2007 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

1-24-2007

Poulos v. Comm Social Security

Precedential or Non-Precedential: Precedential

Docket No. 05-4637

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*

The Honorable Monroe G. McKay, United States Circuit

Judge for the Tenth Circuit, sitting by designation.

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 05-4637

____________

ARTHUR POULOS, 

Appellant

v.

COMMISSIONER OF SOCIAL SECURITY

____________

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 02-cv-2250)

District Judge: Anne E. Thompson

__________

Argued: September 14, 2006

Before: FUENTES, FISHER and McKAY,* Circuit Judges.

(Filed January 24, 2007)

Thomas H. Klein, Esq. (argued)

Smith & Klein

100 Broad Street

Eatontown, New Jersey 07724

Counsel for Appellant

Christopher J. Christie
1

 In November 2000, a physician noted that Appellant’s last

recorded weight, taken one year prior, was 450 pounds and

that Appellant had “increased his abdominal girth

subsequently.” (R. at 297.) The physician did not have the

equipment to weigh someone of Appellant’s size. (R. at 297.) 

On September 7, 2001, a different physician estimated

Appellant’s weight at 500 pounds. (R. at 296.)

2

United States Attorney

Sixtina Fernandez (argued)

Special Assistant U.S. Attorney 

c/o Social Security Administration

26 Federal Plaza, Room 3904

New York, New York 10278

Barbara L. Spivak

Chief Counsel – Region II

Stephen P. Conte

Supervisory Regional Counsel

Office of the General Counsel

Social Security Administration

Counsel for Appellee

____________

OPINION OF THE COURT

____________

McKAY, Circuit Judge.

Appellant is 5’ 6” tall and weighs over 450 pounds.1

On February 3, 2000, Appellant, then nineteen years old,

applied for Child’s Insurance Benefits and Supplemental

Security Income payments, alleging disability from birth

based on morbid obesity with resultant knee pain, back strain,

shortness of breath, and slowed movement; neurological

impairment; and chronic ear infections. (R. at 106.) Upon

reconsideration, he also alleged that he had severe

hypertension. (R. at 115.) The Social Security

Administration denied Appellant’s initial application as well
3

as his request for reconsideration. After a hearing, an

Administrative Law Judge (“ALJ”) concluded that Appellant

had not been disabled at any time since his alleged disability

onset date. The Appeals Council denied Appellant’s request

for review of that decision. Appellant then filed the instant

action with the District Court, which affirmed the decision of

the Commissioner. For the reasons that follow, we will

reverse and remand for further proceedings in accordance

with this opinion.

BACKGROUND

The record indicates that Appellant has been obese his

entire life. In March 1986, at the age of five, he weighed 140

1⁄2 pounds. (R. at 176.) Three years later, at the age of eight,

he weighed 246 pounds. (R. at 307.) By May 2000,

Appellant weighed more than 450 pounds. (R. at 213.) A

person with a Body Mass Index (BMI) of 30.0 or higher is

characterized as obese. SSR 02-1p. A person with a BMI

greater than or equal to 40.0 is characterized as extremely

obese and is considered to be at the greatest risk for

developing obesity-related impairments. Id. At a height of

5’6” and an estimated weight of 500 pounds (R. at 296),

Appellant has an estimated BMI of 80.7. 

At the hearing before the ALJ, Appellant testified that

his obesity and other health problems cause him to move

slowly, to have difficulty walking and standing for long

periods, to have great difficulty climbing stairs, and to have

trouble sleeping at night. Appellant testified that he does not

move as quickly as other people, even when sitting. (R. at 36-

37.) He stated that after walking for one or two blocks, his

legs start to hurt and he is out of breath. (R. at 39, 117.) 

When he stands for more than ten minutes, his right knee

“starts to really hurt [and] cramp up with sharp pain.” (R. at

39.) After an hour of standing, his ankles start to swell, and

they will typically remain swollen for two days. (R. at 39.) 

Appellant testified that he must climb stairs one step at a time

and is “all out of breath” by the time he reaches the top. (R.

at 34.) He also has difficulty sleeping through the night,

waking up every hour or two because he is unable to breathe
4

and must sit up to catch his breath. (R. at 43.) This

disruption in sleep causes him to feel tired throughout the day. 

