Carnahan v. Apfel ( 2001 )

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 99-30554
ALODIE CARNAHAN,
Plaintiff-Appellant,
versus
KENNETH S. APFEL, US COMMISSIONER OF SOCIAL SECURITY
ADMINISTRATION,
Defendant-Appellee.
Appeal from the United States District Court
For the Western District of Louisiana, Lake Charles
(98-CV-1301)
January 8, 2001
Before REAVLEY, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Alodie Carnahan appeals the district court’s grant of summary
judgment in favor of the Commissioner, which affirmed the denial of
Social Security benefits. We affirm.
I. Facts and Procedural History
Alodie Carnahan, born March 31, 1949, completed the tenth
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under
the limited circumstances set forth in 5TH CIR. R. 47.5.4.
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grade and earned a general equivalency diploma. She has previously
worked as a construction worker and a convenience store assistant
manager. In May of 1991, while working in the convenience store,
she suffered a work-related back injury. Carnahan then began
treatment under several different doctors. In November of 1991,
she underwent “nerve conduction studies,” which showed the presence
of mild L-5 irritation on the left side, but otherwise normal
results. In January of 1992, Dr. R. Dale Bernauer, one of
Carnahan’s orthopedic surgeons, diagnosed lumbar spine strain and
facet arthritis. He concluded that she could not engage in light
duty due to pain and would need surgery, which Carnahan never had.
Dr. Kevin Gorin, Carnahan’s second orthopedic specialist,
treated her for the longest period of time. In May of 1993, Dr.
Gorin noted that Carnahan had more pain than should be expected and
later suggested that she undergo a pain and personality evaluation.
In September of 1993, the evaluation showed that she seemed willing
to cope with her pain and could benefit from learning pain
management skills. Dr. Gorin continued to treat Carnahan
throughout 1993, giving her peripheral injections. In January of
1994, he reported that Carnahan’s problems were beginning to
improve, and he recommended a home stretching program. In March of
1994, Carnahan indicated to Dr. Gorin that she felt the best that
she had in years and had cut back on pain medication. In June of
that year, Dr. Gorin noted that although Carnahan continued to
suffer from facet arthropathy, she had made excellent progress and
2
could possibly return to light work. In November of 1994, he found
improvement in both posture and body mechanics despite Carnahan’s
complaints of leg and foot pain. Throughout 1995, Dr. Gorin noted
facet arthropathy and left sacroiliac joint dysfunction, but also
gradual improvement. In 1996, he completed a Residual Functional
Capacity form in which he indicated that she could stand and/or
walk for a total of two hours, continuously for one-half hour, and
that she could sit for a total of six hours, continuously for two
hours.
In October of 1994, Dr. John Humphries, the Commissioner’s
orthopedic specialist, examined Carnahan. At the time, she had
been wearing a corset prescribed by Dr. Gorin, which reportedly
gave her some relief. Dr. Humphries found tenderness at the lower
back, and Carnahan complained of low back pain when he lifted her
right leg in the supine position. The testing of the left leg in
that position was unreliable because during the test she could only
elevate the leg half way, whereas Dr. Humphries noted that Carnahan
had spontaneously lifted the leg fully in the seated position
earlier. His report noted moderate degenerative disk disease and
substantial facet arthropathy, but no hard neurological
abnormalities upon physical examination. Dr. Humphries concluded
that Carnahan “should be able to stand, sit or walk although she
may need to alternate intervals” and could perform light or even
medium work with the proper liberties.
Carnahan applied for benefits on July 27, 1994, but the
3
application was denied. After reconsideration, a hearing was held
before an Administrative Law Judge (ALJ) on March 21, 1996.
Carnahan testified that she had a deep pain in her hip and a
throbbing pain in her back. She said that her legs gave out, the
most recent time being in 1995, and that she was on pain
medication. She testified that she did little walking, squirmed
while sitting so she could not sit continuously for two hours, and
found standing the most difficult position. Carnahan’s daughter
testified that her mother was usually in her recliner or bed.
