Summary
holding that at minimum ALJ must articulate credible and plausible reasons supporting assertion that the grids provide a reliable framework when considering extent to which non-exertional impairments affect ability to perform specific jobs existing in national economy
Summary of this case from Thompson v. Commissioner of Social SecurityOpinion
No. 9:00-cv-128.
April 10, 2002.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This case is referred to the undersigned United States Magistrate Judge for review, hearing if necessary, and submission of a report with recommended findings of fact and conclusions of law. See 28 U.S.C. § 636(b)(1)(B) and Local Rules for the Assignment of Duties to United States Magistrate Judges.
I. NATURE OF THE CASE
Pursuant to 42 U.S.C. § 405(g), plaintiff seeks judicial review of the Commissioner of Social Security Administration's ("Commissioner") decision denying her application for Supplemental Security Income benefits ("SSI").
II. JUDICIAL REVIEW
The Social Security Act provides a mechanism by which federal courts may review administrative decisions denying applications for Social Security benefits. The court's role is to determine (A) whether the Commissioner applied the proper legal standards, and (B) whether the decision is supported by substantial evidence. See Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001), citing Harris v. Apfel, 209 F.3d 413, 417 (5th Cir. 2000); Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995); Anthony v. Sullivan, 954 F.2d 289, 292 (5th Cir. 1992). The court must affirm the Commissioner's decision unless the ALJ applied an incorrect legal standard, or the ALJ's determination is not supported by substantial evidence. Boyd v. Apfel, 239 F.3d at 704. When the Commissioner's findings are not supported by substantial evidence, or are based on incorrect principles of law, the court has "power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Secretary, with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g).
By local orders of the court, complaints seeking judicial review of administrative decisions denying applications for social security benefits are treated as appeals. The party seeking review is required to specify alleged points of error, and to submit a brief containing legal arguments directed to those points. The Commissioner is then ordered to file a brief in response. The court limits the scope of its judicial review to the points argued in the briefs.
See Notice to Parties in Social Security Cases, Docket No. 6, and Order Directing Filing of Briefs, Docket No. 10.
III. SUPPLEMENTAL SECURITY INCOME
Supplemental Security Income ("SSI") benefits are authorized by Title XVI of the Social Security Act, and are funded by general tax revenues.See Social Security Administration, Social Security Handbook, § 2100 (14th ed. 2001). The SSI program is a general public assistance measure providing an additional resource to the aged, blind, and disabled to assure that their income does not fall below the poverty line. Eligibility for SSI is based upon proof of indigence and disability. H.R. Rep. No. 92-231, (1972), reprinted in 1972 U.S.C.C.A.N. 4989, 5132-5133. See also 42 U.S.C. § 1382(a), 1382c(a)(3)(A)-(C).The Social Security Act's general disability insurance benefits program ("DIB") is a separate and distinct program. However, applicants seeking benefits under either program must prove "disability" within the meaning of the Social Security Act, which defines disability in virtually identical language for both programs. See 42 U.S.C. § 423(d), 1382c(a)(3), 1382c(a)(3)(G); see also 20 C.F.R. § 404.1505(a), 416.905(a). Moreover, "[t]he law and regulations governing the determination of disability are the same for both [DIB] and SSI."Greenspan v. Shalala, 38 F.3d 232 (5th Cir. 1994), cert. denied 514 U.S. 1120, 115 S.Ct. 1984 (1995).
The DIB program provides income to individuals who are forced into involuntary, premature retirement, provided they are both insured and disabled , regardless of indigence. See 42 U.S.C. § 423(a); see also Mathews v. Castro , 429 U.S. 181, 186 (1976). DIB is authorized by Title II of the Social Security Act, and is funded by Social Security taxes. See Social Security Administration, Social Security Handbook, § 2100 (14th ed. 2001).
