Baldwin v. Barnhart

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
February 14, 2006
FOR THE TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court

SHARON K. BALDWIN,

Plaintiff-Appellant,

v. No. 02-5117
(D.C. No. 01-CV-360-J)
JO ANNE B. BARNHART, (N.D. Okla.)
Commissioner of Social Security
Administration,

Defendant-Appellee.

ORDER AND JUDGMENT *

Before HARTZ, O’BRIEN, and McCONNELL, Circuit Judges.

Plaintiff-appellant Sharon K. Baldwin appeals from the order entered by the

district court affirming the Social Security Commissioner’s denial of her

application for supplemental security income (SSI) benefits under Title XVI of

*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and
collateral estoppel. The court generally disfavors the citation of orders and
judgments; nevertheless, an order and judgment may be cited under the terms and
conditions of 10th Cir. R. 36.3.
the Social Security Act. Exercising jurisdiction under 42 U.S.C. § 405(g) and

28 U.S.C. § 1291, we affirm.

I. Background.

After plaintiff’s application for SSI benefits was initially denied, a de novo

hearing was held before an administrative law judge (ALJ). In a decision dated

February 9, 1999, the ALJ went through the five-part sequential evaluation

process for determining disability and found: (1) that plaintiff’s back impairment,

while severe, does not meet or equal the step-three listing for vertebrogenic

disorders of the spine, Listing 1.05C, see 20 C.F.R. Pt. 404, Subpt. P, App. 1,

§ 1.05C (1998); 1
(2) that plaintiff has the residual functional capacity to perform

work at no greater than the light exertional level subject to no repetitive stooping

or twisting; (3) that plaintiff does not have the residual functional capacity to

perform her past relevant work; but (4) that plaintiff was not disabled during the

relevant time period because the Commissioner met her burden at step five of

showing that there are a significant number of jobs in the national economy that

plaintiff can perform despite her back impairment.

1
All citations herein to the Code of Federal Regulations are to the
regulations that were in effect at the time of the ALJ’s decision in February 1999.
We note that Listing 1.05 was revised and renumbered in 2002, and it is now
Listing 1.04. See 20 C.F.R. Pt. 404, Subpt. P., App. 1, § 1.04 (2002).

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 In March 2001, the Appeals Council denied plaintiff’s request for review of

the ALJ’s decision. Plaintiff then filed a complaint in the district court. In May

2002, the magistrate judge, sitting by consent of the parties and by designation of

the district court under 28 U.S.C. § 636(c), entered an order affirming the ALJ’s

decision denying plaintiff’s application for SSI benefits. This appeal followed.

II. Onset Date.

To be entitled to SSI benefits, plaintiff must show that she was disabled

between November 24, 1997, the date she filed her application for SSI benefits,

and February 9, 1999, the date of the ALJ’s decision. See 20 C.F.R. §§ 416.330,

416.335, and 416.1476(b)(1). In addition, under the controlling regulations, SSI

benefits cannot be awarded retroactively. Id., § 416.335; SSR 83-20, 1983 WL

31249, at *1, *7 (1983); Kepler v. Chater, 68 F.3d 387, 389 (10th Cir. 1995).

Consequently, November 24, 1997 was the earliest date that plaintiff could have

been eligible to receive SSI benefits. 2 Like the ALJ, however, we will examine

medical evidence generated prior to November 1997, “but only for purposes of

2
As noted by the ALJ, plaintiff filed a prior application for benefits, and that
application was denied on October 29, 1996. See Aplt. App., Vol. 2 at 17. The
ALJ therefore concluded that “[t]he beginning date for the [disability] period
under consideration . . . is October 30, 1996, the day after the date [plaintiff]
previously was denied benefits.” Id. The ALJ was mistaken, however, because,
under the controlling regulations, plaintiff cannot receive benefits for any period
prior to the filing of her application for SSI benefits. See Kepler , 68 F.3d at 389
(citing 20 C.F.R. § 416.335).

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establishing a baseline from which to evaluate [plaintiff’s] medical status.” Aplt.

App., Vol. 2 at 18.

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 III. Standard of Review.

Because the Appeals Council denied review, the ALJ’s decision is the

Commissioner’s final decision for purposes of this appeal. See Doyal v.

