NOTES:

SUPPORT TO AN ARGUMENT THAT THE CLIENT IS INCAPABLE OF

SUSTAINING ANY, EVEN SEDENTARY (SEATED) WORK
Under the Lumbar Spine Medical Source Statement of the Client,
dated April 29, 2016 (Exhibit A, page 1), it can be gleaned that the client
is diagnosed to be suffering from lumbar disc disease right LS
radiculopathy. A disc disease in the lumbar spine, or lower back, refers to a
syndrome in which a compromised disc causes low back pain. The true cause
of individuals who suffered from lumbar disc disease is multifactorial. It could
be from simple wear and tear (degeneration) or may have a traumatic cause or
both. It could start from a major trauma such as a car accident or may be due
to a low energy injury to the disc that progresses with time. The disc itself does
not have a blood supply, so if it sustains an injury it cannot repair itself the way
other tissues in the body can. An otherwise insignificant injury to the disc can
start a degenerative cascade whereby the disc wears out.
Causes of Lumbar Disc Disease:
The low back pain associated with lumbar degenerative disc disease is usually
generated from one or both of two sources:
1. Inflammation, as the proteins in the disc space irritate the surrounding
nerves - both the small nerve within the disc space and potentially the
larger nerves that go to the legs
2. Abnormal micro-motion instability, when the outer rings of the disc,
called the annulus fibrosus, are worn down and cannot absorb stress on
the spine effectively, resulting in movement along the vertebral segment.
Excessive micro-motion, combined with the inflammatory proteins, can
produce ongoing low back pain. (Source: Lumbar Degenerative Disc
Disease: Overview, Causes and Symptoms, spine-health.com)
As a result, the central softer portion of the disc can rupture (herniated)
through the outer ring of the disc and abut the spinal cord or its nerves as they
exit the bony spinal column. This rupture is what causes the commonly
recognized pain of sciatica that shoots down the leg. Sciatica can be
preceded by a history of localized low back aching or it can follow a
"popping" sensation and be accompanied by numbness and tingling. The
pain commonly increases with movements at the waist and can increase
with coughing or sneezing. In more severe instances, sciatica can be
accompanied by incontinence of the bladder and/or bowels. Increased
radiating pain when the lower extremity is lifted supports the diagnosis of
lumbar radiculopathy. Nerve testing (EMG/electromyogram and NCV/nerve
conduction velocity) of the lower extremities can be used to detect nerve
irritation. The actual disc herniation can be detected with radiology testing,

such as CAT or MRI scanning. (Source: Definition of Lumbar radiculopathy,

MedicineNet.com)
Here is a picture of a lumbar degenerative disc disease for perusal.

It can be deduced that the client has physical disability. Under 42

U.S. Code Section 12102, disability is defined, thus:
42 U.S. Code 12102 - Definition of disability
As used in this chapter:
(1) DISABILITY. The term disability means, with respect to an individual
(A) a physical or mental impairment that substantially limits one or more
major life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment (as described in
paragraph 3).
(2) MAJOR LIFE ACTIVITIES
(A)In general
For purposes of paragraph (1), major life activities include, but are
not limited to, caring for oneself, performing manual tasks, seeing,
hearing, eating, sleeping, walking, standing, lifting, bending, speaking,
breathing, learning, reading, concentrating, thinking, communicating, and
working.
(B)Major bodily functions
For purposes of paragraph (1), a major life activity also includes
the operation of a major bodily function, including but not limited to,
functions of the immune system, normal cell growth, digestive, bowel,
bladder, neurological, brain, respiratory, circulatory, endocrine, and
reproductive functions.

(3) REGARDED
(C):

AS HAVING SUCH AN IMPAIRMENT

For purposes of paragraph (1)

(A) An individual meets the requirement of being regarded as having

such an impairment if the individual establishes that he or she has been
subjected to an action prohibited under this chapter because of an actual or
perceived physical or mental impairment whether or not the impairment
limits or is perceived to limit a major life activity.
(B) Paragraph (1)(C) shall not apply to impairments that are transitory and
minor. A transitory impairment is an impairment with an actual or
expected duration of 6 months or less.
(4) RULES OF CONSTRUCTION REGARDING THE DEFINITION OF DISABILITY.
The definition of disability in paragraph (1) shall be construed in accordance
with the following:
(A) The definition of disability in this chapter shall be construed in favor
of broad coverage of individuals under this chapter, to the maximum
extent permitted by the terms of this chapter.
(B) The term substantially limits shall be interpreted consistently with
the findings and purposes of the ADA Amendments Act of 2008.
(C) An impairment that substantially limits one major life activity need
not limit other major life activities in order to be considered a disability.
(D) An impairment that is episodic or in remission is a disability if it
would substantially limit a major life activity when active.
(E)
(i) The determination of whether an impairment substantially limits a
major life activity shall be made without regard to the ameliorative effects
of mitigating measures such as
(I) medication, medical supplies, equipment, or appliances, lowvision devices (which do not include ordinary eyeglasses or contact
lenses), prosthetics including limbs and devices, hearing aids and cochlear
implants or other implantable hearing devices, mobility devices, or oxygen
therapy equipment and supplies;
(II) use of assistive technology;
(III) reasonable accommodations or auxiliary aids or services; or
(IV) learned behavioral or adaptive neurological modifications.
(ii) The ameliorative effects of the mitigating measures of ordinary
eyeglasses or contact lenses shall be considered in determining whether an
impairment substantially limits a major life activity.
(iii) As used in this subparagraph
(I) the term ordinary eyeglasses or contact lenses means lenses
that are intended to fully correct visual acuity or eliminate refractive error;
and

(II) the term low-vision devices means devices that magnify,

enhance, or otherwise augment a visual image.
(Pub. L. 101336, 3, July 26, 1990, 104 Stat. 329; Pub. L. 110325,
4(a), Sept. 25, 2008, 122 Stat. 3555.)

The client can be observed as having a Lumbar Disc Disease which

is characterized with radiating pain down to the right leg and worse with
limited standing motion and strength. (Exhibit A, page 1, numbers 6 and
7a). He has neuro-anatomic distribution of pain. (Exhibit A, page 2,
number 7b). He can sit and stand/walk in an 8 hour working day (with
normal breaks) only for about 2 hours. (Exhibit A, page 3, number 10d).
The client must often walk for about 30 minutes and the longest of which he
can walk each time is 5 minutes. (Exhibit A, page 3, number 10f). He is
likewise advised to use cane and other assistive device when he is
engaged in occasional standing/walking. (Exhibit A, page 3, number 10i).
With regards to lifting or carrying in a competitive work situation, the
client was diagnosed to frequently lift/carry less than 10 pounds,
occasionally can lift 10 pounds but rarely or never should he lift 20 or more
pounds of weight (Exhibit A, page 4, number 10j). He is also not capable
of low stress work as he needs to always work in a sit-down position
(Exhibit A, page 4, number 10n). It was, further, assessed that the clientpatient is likely to be absent from work because of his impairment for about
three (3) days per month. (Exhibit A, page 5, number 10 paragraph o).
Lastly, there is no more other limitations that would affect the clients ability
to work at a regular job on a sustained basis except the present disability
which is termed as Lumbar Disc Degenerative Disease. (Exhibit A,
page 5, number 13).
The name of the physician who issued the Lumbar Spine Medical
Source Statement is Sadiq Haque D.O.
The next document is the letter, dated November 18, 2014, issued by
Dr. Martha Pollock, M.D. of the Great Lakes Medical Evaluations, 15400
Michigan Avenue, Deatborn, MI 48126 consisting of five (5) pages. She
addressed the letter to the State of Michigan, Department of Human
Services, Disability Determination Service for Social Security Claims, P.O.
Box 345, Detroit, MI 48231-9806 with Case No. 6183526. She revealed
that the client is 47 years old with evaluation of right back and right leg pain
and left hip replacement. Her client relates to her that the client had a motor
vehicle accident in the 1990s in which he fractured his left hip.
Subsequently, he had hip replacement in 2002. Since that time the client
had noted pain in his back that radiates into his right leg. He was forced to

stop working in June, 2014 as a laborer due to severe back pains. He does
light housework but cannot do any tasks that require repetitive bending or
lifting more than 20 pounds, has no recent evaluation for the back or hip
pain and has not taken any pain medication. (Exhibit B, page 1).
Nonetheless, her medical conclusions were as follows:
1) History of a remote left hip fracture S/P left hip replacement. The
patient did have preserved range of motion in the hip and had no difficulty
with orthopedic maneuvers.
2) History of back pain radiating to the right leg. The patient did
complain with straight leg raising on the right. Range of motion in the back
was preserved. X-rays may be of benefit in the patient. (Exhibit B, page
4).
The client-patient was given questionnaires by the aforesaid medical
evaluator wherein he only checked that he is experiencing joint aches,
muscle aches or arthritis while the other review of systems such as
constitutional, eyes, ears, nervous system, cardiovascular, respiratory,
gastrointestinal, genitourinary, skin, hermatologic/lymphatic and psychiatric
systems, the client checked the No answer. (Exhibit B, page 5)
There were Six (6) Final Reports collectively marked as Exhibit C
herein. The First Final Report, which was printed on May 11, 2016, was
issued by the DMC Sport Medicine (performed by Sadiq Haque D.O. on the
client on January 28, 2015).
It was disclosed that the medical problem of the client is LOW BACK
PAIN and the date the symptom started was last 2008 when he had some
construction work and started experiencing low back pain radiating down
his right leg. The symptoms get worse with walking and standing but better
with stretching. He had physical therapy and had CT scan which
demonstrated moderate to sever bilateral neutral forminal steriosis at L5-S1
and at L4-S. Client described his pain as a burning type and the doctor
recommended MRI of the lumbosacral spine to assess further and that
client is required therapy. Other informations revealed were: a) client
smoke pack of cigarette a day but denies alcohol or drug use; b) had
family medical history of high blood pressure, seizures and leukemia.
(Exhibit C, page 1); c) the client-patient had penicillin allergies but had
neurontin and multivitamin medications; d) the client also had prior femur
fracture and hip replacement. With regards to system review, client is
negative except experiences of joint pain, muscles aches and arthritis. His
blood pressure is 149/92 and pulse of 92. An inspection of the back shows

no significant scoliosis, swelling or bruising but he has a moderate

paraspinal tenderness on the right as compared to the left. His motor
examination showed that he has mild weakness with great toe dosiflexion,
plantar flexion and dorsiflexion on the right as compared to the left. His
neurological exam manifested slightly diminished sensation on the right as
compared to the left. When applied special test, it is observed that he is
tested positive straight leg raise test on the right as compared to the left
and he is able to walk on his toes and heels. Furthermore, his x-ray
examination and CT scan of the lumbosacral spine demonstrated lumbar
disc disease at L4-5 and L5-S1. Thus, the attending physician medically
assessed that the client is suffering from: 1) lumbosacral spine
degenerative disc disease; and, 2) likely right L5 radiculopathy. (Exhibit C,
page 2). The client was given a 7 Point Plan and he was agreeable with it.
Another Final Report was issued by Cheryl Grigorian, M.D.
electronically signed on January 29, 2015 applying the RIM Spine Lumbar
(A-P and Lateral) Examination to view to lumbosacral spine due to pain
was administered on the client. (Exhibit C, page 4). In this examination,
the findings were as follows:
There are five lumbar spine appearing vertebral bodies. Disc space
narrowing at L3-L4, L4-L4-L5 and L5-S1, Anterior listhesis of L5 01-01 likely on
a degenerative basis. Facet hypertrophic changes to the lower lumbar spine.
Minimal scoliosis.

This simply proved that the client is indeed suffering from lumbar disc
degenerative disease.
A Third Final Report, consisting of seven (7) pages, was again
issued by Cheryl Grigorian, M.D. electronically signed on January 29, 2015
applying the RIM Hip (Complete 2 Views) Right Examination to view the
pelvis and right hip of the client. (Exhibit C, page 6). In the said
examination, the following findings were:
There are left hip prosthesis with remodeling of the acetabulum including
spurring. Spurs project of the greater and lesser trochanter of the left hip.

On the other hand, the medical impressions made were:

1) Mild degenerative changes to the right hip especially superiority
compatible with osteoarthritis;
2) Left hip prosthesis with remodeling of the acetabulum and heterotopic
bone and/or spurring to the greater and lesser trochanter of the left hip. (Exhibit
C, page 6)

A Fourth Final Report, consisting of four (4) pages, was again issued
and electronically signed by Sadiq Haque D.O. on December 11, 2015. In
his physical examination, his blood pressure was 114:75. He has no
scoliosis, swelling or bruising, has a right sided paraspinal tenderness, has
lumbar flexion and extension restricted, has 4/5 strength hamstrings hip
flexion right as compared to the left and the X-ray and MRI demonstrated
L4-5 and L5-S1 neuroforaminal narrowing with impingement of the right
nerve roots. (Exhibit C, page 10). The same impression (Exhibit C, page
11) as the above Third Report was, likewise, observed upon the client
(having lumbar spine degenerative disc disease and right lumbar
radiculopathy).
A Fifth Final Report, consisting of four (4) pages, was issued by Sadiq
Haque D.O. on January 22, 2016 because of the chief complaint of the
client as Lower Back Pain/Epidural. The attending physician stated that he
client was in his presence for lumbar epidural steroids injections, which he
would administer to the right L5 and right S1. He also revealed that the
client-patient denies nausea vomiting, fevers bowel and bladder
incontinence. He prescribed medicines for intake, namely: a) gabapentin
(gabapentin 800 mg oral tablet) 2 Tab 1,600 mg by mouth BID; b)
gabapentin (gabapentin 300 mg oral capsule) 1 Cap 300 mg by mouth TID;
c) gabapentin (gabapentin 300 mg oral capsule) 1 Cap 300 mg by mouth
TID; d) Tramadol (Tramadol 50mg oral tablet) 1 Tab 50 mg by mouth Q4;
and e) Tramadol (Tramadol 50mg oral tablet) 1 Tab 50 mg by mouth Q4.
He regulatorily assessed that the client had no weight change, no appetite
change, no recent fall, no suicidal ideation/verbalization and no verbal/nonverbal signs of abuse. (Exhibit C, page 13). Client similarly had a 97 beat
per minute heart rate and applied the same tests with the same results as
previously stated in the Fourth Final Report. (Exhibit C, page 14). The
same Impression and Plan (lumbarsacral spine degenerative disc disease
and right lumbar radiculopathy at L5 and S1) was, likewise, noted as stated
in the Fourth Final Report (Exhibit C, page 15).
The Last Final Report was issued by the same Sadiq Haque D.O. on
March 25, 2016 with a chief complaint of F/U after epidural inj (follow-up
after epidural injection). Client stated that he did not find much relief with
the last epidural steroid injection. The attending physician then advised him
that they can try medications and have him continue with exercises and
see him back in a month and if he gets persistent pain then they can repeat
the epidurals next visit. (Exhibit C, page 16). The attending physician
then prescribed three (3) medicines, namely: a) gabapentin (gabapentin
800 mg oral tablet) 2 Tab 1,600 mg by mouth BID; b) gabapentin

(gabapentin 300 mg oral capsule) 1 Cap 300 mg by mouth TID; and, d)

Tramadol (Tramadol 50mg oral tablet) 1 Tab 50 mg by mouth Q4. (Exhibit
C, page 17). The clients blood pressure was listed at 126 mmhg over 72
mmhg with 93 beats per minute as heart rate. (Exhibit C, page 18). Again
the same medical impression and assessment was noted, that is, client has
lumbar sacral spine degenerative disc disease and right lumbar
radiculopathy. (Exhibit C, page 19).
From the aforesaid documents, it conclusively showed that the client
is suffering from lumbarsacral spine degenerative disc disease and right
lumbar radiculopathy at L5 and S1. In terms of the definition of disability
under the U.S. Code, such disease is covered by the meaning of the
medical term disability. It is a physical impairment, the severity of which
shows that the client cannot or was unable to do his previous work or
sustain any other kind of gainful activity. It substantially limits major life
activities of the client as he is suffering from severe back pains that
radiates into his right leg. (Exhibit B, page 1).
I am providing an excerpt of the Policy Interpretation Ruling that
entitled an individual to his initial claim for disability benefits through an
assessment of residual functional capacity (RFC).
SSR 96-8p
EFFECTIVE/PUBLICATION DATE: 07/02/96
SSR 96-8p: POLICY INTERPRETATION RULING
TITLES II AND XVI: ASSESSING RESIDUAL FUNCTIONAL CAPACITY IN
INITIAL CLAIMS
PURPOSE: To state the Social Security Administration's policies and policy
interpretations regarding the assessment of residual functional capacity (RFC) in
initial claims for disability benefits under titles II and XVI of the Social Security
Act (the Act). In particular, to emphasize that:
1. Ordinarily, 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. A "regular and continuing basis" means 8 hours a day, for 5 days
a week, or an equivalent work schedule.
2. The RFC assessment considers only functional limitations and restrictions that
result from an individual's medically determinable impairment or combination of
impairments, including the impact of any related symptoms. Age and body
habitus are not factors in assessing RFC. It is incorrect to find that an individual
has limitations beyond those caused by his or her medically determinable
impairment(s) and any related symptoms, due to such factors as age and natural
body build, and the activities the individual was accustomed to doing in his or her
previous work.

3. When there is no allegation of a physical or mental limitation or restriction of

a specific functional capacity, and no information in the case record that there is

such a limitation or restriction, the adjudicator must consider the individual to

have no limitation or restriction with respect to that functional capacity.

4. The RFC assessment must first identify the individual's functional limitations
or restrictions and assess his or her work-related abilities on a function-byfunction basis, including the functions in paragraphs (b), (c), and (d) of 20 CFR
404.1545 and 416.945. Only after that may RFC be expressed in terms of the
exertional levels of work, sedentary, light, medium, heavy, and very heavy.
5. RFC is not the least an individual can do despite his or her limitations or
restrictions, but the most.

6. Medical impairments and symptoms, including pain, are not intrinsically

exertional or nonexertional. It is the functional limitations or restrictions caused
by medical impairments and their related symptoms that are categorized as
exertional or nonexertional.
CITATIONS (AUTHORITY): Sections 223(d) and 1614(a) of the Social
Security Act, as amended; Regulations No. 4, subpart P, sections 404.1513,
404.1520, 404.1520a, 404.1545, 404.1546, 404.1560, 404.1561, 404.1569a, and
appendix 2; and Regulations No. 16, subpart I, sections 416.913, 416.920,
416.920a, 416.945, 416.946, 416.960, 416.961, and 416.969a.
INTRODUCTION: In disability determinations and decisions made at steps 4
and 5 of the sequential evaluation process in 20 CFR 404.1520 and 416.920, in
which the individual's ability to do past relevant work and other work must be
considered, the adjudicator must assess RFC. This Ruling clarifies the term
"RFC" and discusses the elements considered in the assessment. It describes
concepts for both physical and mental RFC assessments.
This Ruling applies to the assessment of RFC in claims for initial entitlement to
disability benefits under titles II and XVI. Although most rules and procedures
regarding RFC assessment in deciding whether an individual's disability continues
are the same, there are some differences.
POLICY INTERPRETATION:
GENERAL
When an individual is not engaging in substantial gainful activity and a
determination or decision cannot be made on the basis of medical factors alone
(i.e., when the impairment is severe because it has more than a minimal effect on
the ability to do basic work activities yet does not meet or equal in severity the
requirements of any impairment in the Listing of Impairments), the sequential
evaluation process generally must continue with an identification of the
individual's functional limitations and restrictions and an assessment of his or her
remaining capacities for work-related activities.[1] This assessment of RFC is used
at step 4 of the sequential evaluation process to determine whether an individual
is able to do past relevant work, and at step 5 to determine whether an individual
is able to do other work, considering his or her age, education, and work
experience.
Definition of RFC. RFC is what an individual can still do despite his or her
limitations. RFC is an administrative assessment of the extent to which an
individual's medically determinable impairment(s), including any related
symptoms, such as pain, may cause physical or mental limitations or restrictions
that may affect his or her capacity to do work- related physical and mental
activities. (See SSR 96-4p, "Titles II and XVI: Symptoms, Medically

Determinable Physical and Mental Impairments, and Exertional and

Nonexertional
Limitations.")
Ordinarily,
RFC
is
the
individual'smaximum remaining ability to do sustained work activities in an
ordinary work setting on a regular and continuing basis, and the RFC
assessment must include a discussion of the individual's abilities on that basis. A
"regular and continuing basis" means 8 hours a day, for 5 days a week, or an
equivalent work schedule.[2] RFC does not represent the least an individual can do
despite his or her limitations or restrictions, but the most.[3] RFC is assessed by
adjudicators at each level of the administrative review process based on all of the
relevant evidence in the case record, including information about the individual's
symptoms and any "medical source statements" -- i.e., opinions about what the
individual can still do despite his or her impairment(s)-- submitted by an
individual's treating source or other acceptable medical sources.[4]
The RFC Assessment Must be Based Solely on the Individual's Impairment(s). The
Act requires that an individual's inability to work must result from the individual's
physical or mental impairment(s). Therefore, in assessing RFC, the adjudicator
must consider only limitations and restrictions attributable to medically
determinable impairments. It is incorrect to find that an individual has
limitations or restrictions beyond those caused by his or her medical
impairment(s) including any related symptoms, such as pain, due to factors
such as age or height, or whether the individual had ever engaged in certain
activities in his or her past relevant work (e.g., lifting heavy weights.) Age and
body habitus (i.e., natural body build, physique, constitution, size, and weight,
insofar as they are unrelated to the individual's medically determinable
impairment(s) and related symptoms) are not factors in assessing RFC in initial
claims.[5]
Likewise,
restriction
that there
individual
capacity.

when there is no allegation of a physical or mental limitation or

of a specific functional capacity, and no information in the case record
is such a limitation or restriction, the adjudicator must consider the
to have no limitation or restriction with respect to that functional

RFC AND SEQUENTIAL EVALUATION

RFC is an issue only at steps 4 and 5 of the sequential evaluation process. The
following are issues regarding the RFC assessment and its use at each of these
steps.
RFC and exertional levels of work. 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. At step 4 of the sequential evaluation process, the RFC
must not be expressed initially in terms of the exertional categories of "sedentary,"
"light," "medium," "heavy," and "very heavy" work because the first consideration
at this step is whether the individual can do past relevant work as he or she
actually performed it.
RFC may be expressed in terms of an exertional category, such as light, if it
becomes necessary to assess whether an individual is able to do his or her past
relevant work as it is generally performed in the national economy. 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 as it is generally performed in the national
economy because particular occupations may not require all of the exertional and
nonexertional demands necessary to do the full range of work at a given
exertional level.

