Labrie v. SSA CV-97-597-M 01/07/99 UNITED STATES DISTRICT COURT

DISTRICT OF NEW HAMPSHIRE

Claude F. Labrie, Claimant,

v. Civil No. 97-597-M

Kenneth S. Apfel, Commissioner Social Security Administration, Defendant.

O R D E R

Pursuant to

(g), claimant, Claude Labrie,

moves to reverse the Commissioner's decision denying his

application for Social Security Disability Insurance Benefits

under Title II of the Social Security Act,

(the

"Act"). He asserts that the Administrative Law Judge erroneously

failed to call upon the expertise of a vocational expert (who was

present at the administrative hearing) and, instead, improperly

relied exclusively upon the Medical-Vocational Guidelines, 20

C.F.R. Part 404, Subpt. P, Ap p . 2 (also known as the "Grid") in

concluding that he was not disabled within the meaning of the

Act. Defendant objects and moves for an order affirming the

decision of the Commissioner. Factual Background

I. Procedural History.

On May 24, 1996, claimant filed an application for

disability insurance benefits under Title II of the Act, alleging

that he had been unable to work since March 1, 1989 (claimant

last met the disability status reguirements on June 30, 1993 -

his "date last insured"). The Social Security Administration

denied his application initially and on reconsideration. On

February 7, 1997, claimant, his wife, his attorney, and a

vocational expert appeared before an Administrative Law Judge,

who considered claimant's application de novo.1 On March 26,

1997, the ALJ issued his order, concluding that "[a]lthough the

claimant was unable to perform the full range of light work on

the date his insured status expired, he was capable of making an

adjustment to work which exists in significant numbers in the

national economy." Administrative transcript, at 19.

Accordingly, the ALJ concluded that claimant was not disabled, as

that term is defined in the Act, at any time through the

expiration of his insured status.

1 Although present at the hearing, neither claimant's wife nor Mr. Howard Steinberg, a vocational expert, testified. As to claimant's wife, however, the parties stipulated that the testimony which she was prepared to offer would have corroborated that given by claimant.

2 Claimant then sought review of the ALJ's decision by the

Appeals Council. On September 2 6, 1997, however, the Appeals

Council denied his request, thereby rendering the ALJ's decision

a final decision of the Commissioner, subject to judicial review.

On November 25, 1997, claimant filed a timely action in this

court, asserting that the ALJ's decision was not supported by

substantial evidence and seeking a judicial determination that he

is disabled within the meaning of the Act. Claimant then filed a

"Motion for Order Reversing Decision of the Commissioner"

(document no. 5). The Commissioner objected and filed a "Motion

for Order Affirming the Decision of the Commissioner" (document

no. 6). Those motions are pending.

II. Stipulated Facts.

Pursuant to this court's Local Rule 9.1(d), the parties have

submitted a statement of stipulated facts which, because it is

part of the court's record (document no. 7), need not be

recounted in this opinion.

3 Standard of Review

I .___ Properly Supported Findings by the ALJ are _____ Entitled to Deference.

Pursuant to

(g), the court is empowered "to

enter, upon the pleadings and transcript of the record, a

judgment affirming, modifying, or reversing the decision of the

Secretary [now, the "Commissioner"], with or without remanding

the cause for a rehearing." Factual findings of the Commissioner

are conclusive if supported by substantial evidence. See

(g), 1383(c)(3); Irlanda Ortiz v. Secretary of

Health and Human Services,

(1st Cir. 1991).2

Moreover, provided the ALJ's findings are supported by

substantial evidence, the court must sustain those findings even

when there may be substantial evidence supporting the claimant's

position. See Gwathnev v. Chater,

, 1045 (8th Cir.

1997) (The court "must consider both evidence that supports and

evidence that detracts from the [Commissioner's] decision, but

[the court] may not reverse merely because substantial evidence

exists for the opposite decision."). See also Andrews v.

2 Substantial evidence is "such relevant evidence as a reasonable mind might accept as adeguate to support a conclusion." Consolidated Edison Co. v. NLRB,

(1938). It is something less than the weight of the evidence, and the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence. Consolo v. Federal Maritime Comm'n.,

(1966).

