                                                                                                                           Opinions of the United
1995 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-6-1995

Jesurum vs. HHS
Precedential or Non-Precedential:

Docket 94-5398




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         UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT

                   ------------

                   No. 94-5398

                   ------------

                  GISELA JESURUM

                                   Appellant

                        v.

        SECRETARY OF THE UNITED STATES
     DEPARTMENT OF HEALTH & HUMAN SERVICES

                   ------------

On Appeal from the United States District Court
        for the District of New Jersey
           (D.C. Civil No. 92-02566)

                   ------------

  Submitted Under Third Circuit LAR 34.1(a)
         Wednesday, January 25, 1995


PANEL:   BECKER, LEWIS and GARTH, Circuit Judges

                   -----------

         (Opinion filed February 6, 1995)

                                   Abraham S. Alter
                                   Langton & Alter
                                   2096 St. Georges Avenue
                                   P.O. Box 1798
                                   Rahway, New Jersey 07065

                                   Attorney for Appellant
                                          Anthony J. LaBruna, Jr.
                                          Office of United States
                                             Attorney
                                          970 Broad Street
                                          Room 502
                                          Newark, New Jersey 07102

                                          Attorney for Appellee

                            -----------

                        OPINION OF THE COURT

                            -----------



GARTH, Circuit Judge:


           Gisela Jesurum seeks review of the district court's May

6, 1994 order which affirmed the Secretary of Health and Human

Services' denial of her claim for Supplemental Security Income

Benefits ("disability benefits").   The district court had

jurisdiction to review the final order of the Social Security

Administration Administrative Law Judge ("ALJ") pursuant to 42

U.S.C. § 405(g).    We have jurisdiction over the district court's

order, affirming the Secretary's decision, pursuant to 28 U.S.C.

§ 1291.   Because we find that the record cannot justify the ALJ's

finding that Jesurum could perform the full range of light work,

as defined by the Secretary, we will reverse and remand for

further proceedings to determine whether Jesurum is capable of

performing work or is capable of engaging in any substantial

gainful activity.
                                  I.

             Jesurum, age 45, is a native of the Dominican Republic

with an eighth grade education and limited English language

skills.    She presently lives in Elizabeth, New Jersey with her

son (age 17), two daughters (age 15 and 12) and granddaughter

(age 2).    She does not have a driver's license and was last

employed in 1971 as a sewing machine operator.     Jesurum left that

position at the birth of her first child.     Since then, she has

received AFDC, food stamps and Medicaid to assist with living

expenses.

             On March 8, 1990, Jesurum filed an application for

disability benefits on account of an allegedly disabling back

condition.    The Social Security Administration denied her claim

initially and again on reconsideration.     Jesurum requested a

hearing before an Administrative Law Judge.

             At a hearing on November 15, 1990, the ALJ found that

Jesurum could perform the full range of light work and thus

denied her benefits pursuant to Rule 202.16 of Table 2, Appendix

2, 20 CFR § 202.    On April 16, 1992, the Appeals Council denied

further review, thereby entering the Secretary's final decision.

             Jesurum appealed the Secretary's determination to the

district court.    On May 6, 1994, the district court concluded

that the ALJ's determination was supported by substantial

evidence and affirmed the Secretary's denial.     Among other

things, the district court approved the ALJ's finding that

Jesurum could lift and/or carry up to 20 pounds and could sit for

four hours of an eight hour day for 15-20 minutes at a time.      He
apparently accepted Dr. Miranda's (Jesurum's physician's)

conclusion that Jesurum should be trained for sedentary work,

just as he accepted the ALJ's finding that Jesurum's back pains

were not incapacitating and that she could perform the full range

of light work.



                               II.

          When reviewing the Secretary's denial of disability

benefits, we are limited to a determination whether the

Secretary's denial is supported by substantial evidence.       Brown

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

evidence is "such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion."    Richardson v.

Perales, 402 U.S. 389, 401 (1971).    It is less than a

preponderance of the evidence but more than a mere scintilla.

Id.

