Fischer-Ross v. Barnhart

F I L E D

United States Court of Appeals

Tenth Circuit

PUBLISH

December 16, 2005

UNITED STATES COURT OF APPEALS

Clerk of Court

TENTH CIRCUIT

SHAREE L. FISCHER-ROSS,

Plaintiff-Appellee,

v. No. 04-3509

JO ANNE B. BARNHART,

Commissioner of Social Security,

Defendant-Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS

(D.C. No. 03-CV-4162-JAR)

Submitted on the briefs: *

Pamela A. Kultgen, Assistant Regional Counsel, and Frank V. Smith, III,

Chief Counsel, Social Security Administration, Region VII, Kansas City,

Missouri; Eric F. Melgren, United States Attorney, and D. Brad Bailey,

Assistant United States Attorney, Topeka, Kansas, for Defendant-Appellant.

Scott L. Johnson, Tilton & Tilton, Chtd, Topeka, Kansas, for Plaintiff-Appellee.

Before O’BRIEN, HOLLOWAY, and BALDOCK, Circuit Judges.

*

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination

of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case

is therefore ordered submitted without oral argument.

BALDOCK, Circuit Judge.

In Clifton v. Chater, 79 F.3d 1007 (10th Cir. 1996), we reversed a decision

denying a Social Security claimant disability benefits because the administrative

law judge (ALJ) “did not discuss the evidence or his reasons for determining that

[claimant] was not disabled at step three” of the mandated five-part sequential

evaluation process. Id. at 1008-1010. We concluded the ALJ’s “bare conclusion

[was] beyond meaningful judicial review.” Id. at 1009. Relying on Clifton,

the district court in this case held an ALJ’s similarly terse step three analysis

required reversal. The question for our consideration is whether Clifton requires

reversal where the ALJ’s factually substantiated findings at steps four and five of

the evaluation process alleviates any concern that a claimant might have been

adjudged disabled at step three. We hold that Clifton requires no such result.

While we encourage ALJs to render complete findings and conclusions at each

step of the five-part process consistent with §405(b)(1) of the Social Security Act

(SSA), we reject a construction of Clifton that, based on a reading of the ALJ’s

decision as a whole, would lead to unwarranted remands needlessly prolonging

administrative proceedings.

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I.

Claimant Sharee Fischer-Ross suffers from carpal tunnel syndrome (a nerve

disorder of the hands), lumbar spondylosis (a degenerative spine disorder), and

allergic rhinitis (hay fever). Claimant filed this action in the district court

seeking judicial review of Defendant Commissioner’s denial of her request for

disability benefits. See 42 U.S.C. § 405(g). In a thorough order, the district court

reviewed each step of the ALJ’s five-step analysis, reversed on the basis of

insufficient findings at step three, and remanded for further proceedings.

Commissioner appeals. We exercise jurisdiction under 28 U.S.C. § 1291. See 42

U.S.C. § 405(g) (“The judgment of the [district] court shall be subject to review

in the same manner as a judgment in other civil actions.”); Sullivan v. Finkelstein,

496 U.S. 617, 623-31 (1990) (construing § 405(g)). We review the district

court’s decision de novo and independently determine whether the ALJ’s decision

is free from legal error and supported by substantial evidence. Briggs ex rel.

Briggs v. Massanari, 248 F.3d 1235, 1237 (10th Cir. 2001).

A.

The SSA defines “disability” as the “inability to engage in any substantial

gainful activity by reason of any medically determinable physical or mental

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impairment which can be expected to result in death or which has lasted or

can be expected to last for a continuous period of not less than 12 months . . . .”

42 U.S.C. § 423(d)(1)(A). The Social Security Administration employs an oft-

repeated five-part sequential evaluation process for determining whether a

claimant is disabled. See 20 C.F.R. § 404.1520; Bowen v. Yuckert, 482 U.S. 137,

140-42 (1987); Williams v. Bowen, 844 F.2d 748, 750-53 (10th Cir. 1988). Step

one requires a claimant to establish she is not engaged in “substantial gainful

activity.” See 20 C.F.R. §§ 404.1520(b), 404.1572. Step two requires the

claimant to establish she has a “medically severe impairment or combination of

impairments.” See id. §§ 404.1520(c), 404.1520a-404.1523. Step three asks

whether any “medically severe impairment,” alone or in combination with other

impairments, is equivalent to any of a number of listed impairments so severe as

to preclude “substantial gainful employment.” See id. §§ 404.1525-404.1526 &

pt. 404, subpt. P, App. 1. If listed, the impairment is conclusively presumed

disabling. See id. § 404.1520(d) If unlisted, the claimant must establish at step

four that her impairment prevents her from performing work she has previously

performed. See id. § 404.1520(e), (f). If the claimant is not considered disabled

at step three, but has satisfied her burden of establishing a prima facie case of

disability under steps one, two, and four, the burden shifts to the Commissioner to

show the claimant has the residual functional capacity (RFC) to perform other

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work in the national economy in view of her age, education, and work experience.

