Sykes v. Apfel

Opinions of the United
2000 Decisions States Court of Appeals
for the Third Circuit
9-18-2000
Sykes v. Apfel
Precedential or Non-Precedential:
Docket 99-5755
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Filed September 18, 2000
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 99-5755
CLIFTON SYKES, SR., Appellant
v.
KENNETH S. APFEL, COMMISSIONER OF SOCIAL
SECURITY; FAITH S. HOCHBERG, UNITED STATES
ATTORNEY, DISTRICT OF NEW JERSEY; THE
HONORABLE JANET RENO, ATTORNEY GENERAL OF
THE UNITED STATES
On Appeal From the United States District Court
For the District of New Jersey
(D.C. Civ. No. 98-cv-00105)
District Judge: Honorable Alfred M. Wolin
Argued: April 25, 2000
Before: BECKER, Chief Judge, WEIS, and
OAKES,*Circuit Judges.
(Filed: September 18, 2000)
_________________________________________________________________
* Honorable James L. Oakes, United States Circuit Judge for the Second
Circuit, sitting by designation.
JON C. DUBIN, ESQUIRE (ARGUED)
Professor of Law
The State University
of New Jersey
Rutgers School of Law -
Newark
Urban Legal Clinic
123 Washington Street
Newark, NJ 07102
Counsel for Appellant
ROBERT J. CLEARY, ESQUIRE
United States Attorney
PETER G. O'MALLEY, ESQUIRE
Assistant United States Attorney
970 Broad Street, Suite 700
Newark, NJ 07102
BARBARA I. SPIVAK, ESQUIRE
Chief Counsel - Region II
STEPHEN P. CONTE, ESQUIRE
(ARGUED)
Assistant Regional Counsel
MARIA FRAGASSI SANTANGELO,
ESQUIRE
Assistant Regional Counsel
Office of General Counsel
Social Security Administration
26 Federal Plaza - Room 3904
New York, NY 10278
Counsel for Appellees
OPINION OF THE COURT
BECKER, Chief Judge.
In this appeal, Clifton Sykes, Sr. challenges the judgment
of the District Court affirming the Social Security
Administration's final decision denying him disability
benefits. The case compels us to revisit the use of the
medical-vocational guidelines in the regulations
2
promulgated under the Social Security Act to establish that
there are jobs in the national economy that a claimant can
perform when the claimant has both exertional and
nonexertional impairments.
After suffering several job-related injuries, Sykesfiled for
Disability Insurance Benefits with the Social Security
Administration. The Commissioner of Social Security
("Commissioner") found Sykes to be not disabled within the
meaning of the Social Security Act. Sykes then requested a
hearing before an Administrative Law Judge ("ALJ"). The
ALJ concluded that Sykes had several severe impairments,
at least one of which (left-eye blindness) is a nonexertional
impairment under the regulations. The ALJ nevertheless
denied Sykes's application. Applying the medical-vocational
guidelines "as a framework" (and without referring to a
vocational expert or other evidence), the ALJ concluded that
Sykes's exertional impairments left him able to perform
light work, and that the exclusion of jobs requiring
binocular vision from light work positions in consideration
of his nonexertional impairment did not significantly
compromise Sykes's broad occupational base under the
guidelines. The denial became a final decision when the
Social Security Administration Appeals Council denied
Sykes's request for a review of the ALJ's decision.
We conclude that, under Heckler v. Campbell, 461 U.S.
458 (1983) (construing the Social Security Act and
upholding regulations promulgated thereunder), and in the
absence of a rulemaking establishing the fact of an
undiminished occupational base, the Commissioner cannot
determine that a claimant's nonexertional impairments do
not significantly erode his occupational base under the
medical-vocational guidelines without either taking
additional vocational evidence establishing as much or
providing notice to the claimant of his intention to take
official notice of this fact (and providing the claimant with
an opportunity to counter the conclusion). Accordingly, we
will reverse the order of the District Court and remand the
case with instructions to return the case to the
Commissioner for further proceedings. We reject Sykes's
claim that the Social Security Administration has failed to
acquiesce in this Court's prior decisions.
3
I.
Prior to filing for disability, Sykes worked for twenty-one
years as a tractor-trailer operator. This work was physically
strenuous, requiring on most days that Sykes load and
unload seventy-five to eighty pound loads. During the
course of his employment, Sykes suffered several injuries.
In 1986, he tore the rotator cuff in his right shoulder while
lifting steel off the side of the highway and putting it on his
truck. This injury required surgery, and during his recovery
Sykes was unable to work for nine months. Two years later,
he injured his right arm and hand and had to take off two
weeks to recover. In 1993, he re-injured his rotator cuff
while binding steel to his truck. He underwent several
months of physical therapy for this injury. Sykes also
suffers from an obstructive pulmonary disorder and
unstable angina, which cause him chest pain and which
required hospitalization in 1993. The final blow to Sykes's
employment as a tractor-trailer operator came when a
bungee cord snapped as he was securing metal to his truck
and ruptured the globe of his left eye. This injury left him
permanently blinded in that eye.
Sykes never returned to work after the eye injury, and he
filed for Disability Insurance Benefits with the Social
Security Administration. In December 1994, the
Commissioner found Sykes to be not disabled within the
meaning of the Social Security Act, both in the initial
determination and on reconsideration. Sykes then
requested a hearing before an ALJ. Sykes complained of a
variety of disabilities he characterized as severe: left-eye
blindness, the inability to lift his right arm above the
shoulder, angina, obstructive pulmonary disease, pain, and
depression. The ALJ concluded that Sykes's depression was
not severe, refused to credit his subjective complaints of
pain, and determined that he could reach above his right
shoulder. Applying the regulation governing the
determination of disability, the ALJ found that Sykes had
several severe impairments -- left eye blindness, the
residual effects of a torn rotator cuff, angina, and
obstructive pulmonary disease -- and that he could not
perform his past work. He also concluded that Sykes was
not disabled because there was other work in the national
4
economy that Sykes could perform. The Social Security
Administration Appeals Council denied Sykes's request for
a review of the ALJ's decision.
Sykes then filed a complaint in the United States District
Court for the District of New Jersey seeking review of the
ALJ's decision. He argued that the ALJ erred in relying
exclusively on the grids in assessing whether there were
jobs in the national economy that Sykes could perform
when his impairments were both exertional and
nonexertional. Sykes also challenged the ALJ's conclusions
that he could lift his right arm above his shoulder and that
his depression was not severe. The District Court affirmed
the ALJ's decision upholding the Commissioner's denial of
benefits, concluding that these assessments were supported
by substantial evidence.
