IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-30382
DONNELL WATSON,
Plaintiff-Appellant,
v.
JO ANN B. BARNHART, COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
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Appeal from the United States District Court
for the Eastern District of Louisiana
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April 8, 2002
Before EMILIO M. GARZA, BENAVIDES and STEWART, Circuit Judges.
BENAVIDES, Circuit Judge:
Donnell Watson appeals the district court’s dismissal of his
42 U.S.C. § 405(g) lawsuit, seeking review of the Administrative
Law Judge’s denial of disability benefits and supplemental
security income.
FACTUAL AND PROCEDURAL BACKGROUND
On April 17, 1997, Donnell Watson filed an application for
Title II disability benefits and Title XVI supplemental security
income, alleging that due to a back injury he was unable to work
after June 5, 1996. A hearing on the application before the
Administrative Law Judge (“ALJ”) resulted in a denial of benefits.
Watson requested an appeal with the Appeals Council, which was
denied, and ultimately filed a complaint seeking judicial review.
At the time of the hearing before the ALJ, Watson was 51 and
had a high school education. Most of his work experience was as a
laborer and highway construction worker. Watson injured his back
in a work-related accident, while carrying some pieces of iron. He
alleged that the accident left him in pain, and unable to return to
his work as a laborer.
The medical evidence regarding Watson’s injuries is somewhat
inconsistent. Early examinations did not find any significant
problems except for some lower back distress that was resolving.
Lumbar x-rays taken in May 1997 showed that he had mild
degenerative disc disease of the lumbar spine and probable early
degenerative changes of the hip joints. An MRI taken in October
1997 showed a broad-based disc protrusion at the L4-5 level, with
bilateral recess compromise and nerve root contact.
One orthopaedist, Dr. Allen Johnston (“Dr. Johnston”),
reviewed the MRI in March 1998 and found that it showed “clinically
significant disc herniation.” Dr. Johnston opined that the disc
herniation would probably cause pain, and that Watson should avoid
repetitive bending or twisting at the waist, should not work at
unprotected heights, should not lift or carry more than 15-20
pounds, and should not stand or sit for greater than 25 to 30
minutes without being allowed to change positions for 5 minutes.
2
Another orthopaedist, Dr. Lawrence Messina (“Dr. Messina”),
examined Watson in February 1998. Dr. Messina found that Watson
had degenerative disc disease and that he had restrictions in
bending, sitting for long periods of time, and standing still for
long periods of time. However, Dr. Messina sent Watson to physical
therapy, opining that Watson could be appropriately rehabilitated
and returned to gainful employment with minimal restrictions.
During physical therapy, Watson reported alleviation of pain
in his left leg, and only slight residual lower back pain. Watson
was able to increase the resistance in his back extension exercises
from eighty to one hundred and fifty pounds.
Dr. Messina has testified that his examination of Watson did
not reveal any objective abnormalities in his lower back, and that
the majority of Watson’s problems were caused by the degenerative
process in his back. He disagreed with Dr. Johnston’s conclusion
that the MRI showed a significantly herniated disc, but agreed with
Dr. Johnston’s assessment that Watson would have to avoid bending
and standing for long periods of time. He also testified that
Watson’s progression in physical therapy indicated that he could
lift more than fifteen pounds, though he would not recommend
lifting one hundred and fifty pounds.
Watson’s own testimony regarding his injuries indicated at
different points that he could stand for fifteen to twenty minutes
without pain, and that he could stand for a “good while, maybe
hours.” He testified that he could lift thirty to forty pounds
3
continuously and fifty pounds before it started hurting too much,
and that he could lift two or three gallons of milk at a time (the
ALJ noted that a gallon weighed 17 pounds). He also stated that he
suffered from excruciating pain in his lower back and left leg, and
that the pain had gotten worse since his injury, but that he
experienced some improvement with physical therapy. He took
painkillers and medication to help him sleep.
The ALJ concluded that Watson had degenerative disc disease,
an impairment which was severe but did not meet the criteria of any
of the impairments listed in Appendix 1, Subpart P, Regulations No.
4. Finding that Watson had an exertional capacity for medium work,
the ALJ concluded that he was not disabled.
