Grace v. Astrue
MEMORANDUM DECISION and ORDER. Based on the foregoing, IT IS HEREBY ORDERED that the Commissioners decision in this case is AFFIRMED. Signed by Magistrate Judge Paul M. Warner on 09/27/2013. (tls)
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH
JEFF M. GRACE,
Case No. 2:12-cv-874-PMW
CAROLYN W. COLVIN,1
Acting Commissioner of Social Security,
Magistrate Judge Paul M. Warner
Before the court is Jeff M. Grace’s (“Plaintiff”) appeal of the Commissioner’s final
decision denying Plaintiff’s claim Supplemental Security Income (“SSI”) under Title XVI of the
Social Security Act. See 42 U.S.C. §§ 1381-1383f. After careful consideration of the written
briefs and the complete record, the court has determined that oral argument is unnecessary in this
On February 14, 2013, Carolyn W. Colvin (“Commissioner”) became the Acting
Commissioner of Social Security. Accordingly, she has been automatically substituted for
Michael J. Astrue as the defendant in this action. See 42 U.S.C. § 405(g) (“Any action instituted
in accordance with this subsection shall survive notwithstanding any change in the person
occupying the office of Commissioner of Social Security or any vacancy in such office.”); Fed.
R. Civ. P. 25(d) (“An action does not abate when a public officer who is a party in an official
capacity dies, resigns, or otherwise ceases to hold office while the action is pending. The
officer’s successor is automatically substituted as a party.”).
Plaintiff alleges disability based upon severe back pain. On August 25, 2008, Plaintiff
applied for SSI, alleging disability beginning on May 16, 2005.2 Plaintiff’s applications were
denied initially and upon reconsideration.3 On December 16, 2009, Plaintiff requested a hearing
before an Administrative Law Judge (“ALJ”).4 The ALJ conducted administrative hearings on
January 7, 2011,5 and April 5, 2011.6 On April 15, 2011, the ALJ issued a written decision
denying Plaintiff’s claim for SSI.7 On August 1, 2012, the Appeals Council denied Plaintiff’s
request for review,8 making the ALJ’s decision the Commissioner’s final decision for purposes of
judicial review. See 42 U.S.C. § 1383(c)(3); 20 C.F.R. § 416.1481.
See docket no. 10, Administrative Record (“Tr.
See Tr. 64-67.
See Tr. 84-86.
See Tr. 57-63.
See Tr. 40-56.
See Tr. 20-39.
See Tr. 1-6.
On September 13, 2012, Plaintiff filed his complaint in this case, which was assigned to
Chief District Judge Ted Stewart.9 The Commissioner filed her answer on November 8, 2012,10
and the court received the Administrative Record the same day.11
On November 15, 2102, both parties consented to having a United States Magistrate
Judge conduct all proceedings in the case, including entry of final judgment, with appeal to the
United States Court of Appeals for the Tenth Circuit.12 Consequently, the case was reassigned to
Magistrate Judge Paul M. Warner pursuant to 28 U.S.C. § 636(c) and rule 73 of the Federal
Rules of Civil Procedure.13
Plaintiff filed his opening brief on February 9, 2013.14 The Commissioner filed her
answer brief on March 20, 2013.15 Plaintiff filed his reply brief on March 30, 2013.16
STANDARD OF REVIEW
This court “review[s] the Commissioner’s decision to determine whether the factual
findings are supported by substantial evidence in the record and whether the correct legal
See docket no. 2.
See docket no. 9.
See docket no. 10.
See docket no. 13.
See docket no. 16.
See docket no. 18.
See docket no. 19.
standards were applied.” Lax v. Astrue, 489 F.3d 1080, 1084 (10th Cir. 2007) (quotations and
citation omitted). The Commissioner’s findings, “if supported by substantial evidence, shall be
conclusive.” 42 U.S.C. § 405(g). “Substantial evidence is such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion. It requires more than a
scintilla, but less than a preponderance.” Lax, 489 F.3d at 1084 (quotations and citation
omitted). “In reviewing the ALJ’s decision, [this court may] neither reweigh the evidence nor
substitute [its] judgment for that of the [ALJ].” Madrid v. Barnhart, 447 F.3d 788, 790 (10th
Cir. 2006) (quotations and citation omitted). “The failure to apply the correct legal standard or to
provide this court with a sufficient basis to determine that appropriate legal principles have been
followed [are] grounds for reversal.” Jensen v. Barnhart, 436 F.3d 1163, 1165 (10th Cir. 2005)
(quotations and citation omitted).