At step 5 of the sequential evaluation process, RFC must be expressed in terms of,
or related to, the exertional categories when the adjudicator determines whether
there is other work the individual can do. However, in order for an individual to
do a full range of work at a given exertional level, such as sedentary, the
individual must be able to perform substantially all of the exertional and
nonexertional functions required in work at that level. Therefore, it is necessary to
assess the individual s capacity to perform each of these functions in order to
decide which exertional level is appropriate and whether the individual is capable
of doing the full range of work contemplated by the exertional level.
Initial failure to consider an individual's ability to perform the specific workrelated functions could be critical to the outcome of a case. For example:
1. At step 4 of the sequential evaluation process, it is especially important to
determine whether an individual who is at least "closely approaching advanced
age" is able to do past relevant work because failure to address this issue at step 4
can result in an erroneous finding that the individual is disabled at step 5. It is
very important to consider first whether the individual can still do past relevant
work as he or she actually performed it because individual jobs within an
occupational category as performed for particular employers may not entail all of
the requirements of the exertional level indicated for that category in
the Dictionary of Occupational Titles and its related volumes.
2. The opposite result may also occur at step 4 of the sequential evaluation
process. When it is found that an individual cannot do past relevant work as he or
she actually performed it, the adjudicator must consider whether the individual
can do the work as it is generally performed in the national economy. Again,
however, a failure to first make a function-by-function assessment of the
individual's limitations or restrictions could result in the adjudicator overlooking
some of an individual's limitations or restrictions. This could lead to an incorrect
use of an exertional category to find that the individual is able to do past relevant
work as it is generally performed and an erroneous finding that the individual is
not disabled.
3. At step 5 of the sequential evaluation process, the same failures could result in
an improper application of the rules in appendix 2 to subpart P of the Regulations
No. 4 (the "Medical-Vocational Guidelines) and could make the difference
between a finding of "disabled" and "not disabled." Without a careful
consideration of an individual's functional capacities to support an RFC
assessment based on an exertional category, the adjudicator may either overlook
limitations or restrictions that would narrow the ranges and types of work an
individual may be able to do, or find that the individual has limitations or
restrictions that he or she does not actually have.
RFC represents the most that an individual can do despite his or her limitations
or restrictions. At step 5 of the sequential evaluation process, RFC must not be
expressed in terms of the lowest exertional level (e.g., "sedentary" or "light" when
the individual can perform "medium" work) at which the medical-vocational rules
would still direct a finding of "not disabled." This would concede lesser functional
abilities than the individual actually possesses and would not reflect the most he
or she can do based on the evidence in the case record, as directed by the
regulations.[6]
The psychiatric review technique. The psychiatric review technique described in
20 CFR 404.1520a and 416.920a and summarized on the Psychiatric Review
Technique Form (PRTF) requires adjudicators to assess an individual's limitations
and restrictions from a mental impairment(s) in categories identified in the
"paragraph B" and "paragraph C" criteria of the adult mental disorders listings.
The adjudicator must remember that the limitations identified in the "paragraph

B" and "paragraph C" criteria are not an RFC assessment but are used to rate the
severity of mental impairment(s) at steps 2 and 3 of the sequential evaluation
process. The mental RFC assessment used at steps 4 and 5 of the sequential
evaluation process requires a more detailed assessment by itemizing various
functions contained in the broad categories found in paragraphs B and C of the
adult mental disorders listings in 12.00 of the Listing of Impairments, and
summarized on the PRTF.
EVIDENCE CONSIDERED
The RFC assessment must be based on all of the relevant evidence in the case
record, such as:
Medical history,
Medical signs and laboratory findings,
The effects of treatment, including limitations or restrictions imposed by the
mechanics of treatment (e.g., frequency of treatment, duration, disruption to
routine, side effects of medication),
Reports of daily activities,
Lay evidence,
Recorded observations,
Medical source statements,
Effects of symptoms, including pain, that are reasonably attributed to a
medically determinable impairment,
Evidence from attempts to work,
Need for a structured living environment, and
Work evaluations, if available.

The adjudicator must consider all allegations of physical and mental limitations or
restrictions and make every reasonable effort to ensure that the file contains
sufficient evidence to assess RFC. Careful consideration must be given to any
available information about symptoms because subjective descriptions may
indicate more severe limitations or restrictions than can be shown by objective
medical evidence alone.
In assessing RFC, the adjudicator must consider limitations and restrictions
imposed by all of an individual's impairments, even those that are not "severe."
While a "not severe" impairment(s) standing alone may not significantly limit an
individual's ability to do basic work activities, it may--when considered with
limitations or restrictions due to other impairments--be critical to the outcome of a
claim. For example, in combination with limitations imposed by an individual's
other impairments, the limitations due to such a "not severe" impairment may
prevent an individual from performing past relevant work or may narrow the
range of other work that the individual may still be able to do.
EXERTIONAL AND NONEXERTIONAL FUNCTIONS
The RFC assessment must address both the remaining exertional and
nonexertional capacities of the individual.
Exertional capacity
Exertional capacity addresses an individual's limitations and restrictions of
physical strength and defines the individual's remaining abilities to perform each
of seven strength demands: Sitting, standing, walking, lifting, carrying, pushing,
and pulling. Each function must be considered separately (e.g., "the individual can
walk for 5 out of 8 hours and stand for 6 out of 8 hours"), even if the final RFC

assessment will combine activities (e.g., "walk/stand, lift/carry, push/pull").

Although the regulations describing the exertional levels of work and
the Dictionary of Occupational Titles and its related volumes pair some functions,
it is not invariably the case that treating the activities together will result in the
same decisional outcome as treating them separately.
It is especially important that adjudicators consider the capacities separately when
deciding whether an individual can do past relevant work. However, separate
consideration may also influence decision-making at step 5 of the sequential
evaluation process, for reasons already given in the section on "RFC and
Sequential Evaluation."
Non-exertional capacity
Non-exertional capacity considers all work-related limitations and restrictions that
do not depend on an individual's physical strength; i.e., all physical limitations
and restrictions that are not reflected in the seven strength demands, and mental
limitations and restrictions. It assesses an individual's abilities to perform physical
activities such as postural (e.g., stooping, climbing), manipulative (e.g., reaching,
handling), visual (seeing), communicative (hearing, speaking), and mental (e.g.,
understanding and remembering instructions and responding appropriately to
supervision). In addition to these activities, it also considers the ability to tolerate
various environmental factors (e.g., tolerance of temperature extremes).
As with exertional capacity, non-exertional capacity must be expressed in terms of
work- related functions. For example, in assessing RFC for an individual with a
visual impairment, the adjudicator must consider the individual's residual capacity
to perform such work-related functions as working with large or small objects,
following instructions, or avoiding ordinary hazards in the workplace. In
assessing RFC with impairments affecting hearing or speech, the adjudicator must
explain how the individual's limitations would affect his or her ability to
communicate in the workplace. Work-related mental activities generally required
by competitive, remunerative work include the abilities to: understand, carry out,
and remember instructions; use judgment in making work-related decisions;
respond appropriately to supervision, co-workers and work situations; and deal
with changes in a routine work setting.
Consider the nature of the activity affected
It is the nature of an individual's limitations or restrictions that determines
whether the individual will have only exertional limitations or restrictions, only
non-exertional limitations or restrictions, or a combination of exertional and nonexertional limitations or restrictions. For example, symptoms, including pain, are
not intrinsically exertional or non-exertional. Symptoms often affect the capacity
to perform one of the seven strength demands and may or may not have effects on
the demands of occupations other than the strength demands. If the only
limitations or restrictions caused by symptoms, such as pain, are in one or more of
the seven strength demands (e.g., lifting) the limitations or restrictions will be
exertional. On the other hand, if an individual's symptoms cause a limitation or
restriction that affects the individual's ability to meet the demands of occupations
other than their strength demands (e.g., manipulation or concentration), the
limitation or restriction will be classified as non-exertional. Symptoms may also
cause both exertional and non-exertional limitations.
Likewise, even though mental impairments usually affect non-exertional
functions, they may also limit exertional capacity by affecting one or more of the

seven strength demands. For example, a mental impairment may cause fatigue or
hysterical paralysis.
NARRATIVE DISCUSSION REQUIREMENTS
The RFC assessment must include a narrative discussion describing how the
evidence supports each conclusion, citing specific medical facts (e.g., laboratory
findings) and non-medical evidence (e.g., daily activities, observations). 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 (i.e., 8 hours a day, for 5 days a week, or an equivalent work schedule) [7],
and describe the maximum amount of each work-related activity the individual
can perform based on the evidence available in the case record. The adjudicator
must also explain how any material inconsistencies or ambiguities in the evidence
in the case record were considered and resolved.
Symptoms. In all cases in which symptoms, such as pain, are alleged, the RFC
assessment must:
Contain a thorough discussion and analysis of the objective medical and other
evidence, including the individual's complaints of pain and other symptoms and
the adjudicator's personal observations, if appropriate;
Include a resolution of any inconsistencies in the evidence as a whole; and
Set forth a logical explanation of the effects of the symptoms, including pain,
on the individual's ability to work.

The RFC assessment must include a discussion of why reported symptom-related

functional limitations and restrictions can or cannot reasonably be accepted as
consistent with the medical and other evidence. In instances in which the
adjudicator has observed the individual, he or she is not free to accept or reject
that individual's complaints solely on the basis of such personal observations. (For
further information about RFC assessment and the evaluation of symptoms,
see SSR 96-7p, "Titles II and XVI: Evaluation of Symptoms in Disability Claims:
Assessing the Credibility of an Individual's Statements.")
Medical opinions. The RFC assessment must always consider and address
medical source opinions. If the RFC assessment conflicts with an opinion from a
medical source, the adjudicator must explain why the opinion was not adopted.
Medical opinions from treating sources about the nature and severity of an
individual's impairment(s) are entitled to special significance and may be entitled
to controlling weight. If a treating source's medical opinion on an issue of the
nature and severity of an individual's impairment(s) is well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in the case record, the adjudicator
must give it controlling weight. (See SSR 96-2p, "Titles II and XVI: Giving
Controlling Weight to Treating Source Medical Opinions," and SSR 96-5p, "Titles
II and XVI: Medical Source Opinions on Issues Reserved to the Commissioner.")
[8]

EFFECTIVE DATE: This ruling is effective on the date of its publication in

the Federal Register.
CROSS-REFERENCES: SSR 82-52, "Titles II and XVI: Duration of the
Impairment" (C.E. 1981-1985, p. 328), SSR 82-61, "Titles II and XVI: Past
Relevant Work--The Particular Job Or the Occupation As Generally Performed"
(C.E. 1981-1985, p. 427), SSR 82-62, "Titles II and XVI: A Disability Claimant's

Capacity To Do Past Relevant Work, In General" (C.E. 1981-1985, p. 400), SSR

83-20, "Titles II and XVI: Onset of Disability" (C.E. 1981-1985, p. 375), SSR 8516, "Titles II and XVI: Residual Functional Capacity for Mental Impairments"
(C.E. 1981-1985, p. 390), SSR 86-8, "Titles II and XVI: The Sequential
Evaluation Process" (C.E. 1986, p. 78), SSR 96-6p, "Titles II and XVI:
Consideration of Administrative Findings of Fact by State Agency Medical and
Psychological Consultants and Other Program Physicians and Psychologists at the
Administrative Law Judge and Appeals Council Levels of Administrative Review;
Medical Equivalence," SSR 96-2p, "Titles II and XVI: Giving Controlling Weight
to Treating Source Medical Opinions," SSR 96-4p, "Titles II and XVI: Symptoms,
Medically Determinable Physical and Mental Impairments, and Exertional and
Nonexertional Limitations," SSR 96-5p "Titles II and XVI: Medical Source
Opinions on Issues Reserved to the Commissioner," SSR 96-9p "Titles II and
XVI: Determining Capability to Do Other Work--Implications of a Residual
Functional Capacity for Less Than a Full Range of Sedentary Work," SSR 96-7p,
"Titles II and XVI: Evaluation of Symptoms in Disability Claims: Assessing the
Credibility of an Individual's Statements;" and Program Operations Manual
System, sections DI 22515.010, DI 24510.000 ff., DI 24515.002- DI 24515.007,
DI 24515.061-DI 24515.062, DI 24515.064, DI 25501.000 ff., DI 25505.000 ff.,
and DI 28015.000 ff.
[1]

However, a finding of "disabled" will be made for an individual who: a) has a

severe impairment(s), b) has no past relevant work, c) is age 55 or older, and d)
has no more than a limited education. (See SSR 82-63 "Titles II and XVI:
Medical- Vocational Profiles Showing an Inability to Make an Adjustment to
Other Work" (C.E. 1981-1985, p. 447.) In such a case, it is not necessary to assess
the individual's RFC to determine if he or she meets this special profile and is,
therefore, disabled.
[2]
The ability to work 8 hours a day for 5 days a week is not always required when
evaluating an individual's ability to do past relevant work at step 4 of the
sequential evaluation process. Part-time work that was substantial gainful activity,
performed within the past 15 years, and lasted long enough for the person to learn
to do it constitutes past relevant work, and an individual who retains the RFC to
perform such work must be found not disabled.
[3]
See SSR 83-10, "Titles II and XVI: Determining Capability to Do Other Work-The Medical Vocational Rules of Appendix 2" (C.E. 1981-1985, p. 516). SSR 8310 states that "(T)he RFC determines a work capability that is exertionally
sufficient to allow performance of at least substantially all of the activities of
work at a particular level (e.g., sedentary, light, or medium), but is also
insufficient to allow substantial performance of work at greater exertional levels."
[4]
For a detailed discussion of the difference between the RFC assessment, which
is an administrative finding of fact, and the opinion evidence called the "medical
source statement" or "MSS," see SSR 96-5p, "Titles II and XVI: Medical Source
Opinions on Issues Reserved to the Commissioner."
[5]
The definition of disability in the Act requires that an individual's inability to
work must be due to a medically determinable physical or mental impairment(s).
The assessment of RFC must therefore be concerned with the impact of a disease
process or injury on the individual. In determining a person's maximum RFC for
sustained activity, factors of age or body habitus must not be allowed to influence
the assessment.
[6]
In the Fourth Circuit, adjudicators are required to adopt a finding, absent new
and material evidence, regarding the individual's RFC made in a final decision by
an administrative law judge or the Appeals Council on a prior disability claim
arising under the same title of the Act. In this jurisdiction, an unfavorable
determination or decision using the lowest exertional level at which the rules
would direct a finding of not disabled could result in an unwarranted favorable
determination or decision on an individual's subsequent application; for example,

if the individual's age changes to a higher age category following the final
decision on the earlier application. See Acquiescence Ruling (AR) 94-2(4),
"Lively v. Secretary of Health and Human Services, 820 F.2d 1391 (4th Cir.
1987)--Effect of Prior Disability Findings on Adjudication of a Subsequent
Disability Claim Arising Under the Same Title of the Social Security Act--Titles II
and XVI of the Social Security Act." AR 94-2(4) applies to disability findings in
cases involving claimants who reside in the Fourth Circuit at the time of the
determination or decision on the subsequent claim.
[7]
See Footnote 2.
[8]
A medical source opinion that an individual is "disabled" or "unable to work,"
has an impairment(s) that meets or is equivalent in severity to the requirements of
a listing, has a particular RFC, or that concerns the application of vocational
factors, is an opinion on an issue reserved to the Commissioner. Every such
opinion must still be considered in adjudicating a disability claim; however, the
adjudicator will not give any special significance to the opinion because of its
source. See SSR 96-5p, "Titles II and XVI: Medical Source Opinions on Issues
Reserved to the Commissioner." For further information about the evaluation of
medical source opinions, SSR 96-6p, "Titles II and XVI: Consideration of
Administrative Findings of Fact by State Agency Medical and Psychological
Consultants and Other Program Physicians and Psychologists at the
Administrative Law Judge and Appeals Council Levels of Administrative Review;
Medical Equivalence."