On May 8, 1996, the ALJ denied benefits. Although she
concluded that Carnahan was unable to return to her former
employment, the ALJ found that she could make an adjustment to
other sedentary work. The ALJ determined that Carnahan suffered
from degenerative disc disease, facet arthropathy, and sacroiliac
joint dysfunction, but that evidence supported a finding that she
was not disabled. Carnahan filed suit in the district court. The
district court found that the Commissioner’s decision was supported
by substantial evidence and consistent with legal standards.
II. Standard of Review
“We review the Secretary’s decision only to determine whether
it is supported by substantial evidence on the record as a whole
and whether the Secretary applied the proper legal standard.”
Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994) (citing 42
U.S.C. §§ 405(g), 1383 (c)(3)). “Substantial evidence is ‘such
relevant evidence as a reasonable mind might accept as adequate to
4
support a conclusion.’ In applying the substantial evidence
standard, we scrutinize the record to determine whether such
evidence is present. We may not reweigh the evidence, try the
issues de novo, or substitute our judgment for that of the
Secretary.” Id. (citing Richardson v. Perales, 402 U.S. 389, 401
(1971)) (in turn citing Consolidated Edison Co. v. NLRB, 305 U.S.
197, 229 (1938)).
Disability is defined as the “inability to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to
result in death or which has lasted or can be expected to last for
a continuous period of not less than 12 months.” 42 U.S.C. §
423(d)(1)(A) (2000). A physical or mental impairment is “an
impairment that results from anatomical, physiological, or
psychological abnormalities which are demonstrable by medically
acceptable clinical and laboratory diagnostic techniques.” Id. §
423(d)(3). An individual is “under a disability, only if his
physical or mental impairment or impairments are of such severity
that he is not only unable to do his previous work but cannot,
considering his age, education, and work experience, engage in any
other kind of substantial gainful work which exists in the national
economy . . .” Id. § 423(d)(2)(A).
III. Analysis
On appeal, Carnahan argues that the ALJ erred by relying
solely on the Medical Vocational Guidelines. First, she argues
5
that her pain constitutes a significant nonexertional factor that
prohibits reliance on the guidelines. Second, she argues that
there was not substantial evidence to support a finding of not
disabled. Finally, she argues that the ALJ erred by not consulting
a vocational expert because she is limited by a need to alternate
between sitting and standing.
A. Pain
Carnahan contends that the ALJ’s conclusion that she had no
“significant nonexertional limitations which narrow the range of
work she can perform” was erroneous and not supported by
substantial evidence. She claims that her pain was a nonexertional
limitation, pointing to evidence that she needed to alternate
sitting and standing, to walk continuously only for one-half hour,
to never climb or crawl due to pain, and to limit reaching because
of pain.
Nonexertional limitations “affect only . . . [the] ability to
meet the demands of jobs other than strength demands.” 20 C.F.R.
§ 416.969a (2000). “Pain may constitute a nonexertional factor
that can limit the range of jobs a claimant can perform.” Scott v.
Shalala, 30 F.3d 33, 35 (5th Cir. 1994). However, there should be
“clinical or laboratory diagnostic techniques which show the
existence of a medical impairment which could reasonably be
expected to produce the pain alleged.” Selders v. Sullivan, 914
F.2d 614, 618 (5th Cir. 1990). Pain is disabling when it is
“constant, unremitting, and wholly unresponsive to therapeutic
6
treatment.” Id. at 618-19 (internal citations omitted). If a
claimant suffers from a nonexertional limitation, the ALJ must rely
on a vocational expert to establish that jobs exist in the economy.
Newton v. Apfel, 209 F.3d 448, 458 (5th Cir. 2000).
There is substantial evidence to support the ALJ’s findings
that Carnahan had no significant nonexertional limitations of pain.
