CHAPTER 4
Step 2: Is Your Condition Severe?
The claimant has the
burden of proof and the burden of going forward with the evidence at Steps 1
through 4. You must prove with clear, cogent, and convincing evidence that you
have a severe mental or physical impairment.
Step 2 evaluates whether
your medical condition is severe enough to significantly limit your ability to
perform basic work activities. In addition, the impairment must last, or be
expected to last, for a continuous period of not less than 12 months or result
in death.
An impairment is
severe if it significantly limits a claimant's physical or mental ability
to perform basic work activities, and an impairment is not severe if it does
not significantly limit a claimant's physical or mental ability to do basic
work activities. There must be an impairment resulting from anatomical,
physiological, or psychological abnormalities that can be shown by medically
acceptable clinical and laboratory diagnostic techniques. The Social Security
Administration (SSA) requires that an impairment be established by medical
evidence that consists of signs, symptoms, and laboratory findings, and not
only by an individual's statement of symptoms.
The evaluation of
whether an impairment(s) is ``severe'' that is done at Step 2 of the applicable
sequential evaluation process set out in 20 CFR 404.1520, 416.920, or 416.924
requires an assessment of thefunctionally limiting effects of an impairment(s)
on an individual'sability to do basic work activities or, for an individual
under age 18claiming disability benefits under title XVI, to do age-
appropriate activities; and an individual's symptoms may cause limitations and
restrictions in functioning which, when considered at Step 2, may require a
finding that there is a ``severe'' impairment(s) and a decision to proceed
tothe next step of sequential evaluation.
At Step 2 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(s) that is ``not
severe'' must be a slight abnormality(or a combination of slight abnormalities)
that has no more than aminimal effect on the ability to do basic work
activities.
Symptoms, such as pain, fatigue, shortness of breath, weakness, or
nervousness, 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 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.
In determining the severity of an impairment at Step 2 of the
sequential evaluation process evidence about the functionally limiting effects of an individual's impairment(s) must be evaluated in order to assess the effect of the impairment(s) on the individual's ability to do basic work activities.
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.
In determining the severity of an impairment at Step 2 of the
sequential evaluation process evidence about the functionally limiting effects of an individual's impairment(s) must be evaluated in order to assess the effect of the impairment(s) on the individual's ability to do basic work activities.
The vocational factors of age, education, and work experience are not
considered at this step of the process. A determination that an
individual's impairment is not severe requires a careful evaluation
of the medical findings that describe the impairment(s) (i.e., the
objective medical evidence and any impairment- related symptoms), and an
informed judgment about the limitations and restrictions the
impairment(s) and related symptom(s) impose on the individual's
physical and mental ability to do basic work activities.
When a claimant attempts
to establish disability through his own testimony concerning pain or other
subjective symptoms, the ALJ must apply a three-part "pain standard,"
which requires (1) evidence of an underlying medical condition, and either (A)
objective medical evidence that confirms the severity of the alleged pain
stemming from that condition, or (B) that the objectively determined medical
condition is so severe that it can reasonably be expected to cause the alleged
pain.
After considering a
claimant's complaints of pain, the ALJ may reject them as not creditable, and
that determination will be reviewed by the Appeals Council, the Federal
District Court and the Circuit Court of Appeals for substantial evidence. The
ALJ must consider such things as: (1) the claimant's daily activities; (2) the
nature and intensity of pain and other symptoms; (3) precipitating and aggravating
factors; (4) effects of medications; (5) treatment or measures taken by the
claimant for relief of symptoms; and (6) other factors concerning functional
limitations.
The claimant has the
burden to show that he cannot perform his past relevant work due to some severe
impairment. The burden then shifts to the Commissioner of SSA to show that a
significant number of jobs exist in the national economy which the claimant can
perform.
Because a determination
of whether an impairment is severe requires
an assessment of the functionally limiting effects of an impairment,
symptom- related limitations and restrictions must be considered at this
step of the sequential evaluation process, provided that the individual
has a medically determinable impairment that could reasonably be expected to produce the symptoms. If the ALJ finds that such symptoms cause a
limitation or restriction having more than a minimal effect on an
individual's ability to do basic work activities, the ALJ must find that the impairment is severe and proceed to the next step in the process even if the objective medical evidence would not in itself establish that the impairment is severe. In addition, if, after completing development and considering all of the evidence, the ALJ is unable to determine clearly the effect of an impairment on the individual's ability to do basic work activities, he must continue to follow the sequential evaluation process until a determination or decision about disability can be reached.
an assessment of the functionally limiting effects of an impairment,
symptom- related limitations and restrictions must be considered at this
step of the sequential evaluation process, provided that the individual
has a medically determinable impairment that could reasonably be expected to produce the symptoms. If the ALJ finds that such symptoms cause a
limitation or restriction having more than a minimal effect on an
individual's ability to do basic work activities, the ALJ must find that the impairment is severe and proceed to the next step in the process even if the objective medical evidence would not in itself establish that the impairment is severe. In addition, if, after completing development and considering all of the evidence, the ALJ is unable to determine clearly the effect of an impairment on the individual's ability to do basic work activities, he must continue to follow the sequential evaluation process until a determination or decision about disability can be reached.
