Appendix — Barnhart v. Thomas

No.

In the Supreme Court of the United States

JOANNE B. BARNHART,

COMMISSIONER OF SOCIAL SECURITY,

PETITIONER

*

PAULINE THOMAS

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

APPENDIX TO THE

PETITION FOR A WRIT OF CERTIORARI

THEODORE B. OLSON

Solicitor General

Counsel of Record

ROBERT D. MCCALLUM, JR.

Assistant Attorney General

EDWIN S. KNEEDLER

Deputy Solicitor General

JEFFREY A. LAMKEN

Assistant to the Solicitor

General

WILLIAM KANTER

WENDY M. KEATS

Attorneys

Department of Justice

Washington, D.C. 20530-0001

(202) 514-2217

TABLE OF CONTENTS

Appendix A (Opinion of the United States Court of

Appeals for the Third Circuit) la

Appendix B (Opinion of the United States District

Court for the District of New Jersey) 24a

Appendix C (Order of the United States District Court

for the District of New Jersey)

Appendix D (Denial of Request for Review by

Social Security Appeals Council)

Appendix E (Opinion and Decision of Social Security

Administration Administrative Law Judge)

Appendix F (Decision of Social Security Administration

on Reconsideration)

Appendix G (Social Security Administration, Notice of

Disapproved Claims)

Appendix H (Statutory and Regulatory Provisions)

1. 42 U.S.C. 423(d)

2. 42 U.S.C. 1382c

3. 20 C. F. R. pt. 404

4. 20 C. F. R. pt. 416

2

85

8 8

or

2

7

8

(I)

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 00-3506

PAULINE THOMAS, APPELLANT

V.

COMMISSIONER OF SOCIAL SECURITY

Argued: March 12, 2001

Argued En Banc: Feb. 13, 2002

Filed: June 21, 2002

Before: ALITO, RENDELL, Circuit Judges, and

SCHWARZER, Senior District Judge.

Before: BECKER, Chief Judge, SLOVITER, MANS-

MANN, SCIRICA, NYGAARD, ALITO, ROTH, MCKEE,

RENDELL, AMBRO, and FUENTES, Circuit Judges.

The Honorable William W. Schwarzer, Senior District Judge

for the Northern District of California, sitting by designation.

** The Honorable Carol Los Mansmann participated in the

argument and conference of the en banc court in this appeal, but

she died before the filing of the opinion.

(la)

2a

OPINION OF THE COURT

ALITO, Circuit Judge.

Pauline Thomas worked as an elevator operator until

her position was eliminated. Claiming a heart condition

and related medical problems, she applied for Supple-

mental Security Income and Disability Insurance

Benefits. The Commissioner of Social Security (Com-

missioner”) denied her application, and an Admini-

strative Law Judge (“ALJ”) also determined that

Thomas was not eligible for benefits. The United

States District Court for the District of New Jersey

affirmed the ALJ’s ruling and held that Thomas was

not disabled under the five-step sequential process for

determining eligibility for disability benefits because it

found that she could continue to perform her previous

work as an elevator operator. The District Court’s

interpretation of the Social Security Act, however, is

inconsistent with both a careful reading of the parti-

cular provision at issue and the obvious statutory

scheme. According to the Commissioner and the

District Court, even if Thomas is unable to perform any

job that exists in substantial numbers in the national

economy and meets all of the other requirements for

disability and supplemental security benefits, she may

not obtain benefits because she could perform a

job—serving as an elevator operator—that, as far as

this record reflects, has now entirely vanished. We

disagree and therefore reverse the order of the District

Court and remand the case for further proceedings.

I.

Pauline Thomas worked as a housekeeper until 1988,

when she had a heart attack. She then worked as an

3a

elevator operator until she was laid off on August 25,

1995, because her position was eliminated. She applied

for Disability Insurance Benefits and Supplemental

Security Income Benefits on June 11, 1996, claiming

disability related to cardiac problems. She testified

that she suffers from irregular heartbeats, high blood

pressure, dizziness, and fatigue. Thomas also claimed

that she suffers from lower back problems caused by

lumbar radiculopathy and asserts that she fractured

her right ankle on July 8, 1996. Thomas was 54 years

old at the time she applied for benefits.

Thomas’s application for Social Security benefits was

denied by the Commissioner initially and on recon-

sideration. A hearing was then held before an ALJ,

who determined that Thomas was not entitled to

benefits. The ALJ found that Thomas has hyperten-

sion, cardiac arrhythmia, cervical and lumbar strain/

sprain, and a transient ischemic attack, but does not

have an impairment listed in the list of impairments

presumed to be severe enough to preclude any gainful

work. Decision of ALJ at 5. The ALJ then found that

Thomas has the residual functional capacity to perform

at least light work and, therefore, that she could

perform her past relevant work as an elevator operator.

The ALJ considered Thomas’s argument that her past

relevant work as an elevator operator no longer exists

in the national economy. Id. at 4-5. Nevertheless, the

ALJ decided that the regulations and Social Security

Ruling 82-40 exclude from Step Four of the sequential

process for determining disability any inquiry into

whether the past work actually exists. Jd. at 5. The

ALJ held that Step Four considers only whether a

claimant can perform her previous job. As a result, the

ALJ ruled that Thomas was not under a “disability”

4a

and ended the evaluation without proceeding to Step

Five. Id.

The Appeals Council denied Thomas’s request for re-

view, establishing the ALJ’s decision as the final

decision of the Secretary. Thomas then challenged the

ALJ’s ruling in the United States District Court for the

District of New Jersey, but the District Court held that

the ALJ properly applied the sequential process and

affirmed his ruling. Thomas appeals from this judg-

ment.

Il.

Title II of the Social Security Act, as amended, pro-

vides Social Security Disability Insurance benefits for

individuals who are “under a disability” and meet the

other eligibility requirements. 42 U.S.C. § 423(a). Title

XVI of the Act likewise provides Supplemental Secur-

ity Income benefits for “disabled” indigent persons. 42

U.S.C. § 1382. With respect to individuals who are not

blind, the term “disability” is defined as follows:

(1) The term “disability” means—

(A) inability to engage in any substantial gainful

activity by reason of any medically determinable

physical or mental impairment which can be ex-

pected to result in death or which has lasted or can

be expected to last for a continuous period of not

less than 12 months

5a

(2) For purposes of paragraph (1)(A)—

(A) An individual shall be determined to be

under a disability 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,

regardless of whether such work exists in the im-

mediate area in which he lives, or whether a specific

job vacancy exists for him, or whether he would be

hired if he applied for work. For purposes of the

preceding sentence (with respect to any individual),

“work which exists in the national economy” means

work which exists in significant numbers either in

the region where such individual lives or in several

regions of the country.

42 U.S.C. § 423(d) (emphasis added); see also 42 UV.S. C.

§ 1382c(a)(3) (providing the same definitions for Supple-

mental Security Income benefits).

Social Security regulations provide for a sequential

evaluation process for determining whether a claimant

is under a disability. 20 C. F. R. §§ 404.1520, 416.920;

see also Plummer v. Apfel, 186 F.3d 422, 428 (3d Cir.

1999). At Step One, the Commissioner must determine

whether the claimant is currently engaging in a “sub-

stantial gainful activity.” 20 C.F.R. §§ 404.1520(b),

416.920(b). If so, she is not eligible. 20 C.F.R.

$§ 404.1520(b), 416.920(b). At Step Two, the Commis-

sioner must determine whether the claimant has a “se-

vere impairment.” 20 C. F. R. 58 404.1520(c), 416.920(c).

If the elaimant does not have a severe impairment, then

6a

she is not eligible. 20 C.F.R. §§ 404.1520(c), 416.920(c).

At Step Three, if a claimant does not suffer from an im-

pairment on the list of impairments presumed to be

severe enough to preclude gainful work, the Commis-

sioner moves to Step Four. 20 C.F.R. §§ 404.1520(d),

416.920(d). Step Four requires the Commissioner to

decide whether the claimant retains the residual

functional capacity to perform her past relevant work.

20 C. F. R. 58 404.1520(e), 416.920(e). The claimant bears

the burden of demonstrating an inability to return to

her past relevant work. Plummer, 186 F.3d at 428. If

the claimant is unable to resume her former occupation,

the evaluation moves to Step Five. Jd. At Step Five,

the Commissioner has the burden of demonstrating

that the claimant is capable of performing other jobs

existing in significant numbers in the national economy.

20 C.F.R. §§ 404.1520(f), 416.920(f). At Step Five, the

Commissioner is to consider the claimant’s vocational

factors. 20 C. F. R. §§ 404.1520(f), 416.920(f). '

. The regulations describe Steps Four and Five as follows:

(e) Your impairment(s) must prevent you from doing past

relevant work. If we cannot make a decision based on your

current work activity or on medical facts alone, and you have a

severe impairment(s), we then review your residual functional

capacity and the physical and mental demands of the work you

have done in the past. If you can still do this kind of work, we

will find that you are not disabled.

(f) Your impairment(s) must prevent you from doing any

other work. (1) If you cannot do any work you have done in the

past because you have a severe impairment(s), we will con-

sider your residual functional capacity and your age,

education, and past work experience to see if you can do other

work. If you cannot, we will find you disabled

20 C. F. R. §§ 404.1520(e) and (f); 20 C. F. R. $§ 416.920(e) and (f); see

also 20 C. F. R. § 404.1560; 20 C. F. R. § 416.960.

7a

III.

Thomas argues that because her position as an

elevator operator was eliminated and does not appear

in significant numbers in the national economy, the ALJ

should have proceeded to Step Five of the sequential

process. We agree that at Step Four, Thomas should

have been permitted to show that her previous work as

an elevator operator no longer exists in substantial

numbers in the national economy.

At Step Four of the sequential process, the C.m-

missioner must determine whether the claimant can

perform her past relevant work. Based on the language

of the relevant provisions of the Social Security Act and

the broader statutory scheme, we hold that, for the

purposes of Step Four of the evaluation process, a

claimant’s previous work must be substantial gainful

work which exists in the national economy. Thus, a

claimant may proceed to Step Five by showing either

that she cannot perform her past relevant work or that

the previous work is not substantial gainful work that

exists in the national economy.

The statute defines disability as follows: “An in-

dividual shall be determined to be under a disability

only if his physical or mental impairment or impair-

ments 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. § 423(d) (emphasis

added). Thus, an individual is disabled only if “he is not

only unable to do his previous work but cannot. . .

engage in any other kind of substantial gainful work

which exists in the national economy,” i.e., any “work

8a

which exists in significant numbers either in the region

where such individual lives or in several regions of the

country.” 42 U.S.C. § 423(d)(2)(A) (emphasis added).

The phrase “any other” in this provision is important

for present purposes. The use of this phrase makes

clear that an individual’s “previous work” was regarded

as a type of “substantial gainful work which exists in

the national economy.” When a sentence sets out one

or more specific items followed by “any other” and a

description, the specific items must fall within the

description. For example, it makes sense to say: “I

have not seen a tiger or any other large cat” or “I have

not read Oliver Twist or any other novel which Charles

Dickens wrote.” But it would make no sense to say, “I

have not seen a tiger or any other bird” or “I have not

read Oliver Twist or any other novel which Leo Tolstoy

wrote.” Therefore, if we presume that the statutory

provisions at issue here are written in accordance with

correct usage, a claimant’s ability to perform “previous

work” is not disqualifying if that work no longer “exists

in the national economy.” This feature of the statutory

language is unambiguous.

2 We are aware that the Ninth and Sixth Circuits have opined

that subsection (d)(2) is ambiguous. In Quang Van Han v. Bowen,

882 F.2d 1453 (9th Cir. 1989), the Court wrote that the inter-

pretation that we have just set out “is a reasonable interpretation

of the statute, but not the only one. It is also reasonable to con-

strue ‘previous work’ and ‘other’ work as separate categories,

neither a subset of the other.” Jd. at 1457 (emphasis in original);

see also Garcia v. Secretary of Health and Human Services, 46

F.3d 552, 558 (6th Cir. 1995) (same). In response, we can say only

that for the reasons we have attempted to explain, we do not be-

lieve that this conclusion is consistent with standard usage. The

language of subparagraph (d)(2) is not ambiguous.

9a

Moreover, even if the statutory language were am-

biguous, our interpretation would not change. Other

things being equal, a statute should be read to avoid

absurd results. In re First Merchants Acceptance

Corporation v. J.C. Bradford & Co., 198 F.3d 394, 402

(3d Cir. 1999). Here, there is no plausible reason why

Congress might have wanted to deny benefits to an

otherwise qualified person simply because that person,

although unable to perform any job that actually exists

in the national economy, could perform a previous job

that no longer exists.

It is true that a literal interpretation of the Social

Security regulations setting out the five-step evalua-

tion process seems to lead to this result. The regulation

describing Step Four states:

Your impairment(s) must prevent you from doing

past relevant work. . . . If you can still do this kind

of work, we will find that you are not disabled.

20 C.F.R. § 404.1520(e); see also 20 C.F.R. § 416.920(e).

Only if a claimant can get by Step Four do the regula-

tions call for an inquiry into whether the claimant can

perform any job that actually exists. See 20 C.F.R.

§ 404.1520(f); 20 C. F. R. § 416.920(f).

Mechanically following the regulations, the ALJ in

this case found that Thomas retained the residual func-

tional capacity to perform her previous job as an

elevator operator. Without giving Thomas an op-

portunity to present evidence concerning the existence

of elevator operator positions, the ALJ ended the eval-

uation at Step Four.’ He rejected Thomas’s argument

3 The Commissioner asserted in his brief that the position of

“elevator operator” is listed in the most recent edition of the

10a

that, because the position of elevator operator is now

obsolete, she should be permitted to proceed to Step

Five.

Although we acknowledge that the literal language of

the regulation governing Step Four appears to support

the ALJ’s decision to terminate the inquiry at Step

Four, this regulation should be read, if possible, so as

not to conflict with the statute it implements, see, e. g.,

Joy Technologies, Inc. v. Secretary of Labor, 99 F.3d

991, 995 (10th Cir. 1996), and if there is such a conflict,

the regulation must yield. See United States v. Mead

Department of Labor’s Dictionary of Occupation Titles (rev. 4th

ed. 1991). The job titles of “elevator operator” (Code 388.663-010)

and “elevator starter” (Code 388.367-010) do indeed appear in the

Dictionary of Occupation Titles, but these occupations were last

studied and updated in 1977. The Commissioner further claimed

that the Occupational Information Network (O*Net), which is

being developed by the Department of Labor as an electronic

replacement for the Dictionary of Occupation Titles, also lists the

job of elevator operator. Our own search of O*Net, however, at

<http://online.onetcenter.org/main.html> turned up no occupations

entitled “elevator operator” or “elevatcr starter.” Nor were there

cross-references to those positions as listed in the Dictionary of

Occupation Titles. The 2000-2001 edition of the Bureau of Labor

Statistics’s Occupational Outlook Handbook also does not contain

positions resembling an elevator operator or starter. The ALJ

refused to consider Thomas’s arguments regarding the status of

elevator operator as an occupation, so we do not have any findings -

as to whether or not that occupation remains in existence.

