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).

Effect of Borderline Age on the Application of the Medical-Vocational Guidelines (Grids)

The Social Security disability regulations provide that the Commissioner will not apply the age categories mechanically in a “borderline situation.” 20 C.F.R. § 404.1563(a). The Commissioner considers a borderline situation to exist “when there would be a shift in results caused by the passage of a few days or months.” Social Security Ruling 82-46c. The Social Security disability court decisions appear to refuse to permit the mechanical application of the age rules where the disability claimant is less than a few months shy of the next age category.

Regulations

20 C.F.R. §§ 404.1563(a), 416.963(a)

The regulations generally provide that age shall be considered a factor in determining whether a claimant is disabled. However, the regulations specifically provide that the age categories will not be applied mechanically in a borderline situation. The regulations were amended in April 6, 2000 to clarify that if a person’s age category changes during the period for which SSA is adjudicating a disability claim, SSA will use the age category that is applicable to the person during the period for which SSA is deciding if the person is disabled. See 65 Fed. Reg. 17994, 17995(April 6, 2000). SSA further explained that in borderline age situations, SSA will not apply the age categories mechanically, and that a “borderline” situation means that the individual is “within a few days to a few months” of reaching a higher age category.

Tip

If you are close to a critical age, such as 50, 55 or 60, examine if the Medical-Vocational Guidelines dictate a finding of disability once you reach the next age category. If so, have your attorney argue at the hearing that the ALJ should consider you disabled six months prior to this key birthday.

Rulings

Social Security Ruling 83-10

Social Security Ruling 83-10 provides that older age is an increasingly adverse vocational factor for persons with severe impairments. The chronological ages 45, 50, 55 and 60 may be critical to a decision. The ruling notes that the regulations also provide that the age categories shall not be applied mechanically in borderline situations. For example, a rule for an individual of advanced age (55 or older) could be found applicable, in some circumstances, to an individual whose chronological age is 54 years and 11 months (closely approaching advanced age). No fixed guidelines as to when a borderline situation exists are provided since such guidelines would reflect a mechanical approach.

Acquiescence Ruling 88-1 (11)

AR 88-1(11) was issued in response to the Patterson v. Bowen, 799 F.2d 1455, 1458 (11th Cir. 1986), decision in the Eleventh Circuit (discussed below). In cases where the claimant resides in Florida, Georgia or Alabama 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) and (1) the issue of disability is resolved at the last step of the sequential evaluation process; (2) the Medical-Vocational Guidelines would otherwise direct a decision of “not disabled”; and (3) the claimant offers substantial credible evidence of his or her physical or mental impairments as proof that the ability to adapt to other work is less than the level established under the Medical-Vocational Guidelines for individuals of the particular age, a specific finding must be made as to the claimant’s ability to adapt to a new work environment.

Case Law

First Circuit

In Barrett v. Apfel, 40 F. Supp.2d 31 (D. Mass. 1999), the court held that given that the claimant was more than one year away from his fifty-fifth birthday when the ALJ heard his case, and more than nine months away when the decision was rendered, the ALJ did not err in failing to consider the claimant to be of “borderline age.” Id.at 38. In so holding, the court noted that the claimant had turned age 55 before the Appeals Council denied review, “federal regulations make clear that all requirements for entitlement must be met before the administrative law judge’s decision.” Id.,citing 20 C.F.R. § 404.620. The court also recognized that an ALJ may not apply the Grids “‘mechanically in a borderline situation.’” Id., quoting 20 C.F.R. § 404.1563(a). However, as the term “borderline” is not defined either by statute or regulation, the court then surveyed cases from around the country discussing “borderline age.” Id.

Second Circuit

A claimant who turns 50 years of age during the course of litigation does not require a determination that she is disabled under the Grids where the decision under review concerned her request for benefits during a period before she turned 50. Toro v. Chater, 937 F. Supp. 1083, 1094 (S.D.N.Y. 1996).

A claimant who was three months shy of his fiftieth birthday on the date he was last insured and who could not perform sedentary work, should have been classified as approaching advanced age for purposes of applying the Grids.Davis v. Shalala, 883 F. Supp. 828 (E.D.N.Y. 1995).

Third Circuit

The plain meaning of 20 C.F.R. § 404.1563(a) is that where the claimant’s age falls within a few months of the starting date of an age category the Grids should not be employed mechanically. Kane v. Heckler, 776 F.2d 1130, 1133 (3d Cir. 1985).

Fourth Circuit

A Maryland district court noted that Social Security regulations specifically state that the “age categories should not be applied mechanically in a borderline situation.” France v. Apfel, 87 F. Supp.2d 484, 491 (D. Md. 2000), citing 20 C.F.R. § 404.1563(a). In France, the court surveyed cases discussing this regulation, and held that the ALJ mechanically applied the age criteria of the Grids and that this application was not based on substantial evidence. Id.at 491-92, citing Ford v. Heckler, 572 F. Supp. 992, 994 (E.D.N.C. 1983). Thus, the court remanded this case with instructions to place the claimant in the regulatory category of “advanced age.” Id.

In a case where the ALJ rendered his decision 22 days prior to the claimant’s 55th birthday, a Maryland district court held that the ALJ erred in mechanically applying the age categories in a borderline situation. Washington v. Apfel, 40 F. Supp.2d 326, 330 (D. Md. 1999). The court noted that the regulations provide that an application remains in effect until the ALJ issues the hearing decision; and if the claimant meets all the requirements for entitlement while the application is in effect, benefits will be paid from the first month that the requirements are met. Id., citing 20 C.F.R. § 404.620(a) and (a)(1). The regulations also provide that when considering age as a vocational factor, the agency will not apply the age categories mechanically in a borderline situation. Id., citing 20 C.F.R. § 404.1563(a). In Washington, the court held that the ALJ failed to even recognize the close proximity of his decision date to the claimant’s 55th birthday, focusing only on the claimant’s “alleged” onset date, and reversed and remanded for an award of benefits. Id.at 330-31.

The Commissioner should not have mechanically applied age categories in a borderline situation where the claimant, who was illiterate, was 15 days shy of 45 when the Appeals Council rejected his disability claim. Ford v. Heckler, 572 F. Supp. 992, 994 (E.D.N.C. 1983).

Fifth Circuit

Even if the claimant was in the 50-54 age category, a person with his education, work experience and functional capacity would still not be considered disabled. Harrell v. Bowen, 862 F.2d 471, 479 (5th Cir. 1988).