The District Court had jurisdiction over the final decision
denying Sykes's benefits pursuant to 42 U.S.C.S 405(g). We
have jurisdiction over this appeal from the final decision of
the District Court pursuant to 28 U.S.C. S 1291. We review
the factual findings of the Commissioner only to determine
whether the administrative record contains substantial
evidence supporting the findings. See 42 U.S.C. S 405(g);
Simmonds v. Heckler, 807 F.2d 54, 58 (3d Cir. 1986) (even
if the record could sustain an alternative conclusion, the
ALJ's decision regarding disability will not be overturned as
long as there is substantial evidence to support it). Our
review of legal issues is plenary. See Schaudeck v.
Commissioner of Social Sec. Admin., 181 F.3d 429, 431 (3d
Cir. 1999).
II.
In addition to other requirements not at issue here, a
claimant is entitled to total disability benefits under the
Social Security Act "only if his physical or mental
impairment or impairments are of such severity that he is
not only unable to do his previous work but cannot,
considering his age, education, and work experience,
engage in any other kind of substantial gainful work which
exists in the national economy." 42 U.S.C. S 423(d)(2)(A).
The Act contemplates that disability determinations will be
5
individualized and be based on evidence adduced at a
hearing. See Heckler v. Campbell, 461 U.S. 458, 467 (1983)
(noting that the Act requires individualized determination
based on evidence adduced at a hearing); see also 42
U.S.C. S 405(b) (requiring consideration of each individual's
condition and stating that an individual may request that a
disability determination be based on evidence adduced at a
hearing). The Act also gives the Social Security
Administration authority to develop regulations
implementing these provisions. See Campbell, 461 U.S. at
466.
The Social Security Administration has promulgated a
five-step process for evaluating disability claims. See 20
C.F.R. S 404.1520 (1999). First, the Commissioner
considers whether the claimant is currently engaged in
substantial gainful activity. If he is not, then the
Commissioner considers in the second step whether the
claimant has a "severe impairment" that significantly limits
his physical or mental ability to perform basic work
activities. If the claimant suffers a severe impairment, the
third inquiry is whether, based on the medical evidence, the
impairment meets the criteria of an impairment listed in
the "listing of impairments," 20 C.F.R. pt. 404, subpt. P,
app. 1 (1999), which result in a presumption of disability,
or whether the claimant retains the capacity to work. If the
impairment does not meet the criteria for a listed
impairment, then the Commissioner assesses in the fourth
step whether, despite the severe impairment, the claimant
has the residual functional capacity to perform his past
work. If the claimant cannot perform his past work, then
the final step is to determine whether there is other work in
the national economy that the claimant can perform. 1 The
claimant bears the burden of proof for steps one, two, and
four of this test. The Commissioner bears the burden of
_________________________________________________________________
1. The regulations direct the Commissioner to consider the four factors
Congress has identified as relevant to the disability determination:
physical ability, age, education, and work experience. See 42 U.S.C.
S 423(d)(2)(A); 20 C.F.R. S 404.1520(f) (1999).
6
proof for the last step. See Bowen v. Yuckert , 482 U.S. 137,
146 n.5 (1987).2
Under the regulations, impairments can be either
exertional or nonexertional. Impairments are classified as
exertional if they affect the claimant's
ability to meet the strength demands of jobs. The
classification of a limitation as exertional is related to
the United States Department of Labor's classification
of jobs by various exertional levels (sedentary, light,
medium, heavy, and very heavy) in terms of the
strength demands for sitting, standing, walking, lifting,
carrying, pushing, and pulling.
20 C.F.R. S 404.1569a (1999). All other impairments are
classified as nonexertional. See id.
Prior to 1978, the Secretary of Health and Human
Services relied on vocational experts to establish the
existence of suitable jobs in the national economy for all
claimants (the fifth step of the inquiry). After a claimant's
limitations and abilities had been determined at a hearing,
a vocational expert ordinarily would testify as to whether
work existed that the claimant could perform. See Heckler
v. Campbell, 461 U.S. 458, 461 (1983). In 1978, to improve
both the uniformity and efficiency of this determination, the
Secretary promulgated, through an administrative
rulemaking, medical-vocational guidelines, or "grids," that
establish the types and number of jobs that exist in the
national economy for claimants with exertional
impairments. See 20 C.F.R. pt. 404, subpt. P, app. 2
(1999). The grids consist of a matrix of four
factors--physical ability, age, education, and work
experience--and set forth rules that identify whether jobs
requiring specific combinations of these factors exist in
significant numbers in the national economy.3 Where a
_________________________________________________________________
2. Because step three involves a conclusive presumption based on the
listings, no one bears that burden of proof. See Yuckert, 482 U.S. at 146-
47 n.5.
3. Each of these four factors is divided into defined categories. A
person's
ability to perform physical tasks, for example, is categorized according
to
the physical exertion requirements necessary to perform varying classes
7
claimant's qualifications correspond to the job requirements
identified by a rule, the guidelines direct a conclusion that
work exists that the claimant can perform.4
In Campbell, 461 U.S. at 467, the Supreme Court held
that the Secretary of Health and Human Services (now the
Commissioner of Social Security) may rely on these grids to
establish that jobs exist in the national economy that a
person with the claimant's exertional limitations could
perform.5 The claimant argued that the grids violated the
Social Security Act because they failed to provide for the
required individualized determination on the issue whether
there were jobs in the national economy that the claimant
could perform. The Supreme Court upheld reliance on the
grids because, although the Social Security Act
contemplates that disability hearings will be individualized
determinations based on evidence adduced at a hearing,
the statute "does not bar the Secretary from relying on
rulemaking to resolve certain classes of issues." Id. The
Court explained that "even where an agency's enabling
statute expressly requires it to hold a hearing, the agency
may rely on its rulemaking authority to determine issues
that do not require case-by-case consideration." Id. (citing
FPC v. Texaco Inc., 377 U.S. 33, 41-44 (1964); United States
v. Storer Broad. Co., 351 U.S. 192, 205 (1956)).
The regulations require the Commissioner to make
findings regarding the individual claimant's abilities and
impairments on the basis of evidence adduced at a hearing
and to afford claimants ample opportunity both to present
_________________________________________________________________
of jobs--i.e., whether a claimant can perform sedentary, light, medium,
heavy, or very heavy work. See 20 C.F.R.S 404.1567 (1999). Each of
these work categories is defined in terms of the physical demands it
places on a worker, such as the weight of objects he must lift, and
whether extensive movement, or use of arm and leg controls, is required.
