Opinions of the United
2003 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-18-2003

Boone v. Comm Social Security
Precedential or Non-Precedential: Precedential

Docket No. 02-3256




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2003

Recommended Citation
"Boone v. Comm Social Security" (2003). 2003 Decisions. Paper 7.
http://digitalcommons.law.villanova.edu/thirdcircuit_2003/7


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 2003 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
                                 PRECEDENTIAL

                                        Filed December 18, 2003

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT


                          No. 02-3256


                      SARAH M. BOONE,
                                             Appellant
                                v.
                *JO ANNE BARNHART
          COMMISSIONER OF SOCIAL SECURITY
                                     *(Pursuant to F.R.A.P. 43(c))

        Appeal from the United States District Court
          for the Eastern District of Pennsylvania
             (D.C. Civil Action No. 01-cv-04231)
        District Judge: Honorable Herbert J. Hutton

                    Argued March 13, 2003
Before: BECKER,* RENDELL, and AMBRO, Circuit Judges

              (Opinion filed December 18, 2003)
                        Peter J. Pinnola, Esquire (Argued)
                        Pinnola & Bomstein
                        8039 Old York Road
                        Elkins Park, PA 19027
                           Attorney for Appellant




* Judge Becker concluded his term as Chief Judge on May 4, 2003.
                                2


                        James A. Winn
                         Regional Chief Counsel
                        Lori Karimoto (Argued)
                         Assistant Regional Counsel
                        Office of the General Counsel
                        Social Security Administration
                        OGC/Region III
                        P.O. Box 41777
                        Philadelphia, PA 19101
                        Patrick L. Meehan
                         United States Attorney
                        Joan Garner
                         Assistant United States Attorney
                        Eastern District of Pennsylvania
                        615 Chestnut Street, Suite 1250
                        Philadelphia, PA 19106-4476
                          Attorneys for Appellee


                  OPINION OF THE COURT

AMBRO, Circuit Judge:
   Sarah M. Boone challenges the Social Security
Commissioner’s determination that she is not disabled and
therefore not entitled to Supplemental Security Income
(“SSI”) disability benefits. She makes several arguments,
each of which pertains to the Administrative Law Judge’s
(“ALJ”) determination that she can perform work that exists
in significant numbers in the regional or national economy.1
We agree with Boone that the record lacks substantial
evidence that she can perform such work and, thus, is not
disabled. We therefore reverse and remand.

                        BACKGROUND
  Boone applied in November 1998 for SSI disability
benefits under Title XVI of the Social Security Act, alleging

1. The ALJ’s opinion became the final decision of the Commissioner
because the Appeals Council declined to review it.
                                   3


disability due to back and leg disorders, carpal tunnel
syndrome, and high blood pressure. To show disability for
purposes of SSI, a claimant must demonstrate that she
lacks the ability “to engage in any substantial gainful
activity by reason of any medically determinable physical or
mental impairment.” 42 U.S.C. § 1382c(a)(3)(A). The ALJ
found that Boone suffers from severe impairments but, as
noted above, that she is not disabled because there are a
significant number of jobs in the national economy that she
can perform.
  Boone was fifty-three years old at the alleged onset date
of her disability in November 1998. She has an eleventh
grade education and, although she has not worked since
1986, has past experience as an office cleaner as well as a
meat weigher and wrapper.
   After she was involved in a bus accident in the 1980s,
Boone underwent back surgery. She has sought assistance
from pain specialists since that time. The ALJ found that
she has a continuing back disorder caused by degenerative
disc disease, spinal stenosis, a disc bulge, and left leg
radiculopathy, and that she suffers from carpal tunnel
syndrome and right knee pain.2 The ALJ therefore
concluded that Boone is severely impaired.
   Looking to the effect of Boone’s impairments, the ALJ
found that she cannot perform her past work as an office
cleaner or meat weigher and wrapper, but that she does
retain the capacity to perform “a range of light level work.”3
In particular, she can stand, walk, and sit for six hours out
of an eight-hour day. Any employment must, however,
permit her to sit and stand at will every thirty minutes. She
can lift and carry twenty pounds occasionally and ten