Before the district court, Watson argued that the ALJ erred in
concluding that he could perform medium work, that the ALJ erred in
applying the Medical-Vocational Guidelines without determining the
extent of Watson’s non-exertional impairment for back pain, and
that the ALJ improperly failed to consider whether Watson could
obtain and maintain employment under Singletary v. Bowen, 798 F.2d
818 (5th Cir. 1986). On cross-motions for summary judgment, the
district court denied Watson’s motion and granted summary judgment
in favor of the Commissioner of Social Security.
DISCUSSION
4
We review a Commissioner's decisions with respect to a denial
of SSI benefits to ascertain (1) whether the final decision is
supported by substantial evidence and (2) whether proper legal
standards were used to evaluate the evidence. Brown v. Apfel, 192
F.3d 492, 496 (5th Cir. 1999). Substantial evidence is more than
a scintilla but less than a preponderance and is such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct.
1420, 1427 (1971). “If the Secretary's decision is supported by
substantial evidence, the findings are conclusive and must be
affirmed.” Marcello v. Bowen, 803 F.2d 851, 853 (5th Cir. 1986)
(citing Richardson, 402 U.S. at 390). "Conflicts in the evidence
are for the [Commissioner] and not the courts to resolve." Brown,
192 F.3d at 496 (citing Selders v. Sullivan, 914 F.2d 614, 617 (5th
Cir.1990)).
I. There is substantial evidence to support the ALJ’s finding
that Watson could perform medium work
Watson argues that the ALJ erred in finding that he was
capable of performing medium work. Medium work “involves lifting
no more than 50 pounds at a time with frequent lifting or carrying
of objects weighing up to 25 pounds.” 20 C.F.R. §416.967. While
Dr. Johnston restricted Watson to lifting no more than 15 to 20
pounds, Dr. Messina disagreed with that restriction, indicating
that Watson could lift more weight than that. Watson’s other
5
doctors did not place similar restrictions on lifting. Watson’s
own testimony indicated that he could lift up to 50 pounds, and
that he could carry two to three gallons of milk at a time
(weighing collectively 34 to 51 pounds). Thus, there was
substantial evidence to support the ALJ’s finding that Watson could
perform medium work.
II. The ALJ did not err in using the Medical-Vocational Guidelines
Where a claimant seeks to prove an ‘inability to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which... can be expected
to last for a continuous period of not less than 12 months’, 42
U.S.C. §§ 423(d)(1)(A), the ALJ is required to follow a five-step
process. Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001). The
burden of proving the first four factors in the process is on the
claimant. Id.1 In the present case, the ALJ found that Watson had
met his burden on the first four factors, so the burden shifted to
the Commissioner to prove the fifth factor, namely, that Watson
could perform other work.
1
The factors are:
(1) An individual who is working and engaging in substantial gainful activity will not be found disabled regardless
of medical findings.
(2) An individual who does not have a "severe impairment" will not be found to be disabled.
(3) An individual who meets or equals a listed impairment in [20 C.F.R. pt. 404, subpt. P, app. 1] will be
considered disabled without the consideration of vocational factors.
(4) If an individual is capable of performing the work he has done in the past, a finding of "not disabled" will be
made.
(5) If an individual's impairment precludes him from performing his past work, other factors including age,
education, past work experience, and residual functional capacity must be considered to determine if other work
can be performed.
Id.
6
At the fifth step in the process, to determine whether a
claimant is capable of performing other work or is disabled, the
ALJ may use the Medical-Vocational Guidelines (the “grid rules”).
However, use of the grid rules is only appropriate “when it is
established that a claimant suffers only from exertional
impairments, or that the claimant’s nonexertional impairments do
not significantly affect his residual functional capacity.”
Crowley v. Apfel, 197 F.3d 194, 199 (5th Cir. 1999). In the
present case, the ALJ found that Watson did not have any
significant non-exertional impairments that would affect his medium
residual functional capacity. Consequently, the ALJ applied the
grid rules, determined that there were jobs available for Watson to
perform, and found that Watson was not disabled.
