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. e du/thir dc ir c uit_2002/105REPORTED - NO T PRECEDENTIAL

THE UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

___________

No. 01-2541

___________
ALBERT D. GREEN,

Appellant

v.

JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY

___________

ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVAN IA

(D.C. Civil No. 00-cv-00487) District Judge: The Honorable William H. Yo hn, Jr.

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Submitted Under Third Circuit LAR 34.1( a) January 22, 2002

BEFORE: NYGAARD and STAPLETON, Circuit Ju dges, and CAPUTO, District Judge.

(Filed: February 5, 2002)

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OPINION OF THE COURT

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NYGAARD, Circuit Judge. Appellant, Albert D. Green, appeals from an ord er of the District Court granting summary judgment in favor of the Commissioner of th e Social Security Administration, alleging as error the issues listed in paragraph I, taken verbatim from Appellant's brief. Because we conclude that the Commissioner's finding that Green has a marginal education is not supported by substantial evidence, and because the Commissioner failedto make a finding whether Green is illiterate, we w ill reverse and remand.

I. The allegations of error asserted by Appellant are as follows: 1. Is the Commissioner's finding tha t Mr. Green has a marginal education, and his failure to make a finding whether Mr. Green is illiterate, supported by substantial evidence and does it represent a reversible error of law?

2. Did the Commissioner commit a rev ersible error of law by failing to provide for the testimony at the hearing o f a medical expert to evaluate whether Mr. Green's heart disease met or e qualed Listing 4.02 of the Listing of Impairments?

3. Is the Commissioner's finding tha t Mr. Green has the residual functional capacity to perform a limited range of sed entary work and can perform jobs such as order clerk and system surveillanc e monitor supported by substantial evidence?

4. Is the Commissioner's finding tha t Mr. Green's allegations of subjective symptoms and limitations arising therefrom are generally credible, but only to the extent that he is limited to perfor ming a reduced range of sedentary work activity, supported by substantial ev idence?

II. The facts and procedural history of this case a re well known to the parties and the court. We see no reason to restate them here. Rel evant to our decision is the Commissioner's Finding No. 10 that "[t]he claimant has a 'marginal' sixth grade education." (Tr. 19). Under the Social Security R egulations, one of the vocational factors used to determine whether a claimant can ob tain substantially gainful employment is the claimant's educational level. 20 C.F.R.  404.1564. The Commissioner uses the following mutually-exclusive categories for describ ing the claimant's educational level: (1) illiteracy; (2) marginal education; (3) limited education; (4) high school education and above. Id. In this case, the Commissioner found that Green had a marginal education, despitesubstantial evidence that Green was, in fact, illit erate. In particular,

Green testified at his hearing that he cannot read a newspaper. (Tr. 41). It appears that the Commissioner relied solely upon Green's formal education in deci ding that Green had a marginal education. Green testified that he left school in the seventh grade, thus having completed the sixth grade. (Tr. 40-41). The Regulations def ine "marginal education" as: Marginal education means ability in reaso ning, arithmetic, and language skills which are needed to d o simple, unskilled types of jobs. We generally consider tha t formal schooling at a 6th grade level or less is a marginal e ducation.

20 C.F.R.  404.1564(b)(2). However, one's completion of the sixth grade is not conclusive evidence that one has a marginal educati on. The Regulations themselves require that only "if there is no other evidence to contradict it, we will use your numerical grade level to determine your educational abilities ." 20 C.F.R.  404.1564(b). In Green's case, there is evidence to contradict a presumption that Green's completion of the sixth grade means that he has a marginal education, so th e Commissioner needs to consider the evidence that Green is illiterate and make a findin g in that regard. On appeal, the Commissioner points to evidence which he argues is sufficient to sustain his decision. We disagree. The Commission er reminds us that Green reported he had an eighth-grade education, and later testified he had a sixth-grade education. The Commissioner argues this "is a marginal education." Again, we emphasize that a claimant's grade level should be used to determine the claimant's level of education only when "there is no other evidence to contradict it." 20 C.F.R.  414.1564 (emphasis added). It certainly was not the case here that th ere was no other evidence to contradict a presumption that Green's sixth-grade education mean t that he had a marginal education. Green testified that he could not read, and the Com missioner failed to explain his decision in light of that testimony. On appeal, the Commiss ioner calls Green's testimony a "subjective statement," but we remind the Commissio ner that proceedings for Social Security benefits are non-adversarial, see Sullivan v. Hudson, 490 U.S. 877, 891 (1989), and if the Commissioner had doubts about Green's te stimony because it was "subjective,"he could have easily resolved those doubts by admin istering an "objective"

test, such as asking Green to read a brief passage and to write a short note. The Commissioner also argues on appeal that Gre en's past work history

as a grocery store owner and operator contradicts a find ing of anything less than a marginal education. But the Commissioner mischaracterizes t he evidence. He argues that "Green stated that his tasks included writing, completing reports, or performing similar duties." But the "Disability Report" cited in support is inc onclusive. In response to the question, "In your job did you: Do any writing, complete repo rts, or perform similar duties?" Green checked the "Yes" box. (Tr. 91). His "yes" answer may refer to the "perform similar duties" part of the question and does not necessari ly mean Green is literate. The Commissioner also points to Green's statements that he kept records and made grocery orders. But Green's full statement was, "I used an electric saw, slicer, cash register. I had to keep record of receipts for accountant, groc ery orders (thing neeeded [sic] for the store). I had two people that worked for me." (Tr . 91). This is not proof that Green is literate. One can keep records and make orders wit hout being able to read and write. Indeed, Green testified that he "remeberized [sic] things" and that his mother helped him. (Tr. 42). We hold that there is not substantial evidence on the record to support the Commissioner's finding that Green had a marginal ed ucation. We will remand for reconsideration of that finding, as well as for a s pecific finding as to whether Green is literate. Furthermore, in light of our disposition , the Commissioner may find it necessary to reconsider his finding that Green's transferabil ity of skills is not a factor. III. In sum, and for the foregoing reasons, we will reverse the order of the District Court dated the 28th day of February, 2001, and ent ered on the docket March 5, 2001, and will remand with instructions to return this matter to the Commissioner for further proceedings consistent with this opinion. We affir m as to the Appellant's other allegations of error.

_________________________TO THE CLERK:

Please file the foregoing opinion.

/s/ Richard L. Nygaard Circuit Judge