Thomas v. Commissioner of Social Sec., 00-3506.

• Citation: 294 F.3d 568
• Decision Date: 21 June 2002
• Docket Number: No. 00-3506.,00-3506.
• Parties: Pauline THOMAS, Appellant, v. COMMISSIONER OF SOCIAL SECURITY.
• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)

294 F.3d 568

Pauline THOMAS, Appellant, v. COMMISSIONER OF SOCIAL SECURITY.

No. 00-3506.

United States Court of Appeals, Third Circuit.

Argued March 12, 2001.

Argued En Banc February 13, 2002.

Filed June 21, 2002.

Abraham S. Alter (argued), Langton & Alter, Rahway, NJ, for appellant.

Susan Reiss (argued), Social Security Administration, Office of General Counsel — Region II, New York City, Peter G. O'Malley, Office of United States Attorney, Newark, NJ, for appellee.

Before: ALITO, RENDELL, Circuit Judges, and SCHWARZER,^* Senior District Judge.

Before: BECKER, Chief Judge, SLOVITER, MANSMANN,^** SCIRICA, NYGAARD, ALITO, ROTH, McKEE, RENDELL, AMBRO, and FUENTES, Circuit Judges.

OPINION OF THE COURT

ALITO, Circuit Judge.

Pauline Thomas worked as an elevator operator until her position was eliminated. Claiming a heart condition and related medical problems, she applied for Supplemental Security Income and Disability Insurance Benefits. The Commissioner of Social Security ("Commissioner") denied her application, and an Administrative Law Judge ("ALJ") also determined that Thomas was not eligible for benefits. The United States District Court for the District of New Jersey affirmed the ALJ's ruling and held that Thomas was not disabled under the five-step sequential process for determining eligibility for disability benefits because it found that she could continue to perform her previous work as an elevator operator. The District Court's interpretation of the Social Security Act, however, is inconsistent with both a careful reading of the particular provision at issue and the obvious statutory scheme. According to the Commissioner and the District Court, even if Thomas is unable to perform any job that exists in substantial numbers in the national economy and meets all of the other requirements for disability and supplemental security benefits, she may not obtain benefits because she could perform a job — serving as an elevator operator — that, as far as this record reflects, has now entirely vanished. We disagree and therefore reverse the order of the District Court and remand the case for further proceedings.

I.

Pauline Thomas worked as a housekeeper until 1988, when she had a heart attack. She then worked as an elevator operator until she was laid off on August 25, 1995, because her position was eliminated. She applied for Disability Insurance Benefits and Supplemental Security Income Benefits on June 11, 1996, claiming disability related to cardiac problems. She testified that she suffers from irregular heartbeats, high blood pressure, dizziness, and fatigue. Thomas also claimed that she suffers from lower back problems caused by lumbar radiculopathy and asserts that she fractured her right ankle on July 8, 1996. Thomas was 54 years old at the time she applied for benefits.

Thomas's application for Social Security benefits was denied by the Commissioner initially and on reconsideration. A hearing was then held before an ALJ, who determined that Thomas was not entitled to benefits. The ALJ found that Thomas has hypertension, cardiac arrhythmia, cervical and lumbar strain/sprain, and a transient ischemic attack, but does not have an impairment listed in the list of impairments presumed to be severe enough to preclude any gainful work. Decision of ALJ at 5. The ALJ then found that Thomas has the residual functional capacity to perform at least light work and, therefore, that she could perform her past relevant work as an elevator operator. The ALJ considered Thomas's argument that her past relevant work as an elevator operator no longer exists in the national economy. Id. at 4-5. Nevertheless, the ALJ decided that the regulations and Social Security Ruling 82-40 exclude from Step Four of the sequential process for determining disability any inquiry into whether the past work actually exists. Id. at 5. The ALJ held that Step Four considers only whether a claimant can perform her previous job. As a result, the ALJ ruled that Thomas was not under a "disability" and ended the evaluation without proceeding to Step Five. Id.