The Commissioner’s use of the age classifications on a 49-year-old claimant was upheld despite a medical report suggesting that the claimant had prematurely aged. See Underwood v. Bowen, 828 F.2d 1081, 1083 (5th Cir. 1987).

Where claimants will remain insured while attaining a vocationally significant age after the date of the ALJ’s decision, the ALJ should consider whether such circumstances should be considered a borderline situation. Walhood v. Secretary of Health and Human Servs., 875 F. Supp. 1278, 1284 (E.D. Tex. 1995).

Sixth Circuit

In Bowie v. Comm’r of Soc. Sec., 539 F.3d 395 (6th Cir. 2008), the Sixth Circuit considered a single procedural issue involving a claimant who was 49 years old, but less than two months away from her 50th birthday at the time of the ALJ’s decision. Id.at 396. On her appeal, the claimant argued that she was borderline between the “younger individual” age group and the “closely approaching advanced age” group, which required the ALJ to apply 20 C.F.R. § 404.1563(b) to determine her age category. Id. at 398. By not explicitly indicating that he did consider her borderline status, the claimant alleged that the ALJ erred. Id. at 398-399. The court found, however, that the ALJ’s decision was supported by substantial evidence and “not the product of procedural error,” as “§ 1563(b) does not impose on ALJs a per se procedural requirement to address borderline age categorization in every borderline case.” Id.at 399. The regulation merely promises claimants that the Administration will “consider whether to use the older age category after evaluating the overall impact of all the factors in your case.” 20 C.F.R. § 404.1563(b) (emphasis added). The court found further support in the HALLEX in an Appeals Council interpretation of 20 C.F.R. § 404.1563 that suggests that ALJs “consider whether the claimant has presented ‘additional vocational adversities’ in determining whether to veer from a claimant’s chronological age in a borderline situation.” Id., citing HALLEX II-5-3-2. The council further advised:

Absent a showing of additional adversity(ies) justifying use of the higher age category, the adjudicator will use the claimant’s chronological age—even when the time period is only a few days. The adjudicator need not explain his or her use of the claimant’s chronological age.

Id.at 400 (emphasis added). In this case, the court found no evidence that the claimant suffered from any “additional vocational adversities” that would place her in the higher age category, and, therefore, the ultimate determination was supported by substantial evidence. Id.

Finding that the ALJ strictly and mechanically applied the age categories to the claimant and failed to address in any fashion whether a borderline age situation was present, the court held that the ALJ should have considered whether Pickard’s proximity to the next higher age category (four months shy of her 55th birthday) placed her in a borderline situation and, based on whatever evidence was available, which category best described her. Pickard v. Comm’r,224 F. Supp.2d 1161, 1168 (W.D. Tenn. 2002). The court reviewed the case law regarding “borderline age” and determined that courts have generally concluded that:

the borderline range falls somewhere around six months from the older age category. Compare Cox v. Apfel, No. 98-7039, 1998 WL 864118, at *4 (10th Cir. Dec.14, 1998) (because plaintiff was within six months of next age category at time decision issued, ALJ erred by not addressing whether plaintiff was of borderline age); Daniels v. Apfel, 154 F.3d 1129, 1132-33 (10th Cir. 1998) (65 days borderline); Kane v. Heckler, 776 F.2d 1130, 1132-33 (3d Cir. 1985) (48 days required consideration of whether claimant was in borderline situation); Smith v. Barnhart, No. 00 C 2643, 2002 WL 126107, at 24 (N.D. Ill. Jan. 31, 2002) (noting that the cases tend to treat claimants who are within six months of next age category as borderline); Freundt v. Massanari, No. 00 C 4456, 2001 WL 1356146, at *17-20 (N.D. Ill. Nov. 2, 2001) (six months and 12 days from next age category should have triggered inquiry by ALJ concerning borderline situation); Graham v. Massanari, No. 00 C 4669, 2001 WL 527326, at *8 (N.D. Ill. May 9, 2001) (four and one-half months borderline); France v. Apfel, 87 F. Supp.2d 484, 491-92 (D. Md. 2000) (five months borderline); Russell [v. Commissioner of Soc. Sec., 20 F. Supp.2d 1133, 1134-36 (W.D. Mich. 1998)] (92 days borderline, stating that Appeals Council Interpretation II-5-302 (effective Mar. 16, 1979) “appears to establish that the Appeals Council believes there is a six month window in which a claimant’s situation is ‘borderline’”); Tousignant v. Apfel, No. 97 C 4150, 1998 WL 142415, at *5 (N.D. Ill. Mar. 26, 1998) (finding that 10 months would seem to be borderline); Leyba v. Chater, 983 F.Supp. 1048, 1051 (D.N.M. 1996) (three and one-half months borderline); Davis v. Shalala, 883 F.Supp. 828, 838-39 (E.D.N.Y. 1995) (three months borderline); Hill v. Sullivan, 769 F.Supp. 467, 470-71 (W.D.N.Y. 1991) (three months two days borderline); Chester v. Heckler, 610 F.Supp. 533, 535 (S.D. Fla. 1985) (one month triggered inquiry into borderline status); Roush v. Heckler, 632 F.Supp. 710, 711-12 (S.D. Ohio 1984) (six months borderline) with Lambert v. Chater, 96 F.3d 469, 470 (10th Cir. 1996) (seven months not borderline); Fleenor v. Secretary of Health & Human Servs., No. 92-5082, 1992 WL 379438, at *2-3 (6th Cir. Dec. 15, 1992) (court would not disturb ALJ’s finding as to the appropriate age category of claimant, even though he was five months shy of next category); Wright v. Sullivan, No. 91-5992, 1992 WL 75218, at *6 (6th Cir. Apr. 15, 1992) (almost two years not borderline); Barrett v. Apfel, 40 F. Supp.2d 31, 39-40 (D. Mass. 1999) (nine months not borderline); Green v. Chater, No. C-96-2299 MHP, 1997 WL 797807, at *3 (N.D. Cal. Dec. 2, 1997) (three years not borderline); Woods v. Chater, No. C 95-1748 SI, 1996 WL 570490, *4-5 (N.D. Cal. Sept. 27, 1996) (four months not borderline); Peters v. Bowen, No. CIV.A. 85-4431, 1986 WL 11398, at *5 (E.D. La. Oct. 3, 1986) (two years not borderline).