2. Because, as discussed below, the ALJ correctly evaluated Boone’s
medical impairments and resulting limitations, we rely upon his findings
and do not describe the various medical reports and other evidence
supporting them. We also note that Boone does not challenge the ALJ’s
finding that her blood pressure is well-controlled with medicine and so
does not impair her ability to work.
3. Social Security regulations classify jobs in one of five categories
depending on the physical exertion they require: sedentary, light,
medium, heavy, and very heavy. 20 C.F.R. § 416.967.
                                  4


pounds frequently. She has no limitations in pushing or
pulling, but must not be required to perform repetitive
hand activity. Only occasionally can she climb, balance,
kneel, stoop, crouch, or crawl.
  On the basis of the physical limitations identified by the
ALJ and considering Boone’s age, education, and unskilled
work history, a vocational expert (“VE”) testified that Boone
has the ability to work as an inventory clerk, a home health
aide, or a sales counter clerk. According to the VE, there
are 2,600 inventory clerk jobs in the regional economy and
127,000 such jobs in the national economy; there are 5,800
home health aide jobs regionally and 322,000 nationally;
and 1,500 sales counter clerk jobs exist regionally and
95,000 nationally. The ALJ concluded that these
occupations represent a significant number of jobs existing
in the national economy and, accordingly, that Boone is not
disabled.
  After the Appeals Council denied her request for review,
Boone timely appealed to the United States District Court
for the Eastern District of Pennsylvania. The parties filed
cross-motions for summary judgment. A magistrate judge
recommended granting the Commissioner’s motion for
summary judgment, which the Court did on June 17, 2002.
Boone timely appealed to this Court. We have jurisdiction
pursuant to 28 U.S.C. § 1291 and 42 U.S.C. § 405(g).

                           DISCUSSION
   We review de novo the District Court’s grant of summary
judgment in favor of the Commissioner but may reverse
only if “the ALJ’s findings were not supported by
‘substantial evidence.’ ” Burns v. Barnhart, 

,
118 (3d Cir. 2002). Substantial evidence is less than a
preponderance but more than a scintilla; it is “such
relevant evidence as a reasonable mind might accept as
adequate.” 

process is used to determine disability for SSI
benefits eligibility, see 20 C.F.R. § 416.920, but in this case
only step five is in dispute.4 At the fifth step, the

4. At the first step, the claimant will be found not disabled if she is
currently engaging in “substantial gainful activity.” 20 C.F.R.
                                   5


Commissioner bears the burden of proving that,
considering the claimant’s residual functional capacity,5
age, education, and past work experience, she can perform
work that exists in significant numbers in the regional or
national economy. 42 U.S.C. § 423(d)(2)(A); see also Bowen
v. Yuckert, 

, 146 n.5 (1987); Sykes v. Apfel,

, 263 (3d Cir. 2000).
A.   Vocational Expert Testimony
   At the fifth step of the evaluation process, “the ALJ often
seeks advisory testimony from a vocational expert. In
addition, the ALJ will generally consult the Dictionary of
Occupational Titles (“DOT”), a publication of the United
States Department of Labor that contains descriptions of
the requirements for thousands of jobs that exist in the
national economy, in order to determine whether any jobs
exist that a claimant can perform.” 

;
see also 

(The “Social Security Administration has
taken administrative notice of the reliability of the job
information contained in the [DOT].”) (citing 20 C.F.R.
§ 416.966(d) (2002)). Boone argues for reversal of the ALJ’s
non-disability determination on the grounds that the VE’s
testimony that Boone can work as an inventory clerk, a
home health aide, and a sales counter clerk conflicts with
the DOT and that neither the VE nor the ALJ addressed the
conflict. While we do not adopt a general rule that an
unexplained conflict between a VE’s testimony and the DOT
necessarily requires reversal, we do conclude that the VE’s
testimony in this case is not substantial evidence.6

§ 416.920(a). At step two, the claimant must demonstrate that she
suffers from a “severe medically determinable physical or mental
impairment,” or she will be found not disabled. 

claimant can
show at the third step that her impairments meet or equal an
impairment listed in Appendix 1 to Subpart P of Part 404, she will be
found per se disabled. 

requires the claimant to show that
she cannot perform her past work. 

claimant’s “residual functional capacity” is what she can do despite
the limitations caused by her impairments. Fargnoli v. Massanari, 

, 40 (3d Cir. 2001).
6. As we discuss below, Social Security Ruling 00-4p addresses how a
conflict between VE testimony and the DOT should be resolved. The ALJ
in this case issued his decision prior to the enactment of SSR 00-4p.
Our opinion on this issue is thus limited to those situations.
                                   6