4 We are not certain that the regulation concerning Step Four

is irreconcilable with the language of the statute. The situation

arguably presented here—where the only job that a claimant may

be able to perform is a past job that is now obsolete—is

undoubtedly rare, and it is likely that this situation was not in the

minds of those who drafted and promulgated the regulation. See

Kolman v. Sullivan, 925 F.2d 212, 213 (7th Cir. 1991) (“The failure

of the regulation to require that the job constituting the applicant’s

lla

Corp., 533 U.S. 218, 226, 121 S. Ct. 2164, 150 L.Ed.2d

292 (2001) (even when an agency is expressly delegated

authority to elucidate a specific provision of a statute

by regulation, a court should not follow a regulation

that is “manifestly contrary to the statute”); Chevron

U.S.A. Inc. v. Natural Resources Defense Council, Inc.,

467 U.S. 837, 844, 104 S. Ct. 2778, 81 L.Ed.2d 694 (1984);

see also Mead Corp., 533 U.S. at 226, 121 S. Ct. 2164;

Heckler v. Campbell, 461 U.S. 458, 466, 103 S. Ct. 1952,

76 L.Ed.2d 66 (1983). The problem with a literal

reading of the regulation regarding Step Four is that it

sets up an artificial roadblock to an accurate deter-

mination of whether Thomas can “engage in any . . .

kind of substantial gainful work which exists in the

national economy.” 42 U.S.C. § 423(d)(2). If Thomas

can show that elevator operator positions really are

obsolete, the fact that she still possesses the physical or

mental capability to perform the duties of an elevator

operator does not mean that she can engage in any

substantial gainful activity that actually exists. Accord-

ingly, the ALJ should have allowed Thomas to present

evidence on whether elevator operator positions are

obsolete. If Thomas had made such a showing, the ALJ

then should have proceeded to Step Five of the sequen-

tial evaluation to ascertain whether Thomas’s medical

past work exist in significant numbers probably just reflects an

assumption that jobs that existed five or ten or even fifteen years

ago still exist.”). As noted, a regulation should be read if possible

in a way that does not conflict with the statute it implements and

in a way that avoids absurd results. If, however, the regulation

must be interpreted as the Commissioner insists, we would hold

that the regulation and any Social Security rulings embodying that

interpretation conflict with the statute and are, to the extent of the

conflict, invalid.

12a

impairments prevent her from engaging in any work

that actually exists.

Step Four was designed to facilitate the determina-

tion of whether a claimant has the capacity to work,

because it is easier to evaluate a claimant’s capacity to

return to a former job than to decide whether any jobs

exist for a person with the claimant’s impairments and

vocational background. Nevertheless, we cannot lose

sight of the fact that the touchstone of “disability” is the

inability to engage in any substantial gainful activity

that exists in the national economy. 42 U.S.C.

§ 423(d)(2). Because a rigid application of Step Four in

this case could defeat Congress’s unambiguous intent,

we must reject such an approach. See Mead Corp., 533

U.S. at 226, 121 S. Ct. 2164.

The Commissioner argues that permitting a claimant

to proceed to Step Five if she can show that her past

job does not exist in significant numbers in the national

economy would convert disability benefits into un-

employment benefits. We find this argument uncon-

vincing. Awarding disability benefits to a claimant

who, as a result of a qualifying impairment, cannot per-

form any job that actually exists is hardly the equi-

valent of providing unemployment compensation.’ By

5 A claimant cannot even reach Step Four unless she makes a

threshold showing of a medically severe physical or mental impair-

ment. At Step Two, if a claimant does not have “any impairment

or combination of impairments which significantly limits [her]

physical or mental ability to do basic work activities,” she does not

have a severe impairment and is therefore not disabled. 20 C. F. R.

§ 404.1520(c); 20 C.F.R. § 416.920(c). In addition, a claimant’s

burden of proving that her previous work no longer exists is

hardly insubstantial. Finally, in the vast majority of cases, a

claimant who is found to have the capacity to perform her past

13a

contrast, denying benefits because a claimant could

perform a type of job that does not exist seems non-

sensical.

In our view, the most perceptive precedent ad-

dressing the question at hand is Kolman v. Sullivan,

925 F.2d 212 (7th Cir. 1991). The holding in that

case—that the ALJ should have continued to Step Five

because the claimant’s past job was a temporary

training position—is inapplicable here, but the Kolman

Court did mention in dicta that, even if a claimant’s past

job was a permanent position, an ALJ would be re-

quired to move to Step Five if that past job had dis-

appeared. As the Kolman Court noted, the fact that a

claimant could perform a past job that no longer exists

would not be “a rational ground for denying benefits.”

Kolman, 925 F.2d at 213. The Court observed:

The failure of the regulations to require that the job

constituting the applicant’s past work exist in signi-

ficant numbers probably just reflects an assumption.

that jobs that existed five or ten or even fifteen

years ago still exist. But if the assumption is

dramatically falsified in a particular case, the ad-

ministrative law judge is required to move on to the

next stage and inquire whether some other job that

the applicant can perform exists in significant

numbers today somewhere in the national economy.

work also will have the capacity to perform other types of work.

To remain faithful to the statutory scheme, however, the ALJ

should move to Step Five and dispose of the case at that stage

rather than cutting off the evaluation simply because the claimant

has the capacity to perform a job that may not exist.

14a

Id. at 213-14. °

We acknowledge that the Commissioner’s position is

supported by Rater v. Chater, 73 F.3d 796 (8th Cir.

1996), and Pass v. Chater, 65 F.3d 1200 (4th Cir. 1995),

but neither opinion is persuasive. Both decisions rely

primarily on the Social Security regulations and on

Social Security rulings. See Rater, 73 F.3d at 798-99

(relying on Social Security Ruling 82-61); Pass, 65 F.3d

at 1204-05 (relying on Social Security Rulings 82-61 and

82-40). Neither opinion, in our judgment, devotes suffi-

cient attention to the language of the statute or the

statutory scheme.

IV.

The dissent argues that our reasoning in this case is

“flawed in six ways,” but the dissent’s arguments are

unpersuasive. The dissent asserts that the statutory

language supports its position, accusing us of “rewriting

the statute,” “contort[ing] the statutory language,” re-

ject{ing] its literal meaning,” and “engraft[ing]” upon it

an “additional component.” Dissent at [17a, 19a]. In

the words of the dissent, the statutory language is “per-

fectly clear,” it “permits no other conclusion,” it “clearly

mandates” the result reached by the dissent, and its

6 In subsequent cases, the Seventh Circuit has neither imple-

mented nor disavowed this dicta. To be sure, in Knight v. Chater,

55 F.3d 309 (7th Cir. 1995), the Court affirmed the denial of

benefits sought by a claimant who argued that she should have

been permitted to bypass Step Four because her previous position

as a keypunch operator had become obsolete with the advent of

computers. The Court stated, however, that some of the claimant’s

other previous jobs also qualified as past relevant work that the

claimant still had the capacity to perform, and consequently the

Court was not required to reach the claimant’s argument about her

now-extinct previous job. Id. at 316.

15a

meaning is plain.“ Id. Notably absent from the

dissent, however, is any attempt to provide reasoned

support for these charges. In particular, the dissent

makes no effort to respond to our argument that the

statutory language, when read in accordance with

standard rules of usage, prescribes that the claimant’s

“previous work” must still “exist{] in the national

economy.” See supra at [Ta-Sa].

Three of the dissent’s arguments are beside the point

because they are based not on the statute, but on the

regulations. The dissent contends that “Step Four

requires the Commissioner to decide whether the

claimant retains the residual functional capacity to

perform her past relevant work“; that “it is not until

Step Five that vocational factors (i.e., ability to access

other gainful work) are considered”; and that “Steps

Four and Five are quite clear.” Dissent at [18a, 20a].

Our decision, however, is based not on the regulations

but on the statute. To the extent that the regulations

are inconsistent with the statute, they are invalid.

Thus, the dissent’s reliance on the regulations does not

respond to the rationale of our decision.

The dissent argues that the Seventh Circuit’s de-

cision in Kolman is the “linchpin” of our decision and

that it can be “distinguished” from the present case.

Dissent at [20a]. This argument is puzzling because our

opinion plainly acknowledges that It Ihe holding [in

Kolman) is inapplicable here.” Supra at [13a]. Instead

of basing our decision on Kolman, we simply quoted

what we recognized as “dicta” in that opinion. Id.

The dissent warns that our interpretation of the

statute “would wreak havoc with the evidentiary as-

pects of the administrative process” by making “voca-

l6a

tional concerns” (i.e., whether elevator operator jobs

still exist) a part of Step Four. Dissent at [18a]. This is,

to put the point mildly, hyperbole. Cases like the

present one are rare, and inquiring whether a job such

as that of an elevator operator still exists in the national

economy is not complex. We have no doubt that the

Social Security system will be able to cope with this

decision.

Finally, the dissent attempts to provide a plausible

reason why Congress might have wanted to deny bene-

fits to a claimant on the ground that the claimant can

perform a previous job that no longer exists. According

to the dissent, Iplrevious work essentially serves as a

proxy for the ability to perform work.” Dissent at

[19a]. Apparently, this means that Congress might

have reasoned that if a claimant is able to perform

previous work that no longer exists, it is likely that the

claimant is also able to perform other work that does

exist. Undoubtedly this is true in most cases—but it

may not always be true, and it may not be true in this

case. The dissent thus provides no answer to the

question why Congress might have wanted to preclude

benefits for a claimant who is able to perform previous

work that no longer exists but is unable to perform any

work that does exist.

V.

For the foregoing reasons, we reverse the order of

the District Court and remand for further proceedings.

17a

RENDELL, Circuit Judge, dissenting, with whom

Judges SLOVITER and ROTH join.

As the majority notes, the Administrative Law

Judge (“ALJ”) determined that Pauline Thomas had

the “residual functional capacity to perform at least

light work and, therefore, she could perform her past

relevant work as an elevator operator.” Maj. Op. at

[3a]. Under the statutory framework, that finding

dictated a determination that Thomas was not disabled.

I respectfully dissent from the majority’s view to the

contrary and believe its reasoning to be flawed in six

ways.

First, the statutory language permits no other

conclusion than that Thomas was disabled. It requires

that disability be based on an initial finding that an

individual is “unable to do his previous work.” 42

U.S.C. § 423(d)(2)(A). If that condition is met, then the

ALJ is to look into the ability to engage in “any other

kind of substantial gainful work which exists in the

national economy.” Id. The majority concludes that the

second condition’s reference to gainful employment

existing in the national economy must be engrafted

upon the perfectly clear first requirement, thus re-

writing the statute. The majority’s holding so states:

“We hold that, for the purposes of Step Four of the

evaluation process, a claimant’s previous work must be

substantial gainful work which exists in the national

economy.” Maj. Op. at [9a]. However, the statutory

scheme clearly mandates that since Pauline Thomas is

able to perform an elevator operator’s work, found to

be light work, she is not disabled as a matter of law.

Second, by the majority’s own admission, Step Four

requires the Commissioner to decide whether the

18a

claimant retains the residual functional capacity to per-

form her past relevant work. 20 C. F. R. 88 404.1520 (e),

416.920(e) (Maj. Op. at [6a ]). Step Four is not an

inquiry into employability or employment opportunity,

but, rather, it is an inquiry into physical capacity. See

Pass v. Chater, 65 F.3d 1200, 1204 (4th Cir. 1995) (“Past

relevant work in the regulatory scheme is a gauge by

which to measure the physical and mental capabilities

of an individual and the activities that he or she is able

to perform.”); see also Social Security Ruling 82-61

(explaining that past relevant work is considered for

the purpose of determining whether the claimant has

the “capacity [] to perform the physical and mental

demands of the kind of work he or she has done in the

past“). Pauline Thomas has been found to have the

physical capacity to perform the job of elevator opera-

tor, concededly her past relevant work. That deter-

mination ends the inquiry.

Third, it is not until Step Five that vocational factors

(i.e., ability to access other gainful work) are con-

sidered. 20 C.F.R. 58 404.1520(f), 416.920(f). Again, the

majority notes this. But the majority fails to note that

its interpretation of the statute would make vocational

concerns, and the need for experts, part of Step Four as

well. It would, and will, wreak havoc with the evi-

dentiary aspects of the administrative process.' This

represents a radical change in the regulatory scheme.

1 The claimant carries the burden until Step Five. Bowen v.

Yuckert, 482 U.S. 137, 146 n.5, 107 S. Ct. 2287, 96 L.Ed.2d 119

(1987). At Step Five “(tJhe ALJ must show there are other jobs

existing in significant numbers in the national economy which the

claimant can perform, consistent with her medical impairments,

, education, past work experience, and residual functional

— 2 The ALJ will often seek the assistance of a

19a

Fourth, the majority states that “there is no plausible

reason why Congress might have wanted to deny

benefits” to someone in Pauline Thomas’s position—“an

otherwise qualified person, although unable to perform

any job that actually exi[s}ts in the national economy,

could perform a previous job that no longer exist[s].”

Maj. Op. at [lla]. I take issue with that assertion,

thinking it quite plausible that Congress decided that if

a claimant still retained the physical and mental

capacity to do whatever work she previously did, the

inquiry should end there with a finding that claimant is

not disabled. Previous work essentially serves as a

proxy for the ability to perform work, not as proof that

the claimant can be employed in that particular job.

Congress may not, in fact, have considered the problem

of job obsolescence, but, contrary to what Judge Posner

suggests in Kolman v. Sullivan, 925 F.2d 212 (7th Cir.

1991), it is not up to the courts to fill that alleged

legislative void. Further, the absence of any particular

vocation is not really a void at Step Four, given that the

statutory scheme limits the inquiry into ability and does

not permit consideration of matters other than the de-

mands of the previous job.

Fifth, the statute, read according to its plain mean-

ing, is quite consistent with the regulations as promul-

gated. Yet the majority, having contorted the sta-

tutory language and rejected its literal meaning, then

vocational expert at this fifth step.” Plummer v. Apfel, 186 F.3d

422, 428 (3d Cir. 1999) (citations omitted). The Supreme Court

explained: “This allocation of burdens of proof is well within the

Secretary’s ‘exceptionally broad authority’ under the statute.”

Bowen, 482 U.S. at 146 n. 5, 107 S. Ct. 2287 (quoting Schweiker v.

Gray Panthers, 453 U.S. 34, 43, 101 S. Ct. 2633, 69 L.Ed.2d 460

(1981)).

20a

finds it must similarly reject a “mechanical” reading of

the regulations. But in so doing it fails to state how the

regulations can possibly be read any other way; Steps

Four and Five are quite clear. In fact, the majority’s

decision to reject the regulatory scheme of Steps Four

and Five as outlined in the regulations is unpre-

cedented. Nor does the majority seek to justify its

reasoning based on its unwillingness to defer to the

Agency’s authority to regulate. Indeed, that would be

contrary to the Supreme Court’s recent ruling in

Barnhart v. Walton, — U.S. ——, 122 S. Ct. 1265, 152

L.Ed.2d 330 (2002), which instructs, addressing specifi-

cally a Social Security Administration interpretation:

[lf the statute speaks clearly “to the precise

question at issue,” we “must give effect to the

unambiguously expressed intent of Congress.” If,

however, the statute “is silent or ambiguous with

respect to the specific issue, we must sustain the

Agency’s interpretation if it is ‘based on a permis-

sible construction’” of the Act.

Id. at 1269 (quoting Chevron U.S.A. Inc. v. Natural

Res. Def. Council, 467 U.S. 837, 842-43, 104 S. Ct. 2778,

81 L. Ed.2d 694 (1984)).

In Walton, the Supreme Court found that 42 U.S.C.

§ 423(d)(1)(A) was ambiguous and concluded that the

Social Security Administration’s interpretation of am-

biguous provisions of the [s}tatute were reasonable, and

therefore permissible. Jd. at 1270-73. The Court

explained: “The [Social Security Act’s] complexity, the

vast number of claims that it engenders, and the conse-

quent need for agency expertise and administrative

experience lead us to read the statute as delegating to

the Agency considerable authority to fill in, through

21a

interpretation, matters of detail related to its admini-

stration.” Id. at 1273. Here, one can only conclude that

if the majority’s position is credited, the statute is at

best ambiguous. Accordingly, the Agency’s interpreta-

tion should be accorded great weight. And, here, not

only has the Agency spoken in formal regulatory terms,

it has also issued “Program Policy Statements” re-

garding this very issue. In addressing the issue of

whether previous work in a foreign country should be

considered past relevant work, the Agency warned that

requiring the existence of similar jobs in the United

States would improperly elevatel] an element of the

fifth step of the sequential evaluation process, avail-

ability of work in the national economy, to the fourth

step which only deals with the claimant’s ability to do

his or her past work.” Social Security Ruling 82-40.

See also Social Security Ruling 82-61 (noting “the intent

of Congress that there be a clear distinction between

disability benefits and unemployment benefits”); Social

Security Ruling 82-62 (explaining that past relevant

work is considered in order to determine whether the

claimant is able to perform “the functional activities

required in [that] work”). Therefore, the majority has

erred by failing to consider the Agency’s view of the

statutory language and scheme.

