UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
September 26, 1986
JULIA DORF, APPELLANT
SECRETARY OF HEALTH AND HUMAN SERVICES OF THE UNITED STATES
Present: ALDISERT, Chief Judge, and SLOVITER and GARTH, Circuit Judges
The petition for panel rehearing filed by appellee in the above entitled case having been submitted to the judges who participated in the decision of this court, and no judge who concurred in the decision having asked for rehearing, the petition for rehearing before the original panel is denied.
Statement of Judge Sloviter Sur Panel Rehearing
Judge Sloviter agrees with the other members of the panel that there was no substantial evidence to support the Secretary's decision that Dorf retained the residual functional capacity to perform her past relevant work. Upon consideration of the Secretary's petition for panel rehearing and the response thereto, she now believes that the panel erred in failing to remand this case to the Secretary for determination whether Dorf was capable of performing other work which exists in the national economy. 20 C.F.R. § 404.1520(f).
She agrees with the Secretary that the fact that Dorf may not be able to perform certain sedentary work, such as typing, does not necessarily mean that she could not perform other sedentary work. She believes that by pretermitting the Secretary's consideration of the fifth step in the sequential evaluation process, this court has made a determination that Congress has left to the Secretary in the first instance. Therefore, she would remand this case to the Secretary so that he can consider whether Dorf has met her burden to show that she did not retain the residual functional capacity to perform other work.
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