2005 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-8-2005

Allen v. Comm Social Security

Precedential or Non-Precedential: Precedential

Docket No. 04-2163

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

NO. 04-2163

 

WILLIAM D. ALLEN,

 Appellant

v.

JOANNE B. BARNHART,

COMMISSIONER OF SOCIAL SECURITY

 

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil No. 02-cv-02597)

District Judge: Hon. Dennis M. Cavanaugh

 

Argued March 8, 2005

Before: NYGAARD, McKEE, and RENDELL,

 Circuit Judges

(Filed August 8, 2005)
2

Abraham S. Alter [ARGUED]

Langton & Alter

2096 St. Georges Avenue

P. O. Box 1798

Rahway, NJ 07065

Counsel for Appellant

William D. Allen

Anthony J. LaBruna, Jr.

Office of United States Attorney

970 Broad Street, Room 700

Newark, NJ 07102

Karen T. Callahan [ARGUED]

Social Security Administration

Office of General Counsel - Region II

26 Federal Plaza

New York, NY 10278

Counsel for Appellee

Commissioner of Social Security

 

OPINION OF THE COURT

 
3

RENDELL, Circuit Judge

William Allen complains of the determination of the

Social Security Administration (“Agency”) that Allen is

capable of substantial gainful employment. Allen was

awarded social security benefits in 1994 based on his manicdepressive disorder, and schizoid condition. These benefits

were discontinued in 1998 based on the Agency’s

determination that Allen’s condition had improved. Allen

appealed this decision and the Appeals Council remanded the

decision, specifically requiring, among other things, that “if

warranted by the expanded record” the Administrative Law

Judge (“ALJ”) “obtain evidence from a vocational expert to

clarify the effect of the assessed limitations on the claimant’s

occupational base...” Allen urges that the ruling of the ALJ

on remand denying his continued benefits was not supported

by substantial evidence because the ALJ relied on the

medical-vocational grids notwithstanding the fact that the

impairment from which he suffers was not exertional. Allen

urges that the Commissioner was required to come forward

with testimony from a vocational expert regarding the

occupational base in light of the nature of Allen’s limitations. 

The District Court affirmed the determination of the

Agency that Allen’s condition had improved, reasoning that

“...because the findings and opinions of Plaintiff’s treating,

examining and non-examining sources confirm that Plaintiff’s

condition improved to where he could perform substantial
 This is an appeal from a final order of the United States 1

District Court for the District of New Jersey denying Allen’s

claim for continuation of Social Security disability benefits. 

The District Court had jurisdiction pursuant to 42 U.S.C.

§ 405(g). We have jurisdiction pursuant to 28 U.S.C. § 1291.

4

gainful activity, Plaintiff failed to show that his medical

impairment resulted in functional limitations that precluded

all successful gainful activity.” The District Court also held

that reliance on the grids, as well as on Social Security

Rulings, was sufficient in order for the Commissioner to

satisfy its burden of proof and the ALJ had discretion whether

or not to call a vocational expert. While we agree generally

with the District Court’s ruling that the Commissioner can

satisfy his burden in this manner, we disagree with the way in

which the ALJ applied the Social Security Ruling at issue

here, and we will reverse the District Court’s Order and

remand for it to refer the matter to the Agency for further

findings.1

We review the Agency’s factual findings only to

determine whether the administrative record contains

substantial evidence supporting the findings. See 42 U.S.C.

§ 405(g); Sykes v. Apfel, 228 F.3d 259, 262 (3d Cir. 2000). 

We exercise plenary review over all legal issues. See Id. 
5

BACKGROUND

Allen’s grant of benefits came up for periodic

continuing disability review in October 1997, pursuant to

Sections 216(i) and 223 of the Social Security Act, 42 U.S.C.

§§ 416(i) and 423, at which time the issues were whether his

medical condition had improved, and whether he had the

ability to obtain gainful employment. See 20 C.F.R.

§ 416.994 (2005).

When benefits were originally awarded to him in 1994,

Allen had completed a Functional Assessment Questionnaire,

in which he indicated that he lived with his mother, needed

help taking care of his personal needs, and did not prepare his

own meals. He indicated that on some days he did not get out

of bed. His mother did the shopping, and he barely left the

house. He stated, “I think I’m God, so I waste money.” 

