                                                                NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                 ______________

                                       No. 18-1654
                                     ______________

                              MICHAEL SCOTT TRACEY,

                                                                Appellant

                                             v.

                        COMMISSIONER SOCIAL SECURITY
                                ______________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                              (D.C. Civ. No. 3-17-cv-00470)
                     Honorable Malachy E. Mannion, District Judge
                                    ______________

                      Submitted under Third Circuit L.A.R. 34.1(a)
                                   October 22, 2018

             BEFORE: KRAUSE, COWEN, and FUENTES, Circuit Judges

                                 (Filed: January 22, 2019)
                                     ______________

                                       OPINION*
                                     ______________




____________________

* This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
COWEN, Circuit Judge.

          Michael S. Tracey appeals from the order of the United States District Court for

the Middle District of Pennsylvania adopting the report and recommendation of the

Magistrate Judge, denying Tracey’s appeal from the decision of the Commissioner of

Social Security (“Commissioner”), and affirming the Commissioner’s decision. We will

affirm.

                                               I.

          Tracey filed for disability insurance benefits and supplemental security income.

After his claim was initially denied, an Administrative Law Judge (“ALJ”) conducted an

evidentiary hearing. He found that Tracey was not disabled under the Social Security

Act. Specifically, the ALJ determined that Tracey possessed the residual functional

capacity (“RFC”) to perform light work with the following exceptions:

          [O]ccasional stoop, kneel, crouch, crawl and climb stairs; must avoid
          hazards such as unprotected heights; and can perform occasional handling
          and fingering with the dominant right upper extremity. The claimant can
          understand, remember and carry out simple work related instructions, is
          limited to exercising only simple work related judgments, requires no more
          than occasional changes to the routine work setting, and can perform only
          occasional interactions with the public, coworkers and supervisors.

(A66 (emphasis omitted).) Finding that Tracey was unable to perform his past relevant

work, the ALJ determined that “[c]onsidering the claimant’s age, education, work

experience, and residual functional capacity, there are jobs that exist in significant

numbers in the national economy that the claimant can perform.” (A71 (emphasis

omitted) (citations omitted).) “The vocational expert testified that given all of these

factors the individual would be able to perform the requirements of representative

                                               2
occupations such as a conveyor line bakery worker, DOT#524.687-022 (88,000 jobs in

the national economy), an egg candler, DOT#529.687-074 (98,000 jobs in the national

economy) and a car[d]ing machine operator, DOT#681.685-030 (130,000 jobs in the

national economy).” (A71.) The ALJ further determined “that the vocational expert’s

testimony [was] consistent with the information contained in the Dictionary of

Occupational Titles.” (Id.)

       After his administrative appeal was denied, Tracey filed a complaint with the

District Court. In a report and recommendation, the Magistrate Judge recommended that

the Commissioner’s final decision be affirmed and that Tracey’s requests for relief be

denied. The Magistrate Judge explained that, “[a]s defined [in the Dictionary of

Occupational Titles (“DOT”), which includes the companion publication the Selected

Characteristics of Occupations Defined in the Revised Dictionary of Occupational Titles

(‘SCO’)], the job [of conveyor line bakery worker] is capable of performance by

someone with Mr. Tracey’s RFC limitation.” Tracey v. Berryhill, Civil No. 3:17-cv-

00470, 2018 WL 1100392, at *6 (M.D. Pa. Feb. 5, 2018) (Saporito, U.S.M.J.) (“Tracey

I”). Accordingly, any error regarding the other two jobs identified by the ALJ would be

harmless. See id. at *7-*8.

       Tracey filed objections to the Magistrate Judge’s report and recommendation. The

District Court overruled his objections and adopted the report and recommendation:

“The court finds that Judge Saporito correctly found that the ALJ did not err in finding

that plaintiff could perform the job of conveyor line bakery worker based on plaintiff’s

RFC finding that he was limited in the amount of handling and fingering with his upper

                                             3
right extremity and, based on the [DOT] description of that job.” Tracey v. Berryhill,

Civil No. 3:17-cv-00470, 2018 WL 1096430, at *3 (M.D. Pa. Feb. 28, 2018). “The DOT

states that the job of bakery worker requires occasional handling and no fingering and,

this is within the plaintiff’s RFC limitations.” Id. Accordingly, the District Court denied

Tracey’s appeal from the Commissioner’s decision and affirmed the administrative

ruling.

                                                II.

