Inability to Stoop and Social Security Disability

Although the Social Security rulings discussed below clearly provide that the complete inability to stoop significantly erodes the unskilled sedentary occupational base, the courts have not decided many Social Security disability cases pertaining to this issue. When presented with the applicable Rulings, the courts seem to agree that reliance on the Medical-Vocational Guidelines is improper and vocational expert testimony is required.

In most cases, however, the issue is never raised by the claimant. Please note that if a claimant can occasionally stoop, the unskilled sedentary occupational base is not eroded and vocational expert testimony is not necessary to establish disability based on the sedentary Medical-Vocational Guidelines. The following survey of cases does not include cases where a claimant failed to raise the issue of erosion of the sedentary occupational base due to the claimant’s complete inability to stoop.

Tip

If you are completely unable to stoop, your attorney should argue that the administrative law judge may not rely on the Grids if you are otherwise limited to sedentary work.

Rulings

Social Security Ruling 96-9p

SSR 96-9p provides that 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 significantly erodes the unskilled sedentary occupational base and usually results in a finding that the individual is disabled. Id.A restriction to occasional stooping only minimally erodes the unskilled occupational base of sedentary work. Id.“Consultation with a vocational resource may be particularly useful for cases where the individual is limited to less than occasional stooping.” Id.

Social Security Ruling 85-15

SSR 85-15 provides that stooping, kneeling, crouching, and crawling are progressively more strenuous forms of bending parts of the body, with crawling as a form of locomotion involving bending. Some stooping (bending the body downward and forward by bending the spine at the waist) is required to do almost any kind of work, particularly when objects below the waist are involved. If a person can stoop occasionally (from very little up to one-third of the time) in order to lift objects, the sedentary and light occupational base is virtually intact. However, because of the lifting required for most medium, heavy, and very heavy jobs, a person must be able to stoop frequently (from one-third to two-thirds of the time); inability to do so would substantially affect the more strenuous portion of the occupational base.

Social Security Ruling 83-10

A limitation in a claimant’s ability to stoop is considered a nonexertional impairment.

Social Security Ruling 83-14

According to SSR 83-14, two types of bending must be done frequently (from one-third to two-thirds of the time) in most medium, heavy, and very heavy jobs because of the positions of objects to be lifted, the amounts of weights to be moved, and the required repetitions. They are stooping (bending the body downward and forward by bending the spine at the waist) and crouching (bending the body downward and forward by bending both the legs and spine). However, to perform substantially all of the exertional requirements of most sedentary and light jobs, a person would not need to crouch and would need to stoop only occasionally (from very little up to one-third of the time, depending on the particular job).

Case Law

First Circuit

In Chester v. Callahan, 193 F.3d 10 (1st Cir. 1999), the First Circuit held that the ALJ erred in failing to consider the claimant’s bending limitation in determining whether the sedentary occupational base was eroded. Id. at 13. The court noted that the doctor’s RFC assessment indicated that the claimant never could bend, and the ALJ failed to address this limiting factor in his decision. Id.

Second Circuit

In Huhta, the court noted that the ability to perform the full range of sedentary work requires the ability to stoop occasionally, which means up to one-third of an 8-hour workday. Huhta v. Barnhart, 328 F. Supp.2d 377, 386 (W.D.N.Y. 2004), citing Social Security Ruling 96-9p. As the claimant’s treating and examining physicians all opined that the claimant could “never stand, walk, or stoop in an 8-hour workday” the court held that substantial evidence supported the conclusion that the claimant “had exertional and nonexertional limitations that precluded performance of the full range of sedentary work.” Id., citing SSR 96-9p (stating that “a complete inability to stoop would significantly erode the unskilled sedentary occupational base and a finding [of] disabled would usually apply . . .”) (emphasis in original).

A New York district court held that the ALJ committed legal error in failing to explain why he disregarded the RFC assessment of the claimant’s treating physician, who opined that the claimant could never climb, stoop, crouch, kneel or crawl, which are nonexertional limitations that significantly eroded his ability to perform sedentary work. Iannopollo v. Barnhart, 280 F. Supp.2d 41, 50 (W.D.N.Y. 2003). The court noted that, in accordance with SSR 96-9p, a “‘complete inability to stoop would significantly erode the unskilled sedentary occupational base and a finding that the individual is disabled would usually apply . . .’” Id.

Third Circuit

In Parker v. Barnhart, 244 F. Supp.2d 360 (D. Del. 2003), the claimant argued that the ALJ did not consider SSR 96-9p in making his determination of nondisability. Id. at 368. However, the court held that since the claimant was found capable of occasional stooping, the limitation of SSR 96-9p leading to a usual finding of disabled was not present in this case. Id.

Fourth Circuit

The ALJ erred in determining that the claimant could perform the full range of sedentary work, despite her inability to stoop. Hammond v. Heckler, 765 F.2d 424, 426 (4th Cir. 1985).

Fifth Circuit

The ALJ erred in determining that the claimant could perform the full range of sedentary work, despite his reliance on a treating physician’s report stating that the claimant could not (among other movements) stoop. Davis v. Shalala, 859 F.Supp. 1011, 1016 (N.D. Tex.1994).

A Texasdistrict court rejected the claimant’s contention that, based in light of the claimant’s inability to stoop, a finding of disability was warranted. Bagwell v. Barnhart, 338 F. Supp.2d 723, 735 (S.D. Tex. 2004). The court explained that SSR 96-9p does not compel a finding of disability but, instead, provides that “an ALJ should consult a VE to determine a claimant’s RFC when the claimant is limited by an inability to stoop. Id., citing Lauer v. Apfel, 169 F.3d 489, 492 (7th Cir.1999); Sarabia v. Apfel, 152 F.3d 929, No. 97-56166, 1998 WL 382839, at *1 (9th Cir. May 26, 1998).

Sixth Circuit

A Michigan district court noted that SSR 96-9p provides that 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.” Allison v. Commissioner of Social Security, 347 F. Supp.2d 439, 447 (E.D. Mich. 2004) (emphasis in original).While the ALJ gave significant weight to a doctor’s findings, this doctor found that the claimant was not able to stoop and the ALJ failed to address this limitation in his RFC assessment. Accordingly, the court directed that the ALJ address the claimant’s inability to stoop on remand. Id.

Seventh Circuit

In Golembiewski v. Barnhart, 322 F.3d 912, 917 (7th Cir. 2003),the Seventh Circuit held that the ALJ failed to address important evidence supporting the claimant’s claim (such as evidence that the claimant could not stoop).

The Seventh Circuit held in Lauer v. Apfel, 169 F.3d 489, 492-93 (7th Cir. 1999), that the district court erred in determining that SSR 96-9p required a finding of disability where the claimant was completely precluded from stooping and was also limited to sedentary work. The Seventh Circuit noted that SSR 96-9p does not compel a finding of disability, but rather “instructs adjudicators to consult with vocational resources when confronted with a claimant who is ‘limited to less than occasional stooping.’” Id.The court further noted that the district court improperly substituted its opinion for that of the Commissioner as to whether disability was mandated, as opposed to permitted, due to the inability to stoop, and remanded the case, with instructions to the district court to remand the case back to the Commissioner so that the Commissioner could determine the effect of SSR 96-9p. Id. at 493-94.

Although the court acknowledged that the ability to stoop occasionally was required to perform substantially all of the exertional requirements of most sedentary jobs, the court found that the ALJ properly found that the claimant’s testimony concerning his inability to stoop was not credible. Luna v. Shalala, 22 F.3d 687, 690-91 (7th Cir. 1994).

Eighth Circuit

Where the claimant clearly suffered from nonexertional limitations of inability to walk or stand for extended periods in an 8-hour day and inability to stoop, crouch, or kneel, as these characteristics did not closely match those set forth in the guidelines, vocational testimony was required to determine whether there were jobs available that the claimant could perform. Wiley v. Apfel, 171 F.3d 1190, 1191 (8th Cir. 1999). Although a vocational expert did testify, the hypothetical was incomplete as it failed to consider these limitations. Id.

Tenth Circuit

A Colorado district court noted that while the ALJ adopted the opinion of the independent medical examiner regarding the claimant’s residual functional capacity, he failed to include all of the restrictions set forth by this physician, and specifically ignored, without explanation, a crucial restriction from any stooping at all. Tyson v. Apfel, 107 F. Supp.2d 1267, 1269 (D. Colo.2000). The court held that had the ALJ considered all the limitations given by this doctor, including the complete restriction from stooping, he would have been compelled to find the claimant disabled. The significance of the stooping restriction is noted in Social Security Ruling 96-9p, which requires a claimant who retains the RFC for less than a full range of sedentary work to be found disabled if her limitations would significantly erode the occupational base for sedentary work. Id. at 1269.

In Higgins v. Barnhart, 294 F. Supp.2d 1206 (D. Kan. 2003), the court held that the ALJ’s RFC determination was in error, since it did not consider the claimant’s inability to stoop. Id. at 1211.

A Kansasdistrict court remanded a case to the Commissioner holding that there was no substantial evidence supporting the ALJ’s finding that the claimant could occasionally stoop. Piatt v. Barnhart, 225 F. Supp.2d 1278, 1289 (D. Kan.2002). The court directed that, on remand, the Commissioner must consider the claimant’s complete inability to stoop upon his consideration of her RFC. Id.

In Tyson v. Apfel, 107 F. Supp.2d 1267 (D. Colo. 2000), the court held that the ALJ erred in adopting the opinion of the independent medical examiner regarding the claimant’s residual functional capacity, but failing to include a limitation of no stooping which would have required a finding of disabled. Id. at 1269-70. Since the substantial evidence of record established that the claimant could not return to her past relevant work, the ALJ should have proceeded to step five, and at that step, the claimant was disabled in accordance with SSR 96-9p. Id. at 1270.

Eleventh Circuit

An Alabama district court noted that “[a]n ability to stoop occasionally . . . is required in most unskilled sedentary occupations.” James v. Barnhart, 261 F. Supp. 2d 1368, 1372 n.3 (S.D. Ala. 2003). In James, the ALJ ignored the opinion of a podiatrist that a claimant can “never” stoop, kneel, crouch, crawl, work in high, exposed places or use both feet for repetitive action and consequently also failed properly to refute them. Id. at 1371. The court remanded, in part, with directions to evaluate these opinions, noting that accepting this opinion concerning stooping or pain would preclude exclusive reliance on the Grids. Id. at 1371.

In Crooker v. Apfel, 114 F. Supp. 2d 1251 (S.D. Ala. 2000), the court rejected the claimant’s argument that SSR 96-9p mandated a finding of disability if a claimant is unable to stoop, finding that “[b]y its terms, SSR 96-9p does not mandate a finding of disability in this situation,” but rather provides that ‘[c]onsultation with a vocational resource may be particularly useful for cases where the individual is limited to less than occasional [i.e., no] stooping.’” Id.at 1257, quoting SSR 96-9p.

