Burnett v. Comm. Social Security Admin. ( 2000 )

Opinions of the United
2000 Decisions States Court of Appeals
for the Third Circuit
7-25-2000
Burnett v. Comm. Social Security Admin.
Precedential or Non-Precedential:
Docket 99-5827
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Filed July 25, 2000
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 99-5827
ETHEL BURNETT,
Appellant,
v.
COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION
Appeal from the United States District Court
For the District of New Jersey
(D.C. Civil No. 96-02003)
District Judge: Honorable Garrett E. Brown, Jr.
Argued: June 20, 2000
BEFORE: GREENBERG and WEIS, Circuit Judges,
and SCHWARTZ, District Judge*
(Filed: July 25, 2000)
Thomas H. Klein (Argued)
Smith & Klein
100 Broad Street
Eatontown, NJ 07724
Attorney for Appellant
_________________________________________________________________
* Honorable Morton I. Greenberg, Circuit Judge, assumed Senior Status
on 6/30/00. Honorable Murray M. Schwartz, Senior United States
District Judge for the District of Delaware, sitting by designation.
Anthony J. LaBruna, Jr. (Argued)
Assistant United States Attorney
District of New Jersey
970 Broad Street, Suite 700
Newark, NJ 07102
Attorney for Appellee
OPINION OF THE COURT
SCHWARTZ, Senior District Judge.
Ethel Burnett ("Burnett"), asserting error in the denial of
her application for social security disability insurance
benefits under Title II of the Social Security Act ("the Act"),
42 U.S.C. SS 401-433, has appealed the District Court's
order affirming the final decision of appellee, Commissioner
of Social Security ("Commissioner"), to deny Burnett's claim
for disability benefits. The District Court exercised
jurisdiction under 42 U.S.C. S 405(g), and this Court has
jurisdiction over Burnett's appeal pursuant to 28 U.S.C.
S 1291. For the reasons set forth below, we vacate the
District Court's order affirming the Commissioner's decision
and remand the case with instructions to return it to the
Commissioner for further proceedings consistent with this
opinion.
I. Background
Burnett, born January 6, 1935, has a 10th grade
education and worked in supermarket meat and
delicatessen departments from 1977 to 1991. She injured
her right knee and lower back in a slip and fall accident at
work in December 1989. Burnett maintains her back and
knee injuries have rendered her totally unable to work
since May 18, 1991.
A. Medical History
Burnett was first seen for her knee injury in January,
1990 by Dr. Charles Makowski, who placed her on a
conservative treatment regime and referred her to Dr.
Richard Surgent. Dr. Surgent observed minor swelling,
2
tenderness of the patella, and muscle weakness in her knee
and that she walked with an antalgic gait, favoring her
right side. Dr. Surgent ordered an x-ray of the knee, which
showed slight narrowing of the medial compartment and
joint effusion. He diagnosed her with chondromalacia and
prescribed pain killers and physical therapy.
Burnett received physical therapy through Pinelands
Physical Therapy from January 1990 through March 1990.
In March, 1990 the physical therapist's discharge summary
indicated that Burnett had "progressed well" and had
returned to work. Dr. Surgent's notes regarding a March
27, 1990 visit indicated Burnett still had some tenderness
and grating sensation in the right knee but concluded she
had reached a plateau with regard to further treatment.
In the summer of 1991, Burnett twice visited Dr.
Makowski, complaining of back pain. MRI scans of her
lower back performed for Dr. Makowski indicatedfirst
degree spondylolisthesis of the lumbar spine (slight forward
displacement of L5 over S1) but no significant spinal
stenosis. An X-ray of Burnett's knee showed joint effusion
and a narrowed medial compartment. Dr. Makowski again
referred Burnett to Dr. Surgent, although she apparently
did not see him. Dr. Makowski prescribed pain killers and
physical therapy.
Burnett returned to Pinelands for sixteen physical
therapy sessions on her knee during July and August
1991. The therapist's notes indicated that Burnett declined
treatment for her lower back and that, on release, Burnett's
range of motion in her right knee had increased and her
knee strength had increased from fair to good.
Burnett was seen by Dr. Roy Mittman in January 1992,
complaining of knee and back pain and that her knee gives
out during standing. Dr. Mittman observed no medial or
lateral joint line tenderness and no gross instability in the
knee. He also noted some discomfort, some patellofemoral
grinding, and a 1/4 inch atrophy in her right quadricep. He
gave Burnett an injection for pain. At a follow-up visit in
February, Dr. Mittman concluded Burnett did not have a
significant problem with her knee and that she could return
to work, noting, however, he was not authorized to deal
with Burnett's back problems.
