2000 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-25-2000

Burnett v. Comm. Social Security Admin.

Precedential or Non-Precedential:

Docket 99-5827

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Recommended Citation

"Burnett v. Comm. Social Security Admin." (2000). 2000 Decisions. Paper 151.

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Filed 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, assumed Senior Status 

on 6/30/00. Honorable Murray M. Schwartz, Senior United States 

District Judge for the District of Delaware, sitting 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 denial of 

her application for social security disability insurance 

benefits under Title II of the Social Security Act ("the Act"), 

42 U.S.C. SS 401-433, has appealed the District Court's 

order affirming the final decision of appellee, Commissioner 

of Social Security ("Commissioner"), to deny Burnett's claim 

for disability benefits. The District Court exercised 

jurisdiction under 42 U.S.C. S 405(g), and this Court 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 with 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 injured 

her right knee and lower back in a slip and fall accident at 

work in December 1989. Burnett maintains her back and 

knee injuries have rendered her totally unable to work 

since May 18, 1991. 

A. Medical History 

Burnett was first seen for her knee injury in January, 

1990 by Dr. Charles Makowski, who placed her on a 

conservative treatment regime and referred her to Dr. 

Richard Surgent. Dr. Surgent observed minor swelling, 

 2 
tenderness of the patella, and muscle weakness in her knee 

and that she walked with an antalgic gait, favoring her 

right side. Dr. Surgent ordered an x-ray of the knee, which 

showed slight narrowing of the medial compartment and 

joint effusion. He diagnosed her with chondromalacia and 

prescribed pain killers and physical therapy. 

Burnett received physical therapy through Pinelands

Physical Therapy from January 1990 through March 1990. 

In March, 1990 the physical therapist's discharge summary 

indicated that Burnett had "progressed well" and had 

returned to work. Dr. Surgent's notes regarding a March 

27, 1990 visit indicated Burnett still had some tenderness 

and grating sensation in the right knee but concluded she 

had reached a plateau with regard to further treatment. 

In the summer of 1991, Burnett twice visited Dr. 

Makowski, complaining of back pain. MRI scans of her 

lower back performed for Dr. Makowski indicatedfirst 

degree spondylolisthesis of the lumbar spine (slight forward 

displacement of L5 over S1) but no significant spinal 

stenosis. An X-ray of Burnett's knee showed joint effusion 

and a narrowed medial compartment. Dr. Makowski again 

referred Burnett to Dr. Surgent, although she apparently 

did not see him. Dr. Makowski prescribed pain killers 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 instability in the 

knee. He also noted some discomfort, some patellofemoral 

grinding, and a 1/4 inch atrophy in her right quadricep. He 

gave Burnett an injection for pain. At a follow-up visit in 

February, Dr. Mittman concluded Burnett did not have a 

significant problem with her knee and that she could return 

to work, noting, however, he was not authorized to deal 

with Burnett's back problems. 

 3 
In April 1992, Dr. Alfred Hess conducted a consultive 

orthopedic examination of Burnett for the Social Security 

Administration ("SSA"). He observed no joint inflammation, 

crepitus, or pain on palpation of extremities; normal 

strength and range of motion in the knee; a small cyst in 

the right knee; no muscle atrophy; normal gait with no 

significant antalgia or ataxia and no need for assistive 

device. He noted a swelling on the coccyx, and concluded 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 pounds 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 favored her 

right leg slightly, and could not assume even a partial 

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 diagnosed 

her with bilateral paravertebral lumbar myositis, 

lumbosacral sprain, and right knee sprain. Dr. Knapp 

found Burnett's flexion and extension in her back to 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 Berkowitz. 

His examination revealed "a mild limp on the right,

tenderness over sacrum and coccyx posteriorly with a 

limited range of motion, [and] an equivocal straight leg test 

on the right." R. 169. He also noted no neurological deficits. 