   In response to the ALJ’s hypothetical question as to the
availability of jobs for an individual with Boone’s residual
functional capacity, age, and experience, the VE testified:
     There would be some jobs that this individual could
     perform given the limitations that have been outlined
     in the hypothetical, and I’m going to have to think
     about this a bit. But I think that I would look at the
     following positions: The first job that I, I would identify
     as appropriate would be an inventory clerk. I’d be glad
     to give any of those definitions through explanations of
     these jobs. There’s very little, if any, use — I mean
     there’s very little use of the hands, and it’s certainly
     not provide [sic] bimanual repetitive activities. And
     they’re in a region, there’s about 2,600 of those jobs. In
     the nation, there’s 127,000. The job that I, that I was
     — I’m thinking about, but I think still would be
     appropriate and this is what I’m hesitating about,
     would be a home health aid [sic] at the light exertional
     level. It would be 5,800 of those jobs in the region and
     322,000 nationally. A third job that I would look at as
     a possibility would be — I’m kind of going over in my
     mind the number of positions, but I want to make sure
     they kind of fit. What I’m looking for, I think[, is] an
     unskilled, sales counter clerk, which there are about
     1,500 in the region and 95,000 nationally.
   We consider first the three occupations identified by the
VE as suitable for Boone. The DOT classifies the occupation
“inventory clerk” in the medium exertional level with a
“specific vocational preparation” (“SVP”) of 4.7 DOT
§ 222.387-026. Occupations with an SVP of 3 or 4 are

7. The DOT states that an inventory clerk does the following: “Compiles
and maintains records of quantity, type, and value of material,
equipment, merchandise, or supplies stocked in establishment: Counts
material, [etc.] . . . in stock and posts total to inventory records,
manually or using computer. Compares inventories to office records or
computes figures from records, such as sales orders, production records,
or purchase invoices to obtain current inventory. Verifies clerical
computations against physical count of stock and adjusts errors in
computation or count, or investigates and reports reasons for
discrepancies. Compiles information on receipt or disbursement of
material, [etc.] . . . , and computes inventory balance, price, and cost.
Prepares reports, such as inventory balance, price lists, and shortages.
Prepares list of depleted items and recommends survey of defective or
unusable items. May operate office machines, such as typewriter or
calculator. May stock and issue materials or merchandise.” DOT
§ 222.387-026.
                                    7


semi-skilled. Because the ALJ found that Boone can do
only a limited range of light, unskilled work — not medium8
or semi-skilled work — she cannot perform the job of
inventory clerk as it is described in the DOT.
   Likewise, the DOT describes a home health aide job as
falling in the medium exertional level and with an SVP of 3.9
DOT 354.377-014. The VE specified that Boone could work
as “a home health aid[e] at the light exertional level.” On
cross-examination, Boone’s counsel asked the VE about the
extent of lifting required of a home health aide. She replied:
     One of the things that I’d think you have to look at
     when you talk about a home health aid[e] is, is that
     there are various levels of, of care needed that are
     provided to the elderly or the disabled. Some people
     need a lot of physical care and need to be able to
     transfer it, need to be . . . able to do heavy lifting.
     There are some people that for instance, that might
     have slight problems and just need help with their —
     a little bit of help with their ADL to act as a
     companion. And that — at that exertional level, it’s
     fairly light . . . .

8. The ALJ found that Boone can lift and carry twenty pounds
occasionally and ten pounds frequently. “Medium work involves lifting no
more than 50 pounds at a time with frequent lifting or carrying of
objects weighing up to 25 pounds.” 20 C.F.R. § 416.967(c).
9. The DOT states that a home health aide “[c]ares for elderly,
convalescent, or handicapped persons in patient’s home, performing any
combination of following tasks: Changes bed linens, washes and irons
patient’s laundry, and cleans patient’s quarters. Purchases, prepares,
and serves food for patient and other members of family, following
special prescribed diets. Assists patients into and out of bed, automobile,
or wheelchair, to lavatory, and up and down stairs. Assists patient to
dress, bathe, and groom self. Massages patient and applies preparations
and treatments, such as liniment or alcohol rubs and heat-lamp
stimulation. Administers prescribed oral medications under written
direction of physician or as directed by home care nurse. Accompanies
ambulatory patients outside home, serving as guide, companion, and
aide. Performs variety of miscellaneous duties as requested, such as
obtaining household supplies and running errands. May maintain
records of services performed and of apparent condition of patient. May
visit several households to provide daily health care to patients.” DOT
354.377-014.
                                    8


