the
other substantial evidence in the record.
The ALJ cited to an overwhelming amount of evidence in support of her
conclusion that Johnson retained some use of her hands after March 31, 1991. The ALJ
noted that Johnson was examined on May 28, 1991; at that time, “she had full motion of
the shoulder, elbow, wrist, and fingers.” On November 25, 1991, Johnson was evaluated
by an occupational therapist, who determined that she had “hand grip strength of 5
pounds on the right and 25 to 30 pounds on the left. Pinch strength was also 5 pounds on
the right and 18 pounds on the left.” Also, the ALJ noted that although Johnson testified
that her condition had only worsened, the evidence also established that:
[Johnson] married and gave birth to two children since March
31, 1991. While she testified that she was and remains unable
to hold, bathe, feed, lift or do any other physical activity for
the children at any time, the undersigned finds it odd that
there is no record of the claimant having mentioned these
limitations to a doctor . . . Currently, she testifies that she
never drives, but the written evidence shows she described
vision difficulties interfering with night driving only.

-- 9 of 18 --

Johnson also cites to Dr. Hunter’s testimony that Johnson’s impairments rendered2
her “unable to perform not only her past relevant work, but several other jobs which were
offered during the course of her Workers’ Compensation claim.” This is not the sort of
treating source medical opinion entitled to any kind of weight. The applicable regulations
provide that “[a] statement by a medical source that you are ‘disabled’ or ‘unable to work’
does not mean that we will determine that you are disabled.” 20 C.F.R. § 404.1527
(e)(1). Conclusions of this kind are “reserved to the Commissioner . . . because they are
administrative findings that are dispositive of a case; i.e., that would direct the
determination or decision of disability.” § 404.1527 (e).
10
Johnson’s arguments that the above-cited testimony was improperly disregarded
and entitled to controlling weight are without merit.2
2
Johnson also contends that the ALJ should be reversed because an ALJ cannot
reject evidence without reason. She asserts that the ALJ had a duty to explain why Dr.
Hunter’s opinions were credited or not. Much of the testimony Johnson claims was not
relied upon by the ALJ was in fact sufficiently incorporated into the ALJ’s findings, as
explained above. With regard to Dr. Hunter’s statements regarding Johnson’s ability to
use her hands for fine manipulation, we reject Johnson’s argument that the ALJ was
required to consider it.
Johnson relies on Burnett v. Comm’r, 220 F. 3d 112, 121 (3rd Cir. 2000), for the
proposition that an ALJ must “‘give some indication of the evidence which he rejects and
his reason(s) for discounting such evidence.’” Johnson has selectively quoted from the
paragraph in which this sentence appears. The paragraph provides:

-- 10 of 18 --

11
The ALJ did err by reason of his failure to consider and
explain his reasons for discounting all of the pertinent
evidence before him in making his residual functional
capacity determination. In making a residual functional
capacity determination, the ALJ must consider all evidence
before him. . . . Although the ALJ may weigh the credibility
of the evidence, he must give some indication of the evidence
which he rejects and his reason(s) for discounting such
evidence.
Burnett, 220 F.3d at 121 (emphasis added). The paragraph concludes with the
admonishment that “‘[i]n the absence of such an indication, the reviewing court cannot
tell if significant probative evidence was not credited or simply ignored.’” Id. (quoting
Cotter v. Harris, 642 F.2d 700, 705 (3d Cir. 1981)) (emphasis added).
Citation to the entire paragraph clarifies that an ALJ may not reject pertinent or
probative evidence without explanation. See Cotter, 642 F.2d at 706 (“[T]here is a
particularly acute need for some explanation by the ALJ when s/he has rejected relevant
evidence or when there is conflicting probative evidence in the record.”); id. at 706-07
(“[A]n explanation from the ALJ of the reason why probative evidence has been rejected
is required so that a reviewing court can determine whether the reasons for rejection were
improper.”). Johnson has cited no authority for the proposition that an ALJ must cite all
evidence a claimant presents, including evidence that is irrelevant to her case.
The ALJ was entitled to overlook Dr. Hunter’s testimony regarding Johnson’s fine
manipulations because it was neither pertinent, relevant nor probative. It was elicited on
October 13, 1993, in response to the question: “[b]ased not only upon [the October 7,