Based on review of Burnett's earlier computerized 

tomography ("CT") scan and MRI, Dr. Berkowitz diagnosed 

her with a degenerative disk at the L5-S1 level with 

hyperlordosis of the lumbar spine, but noted there was no 

evidence of spinal stenosis or nerve root entrapment. He 

_________________________________________________________________ 

1. The Administrative Record is referred to as"R. ___." 

 4 
prescribed non-steroidal anti-inflammatory medication 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 completed a 

disability determination and transmittal form on January 

29, 1994. Based solely on her records, he concluded

Burnett could frequently lift 25 pounds and occasionally lift 

50 pounds, could stand/walk for 6 out of 8 hours per day, 

could sit for 6 out of 8 hours per day, had no limitations on 

pushing or pulling arm or leg controls, and could frequently 

engage in postural activities, such as climbing, stooping, 

kneeling, crouching, and crawling. He listed diagnoses of 

osteoarthritis and chronic pain syndrome, but noted no 

neurological deficit. On April 28, 1994, Dr. Sandler, 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 injuries 

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 at 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, frequently lift 

25 pounds, constantly bend, cut and wrap cheese, and use 

a slicer to clean cheese. The Social Security interviewer who 

took Burnett's application stated Burnett had difficulty 

sitting, had to stand periodically during the interview, 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 constant pain 

from her leg and spine and that she could neither sit nor 

stand for too long. Her vocational report again indicated she 

formerly worked at a supermarket as a "deli clerk," and also 

that she had worked in the meat department, weighing, 

wrapping, and lifting trays of meat. Also, the SSA claims 

interviewer again stated Burnett had difficulty with sitting 

 5 
and 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 requested 

a hearing before an ALJ, which was held on February 1, 

1995. Burnett testified her job involved being on her feet all 

day, lifting 50 pound cases of cheese from trucks onto 

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 lower 

back. Burnett has never been hospitalized or sought

emergency care for this condition. She also testified 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 numbness in 

her back. She cannot stand and walk for more than thirty 

minutes before her leg gets numb and she has to sit, and 

she cannot sit for more than twenty or thirty minutes 

before her spine hurts or her tailbone gets numb and 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 only lift a 

five pound bag. According to Burnett, she is in constant 

pain, which is worsened by physical activity, and she 

cannot engage in social activities or work. 

Burnett's husband, George Burnett, submitted a letter to 

the ALJ attesting that, since her fall, Burnett can neither 

stand nor sit for any length of time without substantial 

pain, that she has chronic trouble sleeping, and that she is 

dependent on pain pills. Burnett's neighbor, Earl Sherman, 

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 in a 

written opinion. R. 10-18. He first concluded Burnett had 

not engaged in substantial gainful activity since May 18, 

1991, the alleged date of the onset of her disability. He next 

found that, since that time, Burnett has been suffering 

from "a severe musculoskeletal impairment." R. 15. 

However, the ALJ concluded Burnett's impairment failed to 

meet or equal the level of severity of any of the listed 

 6 
disabling conditions set forth in Appendix 1, Subpart P of 

Social Security Regulations No. 4. See 20 C.F.R. Pt. 404, 

Subpart P, App. 1 (1999). Finally, he determined Burnett 

"retained the residual functional capacity to perform her 

past relevant work as a delicatessen clerk, an occupation 

requiring light exertional demands." R. 18. Therefore, the 

ALJ concluded Burnett was not disabled. 

Burnett requested review of the ALJ's decision by the 

Appeals Council, asserting the decision was not supported 

by substantial evidence. In March 1996, the Appeals

Council denied her request for review, rendering the ALJ's 

decision the final decision of the Commissioner for

purposes of judicial review. Having exhausted her 

administrative remedies, in April 1996, Burnett sought 

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 standard of 

review as the District Court, to determine whether there is 

substantial evidence on the record to support the ALJ'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 been 

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 quotations 

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.3d at 427 

(quoting Stunkard v. Secretary of Health & Human Servs., 

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] physical or mental 

impairment or impairments are of such severity that[s]he 

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

considering [her] age, education, and work experience, 

engage in any other kind of substantial gainful work which 

exists in the national economy.' " Id. at 427-28 (quoting 42 

U.S.C. S 423(d)(2)(A)). 

In Plummer, we recounted the five step sequential 

evaluation for determining whether a claimant is under a 

disability, as set forth in 20 C.F.R. S 404.1520: 

 In step one, the Commissioner must determine 

 whether the claimant is currently engaging in 

 substantial gainful activity. 20 C.F.R. S 1520(a). If a 

 claimant is found to be engaged in substantial 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 Commissioner 

 must determine whether the claimant is suffering 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 benefits. 

 In step three, the Commissioner compares the 

 medical evidence of the claimant's impairment to a list 

 of impairments presumed severe enough to preclude 

 any gainful work. 20 C.F.R. S 404.1520(d). If a claimant 

 does not suffer from a listed impairment or its 

 equivalent, the analysis proceeds to steps four andfive. 