          To receive disability benefits, claimants must

demonstrate that they are 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 12 months."    42 U.S.C.A. § 423(d)(1)(A)

(1991).   The Secretary uses a five step process to determine if a

person is eligible for Supplemental Security Income benefits.       In

the first two steps, the claimant must establish (1) that she is

not engaged in "substantial gainful activity" and (2) that she

suffers from a severe medical impairment.    Bowen v. Yuckert, 482
U.S. 137, 140-41 (1987).    If the claimant shows a severe medical

impairment, the Secretary determines (3) whether the impairment

is equivalent to an impairment listed by the Secretary as

creating a presumption of disability.    Id. at 141.   If it is not,

the claimant bears the burden of showing (4) that the impairment

prevents her from performing the work that she has performed in

the past.   Id.   If the claimant satisfies this burden, the

Secretary must grant the claimant benefits unless the Secretary

can demonstrate (5) that there are jobs in the national economy

that the claimant can perform.    Ferguson v. Schweiker, 765 F.2d

31, 37 (3d Cir. 1985).    When the claimant's residual functioning

capacity fits within the definitions promulgated in Department of

Health and Human Service regulations, the Secretary can meet her

burden of demonstrating that work exists for the claimant in the

national economy by reference to tables promulgated by

administrative rulemaking (the "grids").   Heckler v. Campbell,

461 U.S. 458, 468-70 (1983).

            Jesurum's condition did not qualify as one of the

listed impairments which would automatically make her eligible

for benefits, but she showed that her condition prevented her

from undertaking any prior work.    Thus, her eligibility turned on

the Secretary's ability to show that work existed for her in the

national economy.



                                 III.

            Jesurum complained of disabling lower back pain,

resulting from degenerative osteoarthritis of the lumbar
vertebrae of the lower back.   The record reflects at least three

accidents, one fall and two car accidents, which created or

exacerbated her back condition.   She contended that her condition

prevented her from lifting much other than bread and from doing

housework or other light labor.   She testified that she could not

walk for extended periods without difficulty and pain.    In light

of her middle age, minimal education, and lack of work

experience, she claimed that these symptoms make her disabled.

She offered the following medical evidence to support her claim.

          A February 1990 CT scan showed minimal disc space

bulging and minimal joint degenerative change at the edges

between the third and fourth and between the fourth and fifth

lumbar vertebrae.   There was no evidence of disc herniation.

Three months of physical therapy, prescribed by her treating

physician between March and June, indicated persistent lower back

pain and left knee pain, which responded slowly, if at all, to

physical therapy.   In August 1990, her chiropractor placed her on

disability for a period of two months from August 10, 1990 to

October 10, 1990.

          In September 1990, Jesurum was examined by a board

certified orthopedist, Dr. Miranda.   Based on an examination in

which Jesurum showed tenderness in the groin and lower back and

difficulty in climbing onto the examination table, Miranda

diagnosed Jesurum as having chronic lumbosacral sprain,

inflammation of the spinal cord around the neck, and chronic

cervical sprain.    He concluded that Jesurum could lift and carry

15-20 pounds for one third of an eight hour day, could stand and
walk, and could sit for four hours in an eight hour day in

intervals of approximately 15-20 minutes at a time.     She could

not balance objects, crouch, crawl, or push or pull objects.        Dr.

Miranda recommended that Jesurum be trained for "sedentary work

avoiding lower back aggravation."      Record at 103; see also note 2

infra.   Dr. Miranda's conclusion was consistent with the

conclusions of Dr. Munoz, Jesurum's treating physician, who

opined that Jesurum had degenerative osteoarthritis of the

lumbosacral spine with radiculitis for which he presribed

medication and regular treatment.      App. 75, 105.

           The ALJ pointed to other medical evidence that he

believed offset her claims of disability.      A May 1990 radiology

report of an X-ray of Jesurum's lower back stated that she had

normal lower vertebrae, normal alignment, and a normal joint at

the hip.   Dr. Miranda found that Jesurum had a normal gait, could

squat, stand on her heels and toes, and had a normal range of

movement in her arms and feet.    Further, the ALJ noted that

Jesurum had not taken any of the Codeine prescribed for her by

one of her doctors eight days prior to the hearing.      Jesurum

claimed that she does not take the pain killer often because it

aggravates her diagnosed stomach condition.      As a result, her

physician recommended that she take the Codeine only when

necessary.   Finally, the ALJ noted that she had traveled to

Providence, Rhode Island two years prior to the hearing.