I am also providing Decisions of the U.S. Supreme Court regarding

disability claim benefits before the Social Security Administration, some of
which may be useful in the clients initial claim for disability benefits:
Brown v. Commissioner of Social Security Admin., 245 F. Supp. 2d 1175 (D.
Kan. 2003)
U.S. District Court for the District of Kansas - 245 F. Supp. 2d 1175 (D. Kan.
2003)
February 19, 2003
245 F. Supp. 2d 1175 (2003)
Martha D. BROWN, Plaintiff,
v.
COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION,
Defendant.
No. CIV.A.01-2308-DJW.
United States District Court, D. Kansas.
February 19, 2003.
*1177 Melanie D. Caro, Office of United States Attorney, Kansas City, KS,
Robert A. Olsen Office of United States Attorney, Kansas City, KS, for
Defendant.
Ross E. Stubblefield, Blue Springs, MO, for Defendant.
MEMORANDUM AND ORDER
WAXSE, United States Magistrate Judge.
Plaintiff seeks judicial review, pursuant to 42 U.S.C. 405(g) and 1383(c), of
the final decision of Defendant Commissioner of the Social Security
Administration ("Commissioner") denying her applications for disability
insurance and supplemental security income benefits under Titles II and XVI of
the Social Security Act, as amended. The parties have filed their consent to

jurisdiction by Magistrate Judge, pursuant to 28 U.S.C. 636(c) (1) and

Fed.R.Civ.P. 73 (doc. 20). Plaintiff has filed a brief (doc. 11) seeking judicial
review of the Commissioner's decision. The Commissioner has filed a brief in
opposition (doc. 16), and Plaintiff has filed a reply (doc. 21).
The Court has reviewed the administrative record and the briefs of both parties.
As set forth below, the Court reverses the decision of the Commissioner and
remands the case to the administrative law judge for further proceedings
consistent with this decision.
I. Standard of Review
Pursuant to 42 U.S.C. 405(g) and 1383(c) (3), a court may render "upon the
pleadings and transcript of the record, a judgment affirming, modifying, or
reversing the decision of the Commissioner of Social Security, with or without
remanding the cause for a rehearing." The court reviews the decision of the
Commissioner to determine whether the record as a whole contains substantial
evidence to support the Commissioner's decision.[1] The *1178 Supreme Court has
held that "substantial evidence" is "more than a mere scintilla" and is "such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion."[2] In reviewing the record to determine whether substantial evidence
supports the Commissioner's decision, the court may neither reweigh the evidence
nor substitute its discretion for that of the Commissioner.[3] Evidence is not
considered substantial "if it is overwhelmed by other evidenceparticularly certain
types of evidence (e.g., that offered by treating physicians)or if it really
constitutes not evidence but mere conclusion."[4]
The court also reviews the decision of the Commissioner to determine whether the
Commissioner applied the correct legal standards.[5] The Commissioner's failure
to apply the proper legal standard may be sufficient grounds for reversal
independent of the substantial evidence analysis.[6]
Accordingly, the court reviews the decision of the Commissioner to determine
whether the record as a whole contains substantial evidence to support the
Commissioner's decision and to determine whether the correct legal standards
were applied.[7]
II. Procedural History
Plaintiff filed her applications for disability insurance benefits and supplemental
security income benefits on August 26, 1998. See Certified Transcript of the
Record ("Tr.") at 12, 49, 150, doc. 8.) The Commissioner denied the claims
initially and upon reconsideration. (Tr. 24-27, 32-35)
On February 29, 2000, the Administrative Law Judge ("ALJ") conducted a
hearing on Plaintiffs claim. (Tr. 165-198) Plaintiff appeared in person without an
attorney. (Tr. 167)
On November 22, 2000, the ALJ issued his decision, in which he concluded that
Plaintiff was not disabled within the meaning of the Social Security Act and was
therefore not entitled to receive disability insurance and supplemental security
income benefits. (Tr. 19) In reaching this conclusion, the ALJ determined that
Plaintiffs impairments did not prevent her from performing a significant range of
light work and that there are a significant number of jobs in the national economy
she could perform, such as file clerk and appointment clerk. (Tr. 19)
On January 25, 2001, Plaintiff requested a review of the hearing decision by the
Appeals Council (Tr. 8), which was denied by the Appeals Council on April 16,
2001 (Tr. 5-6). The findings of the ALJ therefore stand as the final decision of the
Commissioner in this case.
Plaintiff alleges that she became disabled and eligible to receive disability
insurance and supplemental security income benefits on June 2, 1998, due to
carpal tunnel syndrome, bilateral hearing loss, and removal of a left glomus

tympanicum tumor. (Tr. 13, 50) At the time of the *1179 hearing before the ALJ,
Plaintiff was 48 years of age. (Tr. 50, 151) Under the Social Security regulations,
she is classified as a "younger" individual.[8] Plaintiff has "more than a high school
(or high school equivalent) education" but no other formal education or training.
(Tr. 17, 19) Plaintiffs past relevant work includes working as a cook and kitchen
supervisor. (Tr. 16, 91) She ceased all work activity on June 2, 1998, the alleged
onset date of her disability. (Tr. 50)
III. The ALJ's Findings
In his decision of November 22, 2000, the ALJ made the following findings:
1. The claimant meets the nondisability requirements for a period of disability and
Disability Insurance Benefits set forth in Section 216(i) of the Social Security Act
and is insured for benefits through the date of this decision.
2. The claimant has not engaged in substantial gainful activity since the alleged
onset of disability.
3. The claimant has bilateral carpal tunnel syndrom and hearing loss left ear
which are impairments considered "severe" based on the requirements in the
Regulations 20 CFR 404.1520(b) and 416.920(b).
4. These medically determinable impairments do not meet or medically equal one
of the listed impairments in Appendix 1, Subpart P, Regulation No. 4.
5. The undersigned finds the claimant's allegations regarding her symptoms were
credible for the reasons set forth in the body of the decision.
6. The undersigned has carefully considered all of the medical opinions in the
record regarding the severity of the claimant's impairment (20 CFR 404.1527
and 416.927).
7. The claimant has the residual functional capacity to lift and/or carry 10 pounds
frequently, stand, walk and sit the entire 8-hour workday; and is limited bilaterally
in the upper extremities for repetitive pushing and puling [sic]. She should not
climb ropes, ladders and scaffolds; is frequently limited in crawling; is
occasionally limited in kneeling, crouching, balancing and other forms of
climbing; is occasionally limited bilaterally for fingering and feeling; has limited
hearing in left ear; should avoid exposed heights, concentrations of vibration in
workplace and background noise above moderate office level, and is frequently
limited for rough terrain.
8. The claimant is unable to perform any of her past relevant work (20 CFR
404.1565 and 416.965).
9. The claimant is a "younger individual between the ages of 45 and 49" (20 CFR
404.1563 and 416.963).
10. The claimant has "more than a high school (or high school equivalent
education" (20 CFR. 404.1564 and 416.964).
11. The claimant has no transferable skills from skilled work previously
performed as described in the body of the decision (20 CFR 404.1568 and
416.968).

12. The claimant has the residual functional capacity to perform a significant
range of light work (20 CFR 416.967).
13. Although the claimant's exertional limitations do not allow her to perform the
full range of light work, using Medical-Vocational Rule *1180 202.21 as a
framework for decisionmaking, there are a significant number of jobs in the
national economy that she could perform. Examples of such jobs include work as
file clerk and appointment clerk.
14. The claimant was not under a "disability" as defined in the Social Security
Act, at any time through the date of this decision (20 CFR 404.1520(f) and
416.920(f)). (Tr. 18-19)
V. Analysis and Discussion
A. Waiver of Right to Counsel
Plaintiff first argues that the ALJ committed reversible error because he failed to
advise her that any fees charged by an appointed attorney would have to be
approved by the Commissioner or court. Plaintiff contends that the ALJ's failure
to so advise her resulted in Plaintiff not being properly informed of her right to
counsel and rendered her waiver of the right to counsel invalid.
The Court finds Plaintiffs argument to be without merit, for several reasons. First,
the Court finds no statutory or regulatory basis for requiring the Commissioner to
advise a claimant that the Social Security Administration or court must approve
any fees charged by an attorney appointed to represent the claimant in the hearing
or appeal process. The statute dealing with the representation of claimants before
the Commissioner, 42 U.S.C. 406, contains only one provision regarding the
notification of claimants. It provides that the Commissioner "shall notify each
claimant in writing, together with the notice to such claimant of an adverse
determination, of the options for obtaining attorneys to represent individuals in
presenting their cases before the Commissioner.... Such notification shall also
advise the claimant of the availability to qualifying claimants of legal services
organizations which provide legal services free of charge." [9] The pertinent
regulation, 20 C.F.R. 404.1706, contains a similar notification provision. It
states that when a claimant is not represented by an attorney and the
Commissioner makes a determination subject to the administrative review process
that does not grant the claimant all of the benefits sought, the Commissioner "will
include with the notice of that determination or decision information about your
options for obtaining an attorney to represent you in dealing with us. We will also
tell you that a legal services organization may provide you with legal
representation free of charge if you satisfy the qualifying requirements applicable
to that organization." [10]
Nothing in either of these provisions requires the Commissioner to notify the
claimant that any attorney fees charged by an appointed attorney must be
approved by the Commissioner or by a court. Furthermore, nothing in the case
law of this circuit requires such a notification. Tenth Circuit precedent requires
only that the claimant receive notice of his/her options for obtaining an attorney
and notice of free legal services that might be available, as set forth in the abovecited statute and regulation.[11] Plaintiff does not provide any Tenth Circuit support
for her argument that additional information regarding *1181 the approval of fees
must be provided, and instead relies on a 1991 decision by the Seventh Circuit.
[12]
That decision, however, is not binding on this Court. There simply is no basis
for this Court to apply a more stringent standard than that required by the Tenth
Circuit.

Even if this Court were to hold that this more stringent standard should be
applied, the Court would find that the standard had been met here. Plaintiff signed
a form entitled "Right to Representation" (Tr. 45) on January 29, 2000,
immediately prior to the hearing before the ALJ. That form contained the
following notification:
At the hearing today you have the right to be represented by an attorney or other
person of your choice. The other person does not have to be an attorney. DO YOU
UNDERSTAND YOUR RIGHT TO BE REPRESENTED AT THE HEARING
TODAY? YES NO
******
A representative cannot charge you a fee unless and until we approve it. An
explanation of the types of fee arrangements and of other information relating to
fees can be found on the attached form called "Social Security and Your Right to
Representation."
DO YOU UNDERSTAND THE IFORMATION ABOUT FEES? YES NO
******
DO YOU WANT TO PROCEED WITH THE HEARING TODAY WITHOUT A
REPRESENTATIVE? YES NO
(Tr. 45)
Plaintiff circled all of the "YES" answers. (Tr. 45)
The form also asked Plaintiff: "DO YOU HAVE ANY QUESTIONS ABOUT
RERESENTATION RIGHTS?" (Tr. 45) She answered "NO." (Tr. 45)
Plaintiff received a copy of the document entitled `Your Right to Representation"
(Tr. 46-47), which is referenced in the form. That document, which consists of
two pages, explains in great detail what the representative/attorney may charge,
how a fee petition is filed, and how much the claimant must pay. (Tr. 46-47) In
boldface type, the document states: /'Your representative cannot charge or collect
a fee from you without first getting written approval from us, even if your claim is
denied." (Tr. 46) It also states that if the claimant goes before a federal court, the
court will allow a reasonable fee for the claimant's attorney, which usually will
not exceed 25 percent of all past due benefits. (Tr. 47)
The Court finds that this document fully informed Plaintiff of her right to have her
attorney's fees approved by the Commissioner and/or court and that Plaintiffs
signing of the "Right to Representation" form and her answers to the questions
contained therein indicate Plaintiff understood her right to have the fees approved.
Thus, even if this Court were to find that the Seventh Circuit's heightened
standard should apply to this case, the standard would have been met.[13]
In light of the above, the Court holds that Plaintiffs waiver of her right to
representation was valid and that no error occurred in this regard.
*1182 B. The ALJ's Credibility Determination
Plaintiff next argues that the ALJ erred in determining the weight to be given
Plaintiffs testimony because the ALJ allegedly never made "a specific credibility
determination,"[14] and failed to consider and discuss all of the Luna factors in
determining Plaintiffs credibility. Plaintiff argues that the credibility
determination of the ALJ is "fatally flawed," thereby justifying reversal.[15]

The Court is unpersuaded by these arguments. The ALJ did in fact make a
credibility determination. He expressly found "claimant's allegations regarding
her symptoms were credible." (Tr. 18) In the body of his decision, the ALJ states:
"Claimant has alleged she has problems hearing and using her upper extremities,
the undersigned finds those allegations credible and consistent with the evidence."
(Tr. 16)
Admittedly, the ALJ did not discuss any of the factors set forth in Luna v.
Bowen[16] and gave only his conclusion but no reasons for his conclusion. This,
however, does not render the ALJ's decision erroneous. Here, the ALJ found
Plaintiffs complaints to be credible. The general requirement that the ALJ discuss
the Luna factors and specifically state the reasons for his/her credibility decision
does not apply when the ALJ determines the claimant's complaints are
credible. As the Tenth Circuit noted in Kepler v. Chater,[17] the ALJ is required to
"explain why the specific evidence relevant to each factor led him to conclude
[the] claimant's subjective complaints were not credible."[18] No reason exists to
impose such a requirement where the ALJ determines that the claimant's
complaints are credible, which is a decision wholly favorable to the claimant.
[19]
Accordingly, the Court finds that no error was committed here when the ALJ
failed to discuss the Luna factors and when he failed to explain what specific
evidence led him to conclude that Plaintiffs subjective complaints and symptoms
were credible.
Even if the Court were to find this to be error, the Court would have to find it
harmless given that the ALJ's credibility finding was advantageous to Plaintiff.
Plaintiff fails to demonstrate how the ALJ's credibility determination and failure
to state the reasons for his determination harmed her or unfairly affected her case
in any way. Although she claims the ALJ's conduct makes "it impossible to
determine how much weight the ALJ gave [her] symptoms," [20] she does not
explain this argument at all. The Court is at a loss to understand how Plaintiffs
case was harmed by the ALJ's conduct. Thus, even if the Court were to conclude
that the ALJ did commit error, the error was harmless. *1183 And, generally
speaking, "a case will not be remanded if the ALJ's mistake was merely harmless
error."[21]
Accordingly, the Court finds no basis to reverse or remand the case based on these
arguments.
C. Step Three of the Sequential Evaluation Process
Plaintiff next argues that the case should be reversed, or in the alternative,
remanded because the ALJ failed to support his step three determination that
Plaintiffs impairments were not severe enough to meet or equal the so-called
"listed impairments" that are conclusively presumed to be disabling.
The Commissioner has developed a fivestep sequential evaluation process for
determining disability.[22]
Step one determines whether the claimant is presently engaged in substantial
gainful activity. If he or she is not, the decision maker proceeds to step two,
determining whether the claimant has a medically severe impairment or
combination of impairments which significantly limit the claimant's ability to
work. If the claimant is able to make such a showing, the decision maker proceeds
to step three, whether the impairment meets or equals one of a number of listed
impairments that are so severe as to preclude substantial gainful activity. If the
claimant's impairment does not satisfy this step, then the decision maker proceeds
to step four, where the claimant must show that the impairment prevents the
claimant from performing work he has performed in the past. At step five, the
burden shifts to the Commissioner to show that the claimant retains the residual
functional capacity (RFC) to do other work that exists in the national economy.[23]

At step three of the sequential analysis, the ALJ determines whether a claimant's
impairment "is equivalent to one of a number of listed impairments that the
[Commissioner] acknowledges are so severe as to preclude substantial gainful
activity."[24] If the impairment meets or equals one of the listed impairments, the
claimant is conclusively presumed to be disabled.[25]
In evaluating whether a claimant meets or equals the criteria for a listed
impairment, the ALJ is required to compare the symptoms, signs, and laboratory
findings regarding a claimant's impairments, as shown in the medical evidence
associated with the claim, with the medical criteria shown with the listed
impairment.[26] When making the determination whether a particular condition
meets the requirements of a listed impairment, the ALJ is required at step three to
discuss the evidence and explain why he/she found that the claimant was not
disabled.[27] The record must demonstrate that the ALJ considered all of the
evidence when making his/her step three finding. [28] Although the ALJ is not
required to discuss every piece of evidence, *1184 the ALJ must discuss the
evidence supporting his/her decision and the uncontroverted evidence relied upon,
as well as any significantly probative evidence rejected. [29] In short, the ALJ must
provide a sufficient discussion of his or her conclusion so as to allow for
meaningful review by the court.[30]
Plaintiff cites Clifton v. Ckater[31] in support of her request for remand.
In Clifton, the Tenth Circuit reversed the district court and remanded the case for
additional proceedings when the ALJ made such a "bare conclusion" that it was
effectively "beyond meaningful judicial review."[32] The Clifton court's decision
was based on the fact that "the ALJ did not discuss the evidence or his reasons for
determining that [the claimant] was not disabled at step three, or even identify the
relevant Listing or Listings; he merely stated a summary conclusion that [the
claimant's] impairments did not meet or equal any Listed Impairment."[33]
In this case, the ALJ found that Plaintiffs "medically determinable impairments
[bilateral carpal tunnel syndrom and hearing loss in the left ear] do not meet or
medically equal one of the listed impairments in Appendix 1, Subpart P.,
Regulation No. 4." (Tr. 18) Similarly, in his "Evaluation of the Evidence" portion
of his decision, the ALJ stated that Plaintiffs bilateral carpal tunnel syndrome and
hearing loss in the left ear were "not severe enough to meet or medically equal
one of the impairments listed in Appendix 1, Subpart P, Regulations No. 4." (Tr.
15) He further stated: "The evidence shows that claimant's impairments do not
meet or equal the criteria of any listed impairment." (Tr. 15)
Nowhere in his decision does the ALJ identify any relevant listing that he
compared with Plaintiffs impairments to ascertain if they met or equaled that
listing. Without any reference to a specific listing, it is impossible for the Court to
meaningfully review the ALJ's decision to determine whether substar tial
evidence supports a finding that Plaintiffs impairments do not meet or equal the
criteria of that listing.[34] Furthermore, the ALJ failed to discuss the evidence or his
reasons for determining that Plaintiffs impairments did not meet or equal any
impairment listing. In the absence of ALJ findings supported by a specific
weighing of the evidence, the Court cannot assess whether relevant evidence
adequately supports the ALJ's conclusion that Plaintiffs impairment did not meet
or equal any listed impairment and whether the ALJ used the correct legal
standard in arriving at that conclusion.
Applying the rules set forth in Clifton, the Court concludes that remand is
necessary.[35] On remand, the ALJ shall specifically identify the relevant listings
he compared to Plaintiffs symptoms, signs, and laboratory findings. After the ALJ
identifies the relevant listings, the ALJ shall set out his specific findings and his
reasons for accepting or rejecting the evidence regardnot *1185 ing whether
Plaintiffs impairments meet or equal those listings.

D. Residual Functional Capacity

Plaintiff asserts several points of error with respect to step four of the sequential
process and the ALJ's determination of Plaintiffs residual functional capacity
("RFC"). Step four, at which the ALJ found Plaintiff not disabled, is comprised of
three phases. In the first phase, the ALJ must evaluate a claimant's physical and
mental RFC.[36] In this phase, the ALJ first identifies the individual's functional
limitations or restrictions and assesses his/ her work-related abilities on a
function-byfunction basis.[37] Then, the ALJ expresses the claimant's RFC "in
terms of the exertional levels of work, sedentary, light, medium, heavy, and very
heavy."[38] In the second phase, the ALJ must determine the physical and mental
demands of the claimant's past relevant work."[39] In the final phase, the ALJ
determines "whether the claimant has the ability to meet the job demands found in
phase two despite the mental and/or physical limitations found in phase one."[40]
1. Inconsistencies within the ALJ's decision
Plaintiff first asserts that the ALJ's decision contains inconsistent statements as to
the exertional level of work Plaintiff can perform. Plaintiff correctly points out
that the ALJ states in the "Evaluation of the Evidence" section of his decision that
Plaintiff can perform "light exertional work" with certain restrictions (Tr. 16), but
then states two paragraphs later that she has a "sedentary exertional level residual
functional capacity." (Tr. 16-17). Then in his findings, the ALJ states that Plaintiff
has the residual functional capacity to perform a "significant range of light work."
(Tr. 19) Plaintiff contends that these inconsistencies in the ALJ's RFC
determination are material errors of law that require reversal, or, at the very least,
require remand to clarify the inconsistency in the ALJ's decision. The
Commissioner does not respond to Plaintiffs arguments on this issue.
The Court finds that remand is appropriate on this basis. While it appears that the
ALJ's reference to Plaintiffs "sedentary exertional level residual functional
capacity" (Tr. 16-17) was simply a misstatement, the Court cannot leave such an
important issue to speculation. The Court will therefore remand so that the
Commissioner may clarify this material ambiguity about the exertional level of
work Plaintiff can perform.
2. Linking the RFC determination with specific evidence in the record and the
ALJ's compliance with Social Security Ruling 96-8p
Plaintiff next argues that the ALJ erred at step four by failing to adequately
support his RFC determination because he failed to link it to specific evidence in
the record. Plaintiff also argues that the ALJ erred because his RFC assessment
failed to comply with Social Security Ruling 96-8p. [41] Again, the Commissioner
does not respond to Plaintiffs arguments.
*1186 A claimant bears the burden of proving that the claimant's impairments
prevent the claimant from performing work that he/she has performed in the past.
[42]
When, however, the ALJ makes the ultimate finding that a claimant is not
disabled at step four, the ALJ is required by Social Security Ruling 96-8p to make
specific and detailed predicate findings concerning the claimant's RFC, the
physical and mental demands of the claimant's past jobs, and how those demands
mesh with the claimant's particular exertional and nonexertional limitations.[43]
Social Security Ruling 96-8p provides in pertinent part:
The RFC assessment must include a narrative discussion describing how the
evidence supports each conclusion, citing specific medical facts (e.g., laboratory
findings) and nonmedical evidence (e.g., daily activities, observations). 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 (i.e., 8 hours a day, for 5 days a week, or an equivalent work schedule), and

