Viola Myers v. COMMISSIONER OF SOCIAL SECURITY Appeal from the United States District Court for the…

The Honorable Nora Barry Fischer, United States District Judge for the Western*
District of Pennsylvania, sitting by designation.
NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-2906
VIOLA MYERS,
Appellant
v.
COMMISSIONER OF SOCIAL SECURITY
Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil Action No. 2-07-cv-00609)
District Judge: Honorable William J. Martini
Submitted Under Third Circuit LAR 34.1(a)
May 14, 2009
Before: AMBRO and ROTH, Circuit Judges and FISCHER, District Judge*
(Opinion filed : August 11, 2009 )
OPINION

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FISCHER, District Judge
Claimant Viola Myers appeals from an order of the United States District Court for
the District of New Jersey affirming the denial of disability insurance benefits and
supplemental security income benefits. We will affirm.
Myers applied for social security benefits on October 1, 2002, alleging disability and
the inability to work due to asthma, manic-depression, lower back pain, and blackouts. The
Commissioner denied her application on February 27, 2003. After exhausting her
administrative remedies, Myers appealed the denial to the District Court, which entered an
order on September 9, 2005, remanding the case to the Administrative Law Judge (“ALJ”)
for further consideration.
Post-remand hearings were conducted, and a vocational expert, among others,
testified. On November 15, 2006, the ALJ again determined that Myers was not entitled to
benefits, finding, inter alia, that she “retained the residual functional capacity to perform
medium and light work involving no greater than simple, repetitive tasks[ ] in an
environment free of excessive pulmonary irritants[ ] not involving supervision by a
particularly authoritative or harsh supervisor.” In February 2007 Myers sought review of the
ALJ’s determination in the District Court, which subsequently affirmed the denial of benefits
on April 30, 2008. Myers timely appealed.
We have jurisdiction pursuant to 28 U.S.C. § 1291 and 42 U.S.C. § 405(g). Under our
limited scope of review, we, like the District Court, “must uphold a final agency

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determination unless we find that it is not supported by substantial evidence in the record.”
Rutherford v. Barnhart, 399 F.3d 546, 552 (3d Cir. 2005). Substantial evidence constitutes
“such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Newell v. Comm’r of Soc. Sec., 347 F.3d 541, 545 (3d Cir. 2003) (quoting
Richardson v. Perales, 402 U.S. 389, 390 (1971)). Although “more than a mere scintilla[,
substantial evidence] may be somewhat less than a preponderance of the evidence.”
Rutherford, 399 F.3d at 552 (quoting Ginsburg v. Richardson, 436 F.2d 1146, 1148 (3d Cir.
1971)). “[W]e are not permitted to weigh the evidence or substitute our own conclusions for
that of the fact-finder.” Burns v. Barnhart, 312 F.3d 113, 118 (3d Cir. 2002).
In this Court, Myers faults the ALJ for finding that she retained the capacity to
perform jobs within the national economy. She argues that the ALJ improperly reached that
conclusion by posing insufficient hypothetical questions to the vocational expert and ignoring
portions of that expert’s testimony elicited by her attorney. As a result, Myers contends that
the District Court’s order affirming the denial of benefits must be reversed. We disagree.
A “vocational expert’s testimony concerning a claimant’s ability to perform
alternative employment may only be considered for purposes of determining disability if the
[ALJ’s hypothetical] question[s] accurately portray[ ] the claimant’s individual physical and
mental” limitations. Podedworny v. Harris, 745 F.2d 210, 218 (3d Cir. 1984). Sufficient
hypothetical questions will thus “reflect all of a claimant’s impairments.” Burns, 312 F.3d
at 123 (quoting Chrupcala v. Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987) (emphasis

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Because the District Court’s order will be affirmed, Myers’s request for1
provisional benefits pending disposition on remand is necessarily denied.
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added)). “Fairly understood, [the] reference[ ] to all impairments . . . means that the ALJ
must accurately convey to the vocational expert all of a claimant’s credibly established
limitations[,]” not every alleged impairment. Rutherford, 399 F.3d at 554.
Our careful review of the record convinces us that the ALJ’s hypothetical questions
encompassed all of Myers’s credibly established limitations, including, and despite Myers’s
assertions to the contrary, her deficiencies in concentration. See id. (discussing “when a
limitation is credibly established”). We further find that the ALJ did not ignore any of the
vocational expert’s testimony regarding those credible impairments and that the expert’s
relevant statements supported the ALJ’s conclusion that an individual with Myers’s
limitations retained the capacity to work. As such, substantial evidence exists for the ALJ’s
decision to deny benefits.
The order of the District Court entering judgment for the Commissioner will be
affirmed.1

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