                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


1-24-2007

Poulos v. Comm Social Security
Precedential or Non-Precedential: Precedential

Docket No. 05-4637




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                                                  PRECEDENTIAL

             UNITED STATES COURT OF APPEALS
                  FOR THE THIRD CIRCUIT
                       ____________

                               No. 05-4637
                              ____________

                        ARTHUR POULOS,

                                Appellant

                                   v.

            COMMISSIONER OF SOCIAL SECURITY
                      ____________

           On Appeal from the United States District Court
                  for the District of New Jersey
                       (D.C. No. 02-cv-2250)
                District Judge: Anne E. Thompson
                            __________

                    Argued: September 14, 2006

     Before: FUENTES, FISHER and McKAY,* Circuit Judges.

                       (Filed January 24, 2007)

    Thomas H. Klein, Esq. (argued)
    Smith & Klein
    100 Broad Street
    Eatontown, New Jersey 07724

           Counsel for Appellant

    Christopher J. Christie


*

    The Honorable Monroe G. McKay, United States Circuit
    Judge for the Tenth Circuit, sitting by designation.
    United States Attorney
    Sixtina Fernandez (argued)
    Special Assistant U.S. Attorney
    c/o Social Security Administration
    26 Federal Plaza, Room 3904
    New York, New York 10278

    Barbara L. Spivak
    Chief Counsel – Region II
    Stephen P. Conte
    Supervisory Regional Counsel
    Office of the General Counsel
    Social Security Administration

          Counsel for Appellee
                         ____________

                    OPINION OF THE COURT
                         ____________

    McKAY, Circuit Judge.

           Appellant is 5’ 6” tall and weighs over 450 pounds.1
    On February 3, 2000, Appellant, then nineteen years old,
    applied for Child’s Insurance Benefits and Supplemental
    Security Income payments, alleging disability from birth
    based on morbid obesity with resultant knee pain, back strain,
    shortness of breath, and slowed movement; neurological
    impairment; and chronic ear infections. (R. at 106.) Upon
    reconsideration, he also alleged that he had severe
    hypertension. (R. at 115.) The Social Security
    Administration denied Appellant’s initial application as well

1

     In November 2000, a physician noted that Appellant’s last
    recorded weight, taken one year prior, was 450 pounds and
    that Appellant had “increased his abdominal girth
    subsequently.” (R. at 297.) The physician did not have the
    equipment to weigh someone of Appellant’s size. (R. at 297.)
    On September 7, 2001, a different physician estimated
    Appellant’s weight at 500 pounds. (R. at 296.)
                                  2
as his request for reconsideration. After a hearing, an
Administrative Law Judge (“ALJ”) concluded that Appellant
had not been disabled at any time since his alleged disability
onset date. The Appeals Council denied Appellant’s request
for review of that decision. Appellant then filed the instant
action with the District Court, which affirmed the decision of
the Commissioner. For the reasons that follow, we will
reverse and remand for further proceedings in accordance
with this opinion.

BACKGROUND

        The record indicates that Appellant has been obese his
entire life. In March 1986, at the age of five, he weighed 140
½ pounds. (R. at 176.) Three years later, at the age of eight,
he weighed 246 pounds. (R. at 307.) By May 2000,
Appellant weighed more than 450 pounds. (R. at 213.) A
person with a Body Mass Index (BMI) of 30.0 or higher is
characterized as obese. SSR 02-1p. A person with a BMI
greater than or equal to 40.0 is characterized as extremely
obese and is considered to be at the greatest risk for
developing obesity-related impairments. Id. At a height of
5’6” and an estimated weight of 500 pounds (R. at 296),
Appellant has an estimated BMI of 80.7.

        At the hearing before the ALJ, Appellant testified that
his obesity and other health problems cause him to move
slowly, to have difficulty walking and standing for long
periods, to have great difficulty climbing stairs, and to have
trouble sleeping at night. Appellant testified that he does not
move as quickly as other people, even when sitting. (R. at 36-
37.) He stated that after walking for one or two blocks, his
legs start to hurt and he is out of breath. (R. at 39, 117.)
When he stands for more than ten minutes, his right knee
“starts to really hurt [and] cramp up with sharp pain.” (R. at
39.) After an hour of standing, his ankles start to swell, and
they will typically remain swollen for two days. (R. at 39.)
Appellant testified that he must climb stairs one step at a time
and is “all out of breath” by the time he reaches the top. (R.
at 34.) He also has difficulty sleeping through the night,
waking up every hour or two because he is unable to breathe

                               3
and must sit up to catch his breath. (R. at 43.) This
disruption in sleep causes him to feel tired throughout the day.
(R. at 43.)