 Step four requires the ALJ to consider whether the 

 claimant retains the residual functional capacity 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 former 

 occupation, the evaluation moves to the final step. At 

 this stage, the burden of production shifts to the 

 Commissioner, who must demonstrate the claimant is 

 capable of performing other available work in 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 

 8 
 claimant can perform, consistent with her medical 

 impairments, age, education, past work experience, 

 and residual functional capacity. The ALJ must analyze 

 the cumulative effect of all the claimant's impairments 

 in determining whether she is capable of performing 

 work and is not disabled. 

Plummer, 186 F.3d at 428. 

In this case, the ALJ addressed the first four steps and 

found: (1) Burnett has not engaged in substantial gainful 

activity since May 18, 1991; (2) Burnett is severely 

impaired, that is, she suffers from a "severe 

musculoskeletal impairment"; (3) Burnett's impairment 

does not meet or equal the criteria for a listed impairment; 

and (4) Burnett has the residual functional capacity to 

enable her to perform her past relevant work as a 

"delicatessen clerk." R. 17-18. Accordingly, the ALJ 

concluded that Burnett is not disabled for purposes of 

Social Security disability benefits. The ALJ did not 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 equal a 

listed impairment. Second, Burnett argues the ALJ erred in 

step four by finding she had the residual functional 

capacity to enable her to perform her past relevant work. 

Finally, Burnett asserts remand for a step five analysis 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 directive 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 Burnett'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, then 

Burnett is per se disabled and no further analysis is 

necessary. See id. The ALJ's step three analysis states in its 

entirety: 

 Although [Burnett] has established that she suffers 

 from a severe musculoskeletal [impairment], said 

 9 
 impairment failed to equal the level of severity 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 specific listed 

impairments or explaining his reasoning. Second, Burnett 

asserts the ALJ erred because there was not substantial 

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 asserts the 

ALJ erred by not considering the combined effects of her 

impairments in determining whether they were equivalent 

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 requires the 

ALJ to set forth the reasons for his decision. See Cotter v. 

Harris, 642 F.2d 700, 704-05 (3d Cir. 1981). In Clifton v. 

Chater, 79 F.3d 1007 (10th Cir. 1996), the Tenth Circuit 

Court of Appeals set aside an ALJ's determination because 

the ALJ "merely stated a summary conclusion that 

appellant's impairments did not meet or equal any Listed 

Impairment," without identifying the relevant listed 

impairments, discussing the evidence, or explaining his 

reasoning. Id. at 1009. The Court concluded"[s]uch a bare 

conclusion is beyond meaningful judicial review." Id. But 

see Senne v. Apfel, 198 F.3d 1065, 1067 (8th Cir. 1999) 

(rejecting claimant's argument that the conclusory form of 

the ALJ's decision alone justified remand, but remanding 

nonetheless because the court could not conclude the ALJ's 

step three finding was supported by substantial evidence). 

We agree with Burnett the ALJ's conclusory statement in 

this case is similarly beyond meaningful judicial review. Cf. 

Knepp v. Apfel, 204 F.3d 78, 84 (3d Cir. 2000) (affirming 

where ALJ gave reasons for determining claimant's 

impairment was not equivalent to a listed impairment cited 

by medical witness at hearing). Because we have no way to 

review the ALJ's hopelessly inadequate step three ruling, we 

will vacate and remand the case for a discussion of the 

 10 
evidence and an explanation of reasoning supporting a 

determination that Burnett's "severe" impairment does not 

meet or is not equivalent to a listed impairment. 2 On 

_________________________________________________________________ 

2. At the hearing in front of the ALJ, Burnett's counsel did not identify 

or raise the two listed impairments which he now argues are pertinent. 

On appeal, the Commissioner does not assert that Burnett or her 

counsel were required to do so. While the burden is on the claimant to 

present medical findings that show his or her impairment matches a 

listing or is equal in severity to a listed impairment, see Williams v. 