Sixth, I believe that other courts have distinguished

the decision of the Court of Appeals for the Seventh

Circuit in Kolman, on which the majority relies, and I

submit that it should not be the linchpin here. Unlike

the majority, I find the Court of Appeals for the Fourth

Circuit’s opinion in Pass v. Chater, 65 F.3d 1200 (4th

Cir. 1995), to be well-reasoned and persuasive.” In

* The majority summarily disposes of the Court of Appeals for

the Fourth Circuit’s reasoning in Pass, as well as the Court of

22a

Pass, the court concluded that although the applicant’s

previous job as a gate guard may not exist in the

national economy it is still considered as past relevant

work because the focus of Step Four is the claimant’s

physical and mental capabilities. Id. at 1207. Also, the

Court of Appeals for the Seventh Circuit seems to have

retreated from Kolman somewhat in Knight v. Chater,

55 F.3d 309 (7th Cir. 1995), where it distinguished the

facts of the case before it on the grounds that the

claimant’s job as a keypunch operator-clerk was not

“makeshift” or “temporary.” Id. at 315.

Admittedly, Pauline Thomas’s situation has visceral

appeal because of the perceived low level of exertion

required to perform her former work and the obsoles-

Appeals for the Eighth Circuit’s reasoning in Rater v. Chater, 73

F.3d 796 (8th Cir. 1996), on the grounds that they “rely primarily

on the Social Security regulations and on Social Security rulings.”

Maj. Op. at [16a]. While I disagree with this characterization, even

if it is true, this is hardly an indictment. As the Supreme Court

has explained: [Thhe fact that the Agency previously reached its

interpretation through means less formal than ‘notice and com-

ment’ rulemaking, see 5 U.S.C. § 553, does not automatically de-

prive that interpretation of the judicial deference otherwise its

due.” Walton, 122 S. Ct. at 1271. Therefore, the courts’ considera-

tion of regulations and rulings does not undermine the persuasive-

ness of their decisions.

3 In support of its claim that the Court of Appeals for the

Seventh Circuit “has neither implemented nor disavowed” its dicta

in Kolman, the majority says that in Knight the court “did not

reach the claimant’s argument about her now-extinct previous

job.” Maj. Op. at [16a] n. 6. While it may not have conducted an in

depth analysis of her argument, it did specifically rule out the ap-

plicability of its Kolman reasoning when it could have expanded its

reach: “Ms. Knight’s former job as a keypunch operator-clerk was

neither a temporary nor training job. Therefore, Kolman does not

apply here.” Knight, 55 F.3d at 315.

23a

cence of her former job. However, the point at Step

Four is not that she can actually be employed in her

past job, but that she is able to do a certain level of

work. If Congress and the regulatory body charged

with implementing the statutory scheme have deter-

mined that Pauline Thomas should not be considered

“disabled” if she still has the ability, physically and

mentally, to do what she had previously done, are we

entitled to graft additional requirements on the statu-

tory and regulatory scheme? While we might like to do

so, or think it somehow makes sense to do so, we cannot

provide a remedy where Congress and the Agency

have not. It is for Congress to alter the statute, if

indeed it believes that the statutory scheme, and

specifically Step Four, should be altered in such a way

as to deal with the issue of job obsolescence.

24a

APPENDIX B

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

Civ. No. 99-2234 (WGB)

PAULINE THOMAS, PLAINTIFF

V.

KENNETH S. APFEL,

COMMISSIONER OF SOCIAL SECURITY, DEFENDANT

Filed: Aug. 17, 2000]

OPINION

* * * * *

BASSLER, Distriet Judge:

Plaintiff, Pauline Thomas, (“Thomas”), age 57, brings

this action pursuant to 42 U.S.C. 405(g) and 1383(c)(3)

of the Social Security Act (“the Act”). Thomas requests

that the Court reverse or remand the final decision of

the Commissioner of Social Security (“Commissioner”)

denying Thomas's application for Disability Insurance

Benefits (“SSI”). For the reasons set forth in this

opinion, the Commissioner’s decision is affirmed.

I. BACKGROUND

Pauline Thomas, a former elevator operator, filed an

application for Disability Insurance and SSI benefits on

June 11, 1996, alleging disability as of August 25, 1995.

25a

(Tr. 65-67). Thomas was laid off from her job as an

elevator operator on August 25, 1995, because her job

was obsolete. (Tr. 12). Thomas then worked as a mail

bag checker for two weeks, but the ALJ did not con-

sider this relevant work because of its short duration.

(Tr. 12).

Thomas initially claimed her disability was caused by

lumber radiculopathy‘ and heart disease (Tr. 12). Addi-

tionally, she cited medical problems that occurred after

her August 25, 1995 filing, but there was no medical

evidence to support such claims. For instance, in

January 1996, a slow moving vehicle brushed her elbow,

causing her to fall to the ground, but her X-rays were

normal. (Tr. 12). Also, Thomas claimed she fractured

her right ankle on July 8, 1996, and her attorney

amended the onset date of her disability to include this

injury, but Thomas never produced medical records in

support of this claim. (Tr. 4, 14). Finally, Thomas was

hospitalized on July 31 to August 6, 1996 for transient

ischemic attack, but she suffered no long term

problems. (Tr. 144-154).

The Commissioner denied Thomas’s application on

February 1, 1996, for the following reasons: an exercise

test indicated that Thomas’s heart could tolerate the

level of exertion she needed to work, and that despite

4 Lumbar radiculopothy is nerve root disorder in the lower

back. A patient usually does not need surgery to recover. Merck

Manual 1489-1490.

5 A transient ischemic attack (“TIA”) has symptoms similar to

a stroke, but is transient in nature. A TIA begins suddenly,

usually lasts two to thirty minutes, but rarely more than one to

two hours, then abates without persistent neurologic abnormali-

ties. The Merck Manual of Diagnosis and Therapy 1420 (17th ed.

1999).

26a

neck pain, she did not have severe muscle weakness or

numbness in her limbs. (Tr. 43). The Commissioner

also concluded that there was no evidence of any other

condition that significantly limits her ability to work.

Ibid. Therefore, the Commissioner decided that she

had the physical ability to perform her past job as an

elevator operator. Ibid.

On October 21, 1996, the Commissioner denied the

request for reconsideration that Thomas filed on

September 11, 1996. (Tr. 51). Thomas then requested a

hearing before an Administrative Law Judge (“ALJ”).

Ca January 16, 1998, ALJ Carl E. Stephan denied

Thomas’s appliction because he determined that

Thomas could perform her past relevant work. (8-16).

Specifically, he found that Thomas could perform work-

related activities, except for “perhaps” medium and

heaving lifting and extensive bending and stooping, and

therefore she could operate an elevator. (Tr. 15-16).

The ALJ’s ruling became final on March 12, 1999 when

the Appeals Council denied Thomas’s request for re-

view. (Tr. 2, 3).

II. STANDARD OF REVIEW

A Court may review the factual findings of the Com-

missioner in disability cases to determine whether

“substantial evidence” supports the Commissioner’s

finding that there is no disability. 42 U.S.C. § 405(g);

see also 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 is defined as “more than a

mere scintilla” and “such relevant evidence as a reason-

able mind might accept as adequate,” Richardson v.

Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated

Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); see also

27a

Plummer, 186 F.3d at 427. This substantial evidence

“shall be conclusive” and must be upheld, even if the

record contains information that could support a dif-

ferent conclusion. 42 U.S.C. § 405(g); see also Williams

v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992), cert.

denied, 507 U.S. 924 (1992); Alexander v. Shalala, 927

F. Supp. 785, 791 (D.N.J. 1995); see also Brown v.

Bowen, 845 F. 2d 1211, 1213 (3d Cir. 1988.) Accordingly,

the record in this case must be analyzed to assess

whether substantial evidence supports the Commis-

sioner’s finding that Thomas is not eligible for disability

insurance.

The Commissioner applies a five-step sequential pro-

cess to determine whether a person is eligible for

Disability Insurance Benefits. 20 C.F.R. §§ 404.1520,

416.920. If a finding of disability or non-disability can

be found at any point in the sequential process, the

Commissioner will not review the claim further. 20

C. F. R. §§ 404.1520(a), 416.920(a). The Claimant bears

the burden of proof and must provide medical and other

evidence to the Commissioner in order to pass the first

four steps of the sequential analysis, 42 U.S.C.

§ 423(d)(A), incorporated by 42 U.S.C. § 1382c(a)(3)(G);

See Adorno, 40 F.3d at 46; Ferguson v. Schweiker, 765

F. 2d 31, 36 (3d Cir. 1985); Rossi v. Califano, 602 F.2d

55, 57 (3d Cir. 1979). The burden of proof only shifts to

the Commissioner if the analytical process succeeds to

the fifth and final step. See Ferguson, 765 F.2d at 36;

Rossi, 602 F.2d at 57.

The Commissioner starts the analysis by determining

whether the claimant currently is employed in a “sub-

stantial gainful activity,” 20 C.F.R. §§ 404.1520(b),

416.920(b). If not, the Commissioner proceeds to the

second step to assess whether a “severe impairment”

28a

significantly limits the claimant’s ability to work. 20

C. F. R. §§ 404.1520(c), 416.920(c). If so, then the Com-

missioner proceeds to the third step to determine

whether the claimant has medical evidence that meets

the criteria listed in 20 C.F.R. Part 404, Subpart P,

Appendix 1 (“Listing of Impairments”). 20 C.F.R. 88

404.1520(d), 416.920(d). If the claimant meets the

Listing criteria, then the Commissioner must conclude

that the claimant is disabled and entitled to benefits,

and the review ends. Ibid. If the claimant’s impair-

ment is not in the Listing, the Commissioner proceeds

to step four to consider whether the claimant has the

residual functioning capacity to meet the demands of

her past employment. 20 C. F. R. §§ 404.1520(e),

416.920(e). Finally, if the claimant cannot perform her

past work, the Commissioner has the burden of proving

that there is other substantial gainful employment that

the claimant could perform. 20 C.F.R. §§ 404.1520(f),

416.920(f).

III. ANALYSIS

Thomas claims that because her past work as an |

elevator operator is obsolete, the ALJ erred during the

fourth step of the sequential analysis when he con-

cluded that Thomas could perform her past relevant

work. There is no validity to Thomas’s claim because

the standard of review is whether the claimant still has

the residual physical and mental capacity to perform

her past job, 20 C.F.R. §§ 404.1520(e), 416.920(e). Dis-

ability insurance provides for people who physically are

incapable of performing the type of job they did in the

past, it does not provide for people who lost their job.

The ALJ properly proceeded through the first four

steps of the analytical process and found substantial

29a

evidence to conclude that Thomas can perform her past

“light work” as an elevator operator.

A. The ALJ properly applied the sequential analysis.

The ALJ concluded his analysis at the fourth

sequential step because Thomas failed to provide

medical evidence of any functional limitation on her

ability to perform her past work. In making his de-

cision, the ALJ determined that Thomas was capable of

light work. A job that is mainly sedentary, and requires

some pushing and pulling of arm or leg controls, is light

work if the employee usually is not required to lift

more than twenty pounds. 20 C. F. R. §§ 404.1567(b),

416.967(b). Thomas indicated that her job involved

eight hours of sitting and no lifting over ten pounds.

(Tr. 84). Therefore, her work as an elevator operator

fell well within the category of light work.

To assess Thomas’s heart problems, the ALJ used a

report from Dr. Merle C. Cruz, M.D., Plaintiff's

treating physician. (Tr. 139). Although Thomas

claimed to have had 2 heart attack in 1988, Dr. Cruz

found no evidence of organ damage. (Tr. 137). Despite

a finding of elevated blood pressure, Dr. Cruz char-

acterized Thomas’s physical examination as “unre-

markable.” (Tr. 136). Dr. Cruz noted that Thomas did

not have chest discomfort, and her only cardiovascular

symptoms was an occasional palpitation and fatigue.

(Tr. 138). Dr. Cruz said Thomas’s prognosis was good

and she could perform light work such as sitting, lifting,

walking and handling objects. (Tr. 139). Therefore,

there was no evidence to support Thomas’s claim that

— problems prevented her from performing her

w

30a

There also was no evidence to support Thomas's

claim that lumbar radiculopothy, a nerve root disorder

in her back, prevented her from performing her past

work. This claim was ruled out by her chiropractor, Dr.

John L. Ceif, D.C., who treated Thomas for two months.

(Tr. 133). Instead of lumbar radiculopothy, Dr. Ceif dia-

gnosed acute traumatic cervical strain/sprain with

concomitant disc herniation. Ibid. He noted that

“manipulation and electrical muscle stimulation” eased

her discomfort by sixty percent. Ibid. ä

Thomas claims to have had other problems that were

not originally listed as a source of disability, but the

ALJ does not consider them to be signficant enough to

cause disability. For instance, Thomas had a transient

ischemic attack which caused her to be hospitalized

from July 31 to August 6, 1996. (Tr. 144-154). Although

a transient ischemic attack has symptoms similar to a

stroke, it only lasts a brief duration, causing no per-

sistent nuerologic abnormalities. Merck Manual 1420.

The medical reports do not indicate that Thomas suf-

fered any functional limitations or abnormalities from

the attack. (Tr. 144-154). Moreover, Thomas’s CAT-

scan revealed that there were no abnormalities. (Tr.

151, repeated at 154). Upon discharge of the hospital,

Thomas was alert and oriented. (Tr. 144). Based on

this diagnosis, there is no indication that Thomas’s tran-

sient ischemic attack prevents her from performing her

past work.

Moreover, Thomas has not provided medical evidence

to support her claim of musculoskeletal problems. For

instance, after a slow moving vehicle brushed Thomas's

arm on January 15, 1996, x-rays taken in an emergency

room indicated that Thomas’s humerus, elbow, radius,

ulna, leg, and pelvis were normal. (Tr. 126-130). As to

3la

her claims of a fractured right ankle, Thomas did not

produce appropriate records of this impairment al-

though she was given a 45-day time extension to pro-

duce evidence for the appeals court. (Tr. 4, 14). De-

spite her complaints, there is no evidence that Thomas

suffers any injuries that would prevent her from per-

forming her job as an elevator operator.

The ALJ was able to conclude in the fourth step of

the sequential analysis that Thomas was ineligible for

disability insurance benefits and SSI because he found

substantial evidence that Thomas has the residual

capacity to perform her past light work as an elevator

operator. Therefore, the Commissioner was not re-

quired to proceed to the fifth step to determine

whether, based on her age, education work experience

and residual functioning capacity, Thomas could per-

form any other jobs. 20 C.F.R. §§ 404.1520(f),

416.920(f).

B. It is irrelevant whether Thomass job exists.

Once the Commissioner is able to determine whether

disability should be awarded, there is no need to

progress to the next step of the analytical process. 20

C.F.R. §§ 404.1520(a), 416.920(a). Thomas, however,

argues that the ALJ should proceed to the fifth step to

consider whether Thomas could perform other work

because she no longer has the option to work as an

elevator operator. Yet, the ALJ does not need to

progress to step five because Thomas failed to meet her

burden of proof in step four. It is only after an

individual proves that she is incapable of performing

her past relevant work in step four, that the burden

shifts to the Commissioner to establish that the in-

dividual can perform other work in the national

32a

economy. Williams, 970 F. 2d at 1181 (citing Bowen v.

Yuckert, 482 U.S. 137, 146 n.5 1987). Thomas did not

meet her burden of proof in step four and the ALJ had

substantial evidence to support his conclusion that

Thomas physically could perform her past job as an

elevator operator. Therefore, there was no need to

assess what other jobs Thomas physically was capable

of performing.

C. ALJ is not bound by the primary physician’s

opinion.

Thomas complains that ALJ ignored the treating

physician’s opinion of disability. The Commissioner or

ALJ generally will afford controlling weight to a

treating physician’s opinion if the opinion is well sup-

ported by medically acceptable evidence and is con-

sistent with other substantial evidence. 20 C. F. R.

§§ 404.1527(d). Yet, a treating physician’s opinion is not

binding and may be rejected for lack of supporting

evidence, or if there is contradicting medical evidence

in the record. Jones v. Sullivan, 954 F. 125, 129 (3d Cir.

1991.) (unsupported diagnosis is not entitled to signifi-

cant weight); Kent v. Schweikwe, 710 F.2d 110, 115 n.5

(3d Cir. 1983); Benjamin v. Bowen, 682 F. Supp. 264,

268 (D.N.J. 1988). Accordingly, Thomas’s treating phy-

sician’s opinion need not be afforded controlling weight.

