Fischer-Ross v. Barnhart

• Decision Date: 16 December 2005
• Docket Number: No. 04-3509.,04-3509.
• Citation: 431 F.3d 729
• Parties: Sharee L. FISCHER-ROSS, Plaintiff-Appellee, v. Jo Anne B. BARNHART, Commissioner of Social Security, Defendant-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

431 F.3d 729

Sharee L. FISCHER-ROSS, Plaintiff-Appellee, v. Jo Anne B. BARNHART, Commissioner of Social Security, Defendant-Appellant.

No. 04-3509.

United States Court of Appeals, Tenth Circuit.

December 16, 2005.

Submitted on the briefs:^* Pamela A. Kultgen, Assistant Regional Counsel, and Frank V. Smith, III, Chief Counsel, Social Security Administration, Region VII, Kansas City, MO; Eric F. Melgren, United States Attorney, and D. Brad Bailey, Assistant United States Attorney, Topeka, KS, for Defendant-Appellant.

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

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

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.

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, 110 S.Ct. 2658, 110 L.Ed.2d 563 (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 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, 107 S.Ct. 2287, 96 L.Ed.2d 119 (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 work in the national economy in view of her age, education, and work experience. See id. § 404.1520(g).

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 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 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, 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 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....