Sullivan, 970 F.2d 1178, 1186 (3d Cir. 1992), it is unclear from the 

regulations or caselaw whether a claimant must identify the relevant 

listing(s). The applicable regulations indicate that it is within the 

realm 

of the ALJ's expertise to determine the closest applicable listed 

impairment, based on the medical evidence, when examining whether a 

claimant's impairments meet or equal a listed impairment: 

 (a) How a medical equivalence is determined. We will decide that 

 your impairment(s) is medically equivalent to a listed impairment 

in 

 appendix 1 if the medical findings are at least equal in severity 

and 

 duration to the listed findings. We will compare the symptoms, 

 signs, and laboratory findings about your impairment(s), as shown 

 in the medical evidence we have about your claim, with the medical 

 criteria shown with the listed impairment. If your impairment is 

not 

 listed, we will consider the listed impairment most like your 

 impairment to decide whether your impairment is medically equal. 

 If you have more than one impairment, and none of them meets or 

 equals a listed impairment, we will review the 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. Chater, 79 F.3d at 1009 

(noting, in reversing ALJ determination that claimant was not disabled 

at step three, that ALJ did not "even identify the relevant Listing or 

Listings"). Putting the responsibility on the ALJ to identify the relevant 

listed impairment(s) is consistent with the nature of Social Security 

disability proceedings which are "inquisitorial rather 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 benefits." 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 supported by the fact "that 

a large portion of Social Security [disability benefits] claimants either 

have no representation at all or are represented by non-attorneys." Id. at 

*17 (citation omitted). 
 11 
remand, the ALJ shall fully develop the record and explain 

his findings at step three, including an analysis of whether 

and why Burnett's back and knee impairments, or those 

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 Relevant 

 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 of fact as 

to the claimant's residual functional capacity; (2) the ALJ 

must make findings of the physical and mental demands of 

the claimant's past relevant work; and (3) the ALJ must 

compare the residual functional capacity to the past 

relevant work to determine whether claimant has the level 

of capability needed to perform the past relevant work. See 

20 C.F.R. S 404.1561; S.S.R. 82-62; Winfrey v. Chater, 92 

F.3d 1017, 1023 (10th Cir. 1996). Both residual functional 

capacity and past relevant work may be classified as either 

"sedentary," "light," "medium,""heavy," or "very heavy." 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. Id. Finally, 

the ALJ concluded that she had the residual functional 

capacity to perform her past relevant work as a delicatessen 

clerk. Id. Burnett contends the ALJ erred in determining 

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 limitations 

_________________________________________________________________ 

Because the ALJ concluded that Burnett had a "severe 

musculoskeletal impairment," it follows that, on remand, 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 System). 

 12 
caused by his or her impairment(s)." Hartranft v. Apfel, 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" work, which: 

 involves lifting no more than 20 pounds at a time with 

 frequent lifting or carrying of objects weighing up to 10 

 pounds. Even though the weight lifted may be very 

 little, a job is in this category when it requires a good 

 deal of walking or standing, or when it involves sitting 

 most of the time with some pushing and pulling 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 activities. 

20 C.F.R. S 404.1567(b). Burnett contends the ALJ's

decision is not supported by substantial evidence because: 

(i) the ALJ failed to consider all of the evidence before him; 

(ii) the ALJ failed to consider the combined effects of her 

two impairments; and (iii) the evidence does not support a 

finding she can perform "light" work. 

The ALJ did err by reason of his failure to consider and 

explain his reasons for discounting all of the pertinent 

evidence before him in making his residual functional 

capacity determination. In making a residual functional 

capacity determination, the ALJ must consider all evidence 

before him. See Plummer, 186 F.3d at 429; Doak v. Heckler, 

790 F.2d 26, 29 (3d Cir. 1986). Although the ALJ may 

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 Plummer, 186 

F.3d at 429; Cotter, 642 F.2d at 705. "In the absence 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 determination for 

failure to mention and refute some of the contradictory 

medical evidence before him. See 40 F.3d at 48. Similarly, 

the ALJ in this case failed to mention or refute some 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 bulge 

 without stenosis; 

 - X-rays showing slight narrowing of the lateral 

 compartment of the knee; 

 - The physical therapist's report of good strength and 

 range of motion in knee; 

 - Dr. Mittman's report of no tenderness or instability 

 in knee and his releasing her to return to work; 

 - Dr. Hess's report finding no objective orthopaedic 

 defects, normal range of motion in back and knee, 

 no muscle spasm, negative straight leg raising test, 

 normal neurological responses, and ability to lift 20 

 pounds and sit and stand throughout workday;

 - Dr. Knapp's diagnosis of knee sprain, lumbar 

 sprain, and lumbar myositis and his findings of 

 good knee stability, no atrophy in knee, ability to 

 perform heel to toe walking, no crepitus, nearly 

 normal range of motion in spine, and muscle spasm 

 in back; 