4 Shalala,

(9th Cir. 1995) (The court "must

uphold the ALJ's decision where the evidence is susceptible to

more than one rational interpretation.").

In making factual findings, the Commissioner must weigh and

resolve conflicts in the evidence. See Burgos Lopez v. Secretary

of Health & Human Services,

(1st Cir. 1984)

(citing Sitar v. Schweiker,

(1st Cir. 1982)). It

is "the responsibility of the [Commissioner] to determine issues

of credibility and to draw inferences from the record evidence.

Indeed, the resolution of conflicts in the evidence is for the

[Commissioner] not the courts." Irlanda Ortiz,

.

Accordingly, the court will give deference to the ALJ's

credibility determinations, particularly where those

determinations are supported by specific findings. See

Frustaglia v. Secretary of Health & Human Services,

(1st Cir. 1987) (citing Da Rosa v. Secretary of Health and

Human Services,

(1st Cir. 1986)).

II. The Parties' Respective Burdens.

An individual seeking Social Security disability benefits is

disabled under the Act if he or she is unable "to engage in any

substantial gainful activity by reason of any medically

5 determinable physical or mental impairment which can be expected

to result in death or has lasted or can be expected to last for a

continuous period of not less than 12 months."

(1)(1)(A). The Act places a heavy initial burden on the

claimant to establish the existence of a disabling impairment.

See Bowen v. Yuckert,

(1987); Santiago v.

Secretary of Health and Human Services,

(1st Cir.

1991) . To satisfy that burden, the claimant must prove that his

impairment prevents him from performing his former type of work.

See Gray v. Heckler,

(1st Cir. 1985) (citing

Goodermote v. Secretary of Health and Human Services,

(1st Cir. 1982)). Nevertheless, the claimant is not reguired

to establish a doubt-free claim. The initial burden is satisfied

by the usual civil standard: a "preponderance of the evidence."

See Paone v. Schweiker,

(D. Mass. 1982).

In assessing a disability claim, the Commissioner considers

objective and subjective factors, including: (1) objective

medical facts; (2) the claimant's subjective claims of pain and

disability as supported by the testimony of the claimant or other

witnesses; and (3) the claimant's educational background, age,

and work experience. See, e.g., Avery v. Secretary of Health and

Human Services,

(1st Cir. 1986); Goodermote, 690

6 F.2d at 6. Provided the claimant has shown an inability to

perform his previous work, the burden shifts to the Commissioner

to show that there are other jobs in the national economy that he

can perform. See Vazquez v. Secretary of Health and Human

Services,

(1st Cir. 1982). If the Commissioner

shows the existence of other jobs which the claimant can perform,

then the overall burden remains with the claimant. See Hernandez

v. Weinberger,

(1st Cir. 1974); Benko v.

Schweiker,

(D.N.H. 1982).

When determining whether a claimant is disabled, the ALJ is

required to make the following five inquiries:

(1) whether the claimant is engaged in substantial gainful activity;

(2) whether the claimant has a severe impairment;

(3) whether the impairment meets or equals a listed impairment;

(4) whether the impairment prevents the claimant from performing past relevant work; and

(5) whether the impairment prevents the claimant from doing any other work.

. Ultimately, a claimant is disabled only if

his :

7 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 . . . .

(d) (2) (A) .

With those principles in mind, the court reviews claimant's

motion to reverse and the Commissioner's motion to affirm his

decision.

Discussion

I. Background - The ALJ's Findings.

In concluding that Mr. Labrie was not disabled within the

meaning of the Act, the ALJ properly employed the mandatory five-

step seguential evaluation process described in

. At step 1 of the analysis, he concluded that

claimant had not engaged in substantial gainful activity since

March 1, 1989. At step 2, he concluded that claimant suffers

from "chronic low back pain with radiculopathy secondary to

degenerative disc disease at L4-L5-S1, an impairment which causes

significant vocationally relevant limitations." Administrative

transcript at 14. The ALJ next determined that, although severe.