In either case, Social security claimants bear a formidable burden of proof, "so stringent that it has been described as bordering on the unrealistic." Oldham v. Schweiker, 660 F.2d 1078, 1083 (5th Cir. 1981). The Act defines disability as the inability "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 1382c(a)(3)(A). A physical or mental impairment is one which "results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 1382c(a)(3)(A). A claimant is disabled "only if his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. § 1382c(a)(3)(B).
Establishment of a disability is thus a dual process. First, the claimant must prove that (s)he suffers from a medically determinable impairment. 42 U.S.C. § 1382c(a)(3)(C). Second, the claimant must prove that an impairment or combination of impairments renders claimant unable to engage either in the work previously performed or other substantial gainful employment that exists in the national economy. 42 U.S.C. § 1382c(a)(3)(B).
IV. SEQUENTIAL EVALUATION PROCESS
The law requires, in every case, that the Commissioner determine whether the claimant has a disability. See Heckler v. Campbell, 461 U.S. 458, 103 S.Ct. 1952 (1983). The Commissioner utilizes a five-step sequential evaluation analysis to aid in determining when claimants are disabled. See 20 C.F.R. § 404.1520. This procedure has judicial approval as a fair and just way for determining disability applications in conformity with the Social Security Act. See Bowen v. Yuckert, 482 U.S. 137, 153, 107 S.Ct. 2287, 2297 (1987) (citing Heckler v. Campbell, 461 U.S. at 461, 103 S.Ct. at 1954) (The use of the sequential evaluation process "contribute[s] to the uniformity and efficiency of disability determinations").
The five steps are as follows:
The Commissioner ascertains whether the applicant is currently engaging in substantial gainful activity . If so, a finding of non-disability is entered and the inquiry ends.
The Commissioner determines if the applicant's impairment or combination of impairments is severe , that is, of a magnitude sufficient to limit significantly the individual's physical or mental ability to do basic work activities. If not, the inquiry ends and a finding of non-disability is entered.
The Commissioner determines whether the severe impairment equals or exceeds those in the Listing of Impairments, 20 C.F.R. Subpt. P, Appendix 1 . If so, disability is presumed and benefits are awarded.
The Commissioner determines whether the impairment prevents the individual from engaging in his regular previous employment . If so, a prima facie case of disability is established and the burden of going forward (to the fifth step) shifts to the Commissioner. See Chaparro v. Bowen, 815 F.2d 1008, 1010 (5th Cir. 1987).
The Commissioner determines whether other work exists in the national economy which the applicant can perform . If the Commissioner establishes that an applicant can perform alternative employment, the burden shifts back to the applicant to show he cannot perform the alternative labor. See Id.; Taylor v. Bowen, 782 F.2d 1294, 1298 (5th Cir. 1986); 20 C.F.R. § 404.1520(a)-(f).
V. COMMISSIONER'S BURDEN AT STEP FIVE
At the fifth step, the Commissioner's burden is to establish that an applicant can perform available, alternative employment. To meet this obligation, the Commissioner engages in a two-pronged analysis:
First, the Commissioner determines an applicant's residual functional capacity ("RFC"). That is, the Commissioner decides whether the applicant, notwithstanding severe impairment, has the physical and mental ability to perform activities generally required in various categories of work.
Next, the Commissioner consults the "Medical Vocational Guidelines," commonly called "the grids." The grids are a matrix of general findings, established by rule, as to whether work exists in the national economy that a person can perform, taking into account age, education, work experience, and residual functional capacity. When individual factors for a particular applicant are compared to the general findings in the grids, the Commissioner determines whether alternative work that the particular applicant can perform exists in the national economy.
Residual functional capacity is defined as "what you can still do despite your limitations." 20 C.F.R. § 404.1545(a). It has three components: physical abilities, mental abilities, and other impairments. See 20 C.F.R. § 404.1545(a).
The Medical-Vocational Guidelines consist of three tables (for sedentary, light, and medium work) which may be consulted following a determination of claimant's residual functional capacity. The tables direct conclusions of disability or non-disability based upon claimant's age, education, and previous work experience. See 20 C.F.R. Pt. 404, Subpt. P, App. 2, §§ 201-03 (2000).