Here, Thomas’s treating physician, Dr. Magdy

Elamir, did not provide any laboratory or clinical evi-

dence to support the assertion that Thomas was dis-

abled. (Tr. 142). In a two-sentence letter dated June 7,

1996, Dr. Elamir simply wrote that Thomas was cur-

rently under medical treatment and was unable to

work. Ibid.

33a

In contrast, other physicians found Thomas was able

to work. Dr. Merle C. Cruz, M.D., stated in an internal

medicine report dated July 2, 1996 that Thomas was not

disabled and could sit, stand, walk, lift, and handle

objects. (Tr. 139). Additionally there were no hospital

records indicating that Thomas has any functional

limitations. (Tr. 144-145). Further, plaintiff's chiro-

practor, Dr. John L. Ceif, D.C., reported that his treat-

ment resulted in a sixty percent reduction of plaintiff’s

symptoms. (Tr. 133). Therefore, the ALJ rejected Dr.

Elamir’s finding of disability because there was no

supporting medical findings, and there was substantial

evidence to support the finding that Thomas was not

IV. CONCLUSION

For the reasons previously stated in this opinion, this

Court affirms the Commissioner’s decision to deny

Plaintiff Disability Insurance Benefits and Supplement

Security Income.

An appropriate Order accompanies this Opinion.

DATED: [August 17, 2000]

/s/ WILLIAMG. BASSLER

WILLIAM G. BASSLER, U.S. D..

34a

APPENDIX C

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

Civ. No. 99-2234 (WGB)

PAULINE THOMAS, PLAINTIFF

V.

KENNETH S. APFEL,

COMMISSIONER OF SOCIAL SECURITY, DEFENDANT

[Filed: Nov. 6, 2002]

ORDER

This matter having come before the Court by way of

Pauline Thomas’s complaint for review of the final de-

cision of the Commissioner of Social Security denying

her Social Security Disability Insurance Benefits and

Supplemental Security Income; and

This Court having considered the joint stipulation of

facts, the administrative record below, and the

pleadings and briefs of the parties;

For the reasons set forth in the Court’s Opinion filed

this day and for good cause shown;

It is on this 17th day of August, 2000, hereby

ORDERED that the decision of the Commissioner is

affirmed.

/s/ WILLIAM G, BASLER

William G. Bassler, U.S.DJ.

35a

APPENDIX D

[Seal omitted]

Social Security Administration

Refer to: TAHB6 Office of Hearing and Appeals

[Social Security Number Omitted] 5107 Leesburg Pike

Falls Church, VA 22041-3255

[Mar. 12, 1999]

ACTION OF APPEALS COUNCIL ON REQUEST

FOR REVIEW

Ms. Pauline Thomas

106 Storms Avenue, Apt. 2

Jersey City, NJ 07304

Dear Ms. Thomas:

The Appeals Council has considered the request for

review of the Administrative Law Judge’s decision

issued on January 16, 1998.

Social Security Administration regulations provide that

the Appeals Council will grant a request for review

where: (1) there appears to be an abuse of discretion by

the Administrative Law Judge; (2) there is an error of

law; (3) the Administrative Law Judge’s action, find-

ings, or conclusions are not supported by substantial

evidence; or (4) there is a broad policy or procedural

issue which may affect the general public interest. The

regulations also provide that where new and material

evidence is submitted with the request for review, the

entire record will be evaluated and review will be

granted where the Appeals Council finds that the

Administrative Law Judge’s actions, findings, or

36a

conclusion is contrary to the weight of the evidence

currently of record (20 CFR 404.970 and 416.1470).

The Appeals Council has concluded that there is no

basis under the above regulations for granting your

request for review. Accordingly, your request is denied

and the Administrative Law Judge’s decision stands as

the final decision of the Commissioner of Social Security

in your case. In reaching this conclusion, the Appeals

Council has considered the applicable statutes, regula-

tions, and rulings in effect as of the date of this action.

Your representative contends, in part, that the Admin-

istrative Law Judge did not give full and fair

consideration to the evidence favorable to your case. A

review of the record, however, shows that the Admini-

strative Law Judge fully considered all of the evidence

presented at the hearing; the Appeals Council has

found no indication that the Administrative Law Judge

decided the case on a basis other than his evaluation of

the issues and evidence of record.

If you desire a court review of the Administrative Law

Judge’s decision, you may commence a civil action by

filing a complaint in the United States District Court

for the judicial district in which you reside within sixty

(60) days from the date of the receipt of this letter. It

will be presumed that this letter is received within five

(5) days after the date shown above unless a reasonable

showing to the contrary is made. The complaint should

name the Commissioner of Social Security as the de-

fendant and should include the Social Security

number(s) shown at the top of this notice. The right to

court review is provided for in section 205(g) and

1631(c)(3) of the Social Security Act, as amended (42

U.S.C. 405(g) and 1383(c)(3)).

37a

If you cannot file your complaint within 60 days, you

may ask the Appeals Council to extend the time in

which you may begin a civil action. However, the

Council will only extend the time if you provide a good

reason for not meeting the deadline. Your reason(s)

must be set forth clearly in your request.

If a civil action is commenced, the Commissioner must

be served by sending a copy of the summons and com-

plaint by registered or certified mail to the General

Counsel, Social Security Administration, Room 611,

Altmeyer Building, 6401 Security Boulevard, Balti-

more, MD 21235. (See rules 4(c) and (i) of the Federal

Rules of Civil Procedure). In addition, you must serve

the United States Attorney for the district in which you

file your complaint and the Attorney General of the

United States, as provided in the Federal Rules of Civil

Procedure.

Sincerely yours,

original signed by

Stephen L. Nailor

Appeal Officer

ec: Abraham S. Alter, Esq.

38a

APPENDIX E

SOCIAL SECURITY ADMINISTRATION

Office of Hearings and Appeals

DECISION

IN THE CASE OF CLAIM FOR

Period of Disability,

Disability Insurance

Benefits, and Supple-

mental Security

Pauline Thomas Income

(Claimant)

[omitted]

(Wage Earner) (Social Security Number)

This case is before the Administrative Law Judge on a

request for hearing. After due notice, a hearing was

held in Newark, New Jersey, on September 9, 1997.

The claimant was present and testified. Also present

and not testifying was the claimant’s daughter, Kathy

Thomas. The Administrative Law Judge has carefully

considered the hearing testimony, arguments pre-

sented, and all the documentary evidence[,] including

evidence and arguments submitted subsequent to the

hearing on December 2, 1997. The evidence of record is

sufficient to support the conclusions of this decision.

39a

ISSUES

The general issues are whether the claimant is entitled

to a period of disability and disability insurance benefits

under sections 216(i) and 223, respectively of the Social

Security Act, as amended; and whether the claimant is

disabled under section 1614(a)(3)(A) of the Act. The

Social Security Act defines “disability” as the inability

to engage in any substantial gainful activity due to

physical or mental impairment(s) which can be ex-

pected to either result in death or last for a continuous

period of not less than 12 months.

The specific issues are whether the claimant was under

a “disability” and, if so, when such disability com-

menced and the duration thereof; and whether the

special earnings requirements of the Act are met for

the purpose of entitlement to a period of disability

insurance benefits.

EVALUATION OF THE EVIDENCE

Upon careful consideration of all the evidence, the

Administrative Law Judge concludes the claimant is

not disabled within the meaning of the Social Security

Act.

The claimant filed her applications for disability in-

surance benefits and supplemental security income on

June 11, 1996, alleging disability since August 25, 1995.

She reported she worked for about two weeks as a

checker of mail bags for the postal service. Because of

the brief duration of the job, this was considered an

unsuccessful work attempt (Exhibits 1D and 3E).

40a

The claimant testified she was laid off her job on

August 25, 1995 because an elevator operator was not

needed. Her attorney amended her onset date to July

8, 1996, which is the date she reportedly broke her right

ankle.

When she filed for benefits, the claimant alleged she

was unable to work because of cervical lumbar radi-

culopathy and heart disease (Exhibit IE, pg. I). At the

hearing she claimed she was hospitalized for a week in

July 1996 because of a broken ankle. She also reported

she was hospitalized a week in August 1997 for a

stroke.

In a report dated July 2, 1996, M. C. Cruz, M.D. re-

ported the claimant had been seen two times a year

between October 1992 and December 1995 for hyper-

tension and cardiac arrythmia. When she was first

seen, she reported she had a heart attack in 1998, but

was doing well without chest pain or shortness of

breath. Echocardiogram in October 1992 showed eccen-

tric left ventricular hypertrophy but was otherwise

normal. Most recent blood pressure reading was

150/100. Weight varied from 198 to 213 pounds. Dr.

Cruz advised the claimant was not disabled (Exhibit

3F).

Emergency room records from Jersey City Medical

Center show the claimant was seen in January 1996

for complaints of injury when a slow moving vehicle

brushed her elbow and caused her to fall. Physical

examination was essentially unremarkable. X-rays of

the right leg, entire right arm, and pelvis were normal.

The chest x-ray showed slight enlargement which could

be secondary to magnification but was otherwise

normal (Exhibit 3F).

41a

A chiropractor, John Cerf, D.C., reported in June 1996

the claimant had been seen three times a week since

April 2, 1996 for cervical strain/sprain. He referred to

x-rays which showed degenerative joint disease of the

cervical spine and an MRI which showed C4-5 disc

herniation but did not submit copies of these records.

Chiropractor Cerf advised treatment which consisted of

manipulation and electrical muscle stimulation had

resulted in 60 percent reduction of pain. Range of

motion chart showed there was some reduction of

ranges of motion of the cervical and lumbar spine

(Exhibit 2F).

The claimant was hospitalized at Jersey City Medical

Center on July 31, 1997 for complaints of right sided

weakness and shoulder pain. CT scan of the head was

normal. Doppler study of the carotids show bilateral

plaques in the bulbs of the common carotids arteries,

but no significant stenosis. Discharge diagnosis on

August 6, 1997 was transient ischemic attack (Exhibit

6F).

The discharge summary for the July 31 to August 6,

1997 hospitalization, submitted at the hearing, shows

the claimant was to followup in the cardiac clinic in two

weeks. This discharge notice listed prescribed medi-

cations and advised the claimant could resume normal

activities (Exhibit 5F).

The only other medical reports in file are To Whom It

May Concern notes from a neurologist, Magdy Alamir,

M.D. Dr. Alamir advised the claimant was unable to

work “at the present time” because of lumbar radi-

culopathy and cervical radiculopathy (Exhibit 4F).

Attempts to obtain detailed records from Dr. Alamir

were unsuccessful.

42a

The claimant testified she resides with her daughter

who does household chores. She claimed she cannot

work because she fatigues easily, low back pain limits

her ability to sit for only a few minutes, and since she

fractured her right ankle in July 1996, she must elevate

it frequently. She alleged that as a result of the

“stroke” she had in August 1997, she drops things from

her right hand. Her medications are Augmentin (an

antibiotic), Tenormin, Procardia, Metoprolol, and Vaso-

tec. She does not take any medication for pain. The

request for hearing indicated she was taking one

Ecotrin (a non-prescription pain reliever) once a day

(Exhibit 8, pg. 2).

The claimant has failed to established the presence of

an impairment which would preclude her from engaging

in past relevant work as an elevator operator. In fact,

based on the evidence in the record, there is con-

siderable question as to whether there is even a

“severe” impairment. The only cardiac abnormality is

left ventricular hpyertrophy and somewhat elevated

blood pressure. In his July 2, 1996 report, Dr. Cruz

advised the claimant was not disabled and could do

work-related physical activities. There was no evidence

of physical or mental impairment and/or limitations

(Exhibit 3F).

While it is reasonable to conclude that the alleged right

ankle fracture might restrict the claimant to sedentary

work activity, this determination cannot be made

without medical records to verify that a fracture

actually took place. The fact that the claimant does not

take any pain relievers except, perhaps, Ecotrin, tends

to contradict her allegation of limiting pain from either

43a

the ankle or the back. Further, the ankle fracture

should have healed in far less than 12 months.

The allegation of a “stroke” in August 1997 appears to

be an exaggeration. This is confirmed by the hospital

record which shows the claimant had a transient

ischemic attack. Upon discharge she was allowed to

resume normal activities. The medications listed at dis-

charge were routinely prescribed cardiac medications

and antacid and the aforementioned Ecotrin.

The Administrative Law Judge finds it reasonable to

conclude the claimant retains the functional capacity for

work through at least a light level of exertion. Thus,

she retains the functional capacity to return to past

work as an elevator operator.

In finding the claimant capable of engaging in her past

relevant work as an elevator operator, the Admini-

strative Law Judge has considered the argument of

claimant’s attorney that her past relevant work as an

elevator operator (which is a light job) no longer exists

in the national economy, and therefore the vocational

rules must be used. 20 CFR 404.1560(b) and 416.960(b)

states that an individual will not be found disabled if

she has the physical and mental capacity to meet the

demands of her past relevant work. A close reading of

this section of the regulations shows that no reference

is made to whether or not the past relevant work must

exist in significant numbers in the national economy.

Even though SSR 82-40 is not strictly applicable to this

case, the ruling emphasizes the proper test in the fourth

step of the sequential evaluation process is whether the

individual can do her previous work. If the claimant

can meet the sitting, standing, walking, lifting, mani-

pulative, intellectual, emotional and other physical and

44a

mental requirements of a past job, she is capable of

performing that job. It is only after the claimant has

proved that she cannot do her previous work that the

burden shifts to the Commissioner and the vocational

rules are applied.

FINDINGS

After careful consideration of the entire record, the Ad-

ministrative Law Judge makes the following findings:

1. The claimant met the disability insured

status requirements of the Act on July 8,

1996, the amended onset of disability, and

continues to meet them through the date of

this decision.

2. The claimant has not engaged in substantial

gainful activity since August 1995.

3. The medical evidence establishes that the

claimant has hypertension, cardiac arrythmia,

cervical and lumbar strain/sprain, and a tran-

sient ischemic attack, but that she does not

have an impairment or combination of impair-

ments listed in, or medically equal to one

listed in Appendix 1, Subpart P, Regulations

No. 4.

4. The claimant’s subjective complaints are

somewhat out of proportion to clinical find-

ings as well as the fact she does not take any

5 iption pain medicati

5. The claimant has the residual functional

capacity to perform work-related activities

except for perhaps medium and heavy lifting

45a

and extensive bending and stooping (20 CFR

404.1545 and 416.954).

6. The claimant’s past relevant work as an

elevator operator did not require the per-

formance of work-related activities

by the above limitation(s) (20 CFR 404.1565

and 416.965).

7. The claimant's impairments do not prevent

the claimant from performing her past rele-

vant work as an elevator operator.

8. The claimant was not under a “disability” as

defined in the Social Security Act, at any

time through the date of the decision (20

CFR 404.1520(e) and 416.920(e)).

DECISION

It is the decision of the Administrative Law Judge that,

based upon the applications filed on June 11, 1996, the

claimant is not entitled to a period of disability or

disability insurance benefits under section 216(i) and

223, respectively, of the Social Security Act, and is not

eligible for supplemental security income under sec-

tions 1602 and 1614(a)(3)(A) of the Act.

46a

APPENDIX F

SOCIAL SECURITY ADMINISTRATION

SUPPLEMENTAL SECURITY INCOME

NOTICE OF RECONSIDERATION—DISABILITY

Date: Oct. 21, 1996

Pauline Thomas Social Security Number: [omitted]

32 Gardener Ave Reconsideration Filed: 09/30/96

And Fl

Jersey City NJ 07304

Upon receipt of your request for reconsideration we

had your claim independently reviewed by a physician

and disability examiner in the State agency which

works with us in making disability determinations. The

evidence in your case has been thoroughly evaluated;

this includes the medical evidence and the additional

information received since the original decision. We find

that the previous determination denying your claim

was proper under the law. Below is an explanation of

the decision we made in your claim and how we arrived

at it.

We did not obtain any additional reports because the

reports used on the initial level contained enough infor-

mation to re-evaluate your claim.

47a

The following was considered in making our decision:

* Your condition is expected to improve with

prescribed treatment.

* You have experienced heart problems. How-

ever, following a recovery period, you should be

able to work.

