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. e du/thir dc ir c uit_2000/151Filed July 25, 2000

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 99-5827

ETHEL BURNETT,

Appellant,

v.

COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION

Appeal from the United States District Court For the District of New Jersey (D.C. Civil No. 96-02003) District Judge: Honorable Garrett E. Brown, Jr.

Argued: June 20, 2000

BEFORE: GREENBERG and WEIS, Circuit Judges, and SCHWARTZ, District Judge*

(Filed: July 25, 2000)

Thomas H. Klein (Argued)
Smith & Klein

100 Broad Street Eatontown, NJ 07724 Attorney for Appellant

___________________________________________________ ______________ * Honorable Morton I. Greenberg, Circuit Judge, ass umed Senior Status on 6/30/00. Honorable Murray M. Schwartz, Senior Un ited States District Judge for the District of Delaware, sittin g by designation.Anthony J. LaBruna, Jr. (Argued)

Assistant United States Attorney District of New Jersey 970 Broad Street, Suite 700 Newark, NJ 07102 Attorney for Appellee

OPINION OF THE COURT

SCHWARTZ, Senior District Judge.

Ethel Burnett ("Burnett"), asserting error in the d enial of her application for social security disability insu rance benefits under Title II of the Social Security Act ("the Act"), 42 U.S.C. SS 401-433, has appealed the District Cou rt's order affirming the final decision of appellee, Com missioner of Social Security ("Commissioner"), to deny Burnet t's claim for disability benefits. The District Court exercis ed jurisdiction under 42 U.S.C. S 405(g), and this Cou rt has jurisdiction over Burnett's appeal pursuant to 28 U .S.C. S 1291. For the reasons set forth below, we vacate the District Court's order affirming the Commissioner's decision
and remand the case with instructions to return it to the Commissioner for further proceedings consistent wit h this opinion.

I. Background

Burnett, born January 6, 1935, has a 10th grade education and worked in supermarket meat and delicatessen departments from 1977 to 1991. She inj ured her right knee and lower back in a slip and fall ac cident at
work in December 1989. Burnett maintains her back a nd knee injuries have rendered her totally unable to w ork since May 18, 1991.

A. Medical History

Burnett was first seen for her knee injury in Janua ry, 1990 by Dr. Charles Makowski, who placed her on a conservative treatment regime and referred her to D r. Richard Surgent. Dr. Surgent observed minor swellin g,

2tenderness of the patella, and muscle weakness in h er knee

and that she walked with an antalgic gait, favoring her right side. Dr. Surgent ordered an x-ray of the kne e, which showed slight narrowing of the medial compartment a nd joint effusion. He diagnosed her with chondromalaci a and prescribed pain killers and physical therapy.

Burnett received physical therapy through Pinelands Physical Therapy from January 1990 through March 19 90. In March, 1990 the physical therapist's discharge s ummary indicated that Burnett had "progressed well" and ha d returned to work. Dr. Surgent's notes regarding a M arch 27, 1990 visit indicated Burnett still had some ten derness and grating sensation in the right knee but conclud ed she had reached a plateau with regard to further treatm ent.

In the summer of 1991, Burnett twice visited Dr. Makowski, complaining of back pain. MRI scans of he r lower back performed for Dr. Makowski indicatedfirs t degree spondylolisthesis of the lumbar spine (sligh t forward displacement of L5 over S1) but no significant spin al stenosis. An X-ray of Burnett's knee showed joint e ffusion and a narrowed medial compartment. Dr. Makowski aga in referred Burnett to Dr. Surgent, although she appar ently did not see him. Dr. Makowski prescribed pain kille rs and physical therapy.

Burnett returned to Pinelands for sixteen physical therapy sessions on her knee during July and August 1991. The therapist's notes indicated that Burnett declined treatment for her lower back and that, on release, Burnett's range of motion in her right knee had increased and her knee strength had increased from fair to good.

Burnett was seen by Dr. Roy Mittman in January 1992
, complaining of knee and back pain and that her knee gives out during standing. Dr. Mittman observed no medial or lateral joint line tenderness and no gross instabil ity in the knee. He also noted some discomfort, some patellofe moral grinding, and a 1/4 inch atrophy in her right quadr icep. He gave Burnett an injection for pain. At a follow-up visit in February, Dr. Mittman concluded Burnett did not hav e a significant problem with her knee and that she coul d return to work, noting, however, he was not authorized to deal with Burnett's back problems.

3In April 1992, Dr. Alfred Hess conducted a consulti ve

orthopedic examination of Burnett for the Social Se curity Administration ("SSA"). He observed no joint inflam mation, crepitus, or pain on palpation of extremities; norm al strength and range of motion in the knee; a small c yst in the right knee; no muscle atrophy; normal gait with no significant antalgia or ataxia and no need for assi stive device. He noted a swelling on the coccyx, and conc luded it was probably a benign bone tumor. He did not order x-rays or an MRI and did not review her earlier films. Dr. Hess concluded Burnett could lift and carry up to 20 pou nds and could "sit and stand intermittently during an eight hour day." R. 163.1

In March 1993, Dr. Herbert Knapp saw Burnett and observed she had a broad-based gait, that she favor ed her right leg slightly, and could not assume even a par tial squat. He noted "full extension and [loss of] about 60 degrees of flexion of the right knee complaining of pain in the right patella when flexing." R. 167. Dr. Knapp noted a palpable muscle spasm of the paravertebral lumbar musculature associated with tenderness running from S1 to L4 and tenderness in lumbosacral joint. He diagn osed her with bilateral paravertebral lumbar myositis, lumbosacral sprain, and right knee sprain. Dr. Knap p found Burnett's flexion and extension in her back t o be somewhat less than the normal range of motion. He concluded Burnett was "permanently disabled orthopaedically to the extent of 30% of the total," with no improvement expected. Id.

