Myers v. Apfel, 99-31403

• Decision Date: 11 January 2001
• Docket Number: No. 99-31403,99-31403
• Citation: 238 F.3d 617
• Parties: (5th Cir. 2001) CINDY T. MYERS, Plaintiff-Appellant, v. KENNETH S. APFEL, COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee
• Court: U.S. Court of Appeals — Fifth Circuit

Page 617

238 F.3d 617 (5th Cir. 2001)

CINDY T. MYERS, Plaintiff-Appellant, v. KENNETH S. APFEL, COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee.

No. 99-31403

UNITED STATES COURT OF APPEALS, Fifth Circuit

January 11, 2001

Appeal from the United States District Court For the Western District of Louisiana.

Before REYNALDO G. GARZA, STEWART, and DENNIS, Circuit Judges.

PER CURIAM:

Cindy Myers filed an application for disability benefits under Title II of the Social Security Act, 42 U.S.C. §§ 401-403. After a hearing, an ALJ denied her claim, and the district court subsequently affirmed the decision. For the following reasons, we reverse the decision of the district court and remand for further proceedings consistent with this opinion.

I. Facts and Procedure

Cindy Myers worked as a stagehand when she injured her back in January of 1986. Prior to that job, she had worked as a clerk and as a secretary. She was treated by Dr. Mark Hontas, an orthopedic professor, for back pain; he diagnosed back strain and recommended physical therapy. Myers's back pain increased after she was in a car accident in September of 1986. In 1988, Dr. Ray Haddad, chairman of orthopedic surgery at Tulane Medical Center Hospital and Clinic, treated Myers and diagnosed L5-S1 radiculopathy (a disease of the nerve roots in the back) and lytic lesion in the left hip. He recommended that she lose weight, and if the pain did not subside, he recommended surgery, which Myers refused. A February 1988 MRI revealed a ruptured disc, and Dr. Haddad again suggested surgery.

On September 28, 1988, Dr. Frank Kriz, an orthopedist, diagnosed low back strain and a bulging, but not ruptured, disc. He discharged Myers on December 6, 1988, giving her a five-percent disability rate and recommending that she see a psychiatrist, from whom she received antidepressants. Myers worked as a receptionist for three-month intervals in 1989 and 1990. On June 30, 1990, Myers, then thirty-three years old, was last insured for disability benefits.

In February of 1993, following another car accident, Myers saw Dr. William Johnston, and a second MRI showed degenerative disc disease. Dr. Johnston diagnosed chronic pain syndrome and referred Myers to a physical medicine specialist, who diagnosed sacroiliac dysfunction (an unlevel pelvis from overstretched ligaments). In 1994, Myers was treated by Dr. Vanda Davidson, an orthopedist. Using the results from Drs. Hontas, Haddad, and Johnston, Dr. Davidson concluded Myers could lift ten pounds occasionally, lift one pound frequently, stand two hours out of the day for ten minutes at a time, and sit four hours out of the day for thirty minutes at a time. Her ability to reach and to push and pull would be affected.

Myers filed an application for disability benefits on May 26, 1994. After she was denied benefits, she was granted a hearing before an ALJ. Dr. Rufus Craig, an internist, was called as a medical expert (ME) by the ALJ. Without examining Myers and based only on a review of her medical records, Dr. Craig testified that Myers could not squat, stoop, or bend, but could sit six hours of eight, stand and walk two hours of eight, and occasionally lift ten pounds. Her "emotional overlay" would also limit her work. A vocational expert (VE) also testified. The VE said there were no jobs for claimants Myers's age with her education and experience who could sit for up to six hours a day, stand and walk for two hours, lift up to ten pounds, but who could not squat, stoop, bend, or kneel. However, he believed that a claimant who could not squat or crawl but who could stoop and bend in limited amounts and occasionally kneel could perform sedentary work. Responding to a hypothetical in which a person could sit for only thirty minutes at a time, the VE testified that jobs would be very limited, and when asked about a person who could stand for only ten minutes at a time and who could sit for only thirty minutes at a time (i.e., Dr. Davidson's conclusion about Myers), he said there would be no jobs at all. Finally, Myers testified that she had lower back pain and numbness and that sitting was painful.