See id. § 404.1520(g).

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B.

In this case, the ALJ concluded at step one that Claimant was not engaged in

“substantial gainful employment.” 1 The ALJ concluded at step two that Claimant

had a combination of “medically severe impairments,” namely, carpal tunnel

syndrome, lumbar spondylosis, and allergic rhinitis. At step three, the ALJ

concluded “a review of the medical evidence fails to reveal the existence of an

impairment or combination of impairments which specifically meets or equals the

criteria of any impairment listed in . . . the Listing of Impairments.” Proceeding to

steps four and five, the ALJ concluded in alternative determinations that Claimant

was not disabled because under step four she retained the residual functional

capacity (RFC) to perform both her past work as a cashier/checker and desk clerk

and under step five retained the RFC to perform various other clerical and office

jobs. See Murrell v. Shalala, 43 F.3d 1388, 1389 (10th Cir. 1994) (recognizing the

benefit of alternative determinations in the social security review process).

Specifically, the ALJ found plaintiff’s RFC allowed her–

to perform the physical and exertional and nonexertional requirements

of work except for lifting more than 20 pounds maximum or 10

pounds repeatedly. She was able to stand or walk for six hours in an

1

Despite his step one finding, the ALJ expressed concern over Claimant’s lack

of candor regarding her employment on a farm during a portion of the period of

her alleged disability: “The claimant’s failure to list this full time job and her

denial of performance of this full time job are strong indications, among others,

that the claimant ha[s] not been completely forthright in providing information

to the Social Security Administration.”

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8-hour workday. She was able to sit up to six hours with normal

breaks in an 8-hour workday. She could occasionally climb stairs,

balance, stoop, crawl, crouch and kneel. She should perform no

repetitive alternating motions with her hands, especially her right

dominant hand. She can grip 28 pounds on the right and 20 pounds

on the left.

C.

The Commissioner unsuccessfully challenged the ALJ’s step one finding in

the district court and does not renew her objection to that finding here. The

Commissioner similarly poses no objection to the district court’s decision

upholding the ALJ’s step two findings. The controversy arises at step three.

Relying on Clifton, Claimant successfully argued in the district court that the ALJ

committed reversible error when he failed to discuss the particular evidence on

which he relied to reach his step three conclusion. While recognizing an ALJ’s

failure to make specific step three findings might be harmless, the district court

concluded otherwise in this case:

Because the record contains nothing more than a summary conclusion

that [Claimant] did not meet a listed impairment, this Court is unable

to ascertain whether a reasonable fact finder would have decided

otherwise. The Court cannot determine what evidence or Listing the

ALJ considered, nor how he analyzed the evidence. Therefore the

Court must remand for the ALJ to make further findings at step three

of the sequential evaluation process.

After holding the ALJ’s summary analysis at step three was inadequate, the

district court considered Claimant’s objections to the ALJ’s findings at steps four

and five. The court rejected those objections, thereby upholding the ALJ’s

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determination that Claimant’s RFC enabled her to perform a significant number of

occupations. 2 According to the district court, if on remand the ALJ provided a

sufficiently explicit rejection of Claimant’s disability claim at step three, benefits

would stand properly denied because the court “ha[d] concluded that [the ALJ’s]

analysis of steps four and five was supported by substantial evidence.”

II.

On appeal, the Commissioner contends the ALJ’s evaluation of the evidence

and specific findings at steps four and five of the sequential process preclude any

favorable ruling for Claimant at step three, thereby making the district court’s

remand an unwarranted formality. Notwithstanding her step three burden to

present evidence establishing her impairments meet or equal listed impairments,

2

Claimant has not challenged by way of cross-appeal that portion of the district

court’s decision pertaining to steps four and five. In the district court, Claimant

unsuccessfully objected to the ALJ’s findings at steps four and five. Claimant

attempts to renew that objection here. Claimant’s failure to take a cross-appeal,

however, precludes our review. See Jones v. Apfel , 2000 WL 3875, at **1 (10th

Cir. 2000) (unpublished) (citing Massachusetts Mut. Life Ins. Co. v. Ludwig , 426

U.S. 479, 480-81 (1976) (per curiam)). While an appellee may generally, without

taking a cross appeal, urge in support of a decree any matter appearing in the

record, an appellee claiming error “may not attack the decree with a view either

to enlarging h[er] own rights thereunder or of lessening the rights of h[er]

adversary.” Ludwig , 426 U.S. at 480-81. In attacking the ALJ’s determination

at steps four and five that she was not disabled, Claimant impermissibly seeks

to enlarge her own rights as determined by the ALJ (and upheld by the district

court), and thus lessen the rights of the Commissioner. In other words, any

determination at step four or five that Claimant was disabled would render

the Commissioner’s step three appeal meaningless.