          It is undisputed that, in this case, the ALJ had to assess whether, considering

Tracey’s age, education, work experience, and RFC, he was able to perform other work

that exists in significant numbers in the national economy.1 See, e.g., 20 C.F.R. §§

404.1520(a)(4)(v), 404.1560(c). The RFC is defined as “‘that which an individual is still

able to do despite the limitations caused by his or her impairment(s).’” Burnett v.

Comm’r of Soc. Sec., 220 F.3d 112, 121 (3d Cir. 2000) (quoting Hartranft v. Apfel, 181

F.3d 358, 359 n.1 (3d Cir. 1999)). “ALJs rely primarily on the [DOT] (including its

companion publication the [SCO]). SSR 00-4p, 2000 WL 1898704 at *2. ALJs also

often rely on testimony by VEs [vocational experts] retained by the Social Security

Administration.” Tracey I, 2018 WL 1100392, at *5. Tracey argues that the Magistrate

Judge improperly denied his claim “based solely on the premise that Mr. Tracey could

perform the job of a conveyor line bakery worker on a full-time, sustained basis if he was


          1
         The District Court had subject matter jurisdiction pursuant to 42 U.S.C. § 405(g),
and we have appellate jurisdiction under 28 U.S.C. § 1291. Like the District Court, we
review the Commissioner’s factual findings under a substantial evidence standard. See,
e.g., Chandler v. Comm’r of Soc. Sec., 667 F.3d 356, 359 (3d Cir. 2011).
                                                4
only able to perform the visual aspects of the position.” (Appellant’s Brief at 7.)

Purportedly, “there is simply no evidence of record to support the Commissioner’s

position that an individual can work on a full-time sustained basis as a conveyor line

bakery worker without using their dominant upper extremity on more than an occasional

basis.” (Id. at 13.) According to Tracey, the ALJ and the Magistrate Judge misread the

DOT narrative definition or description of this job and overlooked the general description

of light work. Tracey also contends that “[t]he discussion between the ALJ and the

vocational expert as to Mr. Tracey’s ability to mentally perform the duties of a conveyor

line bakery worker is equivocal as to whether the position is within the ALJ’s mental

RFC assessment of Mr. Tracey,” the DOT’s job description is silent on this mental

capacity issue, and the Magistrate Judge failed to address his mental limitations. (Id. at

7.) Finally, he asserts that the ALJ failed to clarify the apparent conflicts between the

DOT and the vocational expert’s testimony and that neither the ALJ nor the vocational

expert relied on anything other than the DOT’s narrative description of the job.

       We conclude that the ALJ’s finding that Tracey could perform the job of conveyor

line bakery worker was supported by substantial evidence. The vocational expert

specifically indicated that a hypothetical individual—who, inter alia, is limited to “only

occasional handling and fingering with dominant right upper extremity” and “can

understand, remember, and carry out simple work relate[d] judgments, can exercise only

simple work related judgments, limited to no more than occasional interactions with

members of the public, coworkers, and supervisors” (A93)—could perform the

occupation of conveyor line bakery worker. According to the expert, “one example

                                              5
would be conveyor line bakery worker, DOT number 524.687-022.” (A94.) “The [DOT

narrative] definition begins with the qualifier, ‘Performs any combination of following

tasks in preparation of cakes along conveyor line….’” Tracey I, 2018 WL 1100392, at *6

(citation omitted). As the Magistrate Judge explained, there are elements of the job that

would not require more than occasional use of Tracey’s upper right extremity, e.g.,

“Reads production schedule or receives instructions regarding bakery products that

require filling and icing,” and “Notifies supervisor of malfunctions.” DOT #524.687-

022, 1991 WL 674401. The SCO (the DOT’s “companion” publication) states that the

job requires “Handling: Occasionally—Exists up to 1/3 of the time” and “Fingering: Not

Present—Activity or condition does not exist.” Id. Regarding the issue of mental

capacity, it appears undisputed that “[t]he DOT assigns the Conveyor Line Bakery

Worker occupation the lowest rating in the ‘people’ category [i.e., the ‘8’ in the ‘687’

occupation code], defined as ‘Taking Instructions-Helping.’” (Appellee’s Brief at 16

(footnote omitted).) The ALJ’s hypothetical question also incorporated Tracey’s mental

limitation, and the vocational expert identified conveyor line bakery worker as an

appropriate occupation.

                                            III.

       For the foregoing reasons, we will affirm the order of the District Court.




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