Barnhart, 331 F.3d 758, 759 (10th Cir. 2003). In reviewing the ALJ’s decision,

“we neither reweigh the evidence nor substitute our judgment for that of the

agency.” Casias v. Sec’y of Health & Human Servs., 933 F.2d 799, 800 (10th Cir.

1991). Instead, we review the ALJ’s decision only to determine whether the

correct legal standards were applied and whether the ALJ’s factual findings are

supported by substantial evidence in the record. See Doyal, 331 F.3d at 760.

IV. Analysis.

In this appeal, plaintiff claims the ALJ erred at step three in determining

that her back impairment did not meet or equal Listing 1.05C. She also claims the

ALJ erred at step five by failing to consider hand problems from which she

allegedly suffers, and the related physical limitations, in combination with her

back impairment, and by failing to propound a hypothetical question to the

vocational expert that included her hand limitations. Having reviewed the ALJ’s

decision to determine whether his factual findings are supported by substantial

evidence and whether he applied the correct legal standards, we conclude that

plaintiff’s claims are without merit.

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 A. Listing 1.05C and the ALJ’s Step-Three Finding.

Listing 1.05C provides as follows:

C. Other vertebrogenic disorders (e.g., herniated [disk], spinal
stenosis) with the following persisting for at least 3 months
despite prescribed therapy and expected to last 12 months.
With both 1 and 2:

1. Pain, muscle spasm, and significant limitation of motion in
the spine; and

2. Appropriate radicular distribution of significant motor loss
with muscle weakness and sensory and reflex loss.

20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.05C.

Plaintiff has the “step three burden to present evidence establishing her

impairments meet or equal listed impairments.” Fischer-Ross v. Barnhart,

431 F.3d 729, 733 (10th Cir. 2005). To satisfy this burden, plaintiff must show

that her back impairment “meet[s] all of the specified medical criteria. An

impairment that manifests only some of those criteria, no matter how severely,

does not qualify.” Sullivan v. Zebley, 493 U.S. 521, 530 (1990). In addition, the

determination of whether plaintiff’s back impairment meets or equals Listing

1.05C must be based solely on medical findings. See Kemp v. Bowen, 816 F.2d

1469, 1473 (10th Cir. 1987); 20 C.F.R. §§ 416.925-26. As we have explained, at

step three,

the ALJ must determine that the “medical findings” are at least equal
in severity and duration as those in the listed findings. 20 C.F.R.
§ 404.1526(a). “Medical findings” include symptoms (the claimant’s

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 own description of his impairments), signs (observations of
anatomical, physiological and psychological abnormalities which are
shown by clinical diagnostic techniques) and laboratory findings.
20 C.F.R. § 404.1528 . . . . However, the claimant’s descriptions,
alone, are not enough to establish a physical or mental impairment.
Id. at § 404.1528(a).

Bernal v. Bowen, 851 F.2d 297, 300 (10th Cir. 1988); see also 20 C.F.R.

§ 416.926(b) (stating that the Commissioner “will always base [the] decision

about whether [a claimant’s] impairment[] is medically equal to a listed

impairment on medical evidence only”).

The ALJ found that plaintiff’s lumbar spine impairment did not meet or

equal Listing 1.05C “because the objective medical evidence does not show all of

the required neurological deficits.” Aplt. App., Vol. 2 at 21. Relying on our

decision in Clifton v. Chater, 79 F.3d 1007, 1009-10 (10th Cir. 1996), plaintiff

argues that the ALJ’s step-three finding constitutes reversible error because he

did not discuss the evidence in the administrative record that supports his finding.

We agree with plaintiff that the ALJ should have discussed the medical evidence

in the record that supports his step-three finding. Under the circumstances of this

case, however, there is no reversible error.

First, the situation here is a far cry from the situation in Clifton where the

ALJ did not “even identify the relevant Listing or Listings; he merely stated in a

summary conclusion that appellant’s impairments did not meet or equal any Listed

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Impairment.” Clifton, 79 F.3d at 1009. Instead, in this case, we have a specific

step-three finding by the ALJ.

Second, although the ALJ’s finding is expressed in terminology which does

not precisely mirror the terminology used in Listing 1.05C, it is clear the ALJ

directly addressed the specific medical criteria that is set forth in the listing.