Although the VE did recognize that Boone cannot perform
all home health aide jobs, it is unclear whether the
numbers that the VE had earlier provided (5,800 regionally
and 322,000 nationally) included the medium exertional
level jobs in the home health aide occupation. We also lack
any basis to conclude that the VE discounted the semi-
skilled jobs, which Boone cannot perform, from the number
of jobs identified.
   Finally, although the DOT does not include an entry for
“sales counter clerk,” it does list “sales clerk” and “sales
attendant” positions. A sales clerk has an SVP of 3, a semi-
skilled occupation and therefore inappropriate for Boone.
DOT § 290.477-014. Although sales attendant is an
unskilled occupation with a light exertional level, according
to the companion volume to the DOT (Special
Characteristics of Occupations), the job involves frequent
reaching, handling, and fingering, which Boone’s limitation
on repetitive hand activities may preclude. Moreover, the
sales attendant position would not seem to accommodate
Boone’s need to be able to sit or stand at will, but instead
likely requires standing or walking throughout the shift.10

to the DOT, Boone cannot perform any
of the occupations identified by the VE. Neither the VE nor
the ALJ in his opinion acknowledged the conflict between
the VE’s testimony and the DOT or explained why the VE’s
testimony should be relied on despite the conflict.11

10. The DOT states that a sales attendant “[p]erforms any combination
of following duties to provide customer service in self-service store: Aids
customers in locating merchandise. Answers questions from and
provides information to customer about merchandise for sale. Obtains
merchandise from stockroom when merchandise is not on floor.
Arranges stock on shelves or racks in sales area. Directs or escorts
customer to fitting or dressing rooms or to cashier. Keeps merchandise
in order. Marks or tickets merchandise. Inventories stock.” DOT
§ 299.677-010.
11. On cross-examination before the ALJ, Boone’s attorney asked the VE
if she had “the DOT numbers” for the jobs she identified, to which she
replied: “No, but I’d be glad to get them for you, that’s not a problem.”
Boone’s counsel did not follow up on the issue, and the Commissioner
                                    9


   In Burns, 

, we addressed the import of an
unexplained conflict between VE testimony and the DOT.
We recognized that there is a split among circuit courts,
with several holding that “an ALJ may base his conclusions
on a vocational expert’s testimony that conflicts with the
DOT,”12 

n.8, one requiring the ALJ always to
“prefer the DOT over the testimony of a vocational expert,”13

adopting a “middle view” in which the ALJ
must “explain any decision to prefer the testimony of a
vocational expert over the DOT.”14 

not, however,

therefore asserts that we should ignore the conflict and lack of
reconciling explanation. Boone’s question to the VE, however, sufficiently
raised the issue before the ALJ for purposes of our review. Moreover, the
ALJ had a duty to follow up on Boone’s inquiry to ensure a complete
record. See Ventura v. Shalala, 

, 902 (3d Cir. 1995) (ALJ has
a “duty to develop a full and fair record”); Mayes v. Massanari, 

, 459 (9th Cir. 2001) (“In Social Security cases, the ALJ has a special
duty to develop the record fully and fairly and to ensure that the
claimant’s interests are considered, even when the claimant is
represented by counsel.”); Shaw v. Chater, 

, 131 (2d Cir.
2000) (similar statement); Freeman v. Apfel, 

, 692 (8th Cir.
2000) (similar statement).
12. See Carey v. Apfel, 

, 146 (5th Cir. 2000); Jones v. Apfel,

, 1229-30 (11th Cir. 1999); Connecticut v. Sec’y of Heath
& Human Servs., 

, 610 (6th Cir. 1995). The Fifth Circuit
requires that “the record reflect[ ] an adequate basis” for preferring the
VE’s testimony to the DOT. 

.
13. See Smith v. Shalala, 

, 47 (8th Cir. 1999). Burns noted,
however, that the Eighth Circuit “seems to have quickly retreated from
that bright-line rule.” 

n.8 (citing Montgomery v.
Chater, 

(8th Cir. 1995)).
14. See Haddock v. Apfel, 

, 1091 (10th Cir. 1999); Mimms
v. Heckler, 

, 186 (2d Cir. 1984).
  We further noted that Social Security Ruling SSR 00-4p “squarely
addresses how this situation should be handled.” 