(R. at 43.)

 

Appellant testified at the hearing that he does not have

problems sitting, although he occasionally gets mild pain in

his hip if he sits too long. (R. at 39.) Appellant later testified,

however, that his lower back starts to hurt when he is sitting. 

(R. at 42.) Appellant also testified that he sometimes gets out

of breath just sitting (R. at 40), and that he has to lie down to

rest during the day in order to help catch his breath and rest

his body (R. at 41). Additionally, Appellant elsewhere

asserted that his weight causes him to break chairs while he is

sitting in them. (R. at 125.)

 The record reflects that Appellant suffers from some

physical health problems. Appellant has had hypertension

since at least 1995 (R. at 227), although it has generally been

controlled by medication (R. at 296). A pulmonary function

study showed some mild obstructive and restrictive defect. 

(R. at 203.) Appellant has consulted a physician numerous

times for earaches (R. at 227-35, 237, 240, 243, 246-49, 254-

55), and apparently underwent a tonsillectomy and an

unsuccessful ear tube implantation in 1987 (R. at 110; 143). 

A state agency physician who examined Appellant in

September 2000 diagnosed him with morbid obesity,

hypertension, and right knee pain due to meniscal

degeneration. (R. at 57.) The medical evidence was

reviewed by a second state agency physician, who concluded

that Appellant could occasionally lift twenty pounds,

frequently lift ten pounds, stand and/or walk for about six

hours in an eight-hour workday, and sit for about six hours in

an eight-hour workday. (R. at 261.)

The record also reflects that Appellant may suffer from

a neurological impairment. Appellant was classified as preschool handicapped at the age of 3 (R. at 168) and as

neurologically impaired at the age of six (R. at 165). 

Although he graduated from high school, Appellant was

enrolled in some resource classes. (R. at 34.) A psychologist

employed by the New Jersey Department of Labor tested
5

Appellant and determined that he had a full scale I.Q. of

ninety-eight, which is in the average range. (R. at 257.) The

psychologist stated, however, that the twenty-four-point

discrepancy between his verbal and his performance I.Q. was

“highly significant and consistent with neurological

impairment.” (R. at 257.) The psychologist further stated

that Appellant “ha[d] severe deficits in perceptual

organization on block design and also show[ed] problems

with sustained attention and motor persistence.” (R. at 257.) 

The psychologist described Appellant as “very prompt,

cooperative and pleasant about being tested.” (R. at 256.) A

state agency psychologist who reviewed the medical evidence

concluded that Appellant had a neurological impairment, but

that this impairment was not severe. (R. at 281.) This

psychologist determined that Appellant only suffered from a

mild limitation in maintaining concentration, persistence, or

pace. (R. at 291.) 

Appellant is able to engage in a variety of different

activities. He can use the computer, build and paint small

statues, read history books, and watch television. (R. at 38.) 

He prepares his own breakfast and lunch (R. at 142), and he

babysits his niece while his sister is at work (R. at 38). He is

able to drive, although he cannot fit into certain cars (R. at 33-

34), and he occasionally visits friends (R. at 142).

Appellant has never been employed longer than a few

months. He worked as a kitchen assistant for a few months in

1998 as part of a high school vocational program, as a night

stock person for a few weeks in June 1999, and as a baker’s

assistant for a few weeks in July 1999. (R. at 162.) Appellant

testified that he cannot keep a job because he is too slow. (R.

at 35-36.) He also asserted that he stopped working because

his back and legs hurt and he was “physically unable to do the

work required.” (R. at 106.) His mother believes that he

cannot work because he is just “too big at this time to

function.” (R. at 52.) Appellant has a high school education

and was twenty-one years old at the time of the hearing before

the ALJ. (R. at 34.) 

DISCUSSION
6

Because the Appeals Council denied review of the

ALJ’s decision, we review that decision as the final decision

of the Commissioner. See Matthews v. Apfel, 239 F.3d 589,

592 (3d Cir. 2001). We review the ALJ’s application of the

law de novo, see Mounsour Med. Ctr. v. Heckler, 806 F.2d

1185, 1191 (3d Cir. 1986), and review the ALJ’s factual

findings for substantial evidence, see 42 U.S.C. 405(g);

Williams v. Sullivan, 970 F.2d 1178, 1182 (3d Cir. 1992).

