Boone v. Barnhart

Citation353 F.3d 203
Decision Date18 December 2003
Docket NumberNo. 02-3256.,02-3256.
PartiesSarah M. BOONE, Appellant v. Jo Anne BARNHART Commissioner of Social Security. (*Pursuant to F.R.A.P. 43(c)).
CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)

Peter J. Pinnola, (Argued), Pinnola & Bomstein, Elkins Park, for Appellant.

James A. Winn, Regional Chief Counsel, Lori Karimoto (Argued), Assistant Regional Counsel, Office of the General Counsel, Social Security Administration, OGC/Region III, Philadelphia, Patrick L. Meehan, United States Attorney, Joan Garner, Assistant United States Attorney, Eastern District of Pennsylvania, Philadelphia, for Appellee.

Before: BECKER,* RENDELL, and AMBRO, Circuit Judges.

OPINION OF THE COURT

AMBRO, Circuit Judge.

Sarah M. Boone challenges the Social Security Commissioner's determination that she is not disabled and therefore not entitled to Supplemental Security Income ("SSI") disability benefits. She makes several arguments, each of which pertains to the Administrative Law Judge's ("ALJ") determination that she can perform work that exists in significant numbers in the regional or national economy.1 We agree with Boone that the record lacks substantial evidence that she can perform such work and, thus, is not disabled. We therefore reverse and remand.

BACKGROUND

Boone applied in November 1998 for SSI disability benefits under Title XVI of the Social Security Act, alleging disability due to back and leg disorders, carpal tunnel syndrome, and high blood pressure. To show disability for purposes of SSI, a claimant must demonstrate that she lacks the ability "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment." 42 U.S.C. § 1382c(a)(3)(A). The ALJ found that Boone suffers from severe impairments but, as noted above, that she is not disabled because there are a significant number of jobs in the national economy that she can perform.

Boone was fifty-three years old at the alleged onset date of her disability in November 1998. She has an eleventh grade education and, although she has not worked since 1986, has past experience as an office cleaner as well as a meat weigher and wrapper.

After she was involved in a bus accident in the 1980s, Boone underwent back surgery. She has sought assistance from pain specialists since that time. The ALJ found that she has a continuing back disorder caused by degenerative disc disease, spinal stenosis, a disc bulge, and left leg radiculopathy, and that she suffers from carpal tunnel syndrome and right knee pain.2 The ALJ therefore concluded that Boone is severely impaired.

Looking to the effect of Boone's impairments, the ALJ found that she cannot perform her past work as an office cleaner or meat weigher and wrapper, but that she does retain the capacity to perform "a range of light level work."3 In particular she can stand, walk, and sit for six hours out of an eight-hour day. Any employment must, however, permit her to sit and stand at will every thirty minutes. She can lift and carry twenty pounds occasionally and ten pounds frequently. She has no limitations in pushing or pulling, but must not be required to perform repetitive hand activity. Only occasionally can she climb, balance, kneel, stoop, crouch, or crawl.

On the basis of the physical limitations identified by the ALJ and considering Boone's age, education, and unskilled work history, a vocational expert ("VE") testified that Boone has the ability to work as an inventory clerk, a home health aide, or a sales counter clerk. According to the VE, there are 2,600 inventory clerk jobs in the regional economy and 127,000 such jobs in the national economy; there are 5,800 home health aide jobs regionally and 322,000 nationally; and 1,500 sales counter clerk jobs exist regionally and 95,000 nationally. The ALJ concluded that these occupations represent a significant number of jobs existing in the national economy and, accordingly, that Boone is not disabled.

After the Appeals Council denied her request for review, Boone timely appealed to the United States District Court for the Eastern District of Pennsylvania. The parties filed cross-motions for summary judgment. A magistrate judge recommended granting the Commissioner's motion for summary judgment, which the Court did on June 17, 2002. Boone timely appealed to this Court. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 42 U.S.C. § 405(g).

DISCUSSION

We review de novo the District Court's grant of summary judgment in favor of the Commissioner but may reverse only if "the ALJ's findings were not supported by `substantial evidence.'" Burns v. Barnhart, 312 F.3d 113, 118 (3d Cir.2002). Substantial evidence is less than a preponderance but more than a scintilla; it is "such relevant evidence as a reasonable mind might accept as adequate." Id.

