2002 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-5-2002

Green v. Comm Social Security

Precedential or Non-Precedential:

Docket 1-2541

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Recommended Citation

"Green v. Comm Social Security" (2002). 2002 Decisions. Paper 105.

http://digitalcommons.law.villanova.edu/thirdcircuit_2002/105
 REPORTED - NOT PRECEDENTIAL 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 PENNSYLVANIA 

 (D.C. Civil No. 00-cv-00487) 

 District Judge: The Honorable William H. Yohn, Jr. 

 ___________ 

 Submitted Under Third Circuit LAR 34.1(a) 

 January 22, 2002 

 BEFORE: NYGAARD and STAPLETON, Circuit Judges, 

 and CAPUTO, District Judge. 

 (Filed: February 5, 2002) 

 ___________ 

 OPINION OF THE COURT 

 ___________ 

NYGAARD, Circuit Judge. 

 Appellant, Albert D. Green, appeals from an order of the District 

Court granting 

summary judgment in favor of the Commissioner of the 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 failed 
to make a finding whether Green is illiterate, we will reverse and remand. 

 I. 

 The allegations of error asserted by Appellant are as follows: 

 1. Is the Commissioner's finding that 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 reversible error of law by 

failing to 

 provide for the testimony at the hearing of a medical expert to 

evaluate 

 whether Mr. Green's heart disease met or equaled Listing 4.02 of 

the 

 Listing of Impairments? 

 3. Is the Commissioner's finding that Mr. Green has the 

residual functional 

 capacity to perform a limited range of sedentary work and can 

perform jobs 

 such as order clerk and system surveillance monitor supported by 

 substantial evidence? 

 4. Is the Commissioner's finding that Mr. Green's 

allegations of subjective 

 symptoms and limitations arising therefrom are generally 

credible, but only 

 to the extent that he is limited to performing a reduced range of 

sedentary 

 work activity, supported by substantial evidence? 

 II. 

 The facts and procedural history of this case are well known to the 

parties and the 

court. We see no reason to restate them here. Relevant 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 Regulations, one of the 

vocational 

factors used to determine whether a claimant can obtain substantially 

gainful employment 

is the claimant's educational level. 20 C.F.R.  404.1564. The 

Commissioner uses the 

following mutually-exclusive categories for describing 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, despite 
substantial evidence that Green was, in fact, illiterate. 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 deciding 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 define "marginal 

education" as: 

 Marginal education means ability in reasoning, arithmetic, 

 and language skills which are needed to do simple, unskilled 

 types of jobs. We generally consider that formal schooling at 

 a 6th grade level or less is a marginal education. 

 

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 education. 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 the Commissioner needs to 

consider the 

evidence that Green is illiterate and make a finding in that regard. 

 On appeal, the Commissioner points to evidence which he argues is 

sufficient to 

sustain his decision. We disagree. The Commissioner 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 there was no other 

evidence to contradict a 

presumption that Green's sixth-grade education meant that he had a 

marginal education. 

Green testified that he could not read, and the Commissioner failed to 

explain his decision 

in light of that testimony. On appeal, the Commissioner calls Green's 

testimony a 

"subjective statement," but we remind the Commissioner 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 testimony because it was 

"subjective," 
he could have easily resolved those doubts by administering 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 Green's past work history 

as a 

grocery store owner and operator contradicts a finding of anything less 

than a marginal 

education. But the Commissioner mischaracterizes the 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 inconclusive. In response 

to the question, 

"In your job did you: Do any writing, complete reports, 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 necessarily 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, grocery 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 without 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 education. We will 

remand for 

reconsideration of that finding, as well as for a specific 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 transferability 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 entered 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 affirm as to the Appellant's 

other 

allegations of error. 

_________________________ 
TO THE CLERK: 

 Please file the foregoing opinion. 

 /s/ Richard L. Nygaard

 Circuit Judge