There is certainly evidence that she has pain; however, there is
not substantial evidence that the pain is “wholly unresponsive to
therapeutic treatment.” Selders, 914 F.2d at 618-19. On the
contrary, Carnahan’s relationship with Dr. Gorin shows that her
pain was responsive to treatment. She admitted to feeling relief
from pain medication and a prescribed corset, and Dr. Gorin’s notes
indicate a pattern of improvement.
Furthermore, an ALJ’s assessment of a claimant’s credibility
is accorded great deference. Newton, 209 F.3d at 459. Here, the
ALJ found that the “claimant’s statements concerning her impairment
and its impact on her ability to work are not entirely credible in
light of the degree of medical treatment required, the reports of
the treating and examining practitioners, and the findings made on
the examination.” We find that statement supported by substantial
evidence. For example, Dr. Humphries’ report indicates that
Carnahan provided unreliable testing data.
B. Substantial medical evidence
Carnahan argues that there was not substantial medical
evidence to support a finding of not disabled. She contends that
7
Dr. Gorin’s Residual Functional Capacity form is unclear and does
not constitute substantial evidence. She also alleges that the ALJ
erred in considering only part of Dr. Humphries’ report.
Carnahan’s arguments are without merit. “We have long held
that ‘ordinarily the opinions, diagnoses, and medical evidence of
a treating physician who is familiar with the claimant’s injuries,
treatments, and responses should be accorded considerable weight in
determining disability.’” Greenspan, 38 F.3d at 237 (quoting Scott
v. Heckler, 770 F.2d 482, 485 (5th Cir. 1985)). However, when good
cause is shown, such as statements that are brief and conclusory or
unsupported by medically acceptable techniques or evidence, the
testimony may be given little or no weight. Id. (quoting Scott,
770 F.2d at 485). We find that Dr. Gorin’s opinion was entitled to
considerable weight as Dr. Gorin was her treating physician and had
the most extensive relationship with her. His report is not
unclear as it indicates Carnahan can walk or stand for one-half
hour continuously and can sit for two hours continuously. It is
also consistent with Dr. Humphries’ diagnosis, which concluded that
Carnahan could even perform light to medium work if her need to
alternate sitting and standing was accommodated. The ALJ’s opinion
shows that she considered all of the evidence carefully and found
that Dr. Gorin’s opinion outweighed the earlier conclusion of Dr.
Bernauer.
C. Vocational Expert
Relying solely on the Medical Vocational Guidelines of
8
Appendix 2 of the regulations, the ALJ concluded that Carnahan was
not disabled. Based on the evidence, the ALJ found that Carnahan
could engage in sedentary work, and that, because of her residual
functional capacity, age, education, and work experience, the
guidelines demonstrated a significant number of available jobs.
Thus, the ALJ found Carnahan to be not disabled. Carnahan argues
that the ALJ erred by not consulting a vocational expert as to how
her need to alternate sitting and standing would affect her ability
to perform the full range of sedentary work.
Because we have found that substantial evidence supports the
ALJ’s factual conclusions, we must now determine if the ALJ
followed the proper legal standards in finding that Carnahan could
perform a full range of sedentary work. Scott, 30 F.3d at 34. In
finding Carnahan not disabled because she had the exertional
capacity for sedentary work without relying on a vocational
expert’s testimony, the ALJ assumed that Carnahan’s need to
alternate sitting and standing could be accommodated by breaks at
two-hour intervals.
The Medical Vocational Guidelines were promulgated to improve
uniformity and efficiency. Heckler v. Campbell, 461 U.S. 458, 461
(1983); see 20 C.F.R. Pt. 404, Subpt. P, App. 2. The Supreme Court
has explained the guidelines as follows:
These guidelines relieve the Secretary of the need to
rely on vocational experts by establishing through
rulemaking the types and numbers of jobs that exist in
9
the national economy. They consist of a matrix of the
four factors identified by Congress–physical ability,
age, education, and work experience–and set forth rules
that identify whether jobs requiring specific
combinations of these factors exist in significant
numbers in the national economy . . . If such work
exists, the claimant is not considered disabled.
