AR 00-4(2): Rescinded

Acquiescence Ruling 00-4(2): Rescinded 9/25/2003 by 68 FR 51317

EFFECTIVE/PUBLICATION DATE: 9/11/2000

Issue:

Whether we have the burden of proving residual functional capacity (RFC)

at step five of the sequential evaluation process for determining

disability in 20 CFR 404.1520 and 416.920.

Statute/Regulation/Ruling Citation:

Sections 205(a), 223(d)(2)(A), 223(d)(5), 702(a)(5), 1614(a)(3)(B),

1614(a)(3)(H) and 1631(d)(1) of the Social Security Act (42 U.S.C. 405(a),

423(d)(2)(A), 423(d)(5), 902(a)(5), 1382c(a)(3)(B), 1382c(a)(3)(H) and

1383(d)(1)) and;

20 CFR 404.1512, 404.1520, 404.1527, 404.1545, 404.1546, 416.912, 416.920,

416.927, 416.945, 416.946,

Social Security Rulings 96-5p and 96-8p .

Circuit:

Second (Connecticut, New York and Vermont).

Curry v. Apfel , 209 F.3d 117 (2d Cir. 2000).

Applicability of Ruling:

This Ruling applies to all determinations or decisions at all

administrative levels (i.e., initial, reconsideration, Administrative Law

Judge (ALJ) hearing, and Appeals Council).

Description of Case:

Cordie Curry injured his back and right knee on September 30, 1987, when

he jumped or fell from a ladder to avoid hot water flowing from a pipe.

Mr. Curry was referred to an orthopedic surgeon for lower back pain, and

received physical therapy from January 14, 1988, through June 28, 1988.

The orthopedic surgeon performed surgery on Mr. Curry's knee on July 13,

1988, and diagnosed an internal derangement. In February and March 1995,

Mr. Curry again saw the orthopedic surgeon, who diagnosed osteoarthritis

in both knees and completed a "medical assessment"

form. [2] This treating physician

concluded that Mr. Curry could sit for 2 hours continuously, stand for 30

minutes at a time and walk for 15 minutes at a time. In his physician's

opinion, during the course of an 8-hour day, Mr. Curry could sit for no

more than 2-3 hours, stand for a total of 1 hour and walk a total of 30

minutes. The treating physician also provided an opinion that Mr

form. [2] This treating physician

concluded that Mr. Curry could sit for 2 hours continuously, stand for 30

minutes at a time and walk for 15 minutes at a time. In his physician's

opinion, during the course of an 8-hour day, Mr. Curry could sit for no

more than 2-3 hours, stand for a total of 1 hour and walk a total of 30

minutes. The treating physician also provided an opinion that Mr. Curry

could occasionally lift up to 20 pounds and occasionally carry up to 10

pounds. [3]

On September 28, 1993, Mr. Curry filed an application for disability

benefits claiming an inability to work since October 9, 1990. In

connection with this application, Mr. Curry was examined on January 24,

1994, by a consulting physician who reported that an X-ray of the knee

showed mild degenerative joint disease. The consulting physician concluded

that Mr. Curry had "moderate" impairment of lifting and carrying

activities, and "mild" impairment in standing and walking, pushing and

pulling, and sitting.

After a hearing, an ALJ decided that Mr. Curry was not disabled based on a

finding that he retained the RFC to perform the exertional requirements of

at least sedentary work. The ALJ found that Mr. Curry's impairments

prevented him from performing his past relevant work, but that "the record

[did] not establish that [he was] unable to sit for prolonged periods of

time, lift and carry ten pounds and perform the minimal standing and

walking required for sedentary work activity."

After the Appeals Council denied Mr. Curry's request for review, he sought

judicial review. The district court held that our final decision was

supported by substantial evidence. On appeal to the United States Court of

Appeals for the Second Circuit, the court reversed and remanded the case

for calculation of disability benefits.

Holding:

walking required for sedentary work activity."

After the Appeals Council denied Mr. Curry's request for review, he sought

judicial review. The district court held that our final decision was

supported by substantial evidence. On appeal to the United States Court of

Appeals for the Second Circuit, the court reversed and remanded the case

for calculation of disability benefits.

Holding:

The Second Circuit held that we have the burden of proving at step five of

the sequential evaluation process that the claimant has the RFC to perform

other work which exists in the national economy. The court found that, in

this case, the ALJ's conclusions about RFC evidenced a disregard for this

procedure.