                                 IV.
          Based on this evidence and Dr. Miranda's determination

that Jesurum could sit intermittently for four hours of an eight

hour day and lift up to twenty pounds, the ALJ found that Jesurum

could perform the full range of "light work" as defined in 20

U.S.C. 416.967(b).   Applying Rule 202.16 of Table 2, Appendix 2,

Subpart P of 20 CFR part 404 (the "grid"), the ALJ's findings

regarding her ability to perform light work, her age, work

experience, and education level required a finding under the grid

that Jesurum was not disabled.

          Our review of the evidence presented reveals that the

record was critically deficient of facts which could support a

determination that Jesurum could perform the full range of light

work as defined by the Secretary.   Accordingly, use of the grid

was inappropriate and the case will have to be remanded for a

determination, without use of the grids, that work exists for

Jesurum in the national economy.

          Dr. Miranda was the physician most qualified to

evaluate Jesurum's back condition and gave the most explicit

statement of her residual functioning capacity.   No evaluation of

a prior doctor and no prior radiology or other diagnostic report

suggests anything which conflicts with Dr. Miranda's

determinations.   Nor do the other examinations provide sufficient

evidence to justify a finding that Jesurum's residual capacity

exceeded those limits recommended by Dr. Miranda.1

    1   The only other medical evidence which might support an
extension in Jesurum's functioning capacity beyond Dr. Miranda's
prescribed limits was the May radiology report of an X-ray of
Jesurum's spine. While this report showed normal vertebrae, X-
            Jesurum's testimonial evidence also does not suggest

any expansion in Jesurum's residual work capacity.     Jesurum

testified to experiencing frequent and debilitating pain which

made her unable to lift more than eight to ten pounds.     The ALJ

was required to consider these subjective complaints seriously,

even if they were not fully confirmed by object medical evidence.

Smith v. Califano, 637 F.2d 968, 972 (3d Cir. 1981).    Here, in

fact, the medical evidence supports her claim of lower back pain,

even if not to the extent of the complaints in her testimony.

Second, her trip to Rhode Island two years prior to the hearing

is a type of sporadic and transitory activity that cannot be used

to show an ability to engage continuously in substantial gainful

activity.    Nelson v. Bowen, 882 F.2d 45, 48 (2d Cir. 1989).

Thus, the trip does not undermine the limitations defined by Dr.

Miranda.     Finally, while a patient's failure consistently to use

prescribed pain medication may undermine the patient's claims of

debilitating pain, see Williams v. Bowen, 790 F.2d 713, 715 (8th

Cir. 1986), Jesurum's reluctance to take Codeine would not

support a finding that Jesurum could perform light work when her

prescribing physician's recommendations are consistent with her

failure to take the medication so as to avoid aggravating her

gastritis.



rays give a less accurate picture of soft tissue abnormalities,
such as those suffered by Jesurum. See Mosby's Medical, Nursing,
& Allied Health Dictionary 374 (4th ed. 1994). Thus, the report
does not justify disregarding the earlier CT scan results and Dr.
Miranda's evaluation which disclosed significant back problems.
             Accordingly, whether substantial evidence exists to

support the ALJ's determination depends on whether Dr. Miranda's

evaluation justifies a determination that Jesurum could perform a

full range of "light work" as defined by the Secretary.      20

C.F.R. § 416.967(b) defines "light work" in the following terms:
          Light work involves lifting no more than 20
          pounds at a time with frequent lifting and
          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.


             The Secretary has indicated that her definition is

equivalent to the Department of Labor's definition of light work

in the Dictionary of Occupational Titles ("DOT").    See 20 C.F.R.

