[Federal Register Volume 66, Number 17 (Thursday, January 25, 2001)]
[Notices]
[Pages 7829-7831]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-2274]


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SOCIAL SECURITY ADMINISTRATION

[Social Security Acquiescence Ruling 01-1(3)]


Sykes v. Apfel; Using the Grid Rules as a Framework for 
Decisionmaking When an Individual's Occupational Base is Eroded by a 
Nonexertional Limitation--Titles II and XVI of the Social Security Act

AGENCY: Social Security Administration.

ACTION: Notice of Social Security Acquiescence Ruling.

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SUMMARY: In accordance with 20 CFR 402.35(b)(2), the Commissioner of 
Social Security gives notice of Social Security Acquiescence Ruling 01-
1(3).

EFFECTIVE DATE: January 25, 2001.

FOR FURTHER INFORMATION CONTACT: Gary Sargent, Litigation Staff, Social 
Security Administration, 6401 Security Boulevard, Baltimore, MD 21235-
6401, (410) 965-1695.

SUPPLEMENTARY INFORMATION: We are publishing this Social Security 
Acquiescence Ruling in accordance with 20 CFR 402.35(b)(2).
    A Social Security Acquiescence Ruling explains how we will apply a 
holding in a decision of a United States Court of Appeals that we 
determine conflicts with our interpretation of a provision of the 
Social Security Act (the Act) or regulations when the Government has 
decided not to seek further review of that decision or is unsuccessful 
on further review.
    We will apply the holding of the Court of Appeals' decision as 
explained in this Social Security Acquiescence Ruling to claims at all 
levels of administrative review within the Third Circuit. This Social 
Security Acquiescence Ruling will apply to all determinations or 
decisions made on or after January 25, 2001. If we made a determination 
or decision on your application for benefits between September 18, 
2000, the date of the Court of Appeals' decision, and January 25, 2001, 
the effective date of this Social Security Acquiescence Ruling, you may 
request application of the Social Security Acquiescence Ruling to the 
prior determination or decision. You must demonstrate, pursuant to 20 
CFR 404.985(b)(2) or 416.1485(b)(2), that application of the Ruling 
could change our prior determination or decision in your claim.
    Additionally, when we received this precedential Court of Appeals' 
decision and determined that a Social Security Acquiescence Ruling 
might be required, we began to identify those claims that were pending 
before us within the circuit that might be subject to readjudication if 
an Acquiescence Ruling were subsequently issued. Because we determined 
that an Acquiescence Ruling is required and are publishing this Social 
Security Acquiescence Ruling, we will send a notice to those 
individuals whose claims we have identified which may be affected by 
this Social Security Acquiescence Ruling. The notice will provide 
information about the Acquiescence Ruling and the right to request 
readjudication under the Ruling. It is not necessary for an individual 
to receive a notice in order to request application of this Social 
Security Acquiescence Ruling to the prior determination or decision on 
his or her claim as provided in 20 CFR 404.985(b)(2) or 416.1485(b)(2), 
discussed above.
    If this Social Security Acquiescence Ruling is later rescinded as 
obsolete, we will publish a notice in the Federal Register to that 
effect as provided for in 20 CFR 404.985(e) or 416.1485(e). If we 
decide to relitigate the issue covered by this Social Security 
Acquiescence Ruling as provided for by 20 CFR 404.985(c) or 
416.1485(c), we will publish a notice in the Federal Register stating 
that we will apply our interpretation of the Act or regulations 
involved and explaining why we have decided to relitigate the issue.
    (Catalog of Federal Domestic Assistance, Program Nos. 96.001 Social 
Security--Disability Insurance; 96.002 Social Security--Retirement 
Insurance; 96.004 Social Security--Survivors Insurance; 96.006--
Supplemental Security Income.)

    Dated: January 9, 2001.
Kenneth S. Apfel,
Commissioner of Social Security.

