What is the Burden that the Commissioner must carry at Step Five?

Assume a social security disability case with a client, over 50 years of age, who for the most of his working career worked construction i.e. cement mason.  After having a kidney transplant he was diagnosed suffering with a somatoform disorder. 

The vocational evidence is that claimant could not return to his former employment. This was based in part upon the physician’s report.  The physician noted that if required to do vigorous work, claimant will get nauseated, he is going to start to vomit and then claimant will get anxious.  At this point he will be unable to maintain the job.  He will be physical ill and would not stay on task and ultimately leave the job because of illness.

Because the claimant had always worked construction, the issue of job stress became important.  The law and the regulations make it clear that stress and the reaction to stress is in the individual and not the job.  It doesn’t matter if the job is heavy exertional or sedentary.  If the individual is unable to handle stress, he could be as disabled at the lowest exertion level as when working at a higher exertional level.

There are no medical reports that indicated that claimant could or could not handle stress of a lower exertional level job. At the hearing, the vocational expert admitted that if claimant’s ability to handle stress was the same at the light or sedentary level as with this past employment, he would not be employable.  Nevertheless, he opined that there were approximately 1500 light jobs and a similar number of sedentary jobs claimant could work.  These jobs are what everyone would call low stress jobs.

The Social Security Administration, under the authority of the Social Security Act, has established a five-step process to  determine whether an individual is disabled or not. The determination moves from step one to five.  At each step a determination is made, meaning that if it is determined that you are or are not disabled at a particular step of the evaluation process, the evaluation will not go on to the next step.

The first four steps in this process the claimant carry the burden to establish a compensable disability.  At step five, the burden shifts to the commissioner.

It is at this level that the process determines whether the claimant can do any other work, considering his “residual functional capacity,” age, education, and work experience. If it is determined that a claimant has the ability to do other jobs, then the claimant is not disabled.  If it is found that claimant cannot do any other work, then claimant will be found disabled.

What is this burden that the commission carries?  We know that if evidence, is produced  that there is other work the claimant could do, given his residual functional capacity, age, education and work experience, and that the work exists in significant numbers in the national economy, the burden has been carried.

What about a case as described above, what constitutes his residual functional capacity? 

Once a finding is made that claimant does not meet the Listings (his impairment does not fulfill all the requirements for the impairment set forth in the regulation) but is nevertheless unable to perform past work, the burden sifts to the Commissioner to prove (1) that the claimant retains the residual functional capacity to perform other kinds of work, and (2) that other such work exists in substantial numbers in the national economy. Singh v. Apfel, 222 F.3d 449 (8^th Cir. 2000, McCoy v. Schweiker, 683 F2d 1138 (8^th Cir. 1982)), 42 USC §§ 423(d) (1), (2)

A claimant’s residual functional capacity is a medical question. Nevland v. Apfel, 204 F.3d853 @858 (8^th Cir. 2000)

At step five the claimant must have the ability to do full-time work.  SSR 96-8p requires the ability to do work on a “regular and continuing basis” which means “8 hours a; day, for 5 days a week, or an equivalent work schedule.” Kelley v. Apfel, 185 f3d 1211 (11^th Cir. 1999)

Applying all of the forgoing to the original fact situation, what is should be the ruling?  There is medical evidence that vigorous work will render claimant unable to do his prior work. There is evidence that claimant is impaired by work stress.  There is evidence that the impairment is a somatoform disorder, it isn’t necessarily the work that causes his impairment, but his view of harm produced in working.  There is no evidence one way or the other if claimant would be any more successful at a job found in a lower exertional level.  There is a regulation that warns the Commissioner that stress is in the individual and not in the job, so there cannot be a ‘leap of faith’ that a lower exertional job equal less stress.  The vocational expert indicated that if claimant suffered the same effects in the jobs he listed, claimant would not be able to be competitively employed in any of the jobs.

If the burden at step five is on the Commissioner and the burden to determine what is the claimant’s residual functional capacity, and the decision is a medical decision, without further evidence on claimant’s capacity, can the Commissioner just assume claimant can do the jobs listed by the vocational expert?