D.C. Circuit

In Butler v. Barnhart, 353 F.3d 992 (D.C. Cir. 2004), the D.C. Circuit held that in light of SSR 96-9p and SSR 85-15, it was “clear” that to arrive at the claimant’s RFC assessment, the ALJ failed to properly consider the opinion of her treating physician, who repeatedly opined that she could not stoop at all, reach, or lift any weight. Id.at 1001.

Lupus and Social Security Disability

Disseminated (systemic) lupus erythematosus can be a debilitating medical condition deserving of Social Security disability benefits. This material surveys the more significant cases discussing the medical condition in a Social Security disability context. Please note that discoid lupus should be distinguished from systemic lupus erythematosus in terms of medical significance.

Tip

Develop the record regarding all symptoms including arthritis, joint pain, kidney or blood disorders, skin eruptions, and/or fever. Be sure your subjective complaints are corroborated with medical evidence from the treating medical providers.

Regulations

20 C.F.R. Pt. 404, Subpt. P, App. 1, Listing of Impairments

Disseminated (systemic) lupus erythematosus (“SLE”) usually involves more than one body system and should be evaluated under Listings 14.02 and 14.04. Listing 14.02 provides that SLE is characterized clinically by constitutional symptoms and signs (e.g., fever, fatigability, malaise, weight loss), multisystem involvement, and, frequently, anemia, leukopenia, or thrombocytopenia. Immunologically, an array of circulating serum auto-antibodies can occur, but are highly variable in pattern. Generally, the medical evidence will show that patients with this disease will fulfill the 1982 Revised Criteria for the Classification of Systemic Lupus Erythematosus of the American College of Rheumatology. (Tan, E.M., et al., Arthritis Rheum. 25: 1271-1277, 1982).

Listing 14.06 governs “undifferentiated connective tissue disorders” and includes syndromes with clinical and immunologic features of several connective tissue disorders that do not satisfy the criteria for any of the disorders described. For instance, the individual may have clinical features of systemic lupus erythematosus and systemic vasculitis and the serologic findings of rheumatoid arthritis. It also includes overlap syndromes with clinical features of more than one established connective tissue disorder.

The specific requirements of Listing 14.02 for systemic lupus erythematosus include documentation of:

A. One of the following:

1. Joint involvement, as described under the criteria in 1.00; or
2. Muscle involvement, as described under the criteria in 14.05; or
3. Ocular involvement, as described under the criteria in 2.00ff; or
4. Respiratory involvement, as described under the criteria in 3.00ff; or
5. Cardiovascular involvement, as described under the criteria in 4.00ff or 14.04D; or
6. Digestive involvement, as described under the criteria in 5.00ff; or
7. Renal involvement, as described under the criteria in 6.00ff; or
8. Skin involvement, as described under the criteria in 8.00ff; or
9. Neurological involvement, as described under the criteria in 11.00ff; or
10. Mental involvement, as described under the criteria in 12.00ff.

or

B. Lesser involvement of two or more organs/body systems listed in paragraph A, with significant, documented, constitutional symptoms and signs of severe fatigue, fever, malaise, and weight loss. At least one of the organs/body systems must be involved to at least a moderate level of severity.

Applicable Case Law

Second Circuit

The ALJ’s refusal to permit the claimant to subpoena a treating and reporting physician as to whether the claimant actually suffered from lupus was proper. Yancey v. Apfel, 145 F.3d 106, 116 (2d Cir. 1998).

Fifth Circuit

In Newton, the Fifth Circuit noted that the ALJ improperly ignored the claimant’s “claims of severe fatigue, weakness, and swelling, all of which are completely consistent with a diagnosis of SLE.” Newton v. Apfel, 209 F.3d 448, 459 (5th Cir. 2000).

In Dowles v. Barnhart, 258 F. Supp.2d 478 (W.D. La. 2003), the court held that the ALJ erred in failing to consider whether the claimant’s systemic lupus erythematosus (SLE) met the requirements of Listing 14.02. Id. at 486. Instead, the ALJ gave “a bare and summary conclusion that a plaintiff does not meet the criteria of any listing,” a finding which is “beyond meaningful judicial review.” Id. The ALJ also erred in relying on the Medical-Vocational Guidelines to find that the claimant was not disabled given the fact that SLE is a nonexertional impairment and given the ALJ’s failure to consider the side effects of the claimant’s medication and the impact of periodic SLE flare-ups on her ability to keep a job. Id. at 486 n. 7. The court then evaluated this case in accordance with Listing 14.02 and found that the claimant met at least six of the 11 listed criteria (with only four being necessary to support a finding of SLE), thereby meeting the threshold requirement for Listing 14.02.Id.at 487. The court further held that the claimant’s lupus met Listing 14.02(A)(8), for severe involvement of her skin from SLE since at least the time she filed her claim for benefits on June 3, 1997 (protective filing date), as well as Listing 14.02(B), by meeting the criteria for “lesser involvement” of two or more organs/body systems as well as its requirement of “severe fatigue, fever, malaise, and weight loss.” Id. at 488-49.

Sixth Circuit

In Crouch v. Secretary of Health and Human Servs., 909 F.2d 852 (6th Cir. 1990), there was not substantial evidence of at least four out of eleven possible criteria required for a positive diagnosis of lupus. Id.at 856. The court also found that there was no objective medical evidence to confirm the severity of the alleged pain and that the objectively determined medical condition could reasonably be expected to give rise to the alleged disabling pain. Id. Specifically, the medical record showed that although there was diffused tenderness in multiple joints and along the paraspinal musculature, there were no definite ongoing inflammatory signs of swelling, redness or heat in the major joints of any of the extremities. Based on these findings, the court found that there was not substantial evidence of severe disabling pain due to lupus. Id.

Where the only evidence that the claimant’s SLE was of disabling severity during the period in question consisted solely of her testimony and affidavits by her husband, her daughter, and a boarder, the Commissioner’s findings were supported by substantial evidence. Gayton v. Secretary of Health & Human Servs., 691 F. Supp. 22, 24 (N.D. Ohio 1988).

Where the signs and symptoms of the claimant’s condition were so equivocal that her doctors could not even render a definite diagnosis of SLE, the claimant’s SLE or lupus-type impairment was not severe. Buettner v. Secretary of Health and Human Servs., 686 F. Supp. 616, 618 (W.D. Mich. 1988).

Seventh Circuit

Although the ALJ concluded that the claimant did have lupus, his decision that she was not disabled was not based on substantial evidence. Micus v. Bowen, 979 F.2d 602, 609 (7th Cir. 1992). As noted by the Micus court, lupus is a chronic, relapsing inflammatory disease that attacks connective tissues and is characterized by a wide range of symptoms, including arthritis, pain in the joints, kidney and blood disorders, skin eruptions, and fever. Id.,citing Dorland’s Illustrated Medical Dictionary 958 (27th ed. 1988). Although lupus is incurable and its cause unknown, medications (such as corticosteroids) can, at least temporarily, moderate its effects on many sufferers. Lupus may lie dormant or quiescent, exhibiting no or slight manifestations, only to flare suddenly and become debilitating. Id.at 603.

A district court held that there was objective evidence supporting the claimant’s subjective complaints where the ALJ’s own medical advisor stated that “[l]upus patients may develop joint pains . . . that are not accompanied by inflammatory changes.” Martin v. Sullivan, 750 F. Supp. 964, 970 (S.D. Ind. 1990).

Where the claimant suffered from drug induced lupus, even though she had a positive ANA reading, her condition did not meet the requirements of the listing for disseminated lupus erythmatosus, contained in Section 10.04 of the Listing of Impairments. Predki v. Heckler, 622 F. Supp. 495, 501 (N.D. Ill. 1985).

Eighth Circuit

Where the claimant suffered from lupus and fibromyalgia, the Eighth Circuit held that the ALJ improperly evaluated her subjective complaints of pain and failed to give proper weight to the opinions of her treating physicians. Kelley v. Callahan, 133 F.3d 583, 590 (8th Cir. 1998).

The fact that a treating physician noted that the claimant’s lupus was “in remission” and “ha[d] stabilized” did not mean that the claimant’s symptoms had gone away or that they did not exist. Gude v. Sullivan, 956 F.2d 791, 793 (8th Cir. 1992). The Eighth Circuit concluded that substantial evidence failed to support the ALJ’s conclusions that the claimant’s claims of pain and discomfort were not credible and that the claimant could do sedentary work. Id.

Because the ALJ failed to consider the progressive nature of the claimant’s spinal impairments and the relapsing, remitting nature of her systemic lupus, and failed to consider the combined effect of her impairments, both mental and physical, the medical evidence did not show, as the ALJ found, that the claimant’s condition had not significantly deteriorated since her onset date. Bowman v. Barnhart, 310 F.3d 1080, 1084 (8th Cir. 2002).

The court held in Gillette v. Barnhart, 291 F. Supp.2d 1071 (D.N.D. 2003) that the opinions of two treating physicians, that as a result of the claimant’s lupus, she lacked the endurance for full-time employment, were improperly disregarded by the ALJ and should have been accorded controlling weight. Id.at 1076. In so holding, the court noted that both physicians agreed in their assessments, the opinions were based upon having treated the claimant for several years (in contrast to the conclusions of the agency physicians who never examined her), and the medical record revealed a patient with the chronic and progressive disorder of lupus whose symptoms have followed a declining pattern of peaks and valleys. Id. The court also noted that the claimant’s reported activities were consistent with the nature of her lupus, stating:

[I]t tends to flare up and then subside only to flare-up again. The pain and fatigue come and go. It is clear that a person with lupus has good days on which she can be fairly active and bad days when little, if anything, can be accomplished.

Id. at 1078. The court concluded that, considering the totality of the record, the claimant’s limitations and disabilities presented a clear picture of a person who could not hold down a full-time position and reversed and remanded for an award of benefits. Id.

Where the medical evidence did not support that the claimant was suffering from ongoing severe symptoms of lupus, and the claimant had not been restricted by her physician from working more than part-time except in the letter generated at the request of her attorney just prior to her social security hearing, the ALJ properly determined that she did not suffer from a severe impairment. Meyer v. Callahan, 980 F. Supp. 1069, 1078 (W.D. Mo. 1997).

Because the record did not provide sufficient insight into the effects of SLE or what functional limitations were caused by this condition, and due to the illegibility of statements by the claimant’s treating physician who was then deceased, remand was required for further development. Bell v. Heckler, 609 F. Supp. 213, 216 (W.D. Mo. 1985).