Acquiescence Ruling 01-1(3)

    Sykes v. Apfel, 228 F.3d 259 (3d Cir. 2000)--Using the Grid 
Rules\1\ as a Framework for Decisionmaking When an Individual's 
Occupational Base is Eroded by a Nonexertional Limitation--Titles II 
and XVI of the Social Security Act.\2\
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    \1\ At step 5 of the sequential evaluation process we use the 
medical-vocational rules that are set out in appendix 2 of subpart P 
of part 404. In general, the rules in appendix 2 take administrative 
notice of the existence of numerous, unskilled occupations at 
exertional levels defined in the regulations, such as ``sedentary,'' 
``light,'' and ``medium.'' Based upon a consideration of an 
individual's residual functional capacity, age, education, and work 
experience, the rules either direct a conclusion as to whether an 
individual is disabled at step 5 of the sequential evaluation 
process or provide a framework to guide our a decision at this step. 
See 20 CFR 404.1569a and 416.969a and our preamble to final rules 
published at 65 FR 17994 (April 6, 2000).
    \2\ Although Sykes was a title II case, the same principles 
apply to title XVI. Therefore, this Ruling applies to both title II 
and title XVI disability claims.
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    Issue: Whether we may apply the Medical-Vocational Guidelines (grid 
rules) as a framework to deny disability benefits at step 5 of the 
sequential evaluation process when a claimant has a nonexertional 
limitation(s) without either:
    (1) taking or producing vocational evidence, such as testimony from 
a vocational expert, reference to the Dictionary of Occupational Titles 
(DOT)\3\ or other similar evidence; or
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    \3\ Employment and Training Administration, U.S. Department of 
Labor, Dictionary of Occupational Titles (Fourth Edition, Revised 
1991) and its companion publication, Selected Characteristics of 
Occupations Defined in the Revised Dictionary of Occupational 
Titles, (1993).
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    (2) providing notice of our intention to take official notice of 
the fact that the particular nonexertional limitation(s) does not 
significantly erode the occupational job base.
    Statute/Regulation/Ruling Citation: Sections 205(b), 223(d)(2)(A), 
1614(a)(3)(B) and 1631(c)(1)(A) of the Social Security Act (42 U.S.C. 
405(b), 423(d)(2)(A), 1382c(a)(3)(B)) and 1383(c)(1)(A); 20 CFR 
404.1520(f)(1), 404.1566, 404.1569, 404.1569a, 416.920(f)(1), 416.966, 
416.969 and 416.969a; 20 CFR Part 404, Subpart P,

[[Page 7830]]