3
In April 1992, Dr. Alfred Hess conducted a consultive
orthopedic examination of Burnett for the Social Security
Administration ("SSA"). He observed no joint inflammation,
crepitus, or pain on palpation of extremities; normal
strength and range of motion in the knee; a small cyst in
the right knee; no muscle atrophy; normal gait with no
significant antalgia or ataxia and no need for assistive
device. He noted a swelling on the coccyx, and concluded it
was probably a benign bone tumor. He did not order x-rays
or an MRI and did not review her earlier films. Dr. Hess
concluded Burnett could lift and carry up to 20 pounds and
could "sit and stand intermittently during an eight hour
day." R. 163.1
In March 1993, Dr. Herbert Knapp saw Burnett and
observed she had a broad-based gait, that she favored her
right leg slightly, and could not assume even a partial
squat. He noted "full extension and [loss of] about 60
degrees of flexion of the right knee complaining of pain in
the right patella when flexing." R. 167. Dr. Knapp noted a
palpable muscle spasm of the paravertebral lumbar
musculature associated with tenderness running from S1
to L4 and tenderness in lumbosacral joint. He diagnosed
her with bilateral paravertebral lumbar myositis,
lumbosacral sprain, and right knee sprain. Dr. Knapp
found Burnett's flexion and extension in her back to be
somewhat less than the normal range of motion. He
concluded Burnett was "permanently disabled
orthopaedically to the extent of 30% of the total," with no
improvement expected. Id.
Burnett was next seen in 1993 by Dr. Steven Berkowitz.
His examination revealed "a mild limp on the right,
tenderness over sacrum and coccyx posteriorly with a
limited range of motion, [and] an equivocal straight leg test
on the right." R. 169. He also noted no neurological deficits.
Based on review of Burnett's earlier computerized
tomography ("CT") scan and MRI, Dr. Berkowitz diagnosed
her with a degenerative disk at the L5-S1 level with
hyperlordosis of the lumbar spine, but noted there was no
evidence of spinal stenosis or nerve root entrapment. He
_________________________________________________________________
1. The Administrative Record is referred to as"R. ___."
4
prescribed non-steroidal anti-inflammatory medication and
concluded there was no need for surgery.
Finally, Burnett's file was reviewed by Dr. Atienza, a
physician for the state of New Jersey, who completed a
disability determination and transmittal form on January
29, 1994. Based solely on her records, he concluded
Burnett could frequently lift 25 pounds and occasionally lift
50 pounds, could stand/walk for 6 out of 8 hours per day,
could sit for 6 out of 8 hours per day, had no limitations on
pushing or pulling arm or leg controls, and could frequently
engage in postural activities, such as climbing, stooping,
kneeling, crouching, and crawling. He listed diagnoses of
osteoarthritis and chronic pain syndrome, but noted no
neurological deficit. On April 28, 1994, Dr. Sandler, also
apparently a physician for the state of New Jersey,
concurred in Dr. Atienza's assessment.
B. Procedural History
In January 1992, Burnett filed for Social Security
disability benefits, asserting her knee and spine injuries
and back pain rendered her unable to work since May 18,
1991, at which time she was 56 years old. According to
Burnett's hand-written vocational report, her job at the
supermarket was as a "deli clerk." She claimed her job
required her to walk and stand 8 hours out of an 8 hour
day, lift a maximum of 50 pounds at a time, frequently lift
25 pounds, constantly bend, cut and wrap cheese, and use
a slicer to clean cheese. The Social Security interviewer who
took Burnett's application stated Burnett had difficulty
sitting, had to stand periodically during the interview, and
complained of back pain. Burnett's claim was denied in
May 1992. She missed the appeal time.
Burnett re-filed an application in November 1993,
asserting that her knee and back pain had worsened.
Burnett's disability report stated she was in constant pain
from her leg and spine and that she could neither sit nor
stand for too long. Her vocational report again indicated she
formerly worked at a supermarket as a "deli clerk," and also
that she had worked in the meat department, weighing,
wrapping, and lifting trays of meat. Also, the SSA claims
interviewer again stated Burnett had difficulty with sitting
5
and also with walking, noting that she had to stand several
times during the interview and that she walked with a limp.
After her application was again denied, Burnett requested
a hearing before an ALJ, which was held on February 1,
1995. Burnett testified her job involved being on her feet all
day, lifting 50 pound cases of cheese from trucks onto
dollies, wheeling them to her department, unloading the
cases, cutting cheese, and bending. She maintained she
has constant and persistent pain in her knee and lower
back. Burnett has never been hospitalized or sought
emergency care for this condition. She also testified she
takes several different pain medications which help
somewhat and do not cause any side effects. Burnett also
treats her pain with warm soaks and a heating pad. She
uses a "donut" to sit to alleviate the pain and numbness in
her back. She cannot stand and walk for more than thirty
minutes before her leg gets numb and she has to sit, and
she cannot sit for more than twenty or thirty minutes
before her spine hurts or her tailbone gets numb and she
has to stand. She also claims she cannot sleep for more
than four hours per night due to the pain. She can only do
light shopping and household chores and cannot bend
without pain. She goes grocery shopping but can only lift a
five pound bag. According to Burnett, she is in constant
pain, which is worsened by physical activity, and she
cannot engage in social activities or work.
Burnett's husband, George Burnett, submitted a letter to
the ALJ attesting that, since her fall, Burnett can neither
stand nor sit for any length of time without substantial
pain, that she has chronic trouble sleeping, and that she is
dependent on pain pills. Burnett's neighbor, Earl Sherman,
also testified at the hearing and confirmed Burnett's pain
and difficulty standing, walking, and sitting.
The ALJ denied Burnett's claim on August 17, 1995 in a
written opinion. R. 10-18. He first concluded Burnett had
not engaged in substantial gainful activity since May 18,
1991, the alleged date of the onset of her disability. He next
found that, since that time, Burnett has been suffering
from "a severe musculoskeletal impairment." R. 15.