Ninth Circuit

In Reed v. Massanari, 270 F.3d 838 (9th Cir. 2001), the Ninth Circuit held that the ALJ rejected, for an improper reason, the claimant’s request for a consultative examination by a rheumatologist for a claimant who suffered from lupus. Id. at 839. Specifically, the ALJ’s decision not to order the consultative examination was not based on a determination that the evidence already in the record was sufficient, but on the ALJ’s perception that both rheumatologists recruited by the state agency were unable or unwilling to provide reliable opinions on matters of rheumatology. Id. at 843. As there was no material in the record which supported this conclusion, the refusal to order the examination amounted to an “ad hoc, across-the-board disqualification of State-recruited consultative medical examiners” which exceeded the ALJ’s authority. Id. at 844. Thus, the court reversed and remanded and directed that, on remand, the matter be assigned to a different ALJ. Id. at 845.

Eleventh Circuit

A full range of motion, lack of synovitis, and intact motor function did not provide evidence that a claimant’s systemic lupus could not give rise to pain in her lower extremities and dizziness. Swindle v. Sullivan, 914 F.2d 222, 226 (11th Cir. 1990). On this basis, the Eleventh Circuit found that the ALJ’s determination that her testimony regarding pain and dizziness was only partially credible was not supported by substantial evidence. Id.

The district court found that because it was clear that the claimant’s impairments fell within the listings for rheumatoid arthritis or systemic lupus erythmatosis, the ALJ’s finding of no disability was not supported by substantial evidence in the record. Heidig v. Heckler, 608 F. Supp. 135, 142 (S.D. Fla.1985).

Manipulative Limitations and Social Security Disability

Social Security Ruling 96-9p examines the effect of various functional limitations on a Social Security disability claimant’s ability to perform the full range of sedentary work. Although SSR 85-15 generally discusses the effect of manipulative limitations on a claimant’s ability to work, SSR 96-9p is the first ruling to provide that any significant manipulative limitation necessarily results in the “significant erosion of the unskilled sedentary occupational base.” Based on this ruling, the ALJ has the authority to find a claimant disabled under such circumstances. Additionally, the ALJ arguably must obtain vocational expert testimony to establish that a claimant (who is otherwise limited to sedentary work and suffers from significant manipulative limitations) can perform other work.

Tip

If you suffer from medically documented manipulative limitations and are limited to unskilled sedentary work, your attorney should argue that the unskilled sedentary work base has been significantly eroded and that a finding of disabled is required. Alternatively, your attorney should argue that in light of your manipulative limitations, vocational expert testimony is needed to establish the existence of other work that you can perform.

Regulations

20 C.F.R. §§ 404.1545, 416.945

The regulations provide that a limited ability to perform certain physical demands of work activity, including manipulative functions such as reaching and handling, may reduce a claimant’s ability to do past work and other work.

20 C.F.R. §§ 404.1569a, 416.969a

Some examples of nonexertional limitations or restrictions include difficulty performing the manipulative or postural functions of some work such as reaching, handling, stooping, climbing, crawling, or crouching.

Rulings

Social Security Ruling 96-9p

SSR 96-9p provides that 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. Id. “Most unskilled sedentary jobs require good use of the hands and fingers for repetitive hand-finger actions.” Id.

SSR 96-9p further provides that:

Any significant manipulative limitation of an individual’s ability to handle and work with small objects with both hands will result in a significant erosion of the unskilled sedentary occupational base.

Social Security Ruling 85-15

SSR 85-15 provides that reaching, handling, fingering, and feeling require progressively finer usage of the upper extremities to perform work-related activities. Reaching (extending the hands and arms in any direction) and handling (seizing, holding, grasping, turning or otherwise working primarily with the whole hand or hands) are activities required in almost all jobs. Significant limitations of reaching or handling may eliminate a large number of occupations a person could otherwise do. Varying degrees of limitations would have different effects, and a VE’s assistance might be needed to determine the effects of the limitations.

Fingering involves picking, pinching, or otherwise working primarily with the fingers. It is needed to perform most unskilled sedentary jobs and to perform certain skilled and semiskilled jobs at all levels of exertion. As a general rule, limitations of fine manual dexterity have greater adjudicative significance — in terms of relative numbers of jobs in which the function is required — as the person’s exertional RFC decreases. Thus, the loss of fine manual dexterity narrows the sedentary and light ranges of work much more than it does the medium, heavy, and very heavy ranges of work. The varying degrees of loss which can occur may require the adjudicator to have a VE’s assistance. However, a VE would not ordinarily be required where a person has lost the ability to feel the size, shape, temperature, or texture of an object by the fingertips, since this is a function required in very few jobs.

Social Security Ruling 83-14

SSR 83-14 describes Example 1 of § 201.00(h) of the Grids as illustrating that a limitation to unskilled sedentary work, with an additional loss of bilateral manual dexterity that is significant, warrants a conclusion of “disabled.” SSR 83-14 further notes that the bulk of unskilled sedentary jobs requires bilateral manual dexterity.

Case Law

First Circuit

In Heggarty v. Sullivan, 947 F.2d 990 (1st Cir. 1991), the court found that where uncontradicted medical evidence indicated that the claimant’s manual dexterity was limited, the ALJ’s conclusion that the claimant retained the capacity to perform the full range of sedentary work was not supported by substantial evidence and a remand for vocational evidence was required. Id. at 996-97.

In Prentice, the Commissioner moved for a remand pursuant to sentence four of 42 U.S.C. § 405(g), conceding that the claimant suffered from a nonexertional impairment (a manual-dexterity problem) which was significant enough to have undermined the administrative law judge’s sole reliance on the Medical-Vocational Guidelines, and contending that the appropriate remedy was remand for rehearing to obtain vocational expert testimony. Prentice v. Barnhart, 256 F. Supp.2d 4, 5-6 (D. Me. 2003). The claimant opposed the remand, and instead argued that his entitlement to benefits was clear enough to warrant remand with instructions to pay benefits. Id. at 6. In support, the claimant cited Social Security Ruling 96-9p for the proposition that a person “who is limited to unskilled sedentary work and lacks any manual dexterity of his non-dominant hand is ipso facto disabled.” Id.The court disagreed, citing three reasons: (1) nowhere in SSR 96-9p does it clearly direct that a claimant be found “disabled”; (2) circuit courts have rejected arguments similar to that made by the claimant’s and (3) the Commissioner clarified, in deleting example 1 of section 201.00(h) from the Grids effective September 27, 2001, that the agency has always intended that the example not be construed to direct a finding of disability. Id. at 7. As SSR 96-9p does not clearly direct a finding of disabled, remand with instructions for rehearing as requested by the Commissioner, rather than remand with instructions to pay benefits, was the appropriate remedy. Id. at 8.

Fifth Circuit

The Fifth Circuit rejected the claimant’s argument that the ALJ failed to obtain vocational expert testimony despite his limitation to sedentary work and his manipulative limitations. Hernandez v. Heckler, 704 F.2d 857, 861 (5th Cir. 1983).

Sixth Circuit

“As a general rule, limitations of fine manual dexterity have more significance regarding sedentary ranges of work than in medium ranges of work, because sedentary jobs commonly require such function.” Henderson v. Apfel, 142 F. Supp.2d 943, 946-47 (W.D. Tenn. 2001), citing SSR 85-15 and SSR 96-9p.

Noting that § 201.00 of the Grids did not mandate a finding of disability, the court stated that although the claimant was limited in his ability to engage in fine manipulation, he did not lack bilateral manual dexterity, both gross and fine, as did the claimant in § 201.00. Therefore, the Grids did not direct a finding of disability under the circumstances presented. Preston v. Sullivan, 785 F. Supp. 1267, 1272 (S.D. Ohio 1992).

Seventh Circuit

While most unskilled sedentary jobs require good use of the hands and fingers for repetitive hand-finger actions, there was sufficient evidence to support a finding that the claimant could perform sedentary jobs. Diaz v. Chater, 55 F.3d 300, 309 (7th Cir. 1995).

Although the claimant could not perform such manipulations as changing a spark plug, but admitted that he had the ability to perform fine manipulations such as picking up a rubber band, the ALJ properly concluded that the claimant’s capability to perform the full range of sedentary work was not significantly impacted by his hand restrictions. Luna v. Shalala, 22 F.3d 687, 692 (7th Cir. 1994).

In evaluating a claimant’s right to seek Equal Access to Justice Act attorneys’ fees, the court held that the Commissioner’s position was substantially justified when it exclusively relied on the Grids even though the claimant was precluded from using her nondominant hand for repetitive motions.Cummings v. Sullivan, 950 F.2d 492, 498 (7th Cir. 1991).

Limitations in the claimant’s hands and feet prevented his operating foot controls, typing, and writing for a substantial period, and impeded both bilateral and fine-hand manipulations, thereby precluding his performance of many unskilled sedentary occupations. Smith v. Schweiker, 735 F.2d 267, 272 (7th Cir. 1984).

Eighth Circuit

Substantial evidence supported the ALJ’s findings that the claimant could do the full range of sedentary work where the medical records contained no evidence that the claimant sought or received medical treatment for numbness in his hands. Ownbey v. Shalala, 5 F.3d 342, 344 (8th Cir. 1993).

Since a physician stated that the claimant would be limited in his ability to handle objects and that his slight hearing loss would affect his ability to hear low voices, and both of these conditions could limit the unskilled, sedentary jobs which the claimant could perform, VE testimony would be required upon remand. Sanders v. Sullivan, 983 F.2d 822, 824 (8th Cir. 1992).

Ninth Circuit

Where the ALJ specifically found that the claimant could not perform the full range of sedentary and light work because of significant mental and manipulative nonexertional limitations, the ALJ was required to obtain VE testimony. Burkhart v. Bowen, 856 F.2d 1335, 1341 (9th Cir. 1988).

Where the claimant had a permanent injury to one hand which precluded jobs requiring bilateral manual dexterity and thus significantly compromised the only range of work for which he was otherwise qualified, the ALJ erred in failing to obtain testimony from a VE as to other jobs the claimant could perform. Fife v. Heckler, 767 F.2d 1427, 1430 (9th Cir. 1985).

Tenth Circuit

The ALJ erred in finding that the claimant was not disabled under the Grids where the ALJ admitted that the claimant had reaching limitations and was limited to sedentary work. Saiz v. Barnhart, 392 F.3d 397, 399 (10th Cir. 2004).

Where the record did not support a finding that the claimant’s hands were fully functional, the ALJ’s failure to include any hand limitations in his hypothetical to the VE violated the established rule that such inquiries must include all impairments borne out by the evidentiary record. Evans v. Chater, 55 F.3d 530, 532 (10th Cir. 1995).

