AR 01-1(3): Sykes v. Apfel , 228 F.3d 259 (3d Cir. 2000) — Using the Grid Rules [1] as a Framework for Decisionmaking When an Individual's Occupational Base is Eroded by a Nonexertional Limitation — Titles II and XVI of the Social Security Act. [2]

AR 01-1(3)

EFFECTIVE/PUBLICATION DATE: 01/25/2001

Acquiescence Ruling 01-1(3)

Issue:

Whether we may apply the Medical-Vocational Guidelines (grid rules) as a

framework to deny disability benefits at step 5 of the sequential

evaluation process when a claimant has a nonexertional limitation(s)

without either: (1) taking or producing vocational evidence, such as

testimony from a vocational expert, reference to the Dictionary of

Occupational Titles (DOT) [3] or other similar

evidence; or (2) providing notice of our intention to take official notice

of the fact that the particular nonexertional limitation(s) does not

significantly erode the occupational job base.

Statute/Regulation/Ruling Citation:

Sections 205(b), 223(d)(2)(A), 1614(a)(3)(B) and 1631(c)(1)(A) of the

Social Security Act (42 U.S.C. 405(b), 423(d)(2)(A), 1382c(a)(3)(B)) and

1383(c)(1)(A); 20 CFR 404.1520(f)(1), 404.1566, 404.1569, 404.1569a,

416.920(f)(1), 416.966, 416.969 and 416.969a; 20 CFR Part 404, Subpart P,

Appendix 2, section 200.00(e); Social Security Rulings 83-10 , 83-12 , 83-14 , 85-15 and 96-9p .

Circuit:

Third (Delaware, New Jersey, Pennsylvania, and the Virgin Islands).

Sykes v. Apfel , 228 F.3d 259 (3d Cir. 2000).

Applicability of Ruling:

This Ruling applies to determinations or decisions at all levels of the

administrative review process (i.e., initial, reconsideration,

Administrative Law Judge (ALJ) hearing and Appeals Council).

Description of Case:

83-14 , 85-15 and 96-9p .

Circuit:

Third (Delaware, New Jersey, Pennsylvania, and the Virgin Islands).

Sykes v. Apfel , 228 F.3d 259 (3d Cir. 2000).

Applicability of Ruling:

This Ruling applies to determinations or decisions at all levels of the

administrative review process (i.e., initial, reconsideration,

Administrative Law Judge (ALJ) hearing and Appeals Council).

Description of Case:

Clifton Sykes filed an application for disability insurance benefits after

suffering several job-related injuries. After his claim was denied at both

the initial and reconsideration levels of the administrative review

process, he requested a hearing before an ALJ. The ALJ found that Mr.

Sykes had several "severe" impairments and that, because of these

impairments, he was unable to do his past relevant work. At least one of

these impairments, blindness in the left eye, resulted in a nonexertional

limitation. The other severe impairments included the residual effects of

a torn rotator cuff, angina and obstructive pulmonary disease. Applying

the grid rules in 20 CFR Part 404, Subpart P, Appendix 2 as a framework

for decisionmaking without referring to a vocational expert or other

evidence, the ALJ concluded that Mr. Sykes was not disabled because he

could perform other work existing in the national economy. The ALJ's

conclusion was based on his findings that Mr. Sykes had the exertional

capability to perform "light" work and that the exclusion of jobs

requiring binocular vision did not significantly compromise the "broad

base of light work" established under the grid rules.

he ALJ concluded that Mr. Sykes was not disabled because he

could perform other work existing in the national economy. The ALJ's

conclusion was based on his findings that Mr. Sykes had the exertional

capability to perform "light" work and that the exclusion of jobs

requiring binocular vision did not significantly compromise the "broad

base of light work" established under the grid rules.

After the Appeals Council denied Mr. Sykes' request for review of the

ALJ's decision, he sought judicial review. Mr. Sykes argued, among other

things, that the ALJ erred in relying exclusively on the grid rules to

determine whether there were jobs in the national economy that he could

perform when his impairments resulted in both exertional and nonexertional

limitations. The district court affirmed the ALJ's decision finding that

it was supported by substantial evidence. On appeal to the United States

Court of Appeals for the Third Circuit, the court reversed the judgment of

the district court and remanded the case to us for further proceedings

consistent with its decision.

Holding:

After considering the Supreme Court's decision in Heckler v.

Campbell , 461 U.S. 458 (1983), the court concluded that our

"interpretation of 20 CFR Part 404, Subpart P, Appendix 2 section

200.00(e)(2) does not comport with the Social Security Act . . . ." In

view of the ALJ's finding that the claimant had a severe nonexertional

impairment, the court stated that we cannot establish the existence of

other "jobs in the national economy that Sykes can perform by relying on

the grids alone, even if [we use] the grids only as a framework instead of

to direct a finding of no disability." The court further stated that, "in

the absence of a rulemaking establishing the fact of an undiminished

occupational base, the Commissioner cannot determine that a claimant's

nonexertional impairments do not significantly erode his occupational base

under the medical-vocational guidelines [alone]."

f [we use] the grids only as a framework instead of

to direct a finding of no disability." The court further stated that, "in

the absence of a rulemaking establishing the fact of an undiminished

occupational base, the Commissioner cannot determine that a claimant's

nonexertional impairments do not significantly erode his occupational base

under the medical-vocational guidelines [alone]."

