1

United States Court of Appeals,

Fifth Circuit.

No. 93-1961.

Classie SCOTT, Plaintiff-Appellant,

v.

Donna SHALALA, Secretary of Health & Human Services, DefendantAppellee.

Aug. 25, 1994.

Appeal from the United States District Court for the Northern

District of Texas.

Before POLITZ, Chief Judge, DUHÉ and BARKSDALE, Circuit Judges.

DUHÉ, Circuit Judge:

Classie Scott appeals the district court's decision affirming

the Secretary's denial of her application for disability benefits

under 42 U.S.C. § 423. We reverse and remand.

BACKGROUND

Scott, born in 1945, has a high school education and training

in clerk typing. She worked as an inspector on an assembly line.

On October 20, 1986, Scott sustained an on-the-job injury to her

back and leg. She was diagnosed with a bulging lumbosacral disc.

Scott changed job positions at her company, but reinjured her

back in February 1988. After a three-month absence, she returned

to her job and worked until February 17, 1989, the onset date of

her alleged disability.

In June 1990 Scott filed for Title II disability insurance

benefits and Title XVI supplemental security income benefits. The

applications were denied initially and on reconsideration. A
 

1In evaluating a disability claim, the Secretary must

determine sequentially whether: (1) claimant is not presently

working; (2) claimant's ability to work is significantly limited

by a physical or mental impairment; (3) claimant's impairment

meets or equals an impairment listed in the appendix of the

regulations; (4) impairment prevents claimant from doing past

relevant work; and (5) claimant cannot presently perform

2

hearing was held before an administrative law judge (ALJ) who found

that Scott had the residual functional capacity to perform

sedentary work, and thus was not disabled. Scott's request for

review by the Appeals Council was denied, and the ALJ's

determination became the Secretary's final decision. In the

district court, the magistrate judge recommended granting the

Secretary's motion for summary judgment, and over Scott's

objections, the district judge adopted the magistrate judge's

recommendation. Scott appeals.

DISCUSSION

On review, we determine whether the record as a whole

contains substantial evidence supporting the ALJ's findings, and

whether the ALJ followed the proper legal standards. Selders v.

Sullivan, 914 F.2d 614, 617 (5th Cir.1990). Scott's only issue

with merit is whether the ALJ erred in relying upon the

medical-vocational guidelines (the guidelines) without considering

vocational expert testimony. The ALJ relied upon the guidelines to

determine that the regulations directed a conclusion of no

disability. See 20 C.F.R. pt. 404, subpt. P, app. 2, tbl. 1.

The ALJ found that Scott could not perform past relevant work,

but had the residual functional capacity to perform sedentary work

with certain limitations.1 Specifically, the ALJ found that Scott
relevant work. 20 C.F.R. § 404.1520(b)-(f); Selders, 914 F.2d

at 618. The ALJ found that Scott was not disabled at step five. 

3

must have the option to sit or stand, as needed; cannot do

repetitive twisting, bending, stooping, or any kneeling or

crawling; and must use good back mechanics and be able to use a

TENS unit or roll pillow as needed. To provide adjudicative

guidance when a claimant's limitations do not meet a defined

exertional capacity, the Secretary issued a "Program Policy

Statement." In SSR 83-12, the Secretary stated:

In some disability claims, the medical facts lead to an

assessment of [residual functional capacity] which is

compatible with the performance of either sedentary or light

work except that the person must alternate periods of sitting

and standing.... Such an individual is not functionally

capable of doing either the prolonged sitting contemplated in

the definition of sedentary work ... or the prolonged standing

or walking contemplated for most light work.

Because Scott must alternate between sitting and standing as

needed, Scott's exertional capabilities do not fit within the

definition of sedentary work. See Wages v. Secretary of Health &

Human Servs., 755 F.2d 495 (6th Cir.1985) (holding that substantial

evidence is lacking to support the finding that the claimant can

perform sedentary work when a sit/stand option has been added to a

claimant's exertional restrictions).

We have held that the Secretary may rely on the

medical-vocational guidelines to establish that work exists for a

claimant only if the guidelines' "evidentiary underpinnings

coincide exactly with the evidence of disability appearing on the

record." Lawler v. Heckler, 761 F.2d 195, 197 (5th Cir.1985)

(internal quotations omitted). SSR 83-12 further states:
 

2The ALJ's finding that Scott's pain was not debilitating is

supported by substantial evidence. The ALJ rejected Scott's

subjective complaints of constant pain, and we defer to that

credibility determination. See Wren v. Sullivan, 925 F.2d 123,

128 (5th Cir.1991). The objective evidence does not support

Scott's complaint of constant pain. 

4

[M]ost jobs have ongoing work processes which demand that

a worker be in a certain place or posture for at least a

certain length of time to accomplish a certain task.

Unskilled types of jobs are particularly structured so that a

person cannot ordinarily sit or stand at will. In cases of

unusual limitation of ability to sit or stand, a [vocational

expert] should be consulted to clarify the implications for

the occupational base.

Thus, the ALJ erred in applying the guidelines in this case. See

Gallant v. Heckler, 753 F.2d 1450, 1457 (9th Cir.1984) (guidelines

were improperly applied when claimant's back pain necessitated that

he alternate periods of sitting, standing and walking); cf.

Lawler, 761 F.2d at 198 (guidelines were improperly applied when

claimant asserted that she could not sit or stand for prolonged

periods of time).

 The ALJ misapplied the guidelines in another respect.

Although the ALJ rejected Scott's allegation of disabling pain,2 he

acknowledged that Scott's complaint has a basis in the record and

that Scott might have slight, occasional breaks in concentration or

attention due to pain. Pain may constitute a nonexertional factor

that can limit the range of jobs a claimant can perform. Carter v.

Heckler, 712 F.2d 137, 142 (5th Cir.1983). In such cases, the ALJ

must rely on expert vocational testimony to establish that jobs

exist. See Fraga v. Bowen, 810 F.2d 1296, 1304 (5th Cir.1987).

The ALJ did correctly avail himself of the testimony of a

vocational expert. We cannot conclude, however, that the ALJ
 

3The ALJ discusses the vocational expert's testimony, but

with respect to past relevant work. Other than a passing

reference, the ALJ does not discuss the vocational expert's

testimony when determining whether Scott has residual functional

capacity for sedentary work. 

5

properly considered the vocational expert's testimony given only

the ALJ's vague and confusing reference to that testimony in his

findings.3 Accordingly, we reverse and remand for proper

consideration of the vocational expert's testimony. See SEC v.

Chenery Corp., 318 U.S. 80, 87, 63 S.Ct. 454, 459, 87 L.Ed. 626

(1943).

REVERSED and REMANDED.