When a claimant suffers only from exertional impairments and an ALJ's findings of residual functional capacity, age, education, and previous work experience coincide with the grids, the Commissioner may rely exclusively on the grids to determine whether work exists in the national economy which claimant can perform. 20 C.F.R. § 404.1569a(b). If the grids produce a finding that substantial jobs are not available, the application for benefits is approved. Conversely, if the grids produce a finding that such jobs are available, the application is denied. Use of the grids does not violate the Social Security Act and is judicially approved as a fair and just method of determining disability. See Heckler v. Campbell, 461 U.S. 458, 103 S.Ct. 1952 (1983) (concluding that the use of occupational grids is not violative of the Social Security Act and stating that "[t]his type of general factual issue may be resolved as fairly through rulemaking as by introducing the testimony of vocational experts at each disability hearing").
Exertional impairments "affect only . . . ability to meet strength demands of jobs (sitting, standing, walking, lifting, carrying, pushing, and pulling)." 20 C.F.R. § 404.1569a(b) .
While application of the grids serves desirable purposes of promoting uniformity and efficiency, use of the grids is not appropriate in all circumstances. The grids only establish whether there are available unskilled jobs in the national economy for claimants with exertional impairments and who fit the criteria of the rule at various functional levels. They do not purport to establish jobs that exist in the national economy at various functional levels when a claimant has a solely nonexertional impairment (or does not meet criteria of the rule for other reasons). 20 C.F.R. § 404.1569a(c)(2). See also Sykes v. Apfel, 228 F.3d 259, 269 (3d Cir. 2000). Consequently, when an ALJ determines that a claimant suffers from a nonexertional impairment that prevents performance of the claimant's past work, the Commissioner generally must produce "expert vocational testimony or other similar evidence" to establish that jobs exist in the national economy that the applicant can perform. See Lawler v. Heckler, 761 F.2d 195, 198 (5th Cir. 1985); Dellolio v. Heckler, 705 F.2d 123, 127-28 (5th Cir. 1983).
Nonexertional impairments are those which do "not result in [strength] limitations, e.g. certain mental, sensory, or skin impairments. In addition, some impairments may result solely in postural and manipulative limitations or environmental limitations." 20 C.F.R. Pt. 404, Subpt. P, 200(e) (2000).
There are two exceptions to these general precepts. First, even when a claimant has a nonexertional impairment, the Commissioner may nevertheless rely exclusively on the grids to determine whether work exists in the national economy which claimant can perform if (a) the ALJ determines that the nonexertional impairment does not significantly affect the claimant's RFC, and (b) substantial evidence supports that determination. Newton v. Apfel, 209 F.3d 448, 458 (5th Cir. 2000), citingFraga v. Bowen, 810 F.2d 1296, 1304 (5th Cir. 1987). Second, even when a claimant's RFC is so significantly affected by a nonexertional impairment as to preclude resort to the grids for a disability determination, the grids may nevertheless be consulted as a "framework for consideration of how much the individual's work capability is further diminished in terms of any types of jobs that would be contraindicated by the nonexertional limitations." 20 C.F.R. pt. 404, subpt. P, app.2, § 200.00(§e)(2) (2001).
VI. ALJ'S DETERMINATION
At her administrative hearing before the ALJ, Ms. Nobles was not represented by counsel. Instead, the ALJ obtained and then accepted her oral waiver of the right to counsel. He then proceeded to receive and evaluate evidence. Tr. 138.
The hearing also proceeded without benefit of expert vocational testimony to establish whether jobs exist in the national economy that Ms. Nobles can perform.
Following the hearing, the ALJ — employing the sequential step analysis described earlier — issued a written decision denying the SSI benefits application, and making the following determinations:
Step 1: Plaintiff has not engaged in substantial gainful activity since November 1, 1994. Tr. 17.