Id. at 1168. The court held that the ALJ’s failure to address the borderline issue and to explain his choice of age category impeded the court’s ability to review his application of the regulations and may have violated 20 C.F.R. § 404.953, which requires the ALJ to include findings of fact and reasons for his conclusions in his decision. Id.at 1169. The court also concluded that the claimant carried her burden of showing that remand was appropriate for the purpose of allowing the ALJ to consider the new evidence presented by her. Id.

Where claimant’s age placed him in a borderline category and the ALJ mechanically applied the Grids, the court remanded, stating that “[t]he regulations provide that in evaluating under the Grids, the SSA ‘will not apply [the] age categories mechanically in a borderline situation.’” Russell v. Commissioner of Social Sec., 20 F. Supp.2d 1133, 1134-35 (W.D. Mich. 1998),quoting 20 C.F.R. § 404.1563(a).The court noted that theclaimant “was 92 days short of his 50th birthday” on the date of the ALJ’s decision and “the claimant’s age as of the time of the decision governs.” Id. at 1134.The court cited Appeals Council Interpretation II-5-302 (effective Mar. 16, 1979), stating that “[g]enerally, establishing an onset date up to six months prior to attainment of the specified age . . . .” Id. at 1135. The court further cited a second Appeals Council Interpretation, II-5-302(A) (effective Nov. 2, 1993), which provides:

To identify borderline age situations when making disability determinations, adjudicators will apply a two-part test:

(1) Determine whether the claimant’s age is within a few days or a few months of a higher age category.

(2) If so, determine whether using the higher age category would result in a decision of “disabled” instead of “not disabled.”

If the answer to one or both is “no,” a borderline age situation either does not exist or would not affect the outcome. The adjudicator will then use the claimant’s chronological age.

If the answer to both is “yes,” a borderline age situation exists and the adjudicator must decide whether it is more appropriate to use the higher age or the claimant’s chronological age.(Use of the higher age category is not automatic.)

Id.The court in Russell considered these two interpretations, as well as the decisions of other courts in finding that the claimant presented a borderline situation. Id. When a borderline situation is present, “a factual determination must be made as to the appropriate age category,” and that “[t]o do otherwise is to mechanically apply the age categories, an action prohibited by 20 C.F.R. § 404.1563(a).” Id. at 1134-35. The ALJ is required to explain his or her use of a claimant’s chronological age when there is a “showing of additional adversities,” as was demonstrated in Russell by the number of the claimant’s impairments, and the ALJ’s failure to do so “both impedes judicial review of the ALJ’s application of 20 C.F.R. § 404.953(a) and appears to violate 20 C.F.R. § 404.953.” Id. at 1136.“Accordingly, the ALJ was required to make a finding which included consideration of more than just the plaintiff’s chronological age.” Id.

Seventh Circuit

Although a Wisconsin district court noted that a partial judicial award could be entered where the plaintiff’s passage into a new age category rendered her disabled under the Grid, the cases made it clear that the record must be fully developed. Wirth v. Barnhart, 318 F. Supp.2d 726, 733 (E.D. Wis. 2004).

In Young v. Barnhart, 287 F. Supp.2d 905 (N.D. Ill. 2003), the court held that because the claimant was four and one-half months shy of his fifty-fifth birthday at the time of his hearing, the ALJ erred in not performing a borderline analysis to determine whether he should be classified as “advanced age” rather than “approaching advanced age,” noting that if the ALJ had applied the next age category, the claimant would have been found to be disabled under Rule 202.04 of the Medical-Vocational Guidelines. Id. at 912.

In affirming the Commissioner’s decision, the court held that it did not have jurisdiction to reverse the ALJ’s decision based on the fact that the claimant turned 55 before the complaint was filed, as she was 53 years of age at the time of the ALJ’s decision and the court has only the power to review the ALJ’s decision under 42 U.S.C. § 405(g). Latkowski v. Barnhart, 267 F. Supp.2d 891, 906 (N.D. Ill.2003).

The court refused to rule in favor of a 54-year-old claimant who argued that she was “of advanced age” due to her failure to present any evidence that she was “somehow atypical of a 54 year old.” Sims v. Bowen, 666 F. Supp. 1141, 1147 (N.D. Ill.1987).

Ninth Circuit

Although the court agreed that “age categories will not be applied mechanically in a borderline situation,” the court found that the claimant’s case was not a borderline case where the claimant was closer to age 59 than age 60. Russell v. Bowen, 856 F.2d 81, 83 (9th Cir. 1988), citing Calvin v. Heckler, 782 F.2d 802, 805 (9th Cir. 1986) andGonzales v. Secretary of Health & Human Servs., 784 F.2d 1417, 1420 (9th Cir. 1986) (noting that it is incumbent upon the Commissioner to decrease his reliance upon the Grids in cases where the individual claimant’s circumstances approach the upper limits of the Grid’s guidelines).

Remand was required in light of the claimant’s age where the claimant was two months shy of his 45th birthday when the ALJ decided the case and 15 days shy when the Appeals Council ruled. Hilliard v. Schweiker, 563 F. Supp. 99, 101-02 (D. Mont.1983).

Tenth Circuit

In Daniels v. Apfel, 154 F.3d 1129 (10th Cir. 1998), the primary question was whether the Commissioner adequately considered the fact that the claimant was only a little more than two months short of being in an age category in which he would have been presumptively disabled, when the Commissioner found him not disabled based on the Medical-Vocational Guidelines.Id.at 1133. The court held that the Commissioner failed to consider the fact that the claimant fell within a “borderline” age situation and, therefore, improperly applied the Grids “mechanically,” requiring remand for further consideration. Id.

Pursuant to Social Security Ruling 82-46c, a “borderline situation” exists “when there would be a shift in results caused by the passage of a few days or months.” Lambert v. Chater, 96 F.3d 469, 470 (10th Cir. 1996) (finding that a claimant who was seven months short of the next age category at the time her insured status expired did not fall within a borderline situation preventing application of the Grids).

The Tenth Circuit refused to apply the Eleventh Circuit rule that prohibits strict reliance on the age criteria of the Grids in cases where the claimant proffers substantial, credible evidence that his or her ability to adapt to a new work environment is less than the level established under the Grids for persons of the claimant’s age. Lambert v. Chater, 96 F.3d 469, 470 (10th Cir. 1996), citing Patterson v. Bowen, 799 F.2d 1455, 1458 (11thCir. 1986) and Reeves v. Heckler, 734 F.2d 519, 526 (11th Cir. 1984). In Lambert, the court expressed “serious doubts about the correctness of that rule,” but held that even if it were to apply the rule, the only factors presented by the claimant did not relate to her ability to adapt to other work. Id.at 470-71.