See id.
4. The claimant has an opportunity to rebut this conclusion. See Heckler
v. Campbell, 461 U.S. 458, 467 (1983).
5. The Social Security Independence and Program Improvements Act of
1994, Pub.L. 103-296, 108 Stat. 1464, substituted the "Commissioner of
Social Security" for the "Secretary" in a variety of subsections. See also
42 U.S.C.A. 403, at 80 (West Supp. 2000) (noting substitution).
8
evidence relating to their own abilities and to offer evidence
that the guidelines do not apply to them. See id. at 467.
The grids only apply to "an issue that is not unique to each
claimant--the types and numbers of jobs that exist in the
national economy. This type of general factual issue may be
resolved as fairly through rulemaking as by introducing the
testimony of vocational experts at each disability hearing."
Id. at 468 (citing American Airlines, Inc. v. Civil Aeronautics
Bd., 359 F.2d 624, 633 (D.C. Cir. 1966) (en banc)); see also
Mobil Oil Exploration & Producing Southeast, Inc. v. United
Distribution Cos., 498 U.S. 211, 228 (1991) (agency may
establish general facts by a rulemaking even when the
enabling statute requires the agency to hold a hearing).
The Court also considered in Campbell whether the use
of the grids to establish the presence of jobs in the national
economy violated legal standards for the administrative or
official notice of facts, which require "that when an agency
takes official or administrative notice of facts, a litigant
must be given an adequate opportunity to respond."
Campbell, 461 U.S. at 469; see also 5 U.S.C. S 556(e)
(governing administrative notice). The Court rejected this
argument, holding that
[t]his principle is inapplicable [ ] when the agency has
promulgated valid regulations. Its purpose is to provide
a procedural safeguard: to ensure the accuracy of the
facts of which an agency takes notice. But when the
accuracy of those facts already has been tested fairly
during rulemaking, the rulemaking proceeding itself
provides sufficient procedural protection.
Campbell, 461 U.S. at 470 (emphasis added). This suggests
that, in the absence of some procedural safeguard (such as
a rulemaking), the Court would require that the
Commissioner comply with the requirements for
administrative notice even for issues "that [are] not unique
to each claimant," id. at 468, such as the types and
numbers of jobs that exist in the national economy for a
claimant with exertional and nonexertional impairments.
The Court was satisfied that the regulation setting forth the
grids could substitute for an individualized determination
because it was subject to procedural safeguards (in the
9
rulemaking) sufficient to ensure that the purposes of notice
were served.
Sykes's appeal requires us to decide whether, under
Campbell, and in the absence of a rulemaking establishing
the fact of an undiminished occupational base, the
Commissioner can determine that a claimant's
nonexertional impairments do not significantly erode his
occupational base under the grids without either taking
additional vocational evidence establishing as much or
providing notice to the claimant of his intention to take
official notice of this fact (and providing the claimant with
an opportunity to counter the conclusion). If the
Commissioner cannot make such a determination
consistent with Campbell and the Social Security Act, then
the District Court order affirming the ALJ's decision must
be reversed.
III.
Applying the five-step analysis described above, the ALJ
concluded that (1) Sykes was not currently employed in
substantial gainful activity; (2) that he had the following
severe impairments (exertional and nonexertional): left-eye
blindness, the residual effects of a torn rotator cuff, angina,
and obstructive pulmonary disease; (3) that these
impairments did not meet the criteria for listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1
(1999), and that Sykes retained the capacity to perform
light work; (4) that Sykes lacked the residual functional
capacity to perform his past work; and (5) that there were
other jobs in the national economy that Sykes could
perform.
In the fifth step of the test (for which the government
bears the burden of proof), the ALJ did not consider any
evidence in addition to the grids in making his
determination that there were jobs in the national economy
that Sykes could perform. Instead, applying the grids "as a
framework" (and without referring to a vocational expert or
other evidence), the ALJ concluded that there were jobs in
the national economy that Sykes could perform because the
exclusion of jobs requiring binocular vision from light work
10
positions did not, in his view, significantly compromise
Sykes's broad occupational base for light work. The ALJ's
decision states that "using medical-vocational``grid' rule
202.11, Table 1, Subpart P, Appendix 2, as a framework for
decision-making, I find that jobs exist in significant
numbers in the national economy that he has had the
capacity to perform. The exclusion of jobs requiring
binocular vision does not significantly compromise the
broad base of light work."6
On appeal, Sykes challenges the ALJ's assessment of his
depression; the ALJ's rejection of his subjective complaints
of pain in his shoulder, chest, and arms; the conclusion
that he could raise his right arm above his shoulder; and
the conclusion that his impairments do not meet the
criteria for listed impairments. We agree with the District
Court that the ALJ's conclusions regarding Sykes's
depression and about the listings were supported by
substantial evidence.7 We do not believe, however, that the
finding that Sykes can raise his right arm above his
shoulder was supported by substantial evidence. Sykes
testified that he could not, and no evidence contradicts this
testimony.8 Additionally, the Commissioner failed to explain
_________________________________________________________________
6. Dr. Goldfeder, who made several reports on Sykes's condition that are
a part of the record, opined that Sykes could be employed as a one-eyed
individual. We reject the Commissioner's contention that this opinion
supported the ALJ's conclusion. Dr. Goldfeder is not a vocational exert,
and his medical opinion cannot be considered vocational evidence that
work is available to one-eyed individuals in the national economy.
7. Sykes has never been hospitalized for a mental condition, has never
been prescribed psychotropic medication, and has never undergone
therapy. Dr. Candela, a consultative psychiatrist for the Social Security
Administration, assessed the severity of Sykes's mental condition as
mild. Dr. Pollock, who examined Sykes four times over the course of
several years, reported that Sykes's speech was coherent and logical and
that there was no evidence of formal thought disturbance. He also
opined that Sykes suffers from a disabling psychiatric impairment. But
Pollock was not Sykes's treating physician. His opinion thus was not
entitled to controlling weight. See 20 C.F.R. S 404.1527(d) (only a
treating source's opinion on the issues of the nature and severity of an
individual's impairment, if supported by medical evidence, is to be given
controlling weight).
8. Indeed, in his brief in the District Court, the Commissioner appears to
concede that this conclusion was in error, noting that the ALJ
"inadvertently indicated that plaintiff could raise his right arm above
his
shoulder."