The Tenth Circuit noted that a claimant may possess nonexertional limitations in his manual dexterity which limit his ability to perform tasks with his fingers and fingertips, thereby reducing the claimant’s potential occupational base as set forth in the Grids. Trimiar v. Sullivan, 966 F.2d 1326, 1333 (10th Cir. 1992).

In Piatt v. Barnhart, 225 F. Supp.2d 1278 (D. Kan. 2002), the court held that the record did not contain substantial evidence to support the ALJ’s finding that there were no manipulative limitations. Id. at 1285.

Eleventh Circuit

The Eleventh Circuit reaffirmed its holding that limitations in manual dexterity and grip strength in one hand would significantly limit a person’s ability to adapt to other work, and should therefore preclude exclusive reliance on the Grids. Foote v. Chater, 67 F.3d 1553, 1560 (11th Cir. 1995).

The Eleventh Circuit found that the claimant, who required an assistive device to ambulate, suffered from a manipulative limitation. Walker v. Bowen, 826 F.2d 996, 1003 (11th Cir. 1987). The ALJ erred in failing to make a specific finding as to whether the nonexertional impairment was severe enough to preclude the claimant from performing a wide range of sedentary work. Id.

The Definition of “Severe Impairment” in Social Security Disability

This is an overview of the applicable Social Security disability laws, regulations, rulings, and primary circuit court case law governing the definition of “severity,” as used in step two of the sequential analysis used by the Social Security Administration to determine eligibility for disability benefits.

Many circuits that have issued published decisions on this topic have held that an impairment can be considered as not severe only if it is a slight abnormality that has such minimal effect on the individual that it would not be expected to interfere with the individual’s ability to work. Other courts have held that the inquiry at step two is a “de minimus screening device to dispose of groundless claims.”

Tip

Each impairment and its resulting limitations must be documented with medical evidence. Simply alleging existence of the impairment is insufficient to establish “severity” as set forth in step two of the sequential evaluation process.

Statutes

42 U.S.C. § 423(d)

In determining whether an individual’s physical or mental impairment or impairments are of a sufficient medical severity that such impairment or impairments could be the basis of eligibility under this section, the Commissioner is required to consider the combined effect of all of the individual’s impairments without regard to whether any such impairment, if considered separately, would be of such severity. If the Commissioner does find a medically severe combination of impairments, the combined impact of the impairments shall be considered throughout the disability determination process.

Regulations

20 C.F.R. §§ 404.1520, 416.920

The regulations provide that a claimant must have a severe impairment. If the claimant does not have any impairment or combination of impairments that significantly limit his or her physical or mental ability to do basic work activities, the SSA will find that the claimant does not have a severe impairment and is, therefore, not disabled.

20 C.F.R. §§ 404.1521, 416.921

In §§ 404.1521 and 416.921, a non-severe impairment is defined as an impairment or combination of impairments that does not significantly limit a claimant’s physical or mental ability to do basic work activities. “Basic work activities” are defined as the abilities and aptitudes necessary to do most jobs. Examples of these include:

1. Physical functions such as walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling;
2. Capacities for seeing, hearing, and speaking;
3. Understanding, carrying out, and remembering simple instructions;
4. Use of judgment;
5. Responding appropriately to supervision, co-workers and usual work situations; and
6. Dealing with changes in a routine work setting.

Rulings

Social Security Ruling 96-3p

To be found disabled, an individual must have a medically determinable “severe” physical or mental impairment or combination of impairments that meets the duration requirement. At step two of the sequential evaluation process, an impairment or combination of impairments is considered “severe” if it significantly limits an individual’s physical or mental abilities to do basic work activities. An impairment that is “not severe” must be a slight abnormality (or a combination of slight abnormalities) that has no more than a minimal effect on the ability to do basic work activities.

Social Security Ruling 96-8p

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.

Social Security Ruling 85-28

An impairment or combination of impairments is found “not severe” and a finding of “not disabled” is made at step two when medical evidence establishes only a slight abnormality or a combination of slight abnormalities that would have no more than a minimal effect on an individual’s ability to work even if the individual’s age, education, or work experience were specifically considered. The severity requirement cannot be satisfied when medical evidence shows that the person has the ability to perform basic work activities, as required in most jobs. Examples of these are walking, standing, sitting, lifting, pushing, pulling, reaching, carrying or handling; seeing, hearing, and speaking; understanding, carrying out, and remembering simple instructions; use of judgment and responding appropriately to supervision, coworkers, and usual work situations; and dealing with changes in a routine work setting. Thus, these basic work factors are inherent in making a determination that an individual does not have a severe medical impairment.

Although an impairment is not severe if it has no more than a minimal effect on an individual’s physical or mental ability to do basic work activities, the possibility of several such impairments combining to produce a severe impairment must be considered. A claim may be denied at step two only if the evidence shows that the individual’s impairments, when considered in combination, are not medically severe (i.e., do not have more than a minimal effect on the person’s physical or mental ability to perform basic work activities). If such a finding is not clearly established by medical evidence, adjudication must continue through the sequential evaluation process.

If the medical evidence establishes only a slight abnormality that has no more than a minimal effect on a claimant’s ability to do basic work activities, but evidence shows that the person cannot perform his or her past relevant work because of the unique features of that work, a denial at the “not severe” step of the sequential evaluation process is inappropriate. The inability to perform past relevant work in such instances warrants further evaluation of the individual’s ability to do other work considering age, education and work experience.

Resources

POMS DI 24505.005 Evaluation of Medical Impairments that Are Not Severe

POMS DI 24505.005 sets forth the various considerations in evaluating severity issues. It confirms that although an impairment is not severe if it has no more than a minimal effect on an individual’s physical or mental ability(ies) to do basic work activities, the possibility of several such impairments combining to produce a severe impairment must be considered. When assessing the severity of whatever impairments an individual may have, the adjudicative team must assess the impact of the combination of those impairments on the person’s ability to function, rather than assess separately the contribution of each impairment to the restriction of his or her activity as if each impairment existed alone. A claim may be denied at step two only if the evidence shows that the individual’s impairments, when considered in combination, are not medically severe (i.e., do not have more than a minimal effect on the person’s physical or mental ability to perform basic work activities). If such a finding is not clearly established by medical evidence, however, adjudication must continue through the sequential evaluation process.

At the second step of sequential evaluation, evidence is evaluated to assess the effects of the impairment on the ability to do basic work activities. If the assessment shows the individual to have the physical and mental ability necessary to perform such activities, no evaluation of past work (or of age, education, and work experience) is needed. Rather, it is reasonable to conclude, based on the minimal impact of the impairment(s), that the individual is capable of engaging in SGA. The rationale of denial in the formal determination as to disability must also include a statement regarding the individual’s present functional abilities which supports the finding of a not severe impairment(s).

If the medical evidence establishes only a slight abnormality(ies) which has no more than a minimal effect on a claimant’s ability to do basic work activities, but evidence shows that the person cannot perform his or her past relevant work because of the unique features of that work, a denial at the “not severe” step of the sequential evaluation process is inappropriate. The inability to perform past relevant work in such instances warrants further evaluation of the individual’s ability to do other work considering age, education, and work experience.

Case Law

United States Supreme Court

The severity regulation increases the efficiency and reliability of the sequential evaluation process by identifying at an early stage those claimants whose medical impairments are so slight that it is unlikely they would be found to be disabled even if their age, education, and experience were taken into account. Bowen v. Yuckert, 482 U.S.137, 153, 107 S.Ct. 2287, 2297, 96 L.Ed.2d 119 (1987).

First Circuit

Under Social Security Ruling 85-28, a claim may be denied at step two for lack of a severe impairment only where the medical evidence establishes only a slight abnormality or combination of slight abnormalities that would have no more than a minimal effect on an individual’s ability to work even if the individual’s age, education, or work experience were specifically considered. Barrientos v. Secretary of Health and Human Servs., 820 F.2d 1, 2 (1st Cir. 1987). Social Security Ruling 85-28 clarifies that the step two severity requirement is intended “to do no more than screen out groundless claims.” McDonald v. Secretary of Health and Human Servs., 795 F.2d 1118, 1124 (1st Cir. 1986).

Second Circuit

A step two analysis can do no more than “screen out de minimus claims.” Pickering v. Chater, 951 F. Supp. 418, 424 (S.D.N.Y. 1996), citing Dixon v. Shalala, 54 F.3d 1019, 1030 (2d Cir. 1995) (finding that the Commissioner misapplied the severity step between 1976 and 1983 and ordering the readjudication of class member claims).

A severe impairment is one that imposes “more than a minimal restriction on a person’s ability to engage in basic work activities.” Torres v. Shalala, 938 F.Supp. 211, 215 n. 8 (S.D.N.Y. 1996).

Third Circuit

The step two severity standard is not intended to screen out significant disabilities. Bailey v. Sullivan, 885 F.2d 52, 56-57 (3d Cir. 1989).

Fourth Circuit

The establishment of “severity” is ordinarily not a difficult hurdle for the claimant to clear: “[A]n impairment can be considered as ‘not severe’ only if it is a slight abnormality which has such a minimal effect on the individual that it would not be expected to interfere with the individual’s ability to work, irrespective of age, education, or work experience.” Albright v. Commissioner of Social Sec. Admin., 174 F.3d 473, 478 n. 1 (4th Cir. 1999), citing Evans v. Heckler, 734 F.2d 1012, 1014 (4th Cir. 1984).

The Fourth Circuit law provides that “an impairment can be considered as ‘not severe’ only if it is a slight abnormality which has such a minimal effect on the individual that it would not be expected to interfere with the individual’s ability to work, irrespective of age, education, or work experience.” Evans v. Heckler, 734 F.2d 1012, 1014 (4th Cir. 1984).

Fifth Circuit

The Fifth Circuit assumed that the ALJ applied an improper standard for determining severity where the ALJ adverted only to the literal terms of 20 C.F.R. § 404.1520(c). Loza v. Apfel, 219 F.3d 378, 392-93 (5th Cir. 2000). The court further held that the ALJ should have either set forth the standard as it was construed in Stone v. Heckler, 752 F.2d 1099 (5th Cir. 1985) or another Fifth Circuit decision, or expressly stated that an impairment could be considered as not severe only if it was a slight abnormality having such minimal effect on an individual that it would not be expected to interfere with the individual’s ability to work, irrespective of age, education or work experience. Id.