Burnett was next seen in 1993 by Dr. Steven Berkowi tz. His examination revealed "a mild limp on the right, tenderness over sacrum and coccyx posteriorly with a limited range of motion, [and] an equivocal straigh t leg test on the right." R. 169. He also noted no neurologica l deficits. Based on review of Burnett's earlier computerized tomography ("CT") scan and MRI, Dr. Berkowitz diagn osed her with a degenerative disk at the L5-S1 level wit h hyperlordosis of the lumbar spine, but noted there was no evidence of spinal stenosis or nerve root entrapmen t. He

___________________________________________________ ______________

1. The Administrative Record is referred to as"R. _ __."

4prescribed non-steroidal anti-inflammatory medicati on and

concluded there was no need for surgery.

Finally, Burnett's file was reviewed by Dr. Atienza , a physician for the state of New Jersey, who complete d a disability determination and transmittal form on Ja nuary 29, 1994. Based solely on her records, he concluded Burnett could frequently lift 25 pounds and occasio nally lift 50 pounds, could stand/walk for 6 out of 8 hours pe r day, could sit for 6 out of 8 hours per day, had no limi tations on pushing or pulling arm or leg controls, and could f requently engage in postural activities, such as climbing, st ooping, kneeling, crouching, and crawling. He listed diagno ses of osteoarthritis and chronic pain syndrome, but noted no neurological deficit. On April 28, 1994, Dr. Sandle r, also apparently a physician for the state of New Jersey,
concurred in Dr. Atienza's assessment.

B. Procedural History

In January 1992, Burnett filed for Social Security disability benefits, asserting her knee and spine i njuries and back pain rendered her unable to work since May 18, 1991, at which time she was 56 years old. According to Burnett's hand-written vocational report, her job a t the supermarket was as a "deli clerk." She claimed her job required her to walk and stand 8 hours out of an 8 hour day, lift a maximum of 50 pounds at a time, frequen tly lift 25 pounds, constantly bend, cut and wrap cheese, an d use a slicer to clean cheese. The Social Security inter viewer who took Burnett's application stated Burnett had diffi culty sitting, had to stand periodically during the inter view, and complained of back pain. Burnett's claim was denied in May 1992. She missed the appeal time.

Burnett re-filed an application in November 1993, asserting that her knee and back pain had worsened. Burnett's disability report stated she was in const ant pain from her leg and spine and that she could neither s it nor stand for too long. Her vocational report again ind icated she formerly worked at a supermarket as a "deli clerk," and also that she had worked in the meat department, weighin g, wrapping, and lifting trays of meat. Also, the SSA claims interviewer again stated Burnett had difficulty wit h sitting

5and also with walking, noting that she had to stand several

times during the interview and that she walked with a limp.

After her application was again denied, Burnett req uested a hearing before an ALJ, which was held on February 1, 1995. Burnett testified her job involved being on h er feet all day, lifting 50 pound cases of cheese from trucks o nto dollies, wheeling them to her department, unloading the cases, cutting cheese, and bending. She maintained she has constant and persistent pain in her knee and lo wer back. Burnett has never been hospitalized or sought emergency care for this condition. She also testifi ed she takes several different pain medications which help somewhat and do not cause any side effects. Burnett also treats her pain with warm soaks and a heating pad. She uses a "donut" to sit to alleviate the pain and num bness in

her back. She cannot stand and walk for more than t hirty minutes before her leg gets numb and she has to sit , and she cannot sit for more than twenty or thirty minut es before her spine hurts or her tailbone gets numb an d she has to stand. She also claims she cannot sleep for more than four hours per night due to the pain. She can only do light shopping and household chores and cannot bend without pain. She goes grocery shopping but can onl y lift a five pound bag. According to Burnett, she is in con stant pain, which is worsened by physical activity, and s he cannot engage in social activities or work.

Burnett's husband, George Burnett, submitted a lett er to the ALJ attesting that, since her fall, Burnett can neither stand nor sit for any length of time without substa ntial pain, that she has chronic trouble sleeping, and th at she is dependent on pain pills. Burnett's neighbor, Earl S herman, also testified at the hearing and confirmed Burnett 's pain and difficulty standing, walking, and sitting.

The ALJ denied Burnett's claim on August 17, 1995 i n a written opinion. R. 10-18. He first concluded Burne tt had not engaged in substantial gainful activity since M ay 18, 1991, the alleged date of the onset of her disabili ty. He next found that, since that time, Burnett has been suffe ring from "a severe musculoskeletal impairment." R. 15. However, the ALJ concluded Burnett's impairment fai led to meet or equal the level of severity of any of the l isted

6disabling conditions set forth in Appendix 1, Subpa rt P of

Social Security Regulations No. 4. See 20 C.F.R. Pt . 404, Subpart P, App. 1 (1999). Finally, he determined Bu rnett "retained the residual functional capacity to perfo rm her past relevant work as a delicatessen clerk, an occu pation requiring light exertional demands." R. 18. Therefo re, the
ALJ concluded Burnett was not disabled.