11
adequately his reasons for rejecting or discrediting evidence
of Sykes's subjective complaints of pain.9 We will direct him
to reconsider on remand the findings regarding these
complaints.
The remaining (and key) question raised by Sykes's
appeal is whether the Commissioner met his burden of
proof for the step-five inquiry of establishing that there are
jobs in the national economy that Sykes can perform given
the impairments that the ALJ did accept. In Burnam v.
Schweiker, 682 F.2d 456, 458 (3d Cir. 1982), we held that
the Commissioner cannot meet this burden by relying
exclusively on the grids when the claimant has both
exertional and nonexertional impairments.10 At issue in this
case is the scope of this limitation.
_________________________________________________________________
9. The ALJ concluded that although Sykes had"underlying medically
determinable impairments that could produce some of the pain and
other symptoms alleged, the evidence does not reasonably support the
intensity and the frequency asserted." The only explanation offered for
this conclusion was that Sykes has only received"conservative
treatment" for pain. This explanation is insufficient. The Commissioner's
interpretation of the regulations regarding pain states that "[o]nce
adjudicators determine that the individual has an impairment which is
reasonably expected to produce some pain, they must consider all of the
evidence relevant to the individual's allegations of pain, even if the
alleged pain is more severe or persistent than would be expected."
Evaluation of Symptoms, Including Pain, 56 Fed. Reg. 57,932 (1991)
(interpreting regulations regarding the evaluation of symptoms including
pain, 20 C.F.R. S 404.1529). Similarly, we have stated that "[w]here
competent evidence supports a claimant's claims, the ALJ must explicitly
weigh the evidence, see Dobrowolsky [v. Califano], 606 F.2d [403,] 407
[(3d Cir. 1979)], and explain a rejection of the evidence." Schaudeck v.
Commissioner of Social Sec. Admin., 181 F.3d 429, 435 (3d Cir. 1999)
(citing Benton v. Bowen, 820 F.2d 85, 88 (3d Cir. 1987)). "Where the
Secretary is faced with conflicting evidence, he must adequately explain
in the record his reasons for rejecting or discrediting competent
evidence." Benton, 820 F.2d at 88. The Commissioner failed to meet this
standard in evaluating Sykes's complaints of pain.
10. Hereinafter, we will discuss only those impairments that the ALJ
determined to be severe, treating (as did the ALJ) the left-eye blindness
as a nonexertional impairment and the other impairments as exertional
impairments. We note, however, that on remand the ALJ should consider
whether some aspects of the impairments that are identified are
nonexertional. Sykes asserts that the residual effects of the torn rotator
cuff and his pulmonary and cardiac conditions have nonexertional
manifestations as well as exertional ones.
12
The government argues that the ALJ appropriately used
the grids in this case "as a framework." According to the
government, the ALJ properly looked to the jobs listed
under light work and made an independent determination
that Sykes's lack of binocular vision did not significantly
diminish his residual functional capacity. The government
argues that, under the Social Security Act and the
regulations interpreting it, the ALJ can make the
determination regarding disability and need not take
additional vocational evidence if he determines that the
nonexertional impairment does not significantly erode the
occupational base of the category of work that the claimant
can perform given his exertional impairments.
A. The Grids and Nonexertional Impairments
The Social Security Administration has promulgated
regulations governing the determination of disability when
the claimant has an impairment or combination of
impairments resulting in both exertional limitations and
nonexertional limitations. The regulation governing the
assessment of nonexertional limitations provides that, if a
finding of disability is not possible based on exertional
limitations alone,
the rule(s) reflecting the individual's maximum residual
strength capabilities, age, education, and work
experience provide a framework for consideration of
how much the individual's work capability is further
diminished in terms of any types of jobs that would be
contraindicated by the nonexertional limitations. Also,
in these combinations of nonexertional and exertional
limitations which cannot be wholly determined under
the rules in this appendix 2, full consideration must be
given to all of the relevant facts in the case in
accordance with the definitions and discussions of
each factor in the appropriate sections of the
regulations, which will provide insight into the
adjudicative weight to be accorded each factor.
20 C.F.R. pt. 404, subpt. P, app. 2, S 200.00(e)(2) (1999).
The government argues that, under this regulation, the ALJ
need not refer to any additional evidence in determining
13
whether a nonexertional impairment erodes residual
functional capacity.
The courts of appeals agree at a general level that the
grids cannot automatically establish that there are jobs in
the national economy when a claimant has severe
exertional and nonexertional impairments.11 In Burnam v.
_________________________________________________________________
11. See, e.g., Ortiz v. Secretary of Health and Human Servs., 890 F.2d
520, 524 (1st Cir. 1989) (per curiam) (where a claimant has
nonexertional impairments in addition to exertional limits, the grid may
not accurately reflect the availability of jobs such a claimant could
perform); Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir. 1986) ("[I]f a
claimant suffers from additional ``nonexertional' impairments, the grid
rules may not be controlling."); Coffman v. Bowen, 829 F.2d 514, 518
(4th Cir. 1987) (an ALJ may not rely solely on the grids where
"nonexertional limitations . . . occur in conjunction with exertional
limitations"); Fraga v. Bowen, 810 F.2d 1296, 1304 (5th Cir. 1987) (when
the claimant has nonexertional impairments that significantly affect his
residual functional capacity, the ALJ may not rely exclusively on the
guidelines in determining whether there is other work available that the
claimant can perform); Abbott v. Sullivan, 905 F.2d 918, 926-27 (6th Cir.
1990) (when the claimant suffers from a nonexertional impairment
significantly restricting the range of available work, the grids may be
used only as a framework to provide guidance for decision making, and
not to direct a conclusion of nondisability); Warmoth v. Bowen, 798 F.2d
1109, 1112 (7th Cir. 1986) (per curiam) (when a claimant's nonexertional
impairments further restrict his range of employment opportunities,
application of the grids is precluded); Fenton v. Apfel, 149 F.3d 907, 910
(8th Cir. 1998) (the Commissioner must produce vocational expert
testimony concerning the availability of jobs that a person with a
claimant's particular characteristics can perform, if his or her
characteristics do not match those in the regulations); Cooper v.