Watson asserts that the ALJ erred in finding that he did not
have significant non-exertional impairments, arguing that his back
pain constitutes such an impairment. The ALJ relied for this
finding on the opinion of a state medical consultant, who concluded
in September 1997 that Watson possessed a medium residual
functional capacity. The opinion of the state medical consultant
regarding Watson’s residual functional capacity is not relevant to
whether Watson’s back pain constitutes a significant non-exertional
impairment. However, the ALJ also relied on Dr. Messina’s
testimony that Watson could return to work with minimal
restrictions, and on the report of the physical therapist that
7
Watson experienced only slight residual pain after the therapy.
The ALJ also found that Watson’s statements about his pain were not
credible, due to inconsistencies in his testimony. The testimony
of Dr. Messina and the physical therapist constitute substantial
evidence to support the ALJ’s finding.
III. The Singletary standard
Watson argues that the ALJ erred in failing to make a
determination that Watson could maintain employment. In Singletary
v. Bowen, 798 F.2d 818 (5th Cir. 1986) this Court held that “[a]
finding that a claimant is able to engage in substantial gainful
activity requires more than a simple determination that the
claimant can find employment and that he can physically perform
certain jobs; it also requires a determination that the claimant
can hold whatever job he finds for a significant period of time.”
Id. at 822. The defendant-appellee argues, and the district court
held, that the Singletary standard applies only to cases of mental
illness or episodic deterioration, not physical disability. The
district court pointed out that Singletary, and a subsequent case
applying the standard, Leatherwood v. Houston Post Co., 59 F.3d 533
(5th Cir. 1995), involved a claimant who suffered from mental
illness. However, while it is true that Singletary and Leatherwood
applied the standard to persons suffering from mental illness, this
does not necessarily imply that the standard cannot be applied to
people who are physically disabled.
8
Indeed, we have already applied the Singletary standard to a
case involving a woman who suffered from keratosis. See Wingo v.
Bowen, 852 F.2d 827 (5th Cir. 1988). In that decision, this Court
held that a determination that a person is capable of engaging in
substantial gainful activity depends on a finding not only that the
individual has some chance of being hired, but also, that, taking
account of the individual’s exertional and non-exertional
limitations, the individual has a reasonable chance, “once hired,
of keeping the job.” Id. at 831. We noted that “[a] claimant
capable of performing sedentary or light work under the guidelines
must have the ability to perform the required physical acts day in
and day out in the sometimes competitive and stressful conditions
in which all people work in the real world." Id. (citing Allred v.
Heckler, 729 F.2d 529, 533 (8th Cir.1984)). The dissent contends
that this language in Wingo amounts to dicta, arguing that we
decided the case solely on the ground that the Secretary must
consider all of an individual’s limitations when making a
determination of ability to engage in substantial gainful
activities. But to label this language as dicta would render the
decision in Wingo senseless. The Secretary’s error in Wingo was
not simply the failure to consider all of the claimant’s
impairments, but more importantly, the Secretary’s failure to make
a determination that the claimant was capable of maintaining
employment. It was because the Secretary was required to make that
9
determination that it was necessary to consider the claimant’s non-
exertional limitations, in addition to her exertional limitations.
The defendant-appellee seeks to cabin the holding in Wingo,
arguing that Wingo requires a finding of an ability to maintain
employment only where the individual suffers from additional non-
exertional limitations that might limit the individual’s ability to
work.2 This narrow reading of Wingo would create an irrational
distinction, requiring a finding that a person can maintain
employment where the individual suffers from additional non-
exertional limitations, and not requiring such a finding where the
individual suffers solely from exertional limitations. The
individual’s ability to maintain employment should be relevant to
a determination of disability regardless of whether the individual
suffers from non-exertional limitations. In the present case, if
Watson’s degenerative disc disease prevented him from maintaining
employment (e.g., because every number of weeks he lost movement in
his legs) this would be just as relevant to a finding of disability
as if his back pain prevented him from maintaining employment
(e.g., because every number of weeks he was in too much pain to
work). This interpretation is further supported by the fact that
other federal appellate courts have made similar holdings, arguing
that “[a] condition that does not allow a person to work on a
2
While the dissent accuses us of setting up a straw man by
addressing this issue, we consider it appropriate to respond to
the arguments advanced by the parties.
10
regular basis precludes substantial gainful activity.” Dix v.
