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 nonexertional limitation(s) does not significantly erode
            the occupational job base, and allow the claimant the opportunity to respond before
            we deny the claim.
         
         This Ruling does not apply to claims where we rely on an SSR that includes a statement
            explaining how the particular nonexertional limitation(s) under consideration in the
            claim being adjudicated affects a claimant's occupational job base. When we rely on
            such an SSR to support our finding that jobs exist in the national economy that the
            claimant can do, we will include a citation to the SSR in our determination or decision.
         
         We are considering revising our rules regarding our use of the grid rules as a framework
            for decisionmaking and may rescind this Ruling once we have made the revision.