Burnett requested review of the ALJ's decision by t he Appeals Council, asserting the decision was not sup ported by substantial evidence. In March 1996, the Appeals Council denied her request for review, rendering th e ALJ's
decision the final decision of the Commissioner for purposes of judicial review. Having exhausted her administrative remedies, in April 1996, Burnett sou ght
review of the Commissioner's final decision in U.S. District Court pursuant to 42 U.S.C. S 405(g). The District Court
affirmed the Commissioner's denial of benefits and dismissed Burnett's case in August 1999.

II. Discussion

We review the ALJ's decision under the same standar d of review as the District Court, to determine whether there is substantial evidence on the record to support the A LJ's decision. See 42 U.S.C. S 405(g); Plummer v. Apfel, 186 F.3d 422, 427 (3d Cir. 1999) (citing Adorno v. Shalala, 40 F.3d 43, 46 (3d Cir.1994)). Substantial evidence has bee n defined as "more than a mere scintilla"; it means " such relevant evidence as a reasonable mind might accept as adequate." Plummer, 186 F.3d at 427 (internal quota tions omitted).

In order to establish a disability under the Social Security Act, Burnett must demonstrate some " `medically determinable basis for an impairment that prevents him from engaging in any "substantial gainful activity" for a statutory twelve-month period.' " Plummer , 186 F.3 d at 427 (quoting Stunkard v. Secretary of Health & Human Se rvs., 841 F.2d 57, 59 (3d Cir.1988)); see also 42 U.S.C. S 423(d)(1). Burnett is considered unable to engage in any substantial gainful activity " `only if[her] physic al or mental impairment or impairments are of such severity that [s]he

7is not only unable to do [her] previous work but ca nnot,

considering [her] age, education, and work experien ce, engage in any other kind of substantial gainful wor k which exists in the national economy.' " Id. at 427-28 (q uoting 42 U.S.C. S 423(d)(2)(A)).

In Plummer, we recounted the five step sequential evaluation for determining whether a claimant is un der a disability, as set forth in 20 C.F.R. S 404.1520:

In step one, the Commissioner must determin e whether the claimant is currently engaging i n substantial gainful activity. 20 C.F.R. S 15 20(a). If a claimant is found to be engaged in substanti al activity, the disability claim will be denied. Bowen v . Yuckert, 482 U.S. 137, 140, 107 S.Ct. 2287, 2290-91, 96 L.Ed.2d 119 (1987). In step two, the Commiss ioner
must determine whether the claimant is suffe ring from a severe impairment. 20 C.F.R. S 404.1520(c) . If the claimant fails to show that her impairments are "severe", she is ineligible for disability b enefits.

In step three, the Commissioner compares th e medical evidence of the claimant's impairmen t to a list of impairments presumed severe enough to pre clude any gainful work. 20 C.F.R. S 404.1520(d). I f a claimant does not suffer from a listed impairment or its equivalent, the analysis proceeds to steps f our andfive. Step four requires the ALJ to consider wheth er the claimant retains the residual functional cap acity to perform her past relevant work. 20 C.F.R. S 404.1520(d). The claimant bears the burden of demonstrating an inability to return to her past relevant work. Adorno v. Shalala, 40 F.3d 43 , 46 (3d Cir. 1994).

If the claimant is unable to resume her for mer occupation, the evaluation moves to the fina l step. At this stage, the burden of production shifts to the Commissioner, who must demonstrate the claim ant is capable of performing other available work i n order to deny a claim of disability. 20 C.F.R. S 404. 1520(f). The ALJ must show there are other jobs existing in significant numbers in the national economy which the

8claimant can perform, consistent with her me dical

impairments, age, education, past work exper ience, and residual functional capacity. The ALJ mu st analyze
the cumulative effect of all the claimant's impairments in determining whether she is capable of per forming
work and is not disabled.

Plummer, 186 F.3d at 428.

In this case, the ALJ addressed the first four step s and found: (1) Burnett has not engaged in substantial g ainful activity since May 18, 1991; (2) Burnett is severel y impaired, that is, she suffers from a "severe musculoskeletal impairment"; (3) Burnett's impairme nt does not meet or equal the criteria for a listed im pairment; and (4) Burnett has the residual functional capacit y to enable her to perform her past relevant work as a "delicatessen clerk." R. 17-18. Accordingly, the AL J concluded that Burnett is not disabled for purposes of Social Security disability benefits. The ALJ did no t reach step five of the analysis.

On appeal, Burnett first contends the ALJ erred in step three by finding her impairment did not meet or equ al a listed impairment. Second, Burnett argues the ALJ e rred in step four by finding she had the residual functiona l capacity to enable her to perform her past relevant work. Finally, Burnett asserts remand for a step five ana lysis is unnecessary because the record is clear she cannot perform any work in the national economy. Therefore , she maintains, we should vacate and remand with a direc tive to
award benefits.