Sullivan, 900 F.2d 135, 138 (8th Cir. 1990)3; see also Broadbent v.
Harris, 698 F.2d 407, 413 (10th Cir. 1983).
Wingo is properly interpreted as applying the Singletary
standard to determinations of physical disability. Consequently,
we find that the ALJ erred in failing to determine whether Watson
was capable not only of obtaining, but also maintaining employment.
CONCLUSION
There is substantial evidence to support the ALJ’s findings
that Watson is capable of performing medium work and that Watson’s
back pain does not constitute a significant non-exertional
impairment. However, the ALJ erred in failing to determine whether
Watson was capable not only of obtaining employment, but also
maintaining it. Therefore, we VACATE the district court’s judgment
affirming the ALJ’s decision, and REMAND to the district court with
3
The dissent argues that we interpret Dix too broadly, and
that Dix stands only for the proposition that the Singletary
standard applies in cases where a claimant suffers from a
disability that periodically affects his or her ability to work.
But this interpretation of Dix has it exactly backwards: the
purpose of applying the Singletary standard in the context of
physical disabilities is to make the determination whether the
claimant has a disability that periodically affects his or her
ability to work, such that the claimant cannot engage in
substantial gainful activity. It would be pointless to apply the
standard after that determination has been made. Moreover, by
interpreting Dix in this manner, the dissent implicitly accepts
that the regulations do not adequately address all cases of
physical disability. It is precisely for that reason that the
Singletary standard must apply in physical disability cases.
11
instructions to REMAND to the Secretary for further proceedings to
determine whether Watson was capable of maintaining employment.
ENDRECORD
12
EMILIO M. GARZA, Circuit Judge, dissenting:
This case requires us to determine if the appellant, Daniel
Watson, is entitled to disability and supplemental security
benefits under the Social Security Act. 42 U.S.C. § 423(d).
Specifically, we must decide whether the Secretary of Health and
Human Services (the “Secretary”) applied the correct legal standard
in concluding that Watson was capable of performing other work and
therefore was not disabled. The majority, relying on our decision
in Singletary v. Bowen, holds that the Secretary erred by not
making a specific finding that Watson could maintain employment.
798 F.2d 818 (5th Cir. 1986). In contrast to the majority, I
believe that the Secretary was not required to make such a specific
finding when evaluating Watson’s claim. Rather, in cases such as
Watson’s, in which the applicant alleges only a physical
disability, the usual five-step sequential inquiry set forth in the
federal regulations is the appropriate method to determine whether
an applicant is capable of engaging in substantial gainful
activity. See 20 C.F.R. § 404.1520(b)-(f).
As the majority points out, the Secretary ordinarily evaluates
disability claims under the five-step sequential process set forth
in 20 C.F.R. § 404.1520.4 At issue here is the Secretary’s
4
The five steps are: (1) whether the claimant is not presently working, (2) whether the
claimant has a severe impairment, (3) whether the impairment is not listed in, or equivalent to, an
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application of the fifth step in that inquiry, which asks whether
the impairment prevents the applicant from performing any
substantial gainful activity other than his or her original
employment. In determining whether the claimant can do any other
work under the regulations, the Secretary considers the claimant’s
residual functional capacity, together with his age, education, and
work experience, according to the Medical-Vocational Guidelines.
See 20 C.F.R. § 404.1561. Using these criteria, the Secretary
found that Watson possessed the requisite residual functional
capacity to perform jobs that required a medium level of work.5
The regulations define medium work as work that “involves lifting
of no more than 50 pounds at a time with frequent lifting or
carrying of objects weighing up to 25 pounds.” 20 C.F.R. §
416.967(c) (emphasis added). Thus, the Secretary specifically
found that Watson could frequently lift up to 25 pounds and, on
occasion, lift as much as 50 pounds. Based in part on this
determination, the Secretary concluded that Watson was physically
capable of performing other types of substantial gainful activity
that required medium or less strenuous work levels.
impairment listed in Appendix 1 of the regulations, (4) whether the impairment prevents the
claimant from doing past relevant work, and (5) whether the impairment prevents the claimant
from doing any other substantial gainful activity. Hampton v. Bowen, 785 F.2d 1308, 1311 (5th
Cir. 1986).