Specifically, in referring to a lack of “the required neurological deficits,” we have

no doubt the ALJ was addressing whether plaintiff suffered from “[a]ppropriate

radicular distribution of significant motor loss with muscle weakness and sensory

and reflex loss.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.05C(2); see also The

Merck Manual of Diagnosis and Therapy, § 14 at 1490 (17th ed. 1999)

(discussing “objective neurologic deficits (weakness, sensory deficit)” that can be

caused by lumbar spine radiculopathies). 3 Thus, unlike in Clifton, this case does

not involve “a bare conclusion [that] is beyond meaningful judicial review.”

Clifton, 79 F.3d at 1009. To the contrary, the ALJ’s decision contains “an

explicit, definitive basis for rejection of the listing[].” Fischer-Ross, 431 F.3d at

734.

3
“Radiculopathy” is a “[d]isorder of the spinal nerve roots.” Stedman’s
Medical Dictionary at 1503 (27th ed. 2000); see also The Merck Manual , § 14
at 1488 (“Nerve root dysfunction, which is usually secondary to chronic pressure
or invasion of [a spinal nerve] root, causes a characteristic radicular syndrome of
pain and segmental neurologic deficit.”).

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 Finally, as set forth below, the ALJ’s step-three finding is supported by

substantial medical evidence in the record, and the most important evidence is

contained in the medical records of plaintiff’s treating orthopedist, Dr. Mark A.

Hayes. Although the ALJ did not address a significant part of Dr. Hayes’ medical

records in his decision (specifically, the medical records from August and

September 1998), the ALJ noted that Dr. Hayes “is the . . . treating physician who

performed [plaintiff’s back] surgery and then treated her,” Aplt. App., Vol. 2 at

20, and the ALJ stated that he was “giv[ing Dr. Hayes’] medical opinions full

weight,” id. As a result, unlike in Clifton, the ALJ in this case specifically

adopted medical opinions that support his step-three finding. Moreover, for

purposes of this appeal, it does not matter that the ALJ referred to Dr. Hayes’

opinions outside of the context of his step-three analysis. Cf. Fischer-Ross,

431 F.3d at 734 (“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.”).

B. Substantial Evidence Review.

Although Listing 1.05C does not define the term “vertebrogenic disorders,”

the listing begins by specifically referring in parenthesis to two such disorders:

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a herniated spinal disk and spinal stenosis. 4 In addition, another section of the

listing regulations states that “vertebrogenic disorders . . . result in impairment

because of distortion of the bony and ligamentous architecture of the spine or

impingement of a herniated [disk] or bulging annulus on a nerve root.”

20 C.F.R. Pt. 404, Subpt. P, App. 1, § 1.00B (emphasis added). For purposes of

this case, we are dealing with an alleged vertebrogenic disorder of the latter type.

As a result, the specific issue before the ALJ was whether plaintiff suffered

during the relevant time frame from a spinal “[ne]rve root dysfunction . . . [that

was causing] a characteristic radicular syndrome of pain and segmental neurologic

deficit.” The Merck Manual, § 14 at 1488.

We conclude that there is substantial medical evidence in the administrative

record to support the ALJ’s finding that plaintiff did not suffer from radicular

neurological deficits caused by an impingement of a spinal nerve root during the

relevant time frame. Most importantly, while there is no question that plaintiff

suffered from a herniated lumbar disk at the time Dr. Hayes and Dr. Kosmoski, a

neurosurgeon, performed surgery on her lumbar spine in February 1996, see Aplt.

App., Vol. 2 at 154, 155, 101, 103, 150, 105-06, 107-08, 111-13, 109-10, neither

4
In 1995, an MRI scan of plaintiff’s lumbar spine showed no evidence of
any spinal stenosis, see Aplt. App., Vol. 2 at 155, and there is no indication in
plaintiff’s medical records that she suffered from spinal stenosis during the
relevant time frame.

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Dr. Hayes nor Dr. Kosmoski diagnosed plaintiff as suffering from radicular

neurological deficits, either before or after the surgery.

Prior to plaintiff’s surgery, Dr. Hayes reported that she had “no motor

deficits.” Id. at 156. He also reported that, although an “MRI scan showed

possibility of a protruding disk herniation in the midline at L4-5,” plaintiff’s

“primary complaint of pain is discogenic rather than radicular.” Id. at 154.