Eleventh Circuit

The Commissioner cannot use the Grids concerning age to establish conclusively a claimant’s ability to adapt to a new work environment. Patterson v. Bowen, 799 F.2d 1455, 1458 (11th Cir. 1986). “In Reeves, we held that in cases where the ALJ has applied the age Grids in a mechanical fashion, the claimant should be given an opportunity to make a proffer of evidence on his ability to adapt.” Id., citing Reeves v. Heckler, 734 F.2d 519, 526 (11th Cir. 1984). If the claimant offers substantial evidence that an ALJ could find credible and tending to show that the claimant’s ability to adapt to a new work environment is less than the level established under the Grids for persons his or her age, the district court is required to remand the case to the Commissioner for reconsideration of the age/ability to adapt issue. Id. If, on the other hand, the claimant does not make such a proffer, the ALJ’s mechanistic use of the age Grids would be harmless error and there is no need to remand to the Commissioner. Id.

The court held in Crook that a claimant who was 54½ years of age at the time the ALJ’s decision was issued should have been considered a person of “advanced age” under the Medical-Vocational Guidelines, warranting a finding of disability in accordance with Rule 202.06. Crook v. Barnhart, 244 F. Supp.2d 1281, 1284 (N.D. Ala. 2003). In so holding, the court relied on the Sixth Circuit case of Varley v. Secretary of Health & Human Servs., 820 F.2d 777, 780 (6th Cir. 1987) which held that “the claimant’s age as of the time of the decision governs.” Id. at 1283. The court also cited 20 C.F.R. § 404.1563 which provides that SSA “will not apply these (chronological) age categories mechanically in a borderline situation,” as well as the Appeals Council Interpretation II-5-302 (effective Mar. 16, 1979) stating that “[g]enerally, establishing an onset date up to six months prior to attainment of the specified age would be reasonable.”Id. Additionally, the court held that the medical evidence indicated that the claimant could not perform light work as found by the ALJ, and was limited to “no more than sedentary work.” Id.at 1285. Thus, a finding of disability was also warranted in accordance with Rules 201.06 and 201.14 of the Medical-Vocational Guidelines.Id.

The ALJ erred in mechanically applying the Grids to a claimant whose 50th birthday was 30 days after the expiration of his insured status. Chester v. Heckler, 610 F. Supp. 533, 534-35 (S.D. Fla.1985).

Chemical Sensitivity and Environmental Illness in Social Security Disability

Modern medicine appears to be only now recognizing that some Social Security disability claimants may be suffering from illnesses related to chemical sensitivities. The courts have not welcomed the new diagnosis and appear to be applying a strict standard in terms of objective proof of such conditions. The following listing of Social Security disability decisions includes the latest cases on chemical sensitivity diagnoses and a survey of some of the older cases discussing the need for a vocational expert in the face of environmental limitations. The cases were combined into one topic to suggest that you approach your case using both perspectives.

Tip

Attempt to obtain as much objective evidence as possible regarding the severity of your environmental limitations. Your disability attorney should argue that your limitations constitute a significant nonexertional impairment precluding mechanical application of the Grids and requiring vocational expert testimony to determine the impact of the environmental limitation or chemical sensitivity on your ability to perform other work.

Regulations

20 C.F.R. §§ 404.1545, 416.945

Some medically determinable impairment(s), such as impairments which impose environmental restrictions, may cause limitations and restrictions which affect other work-related abilities.

20 C.F.R. Pt. 404, Subpt. P, App. 2 (Grids)

Environmental restrictions ordinarily would not significantly affect the range of work existing in the national economy for individuals with the physical capability for heavy work (or very heavy work).

Rulings

Social Security Ruling 96-9p

SSR 96-9p provides that an “environmental restriction” is an impairment-caused need to avoid an environmental condition in a workplace. According to SSR 96-9p, few occupations in the unskilled sedentary occupational base require work in environments with extreme cold, extreme heat, wetness, humidity, vibration, or unusual hazards. Since all work environments entail some level of noise, restrictions on the ability to work in a noisy workplace must be evaluated on an individual basis. The unskilled sedentary occupational base may or may not be significantly eroded depending on the facts in the case record. In such cases, it may be especially useful to consult a vocational resource. Restrictions to avoid exposure to odors or dust must also be evaluated on an individual basis. The RFC assessment must specify which environments are restricted and state the extent of the restriction, e.g., whether only excessive or even small amounts of dust must be avoided.

Social Security Ruling 85-15

SSR 85-15 provides that although § 204.00 of the Grids provides an example of one type of nonexertional impairment — environmental restrictions — and states that environmental restrictions ordinarily would not significantly affect the range of work existing in the national economy for individuals with the physical capability for heavy work (or very heavy work), numerous environmental restrictions might lead to a different conclusion, as might one or more severe losses of nonexertional functional capacities. The medical and vocational factors of the individual case determine whether exclusion of particular occupations or kinds of work so reduces the person’s vocational opportunity that a work adjustment could not be made.

Where a person has a medical restriction to avoid excessive amounts of noise, dust, etc., the impact on the broad world of work would be minimal because most job environments do not involve great noise, amounts of dust, etc.

Where an individual can tolerate very little noise, dust, etc., the impact on the ability to work would be considerable because very few job environments are entirely free of irritants, pollutants, and other potentially damaging conditions.

Where the environmental restriction falls between very little and excessive, resolution of the issue will generally require consultation of occupational reference materials or the services of a VE.

Other Sources

As explained by the Social Security Administration, and as set forth in POMS DI § 24515.065, “clinical ecology” or “environmental medicine” is an approach to medicine that ascribes a wide range of symptoms to exposure to numerous common substances in the environment. Recent publications by clinical ecologists have suggested that chemicals cause toxic damage to the immune system. However, there is no indication that individuals with a clinical ecology diagnosis of chemical sensitivity have immune deficiency, immune complex disease, autoimmunity, or abnormal functioning of their immune systems.

The principal clinical ecology procedure in diagnosing sensitivity to a chemical or food is the provocation-neutralization technique, in which the patient records symptoms occurring during a 10-minute period immediately following the administration of a test dose of a chemical, food extract, or allergen applied either as a sublingual drop or by subcutaneous or intracutaneous injection. Symptoms are “neutralized” by injecting or applying sublingually a lower dose of the same test substance. The results are based solely on the subjective report of symptoms by the patient.