However, the ALJ concluded Burnett's impairment failed to
meet or equal the level of severity of any of the listed
6
disabling conditions set forth in Appendix 1, Subpart P of
Social Security Regulations No. 4. See 20 C.F.R. Pt. 404,
Subpart P, App. 1 (1999). Finally, he determined Burnett
"retained the residual functional capacity to perform her
past relevant work as a delicatessen clerk, an occupation
requiring light exertional demands." R. 18. Therefore, the
ALJ concluded Burnett was not disabled.
Burnett requested review of the ALJ's decision by the
Appeals Council, asserting the decision was not supported
by substantial evidence. In March 1996, the Appeals
Council denied her request for review, rendering the ALJ's
decision the final decision of the Commissioner for
purposes of judicial review. Having exhausted her
administrative remedies, in April 1996, Burnett sought
review of the Commissioner's final decision in U.S. District
Court pursuant to 42 U.S.C. S 405(g). The District Court
affirmed the Commissioner's denial of benefits and
dismissed Burnett's case in August 1999.
II. Discussion
We review the ALJ's decision under the same standard of
review as the District Court, to determine whether there is
substantial evidence on the record to support the ALJ's
decision. See 42 U.S.C. S 405(g); Plummer v. Apfel, 186 F.3d
422, 427 (3d Cir. 1999) (citing Adorno v. Shalala, 40 F.3d
43, 46 (3d Cir.1994)). Substantial evidence has been
defined as "more than a mere scintilla"; it means "such
relevant evidence as a reasonable mind might accept as
adequate." Plummer, 186 F.3d at 427 (internal quotations
omitted).
In order to establish a disability under the Social Security
Act, Burnett must demonstrate some " `medically
determinable basis for an impairment that prevents him
from engaging in any "substantial gainful activity" for a
statutory twelve-month period.' " Plummer , 186 F.3d at 427(quoting Stunkard v. Secretary of Health & Human Servs.,
841 F.2d 57, 59 (3d Cir.1988)); see also 42 U.S.C.
S 423(d)(1). Burnett is considered unable to engage in any
substantial gainful activity " `only if[her] physical or mental
impairment or impairments are of such severity that[s]he
7
is not only unable to do [her] previous work but cannot,
considering [her] age, education, and work experience,
engage in any other kind of substantial gainful work which
exists in the national economy.' " Id. at 427-28 (quoting 42
U.S.C. S 423(d)(2)(A)).
In Plummer, we recounted the five step sequential
evaluation for determining whether a claimant is under a
disability, as set forth in 20 C.F.R. S 404.1520:
In step one, the Commissioner must determine
whether the claimant is currently engaging in
substantial gainful activity. 20 C.F.R. S 1520(a). If a
claimant is found to be engaged in substantial activity,
the disability claim will be denied. Bowen v. Yuckert,
482 U.S. 137, 140, 107 S.Ct. 2287, 2290-91, 96
L.Ed.2d 119 (1987). In step two, the Commissioner
must determine whether the claimant is suffering from
a severe impairment. 20 C.F.R. S 404.1520(c). If the
claimant fails to show that her impairments are
"severe", she is ineligible for disability benefits.
In step three, the Commissioner compares the
medical evidence of the claimant's impairment to a list
of impairments presumed severe enough to preclude
any gainful work. 20 C.F.R. S 404.1520(d). If a claimant
does not suffer from a listed impairment or its
equivalent, the analysis proceeds to steps four andfive.
Step four requires the ALJ to consider whether the
claimant retains the residual functional capacity to
perform her past relevant work. 20 C.F.R.
S 404.1520(d). The claimant bears the burden of
demonstrating an inability to return to her past
relevant work. Adorno v. Shalala, 40 F.3d 43, 46 (3d
Cir. 1994).
If the claimant is unable to resume her former
occupation, the evaluation moves to the final step. At
this stage, the burden of production shifts to the
Commissioner, who must demonstrate the claimant is
capable of performing other available work in order to
deny a claim of disability. 20 C.F.R. S 404.1520(f). The
ALJ must show there are other jobs existing in
significant numbers in the national economy which the
8
claimant can perform, consistent with her medical
impairments, age, education, past work experience,
and residual functional capacity. The ALJ must analyze
the cumulative effect of all the claimant's impairments
in determining whether she is capable of performing
work and is not disabled.
Plummer, 186 F.3d at 428.
In this case, the ALJ addressed the first four steps and
found: (1) Burnett has not engaged in substantial gainful
activity since May 18, 1991; (2) Burnett is severely
impaired, that is, she suffers from a "severe
musculoskeletal impairment"; (3) Burnett's impairment
does not meet or equal the criteria for a listed impairment;
and (4) Burnett has the residual functional capacity to
enable her to perform her past relevant work as a
"delicatessen clerk." R. 17-18. Accordingly, the ALJ
concluded that Burnett is not disabled for purposes of
Social Security disability benefits. The ALJ did not reach
step five of the analysis.
On appeal, Burnett first contends the ALJ erred in step
three by finding her impairment did not meet or equal a
listed impairment. Second, Burnett argues the ALJ erred in
step four by finding she had the residual functional
capacity to enable her to perform her past relevant work.
Finally, Burnett asserts remand for a step five analysis is
unnecessary because the record is clear she cannot
perform any work in the national economy. Therefore, she
maintains, we should vacate and remand with a directive to
award benefits.