Step 2: Plaintiff has severe medically determinable impairments: diabetes mellitus and hypertension. Tr. 17.
Step 3: Plaintiff's impairments, singly or in combination, do not meet or equal the severity of any impairment in Appendix 1 to Subpart P of Regulations No. 4. Tr. 17.
Step 4: Plaintiff has no history of past relevant work. Tr. 18.
Step 5: Plaintiff also suffers from a nonexertional impairment — lack of visual acuity — that diminishes but does not significantly compromise her ability to perform the full range of light work. Tr. 17-18, Findings 6 and 10.
The ALJ's Step 5 finding, i.e., that Ms. Noble's nonexertional impairment did not significantly compromise her residual functional capacity for a full range of light work, is misleading. It is fundamentally inconsistent with his reasoning as stated in the "Evaluation of the Evidence and Rationale" section of his decision. There, he explains that plaintiff's " capacity for light work is diminished by significant non-exertional limitations which make it impossible for her to perform tasks requiring unrestricted visual acuity." Tr. 16 (emphasis added). The ALJ found that while plaintiff did not require eye glasses, " her occasional high blood pressure and her diabetes which is occasionally not controlled could result in some occasional blurred vision." Id. That, in turn, precluded her from all work activity requiring close, detailed, unrestricted visual acuity. Thus, the ALJ clearly mis-spoke himself when stating that Ms. Nobles's nonexertional impairment did not significantly compromise her residual functional capacity for the full range of light work.
Had the ALJ truly intended to make such a finding, he would have then determined disability vel non simply by applying the grids. His decision explicitly recognizes what would inevitably follow were he to make make such a finding:
If Ms. Nobles were capable of performing a full range of light work, a finding of "not disabled" would be reached by application of [the grids].Id. (emphasis added). To the contrary, however, the ALJ expressly excluded Ms. Nobles's case from such application. Indeed, the ALJ determined that
Strict application of this rule is not possible, however, as the claimant has non-exertional limitations which narrow the range of work she is capable of performing.Id.
Ultimately, what the ALJ decided was that the grids do not constitute a rule of decision in this case, but rather a "framework" of reference. The ALJ reasoned:
A finding of "not disabled" may be reached within the framework of the above-mentioned rule.Id., at 16-17, italics added. Therefore, properly viewed, the ALJ decided at Step 5 that Ms. Nobles's nonexertional visual impairment was significant enough to preclude application of the grids, but that the grids nevertheless provided a relevant analytical framework sufficient to enable him to determine the extent to which plaintiff's work capability is further diminished in terms of any types of jobs contraindicated by her nonexertional limitations. Relying on this framework, the ALJ concluded that jobs exist in the national economy that plaintiff can perform notwithstanding her nonexertional impairment. Consequently, the ALJ concluded that Ms. Nobles was not under a disability as defined in the Social Security Act.
VII. POINTS OF ERROR AND COMMISSIONER'S RESPONSES
In her original brief filed March 5, 2001, and reply brief filed on April 13, 2001 plaintiff raises three points of alleged error in the ALJ's decision. These points — restated in terms relevant to analytical judicial review — are as follows:
Failure to apply proper principles of law by not obtaining a fully informed waiver of counsel before proceeding to formal, evidentiary hearing;
Failure to apply proper principles of law when determining non-disability by reference to the grids; and
Lack of substantial evidence supporting ALJ's determination that plaintiff has residual functional capacity for light work.
A verbatim statement of plaintiff's points of error is:
a. "Was Ms. Nobles deprived of her statutory right to counsel?"
b. "Did Ms. Nobles (sic) significant nonexertional visual impairment permit a finding of `not disabled' due to the availability of `other work' without expert vocational testimony, or other similar evidence?"
"Was Defendant's decision supported by substantial evidence? Was it based on errors of law?"Pl.'s Br. at 4.