The POMS further provides that in claims alleging disability due to environmental illness, all of the claimant’s symptoms, signs, and laboratory findings must be considered to determine if there is a medically determinable impairment and the impact of an impairment on the claimant’s ability to work. This evaluation should be made on an individual case-by-case basis to determine if the impairment prevents substantial gainful activity. Id.

Case Law

First Circuit

In assessing the disability claim of a person suffering from multiple chemical sensitivity disorder (“MCS”), a Massachusetts district court remanded the case, as the Commissioner conceded that the ALJ’s analysis was flawed in that he relied on an unsupported, non-examining physician’s assessment. Creamer v. Callahan, 981 F. Supp. 703, 704(D. Mass.1997).While the ALJ “determined that the Plaintiff’s MCS could not form the basis for SSDI eligibility,” the Commissioner stipulated the SSA “recognizes [MCS] as a medically determinable impairment.” Id. at 704-05.

Second Circuit

In Schaal v. Callahan, 993 F. Supp. 85 (D. Conn. 1997), the court found that substantial evidence was not sufficient to support the ALJ’s determination that the claimant’s nonexertional limitations would not significantly compromise her ability to do the full range of sedentary work. Id. at 92. The court stated that despite sufficient evidence of the claimant’s environmental limitations, the ALJ opined that the claimant’s range of work was not significantly compromised, citing no evidence to support this opinion. Since the record supported a finding that the claimant’s ability to perform a full range of sedentary work was in fact significantly diminished, the court remanded the case, ordering the ALJ to obtain testimony from a vocational expert or other similar evidence showing that there are jobs in the national economy that the claimant could do notwithstanding her nonexertional limitations. Id., citing 20 C.F.R. § 416.966(a)(b).

A New York district court noted that despite evidence of the claimant’s environmental limitations (which are nonexertional limitations) as well as borderline intellectual capacity, the ALJ determined that these limitations did not significantly affect her employment opportunities and concluded that the claimant was not disabled “within the framework” of the Medical-Vocational Guidelines. Gallivan v. Apfel, 88 F. Supp.2d 92, 99 (W.D.N.Y. 2000). However, given the ALJ’s findings that these limitations “interfere with her ability to work,” the court found that the record did not support the ALJ’s opinion that such limitations would not significantly compromise her ability to perform a full range of light or sedentary work. Further, given these limitations, the ALJ should have obtained testimony from a VE or received other evidence to determine whether the claimant could perform other jobs which exist in the national economy. Id.

The ALJ erred in mechanically applying the Grids even though he concluded that the claimant had the residual functional capacity to perform work-related functions except for work involving environmental conditions of dust and fumes, and prolonged walking, standing, lifting and carrying. Graham v. Heckler, 580 F. Supp. 1238, 1241 (S.D.N.Y. 1984).

Fourth Circuit

The ALJ erred in relying on the Grids, despite the claimant’s need to avoid the inhalation of lint. Roberts v. Schweiker, 667 F.2d 1143, 1145 (4th Cir. 1981).

A West Virginia court found that substantial evidence supported the finding that a claimant who alleged that she became disabled for all forms of substantial gainful employment in July 1988 due to epilepsy, migraine headaches, fibromyalgia, and sensitivity to chemicals, retained sufficient residual functional capacity to perform nonstressful, light work activity during the three-year period prior to the date of her application. Ordewald v. Barnhart 351 F. Supp.2d 499, 500, 502 (W.D. Va. 2005).

In Clemons, the claimant suffered from a variety of symptoms, including easy fatigueability, short term memory loss, numbness and tingling in the extremities, and inability to apply himself on a sustained basis and a specialist eventually determined that he suffered from neurotoxicity due to chronic exposure to formaldehyde and solvents used in the furniture industry, as well as chronic fatigue immune dysfunction syndrome. Clemons v. Barnhart 322 F. Supp.2d 687, 690 (W.D. Va. 2003). An ALJ awarded benefits with an onset date of August 10, 1997, as of the claimant’s 50th birthday, but the claimant appealed, arguing that he was disabled as of March 18, 1992, when he stopped working. Id. at 688-89. In affirming, the court noted that one of the primary difficulties with this case is that the claimant did not seek treatment from the specialist who diagnosed his condition or from any other physician and it was “reasonable for the Law Judge to determine that the absence of intervening medical care might suggest some overall improvement in plaintiff’s condition.” Id.at 691. The court also observed that “it is not unlikely that plaintiff’s chemical sensitivity would have improved following termination of his exposure to toxic chemicals.” Id.

Fifth Circuit

The Fifth Circuit rejected the claimant’s allegations that she suffered from an environmental illness and that the ALJ failed to accord proper weight to her treating physician, since the evidence of record failed to establish the severity of her condition. Greenspan v. Shalala, 38 F.3d 238-39 (5th Cir. 1994). In so finding, however, the court acknowledged that because “ecological illness” is not accepted widely, and no “yes or no” test apparently exists, direct proof of illness and, hence, disability is hard to produce. The court further agreed that proper circumstantial evidence would be enough to prove disability, but disagreed that the claimant had met her burden. Id.at 239-40.

Although the ALJ referred to the opinions of the claimant’s treating physicians regarding the claimant’s tolerance for dust, fumes, gases and extreme fluctuations of temperature or humidity, he made no findings as to their significance vis-a-vis her exertional capacity. Dellolio v. Heckler, 705 F.2d 123, 128 (5th Cir. 1983). Thus, remand was necessary to determine whether the environmental restrictions rose to the level of nonexertional impairments, or foreclosed the claimant’s access to the full range of occupations encompassed within the regulatory definition of “light work.”

The ALJ improperly relied upon the Grids despite evidence that the claimant’s disabling symptoms appeared to be intensified by exposure to dust, fumes, and excessive heat. Thomas v. Schweiker, 666 F.2d 999, 1004 (5th Cir. 1982).

Sixth Circuit

The Medical-Vocational Guidelines should not be applied where a claimant suffers from an impairment that significantly diminishes his capacity to work but does not manifest itself as a limitation on strength, e.g., where a claimant suffers from a heightened sensitivity to environmental contaminants. Abbott v. Sullivan, 905 F.2d 918, 926 (6th Cir. 1990).

The ALJ’s finding that the claimant’s residual functional capacity for sedentary work was limited to “settings relatively free of atmospheric pollutants and irritants” conflicted with his subsequent conclusion that the claimant’s nonexertional limitations did not significantly limit his capacity for sedentary work. Shelman v. Heckler, 821 F.2d 316, 321 (6th Cir. 1987).