describe the maximum amount of each work-related activity the individual can
perform based on the evidence available in the case record. The adjudicator must
also explain how any material inconsistencies or ambiguities in the evidence in
the case record were considered and resolved. A failure to first make a functionby-function assessment of the claimant's Hmitations of restrictions could result in
the adjudicator overlooking some of the claimant's limitations or restrictions.[44]
In this case, the ALJ stated the following regarding Plaintiffs RFC:
[T]he undersigned notes that the State Agency Medical Consultants found that
claimant had the residual functional capacity to do light work. The undersigned
concurs that claimant can perform light exertional work, with the below
restrictions. Specifically, this Administrative Law Judge finds the claimant retains
the residual functional capacity to lift and/or carry 10 pounds frequently; stand,
walk and sit the entire 8-hour workday; and is limited bilaterally in the upper
extremities for repetitive pushing and puling [sic][.] She should not climb ropes,
ladders and scaffolds; is frequently limited in crawling, is occasionally limited in
kneeling, crouching, balancing and other forms of climbing, is occasionally
limited bilaterally for fingering and feeling; has limited hearing in left ear[;]
should avoid exposed heights, concentrations of vibration in workplace and
background noise above moderate office level; and is frequently limited for rough
terrain. (Tr. 16)
Although the ALJ purports to base these findings on the State Agency Medical
Consultants' Physical Residual Functional Capacity Assessment ("Assessment")
(see Tr. 122-129), the ALJ's findings are not consistent with many items reflected
in the Assessment. For example, the Assessment states that Plaintiff can
frequently lift 25 pounds (Tr. 123), while the ALJ finds that Plaintiff can
frequently lift only 10 pounds (Tr. 16). In addition, the Assessment indicates that
Plaintiffs ability to push and pull is "unlimited" *1187 (Tr. 123), while the ALJ
finds that Plaintiffs ability to push and pull is "limited bilaterally in the upper
extremities." (Tr. 16). Many other inconsistencies exist between the ALJ's
findings and the Assessment. The ALJ, however, never explains why he makes
findings inconsistent with the Assessment nor does he even acknowledge that he
is rejecting portions of the Assessment. He cites to no medical records, testimony,
or other evidence in support of his RFC findings, other than the Assessment. And,
he fails to explain how any material inconsistencies or ambiguities in the evidence
were considered and resolved. In short, the Court finds that the ALJ has failed to
link his RFC determination with specific evidence in the record and has failed to
comply with Social Security Ruling 96-8p.
Due to these failures of the ALJ, the Court cannot adequately assess whether
relevant evidence supports the ALJ's RFC determination. His bare conclusions are
simply beyond meaningful judicial review. The Court therefore holds that the case
must be remanded, and upon remand the Commissioner shall provide the proper
narrative discussion describing how the evidence supports his conclusions at step
four, as required by Social Security Ruling 96-8p, and how the inconsistencies or
ambiguities in the evidence were considered and resolved. This shall include a
discussion of the reasons supporting the ALJ's apparent rejection of certain
findings of the State Agency Medical Consultants' Physical Residual Functional
Capacity Assessment.
E. Substantial Evidence and Failure to Address Certain Medical Records
Finally, Plaintiff argues that the Commissioner decision should be reversed beuse
it is not supported by substantial evidence. More specifically, Plaintiff argues that
the ALJ erred in failing to address certain medical records from Plaintiffs treating
physicians which indicate Plaintiff was experiencing balance problems and
headaches, Plaintiff asserts that "it is clear from [these] records that Plaintiff
suffers severe physical problems."[45] Plaintiff argues that the ALJ committed

reversible error by not considering these records and not basing his opinion on the
substantial evidence of record. The Commissioner does not respond to these
arguments. The Commissioner merely states in a conclusory fashion that
"[substantial evidence on the record as a whole supports the Commissioner's
decision."[46]
The Court agrees with Plaintiff that the ALJ committed error in this regard, but
finds that remand rather than reversal is appropriate. The Court is particularly
concerned by the ALJ's failure to address in his decision the May 16, 2000 report
of Dr. Joel Greenberg, which reported that Plaintiff complained of frequent
headaches, difficulty with balance, difficulty with coordination and gait ... [and]
frequent morning nausea." (Tr. 144) In addition, the ALJ failed to address Dr.
Malcolm Graham's January 6, 1999 report in which he indicated that Plaintiff "has
occasional slight unsteadiness" (Tr. 131), and Dr. Graham's earlier, September 28,
1998 report in which he observed that Plaintiff was "somewhat unsteady
walking." (Tr. 106) Finally, the ALJ failed to address Dr. Frank Hoffman's July
20, 1998 report in which he indicated that Plaintiff had been experiencing slight
vertigo. (Tr. 101).
The Court recognizes that the ALJ is not required to discuss every piece *1188 of
evidence.[47] The ALJ must, however "discuss the uncontroverted evidence he
chooses not to rely upon, as well as the significantly probative evidence he
rejects."[48] Because the ALJ did not do this here, the case must be remanded for
the ALJ to set out his specific findings and his reasons for accepting or rejecting
this evidence.
V. Conclusion
Based upon the reasons set forth above, the Court reverses the Commissioner's
decision denying Plaintiff benefits and remands this action to the Commissioner
to conduct further proceedings. On remand, the Commissioner shall do the
following: Under step three of the sequential evaluation process, the
Commissioner shall identify the relevant listed impairments the ALJ compared to
Plaintiffs symptoms, signs, and laboratory findings, and set out specific findings
and reasons for accepting or rejecting evidence regarding whether Plaintiff
impairments meet or equal those listings. In addition, under step four of the
sequential evaluation process, the Commissioner shall clarify the inconsistencies
in the ALJ's decision regarding the exertional level of work that Plaintiff can
perform. The Commissioner shall also provide the proper narrative discussion
describing how the evidence supports his conclusions at step four, as required by
Social Security Ruling 96-8p, and how the inconsistencies or ambiguities in the
evidence were considered and resolved. This shall include a discussion of the
reasons supporting the ALJ's apparent rejection of certain findings of the State
Agency Medical Consultants' Physical Residual Functional Capacity Assessment,
as discussed above in Part V.D.2. Finally, the Commissioner shall set out the
specific findings and reasons for accepting or rejecting the reports of the various
treating physicians indicating that Plaintiff suffered from headaches and balance
problems, as set forth in Part V.E.
IT IS THEREFORE ORDERED that the decision of the Commissioner denying
Plaintiff benefits is reversed and the case is remanded pursuant to sentence four of
42 U.S.C. 405(g) for further proceedings consistent with this opinion. This
decision disposes of this case, including Plaintiffs Complaint (doc 1), which has
been considered a petition for review.
NOTES
[1] Castellano v. Sec'y of Health & Human Servs., 26 F.3d 1027, 1028 (10th Cir.
1994).
[2] Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 28 L. Ed. 2d 842
(1971).

[3] Quails v. Apfel, 206 F.3d 1368, 1371 (10th Cir.2000) (citing Casias v. Sec'y of
Health & Human Servs., 933 F.2d 799, 800 (10th Cir. 1991)).
[4] Knipe v. Heckler, 755 F.2d 141, 145 (10th Cir.1985) (quoting Kent v.
Schweiker, 710 F.2d 110, 114 (3d Cir.1983)).
[5] Glass v. Shalala, 43 F.3d 1392, 1395 (10th Cir. 1994); Washington v.
Shalala, 37 F.3d 1437, 1439 (10th Cir. 1994).
[6] Glass, 43 F.3d at 1395 (citing Thompson v. Sullivan, 987 F.2d 1482, 1487
(10th Cir. 1993)).
[7] Hamilton v. Sec'y of Health & Human Servs., 961 F.2d 1495, 1497 (10th
Cir.1992).
[8] See 20 C.F.R. 404.1527, 416.927.
[9] 42 U.S.C. 406(c).
[10] 20 C.F.R. 404.1706.
[11] See, e.g., Carter v. Chater, 73 F.3d 1019, 1021 (10th Cir.1996) (neither 42
U.S.C. 404.1706 406(c) nor 20 C.F.R. 404.1706 requires more than written
advisement of the claimant's right to be represented); Garcia v. Califano, 625 F.2d
354, 356 (10th Cir.1980) (neither the statute nor the regulations require anything
more than written notice of the claimant's right to representation by an attorney).
[12] See Thompson v. Sullivan, 933 F.2d 581, 584 (7th Cir.1991).
[13] Plaintiff also argues as an aside that the ALJ intimidated Plaintiff into
proceeding with the hearing without counsel. The Court finds nothing in the
transcript to support this contention.
[14] Pltf. Br., doc. 11 at 15.
[15] Id.
[16] 834 F.2d 161 (10th Cir.1987).
[17] 68 F.3d 387, 391 (10th Cir.1995).
[18] Id. (emphasis added)
[19] The Court's conclusion comports with the general policy set forth in 42
U.S.C. 405(b). That provision directs the Commissioner to make findings of fact
and decisions as to rights of individuals applying for disability benefits. It
provides as follows: "Any such decision by the Commissioner of Social Security
which involves a determination of disability andwhich 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." 42 U.S.C. 405(b) (emphasis added). The statute contains no similar
requirement where the decision isfavorable to the claimant.
[20] Pltf. Br., doc. 11 at 16.
[21] Valdez v. Apfel, 102 F. Supp 2d 1203, 1206 (D.Colo.2000) (citing Glass v.
Shalala, 43 F.3d 1392, 1396-1397 (10th Cir.1994)).
[22] Bolan v. Bamhart, 212 F. Supp. 2d 1248, 1257 (D.Kan.2002) (citations
omitted).
[23] Id. (citations omitted).
[24] Bowen v. Yuckert, 482 U.S. 137, 141, 107 S. Ct. 2287, 96 L. Ed. 2d 119
(1987); 20 C.F.R. Pt. 404, Subpt. P, App. 1.
[25] Bowen, 482 U.S. at 141, 107 S. Ct. 2287.
[26] 20 C.F.R. 404.1526(a), 416.926(a).
[27] Clifton v. Chater, 79 F.3d 1007, 1009-1010 (10th Cir.1996); 20 C.F.R.
404.1526, 416.926.
[28] Clifton, 79 F.3d. at 1010.
[29] id.
[30] Id. at 1009-1010.
[31] Id.
[32] Id.
[33] Id.
[34] See Clifton, 79 F.3d at 1009 (ALJ's failure to identify the relevant listing and
mere conclusion that the claimant's impairment did not meet or equal any listed

impairment placed the ALJ's decision beyond meaningful judicial

review);Bolan, 212 F. Supp. 2d at 1257 (same).
[35] Under Clifton, the remedy is remand rather than reversal. See 79 F.3d. at
1010. The Court will therefore decline to simply reverse the ALJ's decision as
Plaintiff requests.
[36] Winfrey v. Chater, 92 F.3d 1017, 1023 (10th Cir.1996) (citation omitted).
[37] Soc. Sec. Rul. 96-8p, 1996 WL 374184, at *1.
[38] Id.
[39] Winfrey, 92 F.3d at 1023.
[40] Id.
[41] Although Plaintiff treats these as two separate arguments, the Court will
address them together, as the factual and legal issues raised are intertwined.
[42] Williams v. Bowen, 844 F.2d 748, 751 (10th Cir.1988) (citing Bowen v.
Yuckert, 482 U.S. 137, 146, 107 S. Ct. 2287, 96 L. Ed. 2d 119 (1987)).
[43] Winters v. Barnhart, No. 00-2419-DJW, 2002 WL 1286134, at *14 (D.Kan.
June 5, 2002) (citing Soc. Sec. Rul. 96-8p, 1996 WL 374184; Winfrey v. Chater,
92 F.3d 1017, 1023-25 (10th Cir.1996)).
[44] Soc. Sec. Rul. 96-8p, 1996 WL 374184, at *7.
[45] Pltf. Br., doc. 11 at 20.
[46] Def. Br., doc. 16 at 12.
[47] Clifton v. Chater, 79 F.3d 1007, 1009-1010 (10th Cir.1996) (citing Vincent ex
rel. Vincent v. Heckler, 739 F.2d 1393, 1394-95 (9th Cir. 1984)).
[48] Clifton, 79 F.3d at 1010 (citing Vincent, 739 F.2d at 1394-95; Zblewski v.
Schweiker, 732 F.2d 75, 79 (7th Cir.1984)).

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW

HAMPSHIRE
Joanne Michelle Beaune v. Case No. 14-cv-174-PB Opinion No. 2015 DNH 136
Carolyn Colvin, Acting Commissioner, Social Security Administration
MEMORANDUM AND ORDER Joanne Michelle Beaune seeks judicial
review of a ruling by the Social Security Administration denying her application
for Disability Insurance Benefits (DIB). Beaune claims that the Administrative
Law Judge (the ALJ) erred in finding that Beaune was not disabled. For the
reasons set forth below, I deny Beaune's request for remand and affirm the
decision of the Commissioner.
I. A. BACKGROUND Stipulated Facts Pursuant to this Court's Local Rule
9.1, the parties have submitted a joint statement of material facts (Doc. No. 15),
which is part of the court's record. See LR 9.1. The facts relevant to the
disposition of this matter are discussed below.
B. Procedural History Beaune is a 47-year-old woman who previously
worked as an assembler, hotel front desk clerk, and a material handler (or racker).
On May 13, 2011, she filed a claim for DIB alleging disability beginning
November 15, 2009 (the onset date). Her claim was denied on August 17, 2011,
and again upon reconsideration on August 18, 2011. Beaune then filed a written
request for hearing on August 31, 2011. She appeared and testified at a hearing on
August 10, 2012, as well as at a follow-up hearing on January 20, 2013. On
March 20, 2013, the ALJ determined that Beaune was not entitled to benefits

because she was not disabled before her alleged onset date and the date of his
decision.
The ALJ followed the five-step sequential evaluation process used to
determine whether an individual is disabled. See 20 C.F.R. 404.1520(a)(4). At
step one, he found that Beaune had not engaged in substantial gainful activity
since her alleged onset date. At step two, he determined that Beaune's depression
and post-traumatic stress disorder were severe impairments. At step three, he
found that Beaune's impairments did not meet or medically equal the severity of a
listed impairment. At step four, he found that Beaune was capable of performing
her past relevant work as an assembler or material 2 handler and therefore was not
disabled from the alleged onset date through the date of his decision.
The Appeals Council denied Beaune's request for review, rendering the
ALJ's decision the final decision subject to judicial review. On May 22, 2014,
Beaune filed a complaint in this Court seeking judicial review of the ALJ's
decision.
II. STANDARD OF REVIEW Under 42 U.S.C. 405(g), I am authorized
to review the pleadings submitted by the parties and the administrative record and
enter a judgment affirming, modifying, or reversing the final decision of the
Commissioner. My review is limited to determining whether the ALJ used the
proper legal standards and found facts [based] upon the proper quantum of
evidence. Ward v. Comm'r of Soc. Sec., 211 F.3d 652, 655 (1st Cir. 2000).
Findings of fact made by the ALJ are accorded deference as long as they
are supported by substantial evidence. Id. Substantial evidence to support factual
findings exists if a reasonable mind, reviewing the evidence in the record as a
whole, could accept it as adequate to support his conclusion.' Irlanda Ortiz v.
Sec'y of Health & Human Servs., 955 F.2d 765, 769 (1st Cir. 1991) (per curiam)
(quoting Rodriguez v. Sec'y of Health & Human Servs., 647 F.2d 218, 222 (1st
Cir. 1981)). 3 If the substantial evidence standard is met, factual findings are
conclusive even if the record arguably could support a different conclusion. Id.
At 770.
Findings are not conclusive, however, if they are derived by ignoring
evidence, misapplying the law, or judging matters entrusted to experts. Nguyen
v. Chater, 172 F.3d 31, 35 (1st Cir. 1999) (per curiam). The ALJ is responsible for
determining issues of credibility and for drawing inferences from evidence in the
record. Ortiz, 955 F.2d at 769. Irlanda It is the role of the ALJ, not the court, to
resolve conflicts in the evidence.
III. Id. ANALYSIS Beaune contends that the ALJ erred (1) in determining
her residual functional capacity; (2) in assessing her credibility; and (3) in
adequately developing the record. I address each argument in turn. A. Residual
Functional Capacity Beaune first attacks the ALJ's residual functional capacity
(RFC) assessment. The ALJ found that Beaune had the RFC to: perform a full
range of work at all exertional levels but with the following nonexertional
limitations: she would have moderate limitation in social functioning and
concentration, persistence, or pace, with moderate meaning more than slight but

still able to function satisfactorily. 4 Tr. at 81. Beaune contends that the ALJ's
RFC determination fails to meet the specificity requirements of Social Security
Ruling (SSR) 96-8p, fails to assign appropriate weight to the various medical
source opinions in the record, and fails to address the requirements of SSR 8515p. See SSR 96-8p, 1996 WL 374184, at *1; SSR 85-15, 1985 WL 56857, at *4.
1. SSR 96-8p Beaune first claims that the ALJ's RFC finding is essentially
meaningless with regard to describing her functional limitations and does not
provide the specificity required by SSR 96-8p. Doc. No. 10-1 at 6-7. According
to SSR 96-8p, before an ALJ determines a claimant's RFC, he must first identify
the individual's functional limitations or restrictions and assess his or her workrelated abilities on a function-by-function basis, including the functions in . . . 20
C.F.R. 404.1545[(c)]. 96-8p, 1996 WL 374184, at *1. SSR For individuals with
mental impairments, the function-by-function assessment must include their
abilities to: understand, carry out, and remember instructions; use judgment in
making work-related decisions; respond appropriately to supervision, co-workers
and work situations; and deal with changes in a routine setting. *6. Id. at The
ALJ must include a narrative discussion describing how 5 the evidence supports
each conclusion, citing specific medical facts . . . and nonmedical evidence . . .
Id. at *7. The policy behind this rationale is clear: Without a function-byfunction
assessment, an ALJ may overlook[ ] some of an individual's limitations or
restrictions, which could lead to an incorrect use of an exertional category to
find that the individual is able to do past relevant work and an erroneous finding
that the individual is not disabled. Id. at *4. The SSR 96-8p function-by-function
assessment is distinct from the so-called paragraph B criteria. Compare 20
C.F.R. Pt. 404 Subpt. P, App'x 1 12.00(C)(1)-(4) with SSR 96-8p, 1996 WL
374184, at *6. The paragraph B criteria include: (1) restriction of activities of
daily living; (2) difficulties in maintaining social functioning; (3) difficulties in
maintaining concentration, persistence, or pace; and (4) episodes of
decompensation. Id. ALJs evaluate the paragraph B criteria at steps two and
three of the five-step sequential process, in contrast to the SSR 96-8p function-byfunction assessment, which is performed at steps four and five. SSR 96-8p, 1996
WL 374184, at *4; see Hilton v. Barnhart, No. 05-1306MLB, 2006 WL 4046076,
at *6 (D. Kan. Aug. 28, 2006). Significantly for this case, SSR 96-8p provides:
[t]he adjudicator must remember that the limitations 6 identified in the paragraph
B and paragraph C criteria are not an RFC assessment but are used to rate the
severity of mental impairment(s) at steps 2 and 3 of the sequential evaluation
process. The mental RFC assessment used at steps 4 and 5 of the sequential
evaluation process requires a more detailed assessment by itemizing various
functions contained in the broad categories found in paragraph B and C of the
adult mental disorders listings in 12.00 of the Listing of Impairments . . . SSR 968p, 1996 WL374184, at *4; see Hilton, 2006 WL 4046076, at *6. Therefore, the
ALJ should be careful to distinguish between the paragraph B criteria and the
more specific function-byfunction analysis when making his findings at each step.
Although an ALJ should ideally address all of the functional limitations
associated with a claimant's impairments in his RFC finding, courts have held that
a failure to do so will not invalidate the decision if the functional limitations can
be inferred from the record as a whole. See Cichocki v. Astrue, 729 F.3d 172, 177
(2d Cir. 2013); Drennen v. Astrue, No. 10-CV-6007MAT, 2012 WL 42496, at *5
(W.D.N.Y. Jan. 9, 2012); Gallagher v. Astrue, 2009 DNH 048, 19-20. Because the
specific functions listed in SSR 96-8p are only illustrative of the functions

potentially relevant to an RFC assessment . . . [a]dopting a per se rule that these