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see Burnett v. Commissioner, 220 F.3d 112, 120 n. 2 (3d Cir. 2000), Claimant

does not respond to the substance of the Commissioner’s argument. 3 Rather,

Claimant argues our decision in Clifton v. Chater, 79 F.3d 1007 (10th Cir. 1996)

requires reversal whenever an ALJ’s discussion of the evidence in reference to the

step three listings is insufficiently detailed. The Commissioner in turn argues

Claimant seeks to unduly expand Clifton’s holding into a per se rule that leads to

purely formalistic remands unjustifiably prolonging administrative proceedings.

We reject Claimant’s reading of Clifton and agree with the Commissioner that an

ALJ’s findings at other steps of the sequential process may provide a proper basis

for upholding a step three conclusion that a claimant’s impairments do not meet or

equal any listed impairment.

A.

In Clifton, we construed 42 U.S.C. § 405(b)(1) as requiring an ALJ “to

discuss the evidence and explain why he found that [a claimant] was not disabled

at step three.” Id. at 1009. 4 Thus, the ALJ, here and in Clifton, erred in failing to

3

This is not to say a claimant has the burden at step three of actually identifying

any relevant listing. In Clifton , we appeared to place the burden on the ALJ to

identify any relevant listing(s) in light of the evidence which a claimant has

produced. Clifton , 79 F.3d at 1009 (noting the ALJ did not “even identify”

the relevant listing(s)); see also Burnett , 220 F.2d at 120 n.2 (discussing reasons

for relieving a claimant of the burden of specifically identifying relevant listings).

4

Section 405(b)(1) reads in relevant part:

(continued...)

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do so. But Clifton did not categorically reject the application of harmless error

analysis in the present context. To be sure, we apply harmless error analysis

cautiously in the administrative review setting. But as we explained in Allen v.

Barnhart, 357 F.3d 1140, 1145 (10th Cir. 2004), harmless error analysis

“nevertheless may be appropriate to supply a missing dispositive finding . . .

where, based on material the ALJ did at least consider (just not properly), we

could confidently say that no reasonable administrative factfinder, following the

correct analysis, could have resolved the factual matter in any other way.”

Clifton does not remotely suggest that findings at other steps of an ALJ’s

analysis may never obviate the lack of detailed findings at step three. Clifton

sought only to ensure sufficient development of the administrative record and

explanation of findings to permit meaningful review. The only finding mentioned

in Clifton was an RFC for “a limited range of sedentary” work. Clifton, 79 F.3d at

1009. This isolated finding, unlike the ALJ’s far more substantial RFC findings

here, does not suggest an explicit, definitive basis for rejection of the listings. See

4

(...continued)

The Commissioner of Social Security is directed to make findings

of fact, and decisions as to the rights of any individual applying for a

payment under this subchapter. Any such decision by the

Commissioner of Social Security which involves a determination of

disability and which is in whole or in part unfavorable to such

individual shall contain a statement of the case, in understandable

language, setting forth a discussion of the evidence, and stating the

Commissioner’s determination and the reason or reasons upon which

it is based. . . .

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Saiz v. Barnhart, 392 F.3d 397, 400 (10th Cir. 2004) (noting “[a] sedentary RFC

already represents a significantly restricted range of work” and, thus, “a finding of

disabled usually applies when the full range of sedentary work is significantly

eroded” (internal quotations omitted)). Thus, Clifton properly held the ALJ’s bare

conclusion in that case precluded meaningful review.

But where an ALJ provides detailed findings, thoroughly reviewed and

upheld by the district court, that confirm rejection of the listings in a manner

readily reviewable, requiring reversal would extend Clifton beyond its own

rationale. 5 Neither Clifton’s letter nor spirit require a remand for a more thorough

discussion of the listings when confirmed or unchallenged findings made

elsewhere in the ALJ’s decision confirm the step three determination under

review. Whether the ALJ’s findings at steps four and five justify his step three

conclusion in this particular case is the question to which we now turn.

B.

The ALJ’s RFC determination summarized above was based on carpal

tunnel syndrome, lumbar spondylosis, and allergic rhinitis. Carpal tunnel

syndrome is an entrapment neuropathy of a peripheral nerve. See Dorland’s

5

Notably, at least two other circuits have declined to review an ALJ’s conclusory

determination at step three in an isolated manner separate from the rest of the

ALJ’s decision. Instead, these courts have upheld such determinations on the

basis of evidence and findings set out in connection with other steps in the

analysis. See Rice v. Barnhart , 384 F.3d 363, 370 & n.5 (7th Cir. 2004);

Jones v. Barnhart , 364 F.3d 501, 503-05 (3d Cir. 2004).