Further, with respect to his interests and recreational

activities, he noted that all he did was to “sleep and

fantasize,” and that he didn’t visit others because “I don’t

trust humans.” Asked to elaborate on his medical condition,

he wrote: “Sometimes I think the world is coming to an end,

that I’m God, that I’m the devil and that I’m the richest man

in the world. I also think the TV is talking to me.” 

At that time, Dr. Edward Tabbanor opined that Allen

had a 15-year history of emotional difficulties, and that

although he was on medication and “is pleased with his
6

present adjustment . . . he is functioning marginally and is

involved in no organized activities. He should be encouraged

to seek the services of vocational rehabilitation.” Dr.

Tabbanor concluded that Allen was “not a good candidate”

for gainful employment. 

The Agency terminated Allen’s benefits in January

1998, based on its own determination that, as of November

1997, he had the ability to engage in substantial gainful

employment. Reconsideration of the denial was denied, but

Allen then requested a hearing before an ALJ, which was held

in May 1999, at which he appeared and testified.

The ALJ considered the applicable standard, namely,

that he needed to determine whether there had been a decrease

in the medical severity based on changes in symptoms, signs,

and/or laboratory findings manifested by the impairment,

noting that the medical improvement must be related to ability

to work. If there was a medical improvement and an increase

in the individual’s functional capacity to do basic work

activities, the ALJ noted, he would determine that medical

improvement related to the ability to do work has occurred. 

20 C.F.R. § 1594(b)(3). 

The ALJ cited extensive improvement in Allen’s

condition, giving appropriate details as to specific areas of

improvement, and describing the 1997 findings of two

physicians, Edward Tabbanor and Luis Zeiguer. The ALJ
7

concluded, in summary fashion, that based on the evidence,

“the claimant has the residual functional capacity to perform

substantial gainful activity, including his past relevant work

as a salesperson.” The ALJ then concluded that the benefits

had been correctly terminated.

On appeal, the Appeals Council took the ALJ to task

for failing to include (1) an evaluation of the severity of

Allen’s mental impairment or effects pursuant to 20 C.F.R.

§ 404.1520(a); (2) an evaluation of the credibility of Allen’s

subjective complaints as required by Social Security Ruling

96-7(p) and 20 C.F.R. § 404.1529; and (3) an indication of

Allen’s exertional or nonexertional limitations. The Appeals

Council stated that it was unable to determine “how the

decision has been reached that the claimant retains the

residual functional capacity to perform his past relevant

work.” 

The Appeals Council then remanded Allen’s case to

the ALJ, instructing the ALJ to further evaluate the claimant’s

subjective complaints, evaluate his mental impairment in

accordance with the technique described in 20 C.F.R.

§ 404.1520a(c), consider the maximum residual functional

capacity, and “if warranted by the expanded record, obtain

evidence from a vocational expert to clarify the effect of the

assessed limitations on the claimant’s occupational base

(Social Security Ruling 85-15).” The Appeals Council

included the following in concluding its directive: “The
8

hypothetical questions should reflect the specific

category/limitations established by the record as a whole. 

The Administrative Law Judge will ask the vocational expert

to identify examples of appropriate jobs and to state the

incidence of such jobs in the national economy. (20 C.F.R.

§ 404.1566).” 

A hearing was held on August 13, 2001, at which

Allen appeared and testified. Allen testified that he had

completed college and had taken some graduate courses. He

had held a few jobs, as a draftsman, a salesperson, and a

telemarketer, but was fired from every job within three

months. He was on medication, and took public

transportation to get to the doctor’s office and to the hearing. 

He testified that he had a “short fuse” and sometimes

co-workers would make him angry. Working in a workplace

setting was difficult when he experienced manic episodes and

he missed work because of lack of sleep.

The record before the ALJ included assessments from

three doctors. Dr. Robles, who had treated Allen in 1999 at

the Newark Beth Israel Medical Center, noted that Allen’s

bipolar disorder made him “likely to decompensate if under

pressure or with large groups of people.” Dr. Tabbanor, who

had rendered an opinion when Allen first qualified for

benefits, opined that Allen was “compliant with medical

supervision and lithium medication with fair results. He

presents as a fair candidate for resumption of gainful
9

employment.” Dr. Zeiguer noted that Allen explained that he

has not sustained full-time employment because “under stress

of employment production demands he tends to develop

paranoid ideation and gets into conflicts.” The opinion then

went on to note the potential for stress-related

decompensation, although experiencing very limited

psychiatric hospitalization and concluded that Allen “showed

good enough concentration for simple repetitive chores.” 