While you still experience some pain in your

lower back, there is no severe muscle weakness

or loss of feeling in your limbs.

Based on the description of your job of elevator

operator which you performed for 6 years, we have

concluded that you have the ability to return to this

work.

If you believe that the reconsideration determination is

not correct, you may request a hearing before an

administrative law judge of the Office of Hearings and

Appeals. If you want a hearing, you must request it not

later than 60 days from the date you receive this notice.

You may make your request through any Social Secu-

rity office. Read the enclosed leaflet and “Your Right

To Appeal” notice for a full explanation.

NEW APPLICATION

You have the right to file a new application at any time,

but filing a new application is not the same as appealing

this decision. If you disagree with this decision and you

file a new application instead of appealing you might

lose some benefits, or not qualify for any benefits. So, if

you disagree with this decision you should file an appeal

within 60 days.

48a

Please get in touch with Social Security if you believe

this decision is wrong or you have any questions or

need more information. Most questions can be handled

by phoning or writing any Social Security office. If you

visit a Social Security office, please bring this notice

with you. If the decision in your case is based on

incorrect information, we will be happy to make what-

ever change is necessary. The office that serves your

area is located at:

861 Bergen Avenue

Jersey City NJ 07306

YOUR RIGHT TO APPEAL

If you still are not satisfied with the decision, you may

request a hearing of this decision by the Office of

Hearings and Appeals. YOU MUST REQUEST THE

HEARING IN WRITING WITHIN 60 DAYS FROM THE

DATE YOU RECEIVE THIS NOTICE. If you cannot

send us a written request for a hearing within 60 days,

be sure to contact us by phone. If you wait longer than

60 days, we will not conduct a hearing review of our

decision unless you have a good reason for the delay.

If you request a hearing, your case will be assigned to

an administrative law judge of the Office of Hearings

and Appeals. The administrative law judge will let you

know when and where your case will be heard.

The hearing proceedings are informal. The admini-

trative law judge will summarize the facts in your case,

explain the law, and state what must be decided. Then

you will have an opportunity to explain why you

disagree with the decision made in your case, to present

additional evidence and to have witnesses testify for

49a

you. You can also request the administrative law judge

to subpoena unwilling witnesses to appear for cross-

examination and to bring with them any information

about your case. You have the right to request the

administrative law judge to issue a decision based on

the written record without you personally appearing

before him/her. If you decide not to appear at the

hearing, you still have the right to submit additional

evidence. The administrative law judge will base the

decision on the evidence in your file plus any new evi-

dence submitted.

In having your case heard, you can represent yourself

or be represented by a lawyer, a friend, or any other

person. Contact your Social Security office for names of

organizations that can help you.

Abraham S Alter ESQ

2096 Saint Georges Ave

P.O. Box 1798

Rahway NJ 07065

Enclosure:

SSA Pub. No. 70-10281

SSA-L1130 (7/91) GLE

50a

APPENDIX G

SOCIAL SECURITY ADMINISTRATION

RETIREMENT, SURVIVORS, AND DISABILITY INSURANCE

SUPPLEMENTAL SECURITY INCOME

Notice of Disapproved Claims

Telephone: (201) 451-2246

Date: Feb. 1, 1996

Pauline Thomas Claim Number: [omitted]

32 Gardner Ave

Jersey City NJ 07304

We are writing about your claims for Social Security

and Supplemental Security Income (SSI) disability

benefits. Based on a review of your health problems

you do not qualify for benefits on either claim. This is

because you are not disabled or blind under our rules.

We have enclosed information about the disability and

blindness rules.

An explanation is provided below of why we decided

you are not disabled.

The following reports, covering the periods listed were

considered in deciding your claim:

DR. JOHN L CROF M.D. 04/02/96 06/13/96

DR MERLE CRUZ MD 10/15/92 12/29/95

JERSEY CITY MEDICAL CTR 01/15/96 01/17/96

5la

We did not obtain any other reports because the ones

shown above had enough information to evaluate your

condition.

We have determined that your condition does not keep

you from working. We considered the medical and

other information, your age, education, training, and

work experience in determining how your condition

affects your ability to work.

You said you were disabled because of heart disease &

cervical lumbar radiculopathy.

The following factors were considered in making our

decision:

* You do suffer from chest pain as a result of a

heart condition. However, the exercise test

indicated your heart could tolerate a level of

exertion which should allow you to work.

* While you still experience some pain in your

neck, there is no severe muscle weakness or

loss of feeling in your limbs.

* The evidence shows no other condition which

significantly limits your ability to work.

Based on the description of your job of elevator opera-

tor which you performed for six years, we have con-

cluded that you have the ability to return to this work.

52a

IF YOUR CONDITION GETS WORSE AND KEEPS

YOU FROM WORKING, WRITE, CALL OR VISIT ANY

SOCIAL SECURITY OFFICE ABOUT FILING AN-

OTHER APPLICATION.

ABOUT THE DECISIONS

Doctors and other trained staff looked at your case and

made these decisions. They work for your State but

used our rules.

Please remember that there are many types of dis-

ability programs, both government and private, which

use different rules. A person may be receiving benefits

under another program and still not be entitled under

our rules. This may be true in your case.

IF YOU DISAGREE WITH THE DECISIONS

If you disagree with these decisions, you have the right

to appeal. We will review your case and consider any

new facts you have. A person who did not make the

first decision will decide your case.

* You have 60 days to ask for an appeal.

* The 60 days start the day after you get this

letter. We assume you got this letter 5 days

after the date on it unless you show us that

you did not get it within the 5-day period.

* You must have a good reason for waiting

more than 60 days to ask for an appeal.

* You have to ask for an appeal in writing. We

will ask you to sign a form SSA-561-U2,

53a

called “Request for Reconsideration.” Con-

tact one of our offices if you want help.

Please read the enclosed pamphlets, “Your Right to

Question the Decision Made on Your Social Security

Claim” and “Your Right to Question the Decision Made

on Your SSI Claim.” They contain more information

about appeals.

NEW APPLICATION

You have the right to file a new application at any time,

but filing a new application is not the same as appealing

a decision. If you disagree with either of these de-

cisions and you file a new application for Social Security

or SSI instead of appealing, you might lose some

benefits, or not qualify for any benefits. Also, we could

deny the new Social Security application using this

decision, if the facts and issues are the same. So, if you

disagree with either decision, you should ask for an

appeal within 60 days.

IF YOU WANT HELP WITH YOUR APPEAL

You can have a friend, lawyer, or someone else help

you. There are groups that can help you find a lawyer

or give you free legal services if you qualify. There are

also lawyers who do not charge unless you win your

appeal. Your local Social Security office has a list of

groups that can help you with your appeal.

If you get someone to help you, you should let us know.

If you hire someone, we must approve the fee before he

or she can collect it. And if you hire a lawyer, we will

withhold up to 25 percent of any past due Social

54a

Security benefits to pay toward the fee. We do not

withhold money from SSI benefits to pay your lawyer.

IF YOU HAVE ANY QUESTIONS

If you have any questions, you may call us toll-free at

1-800-772-1213, or call your local Social Security office

at the number shown on page 1. We can answer most

questions over the phone. You can also write or visit

any Social Security office. The office that serves your

area is located at:

861 Bergen Avenue

Jersey City NJ 07306

If you do call or visit an office, please have this letter

with you. It will help us answer your questions. Also,

if you plan to visit an office, you may call ahead to make

an appointment. This will help us serve you more

quickly.

Regional Commissioner

Enclosure:

SSA Publication No. 05-11008 and 05-10058

Disability Rules and Other Benefits Fact Sheets

SSA-L442-A (5/94) JLA

55a

APPENDIX H

STATUTORY AND REGULATORY PROVISIONS

1. Section 423(d) of Title 42 of the United States Code

provides, in relevant part:

(d) “Disability” defined

(1) The term “disability” means—

(A) inability to engage in any substantial gainful

activity by reason of any medically determinable physi-

cal or mental impairment which can be expected to

result in deathor which has lasted or can be expected to

last for a continuous period of not less than 12 months;

or

(B) in the case of an individual who has attained

the age of 55 and is blind (within the meaning of

“blindness” as defined in section 416(i)(1) of this title),

inability by reason of such blindness to engage in sub-

stantial gainful activity requiring skills or abilities

comparable to those of any gainful activity in which he

has previously engaged with some regularity and over

a substantial period of time.

(2) For purposes of paragraph (1)(A)—

(A) An individual shall be determined to be under

a disability 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, regardless of whether such work

exists in the immediate area in which he lives, or

whether a specific job vacancy exists for him, or

whether he would be hired if he applied for work. For

56a

purposes of the preceding sentence (with respect to any

individual), “work which exists in the national econ-

omy” means work which exists in significant numbers

either in the region where such individual lives or in

several regions of the country.

2. Section 1382c of Title 42 of the United States Code

provides, in relevant part:

§ 1382c. Definitions

(3)(A) Except as provided in subparagraph (C), an

individual shall be considered to be disabled for pur-

poses of this subchapter if he is unable to engage in any

substantial gainful activity by reason of any medically

determinable physical or mental impairment which can

be expected to result in death or which has lasted or

can be expected to last for a continuous period of not

less than twelve months.

(B) For purposes of subparagraph (A), an individual

shall be determined to be under a disability only if his

physical or mental impairment or impairments are of

such severity that he is not only unable to do his pre-

vious work but cannot, considering his age, education,

and work experience, engage in any other kind of sub-

stantial gainful work which exists in the national econ-

omy, regardless of whether such work exists in the im-

mediate area in which he lives, or whether a specific job

vacancy exists for him, or whether he would be hired if

he applied for work. For purposes of the preceding sen-

tence (with respect to any individual), “work which

exists in the national economy” means work which

exists in significant numbers either in the region where

such individual lives or in several regions of the

country.

57a

3. 20 C. F. R. pt. 404 (2000) provides in relevant part:

§ 404.1505 Basic definition of disability.

(a) The law defines disability as the inability to do

any substantial gainful activity by reason of any medi-

cally determinable physical or mental impairment

which can be expected to result in death or which has

lasted or can be expected to last for a continuous period

of not less than 12 months. To meet this definition, you

must have a severe impairment, which makes you un-

able to do your previous work or any other substantial

gainful activity which exists in the national economy.

To determine whether you are able to do any other

work, we consider your residual functional capacity and

your age, education, and work experience. We will use

this definition of disability if you are applying for a

period of disability, or disability insurance benefits as a

disabled worker, or child’s insurance benefits based on

disability before age 22 or, with respect to disability

benefits payable for months after December 1990, as a

widow, widower, or surviving divorced spouse.

* * * * *

§ 404.1520 Evaluation of disability in general.

(a) Steps i evaluating disability. We consider all

evidence in your case record when we make a deter-

mination or decision whether you are disabled. When

you file a claim for a period of disability and/or dis-

ability insurance benefits or for child’s benefits based

on disability, we use the following evaluation process.

If you are doing substantial gainful activity, we will

determine that you are not disabled. If you are not

doing substantial gainful activity, we will first consider

58a

the effect of your physical or mental impairment; if you

have more than one impairment, we will also consider

the combined effect of your impairments. Your impair-

ment(s) must be severe and meet the duration require-

ment before we can find you to be disabled. We follow a

set order to determine whether you are disabled. We

review any current work act ty, the severity of your

impairment(s), your residual functional capacity, your

past work, and your age, education, and work ex-

perience. If we can find that you are disabled or not

disabled at any point in the review, we do not review

your claim further. Once you have been found entitled

to disability benefits, we follow a somewhat different

order of evaluation to determine whether your entitle-

ment continues, as explained in § 404.1594(f).

(b) If you are working. If you are working and the

work you are doing is substantial gainful activity, we

will find that you are not disabled regardless of your

medical condition or your age, education, and work ex-

perience.

(c) You must have a severe impairment. If you do

not have any impairment or combination of impair-

ments which significantly limits your physical or mental

ability to do basic work activities, we will find that you

do not have a severe impairment and are, therefore, not

disabled. We will not consider your age, education, and

work experience. However, it is possible for you to

have a period of disability for a time in the past even

though you do not now have a severe impairment.

(d) When your impairment(s) meets or equals a

listed impairment in appendiz 1. If you have an im-

pairment(s) which meets the duration requirement and

is listed in appendix 1 or is equal to a listed impair-

59a

ment(s), we will find you disabled without considering

your age, education, and work experience.

(e) Your impairment(s) must prevent you from

doing past relevant work. If we cannot make a decision

based on your current work activity or on medical facts

alone, and you have a severe impairment(s), we then

review your residual functional capacity and the physi-

cal and mental demands of the work you have done in

the past. If you can still do this kind of work, we will

find that you are not disabled.

(f) Your impairment(s) must prevent you from

doing any other work. (1) If you cannot do any work

you have done in the past because you have a severe

impairment(s), we will consider your residual functional

capacity and your age, education, and past work ex-

perience to see if you can do other work. If you cannot,

we will find you disabled.

(2) If you have only a marginal education, and long

work experience (i.e., 35 years or more) where you only

did arduous unskilled physical labor, and you can no

longer do this kind of work, we use a different rule (see

§ 404.1562).

§ 404.1521 What we mean by an impairment(s) that is

not severe.

(a) Non-severe impairment(s). An impairment or

combination of impairments is not severe if it does not

significantly limit your physical or mental ability to do

(b) Basic work activities. When we talk about basic

work activities, we mean the abilities and aptitudes

necessary to do most jobs. Examples of these include—

60a

(1) Physical functions such as walking, standing,

sitting, lifting, pushing, pulling, reaching, carrying, or

handling;

(2) Capacities for seeing, hearing, and speaking;

(3) Understanding, carrying out, and remembering

simple instructions;

(4) Use of judgment;

(5) Responding appropriately to supervision, co-

workers and usual work situations; and

(6) Dealing with changes in a routine work setting.

§ 404.1522 When you have two or more unrelated

impairments— initial claims.

(a) Unrelated severe impairments. We cannot com-

bine two or more unrelated severe impairments to meet

the 12-month duration test. If you have a severe im-

pairment(s) and then develop another unrelated severe

impairment(s) but neither one is expected to last for 12

months, we cannot find you disabled, even though the

two impairments in combination last for 12 months.

(b) Concurrent impairments. If you have two or

more concurrent impairments which, when considered

in combination, are severe, we must also determine

whether the combined effect of your impairments can

be expected to continue to be severe for 12 months. If

one or more of your impairments improves or is ex-

pected to improve within 12 months, so that the com-

bined effect of your remaining impairments is no longer

severe, we will find that you do not meet the 12-month

duration test.

6la

§ 404.1523 Multiple impairments.

In determining whether your physical or mental

impairment or impairments are of a sufficient medical

severity that such impairment or impairments could be

the basis of eligibility under the law, we will consider

the combined effect of all of your impairments without

regard to whether any such impairment, if considered

separately, would be of sufficient severity. If we do

find a medically severe combination of impairments, the

combined impact of the impairments will be considered

throughout the disability determination process. If we

do not find that you have a medically severe combina-

tion of impairments, we will determine that you are not

disabled (see § 404.1520).

* * * * *

§ 404.1525 Listing of Impairments in appendix 1.

(a) Purpose of the Listing of Impairments. The

Listing of Impairments describes, for each of the major

body systems, impairments which are considered se-

vere enough to prevent a person from doing any gainful

activity. Most of the listed impairments are permanent

or expected to result in death, or a specific statement of

duration is made. For all others, the evidence must

show that the impairment has lasted or is expected to

last for a continuous period of at least 12 months.

(b) Adult and childhood diseases. The Listing of

Impairments consists of two parts:

(1) Part A contains medical criteria that apply to

adult persons age 18 and over. The medical criteria in

part A may also be applied in evaluating impairments in

62a

persons under age 18 if the disease processes have a

similar effect on adults and younger persons.

(2) Part B contains additional medical criteria that

apply only to the evaluation of impairments of persons

under age 18. Certain criteria in part A do not give

appropriate consideration to the particular effects of

the disease processes in childhood; i.e., when the dis-

ease process is generally found only in children or when

the disease process differs in its effect on children than

on adults. Additional criteria are included in part B,

and the impairment categories are, to the extent possi-

ble, numbered to maintain a relationship with their

counterparts in part A. In evaluating disability for a

person under age 18, part B will be used first. If the

medical criteria in part B do not apply, then the medical

criteria in part A will be used.

