Albert D. Green v. Jo Anne B. Barnhart, Commissioner of Social Security on Appeal From the United…

REPORTED - NOT PRECEDENTIAL
THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 01-2541
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ALBERT D. GREEN,
Appellant
v.
JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY
___________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Civil No. 00-cv-00487)
District Judge: The Honorable William H. Yohn, Jr.
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Submitted Under Third Circuit LAR 34.1(a)
January 22, 2002
BEFORE: NYGAARD and STAPLETON, Circuit Judges,
and CAPUTO, District Judge.
(Filed: February 5, 2002)
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OPINION OF THE COURT
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NYGAARD, Circuit Judge.
Appellant, Albert D. Green, appeals from an order of the District Court granting
summary judgment in favor of the Commissioner of the Social Security Administration,
alleging as error the issues listed in paragraph I, taken verbatim from Appellant’s brief.
Because we conclude that the Commissioner’s finding that Green has a marginal
education is not supported by substantial evidence, and because the Commissioner failed
to make a finding whether Green is illiterate, we will reverse and remand.
I.
The allegations of error asserted by Appellant are as follows:
1. Is the Commissioner’s finding that Mr. Green has a marginal education, and
his failure to make a finding whether Mr. Green is illiterate, supported by
substantial evidence and does it represent a reversible error of law?
2. Did the Commissioner commit a reversible error of law by failing to
provide for the testimony at the hearing of a medical expert to evaluate
whether Mr. Green’s heart disease met or equaled Listing 4.02 of the
Listing of Impairments?

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3. Is the Commissioner’s finding that Mr. Green has the residual functional
capacity to perform a limited range of sedentary work and can perform jobs
such as order clerk and system surveillance monitor supported by
substantial evidence?
4. Is the Commissioner’s finding that Mr. Green’s allegations of subjective
symptoms and limitations arising therefrom are generally credible, but only
to the extent that he is limited to performing a reduced range of sedentary
work activity, supported by substantial evidence?
II.
The facts and procedural history of this case are well known to the parties and the
court. We see no reason to restate them here. Relevant to our decision is the
Commissioner’s Finding No. 10 that "[t]he claimant has a ’marginal’ sixth grade
education." (Tr. 19). Under the Social Security Regulations, one of the vocational
factors used to determine whether a claimant can obtain substantially gainful employment
is the claimant’s educational level. 20 C.F.R. 404.1564. The Commissioner uses the
following mutually-exclusive categories for describing the claimant’s educational level:
(1) illiteracy; (2) marginal education; (3) limited education; (4) high school education and
above. Id.
In this case, the Commissioner found that Green had a marginal education, despite
substantial evidence that Green was, in fact, illiterate. In particular, Green testified at h
hearing that he cannot read a newspaper. (Tr. 41). It appears that the Commissioner
relied solely upon Green’s formal education in deciding that Green had a marginal
education. Green testified that he left school in the seventh grade, thus having completed
the sixth grade. (Tr. 40-41). The Regulations define "marginal education" as:
Marginal education means ability in reasoning, arithmetic,
and language skills which are needed to do simple, unskilled
types of jobs. We generally consider that formal schooling at
a 6th grade level or less is a marginal education.
20 C.F.R. 404.1564(b)(2). However, one’s completion of the sixth grade is not
conclusive evidence that one has a marginal education. The Regulations themselves
require that only "if there is no other evidence to contradict it, we will use your numerical
grade level to determine your educational abilities." 20 C.F.R. 404.1564(b). In Green’s
case, there is evidence to contradict a presumption that Green’s completion of the sixth
grade means that he has a marginal education, so the Commissioner needs to consider the
evidence that Green is illiterate and make a finding in that regard.
On appeal, the Commissioner points to evidence which he argues is sufficient to
sustain his decision. We disagree. The Commissioner reminds us that Green reported he
had an eighth-grade education, and later testified he had a sixth-grade education. The
Commissioner argues this "is a marginal education." Again, we emphasize that a
claimant’s grade level should be used to determine the claimant’s level of education only
when "there is no other evidence to contradict it." 20 C.F.R. 414.1564 (emphasis
added). It certainly was not the case here that there was no other evidence to contradict a
presumption that Green’s sixth-grade education meant that he had a marginal education.
Green testified that he could not read, and the Commissioner failed to explain his decision
in light of that testimony. On appeal, the Commissioner calls Green’s testimony a
"subjective statement," but we remind the Commissioner that proceedings for Social
Security benefits are non-adversarial, see Sullivan v. Hudson, 490 U.S. 877, 891 (1989),
and if the Commissioner had doubts about Green’s testimony because it was "subjective,"
he could have easily resolved those doubts by administering an "objective" test, such as
asking Green to read a brief passage and to write a short note.
The Commissioner also argues on appeal that Green’s past work history as a
grocery store owner and operator contradicts a finding of anything less than a marginal
education. But the Commissioner mischaracterizes the evidence. He argues that "Green
stated that his tasks included writing, completing reports, or performing similar duties."
But the "Disability Report" cited in support is inconclusive. In response to the question,
"In your job did you: Do any writing, complete reports, or perform similar duties?" Green

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checked the "Yes" box. (Tr. 91). His "yes" answer may refer to the "perform similar
duties" part of the question and does not necessarily mean Green is literate. The
Commissioner also points to Green’s statements that he kept records and made grocery
orders. But Green’s full statement was, "I used an electric saw, slicer, cash register. I
had to keep record of receipts for accountant, grocery orders (thing neeeded [sic] for the
store). I had two people that worked for me." (Tr. 91). This is not proof that Green is
literate. One can keep records and make orders without being able to read and write.
Indeed, Green testified that he "remeberized [sic] things" and that his mother helped him.
(Tr. 42).
We hold that there is not substantial evidence on the record to support the
Commissioner’s finding that Green had a marginal education. We will remand for
reconsideration of that finding, as well as for a specific finding as to whether Green is
literate. Furthermore, in light of our disposition, the Commissioner may find it necessary
to reconsider his finding that Green’s transferability of skills is not a factor.
III.
In sum, and for the foregoing reasons, we will reverse the order of the District
Court dated the 28th day of February, 2001, and entered on the docket March 5, 2001, and
will remand with instructions to return this matter to the Commissioner for further
proceedings consistent with this opinion. We affirm as to the Appellant’s other
allegations of error.
_________________________
TO THE CLERK:
Please file the foregoing opinion.
/s/ Richard L. Nygaard
Circuit Judge

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