8 claimant's impairment did not meet the criteria of any listed

impairment described in the relevant administrative regulations.

The ALJ then concluded that claimant had a residual

functional capacity ("RFC") to perform the exertional

requirements of light work.3 Administrative transcript at 16.

The ALJ did, however, recognize that claimant's "capacity for

light work was diminished by additional nonexertional limitations

which made it impossible for him to perform stooping, kneeling,

crouching and crawling activities on more than an occasional

basis." Administrative transcript at 17. Thus, the ALJ

concluded that claimant was "unable to perform the full range of

light work."

. Those findings led the ALJ to conclude

that, "[s]ince the claimant can perform no more than light work

he cannot return to any of his past work."

.

3 "RFC is what an individual can still do despite his or her functional limitations. RFC is an administrative assessment of the extent to which an individual's medically determinable impairment(s), including any related symptoms, such as pain, may cause physical or mental limitations or restrictions that may affect his or her capacity to do work-related physical and mental activities. Ordinarily, RFC is the individual's maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis, and the RFC assessment must include a discussion of the individual's abilities on that basis." Social Security Ruling ("SSR") , 96-8p, Policy Interpretation Ruling Titles II and XVI: Assessing Residual Functional Capacity in Initial Claims,

at *2 (July 2, 1996) (citation omitted).

9 At that juncture, because claimant had demonstrated an

inability to perform his prior work, the burden shifted to the

Commissioner to show that there were other jobs in the national

economy which, despite both his exertional and nonexertional

limitations, claimant could perform. See Vazquez v. Secretary of

Health and Human Services,

. As the ALJ correctly

noted, however, he could not rely directly upon the Grid in

making that determination; in this circuit, the Grid is an

appropriate shortcut at the fifth step only if a nonexertional

impairment does not significantly affect the claimant's range of

work ability. See Ortiz v. Secretary of Health and Human Srvcs.,

(1st Cir. 1989). Accordingly, the ALJ

correctly observed that, "[s]trict application of [the Grid] is

not possible, ... as the claimant had nonexertional limitations

which narrowed the range of work he was capable of performing on

the date his insured status expired." Administrative transcript

at 17 .

The ALJ then concluded that, notwithstanding claimant's

nonexertional limitations, "there are jobs, existing in

significant numbers in the national economy, which the claimant

was able to perform on the date his insured status expired."

In support of that conclusion, the ALJ stated that a "finding of

10 'not disabled' may be reached within the framework of the above-

mentioned rules."

In reaching the conclusion that a

significant number of jobs existed in the national economy that

claimant could perform, despite his nonexertional limitations,

the ALJ did not rely upon the testimony of a vocational expert

(as noted above, one was present at the hearing but did not

testify). Instead, the ALJ appears to have relied exclusively

upon the Grid and the findings of the "State Agency consultants

[who] found the claimant retained the functional capacity to

perform a range of light work." Administrative transcript at 18.

Even crediting the findings of those consultants, however, the

guestion of whether there were jobs available in the national

economy which, despite his nonexertional limitations, claimant

could perform, remained unanswered.4

II. Absent Testimony from a Vocation Expert, Are the ALJ's Findings Supported by Substantial Evidence?

4 As the Commissioner correctly notes, opinions from non­ examining DOS physicians can constitute "substantial evidence," particularly when they are supported by other evidence in the record. However, such opinions are useful only in determining the claimant's RFC. They provide little, if any, guidance on the guestion presented in this case: whether there were jobs in the national economy which, in light of his RFC and nonexertional limitations, claimant could perform. Perhaps more to the point, the DOS opinions upon which the ALJ relied in this case simply do not address that guestion. See Administrative transcript at 122.