A. Step Three: Whether Burnett's Impairment Matches or is Equivalent to a Listed Impairment

In step three, the ALJ must determine whether Burne tt's impairment matches, or is equivalent to, one of the listed impairments. See Plummer, 186 F.3d at 428. If the impairment is equivalent to a listed impairment, th en Burnett is per se disabled and no further analysis is necessary. See id. The ALJ's step three analysis st ates in its entirety:

Although [Burnett] has established that she suffers from a severe musculoskeletal [impairment], said

9impairment failed to equal the level of seve rity of any

disabling condition contained in Appendix 1, Subpart P of Social Security Regulations No. 4.

R. 16.

Burnett first contends ALJ erred by making only a conclusory statement without mentioning any specifi c listed impairments or explaining his reasoning. Second, Bu rnett
asserts the ALJ erred because there was not substan tial evidence to conclude her knee and back impairments were not equivalent to impairments listed in sections 1. 03 and 1.05C of the listed impairments. Third, Burnett ass erts the ALJ erred by not considering the combined effects o f her impairments in determining whether they were equiva lent to a listed impairment. See 20 C.F.R. S 404.1527(a) (stating that, if there is more than one impairment, the SSA will consider whether the combination of impairments are equivalent to any listed impairment).

As to Burnett's first contention, this Court requir es the
ALJ to set forth the reasons for his decision. See Cotter v. Harris, 642 F.2d 700, 704-05 (3d Cir. 1981). In Cli fton v. Chater, 79 F.3d 1007 (10th Cir. 1996), the Tenth Ci rcuit Court of Appeals set aside an ALJ's determination b ecause the ALJ "merely stated a summary conclusion that appellant's impairments did not meet or equal any L isted Impairment," without identifying the relevant liste d impairments, discussing the evidence, or explaining his reasoning. Id. at 1009. The Court concluded"[s]uch a bare conclusion is beyond meaningful judicial review." I d. But see Senne v. Apfel, 198 F.3d 1065, 1067 (8th Cir. 1 999) (rejecting claimant's argument that the conclusory form of the ALJ's decision alone justified remand, but rema nding

nonetheless because the court could not conclude th e ALJ's step three finding was supported by substantial evi dence). We agree with Burnett the ALJ's conclusory statemen t in this case is similarly beyond meaningful judicial r eview. Cf. Knepp v. Apfel, 204 F.3d 78, 84 (3d Cir. 2000) (aff irming where ALJ gave reasons for determining claimant's impairment was not equivalent to a listed impairmen t cited by medical witness at hearing). Because we have no way to review the ALJ's hopelessly inadequate step three r uling, we
will vacate and remand the case for a discussion of the

10evidence and an explanation of reasoning supporting a

determination that Burnett's "severe" impairment do es not meet or is not equivalent to a listed impairment. 2 On

___________________________________________________ ______________

2. At the hearing in front of the ALJ, Burnett's co unsel did not identify or raise the two listed impairments which he now ar gues are pertinent. On appeal, the Commissioner does not assert that Bu rnett or her counsel were required to do so. While the burden is on the claimant to present medical findings that show his or her impai rment matches a listing or is equal in severity to a listed impairm ent, see Williams v. Sullivan, 970 F.2d 1178, 1186 (3d Cir. 1992), it is unclear from the regulations or caselaw whether a claimant must iden tify the relevant listing(s). The applicable regulations indicate tha t it is within the

realm of the ALJ's expertise to determine the closest app licable listed impairment, based on the medical evidence, when exa mining whether a claimant's impairments meet or equal a listed impai rment:

(a) How a medical equivalence is determined. We will decide that your impairment(s) is medically equivalent t o a listed impairment

in appendix 1 if the medical findings are at le ast equal in severity

and duration to the listed findings. We will com pare the symptoms, signs, and laboratory findings about your im pairment(s), as shown in the medical evidence we have about your c laim, with the medical criteria shown with the listed impairment. I f your impairment is

not listed, we will consider the listed impairme nt most like your impairment to decide whether your impairment is medically equal. If you have more than one impairment, and no ne of them meets or equals a listed impairment, we will review t he symptoms, signs, and laboratory findings about your impairment to determine whether the combination of your impairments is medically equal to any listed impairment.

20 C.F.R. S 404.1526 (1999). See also Clifton v. Ch ater, 79 F.3d at 1009 (noting, in reversing ALJ determination that claima nt was not disabled at step three, that ALJ did not "even identify the relevant Listing or Listings"). Putting the responsibility on the ALJ t o identify the relevant listed impairment(s) is consistent with the nature of Social Security disability proceedings which are "inquisitorial rat her than adversarial" and in which "[i]t is the ALJ's duty to investigate the facts and develop the arguments both for and against granting benefit s." Sims v. Apfel, No. 98-9537, 120 S.Ct. 2080, 2000 U.S. LEXIS 3766, at * 15 (June 5, 2000) (citing Richardson v. Perales, 402 U.S. 389, 400-01 , 28 L.Ed.2d 842, 91 S.Ct. 1420 (1971)). Such reasoning is further suppo rted by the fact "that a large portion of Social Security [disability bene fits] claimants either have no representation at all or are represented by non-attorneys." Id. at *17 (citation omitted).11remand, the ALJ shall fully develop the record and explain

his findings at step three, including an analysis o f whether and why Burnett's back and knee impairments, or tho se impairments combined, are or are not equivalent in severity to one of the listed impairments.