The Commissioner's brief argues that the record shows that plaintiff executed a fully-informed waiver of counsel, and, alternatively, that plaintiff has not shown that she was prejudiced by appearing without counsel. The Commissioner further argues that substantial evidence supports the ALJ's determination that plaintiff's visual limitations do not affect her capacity for light work. Finally, the Commissioner argues that substantial evidence supports the ALJ's determination of residual functional capacity and the Commissioner's ultimate decision to deny disability benefits.
VIII. DISCUSSION AND ANALYSIS
Plaintiff's first and third points of error both potentially require full examination of the evidentiary record. However, the second point of error, i.e., unlawful use of the grids, raises a pure question of law. Accordingly, it is addressed first.
Of paramount importance is to remember that the ALJ made his decison at Step 5 of the sequential evaluation process described earlier. See Sections IV. and V., above. This necessarily means that the ALJ had determined, inter alia, that (1) the plaintiff was not working; (2) her impairments are severe and of sufficient magnitude to significantly limit her physical and mental ability to do basic work activities; and (c) her impairments prevent her from engaging in any regular previous employment. These findings, in turn, established a prima facie case of disability. Chaparro v. Bowen, 815 F.2d at 1010. Thus, the burden shifted to the Commissioner to establish that other work exists in the national economy that Ms. Nobles can perform. Id.
In the present case, the ALJ determined that plaintiff had no previous regular employment. Tr. 12.
The court must also remember that Ms. Nobles suffers from a nonexertional visual impairment of such significance that the Commissioner could not satisfy his burden of proof by applying the grids. In such circumstance, the ALJ could have met that burden by eliciting expert vocational testimony or other similar evidence to establish that jobs exist in the national economy that Ms. Nobles can perform. However, the ALJ elected instead to satisfy the Commissioner's burden solely by looking to the grids as a framework of reference. Effectively, the ALJ looked to the grids to accomplish indirectly what he could not do by directly applying the grids.
It would seem, therefore, that the determinative issue is whether the ALJ, and ultimately the Commissioner, could properly determine that Ms. Nobles's nonexertional visual impairment does not significantly erode her occupational base by referring exclusively to the grids and without taking additional vocation evidence. This issue requires examination of the intent and scope of the Commissioner's regulation that purports to authorize use of the grids as " a framework for consideration of how much the individual's work capability is further diminished in terms of any types of jobs that would be contraindicated by the nonexertional limitations." 20 C.F.R. pt. 404, subpt. P, app.2, § 200.00(§e)(2) (2001).
Unfortunately, the Commissioner's regulation gives no explanation as to how the grids provide a framework for consideration of how much an individual's work capability is further diminished in terms of any types of jobs that would be contraindicated by nonexertional limitations. Moreover, one cannot divine such explanation through deductive reasoning. Logically, one cannot imagine how reviewing the grids — limited by definition to administrative findings of available alternative employment for persons suffering from exertional impairments — elucidates an inquiry concerning scope of disabling effects of nonexertional impairments.
The Commissioner has issued formal rulings regarding this constitutive ambiguity. The most recent ruling of general application is Social Security Ruling 85-15 (1985) ("SSR 85-15"). In this ruling, the Commissioner addresses the framework analysis, as applied to visual impairments, as follows:
Social Security Ruling 85-15 superseded Social Security Ruling 85-7, Program Policy Statement No. 116, which in turn had superseded Social Security Ruling 83-13, Program Policy Statement 104.
As a general rule, even if a person's visual impairment(s) were to eliminate all jobs that involve very good vision (such as working with small objects or reading small print), as long as he or she retains sufficient visual acuity to be able to handle and work with rather large objects (and has the visual fields to avoid ordinary hazards in a workplace), there would be a substantial number of jobs remaining across all exertional levels.
Social Security Ruling 85-15, 1985 WL 56857.
