The opinion of the court was delivered by: WEBER
Plaintiff is 54 years old. He has a fifth grade education, is functionally illiterate, and can only write his name. During his relevant period of employment, he worked as a welder and a welder's helper. He alleges that a concussion from an automobile accident in February 1982, severe headaches, and dizziness render him disabled from substantial gainful activity.
During the process of administrative appeal, plaintiff was heard before an administrative law judge. The hearing included testimony by a vocational expert favorable to plaintiff's claim. The ALJ rendered an opinion finding disability and granting benefits.
On its own motion, the Appeals Council reversed the ALJ, determining that his decision was not supported by substantial evidence. 20 C.F.R. Part 404.969-404.981. As partial support for this determination, the Appeals Council found that plaintiff's testimony regarding his symptoms was not fully credible. In addition, the Appeals Council rejected the testimony of the vocational expert. This action by the Appeals Council constitutes the Secretary's final decision.
We will reverse the Secretary for three reasons. First, the Appeals Council, like any reviewing body, must exercise great care in modifying a fact-finder's determination of credibility. The ALJ actually observed the claimant's demeanor, on which credibility findings largely hinge. The Appeals Council reviewed only Mr. Calvin's file. In so doing, the Council concluded that:
Although the evidence is consistent with a finding that the claimant suffers from some dizziness and headache pain, and although some attacks may be more severe than others, the claimant's representations concerning the frequency and severity of is symptoms and their overall effect on his ability to engage in work activity are not borne out by the record as a whole. Neither the medical nor the lay observations in file describe frequent loss of balance or accidents associated with this condition.
This scrutiny would seem to require an unfair burden of proof. To be sure, the claimant bears the burden of proving disability, and a claimant's statements alone cannot conclusively establish the existence of an impairment. Torres v. Schweiker, 682 F.2d 109 (3d Cir. 1982), cert. den. 459 U.S. 1174, 74 L. Ed. 2d 1020, 103 S. Ct. 823 (1983); 20 C.F.R. Part 404.1528 and 1529. But to require medical or lay observations of "frequent loss of balance or accidents associated with this condition" suggests that someone must monitor plaintiff throughout the day and report these events. Outside of observing plaintiff during an extended hospital stay, we do not know how medical personnel would be qualified to submit such evidence.
Furthermore, requiring such proof overlooks the possibility--as plaintiff testified here--that dizziness occurs only when he assumes certain positions. Record at 42. He can avoid these positions in the course of his presently restricted daily life, but may not have such control over his physical habits while regularly attending work. Plaintiff also testified that his dizziness also occurs in relatively unpredictable cycles. Record at 40-41. When he is not so afflicted, he may be capable of substantial gainful activity, but this determination must be balanced against the recurrence of episodic dizziness in assessing plaintiff's suitability for employment on the whole. We conclude that the Appeals Council has insufficient grounds for disturbing the ALJ's credibility determination as to plaintiff's complaints of dizziness, headaches, and restricted activities. Green v. Schweiker, 749 F.2d 1066 (3d Cir. 1984).
Second, the Appeals Council similarly challenges the testimony of the vocational expert.
The testimony of the vocational specialist at the hearing was given in response to improper questioning by the administrative law judge. In essence, the questions posed to the vocational specialist . . . were requests to comment on the claimant's residual functional capacity, the determination of which, at the hearing level, is the responsibility of the administrative law judge alone. Therefore, the testimony of the vocational specialist regarding the claimant's restrictions is not valid and the administrative law judge's uncorrected admission of such testimony was an error of law.
Residual functional capacity is what you can still do despite your limitations. We consider your capacity for various functions as described in the following paragraphs . . . . Residual functional capacity is a medical assessment. However, it may include descriptions (even your own) of limitations that go beyond the symptoms that are important in the diagnosis and treatment of your medical condition. Observations of your work limitations in addition to those usually made during formal medical examinations may also be used. These descriptions and observations, when used, must be considered along with the rest of your medical record to enable us to decide to what extent your impairment keeps you from performing particular work activities. . . .
(b) Physical abilities. When we assess your physical abilities (e.g., strength) we assess the severity of your impairment(s) and determine your residual functional capacity for work activity on a regular and continuing basis. We consider your ability to do physical activities such as walking, standing, lifting, carrying, pushing, pulling, reaching, handling and the evaluation of ...