Sandra L. Charles v. Jo Anne B. Barnhart, Commissioner of Social Security

HEANEY, Circuit Judge,

dissenting.

I believe that our only option in this case is to remand to the ALJ for a determination as to whether the Commissioner has met her burden in determining whether Sandra Charles is able to do light work in a standing, position for six hours. While the magistrate judge and the district court judge agreed that this is the key issue, they reached contrary results; the former finding that Charles is disabled, and the latter, finding that she is not.

The district court put the matter well when it stated that the key factual issue is the amount of time that Charles can stand on her feet for six hours out of an eight-hour work day. Dr. Rock, Charles’s treating physician over several years, made it clear that Charles should not stand for more than four hours each work day. The vocational expert agreed that if that were the case, then Charles would in fact be disabled. Dr. Jedlicka, who conducted an orthopedic examination of Charles for the Commissioner, stated: “She can stand, walk and sit for 10 minutes at a time, but then must change positions.” (R. at 416 (emphasis added).) Dr. Pecoraro apparently concurred in that statement. (R. at 437.)

Try as I may, I am unable to find anything in the record indicating that the jobs described by the vocational expert as being suitable for Charles would permit a person to alternately stand and sit on the job. The district court judge interpreted Dr. *785Jedlicka’s and Dr. Pecoraro’s reports as agreeing that Charles is able to stand on her feet for at least six hours in an eight-hour day as long as she can move around. I question whether that is the correct interpretation of their testimony. In my view, the doctors were stating that Charles could only work a six- to eight-hour day if she could alternately sit and stand. Dr. Steiner, the neutral expert, testified as follows:

Generally I think this record describes someone lifting at the ten pound level. I don’t think I’d limit time on feet if it involved an ability to move around some. Sitting ivould, be limited to ten to fifteen minutes as would standing in place. I think repetitive neck motions would be precluded. As would repetitive bending, twisting and stooping and kneeling and crawling. So those are the kinds of limitations I think this record would- describe.

(R. at 70 (emphasis added).) As I read his testimony, it is unclear whether Dr. Steiner was envisioning a job in which Charles would be able to sit at times and thus relieve the burden on her feet. It is inherently wrong to deny Charles’s a disability finding unless Drs. Jedlieka, Pecoraro, and Steiner each has a chance to clarify his testimony.

My view of this case is supported by Charles’s own testimony, and the hypothetical question posed by the ALJ to the vocational expert. Using the same language as Dr. Steiner, the ALJ appeared to inquire about jobs in which Charles would be able to sit and stand in intervals. The vocational expert does not indicate whether there are jobs available where Charles would be able to move between -the sitting and standing position. In addition, Charles stated at the hearing that she “can’t stand for very long.” (R. at 57.) This directly contradicts the district court’s conclusion that she can stand for six hours in an eight-hour day and supports my reading of the record that she needs to alternate between sitting and standing as she works.

I believe that if Charles is required to be on her feet six out- of eight hours each day that she will be unable to perform her job, even if she is able to change her standing position from time to time. Rather than deny a fifty-seven year old woman, with an excellent work record from 1981 to 1995, social security disability benefits based on an incomplete record, we should remand to the ALJ with directions to recall Drs. Jedl-ieka, Pecoraro, and Steiner, as well as the vocational expert, to determine whether Charles can work six hours out of an eight-hour day if she must stand on her feet the entire period of time without the opportunity to alternately sit and stand.