A. Step Three: Whether Burnett's Impairment Matches
or is Equivalent to a Listed Impairment
In step three, the ALJ must determine whether Burnett's
impairment matches, or is equivalent to, one of the listed
impairments. See Plummer, 186 F.3d at 428. If the
impairment is equivalent to a listed impairment, then
Burnett is per se disabled and no further analysis is
necessary. See id. The ALJ's step three analysis states in its
entirety:
Although [Burnett] has established that she suffers
from a severe musculoskeletal [impairment], said
9
impairment failed to equal the level of severity of any
disabling condition contained in Appendix 1, Subpart P
of Social Security Regulations No. 4.
R. 16.
Burnett first contends ALJ erred by making only a
conclusory statement without mentioning any specific listed
impairments or explaining his reasoning. Second, Burnett
asserts the ALJ erred because there was not substantial
evidence to conclude her knee and back impairments were
not equivalent to impairments listed in sections 1.03 and
1.05C of the listed impairments. Third, Burnett asserts the
ALJ erred by not considering the combined effects of her
impairments in determining whether they were equivalent
to a listed impairment. See 20 C.F.R. S 404.1527(a) (stating
that, if there is more than one impairment, the SSA will
consider whether the combination of impairments are
equivalent to any listed impairment).
As to Burnett's first contention, this Court requires the
ALJ to set forth the reasons for his decision. See Cotter v.
Harris, 642 F.2d 700, 704-05 (3d Cir. 1981). In Clifton v.
Chater, 79 F.3d 1007 (10th Cir. 1996), the Tenth Circuit
Court of Appeals set aside an ALJ's determination because
the ALJ "merely stated a summary conclusion that
appellant's impairments did not meet or equal any Listed
Impairment," without identifying the relevant listed
impairments, discussing the evidence, or explaining his
reasoning. Id. at 1009. The Court concluded"[s]uch a bare
conclusion is beyond meaningful judicial review." Id. But
see Senne v. Apfel, 198 F.3d 1065, 1067 (8th Cir. 1999)
(rejecting claimant's argument that the conclusory form of
the ALJ's decision alone justified remand, but remanding
nonetheless because the court could not conclude the ALJ's
step three finding was supported by substantial evidence).
We agree with Burnett the ALJ's conclusory statement in
this case is similarly beyond meaningful judicial review. Cf.
Knepp v. Apfel, 204 F.3d 78, 84 (3d Cir. 2000) (affirming
where ALJ gave reasons for determining claimant's
impairment was not equivalent to a listed impairment cited
by medical witness at hearing). Because we have no way to
review the ALJ's hopelessly inadequate step three ruling, we
will vacate and remand the case for a discussion of the
10
evidence and an explanation of reasoning supporting a
determination that Burnett's "severe" impairment does not
meet or is not equivalent to a listed impairment. 2 On
_________________________________________________________________
2. At the hearing in front of the ALJ, Burnett's counsel did not identify
or raise the two listed impairments which he now argues are pertinent.
On appeal, the Commissioner does not assert that Burnett or her
counsel were required to do so. While the burden is on the claimant to
present medical findings that show his or her impairment matches a
listing or is equal in severity to a listed impairment, see Williams v.
Sullivan, 970 F.2d 1178, 1186 (3d Cir. 1992), it is unclear from the
regulations or caselaw whether a claimant must identify the relevant
listing(s). The applicable regulations indicate that it is within the
realm
of the ALJ's expertise to determine the closest applicable listed
impairment, based on the medical evidence, when examining whether a
claimant's impairments meet or equal a listed impairment:
(a) How a medical equivalence is determined. We will decide that
your impairment(s) is medically equivalent to a listed impairment
in
appendix 1 if the medical findings are at least equal in severity
and
duration to the listed findings. We will compare the symptoms,
signs, and laboratory findings about your impairment(s), as shown
in the medical evidence we have about your claim, with the medical
criteria shown with the listed impairment. If your impairment is
not
listed, we will consider the listed impairment most like your
impairment to decide whether your impairment is medically equal.
If you have more than one impairment, and none of them meets or
equals a listed impairment, we will review the symptoms, signs, and
laboratory findings about your impairment to determine whether the
combination of your impairments is medically equal to any listed
impairment.
20 C.F.R. S 404.1526 (1999). See also Clifton v. Chater, 79 F.3d at 1009(noting, in reversing ALJ determination that claimant was not disabled
at step three, that ALJ did not "even identify the relevant Listing or
Listings"). Putting the responsibility on the ALJ to identify the relevant
listed impairment(s) is consistent with the nature of Social Security
disability proceedings which are "inquisitorial rather than adversarial"
and in which "[i]t is the ALJ's duty to investigate the facts and develop
the arguments both for and against granting benefits." Sims v. Apfel, No.
98-9537, 120 S.Ct. 2080, 2000 U.S. LEXIS 3766, at *15 (June 5, 2000)
(citing Richardson v. Perales, 402 U.S. 389, 400-01, 28 L.Ed.2d 842, 91
S.Ct. 1420 (1971)). Such reasoning is further supported by the fact "that
a large portion of Social Security [disability benefits] claimants either
have no representation at all or are represented by non-attorneys." Id. at
*17 (citation omitted).
11
remand, the ALJ shall fully develop the record and explain
his findings at step three, including an analysis of whether
and why Burnett's back and knee impairments, or those
impairments combined, are or are not equivalent in severity
to one of the listed impairments.