A five-step process is used to determine disability for SSI benefits eligibility, see 20 C.F.R. § 416.920, but in this case only step five is in dispute.4 At the fifth step, the Commissioner bears the burden of proving that, considering the claimant's residual functional capacity,5 age, education, and past work experience, she can perform work that exists in significant numbers in the regional or national economy. 42 U.S.C. § 423(d)(2)(A); see also Bowen v. Yuckert, 482 U.S. 137, 146 n. 5, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987); Sykes v. Apfel, 228 F.3d 259, 263 (3d Cir.2000).

A. Vocational Expert Testimony

At the fifth step of the evaluation process, "the ALJ often seeks advisory testimony from a vocational expert. In addition, the ALJ will generally consult the Dictionary of Occupational Titles (`DOT'), a publication of the United States Department of Labor that contains descriptions of the requirements for thousands of jobs that exist in the national economy, in order to determine whether any jobs exist that a claimant can perform." Burns, 312 F.3d at 119; see also id. at 126 (The "Social Security Administration has taken administrative notice of the reliability of the job information contained in the [DOT].") (citing 20 C.F.R. § 416.966(d) (2002)). Boone argues for reversal of the ALJ's non-disability determination on the grounds that the VE's testimony that Boone can work as an inventory clerk, a home health aide, and a sales counter clerk conflicts with the DOT and that neither the VE nor the ALJ addressed the conflict. While we do not adopt a general rule that an unexplained conflict between a VE's testimony and the DOT necessarily requires reversal, we do conclude that the VE's testimony in this case is not substantial evidence.6

In response to the ALJ's hypothetical question as to the availability of jobs for an individual with Boone's residual functional capacity, age, and experience, the VE testified:

There would be some jobs that this individual could perform given the limitations that have been outlined in the hypothetical, and I'm going to have to think about this a bit. But I think that I would look at the following positions: The first job that I, I would identify as appropriate would be an inventory clerk. I'd be glad to give any of those definitions through explanations of these jobs. There's very little, if any, use — I mean there's very little use of the hands, and it's certainly not provide [sic] bimanual repetitive activities. And they're in a region, there's about 2,600 of those jobs. In the nation, there's 127,000. The job that I, that I was — I'm thinking about, but I think still would be appropriate and this is what I'm hesitating about, would be a home health aid [sic] at the light exertional level. It would be 5,800 of those jobs in the region and 322,000 nationally. A third job that I would look at as a possibility would be — I'm kind of going over in my mind the number of positions, but I want to make sure they kind of fit. What I'm looking for, I think[, is] an unskilled, sales counter clerk, which there are about 1,500 in the region and 95,000 nationally.

We consider first the three occupations identified by the VE as suitable for Boone. The DOT classifies the occupation "inventory clerk" in the medium exertional level with a "specific vocational preparation" ("SVP") of 4.7 DOT § 222.387-026. Occupations with an SVP of 3 or 4 are semiskilled. Because the ALJ found that Boone can do only a limited range of light, unskilled work — not medium8 or semiskilled work — she cannot perform the job of inventory clerk as it is described in the DOT.

Likewise, the DOT describes a home health aide job as falling in the medium exertional level and with an SVP of 3.9 DOT 354.377-014. The VE specified that Boone could work as "a home health aid[e] at the light exertional level." On cross-examination, Boone's counsel asked the VE about the extent of lifting required of a home health aide. She replied:

One of the things that I'd think you have to look at when you talk about a home health aid[e] is, is that there are various levels of, of care needed that are provided to the elderly or the disabled. Some people need a lot of physical care and need to be able to transfer it, need to be... able to do heavy lifting. There are some people that for instance, that might have slight problems and just need help with their — a little bit of help with their ADL to act as a companion. And that — at that exertional level, it's fairly light....

Although the VE did recognize that Boone cannot perform all home health aide jobs, it is unclear whether the numbers that the VE had earlier provided (5,800 regionally and 322,000 nationally) included the medium exertional level jobs in the home health aide occupation. We also lack any basis to conclude that the VE discounted the semiskilled jobs, which Boone cannot perform, from the number of jobs identified.

Finally, although the DOT does not include an entry for "sales counter clerk," it does list "sales clerk" and "sales attendant" positions....

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