-- 11 of 18 --

12
1993] exam but the exams preceding that, I don’t want to go through each one since your
treatment spans over three years, but do you have an opinion as to [Johnson’s] current
medical condition and her diagnosis?” To the extent that the quoted testimony addresses
Johnson’s health as of October 13, 1993, it does not undercut the ALJ’s disability
conclusion. Johnson had to establish that she was disabled before April 1, 1991. See
Bacon v. Sullivan, 969 F.2d 1517, 1518 (3d Cir. 1992) (explaining that to receive
disability insurance benefits, an applicant must establish that she was disabled prior to
“the date her status as an insured expired”).
To the extent that Dr. Hunter’s fine manipulation testimony speaks to a relevant
time period, the ALJ was still entitled to reject it without explanation. Overwhelming
evidence in the record discounted its probative value, rendering it irrelevant. As
explained above, substantial evidence supports the ALJ’s conclusion that as of March 31,
1991, and for several months after that date, Johnson’s fine manipulation was not as
impaired as Dr. Hunter suggested it was in his testimony.
Johnson’s Opening Brief anticipates our conclusion that Dr. Hunter’s testimony
regarding fine manipulation was irrelevant, and offers several rebuttals. First, she
contends that the District Court’s rejection of Dr. Hunter’s workers’ compensation
testimony on the ground that the testimony was irrelevant requires reversal. She argues
that the District Court’s affirmance on this ground was “legally erroneous” because an
administrative order must be judged on the grounds upon which “‘the record discloses

-- 12 of 18 --

13
that its action was based.’” Pet’r Br. at 27 n.23 (quoting Fargnoli, 247 F.3d at 44 n.7).
That is, Johnson alleges that the District Court cannot reject evidence for reasons that the
ALJ failed to mention.
Johnson’s argument distorts the cited authority. Fargnoli criticized the district
court for “recognizing the ALJ's failure to consider all of the relevant and probative
evidence,” but yet attempting “to rectify this error by relying on medical records found in
its own independent analysis, and which were not mentioned by the ALJ.” 247 F.3d at 44
n.7. Fargnoli does not establish that a district court may not explain an ALJ’s failure to
cite irrelevant evidence, and we cannot reverse the District Court on this ground.
Second, Johnson argues that if Dr. Hunter’s testimony was chronologically
ambiguous, pursuant to 20 C.F.R. § 416.912(e)(1), Dr. Hunter should have been
recontacted to clarify the ambiguity in his testimony. That is, the ALJ should have
contacted Dr. Hunter to ask him if his comments regarding Johnson’s fine manipulation
limitations pertained to the time during which she was insured.
Section 416.912(e)(1) provides that a medical source will be recontacted for
purposes of clarification “when the report from your medical source contains a conflict or
ambiguity that must be resolved, the report does not contain all the necessary information,
or does not appear to be based on medically acceptable clinical and laboratory diagnostic
techniques.” However, the language in Section 416.912(e)(1) is preceded by the
following qualification: recontact will proceed if “the evidence we receive from your

-- 13 of 18 --

14
treating physician or psychologist or other medical source is inadequate for us to
determine whether you are disabled.” This is an important prerequisite. See Thomas v.
Barnhart, 278 F.3d 947, 958 (9th Cir. 2002) (“[T]he requirement for additional
information is triggered only when the evidence from the treating medical source is
inadequate to make a determination as to the claimant's disability.”).
In failing to cite Dr. Hunter’s testimony, the ALJ implicitly rejected it. That
rejection did not trigger the ALJ’s duty to give Dr. Hunter an opportunity to explain
testimony that the record overwhelming disputed.
3
We next turn to Johnson’s argument that the ALJ should be reversed because
“despite a specific and direct mandate from the Appeals Council . . . the ALJ completely
failed to address any of Dr. Hunter’s opinions.”
On remand, “[t]he administrative law judge shall take any action that is ordered by
the Appeals Council and may take any additional action that is not inconsistent with the
Appeals Council's remand order.” 20 C.F.R. § 404.977(b).
In remanding Johnson’s case to a third hearing before an ALJ, the Appeals Council
noted that “[t]he record contains statements from Dr. Hunter regarding the claimant’s
work limitations that are not addressed in the decision.” App. at 58 (citing Exhibit 11F,
and pages 141 and 142 of Exhibit 1F). Contrary to Johnson’s assertions, the Appeals

