to the Dictionary of Occupational Titles. Therefore, it was
unnecessary to question the vocational expert as to job
availability given petitioner's specific characteristics and
limitations. At the fifth step, the regulations regard the use
of a vocational expert as discretionary with the ALJ, not
mandatory. See 20 C.F.R. § 404.1566(e) ("If the issue in
determining whether you are disabled is whether your skills can
be used in other work and the specific occupations in which they
can be used, or there is a similarly complex issues, we may use
the services of a vocational expert or other specialist.").
At the fourth step, the ALJ found the petitioner not disabled
— and, consequently, there was no need to inquire whether
petitioner could perform other jobs in the national economy.
"The Secretary has . . . promulgated . . . regulations, which
provide that, at step four, vocational factors are not
considered in determining whether or not a claimant retains the
residual functional capacity to perform past relevant work."
Williams v. Sullivan, 970 F.2d 1178, 1187 (3d Cir. 1992).
There is substantial evidence in the record that petitioner is
able to perform his past relevant work as a carpet cleaner and
is not disabled, and petitioner has not met his burden of proof
to the contrary.
An order accompanies this memorandum.
AND NOW, this 7th day of January, 2000, upon consideration of
the parties' cross-motions for summary judgment, and after
review of the Report and Recommendation of the Magistrate Judge
and defendant's objections thereto, the following is ordered:
1. The Report and Recommendation, as supplemented, — not
2. Plaintiffs motion for summary judgment — denied.
3. Defendant's motion for summary judgment — granted.
*fn2 At the end of the hearing and after the ALJ made note of
the "[paucity] of the medical information in the file,"
petitioner's counsel requested time to submit additional medical
records. Rec. at 79. On March 12, 1997, the ALJ sent a notice
asking if counsel still intended to submit such evidence. Id.
at 168. The ALJ received no response and submitted his report on
July 23, 1997. Id. at 13, 168.
*fn3 The Appeals Council determined "there is no basis under
the . . . regulations for granting your request for review."
Rec. at 2.
*fn4 There is minimal discussion in the record of petitioner's
hypertension, and the ALJ noted, "his hypertension is controlled
and I find it to be nonsevere." Rec. at 10. In addition,
hypertension was not mentioned in any of petitioner's subsequent
*fn5 Medical reports were received from Dr. Reina (treating
physician following petitioner's automobile accident), rec. at
130-36, and Dr. Thakarar (consultative examiner), id. at
144-49, together with medical assessments without treatment
notes or observations from Dr. Silverman (internal medicine) and
Dr. Maloles. Id. at 138-43. Dr. Resnick, an orthopedist,
evaluated the petitioner for the Social Security Administration.
Id. at 152-53.
*fn6 The ALJ noted the absence of clinical notes or tests to
substantiate the reports of Drs. Maloles and Silverman, the
latter of whom determined that petitioner would be incapacitated
for a year and six months. Rec. at 11. "Dr. Silverman, while a
treating physician, has failed to support his conclusion of
*fn7 The ALJ discounted Dr. Thakarar's report finding
lumbosacral tenderness and limitation of motion of the back and
a "physical functional assessment which limits the claimant to
less than sedentary work." Rec. at 11. Dr. Thakarar's assessment
— according to the ALJ — "is not supported by her own
observations, diagnostic testing, or any other evidence in the
*fn8 Light work is defined by the Social Security
Administration as work that "involves lifting no more than 20
pounds at a time with frequent lifting or carrying of objects
weighing up to 10 pounds. Even though the weight lifted may be
very little, a job in this category requires a good deal of
walking or standing, or when it involves sitting most of the
time with some pushing and pulling of arm or leg controls."
20 C.F.R. § 404.1567(b).
*fn9 Step one — is the claimant engaged in substantial gainful
activity? If Yes, a finding of not disabled is mandated.
20 C.F.R. § 404.1520(a), (b). Step two — does the medical evidence
indicate that the claimant suffers from a severe impairment that
significantly limits physical or mental ability to engage in
basic work activity? If No, claimant is not disabled.
20 C.F.R. § 404.1520(c). Step three — does the impairment meet or equal
criteria for a listed impairment in Appendix 1, Subpart P of
Regulation No. 4? 20 C.F.R. § 404.1520(d). If Yes, claimant is
disabled. Step four — does the claimant retain the residual
functional capacity to perform past relevant work?