Sullivan,
880 F.2d 1152, 1155-56 (9th Cir. 1989) (if the exertional impairments
alone are insufficient to direct a finding of disability, analysis in
addition
to the grids is required); Channel v. Heckler , 747 F.2d 577, 582 (10th
Cir. 1984) (per curiam) (without a "specificfinding, supported by
substantial evidence, that despite his non-exertional impairments, [the
claimant] could perform a full range of sedentary work on a sustained
basis, it was improper for the ALJ conclusively to apply the grids in
determining that [the claimant] was not disabled"); Swindle v. Sullivan,
914 F.2d 222, 226 (11th Cir. 1990) (per curiam) ("If [the claimant's] non-
exertional impairments significantly limit basic work activities, the ALJ
should not rely solely on the Grids and should take evidence from a
vocational expert to determine whether there exists in the national
14
Schweiker, 682 F.2d 456 (3d Cir. 1982), we rejected
reliance on the grids in this situation because the medical-
vocational grids do not "purport to establish the existence
of jobs for persons . . . with both exertional and
nonexertional impairments." Id. at 458; see also
Washington v. Heckler, 756 F.2d 959, 967-68 (3d Cir. 1985)
("[G]iven the Secretary's failure to present any evidence of
[the claimant's] ability to work independent of the
prescriptions of the grids, a finding that appellant was not
disabled is simply contrary to this Court's precedent.");
Wallace v. Secretary of Health & Human Servs., 722 F.2d
1150, 1155 (3d Cir. 1983) (per curiam) ("Such an
inappropriate reliance on the grid regulations to determine
the disability of an individual with both exertional and non-
exertional impairments would be contrary to Burnam.").
There is, however, considerable variety among the courts
of appeals regarding the scope of the limitation on the use
of the grids when a claimant has exertional and
nonexertional impairments. Some cases from the other
circuits have held that the bar on exclusive reliance on the
grids in this situation is limited by the requirement that the
nonexertional impairment invoked must be significant
enough to limit further the range of work permitted by the
exertional limitations (the residual functional capacity)
before it precludes application of the grids. See, e.g.,
Heggarty v. Sullivan, 947 F.2d 990, 996 (1st Cir. 1991) (per
curiam) (noting law of circuit that the Commissioner may
rely on the grids if the claimant's nonexertional impairment
does not "significantly" affect his or her ability to perform
the full range of jobs at the appropriate exertional level);
Bapp v. Bowen, 802 F.2d 601, 605 (2d Cir. 1986) (holding
that if the guidelines adequately reflect a claimant's
condition, using them to determine disability status is
appropriate, "[b]ut if a claimant's nonexertional
impairments significantly limit the range of work permitted
_________________________________________________________________
economy a significant number of jobs for someone with [the claimant's]
limitations"); Smith v. Bowen, 826 F.2d 1120, 1122 (D.C. Cir. 1987)
(recognizing that "applying the grids to a claimant with nonexertional
impairments may lead to an inaccurate finding that jobs exist that the
claimant can perform").
15
by his exertional limitations then the grids obviously will
not accurately determine disability status because they fail
to take into account claimant's nonexertional impairments"
(internal quotation marks omitted)); Fraga v. Bowen, 810
F.2d 1296, 1304 (5th Cir. 1987) (when the claimant's
nonexertional impairments do not significantly affect his
residual functional capacity, the ALJ may rely exclusively
on the guidelines in determining whether there is other
work available that the claimant can perform); Warmoth v.
Bowen, 798 F.2d 1109, 1112 (7th Cir. 1986) (per curiam)
("While a vocational expert's specialized knowledge
undoubtedly would be helpful in the present case, this is
not to say that testimony from such an expert is required
in this and every other case involving a non-exertional
impairment; rather, we only require that there be reliable
evidence of some kind that would persuade a reasonable
person that the limitations in question do not significantly
diminish the employment opportunities otherwise
available." (citation omitted)); Channel v. Heckler, 747 F.2d
577, 582 n.6 (10th Cir. 1984) (per curiam) (holding that
"the mere presence of a nonexertional impairment does not
automatically preclude reliance on the grids"; rather,
reliance on the grids is foreclosed only when the
nonexertional impairment poses an additional limitation on
the claimant's ability to perform a range of available jobs.).12
This described limitation on the rule against exclusive
reliance on the grids when the claimant has exertional and
nonexertional impairments significantly narrows the rule. It
leaves the ALJ free to assess whether there is credible
_________________________________________________________________
12. A finding under step two of the regulations that a claimant has a
"severe" nonexertional limitation is not the same as a finding that the
nonexertional limitation affects residual functional capacity. The cases
cited above do not rely on the "severity" determination, but rather
impose an additional requirement that the nonexertional impairment
limit the capacity for work beyond the claimant's residual functional
capacity, given the limitations imposed by the exertional impairment.
See, e.g., Bapp, 802 F.2d at 606 ("By the use of the phrase ``significantly
diminish' we mean the additional loss of work capacity beyond a
negligible one or, in other words, one that so narrows a claimant's
possible range of work as to deprive him of a meaningful employment
opportunity.").
16
evidence that the nonexertional impairment limits residual
functional capacity before going off the grids, in effect
allowing the ALJ to refer to the grids (and consider the
medical evidence) to determine whether the nonexertional
impairment is severe enough to make the grids inapplicable
before considering any evidence in addition to the grids.
See, e.g., Bapp, 802 F.2d at 606 ("Upon remand the ALJ
must reevaluate whether the Secretary has shown that
plaintiff's capability to perform the full range of light work
was not significantly diminished [by his nonexertional
impairments]. That initial determination can be made
without resort to a vocational expert.").
The government's interpretation of 20 C.F.R. Part 404,
Subpart P, Appendix 2, S 200.00(e)(2) (1999) in effect
adopts this limitation on the rule barring exclusive reliance
on the grids when the claimant has exertional and
nonexertional impairments. In Washington v. Heckler, 756
F.2d 959 (3d Cir. 1985), we left open the possibility that the
Commissioner could use the grids as a "framework" for
determining the extent to which a nonexertional limitation
may further diminish work capacity. See id. at 967-68. But
the framework approach does not comport with Heckler v.
Campbell, 461 U.S. 458 (1983), when it is defined as
broadly as it is here.