 - Dr. Berkowitz's prescription of non-steroidal anti- 

 inflammatory medication and physical therapy; 

 - the side effects of her medication.3 

However, the ALJ failed to mention some contradictory, 

objective medical evidence, including: 

 - Dr. Makowski's diagnosis, via MRI scan performed 

 by Dr. Vitale, of first degree spondylolisthesis 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 has grating 

 sensation in the knee and has reached a plateau 

 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% permanently 

 and totally disabled with no prognosis of 

 improvement; 

 - Dr. Berkowitz's report of a mild limp, tenderness 

 over sacrum and coccyx, and diagnosis of 

 hyperlordosis; 

 - Dr. Hess' assessment that Burnett could sit and 

 stand only "intermittently." 

The ALJ's failure to mention and explain this contradictory 

medical evidence was error. See Adorno, 40 F.3d at 48; 

Cotter, 642 F.2d at 707. On remand, the ALJ must review 

all of the pertinent medical evidence, explaining his 

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 allegations of pain 

and other subjective symptoms must be consistent with 

objective medical evidence, see Hartranft, 181 F.3d at 362 

(citing 20 C.F.R. S 404.1529), the ALJ must still explain 

why he is rejecting the testimony. See Van Horn , 717 F.2d 

at 873. In Van Horn, this Court set aside an ALJ's finding 

because he failed to explain why he rejected certain nonmedical testimony. See 717 F.2d at 873. In this case, the 

ALJ explained he rejected Burnett's testimony regarding the 

extent of her pain because he determined it was not

supported by the objective medical evidence. However, the 

ALJ failed to mention the testimony of Burnett's husband, 

George Burnett, and her neighbor, Earl Sherman. On 

appeal, the Commissioner contends the ALJ did not need to 

mention their testimony because it "added nothing more 

than stating [Burnett's] testimony was truthful." 

Commissioner's Brief at 21. This argument lacks merit 

because the ALJ made a credibility determination regarding 

Burnett, and these witnesses were there to bolster her 

credibility. R. 17 ("claimant's allegations of disability made 

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

expect the ALJ to address the testimony of such additional 

witnesses. On remand, the ALJ must address the testimony 

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 consider 

the combined effect of multiple impairments, regardless of 

their severity. See 20 C.F.R. S 404.1545. The ALJ's opinion 

indicates he did consider the combined effects of Burnett's 

impairments. However, because the ALJ failed to consider 

all pertinent evidence, that ruling is brought into question. 

On remand, the ALJ must properly consider the combined 

effects of Burnett's two impairments. 

Finally Burnett asserts the ALJ's finding that she can 

perform "light" work is not supported by substantial record 

evidence. Burnett claims she lacks the residual functional 

capacity to even perform "sedentary" work. 4 Because the 

ALJ erred in not evaluating all of the medical evidence, this 

Court cannot now assess whether the ALJ's determination 

that Burnett has the residual functional capacity to 

perform "light" work was supported by substantial 

evidence, let alone assess whether she lacks the residual 

functional capacity to even perform "sedentary" work. 

2. The Past Relevant Work Determination 

A determination of past relevant work is a determination 

of the "physical and mental demands of jobs a claimant has 

performed in the past." S.S.R. 82-62. The ALJ determined 

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 relevant work 

_________________________________________________________________ 

4. "Sedentary" work: 

 involves lifting no more than 10 pounds at a time and occasionally 

 lifting or carrying articles like docket files, ledgers, and small 

tools. 

 Although a sedentary job is defined as one which involves sitting, 

a 

 certain amount of walking and standing is often necessary in 

 carrying out job duties. Jobs are sedentary if walking and standing 

 are required occasionally and other sedentary criteria are met. 

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

 16 
was "light" work as being unsupported by substantial 

evidence. We agree. 