Statement as to How Curry Differs From SSA's

Interpretation of the Regulations

Under sections 205(a), 223(d)(5), 1614(a)(3) and 1631(d)(1) of the Act,

and 20 CFR 404.1512 and 416.912 of our regulations, the claimant generally

bears the burden of proving disability by furnishing medical and other

evidence we can use to reach conclusions about his or her impairment(s),

and its effect on his or her ability to work on a sustained basis. Our

responsibility is to make every reasonable effort to develop a claimant's

complete medical history including to arrange for consultative

examinations, if necessary.

There is a shift in the burden of proof, "only if the sequential

evaluation process proceeds to the fifth step * * *. It is not

unreasonable to require the claimant, who is in a better position to

provide information about his own medical condition, to do so." Bowen v. Yuckert , 482 U.S. 137, 146 n5 (1987). However, once

a claimant establishes that he or she is unable to do past relevant work,

it would be unreasonable to further require him or her to produce

vocational evidence showing that there are no jobs in the national economy

that a person with his or her RFC can perform

to

provide information about his own medical condition, to do so." Bowen v. Yuckert , 482 U.S. 137, 146 n5 (1987). However, once

a claimant establishes that he or she is unable to do past relevant work,

it would be unreasonable to further require him or her to produce

vocational evidence showing that there are no jobs in the national economy

that a person with his or her RFC can perform. Accordingly, the only

burden shift that occurs at step five is that we are required to prove

that there is other work that the claimant can perform, given his or her

RFC.

Therefore, under our interpretation of our regulations, we do not have the

burden at step five (or step four) to prove what the claimant's RFC is. We

assess RFC one time, after concluding that a claimant's impairment(s) is

"severe" but does not meet or equal a listing in the Listing of

Impairments in appendix 1 of subpart P of 20 CFR part 404. Although we use

this assessment at steps four and five of the sequential evaluation

process, we make the assessment at a step in the process at which the

claimant is responsible for proving disability.

The Second Circuit has expanded our burden of proof at step five beyond

the issue of work which exists in significant numbers to the assessment of

RFC. The Second Circuit held that, in determining disability at step five,

we have the burden of proving that a claimant retains the RFC to perform

other work.

Explanation of How SSA Will Apply The Curry Decision

Within the Circuit

This Ruling applies only to claims in which the claimant resides in

Connecticut, New York, or Vermont at the time of the determination or

decision at any level of administrative review; i.e., initial,

reconsideration, ALJ hearing, or Appeals Council review.

ing that a claimant retains the RFC to perform

other work.

Explanation of How SSA Will Apply The Curry Decision

Within the Circuit

This Ruling applies only to claims in which the claimant resides in

Connecticut, New York, or Vermont at the time of the determination or

decision at any level of administrative review; i.e., initial,

reconsideration, ALJ hearing, or Appeals Council review.

In making a disability determination or decision at step five of the

sequential evaluation process, we have the burden of proving with

sufficient evidence that a claimant can perform the requirements of other

work. To meet this burden, we will assess RFC by evaluating all of the

relevant evidence in the case record about a claimant's impairment(s)

according to our rules for assessing RFC, and will in our determinations

and decisions or in the case record certify that there is sufficient

evidence to support our findings regarding RFC at step five, and refer to

the relevant evidence or the explanation (e.g., the RFC assessment form)

in which the relevant evidence is cited.

We will apply this Social Security Acquiescence Ruling to current and

reopened claims governed by the court-approved settlement in Stieberger v. Sullivan , 801 F. Supp. 1079 (S.D.N.Y. 1992),

but not to the extent it is inconsistent with that settlement.

We intend to clarify our regulations regarding a claimant's burden to

provide evidence of RFC, and we may rescind this Ruling once we have made

the clarification.

[1] Although Curry was a title II case, similar principles also apply to title XVI.

Therefore, this Ruling applies to both title II and title XVI disability

claims.

[2] We deleted the term "medical

assessment" from 20 CFR 404.1513 and 416.913 on August 1, 1991, and

replaced it with the terms "statement about what you can still do despite

your impairment(s)" and "medical source statement." See 56 FR 36932.

was a title II case, similar principles also apply to title XVI.

Therefore, this Ruling applies to both title II and title XVI disability

claims.

[2] We deleted the term "medical

assessment" from 20 CFR 404.1513 and 416.913 on August 1, 1991, and

replaced it with the terms "statement about what you can still do despite

your impairment(s)" and "medical source statement." See 56 FR 36932.

[3] In a second "medical

assessment" form, another treating physician, Dr. Hussapibis, concurred

with Dr. Hobeika's opinion.