functions must be explicitly addressed on pain of remand (no matter how
irrelevant or uncontested in the circumstances of a particular case) would thus not
necessarily ensure that all relevant functions are considered. 7 Cichocki, 729 F.3d
at 177. Therefore, the relevant inquiry should be whether the ALJ applied the
correct legal standards and whether the ALJ's determination is supported by
substantial evidence. Id.; see Gallagher, 2009 DNH 048, 19 (ALJ met specificity
requirements of SSR 96-8p despite vague RFC determination and no explicit
function-by-function assessment because ALJ discussed claimant's functional
abilities in body of opinion and adopted functional assessment of medical source);
Drennen, 2012 WL 42496, at *5 (ALJ's failure to conduct function-by-function
analysis was harmless error because ALJ addressed claimant's medical history in
explicit detail). Here, although the ALJ failed to provide an explicit function-byfunction assessment in his RFC finding, his error was harmless. The ALJ erred in
making his RFC determination because the limitations he cited were paragraph
B criteria, which are appropriate only at steps two and three of the five step
sequential process. Instead, the ALJ should have provided the more detailed
assessment of those limitations required by SSR 96-8p. Rather than citing
moderate limitations in social functioning, Tr. at 81, the ALJ should have
explained his findings according to the specific limitations prescribed by SSR 968p for instance, that Beaune had mild limitations in interacting appropriately
with the public or supervisors 8 Tr. at 85, 125; see Hilton, 2006 WL 4046076, at
*6 (explaining that mental RFC assessment required more detailed assessment
than paragraph B criteria, involving itemizing various functions contained in
the four broad categories used at steps two and three of the sequential evaluation
process).
Nevertheless, although the ALJ failed to expressly perform the functionby-function analysis called for by SSR 96-8p, he made a series of findings that
demonstrate by implication that he performed the requisite assessment. First, the
ALJ conveyed an awareness of the requirements of SSR 96-8p in his decision at
step three when he explained the procedure for making an RFC assessment.
Specifically, he wrote: The limitations identified in the paragraph B criteria are
not a residual functional capacity assessment but are used to rate the severity of
mental impairments at steps 2 and 3 of the sequential evaluation process. The
mental residual functional capacity assessment used at steps 4 and 5 of the
sequential evaluation process requires a more detailed assessment by itemizing
various functions contained in the broad categories found in paragraph B of the
adult mental disorders listings in 12.00 of the Listing of Impairments (SSR 968p). Therefore, the following residual functional capacity assessment reflects the
degree of limitation I have found in the paragraph B mental functional analysis.
Tr. at 81.
Although the ALJ failed to expressly follow these procedures, his decision
makes clear that he recognized the different requirements that apply at steps three
and four. 9 Second, the ALJ provided a detailed discussion of the medical sources'
function-by-function assessments in the narrative discussion of his RFC finding.
See Tr. at 84-86. The ALJ detailed the functional assessments of Dr. Dinan, Dr.
Gustavson, and Ms. Stevens. For example, the ALJ explained that Dr. Dinan
the medical source to whom the ALJ gave the most weight found Beaune

would have no limitation in understanding, remembering, and carrying out

instructions, would have mild limitation in interacting appropriately with the
public or supervisors and responding appropriately to routine workplace changes,
and would have no limitation interacting appropriately with co-workers. Tr. at
85; see SSR 96-8p, 1996 WL 374184, at *6 (listing mental functional abilities
generally required to perform work-related activities). That is, he recounted Dr.
Dinan's function-by-function assessment. He then went on in detail to describe Dr.
Dinan's reasons for making his findings. The ALJ also repeated this process for
Dr. Gustavson and Ms. Stevens. See Tr. at 85-86. Third, the ALJ resolved all
conflicting credibility determinations. The ALJ afforded the most weight to Dr.
Dinan, significant weight to Dr. Martin, some weight to Dr. Gustavson, and little
weight to Ms. Stevens, providing reasoned explanations for his decisions. Tr. at
85-86. 10 Although the ALJ never explicitly adopted any one medical source's
opinion in its entirety, we can infer that he adopted Dr. Dinan's functional
assessment because he gave that assessment the most weight. See Gallagher, 2009
DNH 048, 19-20 (inferring that ALJ adopted the opinion and functional limitation
assessment of a medical source because ALJ gave him greater weight). Fourth, the
ALJ proffered a hypothetical to the vocational expert at the final hearing that
reflected Beaune's functional limitations, explicitly stating that this hypothetical
was based upon Dr. Dinan: My second hypothetical is to . . . assume that there
are no limitations with regard to understanding, remembering . . . or carrying out
simple or complex . . . instructions or making judgments on either. No impairment
with regard to interacting with coworkers, but mild impairments with regard to
the public and supervisors and responding appropriately to work situations and
changes. If we assume that as the . . . hypothetical, does that change your opinion?
Tr. at 125. This hypothetical caused the vocational expert to remove hotel front
desk clerk from the jobs that Beaune could perform, leaving only that of
assembler or material handler. The ALJ then relied on the vocational expert's
opinion in his final decision, determining that Beaune could perform her past
relevant work as an assembler or material handler. Tr. at 87; cf. Hilton, 2006 WL
4046076, at *6 (detailed functional assessment in the ALJ's 11 narrative was
insufficient to satisfy SSR 96-8p because the ALJ did not include a functional
assessment in his RFC finding or in his hypothetical to the vocational expert).
Accordingly, although the ALJ failed to touch all the bases, the record
demonstrates that he sufficiently performed the function-by-function assessment
required by SSR 96-8p. Thus, his failure to explicitly articulate his specific
functional limitation findings in his decision was harmless error.
2. The ALJ Appropriately Weighed the Evidence of Record Beaune's next
several arguments address the relative weight that the ALJ accorded to the four
medical opinions included in the administrative record. I conclude that each of the
ALJ's assignments of weight is supported by substantial evidence. a. Dr. Martin
Beaune contends that the ALJ erred by assigning significant weight to the
opinion of state examiner Dr. Edward Martin. Doc. 10-1 at 8. Her primary
argument is that although Dr. Martin supposedly based his opinion on a
psychological report from Dr. Gustavson, he ignored one of Dr. Gustavson's
conclusions. Specifically, Beaune claims that Dr. Martin ignored Dr. Gustavson's
finding that Beaune was unable to tolerate stresses common to a work
environment which includes 12 [the] ability to make decisions and interact with
supervisors and consistently maintain attendance and schedule. This argument

misses the mark. Tr. at 420. Dr. Martin did not need to address every conclusion
Dr. Gustavson made. Moreover, the ALJ specifically addressed this very
statement when he analyzed Dr. Gustavson's opinion and afforded it little weight,
explaining that the statement was neither well supported by objective medical
evidence nor consistent with Beaune's presentation at the hearing. See Tr. at 86;
Rodriguez v. Sec'y of Health & Human Servs., 647 F.2d 218, 222 (1st Cir. 1981)
(it is the role of the ALJ, and not of the court, to weigh and resolve conflicts in the
evidence). Beaune also argues that Dr. Martin did not review the voluminous
treatment records from Genesis Behavioral Health. Doc. No. 10-1 at 9. Again,
this does not undermine either Dr. Martin's opinion or the ALJ's assessment of it
because the ALJ himself reviewed these records and addressed them numerous
times in the body of his decision. Tr. at 82-84 (citing the Genesis Behavioral
Health records seven times). Finally, Beaune makes the convoluted argument that
because the ALJ found moderate limitations in categories where Dr. Martin found
no limitations, he [gave] the opinion essentially no weight . . . Doc. No. 10-1 at
9.
She does not argue that the ALJ should have actually afforded more
weight to Dr. Martin's opinion nor could she have, because Dr. Martin's opinion
is less favorable to her claim. See Doc. No. 10-1 at 9 ([n]o weight . . . is all [Dr.
Martin's opinion] deserves.). Instead, she claims that there is a discrepancy
between what the ALJ said he did (assigning significant weight) and what he
actually did (assigning no weight). She apparently argues that this supposed
discrepancy somehow nullifies the ALJ's assessment of weight. First, as a
practical matter, it is unclear what Beaune seeks to achieve with this argument.
The ALJ's conclusion that she had moderate limitations is more favorable to her
than Dr. Martin's opinion that she had no limitations. Further, even if I were to
accept her contention that Dr. Martin's opinion should be rejected, the ALJ's
ultimate conclusion would still stand because it is based on other substantial
evidence in the record. Therefore, this argument does nothing to further Beaune's
cause.
Second, to the extent Beaune's argument even raises the issue, this is not a
case where the ALJ assigned substantial weight to an opinion only pretextually.
The ALJ and Dr. Martin's opinion align in other material respects that the
claimant does not acknowledge. For instance, Dr. Martin found no limitations in
understanding and carrying out instructions, a 14 finding that, as I have explained,
the ALJ implicitly adopted. See Tr. at 125, 133. Beyond that, an ALJ is not
required to adopt every single finding made in an opinion to which he assigns
significant weight. If that were so, an ALJ could rarely, if ever, assign more than
minimal weight to any opinion. Here, the ALJ's assignment of significant
weight to Dr. Martin's opinion did not obligate him to accept all of Dr. Martin's
conclusions wholesale. The ALJ also afforded at least some weight to the opinions
of Dr. Dinan, Dr. Gustavson, and Ms. Stevens. See Tr. at 84-86. It was his
responsibility to weigh the various opinions and reconcile their inconsistencies.
Rodriguez, 647 F.2d at 222. See The ALJ did so here, and consequently, Beaune's
argument fails. b. Ms. Stevens Beaune contends that the ALJ's analysis of treating
counselor Jennifer Stevens' two opinions was faulty. 10-1 at 10. Doc. No. The
ALJ afforded limited weight to Ms. Stevens' May 2011 opinion and found her
January 2013 hearing testimony more reasonable and consistent with her

treatment observations, as well as the claimant's presentation at the hearing. Tr.

at 86. In May 2011, Ms. Stevens opined that Beaune had marked limitations in
interpersonal functioning and adaptation to change and moderate limitations in
daily activities and task 15 performance. Tr. at 409, 519. At the hearing in January
2013, however, she opined that Beaune was only moderately limited in all four
areas. Tr. at 120. Beaune first contends that the ALJ erred in finding Ms. Stevens'
January 2013 testimony grossly different from her May 2011 opinion. See Doc.
No. 10-1 at 10 (citing Tr. at 86). Substantial evidence supports the finding that the
two opinions are grossly different, however, because Ms. Stevens' opinion
changed from two marked limitations and two moderate limitations to four
moderate limitations. Regardless of how Ms. Stevens defined moderate and
marked limitations when she made her findings, it was reasonable for the ALJ
to find the opinions grossly different because Ms. Stevens used the same
understandings of the terms in both her May 2011 opinion and her January 2013
testimony. See Tr. at 120, 519. Beaune also contends that the ALJ ignored many
limitations that Ms. Stevens identified at the hearing. Specifically, Beaune argues
that the ALJ failed to discuss Ms. Stevens' testimony stating that Beaune had a
pretty significant impairment in her ability to even leave her home without a high,
high level of anxiety, Tr. at 121, that she suffered from an inability to initiate
tasks and a lowered frustration tolerance around [Beaune's] ability to complete
tasks in a timely 16 fashion, Tr. at 120, and that she would not have attended her
hearing without Ms. Stevens' support, Tr. at 121. at 12. This argument is also
unavailing. Doc. No. 10-1 Despite Beaune's argument to the contrary, the ALJ
weighed this testimony against conflicting evidence in the record. See Tr. at 8586. Although the ALJ found Ms. Stevens' hearing testimony more reasonable and
consistent than her May 2011 opinion, he found it less credible than the
generally mild limitations found by Dr. Dinan and supported by Dr. Martin. Tr. at
86. As for Beaune's anxiety, Dr. Dinan opined that Beaune was anxious in the
unfamiliar evaluation setting and reported anxiety in public settings. And
regarding Beaune's ability to complete tasks, Dr. Dinan opined that she would
have some limitations but still satisfactory performance. Tr. at 510. Thus, Ms.
Stevens' opinion, even if credited, conflicted with other opinions in the record,
and the ALJ acted well within his discretion by resolving those inconsistencies in
a reasonable way. See Alvarado v. Weinberger, 511 F.2d 1046, 1049 (1st Cir.
1975) (it is for the [Commissioner] to resolve conflicts in the medical
evidence.).
Dr. Gustavson Beaune argues that the ALJ erred by affording little weight
to one of the conclusions in Dr. Darlene Gustavson's August 2011 17 opinion. The
ALJ afforded significant weight to the majority of Dr. Gustavson's opinion, but
afforded little weight to her conclusion that Beaune was unable to tolerate
stresses common to a work environment which includes the ability to make
decisions and interact with supervisors and consistently maintain attendance and
schedule. Tr. at 85-86, 420. The ALJ explained that he gave little weight to that
conclusion because he did not find it well supported by the objective medical
evidence on record and also because he found it inconsistent with Beaune's
presentation at the hearing. Tr. at 86. Instead, he afforded more weight to Dr.
Dinan's September 2012 conclusion that Beaune had a limited ability to tolerate
workplace stresses because it was based upon a more complete picture of
[Beaune's] functioning. Tr. at 86. Beaune primarily argues that there is objective

medical evidence in the record to support Dr. Gustavson's conclusion that she is
unable to tolerate workplace stressors, including treatment records from Genesis
Behavioral Health and a functional assessment done by Dr. Pamela Gallant. This
argument, however, misapprehends the standard of review. Instead, I must affirm
the [Commissioner's] resolution, even if the record arguably could justify a
different conclusion, so long as it is supported by substantial evidence. 18 See
Rodriguez Pagan v. Sec'y of Health & Human Servs., 819 F.2d 1, 3 (1st Cir.
1987); see also Irlanda Ortiz v. Sec'y of Health & Human Servs., 955 F.2d 765,
769 (1st Cir. 1991) (per curiam) (conflicts in the record are resolved by the ALJ
and not the court). Here, substantial evidence supports the ALJ's decision. For
example, treatment notes in the record from Genesis Behavioral Health indicate
that Beaune retained a calm affect and fair judgment and insight during visits with
two different medical care providers. Tr. 480, 517. Moreover, the ALJ relied on
the September 2012 opinion of Dr. Dinan, who concluded that Beaune could
handle limited workplace stressors. Therefore, the ALJ was within his authority to
give little weight to Dr. Gustavson's conclusion that Beaune could not handle
workplace stressors. Beaune also faults the ALJ for failing to explain how her
presentation at the hearing showed that she could handle workplace stressors. This
argument is unpersuasive. The ALJ (and not the reviewing court) had the
opportunity to observe [Beaune's] demeanor [during the hearing] and was entitled
to draw inferences based on those observations. See Morgan v. Chater, No. 62408-JD, 1996 WL 392144, at *14 (D.N.H. Apr. 26, 1996). The ALJ did not need
to explicitly spell out in greater detail which actions the claimant took that caused
him to 19 believe she could handle workplace stressors. d. See id. Dr. Dinan
Beaune argues that the ALJ erred in relying on Dr. Dinan's opinion to support his
determination because Dr. Dinan's mental status examination reveals a more
impaired individual than the ALJ acknowledged. Doc. No. 10-1 at 14. I disagree.
Substantial evidence supports the ALJ's decision to give the most weight to Dr.
Dinan's opinion. First, the ALJ gave an adequate explanation for his reliance on
the opinion: Dr. Dinan was an acceptable medical source who personally
examined Beaune; his was the most recent opinion that addressed her functioning;
and his assessment was reasonable and consistent with Beaune's clinical
presentation over time. Tr. at 84-85. accurately characterized Dr. Dinan's opinion.
Second, the ALJ Although Beaune points to findings in Dr. Dinan's opinion that
are helpful to her case, such as signs of depression and anxiety, Dr. Dinan's
overall opinion supported the ALJ's conclusions. For example, Dr. Dinan opined
that Beaune was able to communicate effectively with supportive friends and coworkers, that she was only mildly limited in interacting with the public and
supervisors, and that she was unimpaired in her ability to understand and
remember instructions and was able to attend and concentrate satisfactorily
despite some limitations. 20 Tr. at 510-13. Therefore, there is substantial evidence
in the record to support the ALJ's decision to give Dr. Dinan's opinion the most
weight. Beaune argues that her subjective complaints to Dr. Dinan support greater
limitations than what the ALJ found. This argument is also unavailing, as the ALJ
found that her subjective complaints were not entirely credible. See Alvarado 511
F.2d at 1049 (subjective symptoms must be evaluated with due consideration for
credibility, motivation, and medical evidence of impairment). 3. SSR 85-15
Beaune argues that the ALJ failed to see [her] lack of independence, her need for
support in normal everyday activities, her social isolation, her failure to stop
inflicting harm upon herself, etc. Doc. No. 10-1 at 16. She quotes extensively

from SSR 85-15, which she says offers guidance in assessing the ability of a
claimant who suffers from nonexertional impairments, including stress and mental
illness, to do work. See id. Her argument that the ALJ erred in some respects
under SSR 85-15, however, is incomprehensible. Beaune argues: The ALJ never
referenced this ruling in his decision . . . . This was error. Doc. No. 10-1 at 17.
Nowhere in SSR 85- 15 does the ruling require that the ALJ reference it in his 21
opinion. See SSR 85-15, 1985 WL 56857. Nor does Beaune offer any support to
her contention that the ALJ was in error for not referencing it. To the extent that
Beaune argues that the ALJ never reflected in his RFC finding any limitations
[she] might experience to the demands of work as listed under SSR 85-15, I have
already discussed this issue in my discussion about SSR 968p and the ALJ's
function-by-function assessment. B. Credibility Finding Beaune argues that the
ALJ erred in finding that her statements concerning the intensity, persistence and
limiting effects of [her] symptoms are not entirely credible because the ALJ
failed to properly evaluate her subjective complaints. Tr. at 82. It is the ALJ's
responsibility to determine whether a claimant's statements about her symptoms
are credible. See 20 C.F.R. 404.1529(c)(3); SSR 967p, 1996 WL 374186, at *4.
A two-step analysis governs an ALJ's evaluation of symptoms. SSR 967p, 1996
WL 374186, at *2. First, the ALJ considers whether the claimant is suffering from
an underlying medically determinable physical or mental impairment[ ] . . . that
could reasonably be expected to produce the individual's pain or other
symptoms. Id. Second, the ALJ must determine whether the claimant's
statements about her symptoms are substantiated by 22 objective medical
evidence, and if not, the ALJ must consider other relevant information to weigh
the credibility of her statements. See id.; Guziewicz v. Astrue, 2011 DNH 010, 14.
The ALJ's credibility assessment of the claimant is entitled to deference,
especially when supported by specific findings. Frustaglia v. Sec'y of Health &
Human Servs., 829 F.2d 192, 195 (1st Cir. 1987). This is because the ALJ, not the
reviewing court, observed the claimant, evaluated [the claimant's] demeanor, and
considered how that testimony fit in with the rest of the evidence . . . Id. At step
one, the ALJ found that Beaune's medically determinable impairments could
reasonably be expected to cause her alleged symptoms. He determined that
Beaune's posttraumatic stress disorder and depression were severe impairments,
and he considered how they affected her functional limitations. At step two,
however, the ALJ found that Beaune's statements concerning the intensity,
persistence, and limiting effects of her symptoms were unsubstantiated by
objective medical evidence and that they were not credible to the extent that they
were inconsistent with her RFC. Substantial evidence supports the ALJ's finding
that Beaune's depression and posttraumatic stress disorder symptoms were not as
intense or limiting as she alleged. 23 To support his credibility determination, the
ALJ explained that (1) although Beaune alleged disability beginning on
November 15, 2009, she did not seek mental health treatment until April 2011; (2)
the objective medical record did not support her allegations that she was barely
functioning; (3) the record did not support her claims that she was barely able to
leave home; (4) the record indicated that she received some relief from her
symptoms with medication; and (5) the record indicated that she stopped working
in November 2009 for reasons unrelated to her impairments. Tr. at 83-84. Beaune
nevertheless contends that the ALJ ignored pertinent evidence bearing on her
credibility and that he failed to fairly consider all of the evidence in the entire
record related to her credibility. First, she argues that the ALJ should have