Campbell, 461 U.S. at 461-62. This circuit has held “that the
Secretary may rely on the medical-vocational guidelines to
establish that work exists for a claimant only if the guidelines’
‘evidentiary underpinnings coincide exactly with the evidence of
disability appearing on the record.’” Scott, 30 F.3d at 34.
The Social Security Regulations define sedentary work as
involving lifting no more than ten pounds at a time, occasionally
lifting small items, and sitting with a certain amount of walking
and standing. 20 C.F.R. §§ 404.1567, 416.967. The Social Security
Administration has also issued several rulings addressing the
definition of sedentary work and the implications of the need to
alternate sitting and standing.2 Social Security Ruling (SSR) 83-
10 states that, for sedentary work, one should stand or walk no
more than two hours of an eight-hour workday and should sit
approximately six hours of the workday. 1983 WL 31251, *5
2
The Social Security Administration’s rulings are not binding on
this court, but may be consulted when the statutes provide little
guidance. B.B. ex. rel. A.L.B. v. Schweiker, 643 F.2d 1069, 1071
(5th Cir. 1981).
10
(S.S.A.).
SSR 83-12 states,
Where an individual’s exertional RFC [residual functional
capacity] does not coincide with the definition of any
one of the ranges of work . . ., the occupational base is
affected and may or may not represent a significant
number of jobs in terms of the rules directing a
conclusion as to disability. The adjudicator will
consider the extent of any erosion of the occupational
base and access its significance . . . Where the extent
of erosion of the occupational base is not clear, the
adjudicator will need to consult a vocational resource.
1983 WL 31253, *2 (S.S.A.). Furthermore, if a claimant must
alternate positions, that person is not functionally capable of the
prolonged sitting contemplated by sedentary work, but persons who
can adjust to any need to alternate by doing so at breaks and lunch
periods could still perform a defined range of work. Id. at *4.
SSR 96-9p3 defines a full range of sedentary work as remaining
3
SSR 96-9p became effective on July 2, 1996, after the
Commissioner affirmed the denial of Carnahan’s benefits; however,
while we acknowledge that the ruling was not binding precedent on
the ALJ, we nevertheless consult the ruling for guidance on this
issue. In doing so, we agree with the Seventh Circuit’s analysis
in Lauer v. Apfel, 169 F.3d 489, 492 (7th Cir. 1999) (“SSRs are
interpretive rules intended to offer guidance to agency
adjudicators. While they do not have the force of law or properly
promulgated notice and comment regulations, the agency makes SSRs
‘binding on all components of the Social Security Administration.’
The parties do not dispute the application of SSR 96-9p to this
case, even though the SSR was not issued until after [appellant’s]
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“in a seated position for approximately 6 hours of an 8-hour
workday, with a morning break, a lunch period, and an afternoon
break at approximately 2-hour intervals. If an individual is
unable to sit for a total of 6 hours in an 8-hour workday, the
unskilled sedentary occupational base will be eroded.” 1996 WL
374185, *6 (S.S.A.). If a claimant needs to alternate between
sitting and standing, the ruling concludes that “[w]here this need
cannot be accommodated by scheduled breaks and a lunch period, the
occupational base for a full range of unskilled sedentary work will
be eroded” and that the extent of erosion will depend on the facts,
including the frequency of the need to alternate. Id. at *7.
We find that the ALJ applied the proper legal standard. There
is substantial evidence that Carnahan can sit for six hours, as
evidenced by Dr. Gorin’s Residual Functional Capacity report. This
ability meets the evidentiary underpinnings of the guidelines. See
Scott, 30 F.3d at 34. There is also substantial evidence that
Carnahan can sit continuously for two hours; thus, she can adjust
her need to alternate positions with breaks every two hours. In so
holding, we find that an ALJ may properly consider whether a
claimant’s need to alternate sitting and standing may be
accommodated by “a morning break, a lunch period, and an afternoon
break at approximately 2-hour intervals.” SSR 96-9p, 1996 WL
374185 at *6. This interpretation is consistent with the SSRs, as
administrative hearing.”) (internal citations omitted).
