BASIC (04-01)

DI 52735.001 Using the Grid Rules as a Framework for Decisionmaking When an Individual's Occupational Base is Eroded by a Nonexertional Limitation—Titles II and XVI of the Social Security Act

A. Background

On 1/25/01, SSA published AR 01-1(3), “Sykes v. Apfel, 228 F.3d 259 (3d Cir. 2000)-Using the Grid Rules1 as a Framework for Decisionmaking When an Individual's Occupational Base is Eroded by a Nonexertional Limitation—Titles II and XVI of the Social Security Act2 ” in the Federal Register. This AR is published in its entirety in DI 52735.001B.

B. Policy

AR 01-1(3)

Acquiescence Ruling 01-1(3)

Sykes v. Apfel, 228 F.3d 259 (3d Cir. 2000)-Using the Grid Rules as a Framework for Decisionmaking When an Individual's Occupational Base is Eroded by a Nonexertional Limitation—Titles II and XVI of the Social Security Act.

ISSUE

Whether we may apply the Medical-Vocational Guidelines (grid rules) as a framework to deny disability benefits at step 5 of the sequential evaluation process when a claimant has a nonexertional limitation(s) without either:

(1) taking or producing vocational evidence, such as testimony from a vocational expert, reference to the Dictionary of Occupational Titles (DOT) or other similar evidence; or 3

(2) providing notice of our intention to take official notice of the fact that the particular nonexertional limitation(s) does not significantly erode the occupational job base.

STATUTE/REGULATION/RULING CITATION

Sections 205(b), 223(d)(2)(A), 1614(a)(3)(B) and 1631(c)(1)(A) of the Social Security Act (42 U.S.C. 405(b), 423(d)(2)(A), 1382c(a)(3)(B)) and 1383(c)(1)(A); 20 CFR 404.1520(f)(1), 404.1566, 404.1569, 404.1569a, 416.920(f)(1), 416.966, 416.969 and 416.969a; 20 CFR Part 404, Subpart P, Appendix 2, section 200.00(e); Social Security Rulings 83-10, 83-12, 83-14, 85-15 and 96-9p.

CIRCUIT

Third (Delaware, New Jersey, Pennsylvania, and the Virgin Islands).

Sykes v. Apfel, 228 F.3d 259 (3d Cir. 2000).

APPLICABILITY OF RULING

This Ruling applies to determinations or decisions at all levels of the administrative review process (i.e., initial, reconsideration, Administrative Law Judge (ALJ) hearing and Appeals Council).

DESCRIPTION OF CASE

Clifton Sykes filed an application for disability insurance benefits after suffering several job-related injuries. After his claim was denied at both the initial and reconsideration levels of the administrative review process, he requested a hearing before an ALJ. The ALJ found that Mr. Sykes had several “severe” impairments and that, because of these impairments, he was unable to do his past relevant work. At least one of these impairments, blindness in the left eye, resulted in a nonexertional limitation. The other severe impairments included the residual effects of a torn rotator cuff, angina and obstructive pulmonary disease. Applying the grid rules in 20 CFR Part 404, Subpart P, Appendix 2 as a framework for decisionmaking without referring to a vocational expert or other evidence, the ALJ concluded that Mr. Sykes was not disabled because he could perform other work existing in the national economy. The ALJ's conclusion was based on his findings that Mr. Sykes had the exertional capability to perform “light” work and that the exclusion of jobs requiring binocular vision did not significantly compromise the “broad base of light work” established under the grid rules.

After the Appeals Council denied Mr. Sykes' request for review of the ALJ's decision, he sought judicial review. Mr. Sykes argued, among other things, that the ALJ erred in relying exclusively on the grid rules to determine whether there were jobs in the national economy that he could perform when his impairments resulted in both exertional and nonexertional limitations. The district court affirmed the ALJ's decision finding that it was supported by substantial evidence. On appeal to the United States Court of Appeals for the Third Circuit, the court reversed the judgment of the district court and remanded the case to us for further proceedings consistent with its decision.

HOLDING

After considering the Supreme Court's decision in Heckler v. Campbell, 461 U.S. 458 (1983), the court concluded that our “interpretation of 20 CFR Part 404, Subpart P, Appendix 2 section 200.00(e)(2) does not comport with the Social Security Act * * *.” In view of the ALJ's finding that the claimant had a severe nonexertional impairment, the court stated that we cannot establish the existence of other “jobs in the national economy that Sykes can perform by relying on the grids alone, even if [we use] the grids only as a framework instead of to direct a finding of no disability.” The court further stated that, “in the absence of a rulemaking establishing the fact of an undiminished occupational base, the Commissioner cannot determine that a claimant's nonexertional impairments do not significantly erode his occupational base under the medical-vocational guidelines [alone].”

The Third Circuit also addressed “the question [of] what additional evidence the Commissioner must present to meet the burden of establishing that there are jobs in the national economy that a claimant with exertional and nonexertional impairments can perform.” The court held that the “sort of evidence the Commissioner must present to meet his burden of proof * * * when a claimant has exertional and nonexertional impairments * * * [is] the testimony of a vocational expert or other similar evidence, such as a learned treatise.”