inquired as to why she selected the alleged onset date of November 15, 2009
when her treatment did not commence until April 2011. Doc. No. 10-1 at 19-20.
Second, although she concedes that she was able to attend a bike rally, her son's
graduation, and two oral hearings despite alleging difficulty leaving her home
she argues that the ALJ did not put these events into proper perspective. Id. at
20-22. These events, she explains, were very difficult for her and required
significant emotional support. Third, she argues that attending 24 treatment
appointments should not be used to undercut her credibility because this would set
a dangerous precedent. at 22. Id. Regardless, she argues, since her treatment and
visits with friends often occurred in or near her house, the ALJ was wrong to use
this as evidence to show she was not unable to leave the house easily. Finally, she
argues that despite the ALJ's decision, her treatment notes show that she is unable
to carry out activities of daily living, such as cleaning, shopping, cooking, taking
public transportation, paying bills, maintaining a residence, and caring
appropriately for one's grooming and hygiene. Doc. No. 10-1 at 23. Contrary to
Beaune's argument, however, I must affirm the [Commissioner's] resolution,
even if the record arguably could justify a different conclusion, so long as it is
supported by substantial evidence. Rodriguez Pagan, 819 F.2d at 3. The ALJ is
not obligated to credit subjective symptoms that a claimant alleges during a
hearing, especially when contrary objective medical evidence exists in the record.
Here, the ALJ did not find Beaune's reports of the limiting effects of her
symptoms to be credible because there is insufficient treatment history, objective
medical observations, and clinical findings to support her allegations. Tr. at 82.
well within the ALJ's discretion. 25 That conclusion fell C. Developing the
Administrative Record Beaune finally argues that the ALJ failed to develop the
record because he did not ask her sufficient questions about her symptoms and,
moreover, did not ask Ms. Stevens to clarify the definitions of moderate and
sometimes. I disagree. As the Supreme Court has explained, Social Security
proceedings are inquisitorial rather than adversarial. It is the ALJ's duty to
investigate the facts and develop the arguments both for and against granting
benefits. Apfel, 530 U.S. 103, 11011 (2000). Sims v. The ALJ's duty to develop
the record is heightened if the plaintiff is unrepresented by counsel at the hearing,
Evangelista v. Sec'y of Health & Human Servs., 826 F.2d 136, 142 (1st Cir. 1987),
or if there is a gap in the record that the ALJ could have filled without without
undue effort, Currier v. Sec'y of Health, Educ. & Welfare, 612 F.2d 594, 598 (1st
Cir. 1980). Remand is appropriate where there are evidentiary gaps that prejudice
a plaintiff's claim. Mandziej v. Chater, 944 F. Supp. 121, 130 (D.N.H. 1996).
Beaune, who was unrepresented by counsel, first argues that the ALJ inquired
minimally into the nature and severity of her mental impairments. Doc. No. 10-1
at 26. To support this contention, Beaune observes that the final hearing in
January 2013 lasted only thirty-two minutes, that her testimony appeared 26 on
only four transcript pages, and that the ALJ did not inquire about all of her
symptoms documented in her treatment records. This argument is unpersuasive
because Beaune fails to demonstrate any gaps in the evidentiary record or any
prejudice from the ALJ's allegedly insufficient questioning. The record documents
Beaune's treatment continuously from when she first started mental health
treatment in April 2011 until her final hearing in January 2013. See Tr. at 406-14,
427-85, 616-712. These records document visits made several times a month with
several different therapists and nurse practitioners, as well as consultations with
two different examining psychologists, one of which the ALJ ordered after finding

the record at the time of the first hearing offered insufficient support for Beaune's
testimony. Tr. at 107, 416-21, 507-11. The ALJ also asked Beaune at the first
hearing whether there was anything else she would like to add. Tr. at 116. Beaune
did not offer any other information not already documented in the record.
Therefore, the record contained no gaps, and Beaune has failed to show any
prejudice. Beaune also argues that the ALJ failed to sufficiently question Ms.
Stevens because he did not ask her to define the terms moderate and
sometimes as she used them, and because there was testimony that Ms. Stevens
could have related to the 27 ALJ but that the ALJ failed to elicit. Again, these
arguments fail to show an evidentiary gap or demonstrate a resulting prejudice to
the plaintiff. Because the record contains almost two years of treatment notes and
two consultative examination reports that support the ALJ's finding, Beaune's
contention does not justify a finding of an evidentiary gap in the record or
prejudice to her. III. CONCLUSION For the foregoing reasons, I grant the
Commissioner's motion to affirm (Doc. No. 13) and deny Beaune's motion to
reverse (Doc. No. 10). The clerk is directed to enter judgment accordingly and
close the case. SO ORDERED. /s/Paul Barbadoro Paul Barbadoro United States
District Judge July 10, 2015 cc: Raymond J. Kelly, Esq. T. David Plourde, Esq. 28

DIVISION
CIVIL ACTION NO. 2:12cv498-TFM (WO) (M.D. Ala. Apr. 25, 2013)
NELSON V. COLVIN
KEY PASSAGES FROM THIS CASE (1)
Id In Langley v. Astrue, the court addressed this specific question and
concluded that "the law of this Circuit does not require an RFC from a
physician." Quoted 1 time
TERRY F. MOORER
MEMORANDUM OPINION and ORDER
I. PROCEDURAL HISTORY
Plaintiff Jenny Rebecca Nelson ("Nelson") applied for disability benefits pursuant
to Title II of the Social Security Act, 42 U.S.C. 401 et seq., and for
supplemental security income benefits pursuant to Title XVI of the Social
Security Act, 42 U.S.C. 1381 et seq., alleging that she is unable to work because
of a disability. Her application was denied at the initial administrative level. The
plaintiff then requested and received a hearing before an Administrative Law
Judge ("ALJ"). Following the hearing, the ALJ concluded that the plaintiff was
not under a "disability" as defined in the Social Security Act and denied the
plaintiff's claim for benefits. The Appeals Council rejected a subsequent request
for review. The ALJ's decision consequently became the final decision of the
Commissioner of Social Security ("Commissioner"). See Chester v. Bowen, 792
F.2d 129, 131 (11th Cir. 1986). Pursuant to 28 U.S.C. 636(c), the parties have
consented to entry of final judgment by the United States Magistrate Judge. The
case is now before the court for review pursuant to 42 U.S.C. 405 (g) and
1631(c)(3). Based on the court's review of the record in this case and the parties'
briefs, the court concludes that the Commissioner's decision should be affirmed.
Pursuant to the Social Security Independence and Program Improvements Act of
1994, Pub.L. No. 103-296, 108 Stat. 1464, the functions of the Secretary of
Health and Human Services with respect to Social Security matters were
transferred to the Commissioner of Social Security.

II. STANDARD OF REVIEW

Under 42 U.S.C. 423(d)(1)(A), a person is entitled to disability benefits when
the person is unable 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 . . .
To make this determination, the Commissioner employs a five-step, sequential
evaluation process. See 20 C.F.R. 404.1520, 416.920.
A "physical or mental impairment" is one resulting from anatomical,
physiological, or psychological abnormalities which are demonstrable by
medically acceptable clinical and laboratory diagnostic techniques.
(1) Is the person presently unemployed?
(2) Is the person's impairment severe?
(3) Does the person's impairment meet or equal one of the specific
impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?
(4) Is the person unable to perform his or her former occupation?
(5) Is the person unable to perform any other work within the economy?
An affirmative answer to any of the above questions leads either to the next
question, or, on steps three and five, to a finding of disability. A negative answer
to any question, other than step three, leads to a determination of "not disabled."
McDaniel v. Bowen, 800 F.2d 1026, 1030 (11th Cir. 1986).
McDaniel v. Bowen, 800 F.2d 1026 (11th Cir. 1986) is a supplemental security
income case (SSI). The same sequence applies to disability insurance benefits.
Cases arising under Title II are appropriately cited as authority in Title XVI
cases.See e.g. Ware v. Schweiker, 651 F.2d 408 (5th Cir. 1981) (Unit A).
The standard of review of the Commissioner's decision is a limited one. This court
must find the Commissioner's decision conclusive if it is supported by substantial
evidence. 42 U.S.C. 405(g); Graham v. Apfel, 129 F.3d 1420, 1422 (11th Cir.
1997). "Substantial evidence is more than a scintilla, but less than a
preponderance. It is such relevant evidence as a reasonable person would accept
as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389,
401 (1971). A reviewing court may not look only to those parts of the record
which supports the decision of the ALJ but instead must view the record in its
entirety and take account of evidence which detracts from the evidence relied on
by the ALJ. Hillsman v. Bowen, 804 F.2d 1179 (11th Cir. 1986).
[The court must] . . . scrutinize the record in its entirety to determine the
reasonableness of the [Commissioner's] . . . factual findings . . . No similar
presumption of validity attaches to the [Commissioner's] . . . legal conclusions,
including determination of the proper standards to be applied in evaluating claims.
Walker v. Bowen, 826 F.2d 996, 999 (11th Cir. 1987).
III. INTRODUCTION
A. The Commissioner's Decision
Nelson was 39 years old at the time of the hearing and is a high school graduate.
(R. 43.) Nelson has prior work experience as a cashier. (R. 43.) Nelson alleges
that she became disabled on October 30, 2008, due to heel spurs, tendon tears on
both feet, tendinitis, rheumatoid arthritis, asthma, heart oblation, and knee pain.
(R. 38, 167.) After the hearing, the ALJ found that Nelson suffers from severe
impairments of obesity; mild degenerative joint disease, knee; and ankle tendon

tear, status post-surgical repair (mortise), as well as non-severe impairments of a

thyroid condition; hypertension; and asthma. (R. 20.) The ALJ found that Nelson
is unable to perform her past relevant work, but that she retains the residual
functional capacity ("RFC") to perform less than the full range of sedentary work.
(R. 22.) Testimony from a vocational expert led the ALJ to conclude that a
significant number of jobs exist in the national economy that Nelson could
perform, including work as an order clerk, small parts assembler, and stringing
machine tender. (R. 30.) Accordingly, the ALJ concluded that Nelson is not
disabled. (Id.)
B. The Plaintiff's Claims
Nelson presents the following issues for review:
(1) The ALJ's residual functional capacity findings are not compliant with Social
Security
Rulings.
(2) The ALJ's residual functional capacity findings are not based on substantial
evidence.
(Doc. No. 14, p. 9, 12.)
IV. DISCUSSION
A. The Residual Functional Capacity Assessment
Nelson asserts that the ALJ's determination that she has the residual functional
capacity to perform sedentary work is not supported by substantial evidence.
Specifically, she argues that the ALJ substituted his judgment for that of a medical
specialist when determining that her knee impairment in combination with her
obesity does not meet the twelve-month durational requirement. She contends that
the ALJ should have fully developed the record by obtaining a residual functional
capacity assessment from a medical specialist or by ordering a consultative
examination.
"The residual functional capacity is an assessment, based upon all of the relevant
evidence, of a claimant's remaining ability to do work despite his impairments. 20
CFR 404.1545(a). Along with his age, education and work experience, the
claimant's residual functional capacity is considered in determining whether the
claimant can work. 20 CFR 404.1520(f)." Lewis v. Callahan, 125 F.3d 1436,
1440 (11th Cir. 1997).
In determining the effect of Nelson's ankle and foot problems on her residual
functional capacity to perform sedentary work, the ALJ found:
The claimant was to have additional tendon repair as of January 2009. The
follow-up report clearly indicates the surgical site was healing well with no
erythema and no drainage present. The claimant reported she was doing better.
As of February 2009, she had a full range of motion. As of April 2009, the
surgical site has healed; there is some edema; and she is to continue with ankle
splint. In May 2009, the claimant reports that "it is a little better at times, then
hurts some." The plan is to continue her current therapy.
The claimant was cleared for tendon graft surgery. . . . The radiology and surgical
reports from UAB showed a left tibialis anterior rupture and repair (3rd anterior
tibialis reconstruction) as of May 2010. The record also contains physical therapy
notes and a referral for right knee therapy at Tallassee Rehab for right knee
osteoarthritis as of July 2010. (Exh. C12F-C16F). Nothing in the therapy notes
suggests that the physical therapy for the tibia and ankle surgery had not achieved
the results desired. The knee issue was a separate condition.
(R. 26.) The ALJ also found: (R. 27.)
The ALJ's findings regarding Nelson's tendon repairs are fully supported by the
medical evidence. For example, during a follow-up visit with Dr. Tommy Garnett,
a podiatrist, on October 13, 2008, Nelson reported that her peroneal tendonitis "is
better." (R. 311.) Dr. Garnett observed that "there is still some palpable pain today

of the anterior tibial tendon. Some pain on the peroneal tendons. Mild edema
noted." (Id.) On November 4, 2008, Nelson returned to Dr. Garnett complaining
of foot pain. (R. 318.) An ultrasound of her left foot indicated significant spot
tissue edema. (R. 319.) Dr. Garnett administered an injection of lidocaine and
dexamethasone. (R. 318.) On or around January 2009, Nelson underwent surgery
to repair her anterior tibial tendon. (R. 316.) During a follow-up appointment on
January 6, 2009, Dr. Garnett found no edema, drainange, or cellulitis. (Id.) On
January 20, 2009, Nelson reported that "it is doing better." (R. 315.) Dr. Garnett
found that the surgical site was healing well with no erythema or drainage and
recommended "activity to tolerance." (R. 315.) During a follow-up visit on
February 19, 2009, Dr. Garnett found full range of motion of the left ankle. (R.
314.) On April 16, 2009, Dr. Garnett observed that there was "still some edema"
on the left ankle and assessed anterior tibial tendonitis. (R. 313.) On May 28,
2009, Nelson reported that her ankle is "a little better at times, then hurts some."
(R. 312.) On August 4, 2009, Nelson returned to Dr. Garnett with complaints of
left foot pain and swelling. (R. 322.) Dr. Garnett noted edema of bilateral lower
extremities with no erythema or ecchymosis and good Dorsey flexion. (Id.) He
assessed anterior tibial tendonitis secondary to graft left and recommended that
she return in two to three months. (Id.)
One week later, Nelson presented to Dr. Garnett complaining of right foot pain
after accidentally kicking a chair. (R. 321.) Dr. Garnett assessed that Nelson had
an interarticular fracture of the right fifth digit, put her toes in a splint, and placed
her in an orthopaedic shoe. (Id.) During a follow-up visit on September 2, 2009,
Dr. Garnett found no edema, erythema, or ecchymosis and determined Nelson's
fracture of the right fifth digit was resolved. (R. 320.)
A radiological exam on April 19, 2010, indicates a diagnosis of chronic left
tibialis rupture. (R. 413.) In April 2010, Nelson underwent a left ankle anterior rib
reconstruction. (R. 487.) On her first day of physical therapy on May 17, 2010,
Nelson stated that "she is not in that much pain." (Id.) However, on May 19, 2010,
the physical therapist noted pain, edema, and inflammation of the left ankle and
that Nelson's joint mobility was severe. (R. 489.) As Nelson participated in
physical therapy on a routine basis between May and August 2010, her condition
gradually improved. (R. 487-509.) On July 9, 2010, the physical therapist noted
that Nelson "progressed well with her rehab [and] [s]he is independent with her
gait function with mild gait defect with heel strike due to anterior compartment
weakness." (R. 504.) Upon discharge from Tallassee Rehab in August 2010, the
physical therapist noted a subjective pain rating of zero on a ten-point scale and
that Nelson "returned to all functional activities." (R. 509.) Thus, the medical
evidence fully supports the ALJ's findings concerning Nelson's foot and ankle
condition.
Nelson's assertion that the ALJ erred in determining that her knee condition in
combination with her obesity does not meet the twelve-month durational
requirement is a misunderstanding of the ALJ's findings. When determining
Nelson's knee impairment in combination with her other impairments is not so
functionally limiting as to preclude her from performing sedentary work, the ALJ
found as follows:
. . . [T]he claimant underwent a much later knee problem repaired for surgery. She
conceded this did not start until late 2010. However, I included limitations for this
condition all the same.
(R. 27.) Thus, the ALJ considered Nelson's knee problems when determining
whether she has the residual functional capacity to perform work. The medical
records also support the ALJ's determination. Nelson began physical therapy for
her complaints of knee pain on September 28, 2010. (R. 510.) The physical
therapist noted a decreased ability to bend, kneel, and perform activities for
prolonged time periods. (R. 511.) Nelson continued to participate in physical

therapy for her knee condition on a routine basis between October 2010 and
February 2011. (R. 513-531.)
On December 8, 2010, Nelson went to Dr. Stephen Samuelson at Southern
Orthopaedic Surgeons complaining of right knee pain. (R. 418.) Dr. Samuelson
noted that Nelson "is only taking the occasional anti-inflammatory," that her range
of motion is 0 to 120 degrees, and that her x-rays "show moderate
tricompartmental osteoarthritis and narrowing of both joints and osteophyte
formation," and assessed right knee osteoarthritis. (R. 418.) On January 6, 2011,
Nelson underwent a right knee diagnostic arthroscopy with tricompartmental
chondroplasty and partial lateral meniscectomy. (R. 419.) Dr. Samuelson's postoperative diagnosis was a right knee lateral meniscal tear and chondromalacia.
(Id.) Upon Nelson's discharge from physical therapy on February 1, 2011, the
physical therapist noted minimal to moderate hypomobility, a subjective overall
pain rating of 4 on a 10 point scale and that Nelson "returned to all functional
activities/previous work with pain level 4/10." (R. 531.) On February 9, 2011, Dr.
Samuelson found that "even after knee scope, her symptoms persist," diagnosed
Nelson as suffering from severe chondromalacia and left knee osteoarthritis, and
prescribed Celebrex. (R. 425.) The ALJ's findings regarding Nelson's knee
condition is substantially supported by the medical records. This court has
reviewed the record and concludes that the ALJ fully considered Nelson's knee
and ankle conditions in combination with her other impairments when
determining she has the residual functional capacity to perform sedentary work
with limitations.
Plaintiff cites to Coleman v. Barnhart, 264 F. Supp. 2d 1007 (S.D. Ala. 2003), as
support for her argument that the ALJ erred in failing to obtain a residual
functional capacity opinion from a medical source. In Coleman, the Court
concluded that the ALJ's RFC determination was not supported by substantial
evidence where "particularly in light of plaintiff's numerous severe impairments"
the RFC was not supported by an assessment completed by a physician. 264 F.
Supp. 2d at 1010-11. The decision, however, does not cite to any source of law
requiring a physician's assessment for the purposes of making an RFC
determination.
1
Id
In Langley v. Astrue, the court addressed this specific question and concluded that
"the law of this Circuit does not require an RFC from a physician." 777 F.Supp.2d
1250, 1257-58 (N.D. Ala. 2011). The court disagreed with Coleman because its
reasoning "attempt[s] to place the burden of proving the claimant's RFC on the
Commissioner at step five" and this shifting of the burden is "inconsistent with
the Commissioner's regulations, Supreme Court precedent and unpublished
decisions in this Circuit." Id.at 1258-60 (citations omitted.). The Court is
persuaded by the reasoning of theLangley court. Accordingly, the Court concludes
that the ALJ did not err in finding Nelson's RFC without the benefit of a
physician's assessment in the record.
Nelson also argues that the ALJ should have secured a consultative physical
evaluation. In considering a disability claim, the ALJ must fully and fairly
develop the facts, including ordering a consultative examination if necessary to
make an informed decision. See Reeves v. Heckler, 734 F.2d 519, 522 (11th Cir.
1984). However, an ALJ is not required to order a consultative examination unless
the record establishes that such an examination is necessary to enable the ALJ to
render a decision. Holladay v. Bowen,848 F.2d 1206, 1210 (11th Cir. 1988). The
regulations do not require the Commissioner to secure a consultative evaluation,
nor do they create a right to a consultative examination.
Pursuant to the substantial evidence standard, this court's review is a limited one;
the entire record must be scrutinized to determine the reasonableness of the ALJ's
factual findings. Lowery v. Sullivan, 979 F.2d 835, 837 (11th Cir. 1992). The ALJ
evaluated all the evidence before him which led him to conclude that Nelson can