A five-step evaluation process has been established for determining whether a claimant is
disabled. See 20 C.F.R. § 416.920(a)(4)(i)-(v); see also Williams v. Bowen, 844 F.2d 748, 75051 (10th Cir. 1988) (discussing the five-step process). If a determination can be made at any one
of the steps that a claimant is or is not disabled, the subsequent steps need not be analyzed. See
20 C.F.R. § 416.920(a)(4).
Step one determines whether the claimant is presently
engaged in substantial gainful activity. If [the claimant] is,
disability benefits are denied. If [the claimant] is not, the decision
maker must proceed to step two: determining whether the claimant
has a medically severe impairment or combination of
impairments. . . . If the claimant is unable to show that his
impairments would have more than a minimal effect on his ability
to do basic work activities, he is not eligible for disability benefits.
If, on the other hand, the claimant presents medical evidence and
makes the de minimis showing of medical severity, the decision
maker proceeds to step three.
Williams, 844 F.2d at 750-51 (quotations and citations omitted); see 20 C.F.R.
“Step three determines whether the impairment is equivalent to one of a number of listed
impairments that . . . are so severe as to preclude substantial gainful activity . . . . If the
impairment is listed and thus conclusively presumed to be disabling, the claimant is entitled to
benefits. If not, the evaluation proceeds to the fourth step . . . .” Williams, 844 F.2d at 751
(quotations and citations omitted); see 20 C.F.R. § 416.920(a)(4)(iii). At the fourth step, the
claimant must show that the impairment prevents performance of his “past relevant work.” 20
C.F.R. § 416.920(a)(4)(iv). “If the claimant is able to perform his previous work, he is not
disabled.” Williams, 844 F.2d at 751. If, however, the claimant is not able to perform his
previous work, he “has met his burden of proof, establishing a prima facie case of disability.” Id.
At this point, “[t]he evaluation process . . . proceeds to the fifth and final step.” Id. At
this step, the burden of proof shifts to the Commissioner, and the decision maker must determine
“whether the claimant has the residual functional capacity [(“RFC”)] . . . to perform other work
in the national economy in view of his age, education, and work experience.” Id.; see 20 C.F.R.
§ 416.920(a)(4)(v). If it is determined that the claimant “can make an adjustment to other work,”
20 C.F.R. § 416.920(a)(4)(v), he is not disabled. If, on the other hand, it is determined that the
claimant “cannot make an adjustment to other work,” 20 C.F.R. § 416.920(a)(4)(v), he is
disabled and entitled to benefits.
In support of his claim that the Commissioner’s decision should be reversed, Plaintiff
argues that the ALJ erred at step three of the sequential evaluation process. As indicated above,
step three “determines whether the impairment is equivalent to one of a number of listed
impairments that . . . are so severe as to preclude substantial gainful activity.” Williams, 844
F.2d at 751 (quotations and citations omitted); see 20 C.F.R. § 416.920(a)(4)(iii). At step three, a
claimant has the “burden to present evidence establishing [his] impairments meet or equal listed
impairments.” Fischer-Ross v. Barnhart, 431 F.3d 729, 733 (10th Cir. 2005). In order to satisfy
this burden, a claimant must establish that his impairment “meet[s] all of the specified medical
criteria. An impairment that manifests only some of those criteria, no matter how severely, does
not qualify.” Sullivan v. Zebley, 493 U.S. 521, 530 (1990). “To show that an impairment or
combination of impairments meets the requirements of a listing, a claimant must provide specific
medical findings that support each of the various requisite criteria for the impairment.” Lax v.
Astrue, 489 F.3d 1080, 1085 (10th Cir. 2007); see also 20 C.F.R. § 416.925.
In this case, the ALJ determined at step three that Plaintiff’s impairments did not meet or
equal section 1.04 of Appendix 1 of the relevant regulations (individually, a “listing” and
collectively, the “listings”), see 20 C.F.R. § 404, Subpart P, Appendix 1, listing 1.04. Listing
1.04, which deals with disorders of the spine, requires a claimant to demonstrate one of several
disorders of spine and establish the requirements of paragraph A, B, or C. See id. at listing
Plaintiff asserts that the ALJ erred in his step three determination because the record
contains a report from Dr. David Mehr (“Dr. Mehr”) that establishes all of the requirements for
paragraph A of listing 1.04. Plaintiff does not present arguments concerning paragraph B or C.
