Butts v. Barnhart

• Decision Date: 03 November 2004
• Docket Number: No. 03-6115.,03-6115.
• Parties: William E. BUTTS, Plaintiff-Appellant, v. Jo Anne B. BARNHART, Commissioner of Social Security, Defendant-Appellee.
• Court: U.S. Court of Appeals — Second Circuit

388 F.3d 377

William E. BUTTS, Plaintiff-Appellant, v. Jo Anne B. BARNHART, Commissioner of Social Security, Defendant-Appellee.

No. 03-6115.

United States Court of Appeals, Second Circuit.

Argued: January 7, 2004.

Decided: November 3, 2004.

Appeal from the United States District Court for the Northern District of New York, Lawrence E. Kahn, J.

COPYRIGHT MATERIAL OMITTED

Eugene D. Faughnan, Hinman, Howard & Kattell, Binghamton, New York, for Plaintiff-Appellant.

Sixtina Fernandez, Assistant Regional Counsel, Social Security Administration (Lisa de Soto, General Counsel, Barbara L. Spivak, Chief Counsel—Region II, of counsel), for Defendant-Appellee.

Before: WINTER, JACOBS, and STRAUB, Circuit Judges.

WINTER, Circuit Judge.

William E. Butts appeals from Judge Kahn's order remanding Butts' claim for disability benefits to the Social Security Commissioner. The remand directs further proceedings pursuant to "sentence four" of 42 U.S.C. § 405(g) to determine whether adequate jobs exist in the national economy that Butts could perform. Butts asks us to remand only for a calculation of benefits because the Commissioner failed to sustain her burden of showing through the testimony of a vocational expert that there are jobs in the national economy that Butts could perform. The Commissioner agrees that a vocational expert was needed but argues that remand for an evidentiary hearing was within the district court's discretion. We hold that a district court's "sentence-four-remand order" is subject to review for abuse of discretion, that the district court did not abuse its discretion, but that any further proceedings must be completed within a time limit.

BACKGROUND

Butts is a high-school graduate who worked as an ironworker for a steel fabrication company from 1971 until September 30, 1991. At that time he suffered an injury to his back while lifting a heavy piece of steel on the job. Butts has since been treated for back and back-related problems by a host of doctors and has been diagnosed with a number of back conditions, including degenerative disk disease, congenital spinal stenosis, mild displacement of nerve root from disk bulging, moderate thecal sac compression, mild-to-moderate neural foraminal stenosis, mild intermittent radiculitis, and chronic lumbar syndrome and radiculopathy. Butts' problems began to subside in 1993, and a scheduled surgery was cancelled. However, Butts re-injured himself in 1995, and his condition again worsened. Butts' most recent physician, Dr. Kamlesh S. Desai, diagnosed Butts with chronic lumbar syndrome, intermittent left L-4 radiculopathy, and disc degeneration at L5-S1 and L4-5 with facet arthropathy.

Butts' job as an ironworker involved lifting up to 100 pounds on a regular basis. His doctors now agree that he can lift no more than half that weight and only from time to time. Based on his diagnoses in 1997 and 1998, Dr. Desai also placed Butts on permanent restrictions, directing him to "[a]void heavier bending, lifting, and twisting activities, prolonged sitting and prolonged driving, as well as prolonged standing in one position."

Butts filed his first application for Social Security disability benefits in May, 1996. The application was denied both upon initial determination and upon reconsideration. Butts filed a request for an administrative hearing in connection with the denial of his claim but later withdrew that request. On January 1, 1998, Butts filed an amended application for disability insurance benefits. This application was also denied both upon initial determination and upon reconsideration. Butts again requested a hearing before an administrative law judge ("ALJ"). At the hearing on January 6, 1999, Butts, then 49 years old, testified that he has trouble standing and sitting for long periods of time and experiences sharp pains while bending and lifting objects. The ALJ denied Butts' claim.

In his decision, the ALJ undertook the mandatory five-step sequential evaluation process for evaluating disability determinations. See 20 C.F.R. § 416.920. The ALJ first found that Butts had not engaged in substantial gainful employment since the onset of his impairment. Second, after reviewing the medical evidence, the ALJ concluded that Butts'"back condition has resulted in a significant restriction of his ability to perform basic work activities" therefore constituting a "`severe' impairment." Third, the ALJ determined that Butts' impairment did not qualify under the Social Security Act's "Listing of Impairments" in Appendix 1 to Subpart P of Section 404 of the Act. Had the ALJ found otherwise, Butts would have been deemed disabled without reference to vocational factors such as age, education, or work experience.