The Third Circuit also addressed "the question [of] what additional

evidence the Commissioner must present to meet the burden of establishing

that there are jobs in the national economy that a claimant with

exertional and nonexertional impairments can perform." The court held that

the "sort of evidence the Commissioner must present to meet his burden of

proof . . . when a claimant has exertional and nonexertional impairments .

. . [is] the testimony of a vocational expert or other similar evidence,

such as a learned treatise."

As an alternative to producing additional vocational evidence, the court

held that we could rely on official administrative notice to establish

that a particular nonexertional limitation does not significantly erode a

claimant's occupational job base. The court stated that, "official

[administrative] notice . . . allows an administrative agency to take

notice of technical or scientific facts that are within the agency's area

of expertise," in addition to commonly acknowledged facts. Under this

alternative, we "would have had to provide Sykes with notice of [our]

intent to [take administrative] notice [of the] fact [that the

occupational base is not significantly eroded by the nonexertional

limitation] and, if Sykes raised a substantial objection, an opportunity

to respond. . . ."

e within the agency's area

of expertise," in addition to commonly acknowledged facts. Under this

alternative, we "would have had to provide Sykes with notice of [our]

intent to [take administrative] notice [of the] fact [that the

occupational base is not significantly eroded by the nonexertional

limitation] and, if Sykes raised a substantial objection, an opportunity

to respond. . . ."

The court stated that it was not deciding the issue of "whether Social

Security Rulings can serve the same function as the rulemaking upheld in Campbell ." The court further stated that it need not resolve

the issue of whether "the Commissioner can properly refer to a ruling for

guidance as to when nonexertional limitations may significantly compromise

the range of work that an individual can perform."

Statement As To How Sykes Differs From SSA's

Interpretation

At step 5 of the sequential evaluation process (or the last step in the

sequential evaluation process in continuing disability review claims), we

consider the vocational factors of age, education and work experience in

conjunction with a claimant's residual functional capacity to determine

whether the claimant can do other jobs that exist in significant numbers

in the national economy. Section 200.00(e)(2) of 20 CFR Part 404, Subpart

P, Appendix 2 provides that, when an individual has an impairment(s)

"resulting in both strength [exertional] limitations and [nonstrength]

nonexertional limitations," we use the grid rules first to determine

whether a finding of disabled is possible based on strength limitations

alone. If not, we use the same grid rules reflecting the individual's

maximum residual strength capabilities, age, education, and work

experience as a framework for consideration of how much the individual's

nonexertional limitations further erode the occupational job base. As

stated in 20 CFR 404.1569a and 416.969a, the grid rules "provide a

framework to guide our decision" in this situation.

If not, we use the same grid rules reflecting the individual's

maximum residual strength capabilities, age, education, and work

experience as a framework for consideration of how much the individual's

nonexertional limitations further erode the occupational job base. As

stated in 20 CFR 404.1569a and 416.969a, the grid rules "provide a

framework to guide our decision" in this situation.

SSR 83-14 , Capability to do

Other Work-The Medical Vocational Rules as a Framework for Evaluating a

Combination of Exertional and Nonexertional Impairments, provides that we

use the grid rules to determine how the totality of an individual's

limitations or restrictions reduces the occupational base of

administratively noticed unskilled jobs when a claimant cannot be found

disabled based on exertional limitations alone. In those claims where a

person comes very close to meeting the criteria of a grid rule directing a

finding of not disabled because it is clear that the additional

nonexertional limitation(s) has very little effect on the exertional

occupational base, we may rely on the framework of the grid rules to

support a finding that the person is not disabled without consulting a

vocational expert or other vocational resource. On the other hand, an

additional nonexertional limitation may substantially reduce a range of

work to the extent that an individual is very close to meeting a grid rule

which directs a conclusion of disabled. Particular nonexertional

limitation(s) may significantly erode or may have very little effect on

the occupational base of jobs an individual can perform.

other vocational resource. On the other hand, an

additional nonexertional limitation may substantially reduce a range of

work to the extent that an individual is very close to meeting a grid rule

which directs a conclusion of disabled. Particular nonexertional

limitation(s) may significantly erode or may have very little effect on

the occupational base of jobs an individual can perform.