20 C.F.R. § 404.1520(e). If Yes, claimant is not disabled. Step 5 —
considering the claimant's residual functional capacity, age,
education, and past work experience, is the claimant capable of
performing other work that exists in the national or regional
economies? 20 C.F.R. § 404.1520(f). If No, the claimant is
*fn10 Plaintiff's motion attaches two physician's reports that
were not presented to the ALJ or the Appeals Council. The
reports predate the hearing. Pl.'s mem. exs. A, B. The ALJ left
the record open from December 1996 to July 1997 for additional
medical evidence. Moreover, petitioner submitted no additional
evidence to the Appeals Council. Evidence not adduced below
cannot now be considered. Review must be limited to the
certified record. See Wilson v. Apfel, 179 F.3d 1276, 1278-79
(11th Cir. 1999); Eads v. Secretary of Dep't of Health and
Human Servs., 983 F.2d 815, 817-18 (7th Cir. 1993) ("It would
change our role from that of a reviewing court to that of an
[ALJ], required to sift and weigh evidence in the first
instance, rather than limited as we are to reviewing evidentiary
determinations made by the front-line factfinder."); Matthews
v. Apfel, Civ.A. No. 98-1125, 1999 WL 1268043, at * ___
(E.D.Pa. Dec. 28, 1999). Under provision 42 U.S.C. § 405(g), a
case may be remanded to the Commissioner for additional evidence
"but only on a showing that there is new evidence which is
material and that there is good cause for the failure to
incorporate such evidence into the record in a prior
proceeding." Petitioner has not offered any explanation for not
having presented the reports to the ALJ or the Appeals Council.
*fn11 The Commissioner objected on three grounds: 1) the Report
and Recommendation discusses parts of the record not objected to
by the petitioner — and therefore waived on appeal; 2) the
Magistrate Judge impermissibly raised the issues sua sponte;
and 3) in the alternative, the Report and Recommendation was
contrary to law. Def.'s objections, at 12. As the Report and
Recommendation was not adopted, these issues will not be
*fn12 Residual function capacity is "what you can still do
despite your limitations." 20 C.F.R. § 404.1545.
*fn13 This evidence consisted of the reports and evaluations of
two consultative physicians — Drs. Thakarar and Resnick. The
assessments of the treating physician — Dr. Silverman — was on a
medical assessment form and included no treatment notes or other
evidence used by the doctor to reach the determination that
petitioner is "temporarily disabled." Rec. at 138, 140. The
notes of treating physician Dr. Reina are not legible. Rec. at
*fn14 In filling out a hearing request form, petitioner did not
complete the section requiring him to identify the medications
he was taking. Rec. at 128 (cited by ALJ at 11). Petitioner
reported to Dr. Resnick that he was not taking any medications
in April, 1996. Rec. at 152 (cited by ALJ at 11). Petitioner
seems to have taken pain killers in the past, rec. at 59
("taking ibuprofen and I think Darvocet" at the time petitioner
stopped working) 116, 132-33, 138, 143, 144, but there is also
evidence that petitioner did not continue with medication, rec.
at 129, 140, 144 ("medications did not help him much"), 152.
*fn15 The Social Security regulations incorporate the
Dictionary of Occupational Titles. "To determine the physical
exertion requirements of work in the national economy, we
classify jobs as `sedentary,' `light,' `medium,' `heavy,' and
`very heavy.' These terms have the same meaning as they have in
the Dictionary of Occupational Titles, published by the
Department of Labor." 20 C.F.R. § 404.1567. See also
20 C.F.R. § 404.1569(a) ("The classification of a limitation as exertional
is related to the United States Department of Labor's
classification of jobs by various exertional levels . . . in
terms of strength demands for sitting, standing, walking,
lifting, carrying, pushing, and pulling.").
*fn16 The following colloquy helps to explain why the
vocational expert did not testify:
ALJ: "I don't have any questions today for Mr. Young.
In view of the [paucity] of the medical information
in the file, but if you want to ask Mr. Young any
questions that you think might be beneficial to your
client, I'd be happy to have Mr. Young sworn
in. . . ."
Atty: "I think we'll hold off on that until . . .
another opportunity if we need to."
Rec. at 79.