5
The majority concedes in their opinion that the Secretary’s determination that Watson
was capable of performing jobs that required medium work was supported by substantial
evidence.
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The majority reasons that the Secretary should have then
determined, in addition to the findings required under the
regulations, that Watson could maintain an employment position
requiring a medium level of physical exertion. In support of their
argument, they rely on our decision in Singletary. Singletary
involved a disability applicant who was suffering from a variety of
serious mental illnesses, including schizophrenia, delusions, and
an anti-social personality disorder. The Secretary applied the
five-step process under the regulations and found that Singletary
was not disabled. Singletary, 798 F.2d at 820. We reversed the
Secretary’s determination, holding that he must consider whether an
applicant with a serious mental illness is capable of engaging in
substantial gainful activity when, although physically capable of
working, he or she cannot maintain regular employment. Id. at 823.
The majority’s application of Singletary in the context of a
physical disability case is misplaced. The applicant in
Singletary suffered from mental illnesses. Thus, even though he
possessed the residual functional capacity to perform certain types
of work, his mental disability precluded him from working for any
extended period of time. We concluded that usual five-step inquiry
under the regulations, which focuses primarily on physical
disabilities, did not adequately address a mental disability.
Thus, we held that an additional determination that the applicant
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could maintain employment was necessary. In doing so, we
acknowledged the limitations in the regulations in evaluating
mental disability claims:
Determining whether a claimant is disabled because of a
mental condition under the above sequential process can
be a difficult task. In some cases, the mental
impairment may be so severe that the claimant is presumed
to be incapable of working. . . . Quite often, however,
the claimant is capable of finding a job and working for
short periods of time. The nature of the mental
impairment is such, however, that the claimant is unable
to remain employed for any significant period of time.
Singletary, 798 F.2d at 820-821 (internal citation omitted).
Singletary’s requirement that the Secretary must make a specific
additional finding that a disability applicant with a mental
illness is able to maintain employment in order to be capable of
engaging in substantial gainful activity was intended to address
the difficulties arising when applying the regulations to a
mentally disabled applicant. Because the residual function inquiry
focuses on an applicant’s physical capabilities and not on any
mental disabilities, we concluded that an additional inquiry was
necessary to address such cases.
Here, however, Watson only asserts a physical disability. The
residual function determination made by the Secretary adequately
deals with such claims. The Secretary found, based on substantial
evidence, that Watson retained the residual functional capacity, in
spite of his disability, to lift 50 pounds at any one time and to
lift frequently up to 25 pounds. The Secretary’s physical
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disability determination, therefore, includes a determination that
Watson was both physically capable of performing medium work and of
maintaining a job requiring a medium level of physical exertion
over an extended period of time. Thus, it would be redundant to
require the Secretary to make an additional finding that Watson was
physically capable of maintaining employment beyond the
determination that he was physically capable of frequently lifting
up to 25 pounds.
This distinction between mental and physical disabilities is
not a distinction without a difference as the majority contends.
An applicant with a mental illness may be physically capable of
performing certain jobs, but yet ultimately unable to engage in
substantial gainful activity. Here, however, the Secretary’s
determination that Watson retained the residual functional capacity
to frequently lift 25 pounds means that he is physically capable of
engaging in that type of substantial gainful activity. No
additional determination is necessary. The concerns that motivated
our decision in Singletary are not present in the context of a
physical disability claim.
The majority also relies on our decision in Wingo v. Bowen for
the proposition that the Secretary was required to make an
additional finding that Watson could maintain employment. 852 F.2d
827 (1988). In Wingo, the Secretary determined that the disability
applicant was qualified to perform sedentary work. We concluded
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that the Secretary had failed to consider the applicant’s other,
non-exertional limitations in reaching his conclusion that the
applicant was not disabled. We stated: “When making his
determination that Wingo could perform gainful employment, the
Secretary failed to consider this combination of impairments, and
we cannot say therefore that this decision was supported by
substantial evidence.” Thus, Wingo stands solely for the
proposition that the Secretary must consider all of a disability
applicant’s physical and mental limitations when determining
whether he or she can engage in substantial gainful activities.