The regulation provides that, where an individual has an
impairment or a combination of impairments resulting in
both exertional and nonexertional limitations, if afinding of
disability is not possible based on exertional limitations
alone, the grids "provide a framework for consideration of
how much the individual's work capability is further
diminished in terms of any types of jobs that would be
contraindicated by the nonexertional limitations." 20 C.F.R.
pt. 404, subpt. P, app. 2, S 200.00(e)(2) (1999). By
comparison, the regulations governing a determination of
disability when the claimant has solely exertional
impairments direct a finding of disability without reference
to additional evidence when the factors of the claimant's
particular impairments coincide with the criteria of a rule:
The existence of jobs in the national economy is
reflected in the "Decisions" shown in the rules; i.e., in
promulgating the rules, administrative notice has been
17
taken of the numbers of unskilled jobs that exist
throughout the national economy at the various
functional levels (sedentary, light, medium, heavy, and
very heavy) as supported by the "Dictionary of
Occupational Titles" and the "Occupational Outlook
Handbook," published by the Department of Labor; the
"County Business Patterns" and "Census Surveys"
published by the Bureau of the Census; and
occupational surveys of light and sedentary jobs
prepared for the Social Security Administration by
various State employment agencies. Thus, when all
factors coincide with the criteria of a rule, the existence
of such jobs is established. However, the existence of
such jobs for individuals whose remaining functional
capacity or other factors do not coincide with the
criteria of a rule must be further considered in terms
of what kinds of jobs or types of work may be either
additionally indicated or precluded.
20 C.F.R. pt. 404, subpt. P, app. 2,S 200.00(b) (1999).
As this comparison between the regulations makes clear,
the only facts established in the grids are of unskilled jobs
in the national economy for claimants with exertional
impairments who fit the criteria of the rule at the various
functional levels. The regulations do not purport to
establish jobs that exist in the national economy at the
various functional levels when a claimant has a
nonexertional impairment (or does not meet the criteria of
the rule for other reasons).
The Supreme Court upheld reliance on the grids to
determine whether there are jobs in the national economy
for claimants who have only exertional impairments
because, even though the Social Security Act requires an
individualized determination regarding disability, the
agency had promulgated valid regulations identifying these
jobs and the availability of jobs was an issue that did not
require case-by-case determination. See Campbell , 461 U.S.
at 467 (1983) ("[E]ven where an agency's enabling statute
expressly requires it to hold a hearing, the agency may rely
on its rulemaking authority to determine issues that do not
require case-by-case determination."). The regulations still
require an individualized hearing in which the claimant has
18
an opportunity to present evidence regarding his particular
disabilities; the grids only apply to "an issue that is not
unique to each claimant--the types and numbers of jobs
that exist in the national economy. This type of general
factual issue may be resolved as fairly through rulemaking
as by introducing the testimony of vocational experts at
each disability hearing." Id. at 468 (citations omitted).
Like the availability of jobs for claimants with exertional
impairments, the availability of jobs for claimants with
exertional and nonexertional impairments may well be an
issue that does not require case-by-case determination and
may be fairly resolved through rulemaking. But the Social
Security Administration has not promulgated regulations
identifying jobs in the national economy for claimants with
combined exertional and nonexertional limitations or
identifying nonexertional impairments that are not
significant enough to diminish a claimant's occupation base
considering his exertional impairment alone. Campbell, by
force of implication, requires such a regulation (or similar
procedure establishing general facts) in order to direct a
determination of disability without reference to
individualized evidence that there are jobs in the national
economy that the claimant can perform. Until the
government takes steps to establish such general facts for
claimants with exertional and nonexertional impairments,
the government cannot satisfy its burden under the Act by
reference to the grids alone.
At least one of our sister circuits has recognized that the
determination whether the nonexertional impairment
significantly erodes residual functional capacity cannot be
made without reference to additional evidence. In Francis v.
Heckler, 749 F.2d 1562 (11th Cir. 1985), a case also
involving the loss of vision, the ALJ, after acknowledging
that the claimant was limited to performing medium work
requiring only gross vision, nevertheless applied the grids
because he was "persuaded" that this impairment did not
significantly limit the range of medium work available to
claimant. The Eleventh Circuit reversed because"there
[was] no vocational testimony upon which the ALJ could
have relied to be so persuaded." Id. at 1567.
19
The Social Security Administration has not conducted a
rulemaking establishing either that the lack of binocular
vision does not significantly diminish the occupational base
for light work or more generally establishing common facts
applicable to individuals with Sykes's set of impairments.
The grids establish, for exertional impairments only, that
jobs exist in the national economy that people with those
impairments can perform. When a claimant has an
additional nonexertional impairment, the question whether
that impairment diminishes his residual functional capacity
is functionally the same as the question whether there are
jobs in the national economy that he can perform given his
combination of impairments. The grids do not purport to
answer this question, and thus under Campbell the
practice of the ALJ determining without taking additional
evidence the effect of the nonexertional impairment on
residual functional capacity cannot stand.13
We note that in the District Court and on appeal, the
government asserted that two Social Security rulings
establish that the loss of binocular vision does not
significantly erode the occupational base of jobs in the light
work category. According to the government, Social Security
Rulings 85-15, 1985 WL 56857, and 83-14, 1983 WL
56857, "consider the impact of visual impairments on an
individual's occupational base." Social Security Rulings are
agency rulings published "under the authority of the
Commissioner of Social Security" and "are binding on all
components of the Social Security Administration." 20
C.F.R. S 402.35(b)(1) (1999); see also Heckler v. Edwards,
465 U.S. 870, 873 n.3 (1984) (citing Social Security Ruling
stating that "[o]nce published, a ruling is binding on all
components of the Social Security Administration . .. .
Rulings do not have the force and effect of the law or
regulations but are to be relied upon as precedents in
_________________________________________________________________
13. Bowen v. Yuckert, 482 U.S. 137 (1987) , is not to the contrary. It
merely upholds the requirement under step two of thefive-part test in
the regulation that the claimant show that he has a severe impairment,
i.e., an impairment that significantly limits the ability to do basic work
activities. See id. at 145. At step five, the claimant has already shown
that he has limitations that have been determined to be severe in this
sense.
20
determining other cases where the facts are basically the
same. A ruling may be superseded, modified, or revoked by
later legislation, regulations, court decisions or rulings.").