-- 14 of 18 --

15
Council did not order the ALJ to expressly consider those exhibits. Rather, it ordered the
ALJ to: “[g]ive consideration to the treating source opinion . . . [f]urther evaluate the
claimant’s mental impairment . . . [g]ive further consideration to the claimant’s maximum
residual functional capacity . . . [and] [o]btain supplemental evidence from a vocational
expert to clarify the effect of the assessed limitations on the claimant’s occupational
base.”
The ALJ devoted ample consideration to Johnson’s treating physicians. With
regard to Dr. Hunter, the ALJ described three notes about Johnson’s impairments written
by Dr. Hunter in detail. The ALJ’s decision complies with 20 C.F.R. § 404.977(b).
B
Johnson also argues that the ALJ committed reversible error because she posed an
incomplete hypothetical question to a vocational expert. Johnson contends that the
hypothetical did not incorporate the limitations from Dr. Hunter’s opinions.
At step five of the disability analysis, the burden shifts to the Commissioner “to
show that other jobs exist in significant numbers in the national economy that the
claimant could perform.” Rutherford v. Barnhart, 399 F.3d 546, 551 (3d Cir. 2005).
“Advisory testimony from a vocational expert is often sought by the ALJ for that purpose
. . . and factors to be considered include medical impairments, age, education, work
experience and RFC.” Id. “We do not require an ALJ to submit to the vocational expert
every impairment alleged by a claimant.” Id. at 554 (emphasis added). Rather, “the

-- 15 of 18 --

16
hypotheticals posed must ‘accurately portray’ the claimant's impairments and [] the expert
must be given an opportunity to evaluate those impairments ‘as contained in the record.’”
Id. (citation omitted).
Johnson contends that the hypothetical question posed was incomplete because
“the ALJ failed to address Dr. Hunter’s opinions regarding Johnson’s significant
functional limitations, especially the limitations on fine manipulation.” Also, she argues
that “Dr. Hunter opined that Johnson had essentially no functional use of the dominant
right upper extremity.” Johnson alleges that bilateral manual dexterity is necessary for
substantially all unskilled sedentary occupations.
The ALJ’s hypothetical question instructed the vocational expert that:
I want you to assume an individual of the Claimant’s age,
education and work experience, having the following residual
functional capacity: being able to lift up to 10 pounds, sit for
six hours, stand and walk for two hours with an at-will
sit/stand option; no repetitive reaching, fingering and
handling; no overhead reaching – that’s bilaterally; and being
limited to simple, repetitive tasks. Could that individual
return to Claimant’s past relevant work?
The vocational expert answered that question “no.” The ALJ clarified that by “repetitive
tasks” she meant “continuous” tasks. Also, the ALJ noted that she wanted to hear about
the availability of jobs “with only occasional hand-use.” The vocational expert listed
several jobs that a person only able to use her hands occasionally could perform.
The hypothetical posed by the ALJ accurately portrays Johnson’s impairments.
The only evidence Johnson presents in support of her contention that she had significant

-- 16 of 18 --

17
“fine manipulation” limitations is not supported by a citation to the record. To the extent
that Johnson relies on Dr. Hunter’s testimony that Johnson “couldn’t hold small objects”
or “pick up a nickel,” those statements do not accurately portray Johnson’s impairments;
therefore, the ALJ was not required to incorporate them into her hypothetical question.
As explained above, overwhelming evidence suggests that prior to April 1, 1991, Johnson
retained “occasional hand use.” Nothing about the hypothetical requires reversal. For
that reason, we need not determine whether a person who lacks bilateral manual dexterity
is presumptively disabled.
III
The ALJ’s decision denying Johnson’s DIB addressed Johnson’s medical history,
from her alleged onset date of December 7, 1989, to the present. The ALJ’s decision
cited treatment notes from Johnson’s orthopedist, psychologist, and hand surgeons,
among others. The ALJ also noted Johnson’s own testimony regarding the severity of her
pain and functional limitations. The ALJ resolved inconsistencies in the record, and gave
multiple reasons in support of her conclusion that Johnson’s claims regarding her physical
capacities prior to March 31, 1991 were somewhat unreliable. The ALJ also cited an
Occupational Therapist’s assessment of Johnson’s functional capacities as of November
25, 1991.

-- 17 of 18 --

18
We conclude that the ALJ’s decision is an exhaustive evaluation of the evidence in
this case, and that the ALJ’s conclusion is supported by substantial evidence.
AFFIRMED.

-- 18 of 18 --