11 Typically, in cases such as this, when the Grid is

inapplicable, the ALJ will turn to the expertise of a vocational

expert to assist him or her in determining whether the claimant

had the ability to perform jobs in the national economy. See

Ortiz,

("where a claimant has one or more

[nonexertional] limitations, the [Grid does] not accurately

reflect what jobs would or would not be available. In cases

where a nonexertional impairment significantly affects claimant's

ability to perform the full range of jobs he is otherwise

exertionally capable of performing, the [Commissioner] must carry

his burden of proving the availability of jobs in the national

economy by other means, typically through the use of a vocational

expert.") (citations and internal guotation marks omitted). The

reason for this rule is plain: "Where a claimant has

nonexertional impairments in addition to exertional limits, the

Grid may not accurately reflect the availability of jobs such a

claimant could perform." Heggarty v. Sullivan,

(1st Cir. 1991).

To be sure, the Court of Appeals for the First Circuit has

recognized that there are circumstances in which an ALJ may

properly conclude, without the benefit of a vocational expert's

testimony, that a claimant retains the RFC, despite his or her

12 nonexertional limitations, to perform work in the national

economy. See Ortiz,

; Heggarty,

. In such cases, the ALJ may use the Grid as a "framework for

consideration of how much the individual's work capability is

further diminished." Ortiz,

(quoting 20 C.F.R.

Part 404, Subpart P, App. 2, § 200.00(e)(2)). Here, the ALJ

purported to do just that.

Based on an exertional capacity for light work, and the claimant's age, educational background, and work experience. Section 404.1569 and Rule 202.20, 202.21 and 202.22, Table 2, Appendix 2, Subpart P, Regulations No. 4, would direct a conclusion of "not disabled." The same result would be reached without regard to the skill level of [claimant's] former work or to questions pertaining to transferability of work skills.

Although the claimant was unable to perform the full range of light work on the date his insured status expired, he was capable of making an adjustment to work which exists in significant numbers in the national economy. A finding of "not disabled" is therefore reached within the framework of the above-cited rule.

Administrative transcript at 19 (emphasis added). The difficulty

here is that the ALJ resolved the matter in somewhat conclusory

terms, without reference to those portions of the record which

might support a determination that the combination of claimant's

exertional and nonexertional limitations did not preclude him

from performing a range of light work. In short, the ALJ's

conclusion that claimant "was capable of making an adjustment to

13 work which exists in significant numbers in the national economy"

appears to be unsupported or speculative.

Under the standard adopted by the Court of Appeals for the

First Circuit, an ALJ may rely exclusively upon the Grid, even

when a claimant suffers from nonexertional limitations, provided,

however, that the claimant's nonexertional impairments do not

"significantly affect claimant's ability to perform the full

range of jobs at the appropriate strength level." Heggarty v.

Sullivan,

(1st Cir. 1991) (emphasis supplied).

See also Ortiz v. Secretary of Health & Human Srvcs.,

(1st Cir. 1989). A nonexertional impairment, even if

substantial, does not "significantly affect" a claimant's ability

to perform at the appropriate exertional level if it "has the

effect only of reducing the occupational base marginally."

. Of course, the more the claimant's nonexertional

impairment erodes the applicable occupational base, the less

reliable the Grid becomes as a tool in determining whether the

claimant is "disabled."

Recognizing that potential problem, other circuit courts of

appeals have taken a more conservative approach and imposed

greater restrictions on an ALJ's ability to rely exclusively upon

14 the Grid when a claimant suffers from nonexertional limitations.

For example, when a claimant suffers from nonexertional

limitations, the Court of Appeals for the Eighth Circuit has

required ALJ's to use the testimony of vocational experts unless

the nonexertional limitations do not affect the claimant's

ability to perform the full range of work at the appropriate

exertional level.

The ALJ used the Guidelines as a framework for his decision that [claimant] was not disabled, without resorting to vocational expert testimony. An ALJ may use the Guidelines even though there is a nonexertional impairment if the ALJ finds, and the record supports the finding, that the nonexertional impairment does not diminish the claimant's residual functional capacity to perform the full range of activities listed in the Guidelines. However, if the claimant's nonexertional impairments diminish his or her residual functional capacity to perform the full range of activities listed in the Guidelines, the [Commissioner] must produce expert vocational testimony or other similar evidence to establish that there are jobs available in the national economy for a person with the claimant's characteristics.