We do not decide here whether Social Security Rulings
can serve the same function as the rulemaking upheld in
Campbell, for the ALJ did not attempt to rely on these
rulings to support the conclusion that the lack of binocular
vision does not significantly erode the occupational base for
light work. See Securities & Exch. Comm'n v. Chenery Corp.,
318 U.S. 80, 88 (1943) (judicial review of an administrative
agency requires "a judgment upon the validity of the
grounds upon which the [agency] itself based its action").14
Moreover, the cited rulings cannot be said to direct a
determination of nondisability in Sykes's case. They simply
provide factors for consideration regarding the
determination of disability.15
_________________________________________________________________
14. Campbell held that reliance on the grids to establish the presence of
jobs in the national economy for claimants who have exertional
impairments comported with the requirements of official notice only
because "when the accuracy of those facts already has been tested fairly
during rulemaking, the rulemaking proceeding itself provides sufficient
procedural protection." 461 U.S. at 470. Sykes argues that informal
agency publications like Social Security Rulings cannot play a role
similar to rulemaking in establishing the presence of jobs in the national
economy for persons with exertional and nonexertional impairments
because, unlike the rulemaking, they are "not based on volumes of
vocational data." The government counters that the Commissioner can
properly refer to a ruling for guidance as to when nonexertional
limitations may significantly compromise the range of work that an
individual can perform. We need not resolve the issue here. While not
entirely apposite, in that we deal here with a prior agency determination
of fact, we note that in the recent case of Christensen v. Harris County,
120 S. Ct. 1655 (2000), the Supreme Court held that when an agency
issues statements of policy through opinion letters, enforcement
guidelines, or similar materials that have not been formulated either
through formal adjudication or through notice-and-comment rulemaking
(and do not represent an agency's interpretation of its own otherwise-
ambiguous regulations), such statements do not have the force of law,
though they may have the "power to persuade," id. at 1663 (quoting
Skidmore v. Swift & Co., 323 U.S. 134 (1944)).
15. See SSR 85-15, 1985 WL 56857, at *8 ("As a general rule, even if a
person's visual impairment(s) were to eliminate all jobs that involve very
21
B. Administrative Notice
Sykes argues that the Commissioner cannot rely on
administrative notice to establish that lack of binocular
vision does not erode the occupational base for light work
as defined under the grids. We agree that the government
cannot support the ALJ's action in this case on a theory of
administrative notice, though our holding does not preclude
the use of administrative notice on remand or in another
case.
Official notice is the proper method for agency
decisionmakers to apply knowledge not included in the
record. It is the administrative law counterpart of judicial
notice. Both doctrines allow adjudicators to take notice of
commonly acknowledged facts, but official notice is broader
than judicial notice insofar as it also allows an
administrative agency to take notice of technical or
scientific facts that are within the agency's area of
expertise. See McLeod v. Immigration & Naturalization Serv.,
802 F.2d 89, 93 n.4 (3d Cir. 1986) (citing NLRB v. Seven-Up
Bottling Co., 344 U.S. 344 (1953)). Section 556(e) of the
Administrative Procedure Act ("APA") sets forth the
requirements for official notice in the administrative law
context. It provides that "[w]hen an agency decision rests
_________________________________________________________________
good vision (such as working with small objects or reading small print),
as long as he or she retains sufficient visual acuity to be able to handle
and work with rather large objects (and has the visual fields to avoid
ordinary hazards in a workplace), there would be a substantial number
of jobs remaining across all exertional levels. However, a finding of
disability could be appropriate in the relatively few instances in which
the claimant's vocational profile is extremely adverse, e.g., closely
approaching retirement age, limited education or less, unskilled or no
transferable skills, and essentially a lifetime commitment to a field of
work in which good vision is essential."); SSR 83-15, 1983 WL 31254, at
*5 ("Where a person has a visual impairment which is not of Listing
severity but causes the person to be a hazard to self and others --
usually a constriction of visual fields rather than a loss of acuity --
the
manifestations of tripping over boxes while walking, inability to detect
approaching persons or objects, difficulty in walking up and down stairs,
etc., will indicate to the decisionmaker that the remaining occupational
base is significantly diminished for light work (and medium work as
well).").
22
on official notice of a material fact not appearing in the
evidence in the record, a party is entitled, on timely
request, to an opportunity to show the contrary." 5 U.S.C.
S 556(e).
The court in Heckler v. Campbell, 461 U.S. 458 (1983),
considered whether the use of the grids in that case
violated the requirements of administrative or official
notice. The Court rejected the argument, explaining that
the requirement of official notice serves "to provide a
procedural safeguard: to ensure the accuracy of the facts of
which an agency takes notice," and that notice is not
required for facts established in the grids because"the
rulemaking proceeding [in which the grids were
promulgated] itself provides sufficient procedural
protection." Id. at 470.
In Union Electric Co. v. Federal Energy Regulatory
Commission, 890 F.2d 1193, 1202 (D.C. Cir. 1989), the
Court of Appeals for the District of Columbia Circuit
interpreted S 556(e) in light of pre-APA decisions involving
due process challenges to official notice, most notably Ohio
Bell Telephone Co. v. Public Utilities Commission of Ohio,
301 U.S. 292 (1937). In Ohio Bell Telephone, the Ohio
Public Utilities Commission adjusted the value of the
utility's property downward, for ratemaking purposes, to
reflect the Great Depression, which had begun in the
middle of the ratemaking. As the D.C. Circuit noted, the
Supreme Court did not object to the commission's notice of
the Great Depression, but it objected to the commission's
use of data on general economic decline to adjust rates,
for the general decline did not show "[h]ow great the
decline has been for this industry or that, for one
material or another, in this year or the next." Moreover,
the Ohio commission manifested a "deeper vice" by
never disclosing the particular evidence on which it
relied. Thus the party against which the officially
noticed facts were used had no opportunity to "see the
evidence or hear it and parry its effect."
Union Electric, 890 F.2d at 1202 (quoting Ohio Bell
Telephone, 301 U.S. at 301-02). The D.C. Circuit thus
identified two prerequisites to official notice:"First, the
23
information noticed must be appropriate for official notice.
Second, the agency must follow proper procedures in using
the information, disclosing it to the parties and affording
them a suitable opportunity to contradict it or``parry its
effect.' " Id. (quoting Ohio Bell Telephone, 301 U.S. at 302).
Union Electric itself was a case reviewing a rate approval
order of the Federal Energy Regulatory Commission
("FERC"). See id. at 1194. The D.C. Circuit had no difficulty
with FERC's taking notice of a change in the rate on 10-
year Treasury bonds because "such information is not
typically subject to dispute." Id. at 1203 (quoting
Mississippi Indus. v. FERC, 808 F.2d 1525, 1568 (D.C. Cir.
1987)). The Court disapproved, however, of the
Commission's procedures in using the Treasury interest
rates for inferences on the cost of equity, because the
procedures did "not adequately protect Union's right to
``parry [their] effect.' " Id. (quoting Ohio Bell Telephone, 301
U.S. at 302). "[T]he Commission apparently assumed a
linear relationship between the trend for 10-year Treasury
bond rates and that for Union's cost of equity capital.