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Illustrated Medical Dictionary (Dorland’s), at 1212 (29th ed. 2000). Thus, carpal

tunnel syndrome falls under 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 11.14

(Peripheral neuropathies). Presumptive disability at step three requires

“disorganization of motor function as described in 11.04B in spite of prescribed

treatment,” i.e., “[s]ignificant and persistent disorganization of motor functions in

two extremities, resulting in sustained disturbance of gross and dexterous

movements.” Id.

The ALJ’s RFC findings at step four and five clearly reject any notion that

Claimant suffers from “persistent disorganization of motor functions in two

extremities.” See supra, at 5-6. Claimant can lift 20 pounds maximum and 10

pounds repeatedly, and grip 28 pounds on the right and 20 pounds on the left.

Claimant is restricted only from performing “repetitive alternating motions with

her hands, especially her right dominant hand.” Mindful that the purpose of the

listings is to identify impairments “severe enough to prevent a person from doing

any gainful activity,” 20 C.F.R. § 404.1525(a), the ALJ’s findings regarding the

functionality of Claimant’s upper extremities allow Claimant to perform a wide

range of gainful activities. In other words, the ALJ’s findings do not approach the

level of severity required to render Claimant presumptively disabled under

§ 11.14. 6 Indeed, the ALJ specifically discredited Claimant’s “allegations of hand

6

Similarly, Claimant’s condition could not equal the musculoskeletal listing

(continued...)

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or arm problems which significantly diminish her work capabilities,” due to the

absence of persistent complaints in the medical record.

Claimant’s lumbar spondylitis would fall under the listing for disorders of

the spine. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.04. The criteria for this

listing require nerve root compression resulting in limited range of motion and

motor loss with muscle weakness, id. § 1.04A; arachnoiditis with severe burning or

painful dysesthesia resulting in the need for postural changes more than once every

two hours, id. § 1.04B; or spinal stenosis resulting in the inability to ambulate

effectively, id. § 1.04C. Again, the ALJ’s RFC findings–particularly the finding

Claimant retains the primary postural capacities, i.e., sitting, standing, walking, for

sedentary, light, and even medium work, as well as the ability to lift at the light

RFC level and to stoop, crawl, crouch and kneel occasionally–conclusively negate

the possibility of any finding that Claimant is presumptively disabled under the

pertinent listing. See Social Security Ruling 83-10, 1983 WL 31251, at *5-*6.

Finally, the only listing potentially relevant to allergic rhinitis (hay fever) is

that for respiratory system impairments. See 20 C.F.R. Pt. 404, Subpt. P, App. 1,

6

(...continued)

for major dysfunction of an upper extremity peripheral joint, 20 C.F.R. Pt. 404,

Subpt. P, App. 1, § 1.02B, which requires the “inability to perform fine and gross

movements effectively as defined in 1.00B2c,” i.e., “an extreme loss of function

of both upper extremities . . . that interferes very seriously with the . . . ability to

independently initiate, sustain, or complete activities.”

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§§ 3.00 - 3.11. 7 This listing includes such conditions as chronic pulmonary

insufficiency, asthma, cystic fibrosis, pneumoconiosis, bronchiectasis, chronic

persistent infection of the lung, sleep-related breathing disorders, and lung

transplant, all of which are obviously far more serious than hay fever. More

importantly, the listing sets out exacting criteria, involving pulmonary function

limitations, blood-gas deficiencies, and episodes of intensive medical intervention

(typically hospitalization), that are simply not present in the medical record. 8

III.

In sum, the ALJ’s confirmed findings at steps four and five of his analysis,

coupled with indisputable aspects of the medical record, conclusively preclude

Claimant’s qualification under the listings at step three. No reasonable factfinder

could conclude otherwise. Thus, any deficiency in the ALJ’s articulation of his

reasoning to support his step three determination is harmless. Accordingly, the

7

The section on immune system listings directs that allergic disorders are to

be evaluated under the appropriate listing for the affected body system, here the

respiratory system. See 20 C.F.R. Pt. 404, Subpt. P, App.1, § 14.00(C)

8

We further note nothing in the medical evidence Claimant presented links her

impairments to one another or remotely suggests that her impairments, considered

in the aggregate, might satisfy a step three listing. See Angel v. Barnhart , 329

F.3d 1208, 1211-12 (10th Cir. 2003) (rejecting claimant’s argument that the

ALJ failed to consider her impairments “in combination”).

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judgment of the district court is REVERSED, and the underlying administrative

determination is AFFIRMED. 9

9

The Commissioner’s motion to include the parties’ briefs in the appendix is

denied as moot.

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