The Sixth Circuit held that there was substantial evidence to support the ALJ’s decision that the claimant retained the residual functional capacity, despite severe impairments of chronic fatigue syndrome, chemical sensitivity syndrome, depression, and somatoform disorder, to perform work in the economy.Buxton v. Halter, 246 F.3d 762, 771 (6th Cir. 2001).

In Culbertson v. Barnhart, 214 F. Supp.2d 788 (N.D. Ohio 2002), a claimant with narcolepsy and chemical sensitivity challenged the ALJ’s decision to discredit her treating physician who was a board certified anesthesiologist. Id.at 796. The court rejected the claimant’s argument, finding that the opinion was not supported by the record and noting that the treating physician was not an allergist or other specialist more applicable to her case. Id. While the court rejected the claimant’s argument as to the treating anesthesiologist, the court still remanded the case due to the ALJ’s failure to articulate his basis for rejecting the treating neurologist’s opinion and the ALJ’s failure to include all the claimant’s alleged impairments in hypothetical questions directed to the VE. Id.

A Tennesseedistrict court found that “where a claimant must only avoid concentrated amounts of environmental irritants, the impact on the broad world of work is minimal.” Holland v. Massanari, 152 F. Supp.2d 929, 938 (W.D. Tenn. 2001), citing SSR 85-15. Because the claimant was restricted only from working around concentrated amounts of environmental irritants, the impact upon her ability to perform a full range of light work was slight and the ALJ was correct in using the Grids as a framework for his determination that she was not disabled. Id.

Seventh Circuit

The ALJ properly considered the claimant’s nonexertional limitations, including his sensitivity to air-conditioned environments, in determining that the claimant could perform other work in the economy. Herron v. Shalala, 19 F.3d 329, 336 (7th Cir. 1994).

The ALJ erred in failing to substantiate his finding that most unskilled, sedentary jobs “would not be ruled out by the claimant’s nonexertional limitations imposed by his respiratory impairment” with any authoritative references or other evidence. Warmoth v. Bowen, 798 F.2d 1109, 1112 (7th Cir. 1986). The Seventh Circuit also concluded that a vocational expert’s testimony was necessary and that the ALJ erred “when he in effect summarily took administrative notice that there is a significant number of unskilled, sedentary jobs in the national economy” that the claimant could perform, despite sensitivity to smoke, dust, and perfume. Id.

Eighth Circuit

The ALJ’s determination that the evidence presented by the claimant with respect to her diagnosis of environmental illness was not based on “medically acceptable clinical and laboratory diagnostic techniques” was based on substantial evidence, where the Commissioner’s medical expert testified that “there [was] divided opinion in medicine” about the diagnosis of environmental illness, and that the testing methodology utilized by the claimant’s treating physician (putting drops of various substances under the tongue or injecting them and then recording reactions of the patient that are not visually observable but are reported by the patient to the doctor) lacked scientific validity. Brown v. Shalala, 15 F.3d 97, 99-100 (8th Cir. 1994).

The court rejected the claimant’s argument that the ALJ made insufficient findings with regard to the types of jobs available in “clean environments.” Cronkhite v. Sullivan, 935 F.2d 133, 134 (8th Cir. 1991). In Cronkhite, the court stated that the ALJ properly utilized vocational expert testimony to identify specific jobs available in such environments. The ALJ also properly suggested that the claimant could wear a face mask and gloves while working if desired. Id.

Substantial evidence in the record as a whole supported the conclusion that the claimant’s allergic reactions to common substances (in combination with her other health problems) prevented her from working on a regular basis in the work environments where she was employed in the past. Kouril v. Bowen, 912 F.2d 971, 974 (8th Cir. 1990).

The Eighth Circuit held that the ALJ improperly determined, without the benefit of further testimony such as that of a VE, that the majority of unskilled sedentary jobs in the national economy take place in a pollution-free environment. Asher v. Bowen, 837 F.2d 825, 828 (8th Cir. 1988).

An Iowa district court rejected the claimant’s argument that the ALJ erred in inconsistently determining the claimant’s necessary work environment. Grow v. Bowen, 710 F. Supp. 1275, 1278 (N.D. Iowa 1989). In Grow, the ALJ found that the claimant could do his current part-time work in a dirty work environment on a full-time basis. Alternatively, the ALJ found that restrictions on the claimant’s RFC included the need “to be in a clean environment which entails no extreme temperatures, extreme humidity, or high levels of contaminants.” Id.The court reasoned that the ALJ’s analysis merely indicated a sensitivity to the claimant’s physical ailments in making the RFC determination. Id.

Ninth Circuit

The ALJ erred in relying upon the Grids, where the claimant could not tolerate dust, fumes or heat. Kail v. Heckler, 722 F.2d 1496, 1498 (9th Cir. 1984).

In Nelson v. Apfel, 96 F. Supp.2d 1110 (D. Or. 2000), the court held that the ALJ erred in rejecting the opinion of an examining physician who diagnosed the claimant with porphyria which was activated by exposure to certain material at her workplace and that the claimant was disabled due to her condition. Id. at 1114. The court noted that “[p]orphyria is a hereditary condition which relates to a deficiency of enzymes involved in the metabolic pathway of the production of heme, essential to the human body, and resulting in porphyrin accumulation” and that the “abnormal porphyrins cause mostly neurologic and psychiatric symptoms and is triggered by exposure to porphyrogenic substances.”Id.

Tenth Circuit

The ALJ’s finding that the claimant was able to perform her past relevant work and sedentary work was not supported by substantial evidence where the evidence of record clearly demonstrated that the claimant suffered from the impairments of Chronic Fatigue Syndrome and marked chemical sensitivity which were of such severity as to preclude her from doing her past relevant work and from performing full-time sedentary work. Vogt v. Chater, 958 F. Supp. 537, 548 (D. Kan. 1997).

In Martinez v. Apfel, 17 F. Supp.2d 1188 (D. Colo. 1998), the court noted that environmental restrictions must be considered as nonexertional impairments if they are significantly severe to diminish the number of jobs available to the claimant. Id. at 1193. The court concluded that since the ALJ failed to analyze whether the claimant’s environmental restrictions of limited exposure to extreme cold, wetness, or vibration, imposed a significant decrease in the number of jobs available to the claimant, remand was required. Id.

The ALJ improperly considered the claimant’s environmental restrictions resulting from her asthma condition. Stevenson v. Heckler, 588 F. Supp. 980, 984 (D. Utah1984).