The ALJ issued his opinion on November 29, 2001,

referencing the opinions of Drs. Tabbanor and Zeiguer, and

noted that the Beth Israel psychiatric records indicated that

“the claimant was doing well and his condition had stabilized. 

The ALJ did not refer to the “decompensation” note contained

in Dr. Robles’ report. The ALJ found Allen’s symptoms to

be not fully supported by objective medical evidence alone,

and his allegations that he was unable to work after

November 1, 1997 because of his mental impairments to be

not fully credible.

The ALJ then noted that Allen’s impairment was

“severe,” but not of listing severity. He then followed the

dictates of 20 C.F.R. §§ 404.1520(a) and 416.920(a),

examining Allen’s Residual Functional Capacity, noting that

Allen had “mild” limitations in his activities of daily living

and concentration, “moderate” limitations of social

functioning (which decrease when he takes his medication),

and that he had not experienced episodes of decompensation. 
10

The ALJ concluded that Allen had made medical

improvement in the symptoms of bipolar disorder. This was

based primarily upon Dr. Tabbanor’s opinion in 1997 (as

compared to his first opinion, in 1994). Drawing on

Dr. Tabbanor’s opinion that “claimant was capable of gainful

employment,” and Dr. Zeiguer’s opinion that claimant was

“capable of performing simple chores,” the ALJ concluded

that Allen had the Residual Functional Capacity for simple

routine repetitive work at all exertional levels. However, he

was not capable of his past relevant work, as a salesman,

because it was classified as “semi-skilled,” and claimant was

no longer capable of performing semi-skilled work.

Stating that the Commissioner had the burden of

showing that significant jobs existed in the local or national

economy that claimant was capable of performing, given his

medically determinable impairments, and functional

limitations, the ALJ then concluded:

The claimant has a college education and a semiskilled work background. The claimant is capable of

performing a full range of unskilled work at all exertional

levels. A finding of not disabled was reached by application

of medical-vocational rule 204, Appendix 2, subpart P,

Regulations Part 404, used as a framework for decision

making. The mental limitations for simple, routine, repetitive

work do not significantly erode the base of jobs that claimant

is capable of performing. (SSR 85-15 ) 
11

Accordingly, in reaching the ultimate conclusion regarding

the availability of jobs in the economy that Allen is capable of

performing, the ALJ relied on SSR 85-15 without requiring

testimony from a vocational expert.

On appeal, the District Court affirmed the ALJ’s

decision, finding substantial evidence in the record to support

the ALJ’s findings that Allen’s condition had medically

improved since November 1, 1997, that this medical

improvement was related to Allen’s ability to work and that

Allen had the Residual Functional Capacity to perform

simple, repetitive work at all exertion levels. Thus, the

District Court held that the ALJ was correct to conclude that

although Allen could not likely return to his past relevant

work, there existed other jobs in the national economy at the

sedentary level that Allen could perform. The District Court

further held that the ALJ did not have to consult a vocational

expert in order to make his determinations as to whether Allen

was able to perform basic mental work-related functions, as

the decision whether the consult such an expert was within the

discretion of the ALJ. The District Court noted that the ALJ

“distinctively noted that based on Social Security Ruling

85-15, he found that Plaintiff’s mental limitations did not

significantly erode the base of unskilled work available. This

Court may defer to the SSR since there exists no evidence in

the record, nor allegations by Plaintiff, to establish that SSR

85-15 is plainly erroneous or inconsistent with the Act and

‘once published, [SSRs] are binding on all components of the
12

[Social Security Act].’ Walton v. Halter, 243 F.3d 703, 708

(3d Cir. 2001).” 

DISCUSSION

On appeal, Allen challenges the ALJ’s reliance on the

medical-vocational grids when presented with nonexertional

impairments. Allen contends that the ALJ’s ruling runs

contrary to our opinion in Sykes v. Apfel, 228 F.3d 259 (3d

Cir. 2000), in which we stated:

The Commissioner cannot determine that

nonexertional impairments do not significantly

erode occupational base under medical-vocational

guidelines (“grids”) without taking additional

vocational evidence establishing that fact.