§ 416.967.     The DOT defines light work as:
             Exerting up to 20 pounds of force
             occasionally, and/or up to 10 pounds of force
             frequently, and/or a negligible amount of
             force constantly (Constantly: activity or
             condition exists 2/3 or more of the time) to
             move objects. Physical demand requirement
             are in excess of those for Sedentary Work.
             Even though the weight lifted may be only a
             negligible amount, a job should be rated
             Light Work: (1) when it requires walking or
             standing to a significant degree; or (2) when
             it requires sitting most of the time but
             entails pushing and/or pulling of arm and leg
             controls; and/or (3) when the job requires
             working at a production rate pace entailing
          the constant pushing and/or pulling of
          materials even if the weight of those
          materials is negligible. NOTE: The constant
          stress and strain of maintaining a production
          rate pace, especially in an industrial
          setting, can be and is physically demanding
          of a worker even though the amount of force
          exerted is negligible.


2 Department of Labor, Dictionary of Occupational Titles 1013

(4th ed. 1991).   The Secretary has further explained this

definition in Social Security Ruling 83-10 by stating that light

work generally requires the ability to stand and carry weight for

approximately six hours of an eight hour day.     Social Security

Ruling 83-10 reprinted in 1983-1991 West's Social Security
Reporting Service 29 (1992) [hereinafter Soc. Sec. Ruling 83-10].

          The ALJ can judge the availability of work in the

national economy for the applicant using the "grid" if the

claimant can perform "substantially all" of the tasks required

for "light work" and "sedentary work" but cannot perform

"substantially all" the tasks of "medium work."    See 20 CFR part

404, subpart P, Appendix 2, Rule 200.00(d); Thompson v. Sullivan,

987 F.2d 1482, 1488 (10th Cir. 1993); Walker v. Bowen, 826 F.2d

996, 1002-03 (11th Cir. 1987); Soc. Sec. Ruling 83-10 at 26, 30;

Social Security Ruling 83-11 reprinted in 1983-1991 West Social

Security Reporting Service 34 (1992) [hereinafter Soc. Sec.

Ruling 83-11].

          Dr. Miranda's report cannot justify a conclusion that

Jesurum is capable of performing substantially all of the defined

tasks required to meet the light work standard.    Dr. Miranda

stated Jesurum could lift approximately 15-20 pounds for only one
third of an eight hour day.   However, the Secretary's definition

requires the ability to stand, walk, lift, and/or carry objects

of at least 10 pounds for approximately six hours of an eight

hour day.    Soc. Sec. Ruling 83-10 at 29.   Dr. Miranda further

stated that Jesurum's medical condition prevented her from

pushing or pulling as a part of her work.    Pushing and pulling

objects or levers, either in a seated or standing position, is a

prerequisite to much light work.    Id. at 29; 20 CFR 416.967(b); 2

Department of Labor, Dictionary of Occupation Titles 1013 (4th

ed. 1991).   Finally, Dr. Miranda limited Jesurum's ability to sit

to four hours of a work day at intervals of fifteen to twenty

minutes.    While light work does not require sitting so much as

the ability to stand or work at a table, the Secretary has

recognized that an inability to remain in either a sitting or

standing position for the majority of the workday makes it

inappropriate to categorize the applicant as capable of doing

either sedentary or light work.    In Social Security Ruling 83-12,

the Secretary wrote:
          The individual may be able to sit for a time,
          but must then get up and stand or walk for
          awhile before returning to sitting. Such an
          individual is not functionally capable of
          doing either the prolonged sitting
          contemplated in the definition of sedentary
          work (and for the relatively few light jobs
          which are performed primarily in a seated
          position) or the prolonged standing or
          walking contemplated for most light work.
          (Persons who can adjust to any need to vary
          sitting and standing by doing so at breaks,
          lunch periods, etc. would still be able to
          perform a defined range of work).
               There are some jobs in the national
          economy -- typically professional and
          managerial ones -- in which a person can sit
          or stand with a degree of choice. . . .
          However, most jobs have ongoing work
          processes which demand that a worker be in a
          certain place or posture for at least a
          certain length of time to accomplish a
          certain task. Unskilled types of jobs are
          particularly structured so that a person
          cannot sit or stand at will.


