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.
-2-
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
-3-
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).
-5-
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.”
-6-
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.
-8-
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).
-11-
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”).
-14-
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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Fischer-Ross v. Barnhart
Court: Court of Appeals for the Tenth Circuit
Date filed: 2005-12-16
Citations: 431 F.3d 729
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