The ALJ found that Myers was not disabled and that although she was unable to return to her prior work on June 30, 1990 (the date when her insured status expired), she could make an adjustment to sedentary work. He concluded that Myers had a severe impairment, but that she could perform some sedentary work. The ALJ focused on the following evidence: Myers had mild scoliosis and no objective evidence of pain in 1986; x-rays looked normal, but then a lesion was discovered in 1987; there was possible evidence of a sequestrated disc in 1988, but Myers refused surgery;¹ she can cook, shower, do household chores, watch television, and shop; records from Dr. Kriz showed maximum improvement; and Dr. Johnston only noted a minimal bulge and no evidence of cord or root compression. Using the VE's testimony regarding a claimant who could not squat or crawl, could sometimes kneel, could occasionally crawl, and would need to stretch every half-hour, the ALJ concluded a significant number of jobs did exist which Myers could hold.

Myers filed suit in the district court, but the court affirmed, finding that the VE and ME's testimony as well as Myers's own testimony were substantial evidence to support the decision of the ALJ.

II. Standard of review

"We review the Secretary's decision only to determine whether it is supported by substantial evidence on the record as a whole and whether the Secretary applied the proper legal standard." Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994) (citing 42 U.S.C. §§ 405(g), 1383(c)(3)). "Substantial evidence is 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Id. (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)) (in turn citing Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). "In applying the substantial evidence standard, we scrutinize the record to determine whether such evidence is present. We may not reweigh the evidence, try the issues de novo, or substitute our judgment for that of the Secretary." Id. (citing Haywood v. Sullivan, 888 F.2d 1463, 1466 (5th Cir. 1989)).

III. Discussion

To determine disability, the Commissioner uses a five-step analysis:

The first two steps involve threshold determinations that the claimant is not presently engaged in substantial gainful activity and has an impairment or combination of impairments which significantly limits his physical or mental ability to do basic work activities. In the third step, the medical evidence of the claimant's impairment(s) is compared to a list of impairments presumed severe enough to preclude any gainful activity. If the claimant's impairment matches or is equal to one of the listed impairments, he qualifies for benefits without further inquiry. If the person cannot qualify under the listings, the evaluation proceeds to the fourth and fifth steps. At these steps, analysis is made of whether the person can do his own past work or any other work that exists in the national economy, in view of his age, education and work experience. If he cannot do his past work or other work, the claimant qualifies for benefits.

Loza v. Apfel, 219 F.3d 378, 390 (5th Cir. 2000) (internal citations omitted). The claimant bears the burden of proof on the first four steps, but the Commissioner bears the burden on the fifth step. Greenspan, 38 F.3d at 236 (citing Bowen v Yuckert, 482 U.S. 137, 146 n.5 (1987)). The Commissioner found Myers not disabled based on the fifth step because she could adjust to sedentary work. Myers argues on appeal that the ALJ failed to address the specific strength requirements of this work.

The Social Security Administration's rulings are not binding on this court, but they may be consulted when the statute at issue provides little guidance. B.B. ex. rel. A.L.B. v. Schweiker, 643 F.2d 1069, 1071 (5th Cir. 1981). The Fifth Circuit has frequently relied upon the rulings in evaluating ALJs' decisions. See Newton v. Apfel, 209 F.3d 448, 456 (5th Cir. 2000)(relying on SSR 96-2p); Scott v. Shalala, 30 F.3d 33, 34 (5th Cir. 1994)(relying on SSR 83-12); Spellman v. Shalala, 1 F.3d 357, 362 (5th Cir. 1993)(relying on SSR 83-20).

The following rulings are relevant to this dispute. First, SSR 96-8p provides that a residual functional capacity (RFC) "is an assessment of an individual's ability to do sustained work-related physical and mental activities in a work setting on a regular and continuing basis." 1996 WL 374184, *1 (S.S.A. 1996). "A 'regular and continuing basis' means 8 hours a day, for 5 days a week, or an equivalent work schedule." Id. at *2. "The RFC assessment is a function-by-function assessment based upon all of the relevant evidence of an individual's ability to do work-related activities." Id. at *3. "However, without the initial function-by-function assessment of the individual's physical and mental capacities, it may not be possible to determine whether the individual is able to do past relevant work . . . ." Id. RFC involves both exertional and nonexertional factors. Exertional capacity involves seven strength demands: sitting, standing, walking, lifting, carrying, pushing, and pulling. Id. at *5. "Each function must be considered separately." Id. "In assessing RFC, the adjudicator must discuss the individual's ability to perform sustained work activities in an ordinary work setting on a regular and continuing basis . . . ." Id. at *7. The RFC assessment must include a resolution of any inconsistencies in the evidence. Id.

Second, SSR 96-9p also provides that

[i]nitially, the RFC assessment is a function-by-function assessment based upon all of the relevant...