B. Step Four: Whether Burnett's Residual Functional
Capacity Enables Her to Perform Past Relevant
Work
In step four, the ALJ must determine whether a
claimant's residual functional capacity enables her to
perform her past relevant work. This step involves three
substeps: (1) the ALJ must make specific findings of fact as
to the claimant's residual functional capacity; (2) the ALJ
must make findings of the physical and mental demands of
the claimant's past relevant work; and (3) the ALJ must
compare the residual functional capacity to the past
relevant work to determine whether claimant has the level
of capability needed to perform the past relevant work. See
20 C.F.R. S 404.1561; S.S.R. 82-62; Winfrey v. Chater, 92
F.3d 1017, 1023 (10th Cir. 1996). Both residual functional
capacity and past relevant work may be classified as either
"sedentary," "light," "medium,""heavy," or "very heavy." See
Adorno, 40 F.3d at 47; 20 C.F.R. S 404.1567.
The ALJ first determined Burnett had a residual
functional capacity to perform "light" work. R. 16-17.
Second, the ALJ found her past relevant work was as a
delicatessen clerk and consisted of "light" work. Id. Finally,
the ALJ concluded that she had the residual functional
capacity to perform her past relevant work as a delicatessen
clerk. Id. Burnett contends the ALJ erred in determining
both her residual functional capacity and her past relevant
work. We agree.
1. The Residual Functional Capacity Determination
" `Residual functional capacity' is defined as that which
an individual is still able to do despite the limitations
_________________________________________________________________
Because the ALJ concluded that Burnett had a "severe
musculoskeletal impairment," it follows that, on remand, the analysis of
the listed impairments should focus on those listed in 20 C.F.R. Pt. 404,
Subpt. P. App. 1, Pt. A S 1.00 (Musculoskeletal System).
12
caused by his or her impairment(s)." Hartranft v. Apfel, 181
F.3d 358, 359 n.1 (3d Cir. 1999) (citing 20 C.F.R.
S 404.1545(a)). The ALJ determined Burnett had the
residual functional capacity to perform "light" work, which:
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 is in this category when it 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. To be considered capable of performing
a full or wide range of light work, you must have the
ability to do substantially all of these activities.
20 C.F.R. S 404.1567(b). Burnett contends the ALJ's
decision is not supported by substantial evidence because:
(i) the ALJ failed to consider all of the evidence before him;
(ii) the ALJ failed to consider the combined effects of her
two impairments; and (iii) the evidence does not support a
finding she can perform "light" work.
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. See Plummer, 186 F.3d at 429; Doak v. Heckler,
790 F.2d 26, 29 (3d Cir. 1986). 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. See Plummer, 186
F.3d at 429; Cotter, 642 F.2d at 705. "In the absence of
such an indication, the reviewing court cannot tell if
significant probative evidence was not credited or simply
ignored." Cotter, 642 F.2d at 705.
In Adorno, this Court set aside an ALJ determination for
failure to mention and refute some of the contradictory
medical evidence before him. See 40 F.3d at 48. Similarly,
the ALJ in this case failed to mention or refute some of the
contradictory medical evidence before him. The ALJ
discussed the following objective medical evidence in his
determination:
13
- Dr. Surgent's diagnosis of chondromalacia in the
knee with minor swelling and muscle weakness;
- MRI scan of lower back showing mild disc bulge
without stenosis;
- X-rays showing slight narrowing of the lateral
compartment of the knee;
- The physical therapist's report of good strength and
range of motion in knee;
- Dr. Mittman's report of no tenderness or instability
in knee and his releasing her to return to work;
- Dr. Hess's report finding no objective orthopaedic
defects, normal range of motion in back and knee,
no muscle spasm, negative straight leg raising test,
normal neurological responses, and ability to lift 20
pounds and sit and stand throughout workday;
- Dr. Knapp's diagnosis of knee sprain, lumbar
sprain, and lumbar myositis and his findings of
good knee stability, no atrophy in knee, ability to
perform heel to toe walking, no crepitus, nearly
normal range of motion in spine, and muscle spasm
in back;
- Dr. Berkowitz's prescription of non-steroidal anti-
inflammatory medication and physical therapy;
- the side effects of her medication.3
However, the ALJ failed to mention some contradictory,
objective medical evidence, including:
- Dr. Makowski's diagnosis, via MRI scan performed
by Dr. Vitale, of first degree spondylolisthesis in her
lower back;
- Dr. Atienza's diagnoses of osteoarthritis and chronic
pain syndrome and Dr. Sandler's concurrence in
these diagnoses;
- MRI of knee showing joint effusion;
_________________________________________________________________
3. This finding is required by Stewart v. Secretary of HEW, 714 F.2d 287,
290 (3d Cir. 1983).
14
- Dr. Surgent's report that Burnett still has grating
sensation in the knee and has reached a plateau
with regards to further treatment;
- Dr. Knapp's report of a loss of 10 degree range of
motion in spine and that she is 30% permanently
and totally disabled with no prognosis of
improvement;
- Dr. Berkowitz's report of a mild limp, tenderness
over sacrum and coccyx, and diagnosis of
hyperlordosis;
- Dr. Hess' assessment that Burnett could sit and
stand only "intermittently."
