The opinion of the court was delivered by: Will, District Judge.
Id. at 404.1564(b)(1) and 416.964(b)(1).
At most, one's numerical grade level gives rise to a
rebuttable presumption of basic literacy. Holliday testified
that, despite his 8th grade schooling in Mississippi, there is
"not much" that he can read and apparently nothing that he
does read. He also stated that he can write his own name, but
nothing else. Apparently, none of Holliday's
jobs required him to be able to read or write anything.
Holliday's rebuttal of the presumption of literacy established
by his educational level could have been strengthened by other
examples (besides Social Security notices) of items which
Holliday is unable to read, but the Secretary (through the
ALJ) had the obligation to develop the record further on the
issue of Holliday's literacy once Holliday had adduced
evidence sufficient "to contradict" the inference that his
"numerical grade level . . . completed in school . . .
represent[s] . . . [his] actual educational abilities." 20
C.F.R. §§ 404.1564(b) and 416.964(b).
It is difficult to determine on the basis of this record
whether Holliday is unable to read and write simple messages
or whether he is merely not inclined to read and write and has
never been required to use or demonstrate his abilities. Given
the Secretary's conclusion that Holliday is unable to do his
past work, however, the Secretary bore the burden of showing
that Holliday retains the capacity to engage in less demanding
"substantial gainful activity." Although the current
regulations (including their appendices) enable the Secretary
"to streamline the adjudication of social security disability
cases and bring about some greater uniformity in the results
of these adjudications," Cummins, 670 F.2d at 83, they do not
alter the procedure by which the burden of proof in these cases
may shift from the claimant to the Secretary.
The ALJ's finding that Holliday's past work was
"semi-skilled" rather than "unskilled" labor is similarly
unsupported by substantial evidence. The regulations define
"unskilled work" as
work which needs little or no judgment to do
simple duties that can be learned on the job in a
short period of time. The job may or may not
require considerable strength. For example, we
consider jobs unskilled if the primary work
duties are handling, feeding and offbearing (that
is, placing or removing materials from machines
which are automatic or operated by others), or
machine tending, and a person can usually learn
to do the job in 30 days, and little specific
vocational preparation and judgment are needed. A
person does not gain work skills by doing
20 C.F.R. §§ 404.1568(a) and 416.968(a). "Semi-skilled work" is
work which needs some skills but does not require
doing the more complex work duties. Semi-skilled
jobs may require alertness and close attention to
watching machine processes; or inspecting,
testing or otherwise looking for irregularities;
or tending or guarding equipment, property,
materials, or persons against loss, damage or
injury; or other types of activities which are
similarly less complex than skilled work, but
more complex than unskilled work. A job may be
classified as semi-skilled where coordination and
dexterity are necessary, as when hands or feet
must be moved quickly to do repetitive tasks.
20 C.F.R. §§ 404.1568(b) and 416.968(b).
Here, the ALJ determined, without any explanation, that
Holliday's "work as a tire recapper or truck driver would
appear to fall within the area of semi-skilled work . . ." (R.
10). The regulatory definitions of "unskilled work" and
"semi-skilled work," when read together, suggest that although
there is not a sharp and distinct line which separates the one
classification from the other, a determination of the
appropriate classification of particular work calls for some
inquiry into length of training, independence of judgment,
attention to or understanding of processes, and complexity of
duties performed. No such inquiry is reflected in the ALJ's
decision, even though Holliday's own testimony regarding his
duties as a truck tire recapper appears to be more consistent
with the definition of "unskilled" work than with that of
We note that 20 C.F.R. §§ 404.1566(e) and 416.966(e) give the
ALJ discretion to enlist the aid of a "vocational expert" to
resolve questions which relate to a claimant's work skills.
That subsection states:
Use of vocational experts and other specialists. If
the issue in determining whether you are disabled
is whether your work skills can be used in other
work and the specific occupations in which they can
be used, or there is a similarly complex issue, we
may use the services of a vocational expert or
other specialist. We will decide whether to use a
vocational expert or other specialist.
Given the importance of skill classification as one of the
variables which determine the answer dictated by Appendix 2,
the use of a vocational expert may be the only way to
determine the level of skill needed to perform a particular
kind of work where there is some doubt in the ALJ's mind (as
appears to have been the case here) about the proper
Finally, the ALJ's finding that Holliday has "the residual
functional capacity" to perform sedentary work is not
supported by substantial evidence based on the record as a
whole. According to 20 C.F.R. §§ 404.1567(a) and 416.967(a),
involves lifting no more than 10 pounds at a time
and occasionally lifting or carrying articles
like docket files, ledgers, and small tools.
Although a sedentary job is defined as one which
involves sitting, a certain amount of walking and
standing is often necessary in carrying out job
duties. Jobs are sedentary if walking and
standing are required occasionally and other
sedentary criteria are met.
The definition of "light work" indirectly sheds further light
on the nature of "sedentary work":
Light work. Light work involves lifting no more
than 20 pounds at a time with frequent lifting or
carrying of objects weighing up to 10 pounds. Even
though the weight lifted may be very little, a job
is in this category when it requires a good deal of
walking or standing, or when it involves sitting
most of the time with some pushing and pulling of
arm or leg controls. To be considered capable of
performing a full or wide range of light work, you
must have the ability to do substantially all of
these activities. If someone can do light work, we
determine that he or she can also do sedentary
work, unless there are additional limiting factors
such as loss of fine dexterity or inability to sit
for long periods of time.
20 C.F.R. §§ 404.1567(b) and 416.967(b). [Emphasis added.]
The ALJ relied upon Holliday's statement that he can lift
"maybe 20 or 25 pounds" and concluded that he could therefore
do light work but for his "limited ability to stand and walk"
(R. 10). Noting that "the attending physician mentioned no
limitation on the claimant's capacity for sitting nor any
necessity for him to elevate his legs on a constant basis,"
the ALJ found that Holliday "retains the capacity to tolerate
sedentary work, which contemplates occasional changes of
In view of "the record as a whole" we cannot agree that Dr.
Pimental's failure to indicate any restriction on Holliday's
ability to sit without having to elevate his legs constitutes
substantial evidence in support of a finding that Holliday was
capable of performing sedentary work. The record does not
reflect any treatment or examination of Holliday by Dr.
Pimental after October of 1980, some 14 months before
Holliday's hearing and the ALJ's decision.*fn9 In
the interim, Dr. Bacalla, the physician retained by HHS, noted
that Holliday "elevates his legs most of the time to relieve
the discomfort" (R. 84). Additionally, Holliday testified to
elevating his legs frequently (R. 24 and 33). In light of Dr.
Pimental's observation that Holliday's condition was
"deteriorating" and in the absence of any evidence that
Holliday's condition could be corrected or alleviated by
available surgery or treatment, we conclude that the ALJ
placed undue reliance on what Dr. Pimental failed to say
although Dr. Bacalla did refer to it.
Furthermore, the ALJ failed to address Holliday's complaints
of dizzy spells, and pain in his chest and in his right hand,
or to consider these complaints in connection with Holliday's
other impairments. All of these complaints are particularly
relevant to Holliday's "residual capacity" to do "sedentary
work," given the caveat in §§ 404.1567(b) and 416.967(b),
supra, that a person able to lift and carry objects
commensurate with the requirements of "light work" may not
actually be able to do "sedentary work" if incapable of fine
dexterity or of sitting for long periods of time.
Interestingly, paragraph (h) of the introduction to Appendix 2,
in cautioning that certain individuals "who do not meet all the
criteria of a particular rule" may nonetheless "not have the
ability to perform a full range of sedentary work," gives the
Example 1: An individual under age 45 with a high
school education can no longer do past work and
is restricted to unskilled sedentary jobs because
of a severe medically determinable cardiovascular
impairment (which does not meet or equal the
listings in Appendix 1). A permanent injury of
the right hand limits the individual to sedentary
jobs which do not require bilateral manual
dexterity. None of the rules in Appendix 2 are
applicable to this particular set of facts,
because this individual cannot perform the full
range of work defined as sedentary. Since the
inability to perform jobs requiring bilateral
manual dexterity significantly compromises the
only range of work for which the individual is
otherwise qualified (i.e., sedentary), a finding
of disabled would be appropriate.
On its face, the transcript of Holliday's hearing suggests
that he may be an embodiment of the above example. For that
reason — and because of the inadequate inquiry into the
frequency of Holliday's dizzy spells, the nature and frequency
of his chest pains, and the frequency with which he must
elevate his legs — we conclude that the ALJ's finding that
Holliday retains the capacity for sedentary work is not
supported by substantial evidence. On the contrary, one gets
the clear impression from reading the ALJ's findings and the
transcript that the ALJ selected those portions which were
consistent with a predetermined conclusion of non-disability
and ignored those which were not.
If upon rehearing, the ALJ concludes that Holliday is no
longer capable of sedentary work, there would of course be no
need to inquire into either Holliday's ability to read and
write or the level of skill required by his past work. If a
claimant lacks "the residual functional capacity" to perform
"sedentary work," then "that is the end of the case" and
reference to the matrix of Appendix 2 is unnecessary. See
Cummins, 670 F.2d at 82-83; Perez, 653 F.2d at 1002; see also
Wallschlaeger v. Schweiker, 705 F.2d 191, (7th Cir. 1983).
For the reasons stated above, we deny the Secretary's
motion, and we grant the plaintiff's motion insofar as it asks
us to reverse the ALJ's decision and to order a rehearing.
Accordingly, we reverse the ALJ's denial of Holliday's
applications for a period of disability and disability
insurance benefits and Supplemental Security Income benefits,
and we remand this case to the ALJ for a rehearing consistent
with this opinion. An appropriate order will enter.