Eleventh Circuit

The Eleventh Circuit remanded the matter for further findings as to the extent of the claimant’s environmental limitations and, if necessary, the taking of further evidence as to the existence of other work. Sryock v. Heckler, 764 F.2d 834, 837 (11th Cir. 1985).

In Williams, the court held that the ALJ erred in exclusively using the Medical-Vocational Guidelines and in failing to obtain vocational expert testimony in light of the claimant’s environmental limitations. Williams v. Halter, 135 F. Supp.2d 1225, 1227 (M.D. Fla. 2001). The court specifically held that the ALJ erred in relying on Social Security Ruling 85-15 as this Ruling does not apply when a claimant has both exertional and nonexertional impairments. The court also held that the Commissioner’s more recent reliance on SSR 96-9p was “likewise misplaced,” stating:

[SSR 96-9p] states that ‘few occupations in the unskilled sedentary occupational base require work in environments . . . [involving] unusual hazards,’ such as ‘moving mechanical parts of equipment, tools, or machinery,’ and opines that ‘[e]ven a need to avoid all exposure to these conditions would not, by itself, result in a significant erosion of the occupational base.’ However, like SSR 85-15, SSR 96-9 (sic) overlooks the fact that the Secretary’s own regulation states that approximately 85 percent of the unskilled sedentary jobs existing in the national economy are in the machine trades and benchwork occupational categories. See 20 C.F.R. Pt. 404, Subpt. P, App. 2, § 201.00(a); see also Asher v. Bowen, 837 F.2d 825,828 (8th Cir. 1988) (noting 85% figure in § 201.00(a)); Warmoth v. Bowen, 798 F.2d 1109, 1112 (7th Cir. 1986) (same).

Id. Since the court held that the claimant’s nonexertional impairment prevented him from doing unlimited types of sedentary work, the ALJ erred in not obtaining expert vocational evidence. Id.

D.C. Circuit

Where the ALJ found that the claimant’s capacity to perform the full range of light work was reduced by her inability to do work requiring acute hearing and to work around fumes and dust, and because these nonexertional impairments prevented her from performing all the jobs of which she was exertionally capable, the Grids applied only as a framework. Smith v. Bowen, 826 F.2d 1120, 1123 (D.C. Cir. 1987).

The Worn-Out Worker and Social Security Disability

The Social Security Administration’s sequential evaluation process includes an alternate provision for establishing the inability to perform other work for certain “worn out workers.” These workers are deemed disabled if a claimant:

1. Has only a marginal education,
2. Has at least 35 years of work experience performing arduous, unskilled physical labor, and
3. Is unable due to a severe impairment to return to such labor.

Regulations

20 C.F.R. §§ 404.1562, 416.962

The foregoing regulations provide that if a claimant has only a marginal education, a work experience of 35 years or more during which the claimant did arduous unskilled physical labor, and the claimant is not working and is no longer able to do the same kind of work because of a severe impairment(s), the SSA will consider the claimant unable to do lighter work and, therefore, disabled. However, if the claimant is working or has worked despite the impairment(s) (except where the work is sporadic or is not medically advisable), the SSA will review all the facts, and may find that the claimant is not disabled. In addition, the SSA will consider the claimant not disabled if the evidence shows that the claimant has training or past work experience which enables him or her to do substantial gainful activity in another occupation, either on a full-time or a reasonably regular part-time basis.

The regulations provide the following example to assist in the interpretation of the provision:

B is a 60-year-old miner with a fourth grade education who has a life-long history of arduous physical labor. B says that he is disabled because of arthritis of the spine, hips, and knees, and other impairments. Medical evidence shows a combination of impairments and establishes that these impairments prevent B from performing his usual work or any other type of arduous physical labor. His vocational background does not show that he has skills or capabilities needed to do lighter work which would be readily transferable to another work setting. Under these circumstances, we will find that B is disabled.

20 C.F.R. §§ 404.1520, 416.920

If a claimant has only a marginal education, and long work experience (i.e., 35 years or more) where the claimant only did arduous unskilled physical labor, and the claimant can no longer do this kind of work, the SSA applies § 404.1562 to evaluate whether the claimant is disabled.

20 C.F.R. Pt. 404, Subpt. P, App. 2, Medical-Vocational Guidelines

An individual with a marginal education and long work experience (i.e., 35 years or more) who is limited to the performance of arduous unskilled labor, who is not working and is no longer able to perform such labor because of a severe impairment(s), may still be found disabled even though the individual is able to do medium work.

Rulings

Social Security Ruling 82-63

SSR 82-63 sets forth the required analysis for evaluating whether a claimant meets the requirements of sections 404.1562 and 416.962 of the regulations.

1. An impairment must be severe and prevent the performance of arduous physical labor.
2. An individual’s work history must have lasted for 35 years or more.
3. The work must have been “arduous,” which is defined as primarily physical work requiring a high level of strength or endurance. While arduous work will usually entail physical demands that are classified as heavy, the work need not be described as heavy to be considered arduous. For example, work involving lighter objects may be arduous if it demands a great deal of stamina or activity such as repetitive bending and lifting at a very fast pace.
4. The work must also have been unskilled. Unskilled work consists of simple duties which require little or no judgment and may be learned in a short period of time. SSR 82-63 explains that employment in semiskilled or skilled work generally would rule out the application of sections 404.1562 and 416.962 of the regulations. Isolated, brief, or remote periods of experience in semiskilled or skilled work, however, would not preclude the applicability of these regulations when such experience did not result in skills which enhance the person’s present ability to do lighter work. Also, periods of semiskilled or skilled work may come within the provisions of these regulations if it is clear that the skill acquired is not readily transferable to lighter work and makes no meaningful contribution to the person’s ability to do any work within his or her present functional capacity.
5. The person must have a “marginal education.” A person who has a marginal education may not have attained a level of development in reasoning, arithmetic, and language which would suggest a vocational potential for more than unskilled work. Generally, an individual is considered to have a marginal education if he or she has no more than a sixth grade elementary school education. However, the level of formal education is not conclusive of a person’s vocational competence. The responsibilities and tasks of past employment may demonstrate a higher level of competence than that indicated by his or her formal schooling. Conversely, a person may have attended school beyond the sixth grade, but other evidence may establish capability for reasoning, arithmetic, and language which does not, in fact, exceed the “marginal” criterion.