B. Step Four: Whether Burnett's Residual Functional Capacity Enables Her to Perform Past Relevan t
Work

In step four, the ALJ must determine whether a claimant's residual functional capacity enables her to perform her past relevant work. This step involves three substeps: (1) the ALJ must make specific findings o f fact as to the claimant's residual functional capacity; (2) the ALJ must make findings of the physical and mental deman ds of the claimant's past relevant work; and (3) the ALJ must compare the residual functional capacity to the pas t
relevant work to determine whether claimant has the level of capability needed to perform the past relevant w ork. See 20 C.F.R. S 404.1561; S.S.R. 82-62; Winfrey v. Chat er, 92 F.3d 1017, 1023 (10th Cir. 1996). Both residual fun ctional capacity and past relevant work may be classified a s either "sedentary," "light," "medium,""heavy," or "very he avy." See Adorno, 40 F.3d at 47; 20 C.F.R. S 404.1567.

The ALJ first determined Burnett had a residual functional capacity to perform "light" work. R. 16- 17. Second, the ALJ found her past relevant work was as a delicatessen clerk and consisted of "light" work. I d. Finally,
the ALJ concluded that she had the residual functio nal capacity to perform her past relevant work as a del icatessen
clerk. Id. Burnett contends the ALJ erred in determ ining both her residual functional capacity and her past relevant work. We agree.

1. The Residual Functional Capacity Determination

" `Residual functional capacity' is defined as that which an individual is still able to do despite the limit ations

___________________________________________________ ______________

Because the ALJ concluded that Burnett had a "sever e musculoskeletal impairment," it follows that, on re mand, the analysis of the listed impairments should focus on those listed in 20 C.F.R. Pt. 404, Subpt. P. App. 1, Pt. A S 1.00 (Musculoskeletal Sys tem).

12caused by his or her impairment(s)." Hartranft v. A pfel, 181

F.3d 358, 359 n.1 (3d Cir. 1999) (citing 20 C.F.R. S 404.1545(a)). The ALJ determined Burnett had the residual functional capacity to perform "light" wor k, which:

involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weig hing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it re quires a good deal of walking or standing, or when it invo lves sitting most of the time with some pushing and pulli ng of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these act ivities.

20 C.F.R. S 404.1567(b). Burnett contends the ALJ's decision is not supported by substantial evidence b ecause: (i) the ALJ failed to consider all of the evidence before him; (ii) the ALJ failed to consider the combined effect s of her two impairments; and (iii) the evidence does not su pport a finding she can perform "light" work.

The ALJ did err by reason of his failure to conside r and explain his reasons for discounting all of the pert inent evidence before him in making his residual function al capacity determination. In making a residual functi onal capacity determination, the ALJ must consider all e vidence before him. See Plummer, 186 F.3d at 429; Doak v. H eckler, 790 F.2d 26, 29 (3d Cir. 1986). Although the ALJ ma y weigh the credibility of the evidence, he must give some indication of the evidence which he rejects and his reason(s) for discounting such evidence. See Plumme r, 186 F.3d at 429; Cotter, 642 F.2d at 705. "In the absen ce of such an indication, the reviewing court cannot tell if significant probative evidence was not credited or simply ignored." Cotter, 642 F.2d at 705.

In Adorno, this Court set aside an ALJ determinatio n for
failure to mention and refute some of the contradic tory
medical evidence before him. See 40 F.3d at 48. Sim ilarly,
the ALJ in this case failed to mention or refute so me of the contradictory medical evidence before him. The ALJ discussed the following objective medical evidence in his
determination:

13- Dr. Surgent's diagnosis of chondromalacia in the

knee with minor swelling and muscle weakness ;

- MRI scan of lower back showing mild disc b ulge without stenosis;

- X-rays showing slight narrowing of the lat eral compartment of the knee;

- The physical therapist's report of good st rength and range of motion in knee;

- Dr. Mittman's report of no tenderness or i nstability in knee and his releasing her to return to w ork;

- Dr. Hess's report finding no objective ort hopaedic defects, normal range of motion in back and knee, no muscle spasm, negative straight leg raisi ng test, normal neurological responses, and ability t o lift 20 pounds and sit and stand throughout workday;

- Dr. Knapp's diagnosis of knee sprain, lumb ar sprain, and lumbar myositis and his findings of good knee stability, no atrophy in knee, abi lity to perform heel to toe walking, no crepitus, ne arly normal range of motion in spine, and muscle spasm in back;

- Dr. Berkowitz's prescription of non-steroi dal anti- inflammatory medication and physical therapy ;

- the side effects of her medication.3

However, the ALJ failed to mention some contradicto ry, objective medical evidence, including:

- Dr. Makowski's diagnosis, via MRI scan per formed by Dr. Vitale, of first degree spondylolisth esis in her lower back;

- Dr. Atienza's diagnoses of osteoarthritis and chronic pain syndrome and Dr. Sandler's concurrence in these diagnoses;

- MRI of knee showing joint effusion;

___________________________________________________ ______________

3. This finding is required by Stewart v. Secretary of HEW, 714 F.2d 287, 290 (3d Cir. 1983).

14- Dr. Surgent's report that Burnett still ha s grating

sensation in the knee and has reached a plat eau with regards to further treatment;

- Dr. Knapp's report of a loss of 10 degree range of motion in spine and that she is 30% permanen tly and totally disabled with no prognosis of improvement;

- Dr. Berkowitz's report of a mild limp, ten derness over sacrum and coccyx, and diagnosis of hyperlordosis;

- Dr. Hess' assessment that Burnett could si t and stand only "intermittently."

