United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER AFFIRMING THE
COMMISSIONER'S FINAL DECISION DENYING DISABILITY BENEFITS
J. FURSE United States Magistrate Judge
Patrick Rafferty, pursuant to 42 U.S.C. § 405(g), seeks
judicial review of the decision of the Acting Commissioner of
Social Security (Commissioner) denying his claim for
Disability Insurance Benefits (DIB) under Title II of the
Social Security Act (the Act). After careful review of the
entire record, the parties' briefs, and arguments
presented at a hearing held on February 17, 2017, the
undersigned concludes that the Commissioner's decision is
supported by substantial evidence and free of harmful legal
error and is, therefore, AFFIRMED.
Court reviews the Commissioner's decision to determine
whether substantial evidence in the record as a whole
supports the factual findings and whether the correct legal
standards were applied. See Lax v. Astrue, 489 F.3d
1080, 1084 (10th Cir. 2007). “Substantial evidence is
‘such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.'”
Id. (quoting Hackett v. Barnhart, 395 F.3d
1168, 1172 (10th Cir. 2005)). The Court may neither
“reweigh the evidence [n]or substitute [its] judgment
for the [ALJ's].” Id. (quoting
Hackett, 395 F.3d at 1172). Where the evidence as a
whole can support either the agency's decision or an
award of benefits, the Court will affirm the agency's
decision. See Ellison v. Sullivan, 929 F.2d
534, 536 (10th Cir. 1990).
case, Mr. Rafferty claimed disability at the age of 27, based
on degenerative disc disease, hearing loss, arthritis in his
fingers, and joint pain. (The certified copy of the
transcript of the entire record of the administrative
proceedings relating to Mr. Rafferty (hereinafter,
“Tr.”) 109, 133, ECF No. 7.) He obtained a GED
and had past relevant work as a tractor/trailer driver,
construction worker, and maintenance mechanic. (Id.
at 134.) The ALJ followed the five-step sequential evaluation
process for evaluating disability claims. (Id. at
11-23); see generally 20 C.F.R. §
404.1520(a)(4). As relevant here, the ALJ found that Mr.
Rafferty retained the residual functional capacity (RFC) to
perform a limited range of light work. (Tr. 15.) Considering
this RFC, the ALJ found - consistent with the vocational
expert's testimony - that Mr. Rafferty could not perform
his past relevant work but could perform other jobs existing
in significant numbers in the national economy. (Id.
at 21-22.) The ALJ thus concluded that Mr. Rafferty had
failed to establish disability under the Act. (Id.
at 22.) The Court finds that substantial evidence in the
record supports the ALJ's factual findings and that the
ALJ applied the correct legal standards.
ALJ Committed Harmless Error in Failing to Analyze Whether
Mr. Rafferty Met or Medically Equaled
Rafferty first asserts that the ALJ erred in finding that he
did not meet or equal Listing 1.04A (disorders of the spine).
(Pet'r Opening Br. (Pl. Br.) 12-17, ECF No. 17.) As a
preliminary matter, the Court notes that Mr. Rafferty had the
burden at step three to provide medical evidence
demonstrating that his impairments met or medically equaled a
Listing. See Ray v. Bowen, 865 F.2d 222,
224 (10th Cir. 1989); Fischer-Ross v. Barnhart, 431
F.3d 729, 733 (10th Cir. 2005). Meeting or equaling the
requirements of a Listing at step three of the sequential
evaluation process is “a very high standard.”
McCoy v. Astrue, 648 F.3d 605, 612 (8th Cir. 2011).
“For a claimant to show that his impairment matches a
listing, it must meet all of the specified medical
criteria. An impairment that manifests only some of those
criteria, no matter how severe, does not qualify.”
Sullivan v. Zebley, 493 U.S. 521, 530 (1990)
(emphasis in original). “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, 489 F.3d at 1085 (citing 20
C.F.R. §§ 404.1525, 416.925).
Listing 1.04A, a claimant must have a disorder of the spine
(e.g., herniated nucleus pulposus, spinal
arachnoiditis, spinal stenosis, osteoarthritis, degenerative
disc disease, facet arthritis, or vertebral fracture)
resulting in compromise of a nerve root or the spinal cord.
See 20 C.F.R. pt. 404, subpt. P, app. 1, §
1.04. In addition, Listing 1.04A requires all of the
Evidence 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. To show equivalency, the claimant must present
medical findings “equal in severity to all the
criteria for the most similar listed impairment.”
Zebley, 493 U.S. at 531.
Court finds the ALJ erred in failing to analyze Listing 1.04
and a potential equivalency finding. Sufficient evidence
existed in the record that Mr. Rafferty brought to the
ALJ's attention, that the ALJ should have explicitly
analyzed Listing 1.04 and the potential for an equivalency
finding based on Mr. Rafferty's condition in combination
with his obesity.
because the ALJ elsewhere discussed evidence supporting a
finding that Mr. Rafferty did not meet or equal this Listing,
the Court concludes that any error was harmless. See
Fischer-Ross, 431 F.3d 733 (“an ALJ's findings
at other steps of the sequential process may provide a proper
basis for upholding a step three conclusion that a
claimant's impairments do not meet or equal any listed
impairment.”). Specifically, as seen below, the
ALJ's determination of Mr. Rafferty's capabilities
and his crediting of medical testimony makes clear that the
ALJ would not have found Mr. Rafferty's condition meets
or equals Listing 1.04.
ALJ's Assessment of Mr. Rafferty's RFC Complied with
Social Security Ruling (SSR) 96-8p.
Mr. Rafferty argues that the ALJ did not provide a
“proper function-by-function assessment” of his
RFC. (Pl. Br. 17-19, ECF No. 17.) Courts within the Tenth
Circuit have consistently rejected Mr. Rafferty's
argument that a hyper-technical function-by-function analysis
is required when assessing a claimant's RFC. See
Hendron v. Colvin, 767 F.3d 951, 956-57 (10th Cir.
2014); Stone v. Colvin, No. CIV-14-612-STE, 2015 WL
5231033, at *3 (W.D. Okla. Sept. 8, 2015) (unpublished). The
court in Hendron noted that the function-by-function
assessment ensures that an ALJ does not overlook limitations
or restrictions that would narrow the ranges and types of
work that a claimant can perform. See Hendron, 767
F.3d at 956 (citing SSR 96-8p, 1996 WL 374184, at *3). Here,
the Court finds no evidence that the ALJ overlooked any
limitations or restrictions in this case. The ALJ determined
that Mr. Rafferty could perform light work with only
occasional climbing of ramps and stairs, stooping, crouching,
and crawling; never climbing ropes and scaffolds; frequently
kneeling; and having no exposure to vibration and hazards
such as heights and dangerous moving machinery. (Tr. 15.) The
ALJ's decision demonstrated that he gave deference to the
medical opinions that supported his assessment of Mr.
Rafferty's RFC. (Id. 15; see also Id.
at Tr. 61-63.) Thus, the ALJ's RFC assessment was based
upon substantial evidence.
Mr. Rafferty's argument that the ALJ was required to tie
evidence to each specific finding in the RFC, (Pl. Br. 17-19,
ECF No. 17), is unsupported. See Banks v. Astrue,
537 F.Supp.2d 75, 85 (D.D.C. 2008). “Although the
language of SSR 96-8p requires that the ALJ's RFC
assessment ‘must address . . . the remaining
exertional . . . capacities of the individual, ' this
does not require written articulation of all seven strength
demands.” Id. at 85 (emphasis in original)
(quoting SSR 96-8- at *5); see also Hendron, 767
F.3d at 954-55 (affirming the ALJ's narrative discussion