Sykes at 261. 

Allen posits that in Sykes, we specifically forbade the

ALJ from “invoking the dubious ‘framework’ exception by

considering himself or herself to be a vocational expert.” 

Allen contends, in addition, that the ALJ’s decision violates

the Agency’s own rulings and regulations.

While Allen’s argument has an initial appeal, because

the grid’s “framework” clearly classifies work in terms of

strength, thus tying it to physical exertion, nonetheless, as we
As the Court noted in Sykes v. Apfel, 228 F.3d 259, 262-63 2

(3d Cir. 2000):

The Social Security Administration has

promulgated a five-step process for evaluating

disability claims. See 20 C.F.R. § 404.1520

(1999). First, the Commissioner considers

whether the claimant is currently engaged in

substantial gainful activity. If he is not, then the

Commissioner considers in the second step

whether the claimant has a ‘severe impairment’

that significantly limits his physical or mental

ability to perform basic work activities. If the

claimant suffers a severe impairment, the third

inquiry is whether, based on the medical

evidence, the impairment meets the criteria of an

impairment listed in the ‘listing of impairments,’

20 C.F.R. pt. 404, subpt. P, app. 1 (1999), which

result in a presumption of disability, or whether

13

discuss below, the Agency has used, and the courts are thus

directed to employ, the grids as a framework when

nonexertional limitations are also at issue. Here we are

presented with exclusively nonexertional limitations by virtue

of Allen’s mental diagnosis. Accordingly, we must

determine whether the grids still are an appropriate

framework and whether if nonexertional limitations are

present, a vocational expert must be called by the

Commissioner in order for it to meet its burden at the

5th step.2
the claimant retains the capacity to work. If the

impairment does not meet the criteria for a listed

impairment, then the Commissioner assesses in

the fourth step whether, despite the severe

impairment, the claimant has the residual

functional capacity to perform his past work. If

the claimant cannot perform his past work, then

the final step is to determine whether there is

other work in the national economy that the

claimant can perform. The claimant bears the

burden of proof for steps one, two, and four of

this test. The Commissioner bears the burden of

proof for the last step. (Internal citations omitted).

 “Social Security Rulings are agency rulings published under 3

the authority of the Commissioner of Social Security and are

binding on all components of the Administration.” Sullivan v.

Zebley, 493 U.S. 521, 531 n.9 (1990) (Internal quotations

omitted). “...Rulings do not have the force and effect of the law

or regulations but are to be relied upon as precedents in

determining other cases where the facts are basically the same.

A ruling may be superseded, modified, or revoked by later

legislation, regulations, court decisions or rulings.” Heckler v.

Edwards, 465 U.S. 870, 874 n.3 (1984) (Internal quotations

14

Here, the ALJ relied on the regulations as a

“framework,” and then relied on Social Security Ruling

(“SSR”) 85-15 in reaching his ultimate conclusion that Allen

could engage in substantial gainful employment. Allen 3
omitted). 

 We note at the outset that although Allen contends that the 4

remand order directed the use of a vocational expert, we do not

read the order as mandatory in this regard. Rather, the remand

order states that the ALJ will: “If warranted by the expanded

record, obtain evidence from a vocational expert to clarify the

effect of the assessed limitations on the claimant’s occupational

base (Social Security Ruling 85-15). . . .” Thus, it was up to the

ALJ on remand to determine whether a vocational expert was

necessary. The Appeals Council, in affirming the ALJ after its

more recent ruling did not question the ALJ’s reliance on the

Social Security ruling rather than on a vocational expert. 

15

contends that only a vocational expert could make that last

link, and that relying on an Agency ruling does not satisfy the

Agency’s burden.

The issue before us, then, in the broadest sense,

requires an inquiry into the role that Social Security Rulings

play in Agency determinations, and, more specifically,

whether, here, reference to the specific Ruling was an

appropriate substitute for the testimony of a vocational

expert.4

We start our analysis with the Supreme Court’s

opinion in Heckler v. Campell, 461 U.S. 458 (1983), in which

the Supreme Court clearly established the general rule that the

Agency may rely on rulemaking authority to determine issues
16

that do not require case-by-case consideration. In that case, a

challenge was leveled at the medical-vocational guidelines

themselves, with Campbell arguing that the ALJ had the

obligation to examine specific types of work in order to

determine whether she could obtain substantial gainful

employment when presented with the issue as to what jobs

she could perform, given her back condition, which permitted

her to do only light work. The ALJ rejected that argument,

and relied on the medical-vocational guidelines in his finding

that a significant number of jobs existed that someone in her

condition could perform. The Court of Appeals for the

Second Circuit reversed, holding that the Secretary must

engage in individualized scrutiny of her limitations and

possible relevant jobs, and must identify “specific alternative

occupations available in the national economy that would be

suitable for the claimant.” 461 U.S. at 464.