An impairment can be considered as not severe only if it is a slight abnormality that has such minimal effect on the individual that it would not be expected to interfere with the individual’s ability to work, irrespective of age, education or work experience.Spellman v. Shalala, 1 F.3d 357 (5th Cir. 1993), citing Estran v. Heckler, 745 F.2d 340, 341 (5th Cir. 1984). As stated by the Spellman Court, in Stone v. Heckler, 752 F.2d 1099 (5th Cir. 1985), the Fifth Circuit stated that unless the correct standard was used in determining the severity of an impairment, the claim must be remanded to the Commissioner for reconsideration.Id. The court concluded that the Commissioner must indicate in his opinion that it evaluated severity in accordance with Estran and Stone. The court further noted that it would assume that the ALJ and Appeals Council applied an incorrect standard to the severity requirement unless the correct standard was set forth by reference to the Stone opinion or another of the same effect, or by an express statement that the proper construction was used. Id.

Sixth Circuit

An impairment can be considered non-severe only if it could constitute a “slight abnormality which has such a minimal effect on the individual that it would not be expected to interfere with an individual’s ability to work, irrespective of age, education and past work experience.” Farris v. Secretary of Health and Human Servs., 773 F.2d 85, 89-90 (6th Cir. 1985).

Seventh Circuit

The Seventh Circuit rejected a claimant’s argument that an ALJ was required to find that the claimant suffered from a severe mental impairment simply because one medical source opined that she often suffered from deficiencies of concentration. Nelson v. Apfel, 210 F.3d 799, 802-03 (7th Cir. 2000). The court reasoned that applicable regulations or SSR 96-3p did not equate the rating of “often” with a severe impairment as defined by a “significant limit” in a person’s ability to do basic work activities. The court added that because “we do not know what [the medical source] meant by ‘often’ . . . we conclude that the district court did not abuse its discretion when it remanded this case to the ALJ for further proceedings to resolve factual conflicts in the record.” Id.

Eighth Circuit

The Eighth Circuit held that the ALJ erred in not acknowledging the correct severity standard. Caviness v. Massanari, 250 F.3d 603 (8th Cir. 2001). The court further found that this error was not “harmless” and declined to make a finding of severity in “the first instance.” Id. at 605.

In Simmons v. Massanari, 264 F.3d 751 (8th Cir. 2001), the Eighth Circuit held that substantial evidence supported the determination that the claimant did not suffer from a severe impairment or combination of impairments prior to the expiration of his insured status. Id. at 755.

The Eighth Circuit rejected a claimant’s argument that reversal was necessary because the ALJ applied the wrong standard for determining severity. Johnston v. Apfel, 210 F.3d 870, 873 (8th Cir. 2000). The court reasoned that “[a]lthough the ALJ’s decision referred to the ‘no significant limitation’ standard instead of the ‘no more than a minimal effect’ standard, any error was harmless because it was undisputed that the district court used the correct ‘more than a minimal effect’ standard.” Id.

The Eighth Circuit held that the lack of any medically necessary restrictions in the record supported the ALJ’s finding that the claimant’s impairments were not severe. Mittlestedt v. Apfel, 204 F.3d 847, 852 (8th Cir. 2000).

In Gilbert v. Apfel, 175 F.3d 602 (8th Cir. 1999), the Eighth Circuit held that the ALJ’s conclusory finding that the claimant’s arthritis and carpal tunnel were non-severe impairments was not supported by the VE’s testimony that a manipulative limitation produced by these conditions would render the claimant unemployable. Id. at 604.

The regulations define a severe impairment as one that significantly limits the claimant’s physical or mental abilities to do basic work activities that are defined as the “abilities and aptitudes necessary to do most jobs.” Gwalthney v. Chater, 104 F.3d 1043, 1045 (8th Cir. 1997).

An impairment is non-severe when it has no more than a minimal effect on the claimant’s ability to work. Nguyen v. Chater, 75 F.3d 429, 431 (8th Cir. 1996). Denial of benefits at step two of the sequential evaluation process is justified only in cases where the claimant’s medical impairments are so slight that it is not likely that the claimant would be found disabled even if his or her vocational factors of age, education, and work experience were taken into consideration. Id.

The sequential analysis may be terminated at step two only when an impairment or combination of impairments would have “no more than a minimal effect on the claimant’s ability to work.” Henderson v. Sullivan, 930 F.2d 19, 21 (8th Cir. 1991), citingHudson v. Bowen, 870 F.2d 1392, 1396 (8th Cir. 1989).

Ninth Circuit

In Edlund v. Massanari, the Ninth Circuit held that the ALJ erred in finding that the claimant failed to demonstrate a severe mental impairment under step two of the five-step sequential evaluation process.Edlund v. Massanari, 253 F.3d 1152, 1159 (9th Cir. 2001). In finding that the claimant’s mental impairment was not severe, the ALJ “appears to have applied a more stringent legal standard than is mandated by law.” Id.at 1158. The step two inquiry is intended to be “‘a de minimis screening device to dispose of groundless claims.’” Id., quoting Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996).

The Ninth Circuit held in Bustamante v. Massanari, 262 F.3d 949 (9th Cir. 2001) that to the extent the ALJ determined that the claimant’s mental impairments were not severe regardless of the impact of alcoholism, the conclusion was not supported by substantial evidence. Id. at 955. The court noted that every psychiatrist or psychologist who examined the claimant found significant mental problems and that the evidence as a whole “overwhelmingly” supported his claim that he suffered from a severe mental impairment. Id. at 956.

The inquiry at step two is a “de minimus screening device to dispose of groundless claims.” Smolen v. Chater, 80 F.3d 1273, 1290 (9th Cir. 1996).

Tenth Circuit

The Tenth Circuit recently reiterated that “although a severe impairment must ‘significantly limit an individual’s physical or mental ability to do basic work activities,’ 20 C.F.R. § 404.1521, we have held that this is a ‘de minimus’ showing at step two of the five-step process.” Grogan v. Barnhart, 399 F.3d 1257, 1263 (10th Cir. 2005), citing Hawkins v. Chater, 113 F.3d 1162, 1169 (10th Cir. 1997) (citing Williams v. Bowen, 844 F.2d 748, 751 (10th Cir. 1988)).

Step two requires a “de minimis” showing of impairment. Hinkle v. Apfel, 132 F.3d 1349, 1352 (10th Cir. 1997). However, the claimant must show more than the mere presence of a condition or ailment. Id., citingBowen v. Yuckert, 482 U.S. 137, 153, 107 S.Ct. 2287, 2297, 96 L.Ed.2d 119 (1987) (holding step two was designed to identify “at an early stage” claimants with such slight impairments they would be unlikely to be found disabled even if age, education, and experience were considered).

At step two, a claimant is required only to make a “de minimus showing” that his or her medically determinable impairments, in combination, are severe enough to significantly limit his or her ability to perform work-related activity. Williams v. Bowen, 844 F.2d 748, 750-51 (10th Cir. 1988).

Where the record showed that the claimant suffered from joint disease or fibromyalgia, as well as chronic fatigue, migraines or chronic headaches, depression, and reflux disorder, the Tenth Circuit held that the ALJ’s determination that the claimant’s impairments were not severe was not based on substantial evidence. Langley v. Barnhart, 373 F.3d 1116, 1123-24 (10th Cir. 2004).

Eleventh Circuit

Where substantial medical evidence supported a conclusion that the claimant manifested few symptoms of sickle cell anemia and that her cognitive, social, and motor development were normal or close to normal during the relevant time period, the ALJ properly found that sickle cell anemia was not a severe impairment. Wilson v. Apfel, 179 F.3d 1276, 1278 (11th Cir. 1999). The court defined a severe impairment as an impairment “that is more than ‘a slight abnormality or a combination of slight abnormalities that causes no more than minimal functional limitations.’” Id.

An impairment is not severe if the abnormality is so slight and its effect so minimal that it would clearly not be expected to interfere with the individual’s ability to work, irrespective of age, education, or work experience. Brady v. Heckler, 724 F.2d 914, 920 (11th Cir. 1984).

The severity step is a threshold inquiry that allows only “claims based on the most trivial impairments to be rejected.” McDaniel v. Bowen, 800 F.2d 1026, 1031 (11th Cir. 1986). The claimant’s burden of showing severity is mild. A claimant “need show only that [his or] her impairment is not so slight and its effect is not so minimal.” Id.

A claimant who establishes the inability to perform past work activities has a severe impairment. Flynn v. Heckler, 768 F.2d 1273, 1275 (11th Cir. 1985).

Inability to Speak English and Social Security Disability

The Social Security Administration’s (SSA) Medical-Vocational Guidelines (Grids) provide that in some instances where a claimant is limited to sedentary or light work and is unable to communicate in English, the claimant is deemed disabled. The Grids also provide, however, that in some cases, the claimant’s ability or inability to communicate in English is either not relevant or results in a finding that the claimant is not disabled.

One of the foremost issues in the Social Security disability case law has been whether Grid Rules 201.23 and 202.16 (governing individuals between the ages of 18 and 44) should be applied to direct a finding of nondisability where the claimant is both illiterate and unable to communicate in English. Both Grid Rules are phrased in the disjunctive (“or”) sense, as opposed to the conjunctive (“and”) sense.

In Martinez v. Heckler, 735 F.2d 795, 796 (5th Cir. 1984) (discussed below), the Fifth Circuit held that Grid Rule 201.23 does not apply where the claimant is both illiterate and unable to communicate in English. The SSA issued Acquiescence Ruling 86-3 (5) adopting the Martinez decision in the Fifth Circuit. However, other circuits considering the same issues have determined that the above-cited Grid Rules should be interpreted to direct a finding of “not disabled” regardless of whether the claimant is either illiterate or unable to communicate in English, or both illiterate and unable to communicate in English.

Regulations

20 C.F.R. §§ 404.1564, 416.964

These regulations provide that the ability to speak, read and understand English is considered to be an educational factor. Because English is the dominant language of the country, it may be difficult for someone who does not speak and understand English to do a job, regardless of the amount of education the person may have in another language. Therefore, the SSA considers a person’s ability to communicate in English when evaluating what work, if any, he or she can do.

20 C.F.R. Part 404, Subpt. P, App. 2 § 201.00 (h)

A finding of disabled is warranted for claimants (1) who are at least 45 years of age; (2) who are restricted to sedentary work; (3) who are unskilled or have no transferable skills; (4) who have no relevant past work or who can no longer perform vocationally relevant past work; and (5) who are either illiterate or unable to communicate in the English language. On the other hand, if the claimant is under age 45, age is usually not a significant factor in limiting such an individual’s ability to make a vocational adjustment, even an adjustment to unskilled sedentary work, and even where the individual is illiterate or unable to communicate in English.

20 C.F.R. Part 404, Subpt. P, App. 2 § 201.00 (i)

While the inability to communicate in English may significantly limit an individual’s vocational scope, the primary work functions in the bulk of unskilled work relate to working with things (rather than with data or people), and in these work functions at the unskilled level, the ability to communicate in English has the least significance. The functional capability for a full range of sedentary work represents sufficient numbers of jobs to indicate substantial vocational scope for those individuals ages 18-44, even if they are unable to communicate in English.