perform sedentary work with limitations. It is not the province of the court to
reweigh evidence, make credibility determinations, or substitute its judgment for
that of the ALJ. Instead, the court reviews the record to determine if the decision
reached is supported by substantial evidence. Moore v. Barnhart, 405, F.3d 1208,
1211 (11th Cir. 2005). Substantial evidence "is less than a preponderance, but
rather such relevant evidence as a reasonable person would accept as adequate to
support a conclusion."Id. Given this standard of review, the court concludes that
the ALJ's residual functional capacity assessment is consistent with the medical
evidence as a whole. After a careful examination of the administrative record,
including the medical evidence and Nelson's own testimony, the court concludes
that substantial evidence supports the conclusion of the ALJ concerning Nelson's
residual functional capacity to perform work.
B. The Social Security Rulings
Nelson argues that the ALJ erred in assessing her residual functional capacity
because he did not provide a function-by-function assessment of Nelson's workrelated abilities in accordance with SSR 96-8p.
Social Security Ruling 96-8p requires that the ALJ consider all the evidence and
assess the plaintiff's ability to do work-related activities, including sitting,
standing, walking, lifting, carrying, pushing, and pulling. See SSR 96-8p at *3, *5
(1996). SSR 96-8p provides that, at Step 4 of the sequential evaluation, the RFC
should not be expressed in terms of exertional categories. Id. At Step 5, however,
the RFC must be expressed in terms of the exertional categories, such as
"sedentary," "light," "medium," or "heavy."Id.
The court finds that the ALJ adequately evaluated Nelson's functional limitations
and restrictions in his decision. The ALJ found that Nelson "has the residual
functional capacity to perform sedentary work as defined in 20 CFR 416.967(a)."
(R. 22.) The Regulation provides in part:
Sedentary work involves lifting no more than 10 pounds at a time and
occasionally lifting or carrying articles like docket files, ledgers, and small tools.
Although a sedentary job is defined as one which involves sitting, a certain
amount of walking and standing is often necessary in carrying out job duties. Jobs
are sedentary if walking and standing are required occasionally and other
sedentary criteria are met.
20 C.F.R. 416.967(a). "Occasionally" is defined as "occurring from very little up
to one-third of the time." SSR 83-10. "Since being on one's feet is required
'occasionally' at the sedentary level of exertion, periods of standing or walking
should generally total no more than 2 hours of an 8-hour workday, and sitting
should generally total approximately 6 hours of an 8-hour workday." Id. The court
concludes that the ALJ acted in accordance with SSR 96-8p when finding that
Nelson can perform work-related functions at the sedentary exertional level.
In addition to finding that Neslon is limited to sedentary work, the ALJ also
included a number of specific functional and postural limitations. The ALJ limited
Nelson "to a sit/stand option; no climbing ropes, ladders or scaffolds; no crawling,
kneeling, or squatting; no concentrated exposure to pulmonary irritants or cold."
(R. 22.) The ALJ also found Nelson "may need to use a stool to prop up her legs
during the workday, but not to a point more than a foot from the ground" and
limited her to "simple routine and repetitive tasks." (Id.) In addition, the ALJ
explained the reasons for his findings:
. . . I considered the allegation about the claimant's need to raise her leg in work
environments. I do not find evidence to support this claim. The physical therapy
appears to have resolved the ankle and tendon problems even if she may have
some residual edema. Furthermore, the doctors use Lasix to help the swelling
(Exh C7F). I accommodated the claimant with sedentary work that does not
require significant walking or standing, and gave her a sit stand option to avoid
needing to stand if she felt more comfortable. The claimant alleged she has to
wear special boots, shoes, or orthotics, but the record often shows she does not

use them. The record shows she has been prescribed a knee brace (Exhibit 16F).
Thus, even when using such devices, her walking would be minimal and when
she might have to wear boots, sedentary work would accommodate her. The use
of special sneakers and orthotics however seems a personal accommodation that
would make work easier, not more difficult. Importantly, I asked the vocational
expert whether the use of a footstool would impact the ability to perform the jobs
she had identified. The vocational expert indicated that a low level footstool
would be appropriate in the jobs noted. Even so, I have not found claimant needs
such a device. As noted above, the most recent medical record shows she
experiences pain on range of motion only at extremes. However, even if she still
needed a footstool on a temporary or intermittent basis, the jobs provided by the
vocational expert would allow for it.
(R. 28.) The ALJ thoroughly evaluated Nelson's residual functional capacity to
perform work and adequately expressed her functional limitations.
Nelson argues that the ALJ's accommodation of a footstool is not based on
medical evidence. The record indicates that the ALJ included the use of a
footstool based on Nelson's own testimony that she prefers to prop her foot on a
stool. Nelson, therefore, is entitled to no relief on this basis.
-------Nelson argues that the ALJ failed to apply SSR 96-8p properly because he did
not consider the frequency or amount of time Nelson would need to alternate
sitting and standing. At the administrative hearing, the ALJ posed a hypothetical
to the vocational expert which included "a sit/stand opinion every half hour" and a
footstool with one foot off the floor. (R. 95-96.) The ALJ subsequently limited
Nelson to "a sit stand option to avoid needing to stand if she felt more
comfortable." (R. 28.) A "'common-sense reading of the ALJ's RFC assessment
and the hypothetic question he posed to the VE is that the ALJ contemplated a
sit/stand opinion at will.'" Emory v. Astrue, No. 1:11cv2908-TWT-JFK, 2013 WL
1010660, *8 (N.D. Ga. 2013) (quoting Lucas v. Astrue,2012 WL 6043089,
*4 (N.D. Ala. Dec. 4, 2012). Furthermore, Nelson has failed to present evidence
showing that her need to sit or stand prevented her from performing the jobs
identified by the vocational expert, which she must do in order to be found
disabled. Id.
Nelson also asserts that the ALJ failed to apply SSR 96-9p properly. Specifically,
she argues that a residual functional capacity to perform sedentary work with
limitations is rarely applied and that "the impact of an RFC for less than a full
range of sedentary work is especially critical for individuals who are under fifty,
since a finding of disability would follow at that age even with an RFC for the full
range of sedentary work in the absence of transferable skills." (Doc. No. 14, Pl's
Comp., p. 9.) Nelson's assertion is a misstatement of the law. Social Security
Ruling 96-9p provides:
The impact of an RFC for less than a full range of sedentary work is especially
critical for individuals who have not yet attained age 50. Since age, education, and
work experienceare not usually significant factors in limiting the ability of
individuals under age 50 to make an adjustment to other work, the conclusion
whether such individuals who are limited to less than the full range
of sedentary work are disabled will depend primarily on the nature and extent of
their functional limitations or restrictions. On the other hand, since the rules in
Table No.1 of appendix 2, "Residual Functional Capacity: Maximum Sustained
Work Capability Limited to Sedentary Work as a Result of Severe Medically
Determinable Impairment(s)," directs a decision of "disabled" for individuals age
50 and over who are limited to a full range of sedentary work, unless the
individual has transferable skills or education that provides for direct entry into
skilled sedentary work, the impact of an RFC for less than the full range of
sedentary work in such individuals is less critical.

S.S.R. 96-9p, 1996 WL 374185, at *2 (emphasis added). Nelson has not yet
attained age 50. Thus, a finding of whether Nelson is disabled rests primarily on
the nature and extent of her functional limitations and restrictions. See id.
Based on the foregoing, the court concludes that the ALJ's determination that
Nelson has the residual functional capacity to perform sedentary work with
limitations is supported by substantial evidence.
V. CONCLUSION
The court has carefully and independently reviewed the record and concludes that
substantial evidence supports the ALJ's conclusion that plaintiff is not disabled.
Thus, the court concludes that the decision of the Commissioner is supported by
substantial evidence and is due to be AFFIRMED.
A separate order will be entered.
TERRY F. MOORER
UNITED STATES MAGISTRATE JUDGE

According to SSR 96-8p, residual functional capacity (RFC) is an

assessment of an individuals ability to do sustained work-related physical
and mental activities in a work setting on a regular and continuing basis. A
regular and continuing basis means 8 hours a day, for 5 days a week, or
an equivalent work schedule.
The RFC assessment considers only functional limitations and restrictions
that result from an individual's medically determinable impairment or
combination of impairments, including the impact of any related symptoms.
SSR 96-8p.
In order to perform a full range of sedentary work, an individual must be
able to remain in a seated position for approximately 6 hours of an 8-hour
workday, with a morning break, a lunch period, and an afternoon break at
approximately 2-hour intervals. If an individual is unable to sit for a total of 6
hours in an 8-hour work day, the unskilled sedentary occupational base will
be eroded. The extent of the limitation should be considered in determining
whether the individual has the ability to make an adjustment to other work.
See Alternate sitting and standing below. SSR 96-9p.
If an individual is unable to lift 10 pounds or occasionally lift and carry items
like docket files, ledgers, and small tools throughout the workday, the
unskilled sedentary occupational base will be eroded. The extent of erosion
will depend on the extent of the limitations. SSR 96-9p.
Most unskilled sedentary jobs require good use of both hands and the
fingers; i.e., bilateral manual dexterity. Fine movements of small objects
require use of the fingers; e.g., to pick or pinch. Most unskilled sedentary
jobs require good use of the hands and fingers for repetitive hand-finger
actions. SSR 96-9p.

An ability to stoop occasionally; i.e., from very little up to one-third of the

time, is required in most unskilled sedentary occupations. A complete
inability to stoop would significantly erode the unskilled sedentary
occupational base and a finding that the individual is disabled would usually
apply, but restriction to occasional stooping should, by itself, only minimally
erode the unskilled occupational base of sedentary work. SSR 96-9p.
Under 42 U.S.C. 423(d)(1)(A), a person is entitled to disability benefits
when the person is unable 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 . . .
To make this determination, the Commissioner employs a five-step,
sequential evaluation process. See 20 C.F.R. 404.1520, 416.920.
A "physical or mental impairment" is one resulting from anatomical,
physiological, or psychological abnormalities which are demonstrable by
medically acceptable clinical and laboratory diagnostic techniques.
(1) Is the person presently unemployed?
(2) Is the person's impairment severe?
(3) Does the person's impairment meet or equal one of the specific
impairments set forth in 20 C.F.R. Pt. 404, Subpt. P, App. 1?
(4) Is the person unable to perform his or her former occupation?
(5) Is the person unable to perform any other work within the economy?
An affirmative answer to any of the above questions leads either to the next
question, or, on steps three and five, to a finding of disability. A negative
answer to any question, other than step three, leads to a determination of
"not disabled." (McDaniel v. Bowen, 800 F.2d 1026, 1030, 11th Cir. 1986).
In the case at bar, the clients residual functional capacity to perform
sedentary work is supported by substantial evidence. The client is already
49 years old who had a prior work experience as a construction worker but
when he sustained injury due to a motor vehicle accident in the 1990s in
which he fractured his left hip and subsequently, in the year 2002 when he
had the left hip replaced, he has noted pain in his back that radiates into his
right leg. He was forced to stop working in June, 2014 as a laborer due to
such severe pain in his back. He does light housework but cannot do any
tasks that require repetitive bending. He was also diagnosed to have been
suffering from Lumbar Disc Degenerative Disease. He is found to be
unable to perform his past relevant work but has not retained the residual
functional capacity (RFC) to perform less than the full range of sedentary
work as he is experiencing severe lower back spasm that even steroid
injections could not remove the pain. (See Last Report, Exhibit C, page
16 quoted as and he states that he did not find much relief with the last
epidural steroid injection..). The Reports and even testimonies from Sadiq

Haque, D.O. and Dr. Cheryl Grigoria, M.D. would attests to his physical
disability. The five (5) steps sequential evaluation process are, likewise,
complied with as the client is presently unemployed, his impairment is
severe, his impairment meets one of the specific impairments set forth in
20 C.F.R. Pt. 404, Subpt. P, App. 1 (pertaining to musculoskeletal system
as he is suffering from Lumbar Disc Degenerative Disease), the client was
also unable to perform his former occupation and that finally, he is unable
to perform any other work within the economy. The listing of Impairments
are hereto reproduced and the disorder of the musculoskeletal system is
herein stated as follows:
Appendix 1 to Subpart P of Part 404Listing of Impairments
The body system listings in parts A and B of the Listing of Impairments will no
longer be effective on the following dates unless extended by the Commissioner
or revised and promulgated again.
1. Low Birth Weight and Failure to Thrive (100.00): June 12, 2020.
2. Musculoskeletal System (1.00 and 101.00): January 27, 2017.
3. Special Senses and Speech (2.00 and 102.00): April 29, 2018.
4. Respiratory System (3.00 and 103.00): January 27, 2017.
5. Cardiovascular System (4.00 and 104.00): January 27, 2017.
6. Digestive System (5.00 and 105.00): January 27, 2017.
7. Genitourinary Disorders (6.00 and 106.00): December 9, 2019.
8. Hematological Disorders (7.00 and 107.00): May 18, 2020.
9. Skin Disorders (8.00 and 108.00): January 27, 2017.
10. Endocrine Disorders (9.00 and 109.00): June 7, 2016.
11. Congenital Disorders That Affect Multiple Body Systems (10.00 and 110.00):
April 5, 2018.
12. Neurological (11.00 and 111.00): January 27, 2017.
13. Mental Disorders (12.00 and 112.00): January 27, 2017.
14. Cancer (Malignant Neoplastic Diseases) (13.00 and 113.00): July 20, 2020.
15. Immune System Disorders (14.00 and 114.00): June 16, 2016.
Part A
Criteria applicable to individuals age 18 and over and to children under age 18
where criteria are appropriate.
Sec.
1.00 Musculoskeletal System.
2.00 Special Senses and Speech.
3.00 Respiratory System.
4.00 Cardiovascular System.
5.00 Digestive System.
6.00 Genitourinary Disorders.
7.00 Hematological Disorders.
8.00 Skin Disorders.
9.00 Endocrine Disorders.
10.00 Congenital Disorders That Affect Multiple Body Systems
11.00 Neurological.
12.00 Mental Disorders.
13.00 Cancer (Malignant Neoplastic Diseases).
14.00 Immune System Disorders.
1.00 Musculoskeletal System
A. Disorders of the musculoskeletal system may result from hereditary,
congenital, or acquired pathologic processes. Impairments may result from

infectious, inflammatory, or degenerative processes, traumatic or developmental

events, or neoplastic, vascular, or toxic/metabolic diseases.
B. Loss of function.
1. General. Under this section, loss of function may be due to bone or joint
deformity or destruction from any cause; miscellaneous disorders of the spine
with or without radiculopathy or other neurological deficits; amputation; or
fractures or soft tissue injuries, including burns, requiring prolonged periods of
immobility or convalescence. The provisions of 1.02 and 1.03 notwithstanding,
inflammatory arthritis is evaluated under 14.09 (see 14.00D6). Impairments with
neurological causes are to be evaluated under 11.00ff.
2. How We Define Loss of Function in These Listings
a. General. Regardless of the cause(s) of a musculoskeletal impairment,
functional loss for purposes of these listings is defined as the inability to ambulate
effectively on a sustained basis for any reason, including pain associated with the
underlying musculoskeletal impairment, or the inability to perform fine and gross
movements effectively on a sustained basis for any reason, including pain
associated with the underlying musculoskeletal impairment. The inability to
ambulate effectively or the inability to perform fine and gross movements
effectively must have lasted, or be expected to last, for at least 12 months. For the
purposes of these criteria, consideration of the ability to perform these activities
must be from a physical standpoint alone. When there is an inability to perform
these activities due to a mental impairment, the criteria in 12.00ff are to be used.
We will determine whether an individual can ambulate effectively or can perform
fine and gross movements effectively based on the medical and other evidence in
the case record, generally without developing additional evidence about the
individual's ability to perform the specific activities listed as examples in
1.00B2b(2) and 1.00B2c.
b. What We Mean by Inability To Ambulate Effectively
(1) Definition. Inability to ambulate effectively means an extreme limitation of
the ability to walk; i.e., an impairment(s) that interferes very seriously with the
individual's ability to independently initiate, sustain, or complete activities.
Ineffective ambulation is defined generally as having insufficient lower extremity
functioning (see 1.00J) to permit independent ambulation without the use of a
hand-held assistive device(s) that limits the functioning of both upper extremities.
(Listing 1.05C is an exception to this general definition because the individual has
the use of only one upper extremity due to amputation of a hand.)
(2) To ambulate effectively, individuals must be capable of sustaining a
reasonable walking pace over a sufficient distance to be able to carry out activities
of daily living. They must have the ability to travel without companion assistance
to and from a place of employment or school. Therefore, examples of ineffective
ambulation include, but are not limited to, the inability to walk without the use of
a walker, two crutches or two canes, the inability to walk a block at a reasonable
pace on rough or uneven surfaces, the inability to use standard public
transportation, the inability to carry out routine ambulatory activities, such as
shopping and banking, and the inability to climb a few steps at a reasonable pace
with the use of a single hand rail. The ability to walk independently about one's
home without the use of assistive devices does not, in and of itself, constitute
effective ambulation.
c. What we mean by inability to perform fine and gross movements
effectively. Inability to perform fine and gross movements effectively means an
extreme loss of function of both upper extremities; i.e., an impairment(s) that
interferes very seriously with the individual's ability to independently initiate,
sustain, or complete activities. To use their upper extremities effectively,
individuals must be capable of sustaining such functions as reaching, pushing,
pulling, grasping, and fingering to be able to carry out activities of daily living.
Therefore, examples of inability to perform fine and gross movements effectively
include, but are not limited to, the inability to prepare a simple meal and feed

oneself, the inability to take care of personal hygiene, the inability to sort and
handle papers or files, and the inability to place files in a file cabinet at or above
waist level.
d. Pain or other symptoms. Pain or other symptoms may be an important factor
contributing to functional loss. In order for pain or other symptoms to be found to
affect an individual's ability to perform basic work activities, medical signs or
laboratory findings must show the existence of a medically determinable
impairment(s) that could reasonably be expected to produce the pain or other
symptoms. The musculoskeletal listings that include pain or other symptoms
among their criteria also include criteria for limitations in functioning as a result
of the listed impairment, including limitations caused by pain. It is, therefore,
important to evaluate the intensity and persistence of such pain or other symptoms
carefully in order to determine their impact on the individual's functioning under
these listings. See also 404.1525(f) and 404.1529 of this part, and
416.925(f) and 416.929 of part 416 of this chapter.
C. Diagnosis and Evaluation
1. General. Diagnosis and evaluation of musculoskeletal impairments should
be supported, as applicable, by detailed descriptions of the joints, including ranges
of motion, condition of the musculature (e.g., weakness, atrophy), sensory or
reflex changes, circulatory deficits, and laboratory findings, including findings on
x-ray or other appropriate medically acceptable imaging. Medically acceptable
imaging includes, but is not limited to, x-ray imaging, computerized axial
tomography (CAT scan) or magnetic resonance imaging (MRI), with or without
contrast material, myelography, and radionuclear bone scans. Appropriate
means that the technique used is the proper one to support the evaluation and
diagnosis of the impairment.
2. Purchase of certain medically acceptable imaging. While any appropriate
medically acceptable imaging is useful in establishing the diagnosis of
musculoskeletal impairments, some tests, such as CAT scans and MRIs, are quite
expensive, and we will not routinely purchase them. Some, such as myelograms,
are invasive and may involve significant risk. We will not order such tests.
However, when the results of any of these tests are part of the existing evidence in
the case record we will consider them together with the other relevant evidence.
3. Consideration of electrodiagnostic procedures. Electrodiagnostic procedures
may be useful in establishing the clinical diagnosis, but do not constitute
alternative criteria to the requirements of 1.04.
D. The physical examination must include a detailed description of the
rheumatological, orthopedic, neurological, and other findings appropriate to the
specific impairment being evaluated. These physical findings must be determined
on the basis of objective observation during the examination and not simply a
report of the individual's allegation; e.g., He says his leg is weak, numb.
Alternative testing methods should be used to verify the abnormal findings; e.g., a
seated straight-leg raising test in addition to a supine straight-leg raising test.
Because abnormal physical findings may be intermittent, their presence over a
period of time must be established by a record of ongoing management and
evaluation. Care must be taken to ascertain that the reported examination findings
are consistent with the individual's daily activities.
E. Examination of the Spine
1. General. Examination of the spine should include a detailed description of
gait, range of motion of the spine given quantitatively in degrees from the vertical
position (zero degrees) or, for straight-leg raising from the sitting and supine
position (zero degrees), any other appropriate tension signs, motor and sensory
abnormalities, muscle spasm, when present, and deep tendon reflexes.
Observations of the individual during the examination should be reported; e.g.,
how he or she gets on and off the examination table. Inability to walk on the heels
or toes, to squat, or to arise from a squatting position, when appropriate, may be
considered evidence of significant motor loss. However, a report of atrophy is not