Case Law

First Circuit

Although the hearing record did not reveal the ALJ’s reason for excluding evidence of the duration of the claimant’s employment, even if the ALJ did err, the error was harmless. Stewart v. Heckler, 594 F. Supp. 590, 593 (D. Me. 1984). The claimant did not qualify for the 35-year rule because his work experience was semi-skilled, as found by the ALJ and supported by substantial evidence, and not unskilled, as required by the 35-year rule. Id.

Fourth Circuit

Where it appeared that the claimant might qualify for consideration as a person who had performed arduous, unskilled labor for a long period of time, who had little education, and who had no transferable skills, the ALJ should have considered the applicability of section 404.1562. Montgomery v. Schweiker, 529 F. Supp. 124, 129 (D.Md. 1981).

Fifth Circuit

Although the claimant presented evidence that he fit within 20 C.F.R. § 404.1562, the Commissioner failed to make findings of fact relating to the claimant’s claim applicable thereto. Vasquez v. Heckler, 736 F.2d 1053, 1054 (5th Cir. 1984). The Commissioner made no finding as to the applicability of the regulation to the claimant, nor did she state the reason or reasons why she did not apply the regulation in reaching her decision. Id.

Where there was nothing in the record or testimony to show that the claimant was even a semi-skilled worker, the claimant was disabled pursuant to 20 C.F.R. § 404.1562. Miller v. Shalala, 825 F. Supp. 776, 782 (N.D. Tex. 1993). The claimant had only a marginal education, had a work experience of 35 years or more during which time he did arduous unskilled physical labor, and was no longer able to do this type of work because of severe impairments. Id.

Since the claimant worked in an arduous unskilled type of work for less than thirty-five years, section 404.1562 did not apply. Croom v. Harris, 512 F. Supp. 240, 245 (M.D. La. 1981).

Seventh Circuit

In Regino Cavazos v. Apfel, 130 F. Supp.2d 1016 (N.D. Ind. 2000), the ALJ found that the claimant did not meet the “worn out worker” regulation set forth in 20 C.F.R. §§ 404.1562 and 416.962. Id. at 1020. The court noted that the definition of “arduous” work does not involve any “specific physical action or exertional level,” and while work classified as “heavy” is usually considered “arduous,” “work involving lighter objects may be arduous if it demands a great deal of stamina or activity such as repetitive bending or lifting at a very fast pace.” Id. at1021, citing SSR 82-63. The court found that the ALJ “completely failed to take the repetitive, fast paced nature of the coal room work into account in considering whether it met the definition of ‘arduous work.’” Id. The court also agreed with the claimant that the ALJ failed to make specific findings that the work the claimant performed in Mexico both in a grocery store lifting 100 pounds stocking shelves and his farm work beginning at age 6 was not arduous. Id. The court noted that the VE testified that the farm work would require a great deal of stamina, and that “the only evidence in the record is that the plaintiff’s farm work constituted ‘arduous work.’” Id. at 1022. The court also held that the ALJ did not discuss the second prong of the “worn out worker” regulation which requires that a claimant have only a marginal education. Id.at 1022. Since the ALJ needed to reconsider whether the claimant qualified as a “worn out worker,” remand was required. Id.

Eighth Circuit

The Eighth Circuit rejected the claimant’s arguments that he qualified as a worn-out worker under 20 C.F.R. § 404.1562. Smith v. Shalala, 46 F.3d 45, 46-47 (8th Cir. 1995). The Court reasoned that the claimant completed the eighth grade in school and testified that he could read and do simple calculations, precluding him from being classified as having a “marginal education.” Id. As stated by the Smith court, formal schooling at a sixth grade level or less is a “marginal education” and 7th through 11th grade is termed “limited education.” Id.

The Eighth Circuit rejected the claimant’s argument that the ALJ should have applied the “worn-out worker rule.” Mitchell v. Shalala, 25 F.3d 712, 715 (8th Cir. 1994). The court found that the ALJ “in effect did apply the ‘worn-out worker rule’ when he applied the Medical/Vocational Guidelines,” even though the ALJ found that the claimant had a “limited education.” Id. The court agreed, however, that if newly discovered evidence submitted to the district court supported a finding that the claimant had a “marginal education,” the “worn out” worker regulations would result in a finding of disability. Id.

Where the record indicated that the skilled and semi-skilled work the claimant performed resulted in no skills which were transferable either to work presently existing in the national economy or to work within the claimant’s present residual functional capacity, the ALJ erred in concluding that the claimant’s previous periods of skilled work precluded a finding of disability under section 404.1562. Walston v. Sullivan, 956 F.2d 768, 772 (8th Cir. 1992).

Ninth Circuit

The court found that the ALJ was not required to expressly consider the application of 404.1562, where the claimant had not engaged in arduous work for 35 years or more. Tobias v. Heckler, 605 F. Supp. 233, 237 (N.D. Cal. 1985). Section 404.1562 permitted a finding of no disability where the work experience showed transferable skills even if they only permitted part-time work. Both job descriptions completed by the claimant showed supervisory duties and completion of reports or orders. Even assuming the claimant had a marginal education and the required work history, his work experience demonstrated his skills to do paperwork and supervise other workers and could have been held to be transferable. Id.

Eleventh Circuit

The Eleventh Circuit rejected the claimant’s contention that his past 35 years of work experience had been limited to arduous unskilled physical labor so that he met the requirements of 20 C.F.R. § 404.1562. Powell v. Heckler, 736 F.2d 633, 635 (11th Cir. 1984). Because the vocational expert testified that the claimant’s past work experience was semi-skilled and unskilled, the claimant was not entitled to be found disabled on this basis. Id.

In Street v. Barnhart, 340 F. Supp.2d 1289 (M.D. Ala. 2004), the court held 20 C.F.R. § 416.962 did not apply because the record showed that the claimant completed the sixth grade in 1961, and stopped working in 1992 and did not spend thirty-five years in the workforce. Id. at 1294. Furthermore, the court noted that the record also created some doubt as to whether all of the claimant’s work should be classified as arduous and unskilled, noting that the claimant’s work as a painter may have been semiskilled, and this regulation only applies “whenall of a claimant’s work for 35 years is arduous and unskilled.” Id.at 1294 n.4, citing 20 C.F.R. § 404.1056(a)(3)(i) and SSR 82-63.

D.C. Circuit

The court held that the ALJ did not fulfill his obligation where he did not question the claimant’s length of employment and the potential applicability of 404.1562, “which was fairly obvious from the evidence in the record.” Maynor v. Heckler, 597 F. Supp. 457, 460 (D. D.C. 1984).