Appendix 2, section 200.00(e); Social Security Rulings 83-10, 83-12, 
83-14, 85-15 and 96-9p.
    Circuit: Third (Delaware, New Jersey, Pennsylvania, and the Virgin 
Islands).
    Sykes v. Apfel, 228 F.3d 259 (3d Cir. 2000).
    Applicability of Ruling: This Ruling applies to determinations or 
decisions at all levels of the administrative review process (i.e., 
initial, reconsideration, Administrative Law Judge (ALJ) hearing and 
Appeals Council).
    Description of Case: Clifton Sykes filed an application for 
disability insurance benefits after suffering several job-related 
injuries. After his claim was denied at both the initial and 
reconsideration levels of the administrative review process, he 
requested a hearing before an ALJ. The ALJ found that Mr. Sykes had 
several ``severe'' impairments and that, because of these impairments, 
he was unable to do his past relevant work. At least one of these 
impairments, blindness in the left eye, resulted in a nonexertional 
limitation. The other severe impairments included the residual effects 
of a torn rotator cuff, angina and obstructive pulmonary disease. 
Applying the grid rules in 20 CFR Part 404, Subpart P, Appendix 2 as a 
framework for decisionmaking without referring to a vocational expert 
or other evidence, the ALJ concluded that Mr. Sykes was not disabled 
because he could perform other work existing in the national economy. 
The ALJ's conclusion was based on his findings that Mr. Sykes had the 
exertional capability to perform ``light'' work and that the exclusion 
of jobs requiring binocular vision did not significantly compromise the 
``broad base of light work'' established under the grid rules.
    After the Appeals Council denied Mr. Sykes' request for review of 
the ALJ's decision, he sought judicial review. Mr. Sykes argued, among 
other things, that the ALJ erred in relying exclusively on the grid 
rules to determine whether there were jobs in the national economy that 
he could perform when his impairments resulted in both exertional and 
nonexertional limitations. The district court affirmed the ALJ's 
decision finding that it was supported by substantial evidence. On 
appeal to the United States Court of Appeals for the Third Circuit, the 
court reversed the judgment of the district court and remanded the case 
to us for further proceedings consistent with its decision.
    Holding: After considering the Supreme Court's decision in Heckler 
v. Campbell, 461 U.S. 458 (1983), the court concluded that our 
``interpretation of 20 CFR Part 404, Subpart P, Appendix 2 section 
200.00(e)(2) does not comport with the Social Security Act * * * .'' In 
view of the ALJ's finding that the claimant had a severe nonexertional 
impairment, the court stated that we cannot establish the existence of 
other ``jobs in the national economy that Sykes can perform by relying 
on the grids alone, even if [we use] the grids only as a framework 
instead of to direct a finding of no disability.'' The court further 
stated that, ``in 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 
[alone].''
    The Third Circuit also addressed ``the question [of] what 
additional evidence the Commissioner must present to meet the burden of 
establishing that there are jobs in the national economy that a 
claimant with exertional and nonexertional impairments can perform.'' 
The court held that the ``sort of evidence the Commissioner must 
present to meet his burden of proof * * * when a claimant has 
exertional and nonexertional impairments * * * [is] the testimony of a 
vocational expert or other similar evidence, such as a learned 
treatise.''
    As an alternative to producing additional vocational evidence, the 
court held that we could rely on official administrative notice to 
establish that a particular nonexertional limitation does not 
significantly erode a claimant's occupational job base. The court 
stated that, ``official [administrative] notice * * * allows an 
administrative agency to take notice of technical or scientific facts 
that are within the agency's area of expertise,'' in addition to 
commonly acknowledged facts. Under this alternative, we ``would have 
had to provide Sykes with notice of [our] intent to [take 
administrative] notice [of the] fact [that the occupational base is not 
significantly eroded by the nonexertional limitation] and, if Sykes 
raised a substantial objection, an opportunity to respond * * * .''
    The court stated that it was not deciding the issue of ``whether 
Social Security Rulings can serve the same function as the rulemaking 
upheld in Campbell.'' The court further stated that it need not resolve 
the issue of whether ``the Commissioner can properly refer to a ruling 
for guidance as to when nonexertional limitations may significantly 
compromise the range of work that an individual can perform.''