. The Ruling adopts the middle ground and further puts the burden
on the ALJ to uncover the existence of any conflicts between the VE’s
testimony and the DOT:
    Social Security Ruling 00-4p requires that the ALJ ask the
    vocational expert whether any possible conflict exists between the
                                    10


need to choose among the various alternative options to
resolve a conflict between VE testimony and the DOT
because we remanded on other grounds. 

Although the individualized analysis that the middle course
represents seems to be the most sensible of the options, we
again do not hold that the failure of an ALJ (prior to the
enactment of SSR 00-4p) to discover and explain a conflict
necessarily requires reversal.
  We are further troubled, however, by the hesitation with
which the VE identified the three possible occupations for
Boone. See Sias v. Sec’y of Heath & Human Servs., 

(6th Cir. 1988) (“[I]f the expert is unable to testify
without qualification about the jobs a claimant can
perform, the ALJ may not rely on his opinion.”); Hall v.
Bowen, 

, 274 (6th Cir. 1988) (interpreting an
earlier Sixth Circuit case as holding in favor of the claimant
because of “the failure of the vocational expert to testify
without qualification that jobs which the plaintiff could
perform actually existed in the economy.”) (citing Graves v.
Sec’y of Health, Educ., & Welfare, 

, 809 (6th
Cir. 1973)). Here, the VE testified:
      There would be some jobs that this individual could
      perform given the limitations that have been outlined

      vocational expert’s testimony and the DOT, and that, if the
      testimony does appear to conflict with the DOT, to ‘elicit a
      reasonable explanation for the apparent conflict.’ The Ruling
      requires that the explanation be made on the record and that the
      ALJ explain in his decision how the conflict was resolved.

sets requirements for an ALJ to follow in any case decided
after its enactment. Here, as already noted, the hearing occurred and the
ALJ rendered his decision before the enactment of SSR 00-4p.
15. Although we so stated, we nonetheless seemed to adopt the middle
course: “Burns argues that the vocational expert’s testimony that he
could work as a laundry sorter, packer, or ticket taker, adopted by the
ALJ for his findings of fact, was inconsistent with the DOT in several
respects, and that any inconsistencies should have been explained by
the vocational expert as well as by the ALJ in his decision. We agree.” 

                             11


     in the hypothetical, and I’m going to have to think
     about this a bit. But I think that I would look at the
     following positions . . . .
(Emphases added.) Discussing the home health aide
occupation, the VE stated:
     The job that I, that I was — I’m thinking about, but I
     think still would be appropriate and this is what I’m
     hesitating about, would be a home health aid [sic] at
     the light exertional level.
(Emphasis added.) And regarding the sales counter clerk,
she said:
     A third job that I would look at as a possibility would
     be — I’m kind of going over in my mind the number of
     positions, but I want to make sure they kind of fit.
     What I’m looking for, I think an unskilled, sales
     counter clerk, which there are about 1,500 in the
     region and 95,000 nationally.
(Emphasis added.)
  Given this hesitation, the conflict between the VE’s
testimony and the DOT — which worked to Boone’s
disadvantage — as to each occupation identified by the VE,
and the failure of the VE and the ALJ to acknowledge
(much less explain) the conflict, we conclude that the VE’s
testimony does not by itself provide substantial evidence of
a significant number of jobs in the economy that Boone can
perform. We must consider, however, whether the record
otherwise contains such evidence.
B.   “Erosion of the Occupational Base”
   There is no dispute that, because of her age, limited
education, and unskilled work experience, Boone is
disabled if she has the physical ability to do only sedentary
work. See 20 C.F.R. pt. 404, subpt. P, app. 2, § 201.00(g)
(“Individuals approaching advanced age (age 50-54) may be
significantly limited in vocational adaptability if they are
restricted to sedentary work. When such individuals . . .
can no longer perform vocationally relevant past work and
have no transferable skills, a finding of disabled ordinarily
obtains.”). The parties also agree that Boone is not disabled
                                  12


if she can perform the full range of light work. See 

Her residual functional capacity does not,
however, fall neatly into either category. Rather, as noted
above, the ALJ found that Boone can do a limited range of
light work.
   Boone asserts that the ALJ committed per se reversible
error by failing to specify how limited the range of light
work that she can perform is and by not addressing
whether she is also limited in the range of sedentary work
that she can do. Social Security Ruling 83-12 directs that
if the claimant’s residual functional capacity does not
coincide with any of the established categories, the ALJ
“will consider the extent of any erosion of the occupational
base and assess its significance.” Id.16 Thus, Boone’s
argument, in the language of SSR 83-12, is that the ALJ
should have assessed the “extent” of the “erosion of the
occupational base” for both the sedentary and light work
that she can perform.
   SSR 83-12 further states, however, that where “difficult
judgments are involved” in the categorization of a
claimant’s work ability, VE “assistance is advisable.” 

