                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-24-2004

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Precedential or Non-Precedential: Non-Precedential

Docket No. 04-2483




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                                                               NOT PRECEDENTIAL


                 IN THE UNITED STATES COURT OF APPEALS
                          FOR THE THIRD CIRCUIT


                                    NO. 04-2483


                              CAPRICE LAMANNA,
                                   Appellant

                                         v.

                    COMM ISSIONER OF SOCIAL SECURITY




                         On Appeal From the United States
                    District Court For the District of New Jersey
                        (D.C. Civil Action No. 01-cv-02616)
                       District Judge: Hon. William H. Walls


                             Argued November 2, 2004

           BEFORE: ALITO, FUENTES and STAPLETON, Circuit Judges

                        (Opinion Filed November 24, 2004)




Abraham S. Alter (Argued)
Langton & Alter
2096 St. Georges Avenue
P.O. Box 1798
Rahway, NJ 07065
 Attorney for Appellant
Ellen Sovern (Argued)
Social Security Administration
Office of General Counsel - Region II
26 Federal Plaza
New York, NY 10278
 Attorney for Appellee




                               OPINION OF THE COURT




STAPLETON, Circuit Judge:


       Claimant/Appellant Caprice Lamanna was a school bus driver. On August 4,

1992, she was involved in a motor vehicle accident. As a result of the accident, she

suffered cerebral contusion with post-traumatic syndrome, a cervical sprain, a lumbar

sprain and intrapelvic nerve injuries. She was able to continue her work as a bus driver,

however, until she ceased that employment on May 31, 1994.

       The Commissioner found Lamanna disabled by post-traumatic syndrome as of

June 21, 1995. She asked for reconsideration, however, insisting that she was disabled as

of the date of the accident. Subsequently she modified her position claiming disability as

of May 31, 1994, her last day of work. After a hearing, the ALJ determined that Lamanna

was not entitled to benefits prior to June 21, 1995. The Appeals Council denied review.

       Lamanna claims that the Commissioner’s decision with respect to the period

before June 21, 1995, cannot stand because: (1) the ALJ’s findings with respect to her

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residual functional capacity are not supported by substantial evidence; (2) the ALJ failed

to compare her conditions with the “listings” at step three of the sequential analysis

required by the regulations; and (3) the Commissioner failed to carry her burden of

showing at step five of that analysis that there were jobs existing in the national economy

that Lamanna could perform.

       The ALJ reviewed the medical evidence in some detail. He pointed out that, while

Dr. Kreider, Lamanna’s treating physician after the accident, had reported in a September

13, 1993, letter that Lamanna “suffered from a cerebral contusion with post traumatic

syndrome, cervical sprain, lumbar sprain and intrapelvic nerve injuries,” those injuries

were not severe enough to prevent her from continuing to serve as a bus driver for the

next 8-1/2 months. He further noted that she did not see Dr. Kreider for over two years

after that letter was written and that when she did see him again on November 14, 1995,

her “most severe” complaint was of depression. Most importantly, the ALJ observed that,

with the exception of a psychological evaluation performed in the summer of 1994,

Lamanna, prior to June 21, 1995, had been under no medical, psychological or psychiatric

treatment. Nor was there any evidence that she had ever been prescribed or taken anti-

depressant medications. Based on these facts and the reports of the 1994 psychological

evaluation, the ALJ concluded that Lamanna’s “complaints of post traumatic distress

disorder prior to June 21, 1995 were far out of proportion with the medical findings.”

       Based on his evaluation of the evidence, the ALJ concluded that there was no



                                             3
significant medical evidence to support the view that Lamanna had exertional

impairments prior to June 21, 1995, that would preclude her from performing a full range

of sedentary work activity. The ALJ further concluded based on that evaluation that

Lamanna had no relevant non-exertional impairments before that date other than severe

episodic vertigo that precluded her from operating moving machinery. The ALJ’s

discussion of the evidence demonstrates, we believe, that there is substantial evidence

supporting these conclusions. Contrary to Lamanna’s suggestion, the fact that she was

found to have reached the point of disability from post-traumatic stress disorder on June

21, 1995, does not demonstrate that she was disabled prior to that date. If this suggestion

were accepted, an onset date could never be established.

