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Precedential or Non-Precedential: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
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No. 94-5398
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GISELA JESURUM
Appellant
v.
SECRETARY OF THE UNITED STATES
DEPARTMENT OF HEALTH & HUMAN SERVICES
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On Appeal from the United States District Court
for the District of New Jersey
(D.C. Civil No. 92-02566)
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Submitted Under Third Circuit LAR 34.1(a)
Wednesday, January 25, 1995
PANEL: BECKER, LEWIS and GARTH, Circuit Judges
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(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
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OPINION OF THE COURT
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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.