20 C.F.R. Part 404, Subpt. P, App. 2 §§ 202.00 (c) and (d)

A finding of disabled is warranted for individuals (1) who are at least closely approaching advanced age (ages 50 to 54); (2) who can no longer perform their past work; (3) who have a history of unskilled work experience, or who have only skills that are not readily transferable to a significant range of semi-skilled or skilled work that is within the individual’s functional capacity, or who have no work experience; and (4) who are unable to communicate in English.

Rulings

Acquiescence Ruling 86-3(5) (“AR 86-3(5)”)

AR 86-3(5) provides that when illiteracy and the inability to communicate in English are both alleged or appear to be in question, the ALJ must make findings with respect to both issues. Where individuals ages 18 to 44 are limited to sedentary work, are unskilled or have no work history, and are found to be both illiterate and unable to communicate in English, Grid Rule 201.23 cannot be mechanically applied.

In addition, Grid Rule 202.16 cannot be mechanically applied to individuals who are both illiterate and unable to communicate in English. Grid Rule 202.16 only applies to younger individuals limited to light work, who are unskilled or have no work history, and are illiterate or unable to communicate in English.

AR 86-3(5) applies only to cases in which the individual resides in Texas, Mississippi or Louisiana at the time of the determination or decision at any level of administrative review, i.e., initial, reconsideration, administrative law judge hearing or Appeals Council review.

Case Law

First Circuit

A Puerto Rico district court noted that for an individual limited to sedentary work, English is a relevant factor and the availability of jobs might be significantly reduced for persons unable to understand English. Vega v. Secretary of Health and Human Servs., 582 F. Supp. 1579, 1581 (D.P.R. 1984).

Second Circuit

The Second Circuit found that the absence of findings by the ALJ on the questions of literacy and the ability to communicate in English was crucial in light of the ALJ’s determination that the claimant was only capable of sedentary work, that her work experience was unskilled in nature, and that she was 45 years old at the time of the hearing. Vega v. Harris, 636 F.2d 900, 904 (2d Cir. 1981). If the claimant was also illiterate or “unable to communicate in English,” then the Grids mandated a determination of disability. Id.

Where the record contained strong evidence of the claimant’s inability to communicate in English, the ALJ erred in determining that the claimant was able to communicate in English based on a “brief exchange” with the claimant during the hearing. Lugo v. Chater, 932 F. Supp. 497, 502 (S.D.N.Y. 1996).

Assuming that a claimant retains an RFC to perform light work, the Grids direct a finding of “disabled” for individuals who are of advanced age, have unskilled work experience, and have limited knowledge of the English language.Hierrmann v. Bowen, 669 F. Supp. 595, 598 (S.D.N.Y. 1987).

The ALJ’s mechanical application of Grid Rules 201.18 and 201.24 was inappropriate in light of the uncertainty surrounding the claimant’s English language abilities. Rodriguez v. Heckler, 621 F. Supp. 194, 198 (S.D.N.Y. 1985).

Third Circuit

In Torres, the court rejected the claimant’s argument that she was disabled under § 200.00(h) of the Grids which requires a finding of disability for individuals aged 45-49 who: (1) are restricted to sedentary work; (2) are unskilled or have no transferrable skills; (3) have no past relevant work or can no longer perform past relevant work; and (4) are unable to communicate in English, or are able to speak and understand English but are unable to read or write English. Torres v. Thompson, 274 F. Supp.2d 678 (E.D. Pa. 2003).

The district court held that Acquiescence Ruling 86-3(5) necessitated the finding that Grid Rule 201.23 applied regardless of whether the claimant was both illiterate and unable to communicate in English (i.e., just unable to communicate in English), or merely illiterate. Flecha v. Shalala, 872 F. Supp. 1312, 1316-17 (D.N.J. 1994).

Fifth Circuit

Because the claimant was both illiterate and unable to communicate in English, Grid Rule 201.23 did not apply and the Commissioner’s decision denying continuing benefits was not supported by substantial evidence.Martinez v. Heckler, 735 F.2d 795, 796 (5th Cir. 1984).

The ALJ’s cumulative failures to make and/or document the relevant inquiries regarding Plaintiff’s language abilities required remand due to the lack of substantial supporting evidence. Delgado v. Barnhart, 305 F. Supp.2d 704, 716 (S.D. Tex.2004).

Seventh Circuit

The court held that considering the testimony of the claimant and the reports of witnesses, the ALJ’s direction to the VE to assume that the claimant spoke and understood some functional English, but was not fluent, was supported by the record. Ortiz v. Chater, 986 F. Supp. 479, 488 (N.D. Ill. 1997).

Ninth Circuit

The Ninth Circuit held that the word “or” in Grid Rule 201.23 should be interpreted as conjunctive and applies to claimants who are unable to communicate in English and/or are illiterate. In such a case, a claimant who was both illiterate and unable to communicate in English would be subject to Grid Rule 201.23, providing that the claimant is not disabled if the claimant is illiterate or unable to communicate in English, but still retains residual functional capacity for sedentary work. Chavez v. Department of Health and Human Servs., 103 F.3d 849, 852 (9th Cir. 1996).

Tenth Circuit

Grid Rule 202.16 applies to individuals who are both illiterate and unable to communicate in English, as well as to claimants who are either illiterate or unable to communicate in English. Cazares v. Chater, No. Civ 6:94-CV-401MV/LCS, 1995 WL 845646, at *2 (D.N.M. Dec. 8, 1995).

Eleventh Circuit

The Commissioner erred in finding that the claimant was English literate, where the claimant testified that he was educated through the fourth grade in Cuba, and that he neither read, wrote, nor spoke English (except for being able to speak in short phrases). Reyes v. Heckler, 601 F. Supp. 34, 36-37 (S.D. Fla. 1984).

Pain and Social Security Disability

Social Security disability claimants frequently suffer from subjective complaints of pain that make it difficult, and in some cases impossible, to perform substantial gainful activity on a sustained basis. Applicable statutory and regulatory law provides guidance regarding the analysis of a claimant’s subjective complaints of pain. The Social Security Administration has also issued rulings discussing the analysis of complaints of pain. The purpose of this topic is to provide an overview of applicable laws, regulations, and rulings, and circuit court case law governing this critical area of law.

Statutes

42 U.S.C. § 423(d)(5)(A)

42 U.S.C. § 423(d)(5)(A) dictates that in determining whether an individual suffers from a disability:

an individual’s statements as to pain or other symptoms shall not alone be conclusive evidence of disability . . . there must be medical signs and findings, established by medically acceptable clinical or laboratory diagnostic techniques which show the existence of a medical impairment . . . which could reasonably be expected to produce the pain or other symptoms alleged and which, when considered with all evidence required to be furnished under this paragraph (including statements of the individual or his physician as to the intensity and persistence of such pain or other symptoms which may reasonably be accepted as consistent with the medical signs and findings), would lead to a conclusion that the individual is under a disability.

Regulations

20 C.F.R. §§ 404.1529, 416. 929

The foregoing regulations set forth a detailed two part analysis for evaluating complaints of pain. The regulations first provide that statements about a claimant’s pain or other symptoms will not alone establish that a disability exists. There must be medical signs and laboratory findings which show that the claimant has a medical impairment(s) which could reasonably be expected to produce the pain or other symptoms alleged, and which, when considered with all of the other evidence (including statements about the intensity and persistence of pain or other symptoms which may reasonably be accepted as consistent with the medical signs and laboratory findings), would lead to a conclusion of disability.

If the medical signs or laboratory findings show that a claimant has a medically determinable impairment(s) that could reasonably be expected to produce the alleged symptoms, such as pain, the SSA then evaluates the intensity and persistence of the symptoms. In evaluating the intensity and persistence of symptoms, the SSA must consider all of the available evidence, including medical history, the medical signs and laboratory findings, and statements from treating or examining physicians or psychologists, or other persons about how the symptoms affect the claimant.

The SSA must always attempt to obtain objective medical evidence and, when it is obtained, consider it in reaching a conclusion as to whether a claimant is disabled. The SSA will not reject a claimant’s statements about the intensity and persistence of pain or other symptoms or about the effect the symptoms have on the ability to work solely because the available objective medical evidence does not substantiate the allegations.

Factors relevant to a claimant’s symptoms, such as pain, which must be considered include:

1. A claimant’s daily activities;
2. The location, duration, frequency, and intensity of pain or other symptoms;
3. Precipitating and aggravating factors;
4. The type, dosage, effectiveness, and side effects of any medication taken to alleviate the pain or other symptoms;
5. Treatment, other than medication, received for relief of the pain or other symptoms;
6. Any measures used to relieve pain or other symptoms; and
7. Other factors concerning functional limitations and restrictions due to pain or other symptoms.

Rulings

Social Security Ruling 96-3p

As explained by Social Security Ruling 96-3p, symptoms, such as pain, will not be found to affect an individual’s ability to do basic work activities unless the individual first establishes by objective medical evidence (i.e., signs and laboratory findings) that he or she has a medically determinable physical or mental impairment(s) and that the impairment(s) could reasonably be expected to produce the alleged symptom(s). The finding that an individual’s impairment(s) could reasonably be expected to produce the alleged symptom(s) does not involve a determination as to the intensity, persistence, or functionally limiting effects of the symptom(s). However, once the requisite relationship between the medically determinable impairment(s) and the alleged symptom(s) is established, the intensity, persistence, and limiting effects of the symptom(s) must be considered along with the objective medical and other evidence in determining whether the impairment or combination of impairments is severe.

Social Security Ruling 96-7p

Social Security Ruling 96-7p provides that when the existence of a medically determinable physical or mental impairment(s) that could reasonably be expected to produce the symptoms has been established, the intensity, persistence, and functionally limiting effects of the symptoms must be evaluated to determine the extent to which the symptoms affect the individual’s ability to do basic work activities. The adjudicator must then make a finding about the credibility of the individual’s statements about the symptom(s) and its functional effects.

Because symptoms, such as pain, sometimes suggest a greater severity of impairment than can be shown by objective medical evidence alone, the adjudicator must carefully consider the individual’s credibility if a disability determination or decision that is fully favorable to the individual cannot be made solely on the basis of objective medical evidence.

Social Security Ruling 95-5p

Social Security Ruling 95-5p (“SSR 95-5p”) provides that since symptoms sometimes suggest “a greater severity of impairment than can be shown by objective medical evidence alone, careful consideration must be given to any available information about symptoms.” This Ruling further requires that the ALJ “describe the relationship between the medically determinable impairment(s) and the conclusions regarding functioning which have been derived from the evidence, and . . . include a discussion of why reported daily activity limitations or restrictions are or are not reasonably consistent with the medical and other evidence.” Id.In addition, SSR 95-5p cautions that an adjudicator is not free to accept or reject a claimant’s complaints solely on the basis of personal observations.