Union raised substantial objections to the official notice
and was therefore entitled to an opportunity to dispute the
Commission's findings." Id. (citing Market St. Ry. Co. v.
Railroad Comm'n of Calif., 324 U.S. 548, 562 (1945) (a
hearing on officially noticed evidence must be granted so
long as the requesting party can make a good showing that
it can contest the evidence)).
Though we do not decide whether the Commissioner
could rely on official notice to establish that the lack of
binocular vision does not significantly diminish the
occupational base for light work, we do note that, under
Union Electric, the ALJ would have had to provide Sykes
with notice of his intent to notice that fact and, if Sykes
raised a substantial objection, an opportunity to respond
similar to that required in Union Electric. The ALJ provided
no such notice. Sykes had no opportunity here to see the
evidence (if any) on which the ALJ relied to determine that
the lack of binocular vision does not significantly diminish
the occupational base for light work and no opportunity to
challenge that conclusion in the hearing. On remand, if the
ALJ intends to rely on official notice rather than additional
24
vocational evidence to establish that Sykes's nonexertional
impairment does not diminish his occupational base for
light work, the ALJ must provide notice to Sykes that he
intends to notice that the lack of binocular vision causes no
diminution in the occupation base and give Sykes an
opportunity to respond.16
C. Vocational Evidence
We turn now to the question what additional evidence the
Commissioner must present to meet the burden of
establishing that there are jobs in the national economy
that a claimant with exertional and nonexertional
impairments can perform. As our survey of circuit law in
footnote 11, supra, demonstrates, the courts of appeals
differ in what additional evidence they require the
Commissioner to present to meet this burden. Some
explicitly require the testimony of a vocational expert, see,
e.g., Swindle v. Sullivan, 914 F.2d 222, 226 (11th Cir.
1990) (per curiam); some require a vocational expert or
similar evidence, see, e.g., Bapp v. Bowen, 802 F.2d 601,
606 (2d Cir. 1986); and some require only that the
Commissioner independently examine the additional
consequences resulting from the nonexertional
impairment(s), see Cooper v. Sullivan, 880 F.2d 1152,
1155-56 (9th Cir. 1989).
We have never defined what sort of evidence the
Commissioner must present to meet his burden of proof
(and provide the requisite notice to the claimant) when the
claimant has exertional and nonexertional impairments.
Upon reflection, we cast our lot with those courts of appeals
that require the testimony of a vocational expert or other
similar evidence, such as a learned treatise. In the absence
of evidence in addition to the guidelines (excepting the
option of administrative notice, see supra section III.B), the
Commissioner cannot establish that there are jobs in the
_________________________________________________________________
16. As we also have held that the ALJ must reevaluate Sykes's complaint
of pain, and as the government seems to have conceded that the ALJ
erred in concluding that Sykes can lift his right arm above his shoulder,
the ALJ on remand must treat these impairments in a manner
consistent with this opinion as well.
25
national economy that someone with the claimant's
combination of impairments can perform.
D. Conclusion
The government argues that the rule we adopt today is
"rigid and burdensome." We emphasize that it need not be.
The Commissioner frequently relies on vocational expert
testimony; he appears to have arrangements with many
such experts. But, as we have held, the Commissioner can
rely on evidence other than vocational expert testimony to
establish that a claimant's nonexertional limitation does not
diminish residual functional capacity. Moreover, we read
Heckler v. Campbell, 461 U.S. 458 (1983), to leave open the
question whether the Commissioner could formally notice a
fact such as that the loss of binocular vision does not
significantly erode the job base for light work, giving the
claimant the opportunity to respond to the fact to be
noticed.
The flaw in the government's argument is simple.
Campbell permits the government to establish through a
rulemaking rather than an individualized fact-finding the
fact that there are jobs in the economy for claimants with
particular types of impairments. See 461 U.S. at 467-68.
But it does not permit the government to avoid its burden
to establish this fact. To hold otherwise would be to
eviscerate the requirement that disability hearings will be
individualized determinations based on evidence adduced
at a hearing. See id. at 467 (noting that the Social Security
Act specifically requires both consideration of each
individual's condition and that the disability determination
be based on evidence adduced at a hearing).
IV.
We conclude that the government's interpretation of 20
C.F.R. Part 404, Subpart P, Appendix 2, S 200.00(e)(2)
(1999) does not comport with the Social Security Act as
construed by Heckler v. Campbell, 461 U.S. 458 (1983). The
Commissioner cannot establish that there are jobs in the
national economy that Sykes can perform by relying on the
grids alone, even if he uses the grids only as a framework
26
instead of to direct a finding of no disability. 17 The
judgment will therefore be reversed and the case remanded
to the District Court with instructions to remand it to the
Commissioner for further proceedings consistent with this
opinion.
A True Copy:
Teste:
Clerk of the United States Court of Appeals
for the Third Circuit
_________________________________________________________________
17. Sykes argues that the Commissioner's position in this case amounts
to non-acquiescence in our decisions in Burnam v. Schweiker, 682 F.2d
456 (3d Cir. 1982), and Washington v. Heckler , 756 F.2d 959 (3d Cir.
1985), and thus that we should reverse the Commissioner's decision and
award benefits to Sykes on that basis. We do not believe that the
Commissioner's position amounts to non-acquiescence."[N]on-
acquiescence in Circuit law involves a determination by the agency that
it will refuse to follow judicial decisions it believes are not consistent
with either the statute or validly adopted agency regulations." Wilkerson
v. Sullivan, 904 F.2d 826, 833-34 n.7 (3d Cir. 1990). The ALJ did not
appear to be aware of our precedential rulings, and although in his
submission to the Appeals Council Sykes referred to the lack of a
vocational counselor, he did not cite either Burnam or Washington.
Further, the Commissioner has not asserted a right not to follow Burnam
and Washington, and Washington explicitly leaves open the possibility
that the Commissioner may use the grids as a framework in meeting the
step-five burden for a claimant with exertional and nonexertional
impairments. See 756 F.2d at 967-68. Thus, the Commissioner's
argument that he followed Burnam and Washington insofar as he only
relied on the grids as a "framework," although unavailing, does not
amount to non-acquiescence. That said, however, we note that we find
utterly no excuse for the Commissioner failing even to mention Burnam
and Washington in his brief, although Sykes cited and relied upon them
in his opening brief.
27