As eminently reasonable as this statement appears in a vacuum, it is a pure non sequitur in terms of how the grids provide a framework for assessing the extent to which an individual's work capability is further diminished in terms of any types of jobs contraindicated by nonexertional, visual limitations. The grids simply contain no administrative findings or other information regarding available alternative work for persons with sufficient visual acuity to handle and work with large objects and avoid ordinary workplace hazards. Even more fundamentally, the grids provide no information for identifying persons who fit in that category of workers. In prophetic recognition of this deficiency, an earlier section of the ruling (contrasting nonexertional and exertional impairments) concedes:
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 reduced by the effects of the nonexertional impairment(s). This may range from very little to very much, depending on the nature and extent of the impairment(s). In many cases, a decisionmaker will need to consult a vocational resource .
Social Security Ruling 85-15, 1985 WL 56857 (emphasis added).
Legal scholars noted the framework regulation's disconnect early on. Professor John J. Capowski, writing in Maryland Law Review in 1983, observed that the Commissioner's regulations "provide little guidance, however, on how to apply this framework in deciding cases." John J. Capowski, Accuracy and Consistency in Categorical Decision-Making: A Study of Social Security's Medical-Vocational Guidelines — Two Birds with One Stone or Pigeon-Holing Claimants?, 42 Md. L. Rev. 329, 342 (1983). Professor Capowski cited mental impairments as an example of a nonexertional limitation for which the grids most likely could not serve as a framework of reference. Id. at 351. He predicted, moreover, that
[i]f nonexertional impairments and the framework concept are taken seriously, given the number of situations in which the `grid' is to be used as a framework rather than conclusively, the exceptions to the rule may outnumber the situations in which the categorical rule itself applies.Id. at 360. The logical extension of the framework concept would mean that vocational experts would be unlikely to be called to testify at administrative hearings. And, since the grids provide little or no guidance on how the framework concept can be used in individual cases, ALJ's would be involved in vocational judgments they are completely unqualified to make. Id. at 363.
Professor Capowski's early concerns developed roots in later jurisprudence. Most recently, the Third Circuit held in a case involving visual impairment that the Commissioner may not determine that a claimant's "occupational base" is not significantly eroded solely by looking to the grids as a framework. Sykes v. Apfel, 228 F.3d at 274. In an opinion authored by Chief Judge Becker, the appellate court concluded that the framework concept — when defined broadly — does not comport with the spirit of Heckler v. Campbell, 461 U.S. at 468, which upholds use of the grids "(w)here a claimant's qualifications correspond to the job requirements identified by a rule" as part of individualized determination required in every case. Therefore, the Third Circuit now requires additional vocational evidence establishing the extent to which a claimant's residual functional capacity is diminished by a nonexertional impairment:
Social Security Administration defines occupational base as "the approximate number of occupations that an individual has the RFC to perform considering all exertional and nonexertional limitations and restrictions." Social Security Ruling 96-9p, 1996 WL 374185.
Upon reflection, we cast our lot with those courts of appeals that require the testimony of a vocational expert or other similar evidence, such as a learned treatise. In the absence of evidence in addition to the guidelines [grids] . . ., the Commissioner cannot establish that there are jobs in the national economy that someone with the claimant's combination of impairments can perform.Sykes v. Apfel, 228 F.3d at 273, italics added. The court's opinion cites numerous prior cases from other circuits that reached similar results.
See Fenton v. Apfel , 149 F.3d 907 (8th Cir. 1998); Abbott v. Sullivan , 905 F.2d 918 (6th Cir. 1990); Swindle v. Sullivan , 914 F.2d 222 (11th Cir. 1990); Ortiz v. Secretary of Health and Human Services , 890 F.2d 520 (1st Cir. 1989); Coffman v. Bowen , 829 F.2d 514 (4th Cir. 1987); Smith v. Bowen , 826 F.2d 1120 (D.C. Cir. 1987); Bapp v. Bowen , 802 F.2d 601 (2nd Cir. 1986); Warmoth v. Bowen , 798 F.2d 1109 (7th Cir. 1986); Francis v. Heckler , 749 F.2d 1562 (1985).