so advises because a VE can provide a more
individualized analysis as to what jobs the claimant can
and cannot perform than does a determination of the
claimant’s remaining occupational base. Id.17 Consequently,
we shall not interpret SSR 83-12 to mandate reversal
whenever the ALJ does not set out specific findings
concerning the erosion of the occupational base if, as here,
the ALJ has received the assistance of a VE in considering
the more precise question whether there are a significant
number of jobs in the economy that the claimant can
perform. At the same time, however, the absence of those
findings means that we are hindered in considering
whether substantial evidence supports the ALJ’s ultimate
determination that Boone is not disabled.

16. The Ruling is binding on the agency. See 20 C.F.R. § 402.35(b)(1).
17. See also, e.g., 20 C.F.R. § 416.966(e) (“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, [the ALJ] may use the services of a
vocational expert or other specialist.”).
                              13


  The Commissioner contends, however, that, because the
ALJ found that Boone can do a limited range of light work,
she can perform the 200 unskilled sedentary occupations,
see 20 C.F.R. pt. 404, subpt. P., app. 2, § 202.00(a), and
the approximately 1,400 unskilled light level occupations,
see 

that exist in the national economy.
   We cannot agree. SSR 83-12 makes clear that if a person
“must alternate periods of sitting and standing,” as Boone
must have the option to do, she “is not functionally capable
of doing either the prolonged sitting contemplated in the
definition 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.” 

requirement, found by the ALJ,
that Boone’s employment allow her the option to sit or
stand at will every thirty minutes precludes her from
performing “the prolonged sitting contemplated in the
definition of sedentary work” as well as “most light work.”

types of jobs are particularly
structured so that a person cannot ordinarily sit or stand
at will.” 

some jobs in the national economy
— typically professional and managerial ones — in which a
person can sit or stand with a degree of choice.”). The
sedentary and light jobs that Boone physically can perform
are, therefore, likely to require a higher degree of skill than
she is capable of. Id.; see also 20 C.F.R. § 416.963(d) (“If
[the claimant is] closely approaching advanced age (age 50-
54), [the Commissioner] will consider that [her] age along
with a severe impairment(s) and limited work experience
may seriously affect [her] ability to adjust to other work.”).
Moreover, Boone’s inability to perform repetitive hand
movements will further limit the number of unskilled
sedentary jobs she can perform. See SSR 83-14 (“[B]ilateral
manual dexterity is necessary for the performance of
substantially all unskilled sedentary occupations.”).
   Given that SSR 83-12 suggests that Boone cannot
perform most sedentary or light jobs (because of her need
to have the option to sit or stand at will and her ability to
perform only unskilled work), we cannot — as the
Commissioner would have us do — assume that the ALJ’s
finding that Boone can perform a limited range of light
                                   14


work means that she can perform a significant number of
jobs in the economy. Substantial evidence therefore does
not support the ALJ’s conclusion that the Commissioner
met her burden of proof.

                           CONCLUSION
  The VE’s testimony does not constitute substantial
evidence that Boone can perform a significant number of
jobs that exist in the economy, and the record does not
otherwise contain that evidence. Substantial evidence
therefore does not support the Commissioner’s conclusion
that Boone is not disabled and so not entitled to SSI
disability benefits. Thus, we reverse the District Court’s
entry of summary judgment in favor the Commissioner.18
We remand to the District Court with instructions to return
the case to the Commissioner for further proceedings,
which may include the taking of additional evidence.19

A True Copy:
        Teste:

                       Clerk of the United States Court of Appeals
                                   for the Third Circuit




18. We do not reverse the District Court’s denial of summary judgment
to Boone.
19. Because we remand on other grounds, we do not address Boone’s
additional arguments that the ALJ gave insufficient weight to the opinion
of her treating physician and that the ALJ erred in his evaluation of
Boone’s credibility.