The Appeals Council denied Thomas's request for review, establishing the ALJ's decision as the final decision of the Secretary. Thomas then challenged the ALJ's ruling in the United States District Court for the District of New Jersey, but the District Court held that the ALJ properly applied the sequential process and affirmed his ruling. Thomas appeals from this judgment.

II.

Title II of the Social Security Act, as amended, provides Social Security Disability Insurance benefits for individuals who are "under a disability" and meet the other eligibility requirements. 42 U.S.C. § 423(a). Title XVI of the Act likewise provides Supplemental Security Income benefits for "disabled" indigent persons. 42 U.S.C. § 1382. With respect to individuals who are not blind, the term "disability" is defined as follows:

(1) The term "disability" means —

(A) inability 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 . . .

(2) For purposes of paragraph (1)(A) —

(A) An individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work. For purposes of the preceding sentence (with respect to any individual), "work which exists in the national economy" means work which exists in significant numbers either in the region where such individual lives or in several regions of the country.

42 U.S.C. § 423(d) (emphasis added); see also 42 U.S.C. § 1382c(a)(3) (providing the same definitions for Supplemental Security Income benefits).

Social Security regulations provide for a sequential evaluation process for determining whether a claimant is under a disability. 20 C.F.R. §§ 404.1520, 416.920; see also Plummer v. Apfel, 186 F.3d 422, 428 (3d Cir.1999). At Step One, the Commissioner must determine whether the claimant is currently engaging in a "substantial gainful activity." 20 C.F.R. §§ 404.1520(b), 416.920(b). If so, she is not eligible. 20 C.F.R. §§ 404.1520(b), 416.920(b). At Step Two, the Commissioner must determine whether the claimant has a "severe impairment." 20 C.F.R. §§ 404.1520(c), 416.920(c). If the claimant does not have a severe impairment, then she is not eligible. 20 C.F.R. §§ 404.1520(c), 416.920(c). At Step Three, if a claimant does not suffer from an impairment on the list of impairments presumed to be severe enough to preclude gainful work, the Commissioner moves to Step Four. 20 C.F.R. §§ 404.1520(d), 416.920(d). Step Four requires the Commissioner to decide whether the claimant retains the residual functional capacity to perform her past relevant work. 20 C.F.R. §§ 404.1520(e), 416.920(e). The claimant bears the burden of demonstrating an inability to return to her past relevant work. Plummer, 186 F.3d at 428. If the claimant is unable to resume her former occupation, the evaluation moves to Step Five. Id. At Step Five, the Commissioner has the burden of demonstrating that the claimant is capable of performing other jobs existing in significant numbers in the national economy. 20 C.F.R. §§ 404.1520(f), 416.920(f). At Step Five, the Commissioner is to consider the claimant's vocational factors. 20 C.F.R. §§ 404.1520(f), 416.920(f).¹

III.

Thomas argues that because her position as an elevator operator was eliminated and does not appear in significant numbers in the national economy, the ALJ should have proceeded to Step Five of the sequential process. We agree that at Step Four, Thomas should have been permitted to show that her previous work as an elevator operator no longer exists in substantial numbers in the national economy.

At Step Four of the sequential process, the Commissioner must determine whether the claimant can perform her past relevant work. Based on the language of the relevant provisions of the Social Security Act and the broader statutory scheme, we hold that, for the purposes of Step Four of the evaluation process, a claimant's previous work must be substantial gainful work which exists in the national economy. Thus, a claimant may proceed to Step Five by showing either that she cannot perform her past relevant work or that the previous work is not substantial gainful work that exists in the national economy.

The statute defines disability as follows: "An individual shall be determined to be under a disability only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy...." 42 U.S.C. § 423(d) (emphasis added). Thus, an individual is disabled only if "he is not only unable to do his previous work but cannot ... engage in any other kind of substantial gainful work which exists in the national economy," i.e., any "work which exists in significant numbers either in the region where such individual lives or in several regions of the country." 42 U.S.C. § 423(d)(2)(A) (emphasis added). The phrase "any other" in this provision is important for present purposes. The use of this phrase makes clear that an individual's "previous work" was regarded as a type of "substantial gainful work which exists in the national economy." When a sentence sets out one or more specific items followed by "any other"...