        Appellant testified at the hearing that he does not have
problems sitting, although he occasionally gets mild pain in
his hip if he sits too long. (R. at 39.) Appellant later testified,
however, that his lower back starts to hurt when he is sitting.
(R. at 42.) Appellant also testified that he sometimes gets out
of breath just sitting (R. at 40), and that he has to lie down to
rest during the day in order to help catch his breath and rest
his body (R. at 41). Additionally, Appellant elsewhere
asserted that his weight causes him to break chairs while he is
sitting in them. (R. at 125.)

        The record reflects that Appellant suffers from some
physical health problems. Appellant has had hypertension
since at least 1995 (R. at 227), although it has generally been
controlled by medication (R. at 296). A pulmonary function
study showed some mild obstructive and restrictive defect.
(R. at 203.) Appellant has consulted a physician numerous
times for earaches (R. at 227-35, 237, 240, 243, 246-49, 254-
55), and apparently underwent a tonsillectomy and an
unsuccessful ear tube implantation in 1987 (R. at 110; 143).
A state agency physician who examined Appellant in
September 2000 diagnosed him with morbid obesity,
hypertension, and right knee pain due to meniscal
degeneration. (R. at 57.) The medical evidence was
reviewed by a second state agency physician, who concluded
that Appellant could occasionally lift twenty pounds,
frequently lift ten pounds, stand and/or walk for about six
hours in an eight-hour workday, and sit for about six hours in
an eight-hour workday. (R. at 261.)

       The record also reflects that Appellant may suffer from
a neurological impairment. Appellant was classified as pre-
school handicapped at the age of 3 (R. at 168) and as
neurologically impaired at the age of six (R. at 165).
Although he graduated from high school, Appellant was
enrolled in some resource classes. (R. at 34.) A psychologist
employed by the New Jersey Department of Labor tested

                                4
Appellant and determined that he had a full scale I.Q. of
ninety-eight, which is in the average range. (R. at 257.) The
psychologist stated, however, that the twenty-four-point
discrepancy between his verbal and his performance I.Q. was
“highly significant and consistent with neurological
impairment.” (R. at 257.) The psychologist further stated
that Appellant “ha[d] severe deficits in perceptual
organization on block design and also show[ed] problems
with sustained attention and motor persistence.” (R. at 257.)
The psychologist described Appellant as “very prompt,
cooperative and pleasant about being tested.” (R. at 256.) A
state agency psychologist who reviewed the medical evidence
concluded that Appellant had a neurological impairment, but
that this impairment was not severe. (R. at 281.) This
psychologist determined that Appellant only suffered from a
mild limitation in maintaining concentration, persistence, or
pace. (R. at 291.)

        Appellant is able to engage in a variety of different
activities. He can use the computer, build and paint small
statues, read history books, and watch television. (R. at 38.)
He prepares his own breakfast and lunch (R. at 142), and he
babysits his niece while his sister is at work (R. at 38). He is
able to drive, although he cannot fit into certain cars (R. at 33-
34), and he occasionally visits friends (R. at 142).

        Appellant has never been employed longer than a few
months. He worked as a kitchen assistant for a few months in
1998 as part of a high school vocational program, as a night
stock person for a few weeks in June 1999, and as a baker’s
assistant for a few weeks in July 1999. (R. at 162.) Appellant
testified that he cannot keep a job because he is too slow. (R.
at 35-36.) He also asserted that he stopped working because
his back and legs hurt and he was “physically unable to do the
work required.” (R. at 106.) His mother believes that he
cannot work because he is just “too big at this time to
function.” (R. at 52.) Appellant has a high school education
and was twenty-one years old at the time of the hearing before
the ALJ. (R. at 34.)