Statement As To How Sykes Differs From SSA's Interpretation

    At step 5 of the sequential evaluation process (or the last step in 
the sequential evaluation process in continuing disability review 
claims), we consider the vocational factors of age, education and work 
experience in conjunction with a claimant's residual functional 
capacity to determine whether the claimant can do other jobs that exist 
in significant numbers in the national economy. Section 200.00(e)(2) of 
20 CFR Part 404, Subpart P, Appendix 2 provides that, when an 
individual has an impairment(s) ``resulting in both strength 
[exertional] limitations and [nonstrength] nonexertional limitations,'' 
we use the grid rules first to determine whether a finding of disabled 
is possible based on strength limitations alone. If not, we use the 
same grid rules reflecting the individual's maximum residual strength 
capabilities, age, education, and work experience as a framework for 
consideration of how much the individual's nonexertional limitations 
further erode the occupational job base. As stated in 20 CFR 404.1569a 
and 416.969a, the grid rules ``provide a framework to guide our 
decision'' in this situation.
    SSR 83-14, Capability to do Other Work--The Medical Vocational 
Rules as a Framework for Evaluating a Combination of Exertional and 
Nonexertional Impairments, provides that we use the grid rules to 
determine how the totality of an individual's limitations or 
restrictions reduces the occupational base of administratively noticed 
unskilled jobs when a claimant cannot be found disabled based on 
exertional limitations alone. In those claims where a person comes very 
close to meeting the criteria of a grid rule directing a finding of not 
disabled because it is clear that the additional nonexertional 
limitation(s) has very little effect on the exertional occupational 
base, we may rely on the framework of the grid rules to support a 
finding that the person is not disabled without consulting a vocational 
expert or other vocational resource. On the other hand, an additional 
nonexertional limitation may substantially reduce a range of work to 
the extent that an individual is very close to meeting a grid rule 
which directs a conclusion of disabled. Particular nonexertional 
limitation(s) may significantly erode or may have very little effect on 
the occupational base of jobs an individual can perform.
    SSRs 96-9 and 83-14 include examples of nonexertional limitation(s)

[[Page 7831]]

and provide adjudicative guidance on their effects on an individual's 
occupational job base. Some of the nonexertional limitations described 
in the SSRs do significantly reduce an individual's occupational job 
base and would result in a finding of disability. Other nonexertional 
limitations described in the SSRs do not significantly reduce an 
individual's occupational job base and would not ordinarily result in a 
finding of disability if the person's exertional limitations (or 
``capabilities'') would result in a finding of not disabled under the 
grid rules. Regardless of whether the result is a finding of disability 
or no disability, we rely on our regulations and the SSRs to provide 
adjudicative guidance on the effects of particular nonexertional 
limitations on an individual's occupational job base.
    Under our interpretation of 20 CFR 404.1569a, 416.969a and section 
200.00(e) of Appendix 2 to Subpart P of Part 404, and of SSR 83-14, we 
are not required to consult a vocational expert or other vocational 
resource in all instances in which we decide whether an individual who 
has a nonexertional limitation(s) is or is not disabled. For instance, 
we are not always required to consult a vocational expert or other 
vocational resource to help us determine whether a nonexertional 
limitation significantly erodes a claimant's occupational base when 
adjudicative guidance on the effect of the limitation is provided in an 
SSR.
    The Third Circuit concluded that, under Campbell, we cannot rely on 
the framework of our grid rules to deny a claim when a claimant has a 
nonexertional impairment(s) ``without either taking additional 
vocational evidence * * * or providing notice to the claimant of [our] 
intention to take official notice of this fact [that the claimant's 
nonexertional impairment(s) do not significantly erode his or her 
occupational base] (and providing the claimant with an opportunity to 
counter the conclusion).'' The court held that we cannot establish the 
existence of other jobs in the national economy that a claimant with a 
nonexertional limitation ``can perform by relying on the grids alone, 
even if [we] use the grids as a framework instead of to direct a 
finding of no disability.''

Explanation of How SSA Will Apply the Sykes Decision Within the Circuit

    This Ruling applies only to claims in which the claimant resides in 
Delaware, New Jersey, Pennsylvania or the Virgin Islands at the time of 
the determination or decision at any level of the administrative review 
process; i.e., initial, reconsideration, ALJ hearing or Appeals Council 
review.
    In making a disability determination or decision at step 5 of the 
sequential evaluation process (or the last step in the sequential 
evaluation process in continuing disability review claims), we cannot 
use the grid rules exclusively as a framework for decisionmaking when 
an individual has a nonexertional limitation(s). Before denying 
disability benefits at step five when a claimant has a nonexertional 
limitation(s), we must:
    (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 job base, 
and allow the claimant the opportunity to respond before we deny the 
claim.
    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 being adjudicated 
affects a 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.
    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.
[FR Doc. 01-2274 Filed 1-24-01; 8:45 am]
BILLING CODE 4191-02-F