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March 22, 2001

Memo To Counsel Re: Vickie Dowling v. Kenneth S. Apfel Civil No. JFM-00-0016 Dear Counsel: I have reviewed Magistrate Judge Schulze's original Report and Recommendation, her supplemental Report and Recommendation, the objections to the original report and supplemental report you respectively filed, and the remainder of the record in this case. I accept the recommended decision and am entering herewith an order remanding the case to the Commissioner for further consideration. I will not repeat what has been said in Judge Schulze's original Report and Recommendation and her supplemental Report and Recommendation. Rather, I will simply address what I consider to be the salient point. SSR 83-12 expressly recognizes that "[u]nskilled types of jobs are particularly structured so that a person cannot ordinarily sit or stand at will." The ALJ found Dowling residually capable of performing only unskilled sedentary jobs. The ALJ found that Dowling "is restricted to the sedentary exertional range" and "must be able to alternate standing/sitting at will." In her testimony the VE did not address the apparent inconsistency between the recognition in SSR 83-12 that unskilled sedentary types of jobs do not permit a person to "ordinarily sit or stand at will" and her response to a hypothetical question posed by the ALJ (that included the restrictions on Dowling's residual functional capacity) that Dowling could perform such a job. Nor did the VE opine that the jobs she identified are different from other unskilled sedentary jobs by permitting alternate standing and sitting. The ALJ also did not address these matters in his opinion. He must do so upon remand. Despite the informal nature of this ruling, it shall constitute an Order of Court, and the Clerk is directed to docket it accordingly. Very truly yours, /s/ J. Frederick Motz United States District Judge

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND VICKIE DOWLING v. KENNETH S. APFEL * * * Civil JFM-00-0016 * * ***** ORDER

For the reasons stated in the accompanying memo to counsel, it is, this 22nd day of March 2001 ORDERED 1. After considering defendant's objections to Magistrate Judge Schulze's supplemental Report and Recommendation and after having made a de novo determination, I accept Judge Schulze's recommended decision; and 2. This case is remanded to the Commissioner for further proceedings in accordance with Judge Schulze's supplemental Report and Recommendation that is hereby accepted.

/s/ J. Frederick Motz United States District Judge



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