In a letter dated February 10, 1992 DiVittorio related that during a PAT period from October 17, 1992 to February 7, 1992 plaintiff was an "excellent worker" despite his poor attendance record. She said that plaintiff had "exhibited gains in his overall performance" but still needed to improve his attendance and increase his concentration. She recommended that he begin sheltered employment in the bench assembly field on or about March 9, 1992.
The record does not indicate if or when plaintiff entered sheltered employment. Plaintiff testified that the OVR eventually dropped him from the rehabilitation program because his attendance was too sporadic. He stated that because of his frequent medical treatment, he was only able to work two or three days a week.
Dr. Owen Bernstein, a vocational expert, testified at plaintiff's administrative hearing. He stated that significant numbers of unskilled sedentary assembly jobs performed in a dust and moisture free environment exist in the area's economy. He listed assembler of computer parts, assembler of meters, lavatory attendant, and telephone order clerk as possible occupations for plaintiff, although he also stated that he was reluctant to recommend a telephone order job in view of plaintiff's limited education.
The ALJ concluded that although plaintiff's various physical impairments limit him to performing sedentary work, he is capable of substantial gainful employment because significant numbers of sedentary jobs performed in a dustfree environment exist in the national economy. The ALJ did not consider the effect of plaintiff's alleged mental impairment in reaching this conclusion.
Under the Secretary's regulations, if an unemployed claimant has impairments that preclude performance of his or her relevant past work, an ALJ may look to the rules set out in Appendix 2 to 20 C.F.R. Part 404, Subpart P (the "Rules") in evaluating the claimant's ability to engage in substantial gainful activity. 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 200.00(a). If the ALJ's findings of fact regarding a claimant's vocational factors and residual functional capacity coincide with all of the criteria of a particular Rule, that Rule directs a conclusion of whether or not the claimant is disabled. Id.
But because the Rules address only exertional limitations, if a claimant has an impairment or combination of impairments that results in both exertional and nonexertional limitations, the ALJ must consider "all the relevant facts" in making a determination as to disability. Cunningham v. Heckler, 246 U.S. App. D.C. 278, 764 F.2d 911, 914 (D.C. Cir. 1985); 20 C.F.R. Pt.404, Subpt. P, App. 2, § 200.00(e)(2). The Rules merely provide a framework for consideration of how much the claimant's work capability is further diminished by the nonexertional limitations. Id.
Although plaintiff met all the Rule 201.18 criteria, the ALJ did not automatically adhere to the Rule's directed outcome, and properly considered the effects of nonexertional limitations stemming from plaintiff's asthma upon his ability to work. But the ALJ erred by not taking into account limitations resulting from plaintiff's mental impairment.
Plaintiff's relevant IQ of 75, Cunningham, 764 F.2d at 913 n.1, is a severe impairment causing nonexertional limitations. Cockerham v. Sullivan, 895 F.2d 492, 496 (8th Cir. 1990). Substantial vocational evidence demonstrates that plaintiff's borderline intelligence restricts his capacity to perform some job activities, such as understanding and acting upon instructions. Because the ALJ should have considered whether nonexertional limitations related to plaintiff's mental impairment further impeded his ability to work, the Secretary's decision is not supported by substantial evidence. Accordingly, the court remands the case to the Secretary to consider whether the combined effects of plaintiff's mental and physical impairments preclude him from working.
The court remands the case to the Secretary to determine whether the combined effects of plaintiff's mental and physical impairments preclude him from working.
Dated: Brooklyn, New York
December 27, 1994
Eugene H. Nickerson, U.S.D.J.
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