The Supreme Court rejected the Court of Appeals’

view, noting that after the ALJ makes the assessment as to the

claimant’s individual abilities, he must then determine

whether jobs exist that a person having claimant’s

qualifications could perform. With respect to that second

inquiry, the Court noted:

The second inquiry requires the Secretary to

determine an issue that is not unique to each

claimant – the types and number of jobs that

exist in the national economy. This type of
 Campbell had raised an issue regarding due process and the 5

requirement of notice of reliance on rulemaking, but the court

declined to address it, since Campbell had not previously raised

this claim and the Court did not view it as an exceptional case

where issues not raised should nonetheless be addressed on

appeal. In alluding to the issue, however, the Court noted the

principle of administrative law, “that when an agency takes

official or administrative notice of facts, a litigant must be given

an adequate opportunity to respond.” Such an opportunity to

respond would appear to require notice to the claimant of the

agency’s intent. Thus, the Court left open the possibility that an

ALJ’s reliance exclusively on rulemaking without notice might

be viewed as unfair to the claimant. See Heckler v. Campbell,

461 U.S. 458, 469 n.13 (1983).

17

general factual issue may be resolved as fairly

through rulemaking as by introducing the

testimony of vocational experts at each

disability hearing.

Id. at 467-68. 

Thus, Heckler stands for the broad proposition that the

Commissioner can satisfy its burden of proof regarding

availability of jobs in the national economy via rulemaking

rather than requiring actual evidence on a case-by-case basis.5

Thus, Agency rulemaking, as long as it is not arbitrary or

capricious, is permissible as a substitute for individualized

case-by-case determinations, thus doing away with the need
18

for evidence to support the determination at Step 5.

In Walton v. Halter, 243 F.3d 703 (3d Cir. 2001), we

had occasion to examine the extent to which the Agency’s

rules and regulations are binding on the Agency. There, the

Commissioner reached a conclusion with respect to the onset

date of the claimant’s disease based upon medical evidence

which was not clearly dispositive. We concluded that the

ALJ could not, consistent with SSR 83-20 and the necessity

of establishing “an onset date based on substantial evidence,”

simply “draw an inference from the record evidence [that

lacked] medical support.” Id. at 709. In other words, because

SSR 83-20 required a medical basis for the ALJ’s conclusion,

the ALJ’s determination that ran afoul of the ruling was not

supported by substantial evidence. In this way, we required

adherence to the SSRs, finding them to be controlling.

More recently, in 2000, our Court had occasion to

consider the application of these directives in the context of a

different fact pattern, namely, one that involved nonexertional

as well as exertional limitations. In Sykes v. Apfel, Sykes

had a number of severe impairments, including left eye

blindness. The ALJ in Sykes relied on the medical-vocational

guidelines as a “framework” and, on review, we concluded:

[U]nder Heckler v. Campbell . . . , and in the

absence of the rulemaking establishing the facts

of an undiminished occupational base, the
19

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).

228 F.3d 259, 261 (3d Cir. 2000).

In Sykes, the ALJ had denied Sykes’ application,

summarily concluding that the exclusion of jobs requiring

binocular vision from light work positions did not

significantly compromise Sykes’ broad occupational base. 

We disagreed, and concluded that either vocational evidence

or “rulemaking establishing the fact of an undiminished

occupational base” was necessary. Id. at 261.

Allen contends that the ALJ’s ruling here, and thus the

District Court’s as well, is contrary to Sykes. However,

whereas Sykes spoke to the situation in which rulemaking

regarding the degree of diminution in the occupational base

was lacking, here the ALJ specifically referred to rule

SSR 85-15. SSR 85-15 addresses the precise issue presented

here, namely, the interplay between nonexertional

impairments and the grids, which we will discuss more fully
20

below.