The ALJ's failure to mention and explain this contradictory
medical evidence was error. See Adorno, 40 F.3d at 48;
Cotter, 642 F.2d at 707. On remand, the ALJ must review
all of the pertinent medical evidence, explaining his
conciliations and rejections.
Similar to the medical reports, the ALJ must also
consider and weigh all of the non-medical evidence before
him. See Van Horn v. Schweiker, 717 F.2d 871, 873 (3d Cir.
1983); Cotter, 642 F.2d at 707. Although allegations of pain
and other subjective symptoms must be consistent with
objective medical evidence, see Hartranft, 181 F.3d at 362
(citing 20 C.F.R. S 404.1529), the ALJ must still explain
why he is rejecting the testimony. See Van Horn , 717 F.2d
at 873. In Van Horn, this Court set aside an ALJ's finding
because he failed to explain why he rejected certain non-
medical testimony. See 717 F.2d at 873. In this case, the
ALJ explained he rejected Burnett's testimony regarding the
extent of her pain because he determined it was not
supported by the objective medical evidence. However, the
ALJ failed to mention the testimony of Burnett's husband,
George Burnett, and her neighbor, Earl Sherman. On
appeal, the Commissioner contends the ALJ did not need to
mention their testimony because it "added nothing more
than stating [Burnett's] testimony was truthful."
Commissioner's Brief at 21. This argument lacks merit
because the ALJ made a credibility determination regarding
Burnett, and these witnesses were there to bolster her
credibility. R. 17 ("claimant's allegations of disability made
15
at hearing are unsubstantiated"). In Van Horn , we stated we
expect the ALJ to address the testimony of such additional
witnesses. On remand, the ALJ must address the testimony
of George Burnett and Earl Sherman.
Next, Burnett contends the ALJ erred by failing to
consider the combined effect of her knee and back
impairments. Burnett is correct that the ALJ must consider
the combined effect of multiple impairments, regardless of
their severity. See 20 C.F.R. S 404.1545. The ALJ's opinion
indicates he did consider the combined effects of Burnett's
impairments. However, because the ALJ failed to consider
all pertinent evidence, that ruling is brought into question.
On remand, the ALJ must properly consider the combined
effects of Burnett's two impairments.
Finally Burnett asserts the ALJ's finding that she can
perform "light" work is not supported by substantial record
evidence. Burnett claims she lacks the residual functional
capacity to even perform "sedentary" work. 4 Because the
ALJ erred in not evaluating all of the medical evidence, this
Court cannot now assess whether the ALJ's determination
that Burnett has the residual functional capacity to
perform "light" work was supported by substantial
evidence, let alone assess whether she lacks the residual
functional capacity to even perform "sedentary" work.
2. The Past Relevant Work Determination
A determination of past relevant work is a determination
of the "physical and mental demands of jobs a claimant has
performed in the past." S.S.R. 82-62. The ALJ determined
Burnett's past relevant work was as a "delicatessen clerk"
which involved only "light" work. R. 16-17. Burnett
challenges the ALJ's conclusion that her past relevant work
_________________________________________________________________
4. "Sedentary" work:
involves lifting no more than 10 pounds at a time and occasionally
lifting or carrying articles like docket files, ledgers, and small
tools.
Although a sedentary job is defined as one which involves sitting,
a
certain amount of walking and standing is often necessary in
carrying out job duties. Jobs are sedentary if walking and standing
are required occasionally and other sedentary criteria are met.
20 C.F.R. S 404.1567(a).
16
was "light" work as being unsupported by substantial
evidence. We agree.
S.S.R. 82-62 sets forth the evidence which should be
considered in making a determination of a claimant's past
relevant work:
The claimant is the primary source for vocational
documentation, and statements by the claimant
regarding past work are generally sufficient for
determining the skill level, exertional demands and
nonexertional demands of such work. Determination of
the claimant's ability to do [past relevant work]
requires a careful appraisal of (1) the individual's
statements as to which past work requirements can no
longer be met and the reason(s) for his or her inability
to meet those requirements; (2) medical evidence
establishing how the impairment limits ability to meet
the physical and mental requirements of the work; and
(3) in some cases, supplementary or corroborative
information from other sources such as employers, the
Dictionary of Occupational Titles, etc., on the
requirements of the work as generally performed in the
economy.
S.S.R. 82-62 (emphasis added). The assessment of a
claimant's past relevant work must be based on some
evidence drawn from the above three categories listed in
S.S.R. 82-62. See Brewster v. Heckler, 786 F.2d 581, 584
(3d Cir. 1986); Cotter, 642 F.2d at 707. It is clear error to
make a past relevant work determination that is contrary to
uncontroverted evidence presented by the claimant. See id.In both Brewster and Cotter, the ALJ was presented with
uncontroverted evidence from the claimant about the
nature of the claimant's past relevant work. See id. The ALJ
was not presented with and did not cite any contradictory
evidence, such as a Dictionary of Occupational Titles
("DOT") description of how the job is performed in the
national economy. See id. In both cases, the ALJ rejected
the claimant's testimony and found the past relevant work
to be of a different nature. See id. In both cases, this Court
reversed the ALJ's determination as being unsupported by
substantial evidence in the record because the ALJ's
17
assessment was different from the claimant's
uncontroverted testimony about the demands of his past
relevant work. See id.In this case, the ALJ was presented with uncontroverted
evidence submitted by Burnett. In her description of her
past relevant work on her vocational report, Burnett
indicated she was a "deli clerk," who walked and stood 8
hours out of an 8 hour day, lifted a maximum of 50 pounds
at a time, frequently lifted 25 pounds, constantly had to
bend, cut and wrapped cheese, and used a slicer to clean
cheese. In her testimony before the ALJ, she stated her past
relevant work involved being on her feet all day, lifting 50
pound cases of cheese from trucks onto dollies, cutting
cheese, and bending. This uncontroverted evidence
indicates her past relevant work involved "medium" work.5
However, the ALJ rejected Burnett's testimony and found
her past relevant work involved "light" work. R. 16, 18. The
ALJ held Burnett's description of her past relevant work
was "inconsistent with the way this occupation is
customarily performed in the national economy." R. 16.
