Smith v. Commissioner of Social Security, No. 09-2983; Third Circuit; opinion by Barry, U.S.C.J.; filed November 22, 2010. Before Judges Barry, Chagares and Vanaski. On appeal from the District Court, No. 08-cv-02875 [Sat below: Judge Cavanaugh.] DDS No. 01-8-0849 [10 pp.]

Wayne Smith appeals from an order of the District Court affirming a decision of the commissioner of the Social Security Administration. That decision denied Smith’s claims for disability insurance benefits and supplemental security income under the Social Security Act.

Smith argues that the hypothetical question posed to the vocational expert, Rocco Meola, did not fully reflect the medical conclusions of three medical experts: Dr. M. Graff, Dr. Benito Tan and Dr. Daniel Edelman.

Dr. Tan completed a Form SSA-4734-BK-SUP — a Mental Residual Functional Capacity Assessment. Section I of the form, titled summary conclusions, requires that the person filling it out select one of the following options for 20 psychological attributes: not significantly limited, moderately limited, markedly limited, no evidence of limitation in this category, or not ratable on available evidence. Dr. Tan found that Smith was not significantly limited for 14 attributes and moderately limited for six attributes.

Dr. Graff also completed a Mental Residual Functional Capacity Assessment. Dr. Graff selected not significantly limited for 10 attributes and moderately limited for 10 attributes.

Dr. Daniel Edelman completed a psychological evaluation of Smith, and reached the following conclusions: “Claimant can follow and understand simple directions and instructions and perform simple tasks independently. He may have difficulty, at present, maintaining attention and concentration for tasks of significant complexity. He cannot presently maintain a regular schedule. He would have difficulty, at present, learning new tasks. He would have difficulty, at present, performing select complex tasks. He cannot, at present, make appropriate decisions, relate adequately with others, or appropriately deal with stress. Difficulties are caused by depression.”

During the hearing, the ALJ took testimony from Meola, the vocational expert. The ALJ posed the following hypothetical question: “I’d like to assume a person the claimant’s age, education and work history. And further assume that this individual is limited to medium work, simple, routine, repetitive, one or two-step tasks and jobs where they would just have occasional interaction with the public or co-workers. Given this hypothetical individual, could this person perform the past relevant work of the claimant?” Meola responded: “He could do the job of loading and unloading truck [sic] as he did it. And general warehouse work is also — would meet the classification.”

Counsel for Smith asked Meola about the various respects in which Dr. Graff and Dr. Tan had concluded that Smith was “moderately limited” in § I of the Mental Residual Functional Capacity Assessment. After the ALJ directed counsel to provide Meola a definition of “moderate,” Meola suggested that “moderate” might mean “that the person is not preclud[ed] from doing the activity, but does not do it at a level that would be consistent with what’s acceptable in a national workforce.” If Smith were so limited in all the respects noted by Dr. Graff and Dr. Tan, Meola testified, Smith would not be able to return to his past relevant work.

Smith contends that the hypothetical question posed by the administrative law judge (ALJ) to the vocational expert did not sufficiently convey all of Smith’s limitations, and that, as a result, the commissioner’s decision was not supported by substantial evidence.

Held: Smith cannot rely on the worksheet component of the Mental Residual Functional Capacity Assessment to argue that the hypothetical question posed by the ALJ to the vocational expert was deficient.

Smith’s main argument is that the hypothetical question did not sufficiently include Dr. Tan and Dr. Graff’s conclusions that Smith was “moderately limited” in the various areas that they noted in § I of the Mental Residual Functional Capacity Assessment. As the Social Security Administration’s guidelines explain, however, “Section I is merely a worksheet to aid in deciding the presence and degree of functional limitations and the adequacy of documentation and does not constitute the RFC assessment.” Numerous district courts in this circuit have recognized this point and held that § I of the form may be assigned little or no weight.

It bears noting that the definition of “moderate limitation” assumed by Meola is incorrect. The Social Security Administration has provided a specific definition of the term in the context of the Mental Residual Functional Capacity Assessment, indicating that “moderately limited” should be selected when the individual’s capacity to perform the activity is impaired. The definition does not require that the individual’s capacity be at a level that is unacceptable in a national work force; rather, the instructions specify that “[t]he degree and extent of the capacity or limitation must be described in narrative format in Section III.”

Because Smith cannot rely on the worksheet component of the Mental Residual Functional Capacity Assessment to contend that the hypothetical question was deficient, his argument is without merit as it pertains to Dr. Tan and Dr. Graff. As to Smith’s contention that the hypothetical question failed to include the conclusions of Dr. Edelman, Smith’s failure to raise any argument as to Dr. Edelman in the District Court operates to waive that argument here.

The judgment of the District Court is affirmed.

— By Debra McLoughlin

For appellant — Abraham S. Alter and James Langton (Langton & Alter). For appellee — Susan J. Reiss, Social Security Administration, Office of General Counsel-Region II.