Sanders v. Sullivan,

(8th Cir. 1992) (emphasis

supplied). The Eighth Circuit has recognized that if a claimant

retains the ability to perform the full range of activities

within a specific exertional level, the Grid remains a reliable

indicator of whether there are jobs in the national economy which

the claimant can perform. If, however, the claimant cannot

perform the full range of activities in that exertional level.

15 the Grid becomes less reliable in predicting whether he or she

can perform "substantial gainful work which exists in the

national economy."

(d)(2)(A). Accordingly, at

least in the Eighth Circuit, if the nonexertional impairment

erodes the applicable occupational base (even "marginally"), the

ALJ must look beyond the Grid in making a disability

determination.

Other circuits have adopted similar standards. See, e.g.,

Wolfe v. Chater,

(11th Cir. 1996) ("The ALJ

should not rely exclusively on the grids when the claimant has a

nonexertional impairment that significantly limits his basic work

skills or the claimant cannot perform a full range of employment

at the appropriate level of exertion. If nonexertional

impairments exist, the ALJ may use the grids as a framework to

evaluate vocational factors but must also introduce independent

evidence, preferably through a vocational expert's testimony, of

the existence of jobs in the national economy that the claimant

can perform.") (emphasis supplied); Thompson v. Sullivan,

(10th Cir. 1993) ("The grids should not be

applied conclusively in a particular case unless the claimant

could perform the full range of work reguired of that RFC

category on a daily basis and unless the claimant possesses the

16 physical capacities to perform most of the jobs in that range.")

(citation and quotation marks omitted). See also Abbot v.

Sullivan,

(6th Cir. 1990).

The value of the rule adopted in cases such as Sanders,

Wolfe, and Thompson is that it eliminates the guesswork inherent

in a standard which asks an ALJ to determine, without expert

assistance, whether a claimant's nonexertional limitations

"substantially" affect his or her ability to perform the full

range of jobs in the appropriate exertional range. Thus, it

ensures that when nonexertional limitations preclude a claimant

from performing the full range of jobs listed in the Grid, the

Commissioner will produce evidence in support of his assertion

that, despite the reduction in the otherwise applicable

occupational base, there are still jobs (in sufficient numbers)

which the claimant can perform. Typically, such evidence would

be introduced through the testimony of a vocational expert.

Alternatively, however, it might come in the form of published

vocational resources. In either event, the ALJ then has

something concrete upon which to base a disability determination.

The more flexible standard adopted by the First Circuit

necessarily suggests that a claimant's nonexertional impairment

17 is "not significant" or "only marginally erodes" the applicable

occupational base if it is one that reasonable minds could easily

agree has no meaningful impact upon a claimant's ability to

perform work at the appropriate exertional level. Examples might

include a claimant who is otherwise capable of performing light

work, but whose nonexertional impairment limits only his ability

to perform more than occasional bending. Because light work

typically reguires no more than occasional bending, all could

agree that his nonexertional impairment would erode the

applicable occupational base no more than "marginally," or

insignificantly. Similarly, a claimant who was otherwise capable

of performing sedentary work, but whose nonexertional limitations

precluded her from climbing, kneeling, crouching, or bending,

would not be excluded from performing the vast majority of

sedentary jobs, which typically do not reguire the individual to

perform such tasks.

If, however, a claimant's nonexertional limitations have a

more substantial impact upon his or her ability to perform work

at the appropriate exertional level, reliance upon the Grid is

inappropriate. In those situations, exclusive reliance upon the

Grid is not consistent with the purpose of the Grid nor is it

consistent with the assumptions underlying the Grid's presumed

18 reliability. As the Court of Appeals for the First Circuit has

observed, when a claimant suffers from one or more nonexertional

limitations which more than marginally affect his or her ability

to perform work at the appropriate exertional level, "the

Guidelines do not accurately reflect what jobs would or would not

be available." Gagnon v. Secretary of Health & Human Srvcs.,

, 665 n.6 (1st Cir. 1981). See also Heggarty v.

Sullivan,

. Thus, when a claimant's nonexertional

limitations have more than a minimal impact upon the otherwise

applicable occupational base, exclusive reliance upon the Grid

simply invites a disability determination which is inherently

unreliable or, at a minimum, one which a reviewing court would

likely be hard pressed to find was based upon "substantial

evidence."

There is no bright line test that ALJ's or courts can employ

to determine when, despite the presence of nonexertional

limitations, exclusive reliance upon the Grid remains

appropriate. All can probably agree, however, that such

occasions are limited to circumstances in which a claimant's

nonexertional limitations have only a de minimus effect on the

otherwise applicable occupational base. As our court of appeals

has acknowledged, when an ALJ fails to solicit the testimony of a

19 vocational expert, there is no material difference between using

the Grid as a "framework" for making a disability determination

and relying "exclusively" upon the Grid in making that

determination. See Ortiz,

n. 4. Thus, the

situations in which it is appropriate to use the Grid

exclusively, notwithstanding nonexertional limitations, must be

narrowly circumscribed. When an ALJ concludes that exclusive

reliance upon the Grid is appropriate (and the testimony of a

vocational expert is unnecessary) , he or she must make factual

findings which support that determination.

[A]n ALJ typically should err on the side of taking vocational evidence when [a significant nonexertional] limitation is present in order to avoid needless agency rehearings. And should an ALJ determine that the Grid can be relied on in such a case, we urge that the evidentiary support for that decision be enumerated more clearly and in greater detail than was done here in order to avoid needless remands for subsidiary fact­ finding .

Ortiz,

. The pertinent Social Security Rulings

also support this view. See, e.g., SSR 83-14, Titles II and XVI:

Capability to Do Other Work - The Medical-Vocational Rules as a

Framework for Evaluating a Combination of Exertional and

Nonexertional Impairments,

at *3-4 (1983) .

20 Turning to the facts of this case, the court is compelled to

conclude that the ALJ failed to adequately state the factual

basis for his decision to rely exclusively upon the Grid in

making the disability determination. First, claimant's

nonexertional (postural) limitations are not insignificant.

Although his treating physicians appear to disagree as to the

extent of the disabling effect of those nonexertional

limitations, they have opined that, at best, claimant is capable

of: (a) lifting between 10 and 30 pounds occasionally and between

5 and 30 pounds frequently; (b) standing for no more than six

hours each day, with a break at least every hour and possibly as

frequently as every 10 minutes; (c) sitting for no more than four

hours each day, with a break at least every hour and possibly as

frequently as every 10 minutes; (d) climbing, balancing,

stooping, crouching, kneeling, and crawling only occasionally,

with possible additional limitations on his ability to push/pull

objects. See Medical Assessment of Ability to Do Work-Related

Activities prepared by Dr. Shea, Administrative transcript at

180-85; Medical Assessment of Ability to Do Work-Related

Activities prepared by Dr. Stein, Administrative transcript at

186-90. See also Report of Dr. Monlux, Administrative transcript

at 199-202 (opining that claimant's ability to perform work-

21 related activities was extremely limited and concluding that he

was totally disabled).

Even crediting claimant with the ability to perform work-

related tasks at the high end of the range suggested by his

treating sources, his nonexertional impairments would seem to

affect his ability to perform jobs in the light exertional

category more than marginally.

The major difference between sedentary and light work is that most light jobs - particularly those at the unskilled level of complexity - reguire a person to be standing or walking most of the workday. Another important difference is that the freguent lifting or carrying of objects weighing up to 10 pounds (which is reguired for the full range of light work) implies that the worker is able to do occasional bending of the stooping type; i.e., for no more than one-third of the workday to bend the body downward and forward by bending the spine at the waist. Unlike unskilled sedentary work, many unskilled light jobs . . . reguire gross use of the hands to grasp, hold, and turn objects. Any limitation on these functional abilities must be considered very carefully to determine its impact on the size of the remaining occupational base of a person who is otherwise found functionally capable of light work.

SSR 83-14,

at * 4.

Based upon the record evidence before it, the court cannot

conclude that the ALJ's exclusive reliance upon the Grid was

appropriate. Among other things, the ALJ did not state whether

22 he determined that claimant's nonexertional limitations

"impose[d] no significant restriction on the range of work [the]

claimant is exertionally able to perform," Ortiz,

, nor did he state whether he concluded that claimant's

nonexertional limitations only marginally eroded the otherwise

applicable occupational base. Absent such factual findings,

along with supporting references to the record, the ALJ's

exclusive reliance upon the Grid may well have been misplaced.

As to the effect that claimant's nonexertional limitations

had upon his ability to perform jobs in the otherwise applicable

occupational base, the ALJ concluded that claimant did have

nonexertional limitations, and those limitations "narrowed the

range of work he was capable or performing," administrative

transcript at 17, and that claimant "retained the functional

capacity to perform a range of light work." Id., at 18 (emphasis

supplied). To rely exclusively upon the Grid under these

circumstances, however, the ALJ had to conclude (with proper

support in the record) that the claimant's nonexertional

limitations either imposed "no significant restrictions" on his

ability to perform work in the appropriate exertional level or

"only marginally reduced" the otherwise applicable occupational

base. Those predicate findings are arguably implicit in the

23 ALJ's order — but if taken as implied, the record support is

still unclear. Thus, uncertainty counsels remand, so that the

ALJ might clarify whether those predicate facts were actually

found to be present in this case and, if so, to specifically make

those necessary findings and to identify the pertinent portions

of the record which support such findings. If, upon further

consideration, the ALJ concludes that the circumstances of this

case do not warrant exclusive reliance upon the Grid, he should

of course solicit relevant evidence before making a disability

determination.

When reasonable minds might legitimately differ as to the

effect of a claimant's nonexertional limitations (particularly

where a vocational expert is present and ready to testify at the

administrative hearing) it might prove more efficient to

routinely solicit additional evidence from a vocational expert,

thereby removing doubt as to whether the case presents the

"unusual instance" in which exclusive reliance upon the Grid is

permissible despite the presence of nonexertional limitations.

See Ortiz,

.

Based upon this administrative record, and the absence of

any testimony from a vocational expert, this court is left with

24 insufficient evidence by which to measure the validity of the

ALJ's conclusion that there were jobs in the national economy

which claimant could perform. Consequently, the court is

constrained to conclude that the ALJ's disability determination

is not supported by substantial evidence. See, e.g., Pratts v.

Chater,

(2d Cir. 1996) (holding that the ALJ

failed to adequately articulate the basis for her conclusion that

claimant's nonexertional limitations did not substantially

diminish his work capacity and failed to consider whether

testimony from a vocational expert was necessary) .

Conclusion

At step five of the sequential analysis, the Commissioner

bore the burden of proving that there were jobs in the national

economy which claimant was capable of performing. He failed to

carry that burden. In cases such as this, when the ALJ

specifically concludes that a claimant's nonexertional

limitations preclude him or her from performing the full range of

work within the appropriate exertional level, the ALJ should

ordinarily base his or her disability determination, at least in

part, upon extrinsic evidence, such as the testimony of a

vocational expert or other vocational resource. At a minimum,

the ALJ should make the predicate factual findings necessary to

25 establish the case as an "unusual" one in which exclusive

reliance upon the Grid is nevertheless appropriate.

Because substantial evidence does not exist in the record to

support the ALJ's exclusive reliance on the Grid in determining

that claimant was not, prior to his date last insured, disabled

within the meaning of the Act, that determination must be

vacated. For the foregoing reasons, claimant's motion to reverse

the decision of the Commissioner (document no. 5) is granted and

the motion of the Commissioner to uphold his decision (document

no. 6) is denied. Pursuant to sentence four of

(g), this matter is remanded to the ALJ for further

proceedings.

SO ORDERED

Steven J. McAuliffe United States District Judge

January 7, 1999

cc: Roy W. Tilsley, Jr., Esg. David L. Broderick, Esg., AUSA

26