Paragraph A of listing 1.04 requires “[e]vidence of nerve root compression characterized by
neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with
associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if
there is involvement of the lower back, positive straight-leg raising test (sitting and supine).” Id.
at listing 1.04(A)
Because Plaintiff’s condition involved his lower back, he was required to demonstrate the
final element of paragraph A, a positive straight-leg raising test. The Commissioner argues that
Dr. Mehr’s report, upon which Plaintiff relies exclusively, does not demonstrate a positive
straight-leg raising test.17 Notably, Plaintiff essentially admits that fact in his opening brief.18
Given that the sole piece of evidence on which Plaintiff relies does not demonstrate that
Plaintiff’s impairments satisfy all the requirements of paragraph A, the court must conclude that
Plaintiff failed to “provide specific medical findings that support each of the various requisite
criteria for the impairment.” Lax, 489 F.3d at 1085; see also 20 C.F.R. § 416.925. Accordingly,
the court cannot say that the ALJ erred by concluding that Plaintiff did not satisfy the
requirements of paragraph A of listing 1.04.
See Tr. 592
See docket no. 16 at 7.
In addition to arguing that the substance of the ALJ’s step three determination was made
in error, Plaintiff argues that the form of the determination inadequate. More specifically,
Plaintiff contends that the ALJ failed to provide sufficient reasoning and support for his step
three determination. See, e.g., Clifton v. Chater, 79 F.3d 1007, 1010 (10th Cir. 1996) (“In the
absence of ALJ findings supported by specific weighing of the evidence, [the reviewing court]
cannot assess whether relevant evidence adequately supports the ALJ's conclusion that [the
claimant’s] impairments did not meet or equal any [listing], and whether he applied the correct
legal standards to arrive at that conclusion.”). While the court agrees that the ALJ’s discussion at
step three could have been more detailed, the court concludes that Plaintiff has failed to establish
any harmful error for two reasons. See Shinseki v. Sanders, 556 U.S. 396, 409 (2009) (“[T]he
burden of showing that an error is harmful normally falls upon the party attacking the agency’s
determination.”); see also Fischer-Ross, 431 F.3d at 733-34 (recognizing applicability of
harmless error analysis in Social Security context).
First, although Plaintiff argues that the ALJ’s discussion at step three is inadequate, he
has not pointed to any evidence in the record indicating that the ALJ’s ultimate determination
was erroneous. Indeed, as noted above, the sole piece of evidence that Plaintiff relies upon in
making his appellate argument does not demonstrate that the ALJ erred.
Second, it is well settled that even if an ALJ commits an error at step three, it
does not automatically require remand. Instead, [the court] must
consider whether “confirmed or unchallenged findings made
elsewhere in the ALJ’s decision confirm the step three
determination under review.” [Fischer-Ross, 431 F.3d at 734]. If
such findings “conclusively preclude [a c]laimant’s qualification
under the listings at step three” such that “no reasonable factfinder
could conclude otherwise,” then any step three error is harmless.
Id. at 735. If, however, there are no findings that “conclusively
negate the possibility” that a claimant can meet a relevant listing,
see id., we must remand to the ALJ for further findings, see
Clifton, 79 F.3d at 1009-10.
Murdock v. Astrue, 458 Fed. App’x 702, 703-04 (10th Cir. 2012). The court has reviewed the
ALJ’s decision and concludes that there are findings made elsewhere that confirm the ALJ’s step
three determination. The ALJ specifically noted that Dr. Mehr’s examination did not
demonstrate a positive straight-leg raising test, as required by paragraph A of listing 1.04.19 See
20 C.F.R. § 404, Subpart P, Appendix 1, listing 1.04(A). Furthermore, the ALJ gave great
weight to Dr. Mehr’s opinions,20 and Plaintiff has not challenged that determination.
CONCLUSION AND ORDER
Based on the foregoing, IT IS HEREBY ORDERED that the Commissioner’s decision
in this case is AFFIRMED.
IT IS SO ORDERED.
DATED this 27th day of September, 2013.
BY THE COURT:
PAUL M. WARNER
United States Magistrate Judge
See Tr. 28.
See Tr. 30.
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?