12
SSR 96-9p does not consider the full range of unskilled sedentary
work to be eroded where the need to alternate positions can be
accommodated by “scheduled breaks and a lunch period,” and SSR 83-
12 considers individuals who may adjust with scheduled breaks to be
able to perform a defined range of work.
We are equally persuaded by the case law of the Fifth Circuit.
Most relevant is Scott v. Shalala, 30 F.3d at 34, where the court
concluded that “[b]ecause Scott must alternate between sitting and
standing as needed, Scott’s exertional capabilities do not fit
within the definition of sedentary work.” (emphasis added). The
court remanded for consideration of vocational expert testimony.
Id. Here, unlike in Scott, where the ALJ specifically found that
Scott required the option to sit or stand as needed, the ALJ
adopted the findings of Dr. Gorin that Carnahan could sit
continuously for two hours without needing to stand. Thus, the
guidelines’ “evidentiary underpinnings coincide exactly with the
evidence of disability appearing on the record.” Id. (quoting
Lawler, 761 F.2d at 197). Additionally, Moon v. Bowen, 810 F.2d
472, 473 (5th Cir. 1987), involved a claimant who testified that he
could sit for two hours before his pain increased. The ALJ relied
solely on the guidelines to find him not disabled as he could
perform sedentary work. Id. The denial of benefits was affirmed
on the age factor, but the case implicitly demonstrates that the
ability to sit for two hours continuously was justification for
13
reliance on the guidelines.
We also find support for our decision that reliance on the
medical guideline was appropriate in the persuasive authority of
other courts who have addressed substantially similar issues. In
Johnson v. Shalala, No. 2:92 CV 279, 1994 WL 809110, *4 (N.D. Ind.
Nov. 30, 1994), a claimant could not sit for more than an hour so
the ALJ properly consulted a vocational expert. In Wages v.
Secretary of Health and Human Services, 755 F.2d 495, 499 (6th Cir.
1985), the court reversed a denial of benefits because the claimant
had to alternate between sitting and standing as she found
necessary and thus could not perform the range of sedentary work.
Howse v. Heckler, 782 F.2d 626, 627-28 (6th Cir. 1986), reversed a
denial of benefits on the basis that the claimant could not perform
sedentary work because he was incapable of sitting or standing for
longer than one hour at a time. In Davis v. Secretary of Health
and Human Services, 915 F.2d 186, 188 (6th Cir. 1990), an ALJ
consulted a vocational expert because the claimant’s doctor said he
could sit only four hours of an eight-hour workday. See Talbott v.
Bowen, 821 F.2d 511, 515 (8th Cir. 1987) (Because the claimant could
sit for only an hour at a time, the court found that the guidelines
could not replace expert testimony). In Shiner v. Heckler, No. 84-
0703-C, 608 F.Supp. 481, 484 (D. Mass. May 7, 1985), the claimant
could only sit for ten minutes at a time, and a vocational expert
was consulted. The court found that where a claimant has to
interrupt work with periods of prone rest, he cannot perform
14
sedentary work, but that an ability to perform sedentary work must
be predicated on a finding that claimant can sit for most of the
day with occasional interruptions of short durations. Id. at 484.
Unlike Carnahan, these claimants were not able to accommodate their
need to alternate positions with breaks at two-hour intervals.
Therefore, based on a review of the applicable regulations,
rulings, and persuasive case law, we find Carnahan’s argument that
vocational expert testimony was required without merit.
IV. Conclusion
For the foregoing reasons, the decision of the district court
is AFFIRMED.
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