Social Security Ruling 83-12 reprinted in 1983-1991 West's Social

Security Reporting Service 39-40 (1992) [hereinafter Soc. Sec.

Ruling 83-12].

          The Courts of Appeals have recognized that it is

inappropriate to apply the grids to determine the eligibility of

the claimant for jobs in the national economy under facts similar

to those present here.    Two courts have reversed the Secretary's

denials, based on a finding that the claimant could perform light

work, when the claimant had to alternate between sitting and

standing throughout the day.   Gibson v. Heckler, 762 F.2d 1516,

1521 (11th Cir. 1985) (use of the grids was inappropriate where

claimant could not sit or stand for more than four hours at a

time); Wages v. Secretary of Health & Human Services, 755 F.2d

495, 497-98 (6th Cir. 1985) (use of the grids inappropriate where

claimant needed to sit or stand alternately as necessary

throughout the day).

          We have also identified three cases which reject the

Secretary's finding that a claimant can do light work in the face

of nearly identical weight bearing and sitting limitations as

those faced by Jesurum.   White v. Secretary of Health and Human
Services, 910 F.2d 64, 66 (2d Cir. 1990) (government lacked

substantial evidence that claimant could do light work when,

though claimant could lift twenty pounds occasionally, he could

sit for only four hours in an eight hour day -- two to three

hours without interruption -- and could not push or pull);

Strunkard v. Secretary of Heath and Human Services, 841 F.2d 57,

61 (3d Cir. 1988) (evidence that claimant could only sit for

three hours, could not push or pull, and could only stand for

three hours could not justify a finding that the claimant was

capable of doing light work); Jennings v. Bowen, 703 F. Supp.

833, 836, 840 (D. Ariz. 1988) (government lacked substantial

evidence to show that the claimant could do light work when

claimant could only occasionally lift 10-20 pounds, could sit for

only fifteen minutes without interruption for up to four hours,

and had a limited ability to walk for extended periods).

          We, like these courts, do not believe that Jesurum's

limitations, as demonstrated by the medical record, can support a

conclusion that she could perform the full range of light work.2

Accordingly, use of the grids, here Table 2, to determine whether
    2
       Dr. Miranda recommended that Jesurum be trained for
"sedentary work avoiding lower back aggravation." In making this
evaluation, Dr. Miranda did not intend the legal definition of
"sedentary" used by the Secretary. Rather, he intended the more
pervasive use of the word -- "characterized by or requiring
sitting or slight activity." Webster's Third International New
World Dictionary 2054 (unabridged ed. 1966). Jesurum could not
perform "sedentary" work, as legally defined, because sedentary
work requires the ability to sit for at least six hours of an
eight hour day. Soc. Sec. Ruling 83-10 at 26. We note that the
inability to do sedentary work may itself be grounds for
reversing a determination that a claimant can do light work.
Walker v. Bowen, 826 F.2d 996, 1003 (11th Cir. 1987).
substantial work existed for her in the economy was

inappropriate.    20 CFR part 404, Subpart P, Appendix 2,

Rule 200.00(d).    Because the ALJ relied exclusively on the grids

in arriving at his determination that Jesurum was not disabled,

we must reverse the decision.



                                 V.

          Having determined that the Secretary's decision must be

reversed, we must determine whether it is appropriate to remand

this case or to direct the payment of benefits.    While it was

improper to apply the grids in this case, the statute permits the

Secretary to prove that the claimant is capable of performing

other jobs in the national economy through other methods.

Preferably, this is done through the testimony of a vocational

expert.   Adorno v. Shalala, Secretary of Heath and Human

Services, slip op. at 8 (3d Cir. Nov. 9, 1994); Walker v. Bowen,

826 F.2d 996, 1003 (11th Cir. 1987).   To give the Secretary this

opportunity, it is appropriate to return this case for further

proceedings.



                                VI.

          For the foregoing reasons, the order of the district

court will be reversed with directions to the district court to

remand this case to the Secretary for further proceedings

consistent with this opinion.