acceptable as evidence of significant motor loss without circumferential

measurements of both thighs and lower legs, or both upper and lower arms, as
appropriate, at a stated point above and below the knee or elbow given in inches
or centimeters. Additionally, a report of atrophy should be accompanied by
measurement of the strength of the muscle(s) in question generally based on a
grading system of 0 to 5, with 0 being complete loss of strength and 5 being
maximum strength. A specific description of atrophy of hand muscles is
acceptable without measurements of atrophy but should include measurements of
grip and pinch strength.
2. When neurological abnormalities persist. Neurological abnormalities may
not completely subside after treatment or with the passage of time. Therefore,
residual neurological abnormalities that persist after it has been determined
clinically or by direct surgical or other observation that the ongoing or progressive
condition is no longer present will not satisfy the required findings in 1.04. More
serious neurological deficits (paraparesis, paraplegia) are to be evaluated under
the criteria in 11.00ff.
F. Major joints refers to the major peripheral joints, which are the hip, knee,
shoulder, elbow, wrist-hand, and ankle-foot, as opposed to other peripheral joints
(e.g., the joints of the hand or forefoot) or axial joints (i.e., the joints of the spine.)
The wrist and hand are considered together as one major joint, as are the ankle
and foot. Since only the ankle joint, which consists of the juncture of the bones of
the lower leg (tibia and fibula) with the hindfoot (tarsal bones), but not the
forefoot, is crucial to weight bearing, the ankle and foot are considered separately
in evaluating weight bearing.
G. Measurements of joint motion are based on the techniques described in the
chapter on the extremities, spine, and pelvis in the current edition of the Guides
to the Evaluation of Permanent Impairment published by the American Medical
Association.
H. Documentation
1. General. Musculoskeletal impairments frequently improve with time or
respond to treatment. Therefore, a longitudinal clinical record is generally
important for the assessment of severity and expected duration of an impairment
unless the claim can be decided favorably on the basis of the current evidence.
2. Documentation of medically prescribed treatment and response. Many
individuals, especially those who have listing-level impairments, will have
received the benefit of medically prescribed treatment. Whenever evidence of
such treatment is available it must be considered.
3. When there is no record of ongoing treatment. Some individuals will not
have received ongoing treatment or have an ongoing relationship with the medical
community despite the existence of a severe impairment(s). In such cases,
evaluation will be made on the basis of the current objective medical evidence
and other available evidence, taking into consideration the individual's medical
history, symptoms, and medical source opinions. Even though an individual who
does not receive treatment may not be able to show an impairment that meets the
criteria of one of the musculoskeletal listings, the individual may have an
impairment(s) equivalent in severity to one of the listed impairments or be
disabled based on consideration of his or her residual functional capacity (RFC)
and age, education and work experience.
4. Evaluation when the criteria of a musculoskeletal listing are not met. These
listings are only examples of common musculoskeletal disorders that are severe
enough to prevent a person from engaging in gainful activity. Therefore, in any
case in which an individual has a medically determinable impairment that is not
listed, an impairment that does not meet the requirements of a listing, or a
combination of impairments no one of which meets the requirements of a listing,
we will consider medical equivalence. (See 404.1526 and 416.926.)
Individuals who have an impairment(s) with a level of severity that does not meet
or equal the criteria of the musculoskeletal listings may or may not have the RFC

that would enable them to engage in substantial gainful activity. Evaluation of the
impairment(s) of these individuals should proceed through the final steps of the
sequential evaluation process in 404.1520 and 416.920 (or, as appropriate, the
steps in the medical improvement review standard in 404.1594 and 416.994).
I. Effects of Treatment
1. General. Treatments for musculoskeletal disorders may have beneficial
effects or adverse side effects. Therefore, medical treatment (including surgical
treatment) must be considered in terms of its effectiveness in ameliorating the
signs, symptoms, and laboratory abnormalities of the disorder, and in terms of any
side effects that may further limit the individual.
2. Response to treatment. Response to treatment and adverse consequences of
treatment may vary widely. For example, a pain medication may relieve an
individual's pain completely, partially, or not at all. It may also result in adverse
effects, e.g., drowsiness, dizziness, or disorientation, that compromise the
individual's ability to function. Therefore, each case must be considered on an
individual basis, and include consideration of the effects of treatment on the
individual's ability to function.
3. Documentation. A specific description of the drugs or treatment given
(including surgery), dosage, frequency of administration, and a description of the
complications or response to treatment should be obtained. The effects of
treatment may be temporary or long-term. As such, the finding regarding the
impact of treatment must be based on a sufficient period of treatment to permit
proper consideration or judgment about future functioning.
J. Orthotic, Prosthetic, or Assistive Devices
1. General. Consistent with clinical practice, individuals with musculoskeletal
impairments may be examined with and without the use of any orthotic,
prosthetic, or assistive devices as explained in this section.
2. Orthotic devices. Examination should be with the orthotic device in place
and should include an evaluation of the individual's maximum ability to function
effectively with the orthosis. It is unnecessary to routinely evaluate the
individual's ability to function without the orthosis in place. If the individual has
difficulty with, or is unable to use, the orthotic device, the medical basis for the
difficulty should be documented. In such cases, if the impairment involves a
lower extremity or extremities, the examination should include information on the
individual's ability to ambulate effectively without the device in place unless
contraindicated by the medical judgment of a physician who has treated or
examined the individual.
3. Prosthetic devices. Examination should be with the prosthetic device in
place. In amputations involving a lower extremity or extremities, it is unnecessary
to evaluate the individual's ability to walk without the prosthesis in place.
However, the individual's medical ability to use a prosthesis to ambulate
effectively, as defined in 1.00B2b, should be evaluated. The condition of the
stump should be evaluated without the prosthesis in place.
4. Hand-held assistive devices. When an individual with an impairment
involving a lower extremity or extremities uses a hand-held assistive device, such
as a cane, crutch or walker, examination should be with and without the use of the
assistive device unless contraindicated by the medical judgment of a physician
who has treated or examined the individual. The individual's ability to ambulate
with and without the device provides information as to whether, or the extent to
which, the individual is able to ambulate without assistance. The medical basis for
the use of any assistive device (e.g., instability, weakness) should be documented.
The requirement to use a hand-held assistive device may also impact on the
individual's functional capacity by virtue of the fact that one or both upper
extremities are not available for such activities as lifting, carrying, pushing, and
pulling.
K. Disorders of the spine, listed in 1.04, result in limitations because of
distortion of the bony and ligamentous architecture of the spine and associated

impingement on nerve roots (including the cauda equina) or spinal cord. Such
impingement on nerve tissue may result from a herniated nucleus pulposus, spinal
stenosis, arachnoiditis, or other miscellaneous conditions. Neurological
abnormalities resulting from these disorders are to be evaluated by referral to the
neurological listings in 11.00ff, as appropriate. (See also 1.00B and E.)
1. Herniated nucleus pulposus is a disorder frequently associated with the
impingement of a nerve root. Nerve root compression results in a specific neuroanatomic distribution of symptoms and signs depending upon the nerve root(s)
compromised.
2. Spinal Arachnoiditis
a. General. Spinal arachnoiditis is a condition characterized by adhesive
thickening of the arachnoid which may cause intermittent ill-defined burning pain
and sensory dysesthesia, and may cause neurogenic bladder or bowel
incontinence when the cauda equina is involved.
b. Documentation. Although the cause of spinal arachnoiditis is not always
clear, it may be associated with chronic compression or irritation of nerve roots
(including the cauda equina) or the spinal cord. For example, there may be
evidence of spinal stenosis, or a history of spinal trauma or meningitis. Diagnosis
must be confirmed at the time of surgery by gross description, microscopic
examination of biopsied tissue, or by findings on appropriate medically
acceptable imaging. Arachnoiditis is sometimes used as a diagnosis when such a
diagnosis is unsupported by clinical or laboratory findings. Therefore, care must
be taken to ensure that the diagnosis is documented as described in 1.04B.
Individuals with arachnoiditis, particularly when it involves the lumbosacral
spine, are generally unable to sustain any given position or posture for more than
a short period of time due to pain.
3. Lumbar spinal stenosis is a condition that may occur in association with
degenerative processes, or as a result of a congenital anomaly or trauma, or in
association with Paget's disease of the bone. Pseudoclaudication, which may
result from lumbar spinal stenosis, is manifested as pain and weakness, and may
impair ambulation. Symptoms are usually bilateral, in the low back, buttocks, or
thighs, although some individuals may experience only leg pain and, in a few
cases, the leg pain may be unilateral. The pain generally does not follow a
particular neuro-anatomical distribution, i.e., it is distinctly different from the
radicular type of pain seen with a herniated intervertebral disc, is often of a dull,
aching quality, which may be described as discomfort or an unpleasant
sensation, or may be of even greater severity, usually in the low back and
radiating into the buttocks region bilaterally. The pain is provoked by extension of
the spine, as in walking or merely standing, but is reduced by leaning forward.
The distance the individual has to walk before the pain comes on may vary.
Pseudoclaudication differs from peripheral vascular claudication in several ways.
Pedal pulses and Doppler examinations are unaffected by pseudoclaudication. Leg
pain resulting from peripheral vascular claudication involves the calves, and the
leg pain in vascular claudication is ordinarily more severe than any back pain that
may also be present. An individual with vascular claudication will experience pain
after walking the same distance time after time, and the pain will be relieved
quickly when walking stops.
4. Other miscellaneous conditions that may cause weakness of the lower
extremities, sensory changes, areflexia, trophic ulceration, bladder or bowel
incontinence, and that should be evaluated under 1.04 include, but are not limited
to, osteoarthritis, degenerative disc disease, facet arthritis, and vertebral fracture.
Disorders such as spinal dysrhaphism (e.g., spina bifida), diastematomyelia, and
tethered cord syndrome may also cause such abnormalities. In these cases, there
may be gait difficulty and deformity of the lower extremities based on
neurological abnormalities, and the neurological effects are to be evaluated under
the criteria in 11.00ff.

L. Abnormal curvatures of the spine. Abnormal curvatures of the spine

(specifically, scoliosis, kyphosis and kyphoscoliosis) can result in impaired
ambulation, but may also adversely affect functioning in body systems other than
the musculoskeletal system. For example, an individual's ability to breathe may be
affected; there may be cardiac difficulties (e.g., impaired myocardial function); or
there may be disfigurement resulting in withdrawal or isolation. When there is
impaired ambulation, evaluation of equivalence may be made by reference to
14.09A. When the abnormal curvature of the spine results in symptoms related to
fixation of the dorsolumbar or cervical spine, evaluation of equivalence may be
made by reference to 14.09C. When there is respiratory or cardiac involvement or
an associated mental disorder, evaluation may be made under 3.00ff, 4.00ff, or
12.00ff, as appropriate. Other consequences should be evaluated according to the
listing for the affected body system.
M. Under continuing surgical management, as used in 1.07 and 1.08, refers to
surgical procedures and any other associated treatments related to the efforts
directed toward the salvage or restoration of functional use of the affected part. It
may include such factors as post-surgical procedures, surgical complications,
infections, or other medical complications, related illnesses, or related treatments
that delay the individual's attainment of maximum benefit from therapy. When
burns are not under continuing surgical management, see 8.00F.
N. After maximum benefit from therapy has been achieved in situations
involving fractures of an upper extremity (1.07), or soft tissue injuries (1.08), i.e.,
there have been no significant changes in physical findings or on appropriate
medically acceptable imaging for any 6-month period after the last definitive
surgical procedure or other medical intervention, evaluation must be made on the
basis of the demonstrable residuals, if any. A finding that 1.07 or 1.08 is met must
be based on a consideration of the symptoms, signs, and laboratory findings
associated with recent or anticipated surgical procedures and the resulting
recuperative periods, including any related medical complications, such as
infections, illnesses, and therapies which impede or delay the efforts toward
restoration of function. Generally, when there has been no surgical or medical
intervention for 6 months after the last definitive surgical procedure, it can be
concluded that maximum therapeutic benefit has been reached. Evaluation at this
point must be made on the basis of the demonstrable residual limitations, if any,
considering the individual's impairment-related symptoms, signs, and laboratory
findings, any residual symptoms, signs, and laboratory findings associated with
such surgeries, complications, and recuperative periods, and other relevant
evidence.
O. Major function of the face and head, for purposes of listing 1.08, relates to
impact on any or all of the activities involving vision, hearing, speech,
mastication, and the initiation of the digestive process.
P. When surgical procedures have been performed, documentation should
include a copy of the operative notes and available pathology reports.
Q. Effects of obesity. Obesity is a medically determinable impairment that is
often associated with disturbance of the musculoskeletal system, and disturbance
of this system can be a major cause of disability in individuals with obesity. The
combined effects of obesity with musculoskeletal impairments can be greater than
the effects of each of the impairments considered separately. Therefore, when
determining whether an individual with obesity has a listing-level impairment or
combination of impairments, and when assessing a claim at other steps of the
sequential evaluation process, including when assessing an individual's residual
functional capacity, adjudicators must consider any additional and cumulative
effects of obesity.
CATEGORY OF IMPAIRMENTS, MUSCULOSKELETAL1.01
1.02 Major dysfunction of a joint(s) (due to any cause): Characterized by gross
anatomical deformity (e.g., subluxation, contracture, bony or fibrous ankylosis,
instability) and chronic joint pain and stiffness with signs of limitation of motion

or other abnormal motion of the affected joint(s), and findings on appropriate

medically acceptable imaging of joint space narrowing, bony destruction, or
ankylosis of the affected joint(s). With:
A. Involvement of one major peripheral weight-bearing joint (i.e., hip, knee, or
ankle), resulting in inability to ambulate effectively, as defined in 1.00B2b;
or
B. Involvement of one major peripheral joint in each upper extremity (i.e.,
shoulder, elbow, or wrist-hand), resulting in inability to perform fine and gross
movements effectively, as defined in 1.00B2c.
1.03 Reconstructive surgery or surgical arthrodesis of a major weight-bearing
joint, with inability to ambulate effectively, as defined in 1.00B2b, and return to
effective ambulation did not occur, or is not expected to occur, within 12 months
of onset.
1.04Disorders of the spine (e.g., herniated nucleus pulposus, spinal
arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet
arthritis, vertebral fracture), resulting in compromise of a nerve root (including
the cauda equina) or the spinal cord. With:
A. Evidence of nerve root compression characterized by neuro-anatomic
distribution of pain, limitation of motion of the spine, motor loss (atrophy with
associated muscle weakness or muscle weakness) accompanied by sensory or
reflex loss and, if there is involvement of the lower back, positive straight-leg
raising test (sitting and supine);
or
B. Spinal arachnoiditis, confirmed by an operative note or pathology report of
tissue biopsy, or by appropriate medically acceptable imaging, manifested by
severe burning or painful dysesthesia, resulting in the need for changes in position
or posture more than once every 2 hours;
or
C. Lumbar spinal stenosis resulting in pseudoclaudication, established by
findings on appropriate medically acceptable imaging, manifested by chronic
nonradicular pain and weakness, and resulting in inability to ambulate effectively,
as defined in 1.00B2b.
1.05 Amputation (due to any cause).
A. Both hands; or
or
B. One or both lower extremities at or above the tarsal region, with stump
complications resulting in medical inability to use a prosthetic device to ambulate
effectively, as defined in 1.00B2b, which have lasted or are expected to last for at
least 12 months;
or
C. One hand and one lower extremity at or above the tarsal region, with
inability to ambulate effectively, as defined in 1.00B2b; OR
D. Hemipelvectomy or hip disarticulation.
1.06 Fracture of the femur, tibia, pelvis, or one or more of the tarsal
bones. With:
A. Solid union not evident on appropriate medically acceptable imaging and
not clinically solid;
and
B. Inability to ambulate effectively, as defined in 1.00B2b, and return to
effective ambulation did not occur or is not expected to occur within 12 months of
onset.
1.07 Fracture of an upper extremity with nonunion of a fracture of the shaft of
the humerus, radius, or ulna, under continuing surgical management, as defined in
1.00M, directed toward restoration of functional use of the extremity, and such
function was not restored or expected to be restored within 12 months of onset.
1.08 Soft tissue injury (e.g., burns) of an upper or lower extremity, trunk, or
face and head, under continuing surgical management, as defined in 1.00M,

directed toward the salvage or restoration of major function, and such major
function was not restored or expected to be restored within 12 months of onset.
Major function of the face and head is described in 1.00O.

The clients musculoskeletal impairment is his inability to ambulate

effectively on a sustained basis for any reason, including pain associated
with the underlying musculoskeletal impairment. The inability to ambulate
effectively or the inability to perform fine and gross movements effectively
has been experienced by the client for almost two (2) years since he felt
the same pain last June 2014, the year he resigned/retired as a laborer. His
impairment interferes very seriously with his ability to independently initiate,
sustain, or complete activities. Moreso, medical signs or laboratory findings
have shown the existence of a medically determinable impairment that
could reasonably be expected to produce the pain or other symptoms.
Diagnosis and evaluation of the said musculoskeletal impairment were
supported by detailed descriptions of the injury, condition of the
musculature (e.g., weakness, atrophy), sensory or reflex changes,
circulatory deficits, and laboratory findings, including findings on x-ray, CT
Scan or other appropriate medically acceptable imaging. There were also
physical examination, medications prescribed, epidural steroids injection
and other examinations, evaluations and procedures undertaken to prove
that he is disabled and is covered by the disability clause under the Social
Security Administration. Examination of the injured lumbar spine includes a
detailed description of gait, range of motion of the spine given quantitatively
in degrees from the vertical position (zero degrees) or, for straight-leg
raising from the sitting and supine position (zero degrees), any other
appropriate tension signs, motor and sensory abnormalities, muscle
spasm, when present, and deep tendon reflexes. Observations of the
individual during the examination and follow-up examination/evaluations
were conducted and reported.
Thus, as the client is suffering from Lumbar Disc Degenerative
Disease medically determined and recorded, he is, therefore, allowed to
claim disability benefits from the Social Security Administration.
Based on the records, the client has obtained a residual functional
capacity assessment from a medical specialist. "The residual functional
capacity is an assessment, based upon all of the relevant evidence, of a
claimant's remaining ability to do work despite his impairments. 20 CFR
404.1545(a). Along with his age, education and work experience, the
claimant's residual functional capacity is considered in determining whether
the claimant can work. 20 CFR 404.1520(f)." Lewis v. Callahan, 125 F.3d
1436, 1440 (11th Cir. 1997).
In determining the effect of the clients Lumbar Disc Degenerative
Disease on his residual functional capacity to perform sedentary work, he is
found to have been suffering from severe back pains that even with the
injection of epidural steroid injections and follow-up report, he is still

experience burning pain on his back. His disease is fully supported by

medical evidence. In reiteration, such suffering dates back last June 2014
and still persisted until the present time. His lumbar disc degenerative
disease also meets the twelve month durational requirements. The burden
of proof of coverage is, thus, met by the client. His consultative examination
borne by the records clearly establishes that such examination was
necessary to enable the Administrative Law Judge (ALJ) to be induced to
make a pristine determination of SS Law coverage. Dr. Sadiq Haque D.O.
diagnosed the client as having lumbarsacral spine degenerative disc
disease and right lumbar radiculopathy at L5 and S1 In summary, the
client sustained a hip injury in the 1990s that was surgically replaced in the
year 2002 which resulted to severe back pains in June 2014 that made him
resign from work in June 2014 and persisted up to the present time. Thus,
after reviewing the entire records, the Administrative Law Judge (ALJ)
should be satisfied that the clients impairment is severe and consequently,
must find him disabled as he is unable to return to his past relevant work or
if other jobs do not exist in the national economy which he can perform in
view of his age, education, and relevant work experience. The ALJ must
consider the element of pain as described by the claimant and the medical
records at hand. The pain is of such sufficient severity so as to preclude the
client to engage in any work. Such pain has disabled the client within the
meaning of the Social Security Act, as amended. He is incapable of all work
activities, has proven that he could no longer perform his past relevant
work and he cannot sit more than 2 hours throughout the workday because
of the excessive pain and discomfort experienced by him. He is already in
his golden years and his mechanical functions are limited due to the injury
and pain that he is experiencing.
In view of the foregoing disquisition, claimant prays unto this Most
Honorable Administrative Law Judge to grant his claim for disability benefits
under the Social Security Act and unburden him of his yoke as records bear
witness that he is indeed physically disabled to perform any work in the
national economy.