Ramsey v. Barnhart , 117 F. App'x 638 ( 2004 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
SEP 21 2004
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
LORETTA RAMSEY,
Plaintiff-Appellant,
v. No. 03-5194
(D.C. No. CV-03-95-M)
JO ANNE B. BARNHART, (N.D. Okla.)
Commissioner of the Social Security
Administration,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before SEYMOUR and ANDERSON , Circuit Judges, and KANE , ** Senior
District Judge.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
The Honorable John L. Kane, Senior District Judge, United States District
Court for the District of Colorado, sitting by designation.
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
Plaintiff-appellant Loretta Ramsey appeals from an order of the district
court affirming the Commissioner’s decision denying her application for
Supplemental Security Income benefits (SSI). Appellant filed for these benefits
on August 4, 2000. She has alleged disability based on headaches, back and neck
pain, migraines and nausea, vomiting, visual and hearing disturbances, problems
with her arms, shoulders, feet, hands and fingers, shortness of breath, and
stomach problems. The agency denied her applications initially and on
reconsideration.
Appellant received a de novo hearing before an administrative law judge
(ALJ). The ALJ determined that appellant retained the residual functional
capacity (RFC) to perform work at the light exertional level, reduced by her
inability to bend, climb, stoop, squat, kneel, crouch and/or crawl, and twist or nod
her head more than occasionally; her slight limitation on fingering, feeling, and
gripping; her inability to reach overhead; her limitation to simple, routine and
repetitive tasks; and her slight limitation in contact with the general public,
coworkers, and supervisors. Although the ALJ found that appellant could not
return to her past relevant work as a licensed practical nurse, telemarketer,
clerk/cashier, or warehouse worker, he concluded that there were a significant
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number of other jobs which she could perform in the national or regional
economy. Applying the Medical-Vocational Guidelines, 20 C.F.R. pt. 404, Subpt.
P, App. 2, table No. 2, rule 202.21 (the grids) as a framework, the ALJ concluded
that appellant was not disabled within the meaning of the Social Security Act.
The Appeals Council denied review, making the ALJ’s decision
the Commissioner’s final decision.
We review the Commissioner’s decision to determine whether the factual
findings are supported by substantial evidence in the record and whether the
correct legal standards were applied. See Andrade v. Sec’y of Health & Human
Servs., 985 F.2d 1045, 1047 (10th Cir. 1993). Substantial evidence is “such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Fowler v. Bowen, 876 F.2d 1451, 1453 (10th Cir. 1989) (quotations
omitted).
The Commissioner follows a five-step sequential evaluation process
to determine whether a claimant is disabled. See Williams v. Bowen, 844 F.2d
748, 750-52 (10th Cir. 1988). The claimant bears the burden of establishing
a prima facie case of disability at steps one through four. See id. at 751 n.2.
If the claimant successfully meets this burden, the burden of proof shifts to the
Commissioner at step five to show that the claimant retains sufficient RFC to
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perform work in the national economy, given her age, education and work
experience. See id. at 751.
On appeal, appellant raises two issues. She contends that the ALJ erred in
assessing her RFC. She also argues that he erred at step five by failing to provide
a full discussion of her employability.
Most of appellant’s contentions on appeal involve the ALJ’s assessment of
her digestive problems arising from a 1989 gastric bypass operation she
underwent for obesity. Appellant contends that the operation caused her to suffer
from chronic problems with diarrhea. She testified that she has “Dumping
Syndrome,” which means that “[e]verything I eat and drink goes straight through
me real fast, painfully.” Aplt. App. at 48. Appellant stated that she needs to have
access to a bathroom within fifteen minutes of the time that she eats. Id. at 60.
She gave no indication, however, concerning the daily frequency of her bouts of
diarrhea.
The medical evidence contains reports of occasional abdominal pain with
gas and bloating, lactose intolerance, and chronic diarrhea. Id. at 164, 219, 277,
287. Although the record mentions appellant’s “Dumping Syndrome,” see id.
at 244, we have found no indication in the medical evidence concerning the
frequency or severity of the diarrhea problem. Nor does appellant point to such
evidence in her brief.
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In a hypothetical question he posed to the vocational expert (VE) at the
hearing, the ALJ stated “there should be easy access to restrooms. By that I mean
there should be one on the premises and she should be able to use it.” Id. at 69.
The VE testified that appellant could do a substantial number of jobs even if she
were limited to those that had easy access to a restroom. Id. at 69-71. On further
examination of the VE, appellant’s attorney refined the hypothetical by asking the
VE to assume that appellant would require “the ability to obtain immediate access
to a restroom as needed when needed.” Id. at 72. The VE indicated that if
appellant required more than two unscheduled restroom breaks per day, over a
thirty day period, that would affect her ability to do the jobs he had identified.
Id. at 72-73.
In the body of his decision, the ALJ opined that appellant’s RFC “includes
special accommodations such as easy access to a restroom, in light of [her]
gastrointestinal problems.” Id. at 20. He did not mention this limitation again in
the findings section of his decision, however, where he again set forth her RFC.
See id. at 22.
In her first claim of error, appellant contends that this failure to carry over
the bathroom restriction to the findings section of the ALJ’s decision resulted in a
fatal contradiction in the ALJ’s assessment of her RFC and constitutes reversible
error as a matter of law. We disagree. That omission was harmless in light of the
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subsidiary finding concerning access to a bathroom in the body of the ALJ’s
decision. See Gay v. Sullivan, 986 F.2d 1336, 1341 n.3 (10th Cir. 1993) (refusing
to remand where technical omission in ALJ’s decision-making process “if error,
was minor enough not to undermine confidence in the determination of this
case”).
Appellant next contends that the ALJ erred in failing to include a definition
of “easy access to a restroom” in his decision. She argues that the lack of a
specific definition of “easy access” deprives this court of a sufficient articulation
to review the ALJ’s reasoning. She further argues that this lack of specificity is
not cured by the explanation the ALJ gave at the hearing, that “there should be
[a restroom] on the premises and she should be able to use it.” Aplt. App. at 69.
Appellant fails to show that she raised this issue to the district court.
In any event, we discern no reversible error here. Although it would have
been preferable for the ALJ to have incorporated the definition of “easy access”
discussed at the hearing into his decision, we will treat the definition contained in
the hearing transcript as supplementing the ALJ’s decision, as it is consistent with
and supports the reasoning applied by the ALJ. There is no indication in the
ALJ’s decision that he accepted a limitation requiring frequent access to a
restroom. Nor does the medical record or the testimony at the hearing compel a
finding that appellant needs frequent, as opposed to immediate or urgent,
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restroom breaks. 1 We discern no reversible error presented in the ALJ’s
discussion of this issue.
Finally, appellant contends that the ALJ’s decision contains a finding of
disability which is inconsistent with the remainder of the decision. Applying
Rule 202.21 of the grids, the ALJ stated that the rule “direct[s] a conclusion of
disabled.” Id. at 22-23. Rule 202.21, however, directs a conclusion of not
disabled. 20 C.F.R. pt. 404, Subpt. P, App. 2, table No. 2, rule 202.21. It is
obvious from the text of this rule and from the ALJ’s decision as a whole that the
omission of the word “not” in the ALJ’s finding represents a typographical error,
rather than a fatal ambiguity in the decision. Appellant’s argument is frivolous.
The judgment of the district court is AFFIRMED.
Entered for the Court
Stephen H. Anderson
Circuit Judge
1
Appellant does not argue that the medical record has not been adequately
developed concerning the frequency of her need for restroom breaks, or that there
is insufficient evidence to support a finding at step five concerning this issue.
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