(c) How to use the Listing of Impairments. Each

section of the Listing of Impairments has a general

introduction containing definitions of key concepts used

in that section. Certain specific medical findings, some

of which are required in establishing a diagnosis or in

confirming the existence of an impairment for the

purpose of this Listing, are also given in the narrative

introduction. If the medical findings needed to support

a diagnosis are not given in the introduction or else-

where in the listing, the diagnosis must still be

established on the basis of medically acceptable clinical

and laboratory diagnostic techniques. Following the

introduction in each section, the required level of sever-

ity of impairment is shown under “Category of Impair-

ments” by one or more sets of medical findings. The

medical findings consist of symptoms, signs, and labora-

tory findings.

63a

(d) Diagnosis of impairments. We will not consider

your impairment to be one listed in appendix 1 solely

because it has the diagnosis of a listed impairment. It

must also have the findings shown in the Listing of that

impairment.

(e) Addiction to alcohol or drugs. If you have a con-

dition diagnosed as addiction to alcohol or drugs, this

will not, by itself, be a basis for determining whether

you are, or are not, disabled. As with any other medical

condition, we will decide whether you are disabled

based on symptoms, signs, and laboratory findings.

(f) Symptoms as criteria of listed impairment(s).

Some listed impairment(s) include symptoms usually

associated with those impairment(s) as criteria. Gener-

ally, when a symptom is one of the criteria in a listed

impairment, it is only necessary that the symptom be

present in combination with the other criteria. It is not

necessary, unless the listing specifically states other-

wise, to provide information about the intensity, per-

sistence or limiting effects of the symptom as long as all

other findings required by the specific listing are

present.

§ 404.1526 Medical equivalence.

(a) How medical equivalence is determined. We will

decide that your impairment(s) is medically equivalent

to a listed impairment in appendix 1 if the medical find-

ings 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

64a

consider the listed impairment most like your impair-

ment 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 impairments to determine whether the com-

bination of your impairments is medically equal to any

listed impairment.

(b) Medical equivalence must be based on medical

findings. We will always base our decision about

whether your impairment(s) is medically equal to a

listed impairment on medical evidence only. Any

medical findings in the evidence must be supported by

medically acceptable clinical and laboratory diagnostic

techniques. We will also consider the medical opinion

given by one or more medical or psychological con-

sultants designated by the Commissioner in deciding

medical equivalence. (See § 404.1616.)

(c) Who is a designated medical or psychological

consultant. A medical or psychological consultant des-

ignated by the Commissioner includes any medical or

psychological consultant employed or engaged to make

medical judgments by the Social Security Administra-

tion, the Railroad Retirement Board, or a State agency

authorized to make disability determinations. A medi-

cal consultant must be an acceptable medical source

identified in § 404.1513(a)(1) or (a)(3) through (a)(5). A

psychological consultant used in cases where there is

evidence of a mental impairment must be a qualified

psychologist. (See § 404.1616 for limitations on what

medical consultants who are not physicians can evalu-

ate and the qualifications we consider necessary for a

psychologist to be a consultant.)

§ 404.1545 Your residual functional capacity.

(a) General. Your impairment(s), and any related

symptoms, such as pain, may cause physical and mental

limitations that affect what you can do in a work

setting. Your residual functional capacity is what you

can still do despite your limitations. If you have more

than one impairment, we will consider all of your im-

pairment(s) of which we are aware. We will consider

your ability to meet certain demands of jobs, such as

physical demands, mental demands, sensory require-

ments, and other functions, as described in paragraphs

(b), (e), and (d) of this section. Residual functional ca-

pacity is an assessment based upon all of the relevant

evidence. It may include descriptions (even your own)

of limitations that go beyond the symptoms, such as

pain, that are important in the diagnosis and tre: ment

of your medical condition. Observations by your treat-

ing or examining physicians or psychologists, your

family, neighbors, friends, or other persons, of your

limitations, in addition to those observations usually

made during formal medical examinations, may also be

used. These descriptions and observations, when used,

must be considered along with your medical records to

enable us to decide to what extent your impairment(s)

keeps you from performing particular work activities.

This assessment of your remaining capacity for work is

not a decision on whether you are disabled, but is used

as the basis for determining the particular types of

work you may be able to do despite your impairment(s).

Then, using the guidelines in §§ 404.1560 through

404.1569a, your vocational background is considered

along with your residual functional capacity in arriving

66a

at a disability determination or decision. In deciding

whether your disability continues or ends, the residual

functional capacity assessment may also be used to

determine whether any medical improvement you have

experienced is related to your ability to work as dis-

cussed in § 404.1594.

(b) Physical abilities. When we assess your physi-

cal abilities, we first assess the nature and extent of

your physical limitations and then determine your re-

sidual functional capacity for work activity on a regular

and continuing basis. A limited ability to perform

certain physical demands of work activity, such as

sitting, standing, walking, lifting, carrying, pushing,

pulling, or other physical functions (including manipula-

tive or postural functions, such as reaching, handling,

stooping or crouching), may reduce your ability to do

past work and other work.

(c) Mental abilities. When we assess your mental

abilities, we first assess the nature and extent of your

mental limitations and restrictions and then determine

your residual functional capacity for work activity on a

regular and continuing basis. A limited ability to carry

out certain mental activities, such as limitations in

understanding, remembering, and carrying out instruc-

tions, and in responding appropriately to supervision,

co-workers, and work pressures in a work setting, may

reduce your ability to do past work and other work.

(d) Other abilities affected by impairment(s). Some

medically determinable impairment(s), such as skin

impairment(s), epilepsy, impairment(s) of vision, hear-

ing or other senses, and impairment(s) which impose

environmental restrictions, may cause limitations and

restrictions which affect other work-related abilities. If

67a

you have this type of impairment(s), we consider any

resulting limitations and restrictions which may reduce

your ability to do past work and other work in deciding

your residual functional capacity.

(e) Total limiting effects. When you have a severe

impairment(s), but your symptoms, signs, and labora-

tory findings do not meet or equal those of a listed

impairment in appendix 1 of this subpart, we will

consider the limiting effects of all your impairment(s),

even those that are not severe, in determining your

residual functional capacity. Pain or other symptoms

may cause a limitation of function beyond that which

can be determined on the basis of the anatomical,

physiological or psychological abnormalities considered

alone; e.g., someone with a low back disorder may be

fully capable of the physical demands consistent with

those of sustained medium work activity, but another

person with the same disorder, because of pain, may not

be capable of more than the physical demands con-

sistent with those of light work activity on a sustained

basis. In assessing the total limiting effects of your

impairment(s) and any related symptoms, we will con-

sider all of the medical and nonmedical evidence,

including the information described in § 404.1529(c).

§ 404.1546 Responsibility for assessing and determ-

ining residual functional capacity.

The State agency staff medical or psychological con-

sultants or other medical or psychological consultants

designated by the Commissioner are responsible for

ensuring that the State agency makes a decision about

your residual functional capacity. In cases where the

State agency makes the disability determination, a

State agency staff medical or psychological consultant

68a

must assess residual functional capacity where it is re-

quired. This assessment is based on all of the evidence

we have, including any statements regarding what you

can still do that have been provided by treating or

examining physicians, consultative physicians, or any

other medical or psychological consultant designated by

the Commissioner. See § 404.1545. For cases in the dis-

ability hearing process, the responsibility for deciding

your residual functional capacity rests with either the

disability hearing officer or, if the disability hearing

officer’s reconsidered determination is changed under

§ 404.918, with the Director of the Office of Disability

Hearings or his or her delegate. For cases at the

Administrative Law Judge hearing or Appeals Council

level, the responsibility for deciding your residual

functional capacity rests with the Administrative Law

Judge or Appeals Council.

* * * * *

§ 404.1560 When your vocational background will be

considered.

(a) General. If you are applying for a period of

disability, or disability insurance benefits as a disabled

worker, or child’s insurance benefits based on disability

which began before age 22, or widow’s or widower's

benefits based on disability for months after December

1990, and we cannot decide whether you are disabled on

medical evidence alone, we will consider your residual

functional capacity together with your vocational back-

ground.

(b) Past relevant work. We will first compare your

residual functional capacity with the physical and

mental demands of the kind of work you have done in

6a

the past. If you still have the residual functional capa-

city to do your past relevant work, we will find that you

can still do your past work, and we will determine that

you are not disabled, without considering your voca-

tional factors of age, education, and work experience.

(c) Other work. If we find that you can no longer do

the kind of work you have done in the past, we will then

consider your residual functional capacity together with

your vocational factors of age, education, and work ex-

perience to determine whether you can do other work.

By other work we mean jobs that exist in significant

numbers in the national economy.

§ 404.1561 Your ability to do work depends upon your

residual functional capacity.

If you can do your previous work (your usual work or

other applicable past work), we will determine that you

are not disabled. However, if your residual functional

capacity is not enough to enable you to do any of your

previous work, we must still decide if you can do any

other work. To do this, we consider your residual func-

tional capacity, and your age, education, and work ex-

perience. Any work (jobs) that you can do must exist in

significant numbers in the national economy (either in

the region where you live or in several regions of the

country). Sections 404.1563 through 404.1565 explain

how we evaluate your age, education, and work

experience when we are deciding whether or not you

are able to do other work.

* * * * *

70a

§ 404.1563 Your age as a vocational factor.

(a) General. “Age” means your chronological age.

When we decide whether you are disabled under

§ 404.1520(f)(1), we will consider your chronological age

in combination with your residual functional capacity,

education, and work experience; we will not consider

your ability to adjust to other work on the basis of your

age alone. In determining the extent to which age

affects a person’s ability to adjust to other work, we

consider advancing age to be an increasingly limiting

factor in the person’s ability to make such an adjust-

ment, as we explain in paragraphs (c) through (e) of this

section. If you are unemployed but you still have the

ability to adjust to other work, we will find that you are

not disabled. In paragraphs (b) through (e) of this

section and in appendix 2 to this subpart, we explain in

more detail how we consider your age as a vocational

factor.

(b) How we apply the age categories. When we

make a finding about your ability to do other work

under § 404.1520(f)(1), we will use the age categories in

paragraphs (c) through (e) of this section. We will use

each of the age categories that applies to you during the

period for which we must determine if you are disabled.

We will not apply the age categories mechanically in a

borderline situation. If you are within a few days to a

few months of reaching an older age category, and

using the older age category would result in a deter-

mination or decision that you are disabled, we will

consider whether to use the older age category after

evaluating the overall impact of all the factors of your

case.

71a

(e) Younger person. If you are a younger person

(under age 50), we generally do not consider that your

age will seriously affect your ability to adjust to other

work. However, in some circumstances, we consider

that persons age 45-49 are more limited in their ability

to adjust to other work than persons who have not

attained age 45. See Rule 201.17 in appendix 2.

(d) Person closely approaching advanced age. If

you are closely approaching advanced age (age 50-54),

we will consider that your age along with a severe

impairment(s) and limited work experience may seri-

ously affect your ability to adjust to other work.

(e) Person of advanced age. We consider that at

advanced age (age 55 or older) age significantly affects

a person’s ability to adjust to other work. We have

special rules for persons of advanced age and for per-

sons in this category who are closely approaching

retirement age (age 60-64). See § 404.1568(d)(4).

(f) Information about your age. We will usually not

ask you to prove your age. However, if we need to

know your exact age to determine whether you get

disability benefits or if the amount of your benefit will

be affected, we will ask you for evidence of your age.

§ 404.1564 Your education as a vocational factor.

(a) General. Education is primarily used to mean

formal schooling or other training which contributes to

your ability to meet vocational requirements, for

example, reasoning ability, communication skills, and

arithmetical ability. However, if you do not have

formal schooling, this does not necessarily mean that

you are uneducated or lack these abilities. Past work

experience and the kinds of responsibilities you had

72a

when you were working may show that you have in-

tellectual abilities, although you may have little formal

education. Your daily activities, hobbies, or the results

of testing may also show that you have significant

intellectual ability that can be used to work.

(b) How we evaluate your education. The impor-

tance of your educational background may depend upon

how much time has passed between the completion of

your formal education and the beginning of your physi-

cal or mental impairment(s) and by what you have done

with your education in a work or other setting. Formal

education that you completed many years before your

impairment began, or unused skills and knowledge that

were a part of your formal education, may no longer be

useful or meaningful in terms of your ability to work.

Therefore, the numerical grade level that you com-

pleted in school may not represent your actual edu-

cational abilities. These may be higher or lower.

However, if there is no other evidence to contradict it,

we will use your numerical grade level to determine

your educational abilities. The term education also

includes how well you are able to communicate in

English since this ability is often acquired or improved

by education. In evaluating your educational level, we

use the following categories:

(1) Illiteracy. Illiteracy means the inability to read

or write. We consider someone illiterate if the person

cannot read or write a simple message such as instruc-

tions or inventory lists even though the person can sign

his or her name. Generally, an illiterate person has had

little or no formal schooling.

(2) Marginal education. Marginal education means

ability in reasoning, arithmetic, and language skills

73a

which are needed to do simple, unskilled types of jobs.

We generally consider that formal schooling at a 6th

grade level or less is a marginal education.

(3) Limited education. Limited education means

ability in reasoning, arithmetic, and language skills, but

not enough to allow a person with these educational

qualifications to do most of the more complex job duties

needed in semi-skilled or skilled jobs. We generally

consider that a 7th grade through the 11th grade level

of formal education is a limited education.

(4) High school education and above. High school

education and above means abilities in reasoning, arith-

metic, and language skills acquired through formal

schooling at a 12th grade level or above. We generally

consider that someone with these educational abilities

can do semi-skilled through skilled work.

(5) Inability to communicate in English. Since the

ability to speak, read and understand English is gen-

erally learned or increased at school, we may consider

this an educational factor. Because English is the

dominant language of the country, it may be difficult for

someone who doesn’t speak and understand English to

do a job, regardless of the amount of education the

person may have in another language. Therefore, we

consider a person’s ability to communicate in English

when we evaluate what work, if any, he or she can do.

It generally doesn’t matter what other language a

person may be fluent in.

(6) Information about your education. We will ask

you how long you attended school and whether you are

able to speak, understand, read and write in English

and do at least simple calculations in arithmetic. We

74a

will also consider other information about how much

formal or informal education you may have had through

your previous work, community projeets, hobbies, and

any other activities which Light help you to work.

§ 404.1565 Your work experience as a vocational

factor.

(a) General. Work experience means skills and

abilities you have acquired through work you have done

which show the type of work you may be expected to

do. Work you have already been able to do shows the

kind of work that you may be expected to do. We

consider that your work experience applies when it was

done within the last 15 years, lasted long enough for

you to learn to do it, and was substantial gainful

activity. We do not usually consider that work you did

15 years or more before the time we are deciding

whether you are disabled (or when the disability

insured status requirement was last met, if earlier)

applies. A gradual change occurs in most jobs so that

after 15 years it is no longer realistic to expect that

skills and abilities acquired in a job done then continue

to apply. The 15-year guide is intended to insure that

remote work experience is not currently applied. If you

have no work experience or worked only “off-and-on” or

for brief periods of time during the 15-year period, we

generally consider that these do not apply. If you have

acquired skills through your past work, we consider you

to have these work skills unless you cannot use them in

other skilled or semi-skilled work that you can now do.

If you cannot use your skills in other skilled or semi-

skilled work, we will consider your work background

the same as unskilled. However, even if you have no

work experience, we may consider that you are able to

75a

do unskilled work because it requires little or no judg-

ment and can be learned in a short period of time.

(b) Information about your work. Under certain

circumstances, we will ask you about the work you have

done in the past. If you cannot give us all of the

information we need, we will try, with your permission,

to get it from your employer or other person who

knows about your work, such as a member of your

family or a co-worker. When we need to consider your

work experience to decide whether you are able to do

work that is different from what you have done in the

past, we will ask you to tell us about all of the jobs you

have had in the last 15 years. You must tell us the

dates you worked, all of the duties you did, and any

tools, machinery, and equipment you used. We will

need to know about the amount of walking, standing,

sitting, lifting and carrying you did during the work

day, as well as any other physical or mental duties of

your job. If all of your work in the past 15 years has

been arduous and unskilled, and you have very little

education, we will ask you to tell us about all of your

work from the time you first began working. This

information could help you to get disability benefits.