The ALJ's failure to mention and explain this contr adictory medical evidence was error. See Adorno, 40 F.3d at 48; Cotter, 642 F.2d at 707. On remand, the ALJ must re view all of the pertinent medical evidence, explaining h is conciliations and rejections.

Similar to the medical reports, the ALJ must also consider and weigh all of the non-medical evidence before him. See Van Horn v. Schweiker, 717 F.2d 871, 873 ( 3d Cir. 1983); Cotter, 642 F.2d at 707. Although allegation s of pain and other subjective symptoms must be consistent wi th objective medical evidence, see Hartranft, 181 F.3d at 362 (citing 20 C.F.R. S 404.1529), the ALJ must still e xplain why he is rejecting the testimony. See Van Horn , 7 17 F.2d at 873. In Van Horn, this Court set aside an ALJ's finding because he failed to explain why he rejected certai n nonmedical testimony. See 717 F.2d at 873. In this cas e, the ALJ explained he rejected Burnett's testimony regar ding the extent of her pain because he determined it was not supported by the objective medical evidence. Howeve r, the ALJ failed to mention the testimony of Burnett's hu sband, George Burnett, and her neighbor, Earl Sherman. On appeal, the Commissioner contends the ALJ did not n eed to mention their testimony because it "added nothing m ore than stating [Burnett's] testimony was truthful." Commissioner's Brief at 21. This argument lacks mer it because the ALJ made a credibility determination re garding Burnett, and these witnesses were there to bolster her credibility. R. 17 ("claimant's allegations of disa bility made

15at hearing are unsubstantiated"). In Van Horn , we stated we

expect the ALJ to address the testimony of such add itional witnesses. On remand, the ALJ must address the test imony of George Burnett and Earl Sherman.

Next, Burnett contends the ALJ erred by failing to
consider the combined effect of her knee and back impairments. Burnett is correct that the ALJ must c onsider the combined effect of multiple impairments, regard less of their severity. See 20 C.F.R. S 404.1545. The ALJ's opinion
indicates he did consider the combined effects of B urnett's impairments. However, because the ALJ failed to con sider all pertinent evidence, that ruling is brought into question. On remand, the ALJ must properly consider the combi ned effects of Burnett's two impairments.

Finally Burnett asserts the ALJ's finding that she can perform "light" work is not supported by substantia l record
evidence. Burnett claims she lacks the residual fun ctional capacity to even perform "sedentary" work. 4 Becaus e the ALJ erred in not evaluating all of the medical evid ence, this
Court cannot now assess whether the ALJ's determina tion that Burnett has the residual functional capacity t o perform "light" work was supported by substantial evidence, let alone assess whether she lacks the re sidual functional capacity to even perform "sedentary" wor k.

2. The Past Relevant Work Determination

A determination of past relevant work is a determin ation of the "physical and mental demands of jobs a claim ant has performed in the past." S.S.R. 82-62. The ALJ deter mined Burnett's past relevant work was as a "delicatessen clerk" which involved only "light" work. R. 16-17. Burnett challenges the ALJ's conclusion that her past relev ant work

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4. "Sedentary" work:

involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket fil es, ledgers, and small

tools. Although a sedentary job is defined as one w hich involves sitting,

a certain amount of walking and standing is of ten necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentar y criteria are met.

20 C.F.R. S 404.1567(a).

16was "light" work as being unsupported by substantia l

evidence. We agree.

S.S.R. 82-62 sets forth the evidence which should b e considered in making a determination of a claimant' s past
relevant work:

The claimant is the primary source for vocat ional documentation, and statements by the claiman t regarding past work are generally sufficient for determining the skill level, exertional dema nds and
nonexertional demands of such work. Determin ation of the claimant's ability to do [past relevant work] requires a careful appraisal of (1) the indi vidual's statements as to which past work requirement s can no longer be met and the reason(s) for his or h er inability to meet those requirements; (2) medical evid ence establishing how the impairment limits abili ty to meet the physical and mental requirements of the work; and (3) in some cases, supplementary or corrobor ative information from other sources such as emplo yers, the Dictionary of Occupational Titles, etc., on the requirements of the work as generally perfor med in the

economy.

S.S.R. 82-62 (emphasis added). The assessment of a claimant's past relevant work must be based on some evidence drawn from the above three categories list ed in S.S.R. 82-62. See Brewster v. Heckler, 786 F.2d 581 , 584 (3d Cir. 1986); Cotter, 642 F.2d at 707. It is clea r error to make a past relevant work determination that is con trary to uncontroverted evidence presented by the claimant. See id.

In both Brewster and Cotter, the ALJ was presented with
uncontroverted evidence from the claimant about the nature of the claimant's past relevant work. See id . The ALJ was not presented with and did not cite any contrad ictory evidence, such as a Dictionary of Occupational Titl es ("DOT") description of how the job is performed in the national economy. See id. In both cases, the ALJ re jected the claimant's testimony and found the past relevan t work to be of a different nature. See id. In both cases, this Court reversed the ALJ's determination as being unsupport ed by
substantial evidence in the record because the ALJ' s

17assessment was different from the claimant's

uncontroverted testimony about the demands of his p ast
relevant work. See id.