Case Law to support Step 2
The following decision
from the 11th Circuit Court of Appeals will demonstrate how much
discretion the appeals court places in the hands of the ALJ to determine whether
a claimant is exaggerating or faking.
D'ANDREA v. COMMISSIONER
OF SOCIAL SECURITY ADMINISTRATION
ADRIENNE F. D'ANDREA,
Plaintiff-Appellant,
v.
COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Michael J. Astrue, Defendant-Appellee.
v.
COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Michael J. Astrue, Defendant-Appellee.
No. 09-16518.
Non-Argument Calendar.
United States Court of
Appeals, Eleventh Circuit.
Filed July 28, 2010.
Before TJOFLAT, BARKETT
and HULL, Circuit Judges.
PER CURIAM:
This case involves an
application for disability insurance benefits filed by Adrienne F. D'Andrea on
November 20, 2004, under Title II of the Social Security Act, 42 U.S.C. § 401 et
seq. She claimed that her disability began on January 1, 1998 due to
chronic fatigue syndrome ("CFS") and other conditions we set out in
the margin.[ 1 ] An administrative law judge ("ALJ") held a hearing on
November 9, 2007, and found that D'Andrea was not disabled (prior to the
expiration of her (Date Last Insured, DLI) insured status on June 30, 2005),
and that her impairments caused no more than minimal limitations on her
ability to work and thus were not severe. The ALJ found alternatively that
even if her impairments were severe, she retained the residual functional
capacity ("RFC") to perform her past relevant work (PRW).
The Appeals Council
denied D'Andrea's request for review on October 30, 2008, thereby making the
ALJ's decision the final decision of the Commissioner. D'Andrea thereafter
brought this action in the district court, seeking review of the Commissioner's
decision. The court affirmed the decision, and D'Andrea lodged this appeal.
D'Andrea argues that
substantial evidence does not support the ALJ's finding that her CFS is not
severe or his alternative finding that she retains the RFC to perform her past
relevant work (PRW). "Substantial evidence is more than a scintilla and is
such relevant evidence as a reasonable person would accept as adequate to support
a conclusion." Crawford v. Comm'r of Soc. Sec., 363 F.3d 1155, 1158
(11th Cir. 2004) (quotation omitted). "We may not decide facts anew,
reweigh the evidence, or substitute our judgment for that of the Commissioner. Dyer
v. Barnhart, 395 F.3d 1206, 1210 (11th Cir. 2005) (quotation and
alteration omitted). "Even if the evidence preponderates against the
[Commissioner's] factual findings, we must affirm if the decision reached is
supported by substantial evidence." Martin v. Sullivan, 894 F.2d
1520, 1529 (11th Cir. 1990).
The Social Security
Regulations outline a five-step process used to determine whether a
claimant is disabled. 20 C.F.R. § 404.1520(a)(4). Under the first step,
the claimant has the burden to show that she is not currently engaged in substantial
gainful activity. Id. § 404.1520(a)(4)(i). Next, the claimant must
show that she has a severe impairment. Id. § 404.1520(a)(4)(ii). She
then must attempt to show that the impairment meets or equals the criteria
contained in one of the Listings of Impairments. Id. §
404.1520(a)(4)(iii). If the claimant cannot meet or equal the criteria, she
must show that she has an impairment which prevents her from performing her
past relevant work. Id. § 404.1520(a)(4)(iv). Once a claimant
establishes that she cannot perform her past relevant work due to some severe
impairment, the burden shifts to the Commissioner to show that significant
numbers of jobs exist in the national economy which the claimant can perform. Id.
§ 404.1520(a)(4)(v); Phillips v. Barnhart, 357 F.3d 1232, 1239 (11th
Cir. 2004).
The present inquiry
concerns the second step of the sequential evaluation process—whether
substantial evidence supports the ALJ's finding that D'Andrea's CFS was not a severe
impairment. "The severity of a medically ascertained disability
must be measured in terms of its effect upon ability to work." McCruterk
v. Bowen, 791 F.2d 1544, 1547 (11th Cir. 1986) (quotation omitted).
Step two is a threshold
inquiry. It allows only claims
based on the most trivial impairments to be rejected. The claimant's burden
at step two is mild. An impairment is not severe