his opinions," id. at 774; and third, by failing to comply with the Court's instructions "to obtain opinions from the consulting physicians as to the onset date of her ailments." Id.
On October 8, 1986, the Appeals Council vacated its decision of March 7, 1986 and the September 26, 1985 decision of the Administrative Law Judge and remanded this case to the Secretary of Health and Human Services for further administrative action consistent with this Court's August 1986 opinion. A supplemental hearing was held before Administrative Law Judge John W. Taggart ("the ALJ") on July 15, 1987, in Washington, D.C., at which claimant was represented by counsel.
The ALJ issued a recommended decision on November 20, 1987, in which he made twelve findings that he recommended be adopted by the Appeals Council. See A.R. at 411-12. The ALJ also recommended that "claimant is not entitled to a period of disability or to disability insurance benefits under section 216(i) and 223 respectively, of the Social Security Act." A.R. at 412. On February 18, 1988, the Appeals Council adopted the findings and conclusions in the recommended decision and determined that claimant was "not entitled to a period of disability or to disability insurance benefits under the Social Security Act. . . ." A.R. at 387.
A. Appropriate Standard of Review
The Court must determine whether, on the basis of the entire record, the Secretary's decision is supported by "substantial evidence." See Brown v. Bowen, 253 U.S. App. D.C. 409, 794 F.2d 703, 705 (D.C. Cir. 1986). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 83 L. Ed. 126, 59 S. Ct. 206 (1938)). "If substantial evidence exists, then the Secretary's factfinding is conclusive." Brown v. Bowen, 794 F.2d at 705.
B. Disability Evaluation in this Case
The Secretary of Health and Human Services has established a five-step procedure for evaluating disability claims. 20 C.F.R. §§ 404.1520, 416.920 (1987). In this case, the first four steps are not at issue. Nonetheless, a brief review of plaintiff's disability claim is appropriate.
The first step of the evaluation process requires the Secretary to consider whether a claimant is involved in "substantial gainful activity." See 20 C.F.R. § 416.920(b). The Secretary found that "claimant has not engaged in substantial gainful activity since 1973." A.R. at 411 (finding no. 2). Second, the Secretary must consider whether a claimant has "any impairment or combination of impairments which significantly limits [her] physical or mental ability to do basic work activities." See 20 C.F.R. § 416.920(c). At this step, a claimant has the burden of showing that he is disabled. See Murray v. Heckler, 624 F. Supp. 1156, 1158 (D.D.C. 1986); see also Bianchi v. Secretary of Health and Human Services, 764 F.2d 44, 45 (1st Cir. 1985) (per curiam). It appears clear from the record that the ALJ determined, and the Secretary adopted, the finding that the plaintiff in fact met her burden of demonstrating that she had a severe impairment.
Third, the Secretary must determine whether the impairment or combination of impairments "meets the durational requirement and is listed in Appendix 1 or is equal to a listed impairment(s). . . ." 20 C.F.R. § 416.920(d). If so, a claimant is considered disabled without further consideration of age, education, or work experience. Id. In this case, the ALJ expressly stated that the plaintiff "does not have an impairment or combination of impairments listed in, or medically equal to one listed in Appendix 1, Subpart P, Regulation No. 4." A.R. at 411 (finding no. 3).
The fourth step of the process requires the Secretary to determine whether a claimant has the ability to perform work he has done in the past. See 20 C.F.R. § 416.920(e). In this case, the ALJ clearly indicated, in finding no. 6, that "the claimant is unable to perform her past relevant work as a stock clerk or office cleaner." A.R. at 411. The Court finds the Secretary's conclusions in the first four steps of the procedure for evaluating plaintiff's disability claim to be supported by substantial evidence.
The fifth step of the evaluation procedure requires the Secretary to determine whether the claimant is capable of performing any other work by considering the claimant's "residual functional capacity and [her] age, education, and past work experience." 20 C.F.R. § 416.920(f). At the fifth step, "the Secretary has the burden of showing that the claimant is capable of performing gainful work." Smith v. Bowen, 264 U.S. App. D.C. 104, 826 F.2d 1120, 1122 (D.C. Cir. 1987).
C. Burden of Proof at Step Five
The Court finds that the Secretary erred at the fifth step of the evaluation by failing to assume the burden of proof to demonstrate that the plaintiff had residual functional capacity to perform other work. Although neither the ALJ nor the Appeals Council expressly stated who had the burden of proof at step five, the analysis as well as the tenor of those opinions indicates that the burden remained on the plaintiff in step five to demonstrate that she was unable to perform light work. As this Court reads Smith v. Bowen, 264 U.S. App. D.C. 104, 826 F.2d 1120 (D.C. Cir. 1987), the Secretary's decision must be remanded.
The Secretary argues that the burden of demonstrating disability is always on the claimant and that accordingly, "the claimant must establish his residual functional capacity." Defendant's Opposition to Plaintiff's Motion for Summary Judgment, at 2. The Secretary asserts that "the only burden that 'shifts' to the Secretary is that of producing evidence of the existence of other jobs that the claimant can perform . . . ." Id. Such an interpretation clearly is inconsistent with the language used in Smith v. Bowen, 264 U.S. App. D.C. 104, 826 F.2d 1120 (D.C. Cir. 1987), where the Court stated that "the inquiry therefore must proceed to the fifth step, in which the Secretary has the burden of showing that the claimant is capable of performing gainful work." Id. at 1122 (emphasis provided). The Court did not limit the Secretary's burden to demonstrating the existence of work in the national economy, although the availability of jobs in the national economy was the primary issue in that case. The Eighth Circuit squarely addressed the extent of the Secretary's burden in Lewis v. Heckler, 808 F.2d 1293 (8th Cir. 1987). That Court stated:
It is well established that once a claimant proves to the ALJ that the claimant's impairments prevents him from returning to his past relevant work, the burden of proof shifts to the Secretary, who then has a duty to establish that the claimant is not disabled within the meaning of the Social Security Act. . . . In cases where the ALJ fails to expressly recognize this shift, we will assume that the burden of proof improperly remained on the claimant to prove he or she was disabled and we will remand the matter for further proceedings unless the case is one in which the outcome should be clear regardless of who shoulders the burden of proof.
808 F.2d 1293, 1297 (citations omitted). Although this circuit has not yet required the ALJ to expressly recognize in his written decision that the burden of proof has shifted to the Secretary at step five of the disability determination, the Court holds that the rule in this jurisdiction is that the burden of proof shifts to the Secretary at step five not only to establish the existence of jobs in the national economy, but also to establish that the claimant in fact can perform the available jobs.
D. Secretary's Determination of Claimant's Residual Functional Capacity
The Court also finds that the Secretary's decision that claimant has the residual functional capacity to perform the full range of light work is not supported by substantial evidence. Light work is defined by the Secretary as follows:
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.