After the Sykes opinion, the Agency issued an

Acquiescence Ruling to specifically address how the Agency

would deal with issues of this kind in cases within the

geographic limits of the Third Circuit. There, the Agency

noted that, thereafter, at Step 5, the Agency would not use the

grid framework exclusively when there were nonexertional

limitations, but would, in addition:

(1) Take or produce vocational evidence, such

as from a vocational expert, the DOT, or other

similar evidence (such as a learned treatise); or

(2) Provide notice that we intend to take or are

taking administrative notice of the fact that the

particular nonexertional limitation(s) does not

significantly erode the occupational base, and

allow the claimant the opportunity to respond

before we deny the claim.

However, the Agency then went on to specifically

state:

This Ruling does not apply to claims where we

rely on an SSR that includes a statement

explaining how the particular nonexertional

limitation(s) under consideration in the claim
 Interestingly, the Agency then noted as well: “We are 6

considering revising our rules regarding our use of the grid rules

as a framework for decision making and may rescind this Ruling

once we have made the revision.” AR 01-1(3), 2001 WL 65745

at *5 (S.S.A.). No revision has occurred to date.

21

being adjudicated affects the claimant’s

occupational job base. When we rely on such

an SSR to support our finding that jobs exist in

the national economy that the claimant can do,

we will include a citation to the SSR in our

determination or decision.6

AR 01-1(3), 2001 WL 65745 at *4 (S.S.A.).

Accordingly, the ALJ’s use of the guidelines as a

framework in this case, and his reliance upon an SSR at

Step 5 to determine Allen’s occupational job base is not an

improper application of either the case law or rules

established by the Agency. Further, from the standpoint of

common sense, the grids’ use for exertion level are not totally

irrelevant if a claimant has only a nonexertional impairment,

for there would still be an applicable exertional level, i.e., the

claimant could do work requiring heavy exertion. 

 However, the ALJ’s reliance on SSR 85-15 in this

instance, and in summary fashion, gives us pause. While the

Agency excerpted a certain portion of SSR 85-15 as
22

conclusive on the relationship between the type and degree of

mental limitation and the size of the occupational base,

nonetheless, the ALJ’s conclusion in this regard fails to focus

on any of Allen’s work-related limitations. Instead, the ALJ’s

opinion parrots the attributes of work, not the limitations

experienced by Allen, noting that Allen was capable of

performing “a full range of unskilled work at all exertional

levels” but then stating, as the complete mental impairment

analysis, the following: “The mental limitations for simple,

routine, repetitive work do not significantly erode the base of

jobs the claimant is capable of performing. (SSR 85-15.)”

The difficulty we have with this reasoning is that the

Appeals Council in its remand order specifically admonished

the ALJ to state the claimant’s exertional and nonexertional

limitations. Instead, the ALJ refers to SSR 85-15 as though it

resolves the issue. However, SSR 85-15 is a ten-page ruling

that specifically addresses the relationship of different mental

impairments to job activity. 

SSR 85-15 provides that where individuals have

nonexertional limitations of function or environmental

restrictions, the table rules (medical-vocational rules) still

provide a “framework” for consideration of how much the

individual’s work capability is further diminished in terms of

any types of jobs. Where a person has solely a nonexertional

impairment: “[T]he table rules do not direct conclusions of

disabled or not disabled. Conclusions must, instead, be based
23

on the principles in the appropriate sections of the

regulations...” The Ruling then notes that its purpose is to

clarify policies applicable in cases involving the evaluation of

solely nonexertional impairments. 1985 WL 56857 at *1

(S.S.A.). 

The policy statement of SSR 85-15 notes that the first

issue to be considered is the Residual Functional Capacity

reflecting the severity of the particular nonexertional

impairment with its limiting effects on the broad world of

work. Id. at *2. The SSR makes clear that, while there may

be a need to consult a vocational resource, “the publications

listed in Sections 404.1566 and 416.966 of the Regulations

will be sufficient vocational resources for relatively simple

issues. In more complex cases, a person or persons with

specialized knowledge would be helpful.” Id.at *3.