Dr. Hayes thus concluded that he “felt her pain was discogenic rather than

radicular in character.” Id. at 105. Similarly, in the consultation report that he

prepared prior to plaintiff’s surgery, Dr. Kosmoski reported that there was “no

evidence of radicular findings.” Id. at 107.

While plaintiff underwent a second surgical procedure in February 1997,

the second surgery had nothing to do with a herniated disk or any related radicular

syndrome or disorder. Instead, Dr. Hayes performed the second surgery due to

the fact that plaintiff had developed “postoperative bursitis” in the area where the

first surgery had been performed, and she therefore needed to have the

“hardware” that was implanted in her spine during the first surgery removed. Id.

at 143, 129-30, 131-32, 128. The record also indicates that the second surgery

was successful. In fact, in March 1997, Dr. Hayes reported that plaintiff

“seem[ed] to be doing quite well,” and he released her from his care, stating only

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that she had “limitations of no lifting or carrying of over 40 to 50 pounds and no

repetitive lifting of over 40 to 50 pounds.” Id. at 139.

Subsequently, in August 1998, Dr. Hayes noted that plaintiff’s condition

had worsened since her release from his care in March 1997, and he reported that

she had “motor deficits new from her last visit,” id. at 194, which included

“persistent dysesthesia down the leg, right and left,” id. at 193. Despite these

symptoms, however, an MRI scan taken at the time “show[ed] no recurrent disc

herniation.” Id. In addition, although Dr. Hayes expressed concern in August

1998 about a possible “neurological lesion,” id., plaintiff’s subsequent

neurological evaluation, which included an electromyogram and a nerve

conduction study, “[came] back satisfactory,” id. at 192. Dr. Hayes thus

concluded that “[n]o further surgical treatment [was] necessary.” Id.

To support her challenge to the ALJ’s listing finding, plaintiff is also

relying on medical evidence that was generated after the ALJ issued his decision.

Specifically, on March 4, 1999, less than a month after the ALJ issued his

decision denying benefits, plaintiff was examined by Dr. Hastings, an internist,

and an “internist evaluation” from Dr. Hastings dated March 8, 1999 was

submitted to and considered by the Appeals Council. Id. at 7, 9, 11, 215-19. In

his evaluation, Dr. Hastings reported that plaintiff’s back problems had worsened

“over the last three to four months,” id. at 218, and he noted that plaintiff was

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complaining of radicular symptoms, including “burning, tingling and paresthesias

into the lower extremities bilaterally,” id. at 217. Plaintiff was also complaining

“of weakness with her legs going out and difficulty ambulating.” Id.

“After taking a history, reviewing available medical records, and

performing a physical examination of [plaintiff],” Dr. Hastings stated that it was

his “medical opinion that [plaintiff] should undergo further diagnostic testing

regarding [her] radicular symptomatologies.” Id. at 219. Dr. Hastings therefore

recommended that plaintiff “undergo further testing to include a CT myleogram

and/or an awake lumbar discogram to determine whether or not [she] does in fact

have radiculopathy as a result of a persistent disc injury.” Id. The administrative

record does not contain any records pertaining to such testing, however.

Consequently, for purposes of this case, Dr. Hastings’ concern about plaintiff’s

“radicular symptomatologies” was never confirmed by objective medical

evidence. Quite to the contrary, as he explicitly noted in his evaluation, Dr.

Hastings was still in the process of trying to confirm “whether or not [she] does in

fact have radiculopathy.” Id. Thus, having considered Dr. Hastings’ March 8,

1999 evaluation as “part of the administrative record to be considered when

evaluating [the ALJ’s] decision for substantial evidence,” O’Dell v. Shalala ,

44 F.3d 855, 859 (10th Cir. 1994), we conclude that the evaluation is insufficient

to support a remand on the step-three listing issue.

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 C. Alleged Hand Limitations.

In March 1998, plaintiff was examined by a consulting examiner,

Dr. Dalessandro, a general practitioner, and he found that both her right and left

hands had a grip strength of fourteen kilograms. See Aplt. App., Vol. 2 at 164.