As an alternative to producing additional vocational evidence, the court held that we could rely on official administrative notice to establish that a particular nonexertional limitation does not significantly erode a claimant's occupational job base. The court stated that, “official [administrative] notice * * * allows an administrative agency to take notice of technical or scientific facts that are within the agency's area of expertise,” in addition to commonly acknowledged facts. Under this alternative, we “would have had to provide Sykes with notice of [our] intent to [take administrative] notice [of the] fact [that the occupational base is not significantly eroded by the nonexertional limitation] and, if Sykes raised a substantial objection, an opportunity to respond * * *.”

The court stated that it was not deciding the issue of “whether Social Security Rulings can serve the same function as the rulemaking upheld in Campbell.” The court further stated that it need not resolve the issue of whether “the Commissioner can properly refer to a ruling for guidance as to when nonexertional limitations may significantly compromise the range of work that an individual can perform.”

STATEMENT AS TO HOW SYKES DIFFERS FROM SSA'S INTERPRETATION OF THE REGULATIONS

At step 5 of the sequential evaluation process (or the last step in the sequential evaluation process in continuing disability review claims), we consider the vocational factors of age, education and work experience in conjunction with a claimant's residual functional capacity to determine whether the claimant can do other jobs that exist in significant numbers in the national economy. Section 200.00(e)(2) of 20 CFR Part 404, Subpart P, Appendix 2 provides that, when an individual has an impairment(s) “resulting in both strength [exertional] limitations and [nonstrength] nonexertional limitations,” we use the grid rules first to determine whether a finding of disabled is possible based on strength limitations alone. If not, we use the same grid rules reflecting the individual's maximum residual strength capabilities, age, education, and work experience as a framework for consideration of how much the individual's nonexertional limitations further erode the occupational job base. As stated in 20 CFR 404.1569a and 416.969a, the grid rules “provide a framework to guide our decision” in this situation.

SSR 83-14, Capability to do Other Work--The Medical Vocational Rules as a Framework for Evaluating a Combination of Exertional and Nonexertional Impairments, provides that we use the grid rules to determine how the totality of an individual's limitations or restrictions reduces the occupational base of administratively noticed unskilled jobs when a claimant cannot be found disabled based on exertional limitations alone. In those claims where a person comes very close to meeting the criteria of a grid rule directing a finding of not disabled because it is clear that the additional nonexertional limitation(s) has very little effect on the exertional occupational base, we may rely on the framework of the grid rules to support a finding that the person is not disabled without consulting a vocational expert or other vocational resource. On the other hand, an additional nonexertional limitation may substantially reduce a range of work to the extent that an individual is very close to meeting a grid rule which directs a conclusion of disabled. Particular nonexertional limitation(s) may significantly erode or may have very little effect on the occupational base of jobs an individual can perform.

SSRs 96-9 and 83-14 include examples of nonexertional limitation(s) and provide adjudicative guidance on their effects on an individual's occupational job base. Some of the nonexertional limitations described in the SSRs do significantly reduce an individual's occupational job base and would result in a finding of disability. Other nonexertional limitations described in the SSRs do not significantly reduce an individual's occupational job base and would not ordinarily result in a finding of disability if the person's exertional limitations (or “capabilities”) would result in a finding of not disabled under the grid rules. Regardless of whether the result is a finding of disability or no disability, we rely on our regulations and the SSRs to provide adjudicative guidance on the effects of particular nonexertional limitations on an individual's occupational job base.

Under our interpretation of 20 CFR 404.1569a, 416.969a and section 200.00(e) of Appendix 2 to Subpart P of Part 404, and of SSR 83-14, we are not required to consult a vocational expert or other vocational resource in all instances in which we decide whether an individual who has a nonexertional limitation(s) is or is not disabled. For instance, we are not always required to consult a vocational expert or other vocational resource to help us determine whether a nonexertional limitation significantly erodes a claimant's occupational base when adjudicative guidance on the effect of the limitation is provided in an SSR.

The Third Circuit concluded that, under Campbell, we cannot rely on the framework of our grid rules to deny a claim when a claimant has a nonexertional impairment(s) “without either taking additional vocational evidence * * * or providing notice to the claimant of [our] intention to take official notice of this fact [that the claimant's nonexertional impairment(s) do not significantly erode his or her occupational base] (and providing the claimant with an opportunity to counter the conclusion).” The court held that we cannot establish the existence of other jobs in the national economy that a claimant with a nonexertional limitation “can perform by relying on the grids alone, even if [we] use the grids as a framework instead of to direct a finding of no disability.”

EXPLANATION OF HOW SSA WILL APPLY THE SYKES DECISION WITHIN THE CIRCUIT

This Ruling applies only to claims in which the claimant resides in Delaware, New Jersey, Pennsylvania or the Virgin Islands at the time of the determination or decision at any level of the administrative review process; i.e., initial, reconsideration, ALJ hearing or Appeals Council review.

In making a disability determination or decision at step 5 of the sequential evaluation process (or the last step in the sequential evaluation process in continuing disability review claims), we cannot use the grid rules exclusively as a framework for decisionmaking when an individual has a nonexertional limitation(s). Before denying disability benefits at step five when a claimant has a nonexertional limitation(s), we must:

(1) take or produce vocational evidence such as from a vocational expert, the DOT or other similar evidence (such as a learned treatise); or

(2) provide notice that we intend to take or are taking administrative notice of the fact that the particular