In this case, the ALJ was presented with uncontrove rted evidence submitted by Burnett. In her description o f her past relevant work on her vocational report, Burnet t indicated she was a "deli clerk," who walked and st ood 8 hours out of an 8 hour day, lifted a maximum of 50 pounds at a time, frequently lifted 25 pounds, constantly had to bend, cut and wrapped cheese, and used a slicer to clean cheese. In her testimony before the ALJ, she stated her past relevant work involved being on her feet all day, l ifting 50 pound cases of cheese from trucks onto dollies, cut ting cheese, and bending. This uncontroverted evidence indicates her past relevant work involved "medium" work.5

However, the ALJ rejected Burnett's testimony and f ound her past relevant work involved "light" work. R. 16 , 18. The ALJ held Burnett's description of her past relevant work was "inconsistent with the way this occupation is customarily performed in the national economy." R. 16. Although the Commissioner argues this decision is supported by three pieces of evidence, this purport ed
evidence does not contradict Burnett's vocational r eport and testimony.

The ALJ cited as contradictory evidence, a purporte d definition of "delicatessen clerk" in the DOT, whic h allegedly states this job involves light work. R. 1 6. "The Dictionary of Occupational Titles (DOT) description s can be relied upon -- for jobs that are listed in the DOT -- to define the job as it is usually performed in the national economy." S.S.R. 82-61 (emphasis added). In this case, the AL J made up the occupational title of "delicatessen clerk." It is simply nowhere to be found in the DOT, nor did the ALJ giv e any reference to a particular DOT code. An illusory def inition in the DOT cannot be relied upon and is not contradict ory evidence.

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5. "Medium work involves lifting no more than 50 po unds at a time with frequent lifting or carrying of objects weighing up to 25 pounds." 20 C.F.R. S 404.1567(c).

18The Commissioner, recognizing the ALJ created a non existent occupational title, attempts to substitute reliance on an alternative DOT job title and definition not relied upon by the ALJ, that of "Deli Cutter-Slicer," DOT S 316.684-014, which is rated as "light" work.6 How ever, on appeal the Commissioner cannot "recharacterize" the claimant's past relevant work "in an effort to make sense of the ALJ's decision." Adorno, 40 F.3d at 46-47. In A dorno, the claimant's undisputed testimony was that her fo rmer job was that of a machine operator, which exposed h er to fumes and heavy dust and that her asthma precluded such exposure. On appeal, the agency argued that the cla imant's past work was that of a cabinetmaker, which as desc ribed in the DOT did not expose the worker to dust and fu mes. We declared that such an "attempt to redefine[the claimant's] former occupation" was unsupported by
substantial evidence in the record. Id. at 47. Simi larly in this case, the Commissioner's attempt to redefine B urnett's past occupation is unsupported by substantial evide nce.

Even if the Court did allow this recharacterization of Burnett's job on appeal, the DOT can only be used t o supplement or corroborate evidence adduced from the claimant. See S.S.R. 82-62. The occupation of Deli CutterSlicer is different from the past relevant work des cribed by Burnett in that a Deli Cutter-Slicer merely cuts an d slices cheese and does not participate in the heavier work of unloading cases of cheese from trucks. See DOT S 31 6.684- 014. In contrast, Burnett testified her past releva nt work required her to lift heavy cases of cheese from tru cks. Since

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6. A Deli Cutter-Slicer:

Cuts delicatessen meats and cheeses, using s licing machine, knives,

or other cutters: Places meat or cheese on c utting board and cuts slices to designated thickness, using knives or other hand cutters. Positions and clamps meat or cheese on carri age of slicing machine. Adjusts knob to set machine for desired thic kness. Presses button to start motor that moves carriage past rota ry blade that slices meats and cheeses. Stacks cut pieces on tray or platter, separating portions with paper. May weigh and wrap slic ed foods and affix sticker showing price and weight.

DOT S 316.684-014.

19the DOT does not corroborate or supplement the

uncontroverted description given by Burnett, and is not consistent with her description of her past relevan t work,
this definition cannot be used to cast doubt on Bur nett's credibility as to her past relevant work.7

Inexplicably, the ALJ refuted Burnett's contention that she lifted 50 pound boxes of cheese by observing sh e"is diminutive, weighing no more than 100 pounds," maki ng it "unlikely" she would have been asked to lift 50 pou nds on the job. R. 17. However, an ALJ may not make specul ative conclusions without any supporting evidence, see Pl ummer, 186 F.3d at 429, not to mention conclusions apparen tly based on gender stereotyping. In this case, there i s absolutely no evidence, medical or otherwise, that a 5 foot tall, 100 pound woman would be unable to lift a 50 pound box. In making this conclusion, the ALJ went beyond the
uncontradicted evidence in the case and committed e rror.

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7. On appeal, Burnett asserts her past work was mor e akin to DOT S 299.367-014, Stock Clerk, which has alternate tit les including Delicatessen-Goods Stock Clerk, and is defined as f ollows:

Inventories, stores, prices, and restocks me rchandise displays in retail store: Takes inventory or examines me rchandise to identify items to be reordered or replenished. Requis itions merchandise from supplier based on available space, merchandi se on hand, customer demand, or advertised specials. Receives, op ens, and unpacks cartons or crates of merchandise, checking i nvoice against items received. Stamps, attaches, or changes price tags on merchandise, referring to price list. Stocks storage area s and displays with new

or transferred merchandise. Sets up advertising signs and displays merchandise on shelves, counters, or tables to attract customers and promote sales. Cleans display cases, she lves, and aisles. May
itemize and total customer merchandise selec tion at check out counter, using cash register, and accept cas h or charge card for purchases. May pack customer purchases in ba gs or cartons. May transport packages to specified vehicle for customer.