Subsequently, the Commissioner issued a formal Acquiesence Ruling instructing all persons at all levels who consider disability applications within the Third Circuit to not use the grids exclusively as a framework for decision making when a claimant has a nonexertional limitation. See Social Security Acquiescence Ruling 01-1(3), 2001 WL 65745. While the ruling is limited to cases within the Third Circuit, it forecasts a potential general revision to the framework concept:
We are considering revising our rules regarding our use of the grid rules as a framework for decisionmaking and may rescind this Ruling once we have made the revision.Id.
The Fifth Circuit has not yet imposed a broad rule invalidating the framework concept as an exclusive basis for decision making. However, on a case-by-case basis, the Fifth Circuit clearly leans toward the Sykes v. Apfel rationale. In Lawler v. Heckler, 761 F.2d 195 (5th Cir. 1985), a case involving a claimant's inability to sit or stand for prolonged periods, the Commissioner — applying the grids as a framework — determined that the claimant could perform numerous unskilled light and sedentary jobs available in the national economy. The Fifth Circuit remanded, holding that once the Commissioner accepted the claimant's assertions regarding her inability to sit or stand for prolonged periods, her fact situation no longer matched the assumptions of the grids.
The framework concept may indeed suffer from fatal flaws. However, there is no need in the present case to adopt Sykes v. Apfel, or to articulate any other rule of general application. There is a less drastic and more traditional resolution that stems from the fact that the ALJ did not explain how or why he considered the grids as a reliable framework for determining that there are available jobs in the national economy that Ms. Nobles can perform notwithstanding her significant nonexertional visual impairment.
When an ALJ rejects a claimant's assertion that a nonexertional impairment of pain is disabling, (s)he is required to articulate credible and plausible reasons for rejecting the claimant's subjective complaints. See Falco v. Shalala, 27 F.3d 160, 163 (5th Cir. 1994);Abshire v. Bowen, 848 F.2d 638, 642 (5th Cir. 1988). Failure to do so requires remand. Id. By analogy, an ALJ should shoulder the same responsibility when making a non-self-evident finding that the grids provide a reliable framework for determining whether an individual's work capability is significantly diminished in terms of any types of jobs available in the national economy by nonexertional limitations. If the ALJ fails to give reasons, a court conducting judicial review has nothing meaningful to review. Unexplained reference to and use of the grids as a framework is functionally the same as using regulatory "magic words" to bolster an assertion that may in truth be completely unsupported and nothing more than ipse dixit.
Judicial review of the Commissioner's decisions on benefit applications is, and should be, highly deferential to the Commissioner's expertise and experienced judgment. In return, however, the Commissioner is obliged to make clear findings and articulate underlying reasons in a manner that can be readily understood. In this instance, the Commissioner failed.
This case, then, should be remanded for further consideration by the Commissioner. If, upon remand, the Commissioner reaches the same decision without the aid of additional vocational evidence, and by exclusively relying on the grids as a "framework for consideration of how much [Ms. Nobles's] work capability is further diminished in terms of any types of jobs that would be contraindicated by the nonexertional limitations," the Commissioner must, at a minimum, articulate credible and plausible reasons that support that conclusion.
Given this recommended disposition, it is unnecessary to address plaintiff's remaining points of error.
IX. RECOMMENDATION
The Commissioner's decision should be reversed and the case remanded pursuant to 42 U.S.C. § 405(g), sentence four, for further proceedings consistent with applicable law.X. OBJECTIONS
Within ten (10) days after receipt of the magistrate judge's report, any party may serve and file written objection to the findings and recommendations of the magistrate judge. 28 U.S.C. § 636(b)(1)(C).
Failure to file written objections to the proposed findings and recommendation contained in this report within 10 days after service shall bar an aggrieved party from de novo review by the district court of the proposed findings and recommendations and, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted and adopted by the district court.
See Douglass v. United Services Auto Assn ., 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc).