814 F.

2d 1456

17 Soc.Sec.Rep.Ser. 129, Unempl.Ins.Rep. CCH 17,537

Harley T. TALBOT, Plaintiff-Appellant,
v.
Margaret M. HECKLER, Secretary of Health and Human
Services,
Defendant-Appellee.
No. 85-1977.

United States Court of Appeals,

Tenth Circuit.
March 16, 1987.

Paul F. McTighe, Jr., Tulsa, Okl. for plaintiff-appellant.

Thomas Stanton, Asst. Regional Atty., U.S. Dept. of Health and Human
Services, Dallas Tex. (Edwin L. Meese, U.S. Atty. Gen., Washington,
D.C., Donn F. Baker, U.S. Atty., E.D. Okl., Gayla Fuller, Regional Atty.,
and Gabriel L. Imperato, Deputy Regional Atty., U.S. Dept. of Health and
Human Services, Dallas, Tex., with him on the brief), for defendantappellee.
Before McKAY and ANDERSON, Circuit Judges, and JOHNSON,
District Judge* .
STEPHEN H. ANDERSON, Circuit Judge.

Harley Talbot applied twice for Social Security disability insurance benefits,
first on June 9, 1982, and again a year later on June 13, 1983. Both applications
were denied by the Social Security Administration ("SSA"), and Talbot
("claimant") appealed the second denial to an administrative law judge ("ALJ").
His appeal was denied by the ALJ, and the Appeals Council of the Secretary of
Health and Human Services affirmed the denial. The claimant then sought
review in federal district court, where the administrative actions were upheld.
The claimant now appeals from the district court's adverse ruling. We reverse,
on the basis that substantial evidence does not support the ALJ's decision that

the claimant could engage in a full range of light work.

BACKGROUND
2

The claimant is a fifty-six-year-old man who has not been gainfully employed
since October 10, 1981. He has a recent history of heart disease, lung disease,
and liver disease. He attended public schools through the eighth grade and
received the equivalent of a twelfth grade education via correspondence
courses. For over thirty years, he worked on a variety of jobs in highway,
bridge, dam, and pipeline surveying and construction, work requiring medium
to heavy exertion. Among other jobs, he held the position of "public works
inspector," "construction superviser," and "field engineer."

Over the past several years, Mr. Talbot has experienced an increasing number
of health problems, including blackouts and dizzy spells. He complains of chest
pain, back pain, and shortness of breath upon exertion. His treating physicians
have found objective evidence of atrial fibrillation (irregular contractions of the
atrium of the heart) and atherosclerotic heart disease (heart disease involving
degeneration of the arteries). During the claimant's initial application process
for Social Security insurance benefits in mid 1982, treating physician Dr. Beryl
R. McCann reported that the claimant was suffering from atrial fibrillation and
congestive heart failure subsequent to pneumonia, for which he was
hospitalized in late 1980. Dr. Alice D. Cox, who examined the claimant in mid1982 at the request of the SSA, did not find congestive heart failure but did
confirm atrial fibrillation probably secondary to atherosclerotic heart disease.
After ordering tests of pulmonary function, she also concluded that the claimant
suffered from chronic obstructive pulmonary disease. A few months later,
during the reconsideration of the claimant's first application, Dr. McCann
reported that the claimant was basically physically incapacitated, citing his
heart problems, hypertension, intermittent chest pain, and blackout episodes.

By the time of the claimant's second application for benefits, a report was
available from treating physician, Dr. Billy Joe Matter, who had examined the
claimant in January of 1983 and diagnosed both lung and heart disease. In
addition, Dr. Matter reported signs of liver disease, concluding that the claimant
could not perform ordinary manual labor and could work only in a "limited
sedentary situation." Another treating physician, Dr. Wallace Byrd, reported in
June 1983 that the claimant was permanently disabled as a result of his heart
disease, hypertension, liver disease, unstable angina, and intercurrent infection.
Dr. Byrd continued to see the claimant over a period of ten months from June
1983 to April 1984. In a hospital discharge summary, filed in April 1984, three
months after the ALJ's decision, Dr. Byrd reported that the claimant had

suffered another blackout spell and had been admitted to the hospital for
unstable angina.
5

In addition to the four physicians who examined the claimant, two SSA
consulting physicians reviewed the claimant's medical records during the initial
application process. On August 3, 1982, Dr. Thurma Jo Fiegel reviewed the
records, concluding that the history of congestive heart failure was
questionable, the chest pain was not of cardiac origin, and the results of the
pulmonary function tests did not meet the levels required by Appendix 1 of the
Social Security regulations for disabling chronic pulmonary disease.

Another consulting physician, Dr. Patrick Barnes, reviewed the medical records
on November 10, 1982--while claimant's request for reconsideration of the
initial denial was under review--and agreed with Dr. Fiegel's report with respect
to congestive heart failure, chest pain, and lung disease. However, he found the
claimant to be moderately impaired and to have a number of job restrictions,
including restrictions against working at unprotected heights and driving
automotive equipment.

During the claimant's second application process, the SSA consulted another
physician, Dr. John R. Adair. Like Dr. Cox before him, Dr. Adair actually
examined the claimant. In a report dated July 23, 1983, Dr. Adair confirmed the
atrial fibrillation but found the claimant to be "quite suggestible and vague." R.
Vol. II at 163. At the request of Dr. Adair, a medical technician conducted a
new set of pulmonary function tests. The technician, while noting the claimant's
complaint that his chest pain was limiting his efforts, concluded that the
claimant's performance represented less than maximum effort. Dr. Adair
concluded that he could not detect adequate organic pathology to verify the
extent of the claimant's subjective physical complaints, citing the "uncertainty
of the data base." R. Vol. II at 165. Finally, another review of the medical
records by Dr. Fiegel, in September 1983, produced a cursory and unexplained
conclusion that the claimant was slightly impaired.

Basically, what we have is two sets of somewhat conflicting medical reports.

The treating physicians and Dr. Cox, the first SSA consulting physician,
conclude that the claimant has atrial fibrillation and heart disease, accompanied
by a number of credited physical symptoms, including dizziness, blackouts,
chest pain, shortness of breath and substernal pressure upon exertion. Some of
these same physicians also note lung disease, hypertension, and evidence of
liver disease. Dr. Byrd characterizes the chest pain and substernal pressure as
unstable angina. On the other hand, the remaining three consulting physicians,
while noting the evidence of heart and lung problems, do not comment on the

liver disease and do not interpret the objective medical evidence as sufficiently
supporting the claimant's extensive physical symptoms.
9

The claimant appeared before the ALJ without the benefit of counsel. After
hearing his testimony and allowing him an opportunity to comment on any
perceived errors in the documentary evidence, the ALJ concluded that the
claimant was not disabled as that term is defined by the Social Security Act.
The ALJ first found that the claimant had not been substantially gainfully
employed since October 10, 1981, and that he had an impairment. However, he
found that the impairment did not meet or equal one of the impairments in
Appendix 1 of the Social Security Act regulations, by which the claimant
would have automatically qualified as disabled. He therefore went on to explore
the claimant's ability to either return to his past work or to engage in other
work, as required by the regulations. The ALJ found that the claimant could not
return to his past work requiring medium to heavy exertion because his residual
functional capacity ("RFC") would not allow it. However, he also found that
the claimant's testimony as to the extent of his impairments was "not wholly
credible and ... somewhat probably exaggerated." R. Vol. II at 17. He found
that the claimant retained the RFC for a wide range of light work, restricted
only "by inability to work in environments with excessive dust, fumes, or
gases." R.Vol. II at 18. Such a finding recognized no substantial exertional
limitations on the claimant's ability to perform the full range of light work but
did explicitly recognize environmental restrictions that are considered
nonexertional limitations on the ability to perform that work. The ALJ,
however, went on to conclude that the "claimant's capacity for the wide range
of light [work] has not been significantly compromised by his additional
nonexertional limitations." R. Vol. II at 19. He concluded that Rule 202.14 1 of
the Medical-Vocational Guidelines promulgated by the SSA provided the
framework for his determination that given the claimant's residual strength,
age, work experience, and education, he was not disabled.

I.
10

Under the Social Security disability insurance provisions, a claimant is disabled

"if he is unable to engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which can be expected
to result in death or which has lasted or can be expected to last for a continuous
period of not less than twelve months." 42 U.S.C. Sec. 1382c(a)(3)(A) (1982). 2

11

The Social Security regulations implementing the statutory definition of

disability invoke a five-step process for evaluation of a disability claim. If a
determination can be made at any of the steps that an individual is or is not

disabled, evaluation under a subsequent step is unnecessary. In this case we are

concerned with the fifth step. The question is whether the claimant's
impairments, which preclude the performance of past relevant work, also
preclude other kinds of substantial gainful work that exist in the national
economy.
12

At step five, the Secretary of Health and Human Services ("Secretary") bears
the burden of presenting evidence that the claimant has the residual functional
capacity to do other work that exists in the national economy. Turner v.
Heckler, 754 F.2d 326 (10th Cir.1985); Channel v. Heckler, 747 F.2d 577 (10th
Cir.1984). The Secretary must consider the claimant's age, education, and work
experience, along with residual functional capacity, in determining whether a
claimant can do other work. 20 C.F.R. Sec. 404.1520 (1986). See Tillery v.
Schweiker, 713 F.2d 601, 602 (10th Cir.1983). To aid the Secretary with his
step-five burden, the SSA has developed Medical-Vocational Guidelines, 20
C.F.R., pt. 404, subpt. P, app. 2 (1986). Sometimes called the "grid" or "grids,"
the guidelines relate a claimant's age, educational background, and work
experience to ability to engage in work in the national economy at various
levels of exertion (sedentary, light, medium, heavy and very heavy). If the
Secretary can determine that an individual claimant precisely fits on the grids,
the Secretary can use the grids to decide whether the claimant is able to do
other work and is therefore not disabled.

13

The validity of the Medical-Vocational Guidelines was recently upheld in

Heckler v. Campbell, 461 U.S. 458, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983). The
Supreme Court sustained use of the grids in appropriate situations as a
legitimate method of making disability determinations more uniform. It noted
that use of the grids avoided the necessity of calling a vocational expert to
testify in each case in which step five of the evaluation process was reached.
Instead, the vocational expert could be reserved for special situations where a
claimant did not fit the grids and additional evidence was necessary.

14

Use of the Medical-Vocational Guidelines is predicated on an impairment that

limits the strength or exertional capacity of the claimant. Therefore, if a
claimant's impairment is of a different nature, the grids may not be fully
applicable. For instance, the regulations note that certain mental, sensory, or
skin impairments, environmental restrictions, or postural and manipulative
restrictions may be independent from exertional limits. 20 C.F.R., pt. 404,
subpt. P, app. 2, Sec. 200.00(e) (1986). Where such "nonexertional" limitations
combine with exertional limitations which do not in and of themselves establish
a disability, then the grids are to provide no more than a framework for
determining disability. The hearing officer is not to automatically or

mechanically apply the grids but instead must consider all the relevant facts in
determining whether the nonexertional limitations diminish the claimant's
ability to perform other work. Id. at Sec. 200.00(e)(2). Similarly, if a claimant's
residual functional capacity does not meet the definition of one of the exertional
ranges (sedentary through heavy), then the ALJ is to "consider the extent of
any erosion of the occupational base and assess its significance.... Where the
extent of the erosion of the occupational base is not clear, the adjudicator will
need to consult a vocational resource." Social Security Ruling 83-12. In other
words, there are situations where the grids alone cannot yield the answer as to
one's ability to engage in other work in the national economy.
II.
15

The primary issue raised on appeal is whether the ALJ had substantial evidence
to conclude that the claimant fit the grids and therefore was not disabled. The
claimant argues that there was not substantial evidence to support the ALJ's
finding that the claimant's nonexertional limitations were insignificant enough
to allow application of the grids. Our review of the record reveals an even more
fundamental issue, i.e., whether there was substantial evidence to support the
ALJ's finding that the claimant had the exertional capacity to perform a full
range of light work. The first issue is essentially subsumed by the second, since
if the claimant lacked exertional capacity to perform light work, there is no
need to consider whether nonexertional impairments also imposed limitations
on that same capacity. We therefore turn to a review of the claimant's exertional
limitations first.

16

A. Evidence of RFC for a Full Range of Light Work.

17

Implicit in the challenge to the substantiality of the evidence is the fact that
federal court review of the Secretary's factual findings with respect to disability
is limited to a review of whether substantial evidence supports the Secretary's
findings. See 42 U.S.C. Sec. 405(g). The term substantial evidence has been
interpreted by the United States Supreme Court to require "more than a mere
scintilla. It means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91
S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v.
NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 216, 83 L.Ed. 126 (1938)). However,
the search for adequate evidence does not allow us to weigh the evidence and
substitute our discretion for that of the agency. Cagle v. Califano, 638 F.2d 219
(10th Cir.1981). Nonetheless, we must review the record as a whole, and "the
substantiality of the evidence must take into account whatever in the record
fairly detracts from its weight." Universal Camera Corp. v. NLRB, 340 U.S.

474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951).

18

The ALJ appears to view the claimant's heart, lung, and liver impairments as
insignificant limitations on his ability to perform light work because, among
other things, he found that the claimant's testimony was "not wholly credible
and ... somewhat probably exaggerated." R. Vol. II at 17. We acknowledge that
it is not our job to make an independent judgment as to the credibility of the
claimant's testimony regarding his subjective physical symptoms. "[T]he
determination of credibility is left to the observations made by the
Administrative Law Judge as the trier of fact." Broadbent v. Harris, 698 F.2d
407, 413 (10th Cir.1983). We note, however, that the ALJ gave no particular
reasons for discounting the claimant's credibility except to observe that his
blackouts had occurred when no witnesses were present. Therefore, we feel free
to view the ALJ's conclusion with "a skeptical eye." Id. at 414. Additionally,
we do not question the ALJ's inference that the claimant himself showed that he
thought he was able to work by applying for rehabilitation training--training
which was denied because of his impairments, using different criteria for
disability than the SSA criteria. The ALJ uses the inference as to the claimant's
own belief, however, as support for the finding that the claimant's respiratory
impairments imposed only an insignificant environmental restriction on his
ability to work. While the ALJ has the discretion to make the initial inference,
we note that, logically, the inference does not dictate the conclusion that the
claimant thought he could work at a full range of light activity rather than a
limited range of light or sedentary activity.

19

The ALJ attempted to buttress his finding of insignificant environmental

restrictions by concluding that the claimant's combined impairments had not
prevented him from doing light and sedentary work "on a regular and continued
basis after October 10, 1981." R. Vol. II at 17. Light work is defined in the
Social Security regulations as work that:

20
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.
21

20 C.F.R. Sec. 404.1567(b) (1986) (emphasis added). 3 Sedentary work is

defined as work that:

involves lifting no more than 10 pounds at a time and occasionally lifting or carrying
22

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.
23

20 C.F.R. Sec. 404.1567(a) (1986).

24

The ALJ's conclusion that the claimant had been performing light and sedentary
work on a regular and continuing basis after October 10, 1981, is highly
questionable. Uncontradicted information in the record as to the claimant's
activities suggests the contrary, and nowhere does the ALJ suggest that this
information was discounted by him as unreliable. The record reveals that the
claimant tried to do a little painting work and installation of a shower on a
contractual basis, as well as to assume a traveling sales job. However, the
record also indicates that he was unable to finish or keep these jobs because of
his blackouts and strength limitations and that he was never paid for any of
these attempts.4 Also, the record reveals that the claimant's daily routine was
extremely limited. He occasionally drove his wife three miles to the grocery
store on back roads, and he tried to walk around his yard every day, but he
seldom engaged in any other activity in or outside his home. He could no
longer hunt or fish, and even sweeping the floor of his home tired him out, so
that he was not able to help his wife with domestic chores. To call such
nongainful activity regular and continuous light and sedentary work would
seem to defy the record.

25

Other recent decisions by this court support the view that such limited activities
in themselves do not establish that one can engage in light or sedentary work
activity. In Broadbent v. Harris, 698 F.2d 407 (10th Cir.1983), a claimant had
admitted working in his yard, performing a few household tasks, working on
cars, and taking occasional car trips. The activities were not conducted on a
regular basis, nor did they involve prolonged activity. When considered in the
light of the medical testimony, they were judged to be insignificant. While such
activities may be considered, along with medical testimony, in determining
whether a person is entitled to disability benefits, they do not in themselves
establish that a person is able to engage in substantial gainful activity. Markham
v. Califano, 601 F.2d 533 (10th Cir.1979). "Ability to drive an automobile,
participate in some community affairs, attend school, or to do some work on an
intermittent basis does not necessarily establish that a person is able to engage
in a 'substantial gainful activity,' but such activities may be considered by the
Secretary, along with medical testimony...." Id. at 534. Here, any reasonable
reading of the record could not result in use of the claimant's limited activities
to enhance any medical testimony that might support such a finding.

26

The question remains as to whether the medical testimony itself provides

substantial evidence that the claimant could engage in a full range of light
work. After concluding that the claimant's liver disease exacerbated the
cardiovascular and pulmonary symptoms, the ALJ found nonetheless that the
claimant "can sit, stand, or walk six hours a day and lift and carry 10 pounds
frequently and 20 pounds occasionally." R. Vol. II at 16. While the RFC
evaluations made by SSA consulting Doctors Fiegel and Barnes support such a
conclusion, they were not explicitly invoked by the ALJ. Furthermore, neither
of these doctors examined the claimant, and their views as to the degree of
impairment conflicted with one another. R. Vol. II at 112, 114. For these
reasons, their reports have less credence than the contrary views of the treating
physicians. See Broadbent v. Harris, 698 F.2d 407, 412 (10th Cir.1983)
(opinions of physicians "who have treated a patient over a period of time or
who are consulted for purposes of treatment are given greater weight than are
reports of physicians employed and paid by the government for the purpose of
defending against a disability claim" [quoting Allen v. Califano, 613 F.2d 139
(6th Cir.1980) ]. See also Whitney v. Schweiker, 695 F.2d 784, 789 (7th
Cir.1982) (treating physician's report should be favored over that of consulting
physician who merely reviews the records, unless treating physician is not
credible). The reports of reviewing physicians are also accorded less weight
than those of examining physicians. Wier ex rel. Wier v. Heckler, 734 F.2d
955, 963 (3d Cir.1984) (opinions of doctors who have never examined patient
have "less probative force, as a general matter, than they would have had if
they had treated or examined him").

27

The conclusion of Dr. Adair, who did examine the patient, also tends to support
the ALJ's finding, although again it was not specifically invoked by the ALJ.
Also, Dr. Adair only examined the claimant once, and the treating physicians'
abilities to observe the claimant over a longer period of time should be given
due weight when compared to speculation by a consulting physician regarding
the validity of claimant's symptoms. Cf. Allen v. Weinberger, 552 F.2d 781,
786 (7th Cir.1977) (medical opinion that claimant might be able to perform
light work was given "little weight," since inherently speculative and physician
examined patient only once).

28

In this case, the ALJ, rather than explicitly accepting the views of Doctors
Adair, Fiegel, and Barnes and rejecting the views of the treating physicians and
Dr. Cox, instead attempts to bolster his finding by invoking the December 12,
1983, RFC evaluation of Dr. Byrd, one of the treating physicians. The ALJ
states that Dr. Byrd's evaluation "was generally consistent with light work
which allowed alternate sitting, standing, and walking." R. Vol. II at 16. Such a
statement both mischaracterizes the evaluation and assumes that alternately

sitting, standing, and walking allows one to perform a full range of light work.
What Dr. Byrd's evaluation concluded was that (1) the claimant could neither
sit, walk, nor stand for longer than two hours at a time for a maximum of a sixhour work day. R. Vol. II at 199. Alternate sitting, standing, or walking by
implication precludes the kind of extensive sitting, standing and walking
contemplated by the definition of light activity. To elaborate, being able to sit,
stand, or walk alternately for only six hours collectively would seem to impose
significant restrictions on ability to perform light work, since light work by
definition is work that "requires a good deal of walking or standing, or ...
involves sitting most of the time with some pushing and pulling of arm or leg
controls." 20 C.F.R. Sec. 404.1567(b).5 It is by no means obvious that being
able to walk and stand collectively for only half an eight-hour day and to sit for
only two hours at a time would allow the claimant to perform substantially all
of the jobs in the range of light work. Cf. Rivers v. Heckler, 577 F.Supp. 766
(S.D.N.Y.1984) (where durational capacity is no more than two hours a day for
sitting, standing or walking, the claimant is not capable of light work).
Furthermore, Dr. Byrd limited the claimant's combined activities to six hours
out of an eight-hour day, i.e., to three-fourths of a full day's work. Being able to
work less than full time would also seem to preclude the ability to perform
substantially all of the jobs in the range of light work. As the court noted in
McCoy v. Schweiker, 683 F.2d 1138 (8th Cir.1982): "[t]he RFC that must be
found if the grid is to be used, in the case of ... light work, is ... the ability to
perform the requisite physical acts day in and day out, in the sometimes
competitive and stressful conditions in which real people work in the real
world." Id. at 1147 (footnote omitted).
29

The ALJ's invocation of Dr. Byrd's report in apparent support of the decision
that the claimant could perform most jobs in the light work category will not
substitute for the failure to explain what was in actuality the rejection of the
views of the treating physicians and Dr. Cox. If the medical opinions of
treating physicians are to be rejected, specific, legitimate reasons for so doing
must be set forth. Turner v. Heckler, 754 F.2d 326 (10th Cir.1985); Byron v.
Heckler, 742 F.2d 1232 (10th Cir.1984); Murray v. Heckler, 722 F.2d 499 (9th
Cir.1983). Here the ALJ avoided any explanation by attempting to ignore or
downplay the conflicting medical opinions.

30

In summary, rather than evaluating and rejecting the reports of the treating
physicians and Dr. Cox, which essentially confirm one another, are based on
objective medical evidence, and reflect observation over time, the ALJ instead
mischaracterizes Dr. Byrd's evaluation. Instead of challenging the claimant's
reports of his activities, the ALJ mischaracterizes their nature. What is left to
support the decision that the claimant can perform light work is the ALJ's

impression that the claimant exaggerated his physical symptoms. The decision
is hanging on this single thread of evidence. Such a thread seems to us to
constitute a mere scintilla. Our review of the record as a whole shows an
absence of substantial evidence that the claimant has the exertional capacity to
perform a wide range of light work.
31

B. Significance of Nonexertional Limitations.

32

Although our conclusion regarding the claimant's RFC negates the need to
address the claimant's nonexertional limitations, we choose to comment briefly
on this aspect of the ALJ's decision. First, we note that there is substantial
evidence in the record to suggest that the claimant needed to restrict the
environment in which he performed light work. Dr. Wallace Byrd, one of the
treating physicians, concluded that the claimant should not work where dust,
gases, or fumes were present. Additionally, both Doctors Cox and Matter
concluded that the claimant had a chronic obstructive lung condition. Finally,
the ALJ gave the claimant "the benefit of the doubt" and credited the claimant's
testimony of his fatigability. R. Vol. II at 16. Therefore, and in spite of the
somewhat inconsistent results of studies of the claimant's impaired pulmonary
function, the ALJ concluded that the claimant "probably has a mild to moderate
obstructive lung condition and should avoid work in environments with
excessive dust, fumes, or gases." R. Vol. II at 16.

33

In contrast, although there is substantial evidence that the claimant needed to

restrict the environment in which he performed light work, there is little
evidence to support the ALJ's finding that the environmental restriction placed
an insignificant limitation on the claimant's ability to perform substantially all
of the jobs in the light work classification. Admittedly, a nonexertional
impairment can have a negligible effect on the range of jobs available. 43
Fed.Reg. at 55,358 (1978). See Channel v. Heckler, 747 F.2d 577, 582 n. 6
(10th Cir.1984). Cf. Grant v. Schweiker, 699 F.2d 189, 192 (4th Cir.1983) (use
of grids may not be relied upon to the extent that nonexertional impairments
further limit the range of jobs available). The ALJ, however, must back such a
finding of negligible effect with the evidence to substantiate it. Cf. Odle v.
Heckler, 707 F.2d 439 (9th Cir.1983) (substantial evidence supported finding
that nonexertional impairments did not significantly limit claimant's exertional
capabilities); Cummins v. Schweiker, 670 F.2d 81, 84 (7th Cir.1982)
(substantial evidence supported ALJ's finding that claimant's visual impairment
would not interfere with performance of sedentary work and grids were
therefore applicable); Kirk v. Secretary of Health & Human Servs., 667 F.2d
524, 536-37 (6th Cir.1981) (substantial evidence supported ALJ's
determination that claimant's mental impairments did not significantly limit the

range of work permitted by his exertional capacity), cert. denied, 461 U.S. 957,
103 S.Ct. 2428, 77 L.Ed.2d 1315 (1983).
34

The Secretary argues that the ALJ's use of the term "excessive" modifying dust,
fumes, and gases in itself establishes that the restriction is insignificant.
However, such an argument is straining at gnats and swallowing camels.
Nowhere does the ALJ indicate what constitutes "excessive" dust, fumes, or
gases. Additionally, a mere adjective does not substitute for careful explanation
of the weight given to conflicting evidence--an explanation that, as we have
previously noted, is missing in this case.

35

If the record had supported the ALJ's finding that claimant's exertional
capacities allowed him to perform a full range of light work, we would have
been obligated to address the claimant's contention that a remand for vocational
testimony was required. Arguably, only vocational testimony could have
provided sufficient data as to whether substantially all of the jobs in the light
work category could accommodate the claimant's environmental restrictions.6
Given our conclusion here, we need not resolve this question. And although
vocational testimony might show that the environmental limitations were
insignificant, such testimony could not overcome the substantial evidence that
the claimant's exertional limitations took him out of the light work category.

CONCLUSION
36

Because we find insubstantial support in the record for the ALJ's finding that
the claimant could perform a full range of light work and substantial evidence
that he could not, we reverse. We take due note of the fact that if the ALJ had
found the claimant incapable of light, medium, or heavy exertion, then the grids
would have dictated a finding of disability, given the claimant's advancing age,
the nontransferability of his job skills to sedentary work, and his educational
level.

37

Where the burden is on the Secretary at step five of the disability process to
produce evidence that the claimant can perform other work, and the Secretary
does not meet that burden, reversal is appropriate. Broadbent v. Harris, 698
F.2d 407, 414 (10th Cir.1983) (reversal proper where prima facie case not
sufficiently rebutted by Secretary and where Secretary's decision not supported
by substantial evidence).

38

Because we hold for the claimant, we need not address his additional claim that
his lack of counsel deprived him of a fair hearing. We hold that the claimant is

entitled to disability benefits and remand for such an award from the date of his
second application for Social Security benefits, by which time substantial
evidence of his disability was in the record.
39

Reversed.

Hon. Alan B. Johnson of the United States District Court for the District of
Wyoming, sitting by designation

*Previous
Rule
-----. . .
202.14

Age
----------. . .
Closely
approaching
advanced
age

Education
--------. . .
High
school
graduate
or more

Work
Experience
------------. . .
Skilled or
semiskilled
-- skills not
transferable

Decision
-------. . .
Not
disabled

20

C.F.R., pt. 404, subpt. P, app. 2, Sec. 202.00, Table No. 2, Rule 202.14

The statute also states:

[A]n individual shall be determined to be under a disability 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, regardless of whether such work exists in the
immediate area in which he lives, or whether a specific job vacancy exists for
him, or whether he would be hired if he applied for work.
42 U.S.C. Sec. 1382c(a)(3)(B) (1982).

The report accompanying the promulgation of the Medical-Vocational

Guidelines elaborates on the exertional categories by stating that "within a
range of work (sedentary, light, medium, heavy or very heavy) unless the
individual possesses physical capacities equal to the strength requirements for
most of the jobs in that range, he or she cannot be classified as able to do the
pertinent range of work." 43 Fed.Reg. at 55,361 (1978) (emphasis original). In
other words, while a claimant need not be able to perform all jobs in the range
in order to fall within the range, one must be able to perform a substantial
majority of them. See also O'Leary v. Schweiker, 710 F.2d 1334, 1339 (8th
Cir.1983); Santise v. Schweiker, 676 F.2d 925, 934 (3d Cir.1982); Kirk v.
Secretary of Health & Human Servs., 667 F.2d 524, 537 (6th Cir.1981), cert.

denied, 461 U.S. 957, 103 S.Ct. 2428, 77 L.Ed.2d 1315 (1983); Davis v.
Schweiker, 536 F.Supp. 90, 100 (N.D.Cal.1982)
4

The record does not mention whether these activities would be considered light
work, but if they required lifting twenty pounds or less, along with a good deal
of walking or standing or prolonged sitting, they would qualify

Social Security Ruling 83-12, dealing with the medical-vocational rules in

situations where they do not precisely match a claimant's exertional abilities,
specifically mentions the special situation in which a claimant can only sit or
stand alternately. The ruling states that where an individual must alternate
sitting or standing, "[s]uch an individual is not functionally capable of doing
either the prolonged sitting contemplated in the definitions of sedentary work
(and for the relatively few light jobs which are performed primarily in a seated
position) or the prolonged standing or walking contemplated for most light
work."

A remand for some kind of additional proceedings would be appropriate where

an ALJ made no findings as to nonexertional impairments or where minimal
findings were not supported by adequate evaluation of the evidence in the
record. See Channel v. Heckler, 747 F.2d 577 (remanded for findings as to
whether claimant's nonexertional skin impairments precluded performance of
full range of sedentary jobs on a sustained basis). Also, where the Secretary
failed to meet his burden by failing to introduce vocational testimony that was
material to the outcome, vocational testimony has been ordered. See Allen v.
Secretary of Health & Human Servs., 726 F.2d 1470 (9th Cir.1984) (remanded
for vocational testimony as to whether claimant's environmental restrictions
negated claimant's ability to perform a full range of light work); Grant v.
Schweiker, 699 F.2d 189 (4th Cir.1983) (remanded for vocational testimony
where claimant demonstrated nonexertional impairments limiting the range of
jobs available to claimant). Some kinds of nonexertional impairments may lend
themselves to a determination by the ALJ as to whether their impact on the
range of jobs is significant. See Channel, 747 F.2d at 582. We decline,
however, to determine whether environmental restrictions are by their nature
the kind of nonexertional impairment that requires vocational testimony in
order to determine the extent of the erosion of the occupational base