DISCUSSION

                                5
       Because the Appeals Council denied review of the
ALJ’s decision, we review that decision as the final decision
of the Commissioner. See Matthews v. Apfel, 239 F.3d 589,
592 (3d Cir. 2001). We review the ALJ’s application of the
law de novo, see Mounsour Med. Ctr. v. Heckler, 806 F.2d
1185, 1191 (3d Cir. 1986), and review the ALJ’s factual
findings for substantial evidence, see 42 U.S.C. 405(g);
Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992).

        The Social Security Administration has promulgated a
five-step process to determine whether an applicant is entitled
to benefits. 20 C.F.R. §§ 404.1520, 416.920. First, the
Commissioner must determine whether the claimant has
engaged in substantial gainful activity since his alleged
disability onset date. Id. §§ 404.1520(b), 416.920(b). If not,
the Commissioner next determines whether the claimant has
an impairment or combination of impairments that is severe.
Id. §§ 404.1520(c), 416.920(c). If the claimant has a severe
impairment, the Commissioner considers whether the
impairment meets the criteria of an impairment listed in
Appendix 1 of 20 C.F.R. part 404, subpart P (the “Listings”)
or is equal to a listed impairment. If so, the claimant is
automatically eligible for benefits; if not, the Commissioner
proceeds to step four. Id. §§ 404.1520(d), 416.920(d). In step
four, the Commissioner determines whether, despite the
severe impairment, the claimant retains the residual functional
capacity to perform his past relevant work. Id. §§
404.1520(e), (f), 416.920(e), (f). The claimant bears the
ultimate burden of establishing steps one through four.
Ramirez v. Barnhart, 372 F.3d 546, 550 (3d Cir. 2004). At
step five, the burden of proof shifts to the Social Security
Administration to show that the claimant is capable of
performing other jobs existing in significant numbers in the
national economy, considering the claimant’s age, education,
work experience, and residual functional capacity. Id. at 551.

       In the instant case, the ALJ first determined that
Appellant’s prior work attempts were too brief to constitute
“substantial gainful activity,” and thus that a finding of
disability was not precluded. (R. at 18.) In step two, the ALJ
found that Appellant’s “combination of obesity, hypertension

                              6
and right knee medial meniscus damage has been ‘severe,’
under the regulatory definition of the term, since at least
1995.” (R. at 20.) However, the ALJ concluded that
Appellant’s EKG abnormalities, pulmonary disease, ear
infections, upper respiratory infections, spinal abnormalities
and neurological impairment were not severe. (R. at 26.) In
step three, the ALJ held that Appellant had no impairment or
combination of impairments meeting the criteria of any of the
Listings. (R. at 26.) In step four, the ALJ determined that
Appellant’s past work could not be considered relevant
because he had never worked long enough to master any
occupation. (R. at 26.)

        After moving through the first four steps of the
process, the ALJ concluded at step five that Appellant was not
disabled. Using the Medical-Vocational Guidelines from 20
C.F.R. part 404, subpart P, Appendix 2 (the “Guidelines”), the
ALJ determined that Appellant’s maximum sustained
exertional capability with respect to lifting and carrying was
for medium work. (R. at 25.) However, the ALJ determined
that Appellant’s occupational base was “markedly eroded by
his limitation on standing, walking, and stooping.” (R. at 25.)
Therefore, the ALJ found a maximum sustained exertional
capacity for sedentary work. (R. at 25.) Based on this
exertional capability, as well as on Appellant’s age,
education, and lack of relevant work experience, the ALJ,
applying Medical-Vocational Rule 201.27 “as a framework
for decisionmaking,” found that Appellant was not disabled.
(R. at 27.)

        On appeal, Appellant argues that the ALJ erred at three
steps of the process: in step two, the ALJ erred by concluding
that Appellant’s neurological impairment was not severe; in
step three, the ALJ erred by failing to find Appellant’s
combination of impairments equivalent to one of the listed
impairments; and in step five, the ALJ erred by relying on the
Guidelines to find that Appellant was not disabled. For the
reasons discussed below, we conclude that the ALJ properly
conducted steps two and three of the process, but that he erred
in step five by relying on the Guidelines in the presence of
Appellant’s nonexertional limitations.

                              7
            In step two, the ALJ found that Appellant’s alleged
    mental impairment was not severe because “[a]ny limitations
    on [Appellant’s] activities of daily living and social
    functioning are not attributable to mental/neurological
    impairment, considering the wide range of activities in which
    he engage[s] and his pleasant, cooperative behavior.” (R. at
    25.) Appellant argues that the ALJ’s finding was erroneous
    because Appellant has severe deficits in perceptual
    organization and problems with sustained attention and motor
    skills.

            We agree with the district court that the ALJ’s step two
    finding is supported by substantial evidence. While a
    psychologist did indicate that the twenty-four-point difference
    between Appellant’s verbal I.Q. and performance I.Q. is
    consistent with neurological impairment, Appellant’s full-
    scale I.Q. of ninety-eight is solidly within the average range.
    The state agency psychologist who reviewed the medical
    evidence concluded that Appellant has only a mild
    impairment in concentration and that his mental impairment is
    not severe within the meaning of the Social Security Act.2 As
    the ALJ noted, Appellant “graduated from high school
    without significant repetition of grades and with minimal
    academic support,” and he “is able to work on a computer
    recreationally, to follow programs on the history channel, to
    write legibly and to communicate orally in an insightful way.”
    (R. at 25.) After reviewing the record, we conclude that this
    substantial evidence supports the ALJ’s finding that
    Appellant’s neurological impairment is not severe.

           Appellant asserts that the ALJ did not properly
    consider whether Appellant’s combination of impairments
    was equivalent to one of the Listings and did not properly
    evaluate the effect of obesity on Appellant’s other

2

     State agency physicians and psychologists are considered to
    be “highly qualified physicians and psychologists who are
    also experts in Social Security disability evaluation,” and the
    ALJ must consider their findings as opinion evidence. 20
    C.F.R. §§ 404.1527(f), 416.927(f).
                                   8
    impairments. Appellant also argues that the ALJ “apparently
    misunderstood the medical evidence and severity of
    [Appellant’s] conditions.” (Appellant’s Br. at 20.) Appellant
    argues, citing to Burnett v. Commissioner of Social Security
    Administration, 220 F.3d 112 (3d Cir. 2000), that the ALJ’s
    failure to fully discuss and apply the Listings in step three is
    clear error. We note that Appellant does not argue that the
    ALJ should have applied a different Listing, nor does he point
    to specific evidence ignored by the ALJ that would indicate
    that Appellant’s impairments are equivalent to one of the
    Listings the ALJ identified. The only Listing Appellant
    points to is former Listing 9.09 on Obesity, which had been
    rescinded before Appellant filed his claim.

            An ALJ must provide a sufficient framework of
    reasoning for a court to conduct “meaningful judicial review”
    of the ALJ’s decision. Burnett, 220 F.3d at 119. In Burnett,
    the ALJ only set forth a conclusion that the claimant’s
    impairment did not meet the level of severity of any of the
    listed impairments. Here, in contrast, the ALJ issued the step
    three finding only after reviewing all of the objective medical
    evidence, including evidence of Appellant’s obesity, and
    explicitly stating which Listings he was considering. We
    conclude that this analysis satisfies the requirements of
    Burnett. Furthermore, after reviewing the record, we
    conclude that the ALJ’s step three decision is supported by
    substantial evidence.

           Appellant asserts that the ALJ erred in step five by
    using the Guidelines to find that Appellant was not disabled.
    Although the ALJ determined that Appellant had both
    exertional and nonexertional limitations,3 the ALJ

3

     The Social Security regulations state that the limitations and
    restrictions imposed by a claimant’s impairments and related
    symptoms may be exertional, nonexertional, or a combination
    of both. 20 C.F.R. § 404.1569a. Exertional limitations relate
    to the strength demands of jobs, in terms of sitting, standing,
    walking, lifting, carrying, pushing, and pulling. Id. All other
    limitations affecting the claimant’s ability to meet the
                                   9
    subsequently concluded, without reference to any vocational
    evidence, that Appellant’s exertional and nonexertional
    limitations did not “significantly compromise[]” the sedentary
    occupational base, and thus that the Guidelines could be
    applied to deny Appellant’s claim. (R. at 27.) We agree with
    Appellant that the ALJ erred in so doing.

           The ALJ’s reliance on the Guidelines in the presence
    of Appellant’s nonexertional limitations constitutes reversible
    error under Sykes v. Apfel, 228 F.3d 259 (3d Cir. 2000). In
    Sykes, the Social Security Administration made the same
    argument that it makes on appeal here: that “the Medical-
    Vocational guidelines can be relied on in the presence of a
    nonexertional limitation, so long as the limitation does not
    significantly diminish the range of work that could otherwise
    be exertionally possible.” (Appellee’s Br. at 25); cf. Sykes,
    228 F.3d at 266. We squarely rejected this argument in Sykes:

           “[I]n the absence of a rulemaking establishing the fact
           of an undiminished occupational base, the
           Commissioner cannot determine that a claimant’s
           nonexertional impairments do not significantly erode
           his occupational base under the medical-vocational
           guidelines without either taking additional vocational
           evidence establishing as much or providing notice to
           the claimant of his intention to take official notice of
           this fact (and providing the claimant with an
           opportunity to counter the conclusion).

    Sykes, 228 F.3d at 261.4



    demands of jobs are classified as nonexertional. Id.
4

     Despite Appellee’s wishes to the contrary, the Second
    Circuit’s approach in Bapp v. Bowen, 802 F.2d 601 (2d Cir.
    1986), is not the law in this circuit. We advise Appellee to
    review our decision in Sykes and the Social Security
    Administration’s Acquiescence Ruling 01-1(3) before
    addressing this issue in the future.
                                  10
            Our recent decision in Allen v. Barnhart, 417 F.3d 396
    (3d Cir. 2005), is not to the contrary. In Allen, the ALJ
    “specifically referred” to a Social Security Ruling (“SSR”)
    “address[ing] the precise issue” presented in that case. Id. at
    403-04. We held that “if the Secretary wishes to rely on an
    SSR as a replacement for a vocational expert, it must be
    crystal-clear that the SSR is probative as to the way in which
    the nonexertional limitations impact the ability to work, and
    thus, the occupational base.” Id. at 407. In the instant case,
    the ALJ referred only to SSR 83-10 and SSR 85-15. These
    Rulings do not address several of the nonexertional
    limitations found by the ALJ, such as Appellant’s inability to
    shift rapidly between positions or locations, his limitations on
    the performance of perceptual-motor tasks, and his limitation
    in the use of certain chairs.5

           We are particularly concerned with the ALJ’s
    treatment of Appellant’s limitation as to the kinds of chairs in
    which he can sit. The ALJ summarily concluded that
    Appellant’s “inability to use chairs that are not designed to
    support his weight would not significantly erode the sedentary
    occupational base since sturdy chairs are typically readily
    available in settings where sedentary work is done.” (R. at
    26.) The ALJ did not take or produce vocational evidence
    regarding this disputed issue, nor did he properly follow the
    steps for taking official notice. See Sykes, 228 F.3d at 261.
    The record contains no evidence supporting the ALJ’s
    conclusion. In fact, the only evidence on the record
    concerning this issue is Appellant’s assertion that he breaks
    chairs because of his weight. So far as we can see from the
    record, the ALJ’s conclusion is based solely on his own
    opinion. This lack of supporting evidence highlights why we
    require an ALJ either to take vocational evidence or to follow
    the proper steps to take official notice, providing the claimant
    with an opportunity to see the evidence on which the ALJ


5

    On remand, the ALJ should also consider whether
    Appellant’s obesity itself is a nonexertional limitation. See
    Lucy v. Chater, 113 F.3d 905 (8th Cir. 1997).
                                  11
relies and with an opportunity to challenge the ALJ’s
conclusion. See Sykes, 228 F.3d at 273.

       Because the record is not fully developed, we will
remand the case for further proceedings in accordance with
this opinion. See Newell v. Comm’r of Soc. Sec., 347 F.3d
541, 549 (3d. Cir. 2003). We remind the ALJ that it is his
duty to develop the record. See Ventura v. Shalala, 55 F.3d
900, 902 (3d Cir. 1995). We further remind the ALJ that,
under the Supreme Court’s decision in Cleveland v. Policy
Management Systems Corp., 526 U.S. 795, 803 (1999), he is
not entitled to consider potential accommodation by
employers in determining the availability of jobs in the
national economy that Appellant can perform.

CONCLUSION

      In light of the foregoing, we will reverse the District
Court’s order and remand to the District Court with directions
to remand the matter to the Commissioner for further
proceedings consistent with this opinion.




                             12
