United States Court of Appeals,
Fifth Circuit.
No. 93-1961.
Classie SCOTT, Plaintiff-Appellant,
v.
Donna SHALALA, Secretary of Health & Human Services, Defendant-
Appellee.
Aug. 25, 1994.
Appeal from the United States District Court for the Northern
District of Texas.
Before POLITZ, Chief Judge, DUHÉ and BARKSDALE, Circuit Judges.
DUHÉ, Circuit Judge:
Classie Scott appeals the district court's decision affirming
the Secretary's denial of her application for disability benefits
under 42 U.S.C. § 423. We reverse and remand.
BACKGROUND
Scott, born in 1945, has a high school education and training
in clerk typing. She worked as an inspector on an assembly line.
On October 20, 1986, Scott sustained an on-the-job injury to her
back and leg. She was diagnosed with a bulging lumbosacral disc.
Scott changed job positions at her company, but reinjured her
back in February 1988. After a three-month absence, she returned
to her job and worked until February 17, 1989, the onset date of
her alleged disability.
In June 1990 Scott filed for Title II disability insurance
benefits and Title XVI supplemental security income benefits. The
applications were denied initially and on reconsideration. A
1
hearing was held before an administrative law judge (ALJ) who found
that Scott had the residual functional capacity to perform
sedentary work, and thus was not disabled. Scott's request for
review by the Appeals Council was denied, and the ALJ's
determination became the Secretary's final decision. In the
district court, the magistrate judge recommended granting the
Secretary's motion for summary judgment, and over Scott's
objections, the district judge adopted the magistrate judge's
recommendation. Scott appeals.
DISCUSSION
On review, we determine whether the record as a whole
contains substantial evidence supporting the ALJ's findings, and
whether the ALJ followed the proper legal standards. Selders v.
Sullivan, 914 F.2d 614, 617 (5th Cir.1990). Scott's only issue
with merit is whether the ALJ erred in relying upon the
medical-vocational guidelines (the guidelines) without considering
vocational expert testimony. The ALJ relied upon the guidelines to
determine that the regulations directed a conclusion of no
disability. See 20 C.F.R. pt. 404, subpt. P, app. 2, tbl. 1.
The ALJ found that Scott could not perform past relevant work,
but had the residual functional capacity to perform sedentary work
with certain limitations.1 Specifically, the ALJ found that Scott
1
In evaluating a disability claim, the Secretary must
determine sequentially whether: (1) claimant is not presently
working; (2) claimant's ability to work is significantly limited
by a physical or mental impairment; (3) claimant's impairment
meets or equals an impairment listed in the appendix of the
regulations; (4) impairment prevents claimant from doing past
relevant work; and (5) claimant cannot presently perform
2
must have the option to sit or stand, as needed; cannot do
repetitive twisting, bending, stooping, or any kneeling or
crawling; and must use good back mechanics and be able to use a
TENS unit or roll pillow as needed. To provide adjudicative
guidance when a claimant's limitations do not meet a defined
exertional capacity, the Secretary issued a "Program Policy
Statement." In SSR 83-12, the Secretary stated:
In some disability claims, the medical facts lead to an
assessment of [residual functional capacity] which is
compatible with the performance of either sedentary or light
work except that the person must alternate periods of sitting
and standing.... Such an individual is not functionally
capable of doing either the prolonged sitting contemplated in
the definition of sedentary work ... or the prolonged standing
or walking contemplated for most light work.
Because Scott must alternate between sitting and standing as
needed, Scott's exertional capabilities do not fit within the
definition of sedentary work. See Wages v. Secretary of Health &
Human Servs., 755 F.2d 495 (6th Cir.1985) (holding that substantial
evidence is lacking to support the finding that the claimant can
perform sedentary work when a sit/stand option has been added to a
claimant's exertional restrictions).
We have held that the Secretary may rely on the
medical-vocational guidelines to establish that work exists for a
claimant only if the guidelines' "evidentiary underpinnings
coincide exactly with the evidence of disability appearing on the
record." Lawler v. Heckler, 761 F.2d 195, 197 (5th Cir.1985)
(internal quotations omitted). SSR 83-12 further states:
relevant work. 20 C.F.R. § 404.1520(b)-(f); Selders, 914 F.2d
at 618. The ALJ found that Scott was not disabled at step five.
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[M]ost 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 ordinarily sit or stand at will. In cases of
unusual limitation of ability to sit or stand, a [vocational
expert] should be consulted to clarify the implications for
the occupational base.
Thus, the ALJ erred in applying the guidelines in this case. See
Gallant v. Heckler, 753 F.2d 1450, 1457 (9th Cir.1984) (guidelines
were improperly applied when claimant's back pain necessitated that
he alternate periods of sitting, standing and walking); cf.
Lawler, 761 F.2d at 198 (guidelines were improperly applied when
claimant asserted that she could not sit or stand for prolonged
periods of time).
The ALJ misapplied the guidelines in another respect.
Although the ALJ rejected Scott's allegation of disabling pain,2 he
acknowledged that Scott's complaint has a basis in the record and
that Scott might have slight, occasional breaks in concentration or
attention due to pain. Pain may constitute a nonexertional factor
that can limit the range of jobs a claimant can perform. Carter v.
Heckler, 712 F.2d 137, 142 (5th Cir.1983). In such cases, the ALJ
must rely on expert vocational testimony to establish that jobs
exist. See Fraga v. Bowen, 810 F.2d 1296, 1304 (5th Cir.1987).
The ALJ did correctly avail himself of the testimony of a
vocational expert. We cannot conclude, however, that the ALJ
2
The ALJ's finding that Scott's pain was not debilitating is
supported by substantial evidence. The ALJ rejected Scott's
subjective complaints of constant pain, and we defer to that
credibility determination. See Wren v. Sullivan, 925 F.2d 123,
128 (5th Cir.1991). The objective evidence does not support
Scott's complaint of constant pain.
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properly considered the vocational expert's testimony given only
the ALJ's vague and confusing reference to that testimony in his
findings.3 Accordingly, we reverse and remand for proper
consideration of the vocational expert's testimony. See SEC v.
Chenery Corp., 318 U.S. 80, 87, 63 S.Ct. 454, 459, 87 L.Ed. 626
(1943).
REVERSED and REMANDED.
3
The ALJ discusses the vocational expert's testimony, but
with respect to past relevant work. Other than a passing
reference, the ALJ does not discuss the vocational expert's
testimony when determining whether Scott has residual functional
capacity for sedentary work.
5