Within the discussion of mental impairments in the

Ruling are several examples of different attributes of

individuals which would, or would not, limit the occupational

base for jobs in the national economy. The Ruling contains a

general discussion that merits repeating:

Given no medically determinable impairment

which limits exertion, the first issue is how

much the person’s occupational base – the

entire exertional span from sedentary work

through heavy (or very heavy) work – is
24

reduced by the effects of the nonexertional

impairment(s). This may range from very little

to very much, depending upon the nature and

extent of the impairment(s). In many cases a

decision maker would need to consult a

vocational resource. 

Id.

The SSR then proceeds to address certain examples of

nonexertional impairments, commenting on their impact on

the occupational base. In introducing the topic of “mental

impairments,” it states: “The decision maker must not assume

that failure to meet or equal a listed mental impairment

equates with capacity to do at least unskilled work. This

decision requires careful consideration of the assessment of

RFC.” Id. at *4. The SSR also includes a discussion of the

impact of the inability to handle stress, and addresses how an

individual with a difficult reaction to the demands of work

may have difficulty meeting the requirements of even a lowstress job. Further, it notes that the reaction to stress is highly

individualized. The section ends with the notation that any

impairment-related limitations created by an individual’s

response to demands of the workplace must be reflected in the

RFC assessment. Id. at *5-6. 

Notwithstanding the ALJ’s reference to, and apparent

reliance on, this Ruling, we are at a loss to find within the
25

Ruling itself the conclusion the ALJ seems to find regarding

the occupational base for one with Allen’s mental limitations.

The ALJ makes broad statements regarding Allen’s

RFC, as we referenced above, but his conclusion only

addresses in general fashion the “mental limitations for

simple, routine, repetitive work.” It does not reference any

aspect of SSR 85-15 that relates Allen’s particular

nonexertional limitations to the occupational job base. Thus,

we have difficulty in determining what the ALJ believed were

Allen’s “mental limitations for simple, routine, repetitive

work,” and how they fit into the various categories or

examples set forth in SSR 85-15. While, surely, the Agency

can use its rules as a substitute for individualized

determination, nonetheless, there must be a “fit” between the

facts of a given case, namely, the specific nonexertional

impairments, and the way in which the Rule dictates that such

nonexertional limitations impact the base. In fact, the

Acquiescence Ruling states that a ruling that is being relied

upon in lieu of testimony should set forth the “fit.” See 2001

WL 65745 at *4 (stating that the requirement that the Agency

consider vocational expert testimony or provide notice that it

is taking administrative notice of the fact that a particular

nonexertional limitation does not significantly erode the job

base when making a disability determination as to a

nonexertional impairment at Step 5 of the sequential process

would not be necessary if the “SSR includes a statement

explaining how the particular nonexertional limitation(s)
26

under consideration... affects the claimant’s occupational

base”). SSR 85-15 refers specifically to aspects of

nonexertional limitation apparent in Allen’s profile, as the

doctors’ reports indicate, namely, difficult response to

supervision, impaired ability to deal with changes in a work

setting and job stress. The Rule states, in concluding the

discussion of this type of limitation:

Because response to the demands of work is

highly individualized, the skill level of a

position is not necessarily related to the

difficulty an individual will have in meeting the

demands of the job. A claimant’s condition

may make performance of an unskilled job as

difficult as an objectively more demanding job. 

For example, a busboy need only clear dishes

from tables. But an individual with a severe

mental disorder may find unmanageable the

demands of making sure that he removes all the

dishes, does not drop them, and gets the table

cleared promptly for the waiter or waitress. 

Similarly, an individual who cannot tolerate

being supervised may not be able to work even

in the absence of close supervision; the

knowledge that one’s work is being judges and

evaluated, even when the supervision is remote

or indirect, can be intolerable for some mentally

impaired persons. Any impairment-related
27

limitations created by an individual’s response

to demands of work, however, must be reflected

in the RFC assessment.

1985 WL 56857 at * 6.

The RFC assessment here fails to really focus on the

limitations at issue. Moreover, the ALJ made only passing

reference to the nature of Allen’s limitations, stating that “the

record shows an opinion that pressure or being in large groups

of people could aggravate his symptoms.” However, the ALJ

then discarded this fact by noting that Allen could travel on

his own and did not relate either of these factors as

specifically problematic. In fact, Allen did express concern as

to the social interaction and stress of jobs. The ALJ did not

connect these limitations to any applicable occupational base

directives within SSR 85-15. While, admittedly, SSR 85-15

does include specific statements explaining how specific

nonexertional limitations would affect the claimant’s

occupational base, it also includes certain areas of concern

that should require the ALJ to make an individualized

determination. These would appear to be present here.