S.S.R. 82-62 sets forth the evidence which should be 

considered in making a determination of a claimant's past 

relevant work: 

 The claimant is the primary source for vocational 

 documentation, and statements by the claimant 

 regarding past work are generally sufficient for 

 determining the skill level, exertional demands and 

 nonexertional demands of such work. Determination of 

 the claimant's ability to do [past relevant work] 

 requires a careful appraisal of (1) the individual's 

 statements as to which past work requirements can no 

 longer be met and the reason(s) for his or her inability 

 to meet those requirements; (2) medical evidence 

 establishing how the impairment limits ability to meet 

 the physical and mental requirements of the work; and 

 (3) in some cases, supplementary or corroborative 

 information from other sources such as employers, the 

 Dictionary of Occupational Titles, etc., on the 

 requirements of the work as generally performed 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 listed 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 clear error to 

make a past relevant work determination that is contrary 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 contradictory 

evidence, such as a Dictionary of Occupational Titles 

("DOT") description of how the job is performed in the 

national economy. See id. In both cases, the ALJ rejected 

the claimant's testimony and found the past relevant work 

to be of a different nature. See id. In both cases, this Court 

reversed the ALJ's determination as being unsupported by 

substantial evidence in the record because the ALJ's 

 17 
assessment was different from the claimant's 

uncontroverted testimony about the demands of his past 

relevant work. See id. 

In this case, the ALJ was presented with uncontroverted 

evidence submitted by Burnett. In her description of her 

past relevant work on her vocational report, Burnett 

indicated she was a "deli clerk," who walked and stood 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, lifting 50 

pound cases of cheese from trucks onto dollies, cutting 

cheese, and bending. This uncontroverted evidence 

indicates her past relevant work involved "medium" work.5 

However, the ALJ rejected Burnett's testimony and found 

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 purported 

evidence does not contradict Burnett's vocational report 

and testimony. 

The ALJ cited as contradictory evidence, a purported 

definition of "delicatessen clerk" in the DOT, which 

allegedly states this job involves light work. R. 16. "The 

Dictionary of Occupational Titles (DOT) descriptions 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 ALJ made 

up the occupational title of "delicatessen clerk." It is simply 

nowhere to be found in the DOT, nor did the ALJ give any 

reference to a particular DOT code. An illusory definition in 

the DOT cannot be relied upon and is not contradictory 

evidence. 

_________________________________________________________________ 

5. "Medium work involves lifting no more than 50 pounds at a time with 

frequent lifting or carrying of objects weighing up to 25 pounds." 20 

C.F.R. S 404.1567(c). 

 18 
The Commissioner, recognizing the ALJ created a nonexistent 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 However, 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 Adorno, 

the claimant's undisputed testimony was that her former 

job was that of a machine operator, which exposed her to 

fumes and heavy dust and that her asthma precluded such 

exposure. On appeal, the agency argued that the claimant's 

past work was that of a cabinetmaker, which as described 

in the DOT did not expose the worker to dust and fumes. 

We declared that such an "attempt to redefine[the 

claimant's] former occupation" was unsupported by 

substantial evidence in the record. Id. at 47. Similarly in 

this case, the Commissioner's attempt to redefine Burnett's 

past occupation is unsupported by substantial evidence. 

Even if the Court did allow this recharacterization of 

Burnett's job on appeal, the DOT can only be used to 

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 described by 

Burnett in that a Deli Cutter-Slicer merely cuts and slices 

cheese and does not participate in the heavier work of 

unloading cases of cheese from trucks. See DOT S 316.684- 

014. In contrast, Burnett testified her past relevant work 

required her to lift heavy cases of cheese from trucks. Since 

_________________________________________________________________ 

6. A Deli Cutter-Slicer: 

 Cuts delicatessen meats and cheeses, using slicing machine, knives, 

 or other cutters: Places meat or cheese on cutting board and cuts 

 slices to designated thickness, using knives or other hand cutters. 

 Positions and clamps meat or cheese on carriage of slicing machine. 

 Adjusts knob to set machine for desired thickness. Presses button 

 to start motor that moves carriage past rotary blade that slices 

 meats and cheeses. Stacks cut pieces on tray or platter, separating 

 portions with paper. May weigh and wrap sliced foods and affix 

 sticker showing price and weight. 

DOT S 316.684-014. 

 19 
the DOT does not corroborate or supplement the 

uncontroverted description given by Burnett, and is not 

consistent with her description of her past relevant work, 

this definition cannot be used to cast doubt on Burnett'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 she"is 

diminutive, weighing no more than 100 pounds," making it 

"unlikely" she would have been asked to lift 50 pounds on 

the job. R. 17. However, an ALJ may not make speculative 

conclusions without any supporting evidence, see Plummer, 

186 F.3d at 429, not to mention conclusions apparently 

based on gender stereotyping. In this case, there is 

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 error. 