§ 404.1566 Work which exists in the national econ-

omy.

(a) General. We consider that work exists in the

national economy when it exists in significant numbers

either in the region where you live or in several other

regions of the country. It does not matter whether—

(1) Work exists in the immediate area in which you

live;

(2) A specific job vacancy exists for you; or

76a

(3) You would be hired if you applied for work.

(b) How we determine the existence of work. Work

exists in the national economy when there is a signifi-

cant number of jobs (in one or more occupations) having

requirements which you are able to meet with your

physical or mental abilities and vocational qualifica-

tions. Isolated jobs that exist only in very limited

numbers in relatively few locations outside of the

region where you live are not considered “work which

exists in the national economy”. We will not deny you

disability benefits on the basis of the existence of these

kinds of jobs. If work that you can do does not exist in

the national economy, we will determine that you are

disabled. However, if work that you can do does exist

in the national economy, we will determine that you are

not disabled.

(e) Inability to obtain work. We will determine t.

you are not disabled if your residual functional capacity

and vocational abilities make it possible for you to do

work which exists in the national economy, but you

remain unemployed because of—

(1) Your inability to get work;

(2) Lack of work in your local area;

(3) The hiring practices of employers;

(4) Technological changes in the industry in which

you have worked;

(5) Cyclical economic conditions;

(6) No job openings for you;

(7) You would not actually be hired to do work you

could otherwise do; or

77a

(8) You do not wish to do a particular type of work.

(d) Administrative notice of job data. When we

determine that unskilled, sedentary, light, and medium

jobs exist in the national economy (in significant num-

bers either in the region where you live or in several

regions of the country), we will take administrative

notice of reliable job information available from various

governmental and other publications. For example, we

will take notice of—

(1) Dictionary of Occupational Titles, published by

the Department of Labor;

(2) County Business Patterns, published by the

Bureau of the Census;

(3) Census Reports, also published by the Bureau of

the Census;

(4) Occupational Analyses, prepared for the Social

Security Administration by various State employment

agencies; and

(5) Occupational Outlook Handbook, published by

the Bureau of Labor Statistics.

(e) Use of vocational experts and other specialists.

If the issue in determining whether you are disabled is

whether your work skills can be used in other work and

the specific occupations in which they can be used, or

there is a similarly complex issue, we may use the

services of a vocational expert or other specialist. We

will decide whether to use a vocational expert or other

specialist.

78a

§ 404.1567 Physical exertion requirements.

To determine the physical exertion requirements of

work in the national economy, we classify jobs as seden-

tary, light, medium, heavy, and very heavy. These

terms have the same meaning as they have in the Dic-

tionary of Occupational Titles, published by the De-

partment of Labor. In making disability determina-

tions under this subpart, we use the following defini-

tions:

(a) Sedentary work. Sedentary work involves lift-

ing 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 necess . / in carrying out job duties.

Jobs are sedentary if walking and standing are required

occasionally and other sedentary criteria are met.

(b) Light work. Light work 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. If someone can do

light work, we determine that he or she can also do

sedentary work, unless there are additional limiting

factors such as loss of fine dexterity or inability to sit

for long periods of time.

79a

(e) Medium work. Medium work involves lifting no

more than 50 pounds at a time with frequent lifting or

carrying of objects weighing up to 25 pounds. If

someone can do medium work, we determine that he or

she can also do sedentary and light work.

(d) Heavy work. Heavy work involves lifting no

more than 100 pounds at a time with frequent lifting or

carrying of objects weighing up to 50 pounds. If some-

one can do heavy work, we determine that he or she can

also do medium, light, and sedentary work.

(e) Very heavy work. Very heavy work involves

lifting objects weighing more than 100 pounds at a time

with frequent lifting or carrying of objects weighing 50

pounds or more. If someone can do very heavy work,

we determine that he or she can also do heavy, medium,

light and sedentary work.

§ 404.1568 Skill requirements.

In order to evaluate your skills and to help determine

the existence in the national economy of work you are

able to do, occupations are classified as unskilled, semi-

skilled, and skilled. In classifying these occupations, we

use materials published by the Department of Labor.

When we make disability determinations under this

subpart, we use the following definitions:

(a) Unskilled work. Unskilled work is work which

needs little or no judgment to do simple duties that can

be learned on the job in a short period of time. The job

may or may not require considerable strength. For

example, we consider jobs unskilled if the primary work

duties are handling, feeding and offbearing (that is,

placing or removing materials from machines which are

automatic or operated by others), or machine tending,

80a

and a person can usually learn to do the job in 30 days,

and little specific vocational preparation and judgment

are needed. A person does not gain work skills by

doing unskilled jobs.

(b) Semi-skilled work. Semi-skilled work is work

which needs some skills but does not require doing the

more complex work duties. Semi-skilled jobs may re-

quire alertness and close attention to watching machine

processes; or inspecting, testing or otherwise looking

for irregularities; or tending or guarding equipment,

property, materials, or persons against loss, damage or

injury; or other types of activities which are similarly

less complex than skilled work, but more complex than

_ unskilled work. A job may be classified as semi-skilled

where coordination and dexterity are necessary, as

when hands or feet must be moved quickly to do repeti-

tive tasks.

(c) Skilled work. Skilled work requires qualifica-

tions in which a person uses judgment to determine the

machine and manual operations to be performed in

order to obtain the proper form, quality, or quantity of

material to be produced. Skilled work may require

laying out work, estimating quality, determining the

suitability and needed quantities of materials, making

precise measurements, reading blueprints or other

specifications, or making necessary computations or

mechanical adjustments to control or regulate the work.

Other skilled jobs may require dealing with people,

facts, or figures or abstract ideas at a high level of com-

plexity.

(d) Skills that can be used in other work (trans-

ferability)—(1) What we mean by transferable skills.

We consider you to have skills that can be used in other

8la

jobs, when the skilled or semi-skilled work activities

you did in past work can be used to meet the re-

quirements of skilled or semi-skilled work activities of

other jobs or kinds of work. This depends largely on

the similarity of occupationally significant work activi-

ties among different jobs.

(2) How we determine skills that can be transferred

to other jobs. Transferability is most probable and

meaningful among jobs in which—

(i) The same or a lesser degree of skill is required;

(ii) The same or similar tools and machines are used;

and

(iii) The same or similar raw materials, products,

processes, or services are involved.

(3) Degrees of transferability. There are degrees of

transferability of skills ranging from very close similari-

ties to remote and incidental similarities among jobs. A

complete similarity of all three factors is not necessary

for transferability. However, when skills are so

specialized or have been acquired in such an isolated vo-

cationa! setting (like many jobs in mining, agriculture,

or fishing) that they are not readily usable in other

industries, jobs, and work settings, we consider that

they are not transferable.

(4) Transferability of skills for individuals of ad-

vanced age. If you are of advanced age (age 55 or

older), and you have a severe impairment(s) that limits

you to sedentary or light work, we will find that you

cannot make an adjustment to other work unless you

have skills that you can transfer to other skilled or

semiskilled work (or you have recently completed

education which provides for direct entry into skilled

82a

work) that you can do despite your impairment(s). We

will decide if you have transferable skills as follows. If

you are of advanced age and you have a severe impair-

ment(s) that limits you to no more than sedentary work,

we will find that you have skills that are transferable to

skilled or semiskilled sedentary work only if the seden-

tary work is so similar to your previous work that you

would need to make very little, if any, vocational ad-

justment in terms of tools, work processes, work

settings, or the industry. (See § 404.1567(a) and

§ 201.00(f) of appendix 2.) If you are of advanced age

but have not attained age 60, and you have a severe

impairment(s) that limits you to no more than light

work, we will apply the rules in paragraphs (d)(1)

through (d)(3) of this section to decide if you have skills

that are transferable to skilled or semiskilled light work

(see § 404.1567(b)). If you are closely approaching re-

tirement age (age 60-64) and you have a severe impair-

ment(s) that limits you to no more than light work, we

will find that you have skills that are transferable to

skilled or semiskilled light work only if the light work is

so similar to your previous work that you would need to

make very little, if any, vocational adjustment in terms

of tools, work processes, work settings, or the industry.

(See § 404.1567(b) and Rule 202.00(f) of appendix 2 to

this subpart.)

§ 404.1569 Listing of Medical-Vocational Guidelines

in Appendix 2.

The Dictionary of Occupational Titles includes infor-

mation about jobs (classified by their exertional and

skill requirements) that exist in the national economy.

Appendix 2 provides rules using this data reflecting

major functional and vocational patterns. We apply

83a

these rules in cases where a person is not doing sub-

stantial gainful activity and is prevented by a severe

medically determinable impairment from doing vo-

cationally relevant past work. The rules in Appendix 2

do not cover all possible variations of factors. Also, as

we explain in § 200.00 of Appendix 2, we do not apply

these rules if one of the findings of fact about the

person’s vocational factors and residual functional

capacity is not the same as the corresponding criterion

of a rule. In these instances, we give full consideration

to all relevant facts in accordance with the definitions

and discussions under vocational considerations. How-

ever, if the findings of fact made about all factors are

the same as the rule, we use that rule to decide whether

a person is disabled.

§ 404.1569a Exertional and nonexertional limitations.

(a) General. Your impairment(s) and related symp-

toms, such as pain, may cause limitations of function or

restrictions which limit your ability to meet certain

demands of jobs. These limitations may be exertional,

nonexertional, or a combination of both. Limitations

are classified as exertional if they affect your 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 de-

mands for sitting, standing, walking, lifting, carrying,

pushing, and pulling. Sections 404.1567 and 404.1569

explain how we use the classification of jobs by ex-

ertional levels (strength demands) which is contained in

the Dictionary of Occupational Titles published by the

Department of Labor, to determine the exertional

84a

requirements of work which exists in the national

economy. Limitations or restrictions which affect your

ability to meet the demands of jobs other than the

strength demands, that is, demands other than sitting,

standing, walking, lifting, carrying, pushing or pulling,

are considered nonexertional. Sections 404.1520(f) and

404.1594(f)(8) explain that if you can no longer do your

past relevant work because of a severe medically deter-

minable impairment(s), we must determine whether

your impairment(s), when considered along with your

age, education, and work experience, prevents you from

doing any other work which exists in the national

economy in order to decide whether you are dis-

abled (§ 404.1520(f)) or continue to be disabled

(S 404.1594(f)(8)). Paragraphs (b), (e), and (d) of this

section explain how we apply the medical- vocational

guidelines in Appendix 2 of this subpart in making this

determination, depending on whether the limitations or

restrictions imposed by your impairment (s) and related

symptoms, such as pain, are exertional, nonexertional,

or a combination of both.

(b) Exertional limitations. When the limitations

and restrictions imposed by your impairment(s) and

related symptoms, such as pain, affect only your ability

to meet the strength demands of jobs (sitting, standing,

walking, lifting, carrying, pushing, and pulling), we

consider that you have only exertional limitations.

When your impairment(s) and related symptoms only

impose exertional limitations and your specific voca-

tional profile is listed in a rule contained in Appendix 2

of this subpart, we will directly apply that rule to

decide whether you are disabled.

(e) Nonexertional limitations. (1) When the limi-

tations and restrictions imposed by your impairment(s)

85a

and related symptoms, such as pain, affect only your

ability to meet the demands of jobs other than the

strength demands, we consider that you have only

nonexertional limitations or restrictions. Some ex-

amples of nonexertional limitations or restrictions

include the following:

(i) You have difficulty functioning because you are

nervous, anxious, or depressed;

(ii) You have difficulty maintaining attention or con-

centrating;

(ii) You have difficulty understanding or remem-

bering detailed instructions;

(iv) You have difficulty in seeing or hearing;

(v) You have difficulty tolerating some physical fea-

ture(s) of certain work settings, e.g., you cannot toler-

ate dust or fumes; or

(vi) You have difficulty performing the manipulative

or postural functions of some work such as reaching,

handling, stooping, climbing, crawling, or crouching.

(2) If your impairment(s) and related symptoms,

such as pain, only affect your ability to perform the

nonexertional aspects of work-related activities, the

rules in appendix 2 do not direct factual conclusions of

disabled or not disabled. The determination as to

whether disability exists will be based on the principles

in the appropriate sections of the regulations, giving

consideration to the rules for specific case situations in

appendix 2.

(d) Combined exertional and nonezxertional limita-

tions. When the limitations and restrictions imposed by

your impairment(s) and related symptoms, such as pain,

86a

affect your ability to meet both the strength and de-

mands of jobs other than the strength demands, we

consider that you have a combination of exertional and

nonexertional limitations or restrictions. If your

impairment(s) and related symptoms, such as pain,

affect your ability to meet both the strength and de-

mands of jobs other than the strength demands, we will

not directly apply the rules in appendix 2 unless there

is a rule that directs a conclusion that you are disabled

based upon your strength limitations; otherwise the

rules provide a framework to guide our decision.

4. 20 C. F. R. pt. 416 (2000) provides in relevant part:

§ 416.905 Basic definition of disability for adults.

(a) The law defines disability as the inability to do

any substantial gainful activity by reason of any medi-

cally determinable physical or mental impairment

which can be expected to result in death or which has

lasted or can be expected to last for a continuous period

of not less than 12 months. To meet this definition, you

must have a severe impairment, which makes you

unable to do your previous work or any other sub-

stantial gainful activity which exists in the national

economy. To determine whether you are able to do any

other work, we consider your residual functional capac-

ity and your age, education, and work experience (see

§ 416.920).

87a

§ 416.920 Evaluation of disability of adults, in

general.

(a) Steps in evaluating disability. We consider all

evidence in your case record when we make a deter-

mination or decision whether you are disabled. When

you file a claim for Supplemental Security Income dis-

ability benefits and are age 18 or older, we use the fol-

lowing evaluation process. If you are doing substantial

gainful activity, we will determine that you are not dis-

abled. If you are not doing substantial gainful activity,

we will first consider the effect of your physical or men-

tal impairment; if you have more than one impairment,

we will also consider the combined effect of your im-

pairments. Your impairment(s) must be severe and

meet the duration requirement before we can find you

to be disabled. We follow a set order to determine

whether you are disabled. We review any current work

activity, the severity of your impairment(s), your

residual functional capacity, your past work, and your

age, education, and work experience. If we can find

that you are disabled or not disabled at any point in the

review, we do not review your claim further. Once you

have been found eligible for Supplemental Security In-

come benefits based on disability, we follow a somewhat

different order of evaluation to determine whether your

eligibility continues, as explained in § 416.994(b)(5).

(b) If you are working. If you are working and the

work you are doing is substantial gainful activity, we

will find that you are not disabled regardless of your

medical condition or your age, education, and work ex-

perience.

(c) You must have a severe impairment. If you do

not have any impairment or combination of impair-

88a

ments which significantly limits your physical or mental

ability to do basic work activities, we will find that you

do not have a severe impairment and are, therefore, not

disabled. We will not consider your age, education, and

work experience.

(d) When your impairment(s) meets or equals a

listed impairment in Appendix 1. If you have an im-

pairment(s) which meets the duration requirement and

is listed in Appendix 1 or is equal to a listed impair-

ment(s), we will find you disabled without considering

your age, education, and work experience.

(e) Your impairment(s) must prevent you from

doing past relevant work. If we cannot make a decision

based on your current work activity or on medical facts

alone, and you have a severe impairment(s), we then

review your residual functional capacity and the physi-

cal and mental demands of the work you have done in

the past. If you can still do this kind of work, we will

find that you are not disabled.

(f) Your impairment(s) must prevent you from

doing other work.

(1) If you cannot do any work you have done in the

past because you have a severe impairment(s), we will

consider your residual functional capacity and your age,

education, and past work experience to see if you can do

other work. If you cannot, we will find you disabled.

(2) If you have only a marginal education, and long

work experience (i.e., 35 years or more) where you only

did arduous unskilled physical labor, and you can no

longer do this kind of work, we use a different rule (see

§ 416.962).

89a

§ 416.921 What we mean by a not severe impair-

ment(s) in an adult.

(a) Non-severe impairment(s). An impairment or

combination of impairments is not severe if it does not

significantly limit your physical or mental ability to do

basic work activities.