Although the Commissioner argues this decision is
supported by three pieces of evidence, this purported
evidence does not contradict Burnett's vocational report
and testimony.
The ALJ cited as contradictory evidence, a purported
definition of "delicatessen clerk" in the DOT, which
allegedly states this job involves light work. R. 16. "The
Dictionary of Occupational Titles (DOT) descriptions can be
relied upon -- for jobs that are listed in the DOT -- to define
the job as it is usually performed in the national economy."
S.S.R. 82-61 (emphasis added). In this case, the ALJ made
up the occupational title of "delicatessen clerk." It is simply
nowhere to be found in the DOT, nor did the ALJ give any
reference to a particular DOT code. An illusory definition in
the DOT cannot be relied upon and is not contradictory
evidence.
_________________________________________________________________
5. "Medium work involves lifting no more than 50 pounds at a time with
frequent lifting or carrying of objects weighing up to 25 pounds." 20
C.F.R. S 404.1567(c).
18
The Commissioner, recognizing the ALJ created a non-
existent occupational title, attempts to substitute reliance
on an alternative DOT job title and definition not relied
upon by the ALJ, that of "Deli Cutter-Slicer," DOT
S 316.684-014, which is rated as "light" work.6 However, on
appeal the Commissioner cannot "recharacterize" the
claimant's past relevant work "in an effort to make sense of
the ALJ's decision." Adorno, 40 F.3d at 46-47. In Adorno,
the claimant's undisputed testimony was that her former
job was that of a machine operator, which exposed her to
fumes and heavy dust and that her asthma precluded such
exposure. On appeal, the agency argued that the claimant's
past work was that of a cabinetmaker, which as described
in the DOT did not expose the worker to dust and fumes.
We declared that such an "attempt to redefine[the
claimant's] former occupation" was unsupported by
substantial evidence in the record. Id. at 47. Similarly in
this case, the Commissioner's attempt to redefine Burnett's
past occupation is unsupported by substantial evidence.
Even if the Court did allow this recharacterization of
Burnett's job on appeal, the DOT can only be used to
supplement or corroborate evidence adduced from the
claimant. See S.S.R. 82-62. The occupation of Deli Cutter-
Slicer is different from the past relevant work described by
Burnett in that a Deli Cutter-Slicer merely cuts and slices
cheese and does not participate in the heavier work of
unloading cases of cheese from trucks. See DOT S 316.684-
014. In contrast, Burnett testified her past relevant work
required her to lift heavy cases of cheese from trucks. Since
_________________________________________________________________
6. A Deli Cutter-Slicer:
Cuts delicatessen meats and cheeses, using slicing machine, knives,
or other cutters: Places meat or cheese on cutting board and cuts
slices to designated thickness, using knives or other hand cutters.
Positions and clamps meat or cheese on carriage of slicing machine.
Adjusts knob to set machine for desired thickness. Presses button
to start motor that moves carriage past rotary blade that slices
meats and cheeses. Stacks cut pieces on tray or platter, separating
portions with paper. May weigh and wrap sliced foods and affix
sticker showing price and weight.
DOT S 316.684-014.
19
the DOT does not corroborate or supplement the
uncontroverted description given by Burnett, and is not
consistent with her description of her past relevant work,
this definition cannot be used to cast doubt on Burnett's
credibility as to her past relevant work.7
Inexplicably, the ALJ refuted Burnett's contention that
she lifted 50 pound boxes of cheese by observing she"is
diminutive, weighing no more than 100 pounds," making it
"unlikely" she would have been asked to lift 50 pounds on
the job. R. 17. However, an ALJ may not make speculative
conclusions without any supporting evidence, see Plummer,
186 F.3d at 429, not to mention conclusions apparently
based on gender stereotyping. In this case, there is
absolutely no evidence, medical or otherwise, that a 5 foot
tall, 100 pound woman would be unable to lift a 50 pound
box. In making this conclusion, the ALJ went beyond the
uncontradicted evidence in the case and committed error.
_________________________________________________________________
7. On appeal, Burnett asserts her past work was more akin to DOT
S 299.367-014, Stock Clerk, which has alternate titles including
Delicatessen-Goods Stock Clerk, and is defined as follows:
Inventories, stores, prices, and restocks merchandise displays in
retail store: Takes inventory or examines merchandise to identify
items to be reordered or replenished. Requisitions merchandise from
supplier based on available space, merchandise on hand, customer
demand, or advertised specials. Receives, opens, and unpacks
cartons or crates of merchandise, checking invoice against items
received. Stamps, attaches, or changes price tags on merchandise,
referring to price list. Stocks storage areas and displays with new
or
transferred merchandise. Sets up advertising signs and displays
merchandise on shelves, counters, or tables to attract customers
and promote sales. Cleans display cases, shelves, and aisles. May
itemize and total customer merchandise selection at check out
counter, using cash register, and accept cash or charge card for
purchases. May pack customer purchases in bags or cartons. May
transport packages to specified vehicle for customer.