Based on a medical article from The Journal of Hand Surgery that was not before

the ALJ or the Appeals Council, but that she attached to her district court brief,

see R., Doc. 16, plaintiff argues that Dr. Dalessandro’s finding translates into a

grip strength that “is from 38% to 41% of a normal female’s grip strength,” Aplt.

Opening Br. at 27. Plaintiff also testified at the hearing before the ALJ that she

experiences numbness in her hands on a daily basis, and that she “can’t lift very

much with these hands. Not like I used to.” Aplt. App., Vol. 2 at 227.

Plaintiff claims that “her hand limitations, as evidenced by the reduced grip

strength bilaterally, . . . constitute[] a ‘severe’ impairment at step two (2) of the

sequential analysis.” Aplt. Opening Br. at 25-26. She further claims that “[t]he

ALJ ignored the importance of [her] hand impairments as an additional

impairment that would impact negatively upon her ability to work.” Id. at 25.

Plaintiff also claims that, even if her hand limitations do not qualify as a severe

impairment at step two of the evaluation process, the ALJ was still required to

consider her hand limitations in combination with her back impairment in

determining if she was disabled.

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 We conclude that the ALJ did not err in failing to consider plaintiff’s

alleged hand limitations in combination with her back impairment. To begin

with, as pointed out by the ALJ, “there is no objective medical evidence [in the

record] showing a complaint of or treatment for numbness in the hands.” 5 Aplt.

App., Vol. 2 at 20. In addition, there is no objective medical evidence in the

record supporting plaintiff’s claim that her grip strength limits her ability to

perform the jobs identified by the ALJ at step five of the evaluation process. 6

In her opening brief, plaintiff cites to medical records of Dr. Cochran, the

orthopedic surgeon who removed a ganglion cyst from her right wrist in 1996,

claiming that the records document the pain associated with the cyst and the fact

that the cyst was irritating sensory nerves. See Aplt. Opening Br. at 26-27. But

the medical records of Dr. Cochran that plaintiff is relying on relate to the period

before she had the cyst surgically removed, see Aplt. App., Vol. 2 at 121-22, 126,

and she has made no showing that any of the problems persisted after the surgery.

5
The medical records from the Green Country Free Clinic, which were not
before the ALJ, but were reviewed by the Appeals Council, see Aplt. App., Vol. 2
at 7, 9, 10, indicate that plaintiff complained of right wrist, elbow, arm, and
shoulder pain in October 1998, id. at 196. The records do not contain any
specific medical findings by the physicians who treated plaintiff for these
complaints, however. Instead, the records state only that she had “[p]ossible . . .
Carpel Tunnel.” Id.
6
In fact, in the “Hand/Wrist Sheet” that he completed in March 1998,
Dr. Dalessandro reported that plaintiff could manipulate small objects and
effectively grasp tools. See Aplt. App., Vol. 2 at 167.

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In fact, the last medical record from Dr. Cochran, which is dated January 20,

1997, states that plaintiff was “doing well . . . . [with] no signs of re-occurrence

at this point. No return appointments made.” Id. at 125.

Finally, plaintiff is correct that the ALJ must “consider the combined effect

of all of [a claimant’s] impairments without regard to whether any such

impairment, if considered separately, would be of sufficient severity.” 20 C.F.R.

§ 416.923. The problem here, however, is that plaintiff has overlooked the

threshold requirement that “[a] physical . . . impairment must be established by

medical evidence consisting of signs, symptoms, and laboratory findings, not only

by [the claimant’s] statement of symptoms.” Id., § 416.908. Because plaintiff’s

subjective claims regarding the physical limitations caused by her alleged hand

problems are not supported by any objective medical evidence, the ALJ did not

err in failing to consider her hand problems as an impairment, and he was not

required to consider the alleged hand limitations in combination with plaintiff’s

back impairment. For the same reason, the ALJ was not required to include the

alleged hand limitations in the hypothetical question he posed to the vocational

expert. See Decker v. Chater, 86 F.3d 953, 955 (10th Cir. 1996) (holding that

hypothetical questions to vocational experts “need only reflect impairments and

limitations that are borne out by the evidentiary record”).

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The judgment of the district court is AFFIRMED.

Entered for the Court

Terrence L. O’Brien
Circuit Judge

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