The Social Security Administration has promulgated a

five-step process to determine whether an applicant is entitled

to benefits. 20 C.F.R. §§ 404.1520, 416.920. First, the

Commissioner must determine whether the claimant has

engaged in substantial gainful activity since his alleged

disability onset date. Id. §§ 404.1520(b), 416.920(b). If not,

the Commissioner next determines whether the claimant has

an impairment or combination of impairments that is severe. 

Id. §§ 404.1520(c), 416.920(c). If the claimant has a severe

impairment, the Commissioner considers whether the

impairment meets the criteria of an impairment listed in

Appendix 1 of 20 C.F.R. part 404, subpart P (the “Listings”)

or is equal to a listed impairment. If so, the claimant is

automatically eligible for benefits; if not, the Commissioner

proceeds to step four. Id. §§ 404.1520(d), 416.920(d). In step

four, the Commissioner determines whether, despite the

severe impairment, the claimant retains the residual functional

capacity to perform his past relevant work. Id. §§

404.1520(e), (f), 416.920(e), (f). The claimant bears the

ultimate burden of establishing steps one through four. 

Ramirez v. Barnhart, 372 F.3d 546, 550 (3d Cir. 2004). At

step five, the burden of proof shifts to the Social Security

Administration to show that the claimant is capable of

performing other jobs existing in significant numbers in the

national economy, considering the claimant’s age, education,

work experience, and residual functional capacity. Id. at 551.

In the instant case, the ALJ first determined that

Appellant’s prior work attempts were too brief to constitute

“substantial gainful activity,” and thus that a finding of

disability was not precluded. (R. at 18.) In step two, the ALJ

found that Appellant’s “combination of obesity, hypertension
7

and right knee medial meniscus damage has been ‘severe,’

under the regulatory definition of the term, since at least

1995.” (R. at 20.) However, the ALJ concluded that

Appellant’s EKG abnormalities, pulmonary disease, ear

infections, upper respiratory infections, spinal abnormalities

and neurological impairment were not severe. (R. at 26.) In

step three, the ALJ held that Appellant had no impairment or

combination of impairments meeting the criteria of any of the

Listings. (R. at 26.) In step four, the ALJ determined that

Appellant’s past work could not be considered relevant

because he had never worked long enough to master any

occupation. (R. at 26.) 

After moving through the first four steps of the

process, the ALJ concluded at step five that Appellant was not

disabled. Using the Medical-Vocational Guidelines from 20

C.F.R. part 404, subpart P, Appendix 2 (the “Guidelines”), the

ALJ determined that Appellant’s maximum sustained

exertional capability with respect to lifting and carrying was

for medium work. (R. at 25.) However, the ALJ determined

that Appellant’s occupational base was “markedly eroded by

his limitation on standing, walking, and stooping.” (R. at 25.) 

Therefore, the ALJ found a maximum sustained exertional

capacity for sedentary work. (R. at 25.) Based on this

exertional capability, as well as on Appellant’s age,

education, and lack of relevant work experience, the ALJ,

applying Medical-Vocational Rule 201.27 “as a framework

for decisionmaking,” found that Appellant was not disabled.

(R. at 27.)

On appeal, Appellant argues that the ALJ erred at three

steps of the process: in step two, the ALJ erred by concluding

that Appellant’s neurological impairment was not severe; in

step three, the ALJ erred by failing to find Appellant’s

combination of impairments equivalent to one of the listed

impairments; and in step five, the ALJ erred by relying on the

Guidelines to find that Appellant was not disabled. For the

reasons discussed below, we conclude that the ALJ properly

conducted steps two and three of the process, but that he erred

in step five by relying on the Guidelines in the presence of

Appellant’s nonexertional limitations.
2

 State agency physicians and psychologists are considered to

be “highly qualified physicians and psychologists who are

also experts in Social Security disability evaluation,” and the

ALJ must consider their findings as opinion evidence. 20

C.F.R. §§ 404.1527(f), 416.927(f).