DOT S 299.367-014. Although this position generally involves the
unloading of merchandise and is designated as a medium to heavy
occupation, it also involves other tasks related to inventory and pricing
that, based on the current record, Burnett does not appear to have done
in her past work. More likely, Burnett's past relevant work falls
somewhere between a deli cutter-slicer and a deli stock clerk as defined
in the DOT.
20
Finally, the Commissioner notes that Burnett did not
raise a specific objection to the ALJ's conclusion that she
worked as a delicatessen clerk in her request for review to
the Appeals Council.8 The Commissioner asserts that,
under the doctrine of administrative exhaustion, a court
should not consider an argument which has not been
specifically raised in agency proceedings which preceded
the appeal. Therefore, the Commissioner argues, Burnett
may not raise this issue as grounds for appeal. We
disagree. In Sims v. Apfel, supra note 2, the Supreme Court
directly addressed this issue and held that Social Security
disability "[c]laimants who exhaust administrative remedies
need not also exhaust issues in a request for review by the
Appeals Council in order to preserve judicial review of those
issues." 2000 U.S. LEXIS 3766, at * 18. Therefore, Burnett
is not precluded from raising this issue on appeal.
For the foregoing reasons, we hold the ALJ's assessment
of Burnett's past relevant work is not based on substantial
evidence in the record. On remand, the ALJ should fully
develop the record and make specific findings as to the
physical and mental demands of Burnett's past relevant
work. See SSR 82-62;9Winfrey, 90 F.3d at 1023. Absent
additional evidence to the contrary, the ALJ must accept
_________________________________________________________________
8. Parties make requests for review of a hearing decision to the Appeals
Council using a standard form, HA-520-U5 (3-94). R. at 6. Item number
5 of that form states "I request that the Appeals Council review the
Administrative Law Judge's action on the above claim because:" and
provides just three lines for the claimant to fill in the reason. Id.
Burnett
in her request asserted generally that the ALJ's decision was not
supported by substantial evidence. Id.
9. SSR 82-62 states:
Sufficient documentation will be obtained to support the decision.
. . .
Adequate documentation of past work includes factual information
about those work demands which have a bearing on medically
established limitations. Detailed information about strength,
endurance, manipulative ability, mental demands and other jobs
requirements must be obtained as appropriate. This information will
be derived from a detailed description of the work obtained from
the
claimant, employer, or other informed source. . . .
21
Burnett's representations and enter a finding that Burnett's
past relevant work involved "medium" work. 10
C. Step Five: Whether Burnett Could Perform Other
Work in the Economy
The final step is an analysis of whether Burnett, based
on her age, experience, and education, can perform any
other available work in the economy. See Plummer , 186
F.3d at 428. Burnett contends this Court need not remand
for a step five analysis because this determination involves
simple application of the Medical-Vocational Guidelines or
"Grids," see 20 C.F.R. Pt. 404, Subpart P, App.2, to
determine that Burnett is disabled. More specifically,
Burnett maintains that because of her advanced age, 56
years old at the time of alleged onset of the disability in
1991, her limited education, and lack of transferable skills,
regardless of whether she is capable of performing"light"
work as the ALJ determined, or "sedentary" work, the Grids
dictate a finding of disability. Therefore, she asserts, a
remand is unnecessary. We disagree.
A step five analysis can be quite fact specific, involving
more than simply applying the Grids, including, perhaps,
testimony of a vocational expert. See, e.g., Plummer, 186
F.3d at 431. Although Burnett's age and education level are
undisputed, from the record we cannot be confident that
Burnett possess no skills or is not semi-skilled with
transferable skills. Therefore we must remand for further
factual findings with regard to the level and transferability
of Burnett's skills.
III. Conclusion
For the foregoing reasons, the District Court's dismissal
of Burnett's claim will be VACATED, and the case
REMANDED to the District Court with directions to remand
to the Commissioner for additional proceedings consistent
with this opinion.
_________________________________________________________________
10. Should the ALJ continue to find Burnett to have a residual
functional capacity for "light" work and that Burnett's past relevant work
was "medium," then the ALJ must enter a finding Burnett lacks the
residual functional capacity to perform her past relevant work.
22
On remand, the ALJ shall fully develop the record and
explain his findings at step three, including an analysis of
whether and why Burnett's combined impairments are or
are not equivalent in severity to one of the listed
impairments. If it is necessary to reach step four, in
determining Burnett's residual functional capacity, the ALJ
must make specific findings as to all of the pertinent
medical evidence, reconciling conflicts and, if rejecting
particular evidence, explaining why; must address the non-
medical evidence of George Burnett and Earl Sherman; and
must consider the combined effects of Burnett's two
impairments in conjunction with any medical evidence
previously not considered and not rejected on remand.
Additionally, the ALJ should fully develop the record and
make specific findings as to the physical and mental
demands of Burnett's past relevant work. Finally, if it is
necessary to reach step five, the ALJ is directed to make
the requisite factual findings with regard to the level and
transferability of Burnett's skills.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
23