Rather, in all cases in which pain or other symptoms are alleged, the determination or decision rationale must contain a thorough discussion and analysis of the objective medical and the other evidence, including the individual’s complaints of pain or other symptoms and the adjudicator’s personal observations. The rationale must include a resolution of any inconsistencies in the evidence as a whole and set forth a logical explanation of the individual’s ability to work . . . .

Case Law

First Circuit

In Avery v. Secretary of Health & Human Servs., 797 F.2d 19, 29 (1st Cir. 1986), the court outlined that the following factors must be considered in determining whether a claimant’s alleged pain constitutes an additional limitation upon the claimant’s ability to perform substantial gainful activity: (1) the nature, location, onset, duration, frequency, radiation, and intensity of any pain; (2) precipitating and aggravating factors (e.g., movement, activity, environmental conditions); (3) type, dosage, effectiveness, and adverse side effects of any pain medication; (4) treatment, other than medication, for pain relief; (5) functional restrictions; and (6) the claimant’s daily activities. Id.

Complaints of pain need not be precisely corroborated by objective findings, but they must be consistent with medical findings. Dupuis v. Secretary of Health and Human Servs., 869 F.2d 622, 623 (1st Cir. 1989).

Second Circuit

In Mimms v. Heckler, the Second Circuit reiterated that it has long held that the subjective element of pain is an important factor to be considered in determining disability. Mimms v. Heckler, 750 F.2d 180, 185-186 (2d Cir. 1984). While an ALJ has the discretion to evaluate the credibility of a claimant and to arrive at an independent judgment regarding that pain, he or she must do so in light of medical findings and other evidence, regarding the true extent of the pain alleged by the claimant. Id., citingMcLaughlin v. Secretary of Health, Educ. and Welfare, 612 F.2d 701, 705 (2d Cir. 1980). An ALJ is not free to assume that a factor, such as pain, was considered in formulating a medical opinion when there is no evidence that such was the case. Id.

Due to the lack of clear recent circuit authority, see also Melchior v. Apfel, 15 F. Supp.2d 215, 219 (N.D.N.Y. 1998) for a description of the Second Circuit pain standard. As stated by the Melchior court, “it is well settled that a claimant’s subjective evidence of pain is entitled to great weight where it is supported by objective medical evidence.” Id., citingSimmons v. United States R.R. Retirement Bd., 982 F.2d 49, 56 (2d Cir. 1992) (quoting Rivera v. Schweiker, 717 F.2d 719, 725 (2d Cir. 1983) (citations omitted). An ALJ rejecting subjective testimony concerning pain and other symptoms “must do so explicitly and with sufficient specificity to enable the Court to decide whether there are legitimate reasons for the ALJ’s disbelief and whether his determination is supported by substantial evidence.” Id., citing Brandon v. Bowen, 666 F. Supp. 604 (S.D.N.Y.1987) and Valente v. Secretary of HHS, 733 F.2d 1037 (2d Cir. 1984).

Third Circuit

“Once an ALJ concludes that a medical impairment that could reasonably cause the alleged symptoms exists, he or she must evaluate the intensity and persistence of the pain or symptom, and the extent to which it affects the individual’s ability to work. This obviously requires the ALJ to determine the extent to which a claimant is accurately stating the degree of pain or the extent to which he or she is disabled by it.” Hartranft v. Apfel, 181 F.3d 358, 362 (3d Cir. 1999).

The Third Circuit has held that an ALJ must give serious consideration to a claimant’s subjective complaints of pain, even where the complaints are not supported by objective evidence. Mason v. Shalala, 994 F.2d 1058, 1067 (3d Cir. 1993). While there must be objective evidence of some condition that could reasonably produce pain, there need not be objective evidence of the pain itself. Id. Where medical evidence does support a claimant’s complaints of pain, the complaints should then be given ‘great weight’ and may not be disregarded unless there exists contrary medical evidence. Id.

In order for an ALJ to reject a claim of disabling pain, he must consider the subjective pain and specify his reasons for rejecting these claims and support his conclusion with medical evidence in the record. Matullo v. Bowen, 926 F.2d 240, 245 (3d Cir. 1990).

Fourth Circuit

In order for pain to be found disabling, the claimant must show a medically determinable impairment which could reasonably be expected to cause the pain which the claimant alleges he or she suffers. Craig v. Chater, 76 F.3d 585, 594 (4th Cir. 1996), citing 20 C.F.R. §§ 416.929 and 404.1529. After the claimant has met this threshold obligation, the intensity and persistence of the pain and the extent to which it affects her ability to work is evaluated. Id.at 595. While complaints of pain may not be rejected solely because objective evidence does not substantiate the claimant’s statements as to the severity and persistence of pain, a claimant’s statements need not be accepted to the extent they are inconsistent with the available evidence. Id.

Fifth Circuit

In order for pain to be found disabling, it must be “constant, unremitting, and wholly unresponsive to therapeutic treatment,” and pain complaints must also be supported by objective medical evidence. Chambliss v. Massanari, 269 F.3d 520, 522 (5th Cir. 2001). Based upon the medical evidence of record in Chambliss, the court found that substantial evidence supported the ALJ’s determination that the claimant’s alleged pain was not severe enough to preclude substantial gainful employment. Id.

The Fifth Circuit has held that to prove disability resulting from pain, an individual must establish a medically determinable impairment that is capable of producing disabling pain. Ripley v. Chater, 67 F.3d 552, 556 (5th Cir. 1995). Once a medical impairment is established, the subjective complaints of pain must be considered along with the medical evidence in determining the individual’s work capacity. Id. An ALJ cannot ignore altogether a claimant’s subjective complaints of pain. Bowling v. Shalala, 36 F.3d 431, 438 (5th Cir. 1994). Where the uncontroverted medical evidence shows a basis for the claimant’s complaints, the ALJ must articulate reasons for rejecting the claimant’s subjective complaints of pain. Falco v. Shalala, 27 F.3d 160, 163 (5th Cir. 1994).

Sixth Circuit

The Sixth Circuit has developed the following two-pronged test to evaluate a claimant’s allegations of disabling pain:

First, we examine whether there is objective medical evidence of an underlying medical condition.If there is, we then examine: (1) whether objective medical evidence confirms the severity of the alleged pain arising from the condition; or (2) whether the objectively established medical condition is of such a severity that it can reasonably be expected to produce the alleged disabling pain.

Walters v. Commissioner of Social Sec., 127 F.3d 525, 531 (6th Cir. 1997), citing Felisky v. Bowen, 35 F.3d 1027, 1038-39 (6th Cir. 1994).

Pain alone may be sufficient to support a claim of disability. King v. Heckler, 742 F.2d 968, 974 (6th Cir. 1984). In evaluating subjective complaints of disabling pain, the Sixth Circuit evaluates whether there is objective medical evidence of an underlying medical condition, and if so, then (1) whether objective medical evidence confirms the severity of the alleged pain arising from the condition; or (2) whether the objectively established medical condition is of such a severity that it can reasonably be expected to produce the alleged disabling pain. Stanley v. Secretary of Health & Human Servs., 39 F.3d 115, 117 (6th Cir. 1994).

Seventh Circuit

The Seventh Circuit recently noted that:

[a]pplicants for social security benefits who claim to be disabled from working because of extreme pain make the job of a social security administrative law judge a difficult one. Medical science confirms that pain can be severe and disabling even in the absence of “objective” medical findings, that is, test results that demonstrate a physical condition that normally causes pain of the severity claimed by the applicant. E.g., Dennis C. Turk & Akiko Okifuji, Assessment of Patients’ Reporting of Pain: An Integrated Perspective, 353 Lancet 1784 (1999); Paula M. Trief et al., Functional vs. Organic Pain: A Meaningful Distinction? 43 J. Clinical Psych. 219 (1987).

Carradine v. Barnhart 360 F.3d 751, 753 (7th Cir. 2004). Thus, “‘once the claimant produces medical evidence of an underlying impairment, the Commissioner may not discredit the claimant’s testimony as to subjective symptoms merely because they are unsupported by objective evidence.’” Id., quoting Lester v. Chater, 81 F.3d 821, 834 (9th Cir.1996). Further, “‘[a] claimant’s subjective testimony supported by medical evidence that satisfies the pain standard is itself sufficient to support a finding of disability. Indeed, in certain situations, pain alone can be disabling, even when its existence is unsupported by objective evidence.’” Id., quoting Foote v. Chater, 67 F.3d 1553, 1561 (11th Cir. 1995) (per curiam) (citations omitted). “‘Pain, fatigue, and other subjective, nonverifiable complaints are in some cases the only symptoms of a serious medical condition. To insist in such a case, as the social security disability law does not . . . that the subjective complaint, even if believed by the trier of fact, is insufficient to warrant an award of benefits would place a whole class of disabled people outside the protection of that law.’” Id., quoting Cooper v. Casey, 97 F.3d 914, 917 (7th Cir. 1996) (citations omitted).

In Zurawski, the ALJ found that the claimant’s complaints of disabling pain were “not entirely credible due to the inconsistencies with the objective medical evidence, and inconsistencies with daily activities.” Zurawski v. Halter, 245 F.3d 881, 887 (7th Cir. 2001). However, the ALJ provided no further explanation regarding these “inconsistencies” and “should have explained the ‘inconsistencies’ between the claimant’s activities of daily living (that were punctured with rest), his complaints of pain, and the medical evidence.” Id.Since the court was unable to tell whether the ALJ “examined the full range of medical evidence as it relates to his claim,” it held that it lacked a sufficient basis to sustain the ALJ’s credibility determination. Id.at 888. An ALJ “must investigate all avenues presented that relate to pain, including claimant’s prior work record, information and observations by treating physicians, examining physicians, and third parties.” Luna v. Shalala, 22 F.3d 687, 691 (7th Cir. 1994).

As set forth in Pope v. Shalala, 998 F.2d 473, 482 (7th Cir. 1993), for pain or other symptoms to contribute to a finding of disability:

[a]n individual must first establish, by medical signs and laboratory findings, the presence of a medically determinable physical or mental impairment which could reasonably be expected to produce the pain or other symptoms alleged; and once such an impairment is established, allegations about the intensity and persistence of pain or the other symptoms must be considered in addition to the medical signs and laboratory findings in evaluating the impairment and the extent to which it may affect the individual’s capacity for work.