8

In step two, the ALJ found that Appellant’s alleged

mental impairment was not severe because “[a]ny limitations

on [Appellant’s] activities of daily living and social

functioning are not attributable to mental/neurological

impairment, considering the wide range of activities in which

he engage[s] and his pleasant, cooperative behavior.” (R. at

25.) Appellant argues that the ALJ’s finding was erroneous

because Appellant has severe deficits in perceptual

organization and problems with sustained attention and motor

skills.

We agree with the district court that the ALJ’s step two

finding is supported by substantial evidence. While a

psychologist did indicate that the twenty-four-point difference

between Appellant’s verbal I.Q. and performance I.Q. is

consistent with neurological impairment, Appellant’s fullscale I.Q. of ninety-eight is solidly within the average range. 

The state agency psychologist who reviewed the medical

evidence concluded that Appellant has only a mild

impairment in concentration and that his mental impairment is

not severe within the meaning of the Social Security Act.2

 As

the ALJ noted, Appellant “graduated from high school

without significant repetition of grades and with minimal

academic support,” and he “is able to work on a computer

recreationally, to follow programs on the history channel, to

write legibly and to communicate orally in an insightful way.” 

(R. at 25.) After reviewing the record, we conclude that this

substantial evidence supports the ALJ’s finding that

Appellant’s neurological impairment is not severe.

Appellant asserts that the ALJ did not properly

consider whether Appellant’s combination of impairments

was equivalent to one of the Listings and did not properly

evaluate the effect of obesity on Appellant’s other
3

 The Social Security regulations state that the limitations and

restrictions imposed by a claimant’s impairments and related

symptoms may be exertional, nonexertional, or a combination

of both. 20 C.F.R. § 404.1569a. Exertional limitations relate

to the strength demands of jobs, in terms of sitting, standing,

walking, lifting, carrying, pushing, and pulling. Id. All other

limitations affecting the claimant’s ability to meet the

9

impairments. Appellant also argues that the ALJ “apparently

misunderstood the medical evidence and severity of

[Appellant’s] conditions.” (Appellant’s Br. at 20.) Appellant

argues, citing to Burnett v. Commissioner of Social Security

Administration, 220 F.3d 112 (3d Cir. 2000), that the ALJ’s

failure to fully discuss and apply the Listings in step three is

clear error. We note that Appellant does not argue that the

ALJ should have applied a different Listing, nor does he point

to specific evidence ignored by the ALJ that would indicate

that Appellant’s impairments are equivalent to one of the

Listings the ALJ identified. The only Listing Appellant

points to is former Listing 9.09 on Obesity, which had been

rescinded before Appellant filed his claim.

An ALJ must provide a sufficient framework of

reasoning for a court to conduct “meaningful judicial review”

of the ALJ’s decision. Burnett, 220 F.3d at 119. In Burnett,

the ALJ only set forth a conclusion that the claimant’s

impairment did not meet the level of severity of any of the

listed impairments. Here, in contrast, the ALJ issued the step

three finding only after reviewing all of the objective medical

evidence, including evidence of Appellant’s obesity, and

explicitly stating which Listings he was considering. We

conclude that this analysis satisfies the requirements of

Burnett. Furthermore, after reviewing the record, we

conclude that the ALJ’s step three decision is supported by

substantial evidence. 

Appellant asserts that the ALJ erred in step five by

using the Guidelines to find that Appellant was not disabled. 

Although the ALJ determined that Appellant had both

exertional and nonexertional limitations,3

 the ALJ
demands of jobs are classified as nonexertional. Id. 

4

 Despite Appellee’s wishes to the contrary, the Second

Circuit’s approach in Bapp v. Bowen, 802 F.2d 601 (2d Cir.

1986), is not the law in this circuit. We advise Appellee to

review our decision in Sykes and the Social Security

Administration’s Acquiescence Ruling 01-1(3) before

addressing this issue in the future.