SSRs 96-9 and 83-14 include examples of

nonexertional limitation(s) and provide adjudicative guidance on their

effects on an individual's occupational job base. Some of the

nonexertional limitations described in the SSRs do significantly reduce an

individual's occupational job base and would result in a finding of

disability. Other nonexertional limitations described in the SSRs do not

significantly reduce an individual's occupational job base and would not

ordinarily result in a finding of disability if the person's exertional

limitations (or "capabilities") would result in a finding of not disabled

under the grid rules. Regardless of whether the result is a finding of

disability or no disability, we rely on our regulations and the SSRs to

provide adjudicative guidance on the effects of particular nonexertional

limitations on an individual's occupational job base.

Under our interpretation of 20 CFR 404.1569a, 416.969a and section

200.00(e) of Appendix 2 to Subpart P of Part 404, and of SSR 83-14 , we are not

required to consult a vocational expert or other vocational resource in

all instances in which we decide whether an individual who has a

nonexertional limitation(s) is or is not disabled. For instance, we are

not always required to consult a vocational expert or other vocational

resource to help us determine whether a nonexertional limitation

significantly erodes a claimant's occupational base when adjudicative

guidance on the effect of the limitation is provided in an SSR.

which we decide whether an individual who has a

nonexertional limitation(s) is or is not disabled. For instance, we are

not always required to consult a vocational expert or other vocational

resource to help us determine whether a nonexertional limitation

significantly erodes a claimant's occupational base when adjudicative

guidance on the effect of the limitation is provided in an SSR.

The Third Circuit concluded that, under Campbell , we cannot

rely on the framework of our grid rules to deny a claim when a claimant

has a nonexertional impairment(s) "without either taking additional

vocational evidence . . . or providing notice to the claimant of [our]

intention to take official notice of this fact [that the claimant's

nonexertional impairment(s) do not significantly erode his or her

occupational base] (and providing the claimant with an opportunity to

counter the conclusion)." The court held that we cannot establish the

existence of other jobs in the national economy that a claimant with a

nonexertional limitation "can perform by relying on the grids alone, even

if [we] use the grids as a framework instead of to direct a finding of no

disability."

Explanation of How SSA Will Apply the Sykes Decision

Within the Circuit

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

Delaware, New Jersey, Pennsylvania or the Virgin Islands at the time of

the determination or decision at any level of the administrative review

process; i.e., initial, reconsideration, ALJ hearing or Appeals Council

review.

ing of no

disability."

Explanation of How SSA Will Apply the Sykes Decision

Within the Circuit

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

Delaware, New Jersey, Pennsylvania or the Virgin Islands at the time of

the determination or decision at any level of the administrative review

process; i.e., initial, reconsideration, ALJ hearing or Appeals Council

review.

In making a disability determination or decision at step 5 of the

sequential evaluation process (or the last step in the sequential

evaluation process in continuing disability review claims), we cannot use

the grid rules exclusively as a framework for decisionmaking when an

individual has a nonexertional limitation(s). Before denying disability

benefits at step five when a claimant has a nonexertional limitation(s),

we must: (1) take or produce vocational evidence such as from a vocational

expert, the DOT or other similar evidence (such as a learned treatise); or

(2) provide notice that we intend to take or are taking administrative

notice of the fact that the particular nonexertional limitation(s) does

not significantly erode the occupational job base, and allow the claimant

the opportunity to respond before we deny the claim.

This Ruling does not apply to claims where we rely on an SSR that includes

a statement explaining how the particular nonexertional limitation(s)

under consideration in the claim being adjudicated affects a claimant's

occupational job base. When we rely on such an SSR to support our finding

that jobs exist in the national economy that the claimant can do, we will

include a citation to the SSR in our determination or decision.

We are considering revising our rules regarding our use of the grid rules

as a framework for decisionmaking and may rescind this Ruling once we have

made the revision.

laimant's

occupational job base. When we rely on such an SSR to support our finding

that jobs exist in the national economy that the claimant can do, we will

include a citation to the SSR in our determination or decision.

We are considering revising our rules regarding our use of the grid rules

as a framework for decisionmaking and may rescind this Ruling once we have

made the revision.

[1] At step 5 of the sequential

evaluation process we use the medical-vocational rules that are set out in

appendix 2 of subpart P of part 404. In general, the rules in appendix 2

take administrative notice of the existence of numerous, unskilled

occupations at exertional levels defined in the regulations, such as

"sedentary," "light," and "medium." Based upon a consideration of an

individual's residual functional capacity, age, education, and work

experience, the rules either direct a conclusion as to whether an

individual is disabled at step 5 of the sequential evaluation process or

provide a framework to guide our decision at this step. See 20 CFR

404.1569a and 416.969a and our preamble to final rules published at 65 FR

17994 (April 6, 2000).

[2] Although Sykes was a title II case, the same principles apply to title XVI. Therefore,

this Ruling applies to both title II and title XVI disability claims.

[3] Employment and Training

Administration, U.S. Department of Labor, Dictionary of Occupational

Titles (Fourth Edition, Revised 1991) and its companion

publication, Selected Characteristics of Occupations Defined in the

Revised Dictionary of Occupational Titles , (1993).