       Nor are we persuaded by Lamanna’s second argument. While it is true that step

three of the sequential analysis required by the regulations calls for a comparison with the

listed impairments that dictate a finding of disability, this cannot reasonably be

understood to require such a comparison when the claimant’s condition does not come

close to meeting any listing. We find it significant that Lamanna’s brief does not identify

any listing that she claims to have met. It follows that acceptance of her argument would

require a comparison with every listing.

       Turning to Lamanna’s third argument, we stress that she does not argue that a

Social Security Ruling cannot provide substantial evidence at step 5 in a case involving

both exertional and non-exertional impairments. Accordingly, we express no opinion on



                                              4
the issue we reserved in Sykes v. Apfel, 228 F.3d 259 (3d Cir 2000) – “whether Social

Security Rulings can serve the same function as the [‘Grid’] rule making upheld in”

Heckler v. Campbell, 461 U.S. 458 (1983).

       We are unable to accept the ALJ’s ruling at step 5, however. The ALJ correctly

concluded that Lamanna was unable to perform her past work and that, accordingly, the

Commissioner had the burden of proof at step 5. He further correctly concluded that,

because this case involved a non-exertional impairment, i.e., severe episodic vertigo, the

Commissioner could not rely solely on the “Grids” to carry that burden. His explanation

of how the Commissioner had carried that burden, however, does not permit the judicial

review to which Lamanna is entitled.

       The ALJ made the following factual finding:

       Prior to June 21, 1995, the claimant had the residual functional capacity to
       perform the physical exertion and nonexertional requirements of work
       except for operating moving machinery due to her episodic vertigo (20 CFR
       404.1545).

App. at 14. He then relied upon Social Security Ruling 85-15 to provide support for his

finding that there were jobs in the national economy that Lamanna could perform prior to

June 21, 1995:

       [W]ithin the teachings of Social Security Ruling 85-15, the undersigned
       concludes that there was no significant erosion of the claimant’s
       occupational base due to the lack of “significant” non-exertional
       limitations.
                                           ***
       Prior to June 21, 1995, the claimant’s capacity for the full range of
       sedentary work was not significantly compromised by her non-exertional

                                             5
       limitations. Accordingly, using the above-cited rule as a framework for
       decisionmaking, the claimant was not disabled, prior to June 21, 1995.

App. at 14, 15.

       Assuming that a Social Security Ruling can in some circumstances provide an

evidentiary basis for a factual finding at step 5, it is clear from Sykes that references to

“the teachings” of an SSR or to the use of an SSR as a “framework for decisionmaking”

will not suffice when it is not possible for a reviewing court to determine what portion of

the cited ruling the ALJ thought “direct[ed] a determination of nondisability in” the case

before him. Sykes, 228 F.3d at 271. SSR 85-15 is nine pages in length, and it is not

apparent to us from the ALJ’s opinion how the ALJ found such a directive.

       The non-extertional impairment found by the ALJ was an inability to “operat[e]

moving machinery due to . . . episodic vertigo.” Without further enlightenment with

respect to the extent of this impairment and the ALJ’s analysis of SSR 85-15, we are

unable to determine whether the Commissioner carried her burden at step 5.1

       We will reverse the judgment of the District Court and remand with instructions to

send this matter back to the ALJ for further findings and explanation.

   1
    The Commissioner’s brief before us directs our attention to a section of SSR 85-15
addressing “Environmental Restrictions,” which includes a reference to “a person with a
seizure disorder who is restricted only from being near dangerous equipment.” It does not
appear to address the circumstances of a person who cannot “operate” any kind of
“moving machinery,” much less “direct a determination of non-disability in” such a case.
The brief also cites to support the ALJ’s conclusion SSR 96-9p, which states that a
prohibition from working near “moving mechanical parts of equipment, tools, or
machinery” would not significantly erode the unskilled, sedentary work base. That
Ruling, however, was not cited by the ALJ and is therefore not properly before this Court.

                                               6