The majority focuses on dicta in Wingo, arguing that it
applies Singletary’s requirement that the Secretary make a specific
finding that a disability applicant can maintain employment when
evaluating a physical disability claim. In Wingo, the Secretary
determined that the applicant could sit for as many as six hours.
Based on this evidence, the Secretary concluded that the applicant
could perform sedentary work. We stated that “[t]his particular
capability would qualify Wingo to perform sedentary work only in a
theoretical sense, however. To be capable of performing sedentary
work under the guidelines, an individual must have some reasonable
chance in the real world of being hired and, once hired, of keeping
the job.” Wingo, 852 F.2d at 831. The regulations define
sedentary work as work which “involves lifting no more than 10
pounds at a time and occasionally lifting or carrying articles like
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docket files, ledgers and small tools. Although sedentary work is
defined as work which involves siting, a certain amount of walking
and standing is often necessary in carrying out job duties.” 20
C.F.R. § 416.967(a). We concluded in Wingo that a finding that an
applicant can sit for up to six hours does not satisfy the
definition of sedentary work in the regulations. Rather, the
definition of sedentary work includes a finding that the applicant
can sit, carry small objects, stand, and walk on a daily basis. We
did not fault the Secretary for failing to make an additional
finding that the applicant could not maintain employment. Instead,
we noted that the Secretary had failed to apply the regulations
properly in reaching his or her conclusion. Thus, “the Secretary’s
determination that [the applicant] can perform these [sedentary]
jobs [was] mere speculation.”6 Id. (citing Fields v. Bowen, 805
F.2d 1168, 1171 (5th Cir. 1986)).
In this instance, however, the majority concedes that the
Secretary’s determination that Watson was able to perform medium
labor was supported by substantial evidence. In other words, the
Secretary correctly applied the regulations, concluding that Watson
6
The majority opinion sets up a straw man by arguing that Singletary cannot be limited to
cases only involving a mixture of exertional and non-exertional limitations as in Wingo. This
argument ignores the import of the Wingo decision. Wingo held that the Secretary must consider
all of the claimant’s disabilities when making his disability determination. It then argued in dicta
that the Secretary must properly apply his or her own regulations. Thus, the distinction between
exertional and non-exertional limitations that the majority draws does not address the basic fact
that Wingo does not represent an extension of Singletary to the context of physical disabilities
altogether.
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could perform jobs which required him to frequently lift up to 25
pounds. The dicta in Wingo, which neither mentions Singletary nor
requires any additional findings beyond what is required in the
regulations, mandates only that the Secretary comply with the
requirements of the regulations.
Finally, the majority relies on an Eighth Circuit decision to
support its extension of our holding in Singletary. Dix v.
Sullivan, 900 F.2d 135 (8th Cir. 1990). In Dix, the disability
applicant suffered from Crohn’s disease, an inflammatory disease
affecting the gastrointestinal tract. Crohn’s disease is
characterized by periods of inactivity in which the patient is
relatively symptom free, followed by periods of severe pain. Dix,
900 F.2d at 135. Like Singletary, the court in Dix confronted a
specialized case where the regulations failed to adequately address
the disabilities of a particular applicant. Similar to an
applicant with a mental illness, Dix was physically able to obtain
employment during her remissions, but was unable to work during her
relapses. Thus, the Dix court concluded that the Secretary’s
residual function determination under the regulations was
insufficient because the applicant had no realistic chance of
retaining work. Dix extends Singletary to the context of physical
disabilities, but only to those disabilities which periodically
affect an applicant’s physical ability to work. This extension is
inapplicable to the facts of this case, however, because Watson
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suffers from back pain and degenerative disc disease. These
afflictions, unlike Crohn’s disease or a mental illness, directly
impede an applicant’s physical ability to perform certain types of
work. The residual function inquiry directly addresses these types
of limitations and an additional inquiry is unnecessary.
The majority’s decision represents an unnecessary extension of
our decision in Singletary to the context of physical disabilities.
The federal regulations governing the determination of an
applicant’s residual functional capacity already provide the
appropriate method for evaluating physical disability claims. The
application of Singletary to cases such as Watson’s is redundant
and only tends to confuse an already complicated regulatory process
without affording deserving applicants any extra protections.
For the foregoing reasons, I would AFFIRM the judgment of the
district court.
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