However, because Butts' impairment did not qualify as a listed impairment under Appendix 1, the ALJ moved to step four of the sequential evaluation to determine Butts' residual functional capacity for his work as an ironworker. Residual functional capacity involves the range of work activities Butts could still perform despite his impairment. Social Security regulations direct the ALJ to consider both objective medical evidence and any other evidence, including statements and reports from Butts and his physicians, relevant to how his impairments and related symptoms affect his ability to work. See 20 C.F.R. § 404.1529. The ALJ reviewed Butts' testimony, the diagnoses and treatment recommendations of his physicians, and the opinion of a state agency review physician. The state agency physician, while not an examining physician, evaluated the evidence and opined that Butts could frequently lift ten pounds, could sit and/or stand for a total of six hours in an eight hour work day, could occasionally climb and balance, but could never stoop, kneel, crouch or crawl.

The ALJ concluded that although Butts could no longer perform his prior heavy lifting work—which includes "exertional" activities—he retained the residual functional capacity for the full range of light work—which includes "nonexertional" activities such as bending, kneeling, crouching, and crawling—as well as for sedentary work.¹ In reaching this conclusion the ALJ relied principally upon the state agency review physician's opinion which it found to be supported by the opinions of Butts' treating physicians. Based on Butts' residual functional capacity to perform at most light work, the ALJ determined at step four of the sequential evaluation that Butts was incapable of returning to his former occupation as an ironworker.

At step five, the burden shifts to the Commissioner to show that there were a significant number of jobs in the national economy that Butts could perform based on his residual functional capacity, age, education, and prior vocational experience. See 20 C.F.R. § 404.1560. However, the Commissioner is not represented at an administrative hearing; rather, the ALJ marshals the evidence and makes the relevant determination. See Seavey v. Barnhart, 276 F.3d 1, 8 (1st Cir.2001) (citing Sims v. Apfel, 530 U.S. 103, 110, 120 S.Ct. 2080, 147 L.Ed.2d 80 (2000)). In Butts' case, the ALJ used criteria from the Social Security Act's table of medical-vocational guidelines, referred to as "grid rules" or "grids," to conclude that Butts was capable of performing other jobs existing in significant numbers in the national economy and therefore did not meet the requirements for disability status. The ALJ did not call a vocational expert to testify as to Butts' ability to perform other jobs but relied exclusively on the grid rules. Butts filed a request for review of the ALJ's decision. On December 8, 2000, the Appeals Council denied Butts' request for review, thus rendering the ALJ's decision the final decision of the Commissioner of Social Security in Butts' case.

On January 24, 2001, Butts commenced the present action. Magistrate Judge Homer issued a report and recommendation on December 2, 2002, finding that according to Butts' physicians, he was capable of returning to work, but not to his prior heavy work. Specifically, the magistrate judge found that Butts was limited to jobs where he did not have to bend, twist, stoop, kneel, crouch, crawl or lift heavy objects, and where he could alternate between sitting or standing and walking. On this basis, the magistrate judge held that substantial evidence supported the Commissioner's determination that Butts was able to perform the full range of light and sedentary work. However, because Butts has non-exertional impairments that limit his exertional capabilities, the magistrate judge found that the ALJ erred by relying on the grids and concluded that a vocational expert should have been utilized to determine whether jobs exist in the national economy that Butts is capable of performing. The magistrate judge then recommended a remand for further consideration.

The district court adopted the magistrate judge's recommendation. The district court found that while Butts could perform sedentary work, the medical evidence of his limitations such as his inability to bend, twist, stoop, kneel, etc., and the need for him to alternate between sitting and standing, did not support a finding that he could perform the full range of light work.² The district court took particular issue with the ALJ's selective reliance on physicians' reports from only the period before Butts re-injured himself, with the ALJ's incomplete and cursory consideration of more recent treating physicians' reports, and with the ALJ's reliance on the state agency reviewing physician's opinion, which the district court found to be internally inconsistent. The district court agreed with the magistrate judge that the ALJ's application of the grids was inappropriate, and that "given the uncertain state of the record with regard to the availability of jobs in the national economy specific to Butts' limitations ... remand and not reversal is warranted."³ Accordingly, the district court...