10

subsequently concluded, without reference to any vocational

evidence, that Appellant’s exertional and nonexertional

limitations did not “significantly compromise[]” the sedentary

occupational base, and thus that the Guidelines could be

applied to deny Appellant’s claim. (R. at 27.) We agree with

Appellant that the ALJ erred in so doing. 

The ALJ’s reliance on the Guidelines in the presence

of Appellant’s nonexertional limitations constitutes reversible

error under Sykes v. Apfel, 228 F.3d 259 (3d Cir. 2000). In

Sykes, the Social Security Administration made the same

argument that it makes on appeal here: that “the MedicalVocational guidelines can be relied on in the presence of a

nonexertional limitation, so long as the limitation does not

significantly diminish the range of work that could otherwise

be exertionally possible.” (Appellee’s Br. at 25); cf. Sykes,

228 F.3d at 266. We squarely rejected this argument in Sykes:

“[I]n the absence of a rulemaking establishing the fact

of an undiminished occupational base, the

Commissioner cannot determine that a claimant’s

nonexertional impairments do not significantly erode

his occupational base under the medical-vocational

guidelines without either taking additional vocational

evidence establishing as much or providing notice to

the claimant of his intention to take official notice of

this fact (and providing the claimant with an

opportunity to counter the conclusion).

Sykes, 228 F.3d at 261.4

 
5

 On remand, the ALJ should also consider whether

Appellant’s obesity itself is a nonexertional limitation. See

Lucy v. Chater, 113 F.3d 905 (8th Cir. 1997). 

11

Our recent decision in Allen v. Barnhart, 417 F.3d 396

(3d Cir. 2005), is not to the contrary. In Allen, the ALJ

“specifically referred” to a Social Security Ruling (“SSR”)

“address[ing] the precise issue” presented in that case. Id. at

403-04. We held that “if the Secretary wishes to rely on an

SSR as a replacement for a vocational expert, it must be

crystal-clear that the SSR is probative as to the way in which

the nonexertional limitations impact the ability to work, and

thus, the occupational base.” Id. at 407. In the instant case,

the ALJ referred only to SSR 83-10 and SSR 85-15. These

Rulings do not address several of the nonexertional

limitations found by the ALJ, such as Appellant’s inability to

shift rapidly between positions or locations, his limitations on

the performance of perceptual-motor tasks, and his limitation

in the use of certain chairs.5

 We are particularly concerned with the ALJ’s

treatment of Appellant’s limitation as to the kinds of chairs in

which he can sit. The ALJ summarily concluded that

Appellant’s “inability to use chairs that are not designed to

support his weight would not significantly erode the sedentary

occupational base since sturdy chairs are typically readily

available in settings where sedentary work is done.” (R. at

26.) The ALJ did not take or produce vocational evidence

regarding this disputed issue, nor did he properly follow the

steps for taking official notice. See Sykes, 228 F.3d at 261.

The record contains no evidence supporting the ALJ’s

conclusion. In fact, the only evidence on the record

concerning this issue is Appellant’s assertion that he breaks

chairs because of his weight. So far as we can see from the

record, the ALJ’s conclusion is based solely on his own

opinion. This lack of supporting evidence highlights why we

require an ALJ either to take vocational evidence or to follow

the proper steps to take official notice, providing the claimant

with an opportunity to see the evidence on which the ALJ
12

relies and with an opportunity to challenge the ALJ’s

conclusion. See Sykes, 228 F.3d at 273.

 Because the record is not fully developed, we will

remand the case for further proceedings in accordance with

this opinion. See Newell v. Comm’r of Soc. Sec., 347 F.3d

541, 549 (3d. Cir. 2003). We remind the ALJ that it is his

duty to develop the record. See Ventura v. Shalala, 55 F.3d

900, 902 (3d Cir. 1995). We further remind the ALJ that,

under the Supreme Court’s decision in Cleveland v. Policy

Management Systems Corp., 526 U.S. 795, 803 (1999), he is

not entitled to consider potential accommodation by

employers in determining the availability of jobs in the

national economy that Appellant can perform.

CONCLUSION

In light of the foregoing, we will reverse the District

Court’s order and remand to the District Court with directions

to remand the matter to the Commissioner for further

proceedings consistent with this opinion.