Wednesday, January 24, 2007

disability - grid - non-exertional impairment

Poulos v. Commissioner of Social Security - 3rd Circuit - January 24, 2007

The ALJ determined that the claimant had both exertional and non-exertional limitations and "subsequently concluded, without reference to any vocational evidence, that a) Appellant's exertional and nonexertional limitations did not 'significantly compromise' the sedentary occupational base" and, thus, that b) the medical-vocational guidelines--the Grid--could be applied to deny appellant's claim.

The court held that the ALJ erred in doing this and that his "reliance on the Guidelines in the presence of Appellant's nonexertional limitations constitutes reversible error under Sykes v. Apfel, 228 F.3d 259 (3d Cir. 2000), where the court rejected the same argument that SSA made here -- that the guidelines can be relied on even in the presence of a nonexertional limitation, "so long as the limitation does not significantly diminish the range of work that could otherwise be exertionally possible."

The court "squarely rejected this argument in Sykes" and did so here as well. Absent a rulemaking establishing the fact of an undiminished occupational base, SSA cannot determine that a nonexertional impairment does not significantly erode a claimant's occupational basis unless SSA either a) takes additional evidence establishing as much, or b) provides notice to the claimant of its intent to take official notice of this fact and provides the claimant an opportunity to counter the conclusion.

The court remanded the case because the record had not been fully developed and reminded the ALJ of his duty to do so.

The court also reminded the ALJ "that under the Supreme Court's decision in Cleveland v. Policy Management Systems Corp., 526 U.S. 795, 803 (1999), he is not entitled to consider potential accommodations by employers in determining the availability of jobs in the national economy that Appellant can perform."