DOT S 299.367-014. Although this position generally involves the unloading of merchandise and is designated as a med ium to heavy occupation, it also involves other tasks related to inventory and pricing that, based on the current record, Burnett does not appear to have done in her past work. More likely, Burnett's past relev ant work falls
somewhere between a deli cutter-slicer and a deli s tock clerk as defined
in the DOT.

20Finally, the Commissioner notes that Burnett did no t

raise a specific objection to the ALJ's conclusion that she worked as a delicatessen clerk in her request for r eview to the Appeals Council.8 The Commissioner asserts that
, under the doctrine of administrative exhaustion, a court should not consider an argument which has not been specifically raised in agency proceedings which pre ceded the appeal. Therefore, the Commissioner argues, Bur nett may not raise this issue as grounds for appeal. We disagree. In Sims v. Apfel, supra note 2, the Supre me Court directly addressed this issue and held that Social Security disability "[c]laimants who exhaust administrative remedies need not also exhaust issues in a request for revie w by the Appeals Council in order to preserve judicial revie w of those issues." 2000 U.S. LEXIS 3766, at * 18. Therefore, Burnett is not precluded from raising this issue on appeal.

For the foregoing reasons, we hold the ALJ's assess ment of Burnett's past relevant work is not based on sub stantial evidence in the record. On remand, the ALJ should f ully develop the record and make specific findings as to the physical and mental demands of Burnett's past relev ant work. See SSR 82-62;9Winfrey, 90 F.3d at 1023. Abse nt additional evidence to the contrary, the ALJ must a ccept

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8. Parties make requests for review of a hearing de cision to the Appeals Council using a standard form, HA-520-U5 (3-94). R. at 6. Item number 5 of that form states "I request that the Appeals C ouncil review the Administrative Law Judge's action on the above clai m because:" and provides just three lines for the claimant to fill in the reason. Id.

Burnett in her request asserted generally that the ALJ's de cision was not supported by substantial evidence. Id.

9. SSR 82-62 states:

Sufficient documentation will be obtained to support the decision.

. . .

Adequate documentation of past work includes factual information
about those work demands which have a bearin g on medically
established limitations. Detailed informatio n about strength, endurance, manipulative ability, mental dema nds and other jobs requirements must be obtained as appropriate . This information will be derived from a detailed description of th e work obtained from

the claimant, employer, or other informed source

. . . .

21Burnett's representations and enter a finding that Burnett's

past relevant work involved "medium" work. 10

C. Step Five: Whether Burnett Could Perform Other Work in the Economy

The final step is an analysis of whether Burnett, b ased on her age, experience, and education, can perform any other available work in the economy. See Plummer , 186
F.3d at 428. Burnett contends this Court need not r emand for a step five analysis because this determination involves simple application of the Medical-Vocational Guidel ines or "Grids," see 20 C.F.R. Pt. 404, Subpart P, App.2, t o determine that Burnett is disabled. More specifical ly, Burnett maintains that because of her advanced age, 56 years old at the time of alleged onset of the disab ility in 1991, her limited education, and lack of transferab le skills, regardless of whether she is capable of performing" light" work as the ALJ determined, or "sedentary" work, th e Grids dictate a finding of disability. Therefore, she ass erts, a remand is unnecessary. We disagree.

A step five analysis can be quite fact specific, in volving more than simply applying the Grids, including, per haps, testimony of a vocational expert. See, e.g., Plumme r, 186 F.3d at 431. Although Burnett's age and education l evel are undisputed, from the record we cannot be confident that Burnett possess no skills or is not semi-skilled wi th
transferable skills. Therefore we must remand for f urther factual findings with regard to the level and trans ferability
of Burnett's skills.

III. Conclusion

For the foregoing reasons, the District Court's dis missal of Burnett's claim will be VACATED, and the case
REMANDED to the District Court with directions to r emand to the Commissioner for additional proceedings cons istent with this opinion.

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10. Should the ALJ continue to find Burnett to have a residual functional capacity for "light" work and that Burne tt's past relevant work was "medium," then the ALJ must enter a finding Bur nett lacks the residual functional capacity to perform her past re levant work.

22On remand, the ALJ shall fully develop the record a nd

explain his findings at step three, including an an alysis of whether and why Burnett's combined impairments are or are not equivalent in severity to one of the listed impairments. If it is necessary to reach step four, in determining Burnett's residual functional capacity, the ALJ must make specific findings as to all of the pertin ent medical evidence, reconciling conflicts and, if rej ecting particular evidence, explaining why; must address t he nonmedical evidence of George Burnett and Earl Sherman ; and
must consider the combined effects of Burnett's two impairments in conjunction with any medical evidenc e previously not considered and not rejected on reman d. Additionally, the ALJ should fully develop the reco rd and make specific findings as to the physical and menta l demands of Burnett's past relevant work. Finally, i f it is necessary to reach step five, the ALJ is directed t o make the requisite factual findings with regard to the l evel and transferability of Burnett's skills.

A True Copy:

Teste:

Clerk of the United States Court of Appeals
for the Third Circuit

23