Looking at the ALJ’s conclusory reference to

SSR 85-15, we cannot determine whether he was relying upon

a specific aspect of the Rule in a permissible way, or whether,

by contrast, he found certain limitations to exist which would

require, under the dictates of the Rule itself, an individualized
28

determination. Looking at the record before us, we cannot

help but note that certain aspects of Allen’s mental disorder –

including response to supervision, stress, and the like – would

more likely be subjected to an individualized assessment. 

In reviewing proceedings before ALJs, we have been

careful to ensure that a vocational expert’s hypothetical

contain a complete and accurate factual basis in order for the

conclusion to constitute substantial evidence. See Ramirez v.

Barnhart, 372 F.3d 546 (3d Cir. 2004). Just as we required in

Ramirez that a vocational expert’s testimony was only as

valid as the limitations that the ALJ had included in the

hypothetical, here we will require that the ALJ’s own

reference to the SSR ruling discuss specifically the limitations

presented by the medical record. As we said in Ramirez, “If,

however, an ALJ poses a hypothetical question to a vocational

expert that fails to reflect ‘all of the claimant’s impairments

that are supported by the record . . . it cannot be considered

substantial evidence.’” Id. at 550 (quoting Chrupcala v.

Heckler, 829 F.2d 1269, 1276 (3d Cir. 1987)).

Recently, in Burns v. Burnhart, 312 F.3d 113 (3d Cir.

2002), where the vocational expert’s testimony did not touch

on borderline intellectual functioning, and the ALJ used only

the concept of “simple repetitive one-, two-step tasks” in the

hypothetical, we could not conclude that its ruling was

supported by substantial evidence because the reference to

simple tasks did not “specifically convey” the claimant’s
29

intellectual limitations and that “greater specificity” was

required.

Accordingly, we hold 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. Here, notwithstanding the

fact that stress was alluded to by one of the doctors, and that

stress is singled out as an individualized factor in the SSR

relied upon, the ALJ fails to discuss this and, as a result, his

determination that Allen has the ability to perform simple

tasks prevalent in the national economy is not supported by

substantial evidence.

Accordingly, we will vacate and remand for further

elaboration by the ALJ regarding how the specific limitations

experienced by Allen would impact his ability to perform

simple repetitive tasks in a job that constitutes substantial

gainful employment. This can be accomplished by noting

how SSR 85-15 is relevant and controlling – if indeed that is

the case – or by obtaining the individualized assessment that

SSR 85-15 seems to prefer by way of a vocational expert.

We also take this opportunity to address the issue of

notice, alluded to but not decided by the Supreme Court in

Heckler, See supra note 5, and required in some situations by

the Acquiescence Ruling referred to above. If an agency will
30

rely on rules as a substitute for individualized determination,

and thus relieve the agency from the burden of producing

evidence, we think advance notice should be given. In the

Acquiescence Ruling, however, the Agency excepted out

those instances where the reliance would be placed on an SSR

that includes a statement explaining how the limitation did

affect the occupational job base. 2001 WL 65745 at *4. We

question whether this exception is called for and urge that, as

a matter of fairness, alerting a claimant to the relevant rule in

advance will always be appropriate. While the Agency can

meet its burden by reference to a Ruling, as the Supreme

Court has held, nonetheless, the claimant should have the

opportunity to consider whether it wishes to attempt to

undercut the Commissioner’s proffer by calling claimant’s

own expert. Obviously, this requires notice in advance of the

hearing. 

We think it only appropriate to give close scrutiny to

the ALJ’s reliance on a Ruling as satisfying the

Commissioner’s burden at Step 5 where the Commissioner

has not previously advised or argued the clear applicability of

the Ruling in advance of the hearing. In this way, while the

Commissioner has the ability to satisfy its burden in this way,

its doing so does not constitute an ambush whereby the

claimant, who assumed he would have the opportunity to

cross-examine a vocational expert, is left as a practical matter

to merely argue against a Ruling in response to the

Commissioner’s proof.
31

CONCLUSION

In light of the foregoing, we will reverse the District

Court’s Order and remand for it to refer the matter to the

Agency for further findings consistent with this opinion.