(b) Basic work activities. When we talk about basic

work activities, we mean the abilities and aptitudes

necessary to do most jobs. Examples of these include—

(1) Physical functions such as walking, standing,

sitting, lifting, pushing, pulling, reaching, carrying, or

handling;

(2) Capacities for seeing, hearing, and speaking;

(3) Understanding, carrying out, and remembering

simple instructions;

(4) Use of judgment;

(5) Responding appropriately to supervision, co-

workers and usual work situations; and

(6) Dealing with changes in a routine work setting.

§ 416.922 When you have two or more unrelated im-

pairments—initial claims.

(a) Unrelated severe impairments. We cannot

combine two or more unrelated severe impairments to

meet the 12-month duration test. If you have a severe

impairment(s) and then develop another unrelated

severe impairment(s) but neither one is expected to last

for 12 months, we cannot find you disabled, even though

the two impairments in combination last for 12 months.

(b) Concurrent impairments. If you have two or

more concurrent impairments which, when considered

90a

in combination, are severe, we must also determine

whether the combined effect of your impairments can

be expected to continue to be severe for 12 months. If

one or more of your impairments improves or is ex-

pected to improve within 12 months, so that the com-

bined effect of your remaining impairments is no longer

severe, we will find that you do not meet the 12-month

duration test. |

§ 416.923 Multiple impairments.

In determining whether your physical or mental

impairment or impairments are of a sufficient medical

severity that such impairment or impairments could be

the basis of eligibility under the law, we will consider

the combined effect of all of your impairments without

regard to whether any such impairment, if considered

separately, would be of sufficient severity. If we do

find a medically severe combination of impairments, the

combined impact of the impairments will be considered

throughout the disability determination process. If we

do not find that you have a medically severe combina-

tion of impairments, we will determine that you are not

disabled (see §§ 416.920 and 416.924).

* * * * *

§ 416.925 Listing of Impairments in appendix 1 of

subpart P of part 404 of this chapter.

(a) Purpose of the Listing of Impairments. The

Listing of Impairments describes, for each of the major

body systems, impairments that are considered severe

enough to prevent an adult from doing any gainful

activity or, for a child, that causes marked and severe

functional limitations. Most of the listed impairments

are permanent or expected to result in death, or a

91a

specific statement of duration is made. For all others,

the evidence must show that the impairment has lasted

or is expected to last for a continuous period of at least

12 months.

(b) Adult and childhood diseases. The Listing of

Impairments consists of two parts:

(1) Part A contains medical criteria that apply to

adult persons age 18 and over. The medical criteria in

Part A may also be applied in evaluating impairments

in persons under age 18 if the disease processes have a

similar effect on adults and younger persons.

(2) Part B contains additional medical criteria that

apply only to the evaluation of impairments of persons

under age 18. Certain criteria in Part A do not give

appropriate consideration to the particular effects of

the disease processes in childhood; i.e., when the

disease process is generally found only in children or

when the disease process differs in its effect on children

than on adults. Additional criteria are included in Part

B, and the impairment categories are, to the extent

possible, numbered to maintain a relationship with their

counterparts in Part A. In evaluating disability for a

person under age 18, Part B will be used first. If the

medical criteria in Part B do not apply, then the medical

criteria in Part A will be used. Although the severity

criteria in part B of the listings are expressed in differ-

ent ways for different impairments, “listing-level sever-

ity” generally means the level of severity described in

§ 416.926a(a); i.e., “marked” limitations in two domains

of functioning or an “extreme” limitation in one domain.

(See § 416.926a(e) for the definitions of the terms

“marked” and “extreme” as they apply to children.)

Therefore, in general, a child’s impairment(s) is of

“listing-level severity” if it causes marked limitations in

92a

two broad areas of functioning or extreme limitations in

one such area. (See § 416.926a for definition of the

terms marked and extreme as they apply to children.)

However, when we decide whether your impairment(s)

meets the requirements for any listed impairment, we

will decide that your impairment is of “listing-level se-

verity” even if it does not result in marked limitations

in two broad areas of functioning, or extreme limita-

tions in one such area, if the listing that we apply does

not require such limitations to establish that an im-

pairment(s) is disabling.

(c) How to use the Listing of Impairments. Each

section of the Listing of Impairments has a general

introduction containing definitions of key concepts used

in that section. Certain specific medical findings, some

of which are required in establishing a diagnosis or in

confirming the existence of an impairment for the

purpose of this Listing, are also given in the narrative

introduction. If the medical findings needed to support

a diagnosis are not given in the introduction or else-

where in the listing, the diagnosis must still be

established on the basis of medically acceptable clinical

and laboratory diagnostic techniques. Following the

introduction in each section, the required level of

severity of impairment is shown under “Category of

Impairments” by one or more sets of medical findings.

The medical findings consist of symptoms, signs, and

laboratory findings.

(d) Diagnoses of impairments. We will not con-

sider your impairment to be one listed in Appendix 1 of

Subpart P of Part 404 of this chapter solely because it

has the diagnosis of a listed impairment. It must also

have the findings shown in the Listing for that im-

pairment.

93a

(e) Addiction to alcohol or drugs. If you have a

condition diagnosed as addiction to alcohol or drugs,

this will not, by itself, be a basis for determining

whether you are, or are not, disabled. As with any

other medical condition, we will decide whether you are

disabled based on symptoms, signs, and laboratory

findings.

(f) Symptoms as criteria of listed impairment(s).

Some listed impairment(s) include symptoms usually

associated with those impairment(s) as criteria. Gen-

erally, when a symptom is one of the criteria in a listed

impairment, it is only necessary that the symptom be

present in combination with the other criteria. It is not

necessary, unless the listing specifically states other-

wise, to provide information about the intensity, per-

sistence or limiting effects of the symptom as long as all

other findings required by the specific listing are

present.

§ 416.926 Medical equivalence for adults and

children.

(a) How medical equivalence is determined. We

will decide that your impairment(s) is medically equiva-

lent to a listed impairment in appendix 1 of subpart P of

part 404 of this chapter 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 corresponding medical criteria shown for any listed

impairment. When we make a finding regarding medi-

cal equivalence, we will consider all relevant evidence

in your case record. Medical equivalence can be found

in two ways:

94a

(I)) If you have an impairment that is described in

the Listing of Impairments in appendix 1 of subpart P

of part 404 of this chapter, but

(A) You do not exhibit one or more of the medical

findings specified in the particular listing, or

(B) You exhibit all of the medical findings, but one

or more of the findings is not as severe as specified in

the listing;

(ii) We will nevertheless find that your impairment

is medically equivalent to that listing if you have other

medical findings related to your impairment that are at

least of equal medical significance.

(2) If you have an impairment that is not described

in the Listing of Impairments in appendix 1, or you

have a combination of impairments, no one of which

meets or is medically equivalent to a listing, we will

compare your medical findings with those for closely

analogous listed impairments. If the medical findings

related to your impairment(s) are at least of equal

medical significance to those of a listed impairment, we

will find that your impairment(s) is medically equiva-

lent to the analogous listing.

(b) Medical equivalence must be based on medical

findings. We will always base our decision about

whether your impairment(s) is medically equal to a

listed impairment on medical evidence only. Any

medical findings in the evidence must be supported by

medically acceptable clinical and laboratory diagnostic

techniques. We will also consider the medical opinion

given by one or more medical or psychological consult-

ants designated by the Commissioner in deciding

medical equivalence. (See § 416.1016.)

95a

(c) Who is a designated medical or psychological

consultant. A medical consultant must be an accept-

able medical source identified in § 416.913(a)(1) or (a)(3)

through (a)(5). A medical consultant must be a physi-

cian. A psychological consultant used in cases where

there is evidence of a mental impairment must be a

qualified psychologist. (See § 416.1016 for limitations

on what medical consultants who are not physicians can

evaluate and the qualifications we consider necessary

for a psychologist to be a consultant.)

(d) Responsibility for determining medical equiva-

lence. In cases where the State agency or other desig-

nee of the Commissioner makes the initial or recon-

sideration disability determination, a State agency

medical or psychological consultant or other designee of

the Commissioner (see § 416.1016) has the overall

responsibility for determining medical equivalence.

For cases in the disability hearing process or otherwise

decided by a disability hearing officer, the responsibil-

ity for determining medical equivalence rests with

either the disability hearing officer or, if the disability

hearing officer’s reconsideration determination is

changed under § 416.1418, with the Associate Com-

missioner for Disability or his or her delegate. For

cases at the Administrative Law Judge or Appeals

Council level, the responsibility for deciding medical

equivalence rests with the Administrative Law Judge

or Appeals Council.

* * * * *

§ 416.945 Your residual functional capacity.

(a) General. Your impairment(s), and any related

symptoms, such as pain, may cause physical and mental

limitations that affect what you can do in a work

96a

setting. Your residual functional capacity is what you

can still do despite your limitations. If you have more

than one impairment, we will consider all of your im-

pairment(s) of which we are aware. We will consider

your ability to meet certain demands of jobs, such as

physical demands, mental demands, sensory require-

ments, and other functions, as described in paragraphs

(b), (e), and (d) of this section. Residual functional

capacity is an assessment based upon all of the relevant

evidence. It may include descriptions (even your own)

of limitations that go beyond the symptoms, such as

pain, that are important in the diagnosis and treatment

of your medical condition. Observations by your

treating or examining physicians or psychologists, your

family, neighbors, friends, or other persons, of your

limitations, in addition to those observations usually

made during formal medical examinations, may also be

used. These descriptions and observations, when used,

must be considered along with your medical records to

enable us to decide to what extent your impairment(s)

keeps you from performing particular work activities.

This assessment of your remaining capacity for work is

not a decision on whether you are disabled, but is used

as the basis for determining the particular types of

work you may be able to do despite your impairment(s).

Then, using the guidelines in §§ 416.960 through

416.969a, your vocational background is considered

along with your residual functional capacity in arriving

at a disability determination or decision. In deciding

whether your disability continues or ends, the residual

functional capacity assessment may also be used to

determine whether any medical improvement you have

experienced is related to your ability to work as

discussed in § 416.994.

97a

(b) Physical abilities. When we assess your physi-

cal abilities, we first assess the nature and extent of

your physical limitations and then determine your re-

sidual functional capacity for work activity on a regular

and continuing basis. A limited ability to perform cer-

tain physical demands of work activity, such as sitting,

standing, walking, lifting, carrying, pushing, pulling, or

other physical functions (including manipulative or

postural functions, such as reaching, handling, stooping

or crouching), may reduce your ability to do past work

and other work.

(c) Mental abilities. When we assess your mental

abilities, we first assess the nature and extent of your

mental limitations and restrictions and then determine

your residual functional capacity for work activity on a

regular and continuing basis. A limited ability to carry

out certain mental activities, such as limitations in

understanding, remembering, and carrying out instruc-

tions, and in responding appropriately to supervision,

coworkers, and work pressures in a work setting, may

reduce your ability to do past work and other work.

(d) Other abilities affected by impairment(s).

Some medically determinable impairment(s), such as

skin impairment(s), epilepsy, impairment(s) of vision,

hearing or other senses, and impairment(s) which

impose environmental restrictions, may cause limita-

tions and restrictions which affect other work-related

abilities. If you have this type of impairment(s), we

consider any resulting limitations and restrictions

which may reduce your ability to do past work and

other work in deciding your residual functional capac-

ity.

(e) Total limiting effects. When you have a severe

impairment(s), but your symptoms, signs, and labora-

98a

tory findings do not meet or equal those of a listed

impairment in appendix 1 of subpart P of part 404 of

this chapter, we will consider the limiting effects of all

your impairment(s), even those that are not severe, in

determining your residual functional capacity. Pain or

other symptoms may cause a limitation of function

beyond that which can be determined on the basis of

the anatomical, physiological or psychological abnor-

malities considered alone; e.g., someone with a low back

disorder may be fully capable of the physical demands

consistent with those of sustained medium work activ-

ity, but another person with the same disorder, because

of pain, may not be capable of more than the physical

demands consistent with those of light work activity on

a sustained basis. In assessing the total limiting effects

of your impairment(s) and any related symptoms, we

will consider all of the medical and nonmedical evi-

dence, including the information described in

§ 416.929(c).

§ 416.946 Responsibility for assessing and deter-

mining residual functional capacity.

The State agency staff medical or psychological con-

sultants or other medical or psychological consultants

designated by the Commissioner are responsible for

ensuring that the State agency makes a decision about

your residual functional capacity. In cases where the

State agency makes the disability determination, a

State agency staff medical or psychological consultant

must assess residual functional capacity where it is

required. This assessment is based on all of the

evidence we have, including any statements regarding

what you can still do that have been provided by treat-

ing or examining physicians, consultative physicians, or

any other medical or psychological consultant desig-

99a

nated by the Commissioner. See § 416.945. For cases

in the disability hearing process, the responsibility for

deciding your residual functional capacity rests with

either the disability hearing officer or, if the disability

hearing officer’s reconsidered determination is changed

under § 416.918, with the Director of the Office of

Disability Hearings or his or her delegate. For cases at

the Administrative Law Judge hearing or Appeals

Council level, the responsibility for deciding your resid-

ual functional capacity rests with the Administrative

Law Judge or Appeals Council.

* * * * *

§ 416.960 When your vocational background will be

considered.

(a) General. If you are age 18 or older and applying

for benefits based on disability and we cannot decide

whether you are disabled on medical evidence alone, we

will consider your residual functional capacity together

with your vocational background.

(b) Past relevant work. We will first compare your

residual functional capacity with the physical and

mental demands of the kind of work you have done in

the past. If you still have the residual functional capac-

ity to do your past relevant work, we will find that you

can still do your past work, and we will determine that

you are not disabled, without considering your voca-

tional factors of age, education, and work experience.

(c) Other work. If we find that you can no longer do

the kind of work you have done in the past, we will then

consider your residual functional capacity together with

your vocational factors of age, education, and work ex-

perience to determine whether you can do other work.

100a

By other work we mean jobs that exist in significant

numbers in the national economy.

§ 416.961 Your ability to do work depends upon your

residual functional capacity.

If you can do your previous work (your usual work or

other applicable past work), we will determine that you

are not disabled. However, if your residual functional

capacity is not enough to enable you to do any of your

previous work, we must still decide if you can do any

other work. To do this, we consider your residual func-

tional capacity, and your age, education, and work

experience. Any work (jobs) that you can do must exist

in significant numbers in the national economy (either

in the region where you live or in several regions of the

country). Sections 416.963-416.965 explain how we

evaluate your age, education, and work experience

when we are deciding whether or not you are able to do

other work.

* * * * *

§ 416.963 Your age as a vocational factor.

(a) General. “Age” means your chronological age.

When we decide whether you are disabled under

§ 416.920(f)(1), we will consider your chronological age

in combination with your residual functional capacity,

education, and work experience; we will not consider

your ability to adjust to other work on the basis of your

age alone. In determining the extent to which age

affects a person’s ability to adjust to other work, we

consider advancing age to be an increasingly limiting

factor in the person’s ability to make such an adjust-

ment, as we explain in paragraphs (c) through (e) of this

section. If you are unemployed but you still have the

10la

ability to adjust to other work, we will find that you are

not disabled. In paragraphs (b) through (e) of this

section and in appendix 2 of subpart P of part 404 of this

chapter, we explain in more detail how we consider

your age as a vocational factor.

(b) How we apply the age categories. When we

make a finding about your ability to do other work

under § 416.920(f)(1), we will use the age categories in

paragraphs (c) through (e) of this section. We will use

each of the age categories that applies to you during the

period for which we must determine if you are disabled.

We will not apply the age categories mechanically in a

borderline situation. If you are within a few days to a

few months of reaching an older age category, and

using the older age category would result in a deter-

mination or decision that you are disabled, we will

consider whether to use the older age category after

evaluating the overall impact of all the factors of your

case

(c) Younger person. If you are a younger person

(under age 50), we generally do not consider that your

age will seriously affect your ability to adjust to other

work. However, in some circumstances, we consider

that persons age 45-49 are more limited in their ability

to adjust to other work than persons who have not

attained age 45. See Rule 201.17 in appendix 2 of

subpart P of part 404 of this chapter.

(d) Person closely approaching advanced age.

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