_________________________________________________________________ 

7. On appeal, Burnett asserts her past work was more akin to DOT 

S 299.367-014, Stock Clerk, which has alternate titles including 

Delicatessen-Goods Stock Clerk, and is defined as follows: 

 Inventories, stores, prices, and restocks merchandise displays in 

 retail store: Takes inventory or examines merchandise to identify 

 items to be reordered or replenished. Requisitions merchandise from 

 supplier based on available space, merchandise on hand, customer 

 demand, or advertised specials. Receives, opens, and unpacks 

 cartons or crates of merchandise, checking invoice against items 

 received. Stamps, attaches, or changes price tags on merchandise, 

 referring to price list. Stocks storage areas 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, shelves, and aisles. May 

 itemize and total customer merchandise selection at check out 

 counter, using cash register, and accept cash or charge card for 

 purchases. May pack customer purchases in bags 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 medium 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 relevant work falls 

somewhere between a deli cutter-slicer and a deli stock clerk as defined 

in the DOT. 

 20 
Finally, the Commissioner notes that Burnett did not 

raise a specific objection to the ALJ's conclusion that she 

worked as a delicatessen clerk in her request for review 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 preceded 

the appeal. Therefore, the Commissioner argues, Burnett 

may not raise this issue as grounds for appeal. We 

disagree. In Sims v. Apfel, supra note 2, the Supreme 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 review by the 

Appeals Council in order to preserve judicial review 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 assessment 

of Burnett's past relevant work is not based on substantial 

evidence in the record. On remand, the ALJ should fully 

develop the record and make specific findings as to the 

physical and mental demands of Burnett's past relevant 

work. See SSR 82-62;9Winfrey, 90 F.3d at 1023. Absent 

additional evidence to the contrary, the ALJ must accept 

_________________________________________________________________ 

8. Parties make requests for review of a hearing decision 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 Council review the 

Administrative Law Judge's action on the above claim 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 decision 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 bearing on medically 

 established limitations. Detailed information about strength, 

 endurance, manipulative ability, mental demands and other jobs 

 requirements must be obtained as appropriate. This information will 

 be derived from a detailed description of the work obtained from 

the 

 claimant, employer, or other informed source. . . . 

 21 
Burnett'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, based 

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 remand 

for a step five analysis because this determination involves 

simple application of the Medical-Vocational Guidelines or 

"Grids," see 20 C.F.R. Pt. 404, Subpart P, App.2, to 

determine that Burnett is disabled. More specifically, 

Burnett maintains that because of her advanced age, 56 

years old at the time of alleged onset of the disability in 

1991, her limited education, and lack of transferable skills, 

regardless of whether she is capable of performing"light" 

work as the ALJ determined, or "sedentary" work, the Grids 

dictate a finding of disability. Therefore, she asserts, a 

remand is unnecessary. We disagree. 

A step five analysis can be quite fact specific, involving 

more than simply applying the Grids, including, perhaps, 

testimony of a vocational expert. See, e.g., Plummer, 186 

F.3d at 431. Although Burnett's age and education level are 

undisputed, from the record we cannot be confident that 

Burnett possess no skills or is not semi-skilled with 

transferable skills. Therefore we must remand for further 

factual findings with regard to the level and transferability 

of Burnett's skills. 

III. Conclusion 

For the foregoing reasons, the District Court's dismissal 

of Burnett's claim will be VACATED, and the case 

REMANDED to the District Court with directions to remand 

to the Commissioner for additional proceedings consistent 

with this opinion. 

_________________________________________________________________ 

10. Should the ALJ continue to find Burnett to have a residual 

functional capacity for "light" work and that Burnett's past relevant work 

was "medium," then the ALJ must enter a finding Burnett lacks the 

residual functional capacity to perform her past relevant work. 

 22 
On remand, the ALJ shall fully develop the record and 

explain his findings at step three, including an analysis 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 pertinent 

medical evidence, reconciling conflicts and, if rejecting 

particular evidence, explaining why; must address the nonmedical evidence of George Burnett and Earl Sherman; and 

must consider the combined effects of Burnett's two

impairments in conjunction with any medical evidence 

previously not considered and not rejected on remand. 

Additionally, the ALJ should fully develop the record and 

make specific findings as to the physical and mental 

demands of Burnett's past relevant work. Finally, if it is 

necessary to reach step five, the ALJ is directed to make 

the requisite factual findings with regard to the level and 

transferability of Burnett's skills. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

 23