Eighth Circuit

An ALJ may discount a claimant’s allegations if there is evidence that a claimant was a malingerer or was exaggerating symptoms for financial gain. O’Donnell v. Barnhart, 318 F.3d 811, 818 (8th Cir. 2003). Several doctors suggested that O’Donnell might have been magnifying her pain due to a psychogenic overlay. However, even if true, that would not be a reason to discredit her allegations. An “‘ALJ cannot simply ignore . . . medical evidence that [claimant] suffers from pain having its origin in a psychological disorder.’” Id., quoting Mellon v. Heckler, 739 F.2d 1382, 1383 (8th Cir. 1984) (quoting Reinhart v. Secretary, 733 F.2d 571, 572-73 (8th Cir. 1984)). In any event, the doctors who examined and treated O’Donnell more recently did not indicate that she was magnifying her symptoms or malingering. Id.

Although the record credited by the ALJ may not contain sufficient objective medical evidence to support the claimant’s subjective complaints, the record as a whole does support them. Holmstrom v. Massanari, 270 F.3d 715, 722 (8th Cir. 2001). The record as a whole, including the claimant’s testimony and all of the medical records, corroborated Holmstrom’s subjective complaints in such a qualitative manner as to negate the inconsistencies pointed out by the ALJ. Id.

As stated by the Eighth Circuit, pain is a nonexertional impairment. Beckley v. Apfel, 152 F.3d 1056, 1059-60 (8th Cir. 1998). When assessing the credibility of a claimant’s subjective allegations of pain, the ALJ must consider the claimant’s prior work history; daily activities; duration, frequency and intensity of pain; dosage, effectiveness and side effects of medication; precipitating and aggravating factors; and functional restrictions. Id., citing Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984). When rejecting a claimant’s complaints of pain, the ALJ must make an express credibility determination, detailing reasons for discrediting the testimony, set forth the inconsistencies, and must discuss the Polaski factors. Id.A claimant’s allegations of disabling pain may be discredited by evidence that the claimant has received minimum medical treatment and/or has taken only occasional pain medications. Id.

The issue is not whether the claimant suffers from any pain, but whether the claimant’s pain is so disabling as to prevent the performance of any type of work. McGinnis v. Chater, 74 F.3d 873, 874 (8th Cir. 1996). In Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1994), the Eighth Circuit set forth the following pain standard:

The adjudicator may not disregard a claimant’s subjective complaints solely because the objective medical evidence does not fully support them. The absence of an objective medical basis which supports the degree of severity of subjective complaints alleged is just one factor to be considered in evaluating the credibility of the testimony and complaints.

The ALJ may discount the claimant’s allegations of pain when he explicitly finds them inconsistent with daily activities, lack of treatment, demeanor, and objective medical evidence. Jones v. Chater, 86 F.3d 823, 826 (8th Cir. 1996) (noting the mere fact that working may cause pain or discomfort does not require a finding of disability).

Merely “quoting Polaski is not good enough, especially when an ALJ rejects a claimant’s subjective complaints of pain.” Hall v. Chater, 62 F.3d 220, 223 (8th Cir. 1995). In order to reject a claimant’s complaints, the ALJ must make express credibility findings and provide reasons for discrediting the testimony. Reynolds v. Chater, 82 F.3d 254, 258 (8th Cir. 1996), citing Hall v. Chater, 62 F.3d 220, 223 (8th Cir. 1995). See also Flynn v. Chater, 107 F.3d 617, 621 (8th Cir. 1997) (noting that in applying the Polaski factors, it is “perfectly appropriate for an ALJ to find a claimant’s testimony to be credible, but disagree with the claimant’s ultimate conclusion of disability as derived from that testimony”).

Ninth Circuit

According to Cotton v. Bowen, 799 F.2d 1403 (9th Cir. 1991), the analysis of a claimant’s subjective complaints of pain consists of two prongs: (1) the claimant must produce objective medical evidence of an impairment or impairments; and (2) the claimant must show that the impairment or combination of impairments could reasonably be expected to (not that it did in fact) produce some degree of symptom. Smolen v. Chater, 80 F.3d 1273, 1282 (9th Cir. 1996) (finding that “the ALJ may not reject subjective symptom testimony under the Cotton analysis simply because there is no showing that the impairment can reasonably produce the degree of symptom alleged”).

Having determined that Ms. Thomas’ subjective complaints of pain were not credible, the ALJ had no need to explore whether Ms. Thomas’ pain was psychologically related, because pain is subjective and depends on the credibility of the claimant. Thomas v. Barnhart, 278 F.3d 947, 959 (9th Cir. 2002).

Once a claimant satisfies both parts of the first step, step two requires an analysis of the claimant’s credibility. Bergstad v. Commissioner of Social Security Admin., 967 F. Supp. 1195, 1205 (D. Or. 1997), citing Smolen v. Chater, 80 F.3d 1273, 1281 (9th Cir. 1996). In performing this assessment, the ALJ can reject the claimant’s testimony only for specific, clear and convincing reasons. Id. General findings by the ALJ are not sufficient: “rather, the ALJ must identify what testimony is not credible and what evidence undermines the claimant’s complaints.” Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995). Pain testimony may not be discounted solely because it is not corroborated by medical findings. Chavez v. Department of Health & Human Servs., 103 F.3d 849, 853 (9th Cir. 1996).

If the claimant produces medical evidence of an underlying impairment, the Commissioner may not discredit the testimony of the claimant regarding subjective symptoms based solely on the fact that they are unsupported by objective evidence. Lester v. Chater, 81 F.3d 821, 834 (9th Cir. 1995).

Tenth Circuit

The Tenth Circuit reaffirmed its condemnation of ALJ dismissal of subjective complaints based on a boilerplate recitation of law. White v. Barnhart, 287 F.3d 907, 909 (10th Cir. 2001). The court added that an ALJ must give specific reasons why he or she rejects a claimant’s subjective complaint of pain. Id., citing Kepler v. Chater, 68 F.3d 387, 390-91 (10th Cir. 1995).

The Tenth Circuit found that the ALJ’s credibility determination was “adequate,” stating:

Under Luna v. Bowen, the ALJ must decide whether a claimant’s subjective claims of pain are credible, considering such factors as ‘a claimant’s persistent attempts to find relief for his pain and his willingness to try any treatment prescribed, regular use of crutches or a cane, regular contact with a doctor . . . , the claimant’s daily activities, and the dosage, effectiveness, and side effects of medication.’ 834 F.2d at 165-66. Here, the ALJ found plaintiff’s complaints not completely credible based on the paucity of objective medical findings in the record, the fact that she had not been treated by her physicians during the nine months preceding the hearing, her failure to report arm numbness to her doctors, her lack of obvious discomfort at the hearing, and the fact that she was not taking prescription pain medication. As the ALJ relied on appropriate factors to support his decision, there was no error.

Barnett v. Apfel, 231 F.3d 687, 690 (10th Cir. 2000), citing Luna v. Bowen, 834 F.2d 161, 165-66 (10th Cir. 1987).

In one case, the plaintiff asserted an impairment that could reasonably have been expected to produce the disabling pain of which she complained. Because of this, the ALJ was required to determine whether he believed plaintiff’s assertion of severe pain, in light of all the relevant objective and subjective evidence. Winfrey v. Chater, 92 F.3d 1017, 1020 (10th Cir. 1996). Although this credibility determination is peculiarly within the province of the ALJ, it must be supported by substantial evidence. Kepler v. Chater, 68 F.3d 387, 391 (10th Cir. 1995).

In evaluating complaints of pain, the Tenth Circuit considers (1) whether the claimant proved by objective medical evidence an impairment causing pain; (2) whether there was a nexus between the impairment and the subjective complaints of pain; and (3) considering all of the evidence, whether the pain was disabling. Musgrave v. Sullivan, 966 F.2d 1371, 1376 (10th Cir. 1992); Luna v. Bowen, 834 F.2d 161, 164 (10th Cir. 1987). In considering step three, the ALJ must consider the following factors: the levels of medication and their effectiveness, the extensiveness of the attempts (medical or non-medical) to obtain relief, the frequency of medical contacts, the nature of daily activities, subjective measures of credibility that are peculiarly within the judgment of the ALJ, the motivation of an [sic] relationship between the claimant and other witnesses, and the consistency or compatibility of non-medical testimony with objective medical evidence. Huston v. Bowen, 838 F.2d 1125, 1132 (10th Cir. 1988). A finding of disability requires more than an inability to work without pain; rather, the pain must be so severe as to preclude any substantial gainful employment. Gossett v. Bowen, 862 F.2d 802, 807 (10th Cir. 1988).

Eleventh Circuit

The Eleventh Circuit has established a three-part “pain standard” that applies when a claimant attempts to establish disability through her own testimony of pain or other subjective symptoms. Id., See also Brown v. Sullivan, 921 F.2d 1233, 1236 (11th Cir. 1991). The pain standard requires:

1. Evidence of an underlying condition, and either:
2. Objective medical evidence that confirms the severity of the alleged pain arising from that condition; or
3. The objectively determined medical condition must be of such severity that it can reasonably be expected to give rise to the alleged pain.

Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991).

A claimant’s subjective testimony supported by medical evidence that satisfies the pain standard is itself sufficient to support a finding of disability. Foote v. Chater, 67 F.3d 1553, 1561 (11th Cir. 1995). In certain situations, pain alone can be disabling, even when its existence is unsupported by objective evidence. Id. A claimant may establish that his pain is disabling through objective medical evidence that an underlying medical condition exists that could reasonably be expected to produce the pain. Id. If the ALJ rejects a claimant’s complaints of pain, “he must explicitly state as much and give reasons for that determination.” Id.,citing Parker v. Bowen, 788 F.2d 1512, 1520 (11th Cir. 1986). “Failure to state a reasonable basis for rejection of such testimony mandates the testimony be accepted as true ‘as a matter of law.’” Id., citing Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991).

D.C. Circuit

While it is true that 42 U.S.C. § 423(d)(5)(A) does not require medical evidence of pain itself, the statute does require “objective medical evidence of an underlying impairment which could cause such pain.” Smalls v. Shalala, 996 F.2d 413, 418 (D.C. Cir. 1993), citing Brown v. Bowen, 794 F.2d 703, 706 n. 4 (D.C. Cir. 1986) (emphasis in original). The Smalls court noted that “it is well within the ALJ’s province to consider whatever medical evidence of pain or other symptoms exists, as well as [the claimant’s] statements and those of her physicians.” Id.The mere fact that working may cause a claimant pain or discomfort does not mandate a finding of disability. Brown v. Bowen, 794 F.2d 703, 707 (D.C. Cir. 1986).

Failure to consider subjective evidence of pain is ground for remand. Diabo v. Secretary of Health, Educ. & Welfare, 627 F.2d 278, 282 (D.C. Cir. 1980).