2004 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit
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w . v i l l a no va . e du/thir dc ir c uit_2004/116NOT PRE CEDENT IAL

IN THE UNITED STATES COURT OF APPEALS

FO R T HE TH IRD CIR CU IT

NO. 04-2483

CAPRI CE LAMANNA, Appellant

v. COMM ISSI ONER OF SOCIAL SECURITY

On A ppeal From the Un ited States D ist ric t C ou rt F or th e D ist ric t o f N ew Je rse y (D.C. Civi l Action No. 01-cv-02616) Distric t Judg e: Ho n. W illiam H . Wa lls Argued November 2, 2004 BE FO RE : AL ITO , FU EN TE S an d S TA PL ET ON , Circuit Judges (Opinion Fi led November 24, 2004)

Abraham S. Alter

(Argued) Langton & Alter 2096 St. Georges Avenue P.O. Box 1798 Rahway, NJ 07065 Attorneyfor Appella nt2

Ellen Sovern (Argued) Social Sec urity Adminis tration Off ice of G eneral Co unsel - Re gion II 26 Federal Pl aza New Y ork, NY 10278 Attorneyfor Appelle e

OPINI ON OF THE COURT

ST AP LE TO N, Circuit

Judge :
Claimant/

Appellant

Caprice Lamanna was a schoolbus drive r. On August 4, 1992, she was i nvolved in a motor vehic le acci dent. As a result of the acci dent, she suffered ce rebralcontusi on with post -tr aumatic s yndr ome, a cervi cal spr ain, a lumbar sprain and intrapelvic nerve injuries. She w as able to con tinue her w ork as a bu s driver, however, unti l she cea sed that employment

on May 31, 1994. The Comm issi oner found Lamanna disabled bypost-t raumati c sy ndrome as of June 21, 1995. She asked for r econsider ation, however, ins isting that she was disabl ed as of the dat e of the acci dent. Subsequentl y she modified her position cla iming di sabil ity as of May 31, 1994, her las t dayof work. After ahearing, the ALJ determined that Lamanna

was not en ti tl ed to be ne fi ts pr io r t o J une 21, 199 5. The App ea ls Cou nc ilde ni ed re vi ew. Lamanna claims t

hat the Commissioner’ s decis ion with r espect to the peri od before June 21, 1995, cannot stand because: ( 1) the ALJ’s f indings with res pect t o her3

resi dual functional c apacity ar e not supported bysubstant ial e vidence; (2) the ALJ failed to com pare h er con ditions with the “listin gs” a t step thre e of th e seq uentia l analysis requir ed by t

he regulations ; and (3) the Commissione r fail ed to carry her burden of sho win g at

st ep f iv e of th atana ly si s that

th er e wer e j obs exi stin g i n t he n at io naleco nomy th atLama nnacou ld perform. The AL J revie we d the m edica l evide nce in som e deta il. He p ointed out tha t, while Dr. Kreider , Lamanna’s t reati ng physi cian after the a ccident , had repor ted in a September 13, 19 93, letter th at La man na “s uffe red fr om a cere bral co ntusio n w ith pos t traum atic syndr ome, cervi cal spr ain, lumbar spr ain and i ntrapel vic nerve injuries, ” those i njuri es were not severe enough to pre vent her f rom continui ng to serve as a bus driver for the next 8-1/2 m onths. He further noted that she did no t see Dr. K reider for ov er two years after that l ette r was written and that when she did see hi m again on November 14, 1995, her “m ost sev ere” c om plaint w as of depr ession . Mo st imp ortantly, the A LJ o bserv ed tha t, with the e xcepti on of a psy chologic al eval uation pe rformed in t he summer of 1994, Lam anna , prior to J une 2 1, 199 5, had been und er no med ical, psych olog ical or p sychiatric treatm ent. N or w as ther e any ev idenc e that sh e had ever b een p rescrib ed or taken antidepressa nt medications. Based on these f acts and t

he report s of the 1994 ps ychol ogical evaluation, t

he AL J concluded that Lamanna’s “com plaints of post t raumatic distr ess diso rde r prio r to Ju ne 2 1, 19 95 w ere f ar o ut o f pr opo rtion wit h th e m edic al fin din gs.” Based on his evaluation of the evi dence, t

he ALJ concluded that

there was no4

signi ficant

medical evi dence to suppor t the vi ew that Lamanna had exertional impairment s prior

to June 21, 1995, tha t would preclude her from per forming a ful l range of sedentary work activi ty . The ALJ further concluded bas ed on that evaluation that Lam anna h ad no relev ant non-ex ertional impairm ents befo re that date other than severe episodic ve rtigo that precluded her from operating m oving m achinery. The A LJ’s discuss ion of the evidence demonst rates , we beli eve, that the re is substant ial e vidence supporti ng these conc lusi ons. Contr ary to Lamanna’s sugge sti on, the fact that she was found to have r eached the poi nt of dis abili tyfrom post- traumatic st ress di sorder on J une 21, 1995, doe s not demonst rate t hat she was di sabled prior t o that date. If thi s suggestion were accepted, an onset date could never be establ ished. Nor are we persuaded by Lamanna’s second ar gument. While it i s true that s tep three of the sequent

