                                                                                                                           Opinions of the United
2002 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-5-2002

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Precedential or Non-Precedential:

Docket 1-2541




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Recommended Citation
"Green v. Comm Social Security" (2002). 2002 Decisions. Paper 105.
http://digitalcommons.law.villanova.edu/thirdcircuit_2002/105


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                                        REPORTED - NOT PRECEDENTIAL

                THE UNITED STATES COURT OF APPEALS
                      FOR THE THIRD CIRCUIT

                              ___________

                              No. 01-2541
                              ___________

                         ALBERT D. GREEN,

                                      Appellant
                                 v.

       JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY
                           ___________


         ON APPEAL FROM THE UNITED STATES DISTRICT COURT
             FOR THE EASTERN DISTRICT OF PENNSYLVANIA

                   (D.C. Civil No. 00-cv-00487)
       District Judge: The Honorable William H. Yohn, Jr.

                              ___________

            Submitted Under Third Circuit LAR 34.1(a)
                         January 22, 2002

         BEFORE: NYGAARD and STAPLETON, Circuit Judges,
                   and CAPUTO, District Judge.


                    (Filed:    February 5, 2002)

                              ___________

                       OPINION OF THE COURT
                           ___________


NYGAARD, Circuit Judge.
    Appellant, Albert D. Green, appeals from an order of the District
Court granting
summary judgment in favor of the Commissioner of the Social Security
Administration,
alleging as error the issues listed in paragraph I, taken verbatim from
Appellant's brief.
Because we conclude that the Commissioner's finding that Green has a
marginal
education is not supported by substantial evidence, and because the
Commissioner failed
to make a finding whether Green is illiterate, we will reverse and remand.
                                I.
     The allegations of error asserted by Appellant are as follows:
              1.   Is the Commissioner's finding that Mr. Green has a
marginal education, and
          his failure to make a finding whether Mr. Green is illiterate,
supported by
          substantial evidence and does it represent a reversible error of
law?

             2.   Did the Commissioner commit a reversible error of law by
failing to
         provide for the testimony at the hearing of a medical expert to
evaluate
         whether Mr. Green's heart disease met or equaled Listing 4.02 of
the
         Listing of Impairments?

             3.   Is the Commissioner's finding that Mr. Green has the
residual functional
         capacity to perform a limited range of sedentary work and can
perform jobs
         such as order clerk and system surveillance monitor supported by
         substantial evidence?

             4.    Is the Commissioner's finding that Mr. Green's
allegations of subjective
         symptoms and limitations arising therefrom are generally
credible, but only
         to the extent that he is limited to performing a reduced range of
sedentary
         work activity, supported by substantial evidence?

                              II.
    The facts and procedural history of this case are well known to the
parties and the
court. We see no reason to restate them here. Relevant to our decision
is the
Commissioner's Finding No. 10 that "[t]he claimant has a 'marginal' sixth
grade
education." (Tr. 19). Under the Social Security Regulations, one of the
vocational
factors used to determine whether a claimant can obtain substantially
gainful employment
is the claimant's educational level. 20 C.F.R.    404.1564. The
Commissioner uses the
following mutually-exclusive categories for describing the claimant's
educational level:
(1) illiteracy; (2) marginal education; (3) limited education; (4) high
school education and
above. Id.
    In this case, the Commissioner found that Green had a marginal
education, despite
substantial evidence that Green was, in fact, illiterate. In particular,
Green testified at his
hearing that he cannot read a newspaper. (Tr. 41). It appears that the
Commissioner
relied solely upon Green's formal education in deciding that Green had a
marginal
education. Green testified that he left school in the seventh grade, thus
having completed
the sixth grade. (Tr. 40-41). The Regulations define "marginal
education" as:
          Marginal education means ability in reasoning, arithmetic,
          and language skills 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.

20 C.F.R.    404.1564(b)(2). However, one's completion of the sixth grade
is not
conclusive evidence that one has a marginal education. The Regulations
themselves
require that only "if there is no other evidence to contradict it, we will
use your numerical
grade level to determine your educational abilities." 20 C.F.R.
404.1564(b). In Green's
case, there is evidence to contradict a presumption that Green's
completion of the sixth
grade means that he has a marginal education, so the Commissioner needs to
consider the
evidence that Green is illiterate and make a finding in that regard.
    On appeal, the Commissioner points to evidence which he argues is
sufficient to
sustain his decision. We disagree. The Commissioner reminds us that
Green reported he
had an eighth-grade education, and later testified he had a sixth-grade
education. The
Commissioner argues this "is a marginal education." Again, we emphasize
that a
claimant's grade level should be used to determine the claimant's level of
education only
when "there is no other evidence to contradict it." 20 C.F.R.    414.1564
(emphasis
added). It certainly was not the case here that there was no other
evidence to contradict a
presumption that Green's sixth-grade education meant that he had a
marginal education.
Green testified that he could not read, and the Commissioner failed to
explain his decision
in light of that testimony. On appeal, the Commissioner calls Green's
testimony a
"subjective statement," but we remind the Commissioner that proceedings
for Social
Security benefits are non-adversarial, see Sullivan v. Hudson, 490 U.S.
877, 891 (1989),
and if the Commissioner had doubts about Green's testimony because it was
"subjective,"
he could have easily resolved those doubts by administering an "objective"
test, such as
asking Green to read a brief passage and to write a short note.
     The Commissioner also argues on appeal that Green's past work history
as a
grocery store owner and operator contradicts a finding of anything less
than a marginal
education. But the Commissioner mischaracterizes the evidence. He argues
that "Green
stated that his tasks included writing, completing reports, or performing
similar duties."
But the "Disability Report" cited in support is inconclusive. In response
to the question,
"In your job did you: Do any writing, complete reports, or perform similar
duties?" Green
checked the "Yes" box. (Tr. 91). His "yes" answer may refer to the
"perform similar
duties" part of the question and does not necessarily mean Green is
literate. The
Commissioner also points to Green's statements that he kept records and
made grocery
orders. But Green's full statement was, "I used an electric saw, slicer,
cash register. I
had to keep record of receipts for accountant, grocery orders (thing
neeeded [sic] for the
store). I had two people that worked for me." (Tr. 91). This is not
proof that Green is
literate. One can keep records and make orders without being able to read
and write.
Indeed, Green testified that he "remeberized [sic] things" and that his
mother helped him.
(Tr. 42).
     We hold that there is not substantial evidence on the record to
support the
Commissioner's finding that Green had a marginal education. We will
remand for
reconsideration of that finding, as well as for a specific finding as to
whether Green is
literate. Furthermore, in light of our disposition, the Commissioner may
find it necessary
to reconsider his finding that Green's transferability of skills is not a
factor.
                               III.
     In sum, and for the foregoing reasons, we will reverse the order of
the District
Court dated the 28th day of February, 2001, and entered on the docket
March 5, 2001, and
will remand with instructions to return this matter to the Commissioner
for further
proceedings consistent with this opinion. We affirm as to the Appellant's
other
allegations of error.
_________________________
TO THE CLERK:

    Please file the foregoing opinion.


                            /s/ Richard L. Nygaard
                                Circuit Judge