ial a naly sis r equired by

the regul ations call s for a compari son with the lis ted impai rments t

hat dic tate a findi ng of disabi lit y, this cannot re asonablybe und er st ood to re qui re suc h a c ompari son when th e cl ai mant ’s con di ti on d oes not come close t o meeting any

lis ting. We find it s ignifi cant that Lamanna’s brief does not identi fy any listing th at she c laims to have met. It fo llow s that ac cepta nce o f her a rgum ent w ould requir e a comparis on with every lis ting. Turn ing to L ama nna’ s third a rgum ent, w e stress th at she d oes n ot argu e that a Social Sec urity Ruli ng cannot provi de substa ntialevidence at step 5 i n a case i nvolving both exert

ional a nd non-exertional i mpairments . Accordingl y, we express no opi nion on5

the is sue we reser ved in Sykes v. Apfel , 228 F.3d 259 ( 3d Cir 2000) – “whethe r Social Security Ruli ngs can ser ve the same funct ion as t he [‘Grid’ ] rul e making upheld i n” He ckler v . Cam pbell , 461 U .S. 458 (198 3). We are un able to acce pt the A LJ’s ru ling at ste p 5, ho we ver. T he A LJ co rrectly concluded that Lamanna was unable t o perform her pa st work and that, accordi ngly , the Co mm issione r had the bu rden of p roof at step 5 . He f urther correc tly conclu ded th at, bec aus e this cas e inv olv ed a non -ex ertio nal im pair me nt, i.e . , severe episodi c verti go, the Commissioner coul d not rel y sol elyon the “Grids ” to carry that burden. His expl anati on of how the Commissioner ha d carri ed that burden, however, does not permit the judic ial review to whic h Lamanna is enti tled. The ALJ made the following fac tual f inding: Prior to June 21, 19 95, the claim ant ha d the re sidua l func tional c apac ity to perform the physical exertion an d none xertional requirem ents of w ork except for ope rating movi ng machi nerydue t o her e pis odic vertigo ( 20 CFR 404.154 5). Ap p. at 14 . He th en relie d up on S ocial S ecurity R uling 8 5-15 to pro vide s upp ort for his finding t hat the re were jobs in the nationaleconomy that Lamanna could perform prior to June 21, 1995: [W]ithi n the te achings of Soci al Securi ty Ruling 85-15, the unders igned conclud es that there w as no significa nt erosion of the claiman t’s occupati onal base due to the l ack of “si gnific ant” non-e xerti onal limitations. * * * Prior to June 21, 1995, the cl aimant’ s capaci ty for the ful l range of sedentary work was not s ignifi cantl y compromis ed by her non-exertional1 The Comm issi oner’s brief befor e us dir ects our atte ntion t o a secti on of SSR 85-15 addressi ng “EnvironmentalRestri ctions ,” which i ncludes a reference t o “a person wit h a seizur e disor der who is re stri cted onl y fr om being near danger ous equipment. ” It does not appe ar to ad dress th e circu mstan ces o f a pe rson w ho ca nno t “ operate ” any ki nd of “mov ing mac hinery ,” m uch less “ dire ct a d eterm inati on o f no n-d isab ility in” s uch a ca se. The brief a lso cites to supp ort the A LJ’s c onclu sion S SR 96-9 p, w hich s tates tha t a prohibi tion fr om working near “moving mechani cal parts of equi pment, t ools, or machinery ” would not si gnific antly erode the unskil led, sedentary work base . That Ru ling, ho we ver, w as no t cited b y the AL J and is theref ore n ot pro perly bef ore this Co urt. 6 limi tati ons. Accordi ngly , usi ng the above- cite d rule as a framework for decisi onmaking, the clai mant was not dis abled, prior to June 21, 1995. App. at 14, 15. Assuming that

a Social Security Ruli ng can in some ci rcumstance s provide an evi den ti ar y bas is for

a fa ctualfi ndi ng a t s te p 5, it is cl ear fr om Sykes that ref erenc es to “the t eachings” of an SSR or to the us e of an SSR as a “framework for dec isi onmaking” will not suffice when i t is not possi ble for areviewing c ourt t o determi ne what porti on of the cited rul ing the ALJ thought “direct[ed] a determination of nondisabili ty i n” the case bef ore him
. Sykes , 228 F.3d at 271. SSR 85-15 is ni ne pages in l ength, and it i s not apparent to us fr om the ALJ’s opini on how the ALJ found such a direc tive. The non-extertionalimpairment found by t

he ALJ was an inabil ity to “operat[e]

mo ving mac hinery du e to . . . episo dic ve rtigo.” W ithout f urther enligh tenm ent w ith respect to the ex tent of this impa irment and the AL J’s analysis of SSR 85-15, w e are unable t o determi ne whether the Commissioner c arri ed her burden at st ep 5. 1 We will rev erse th e judg men t of the Distric t Cou rt and r ema nd w ith instruc tions to send thi s matter

back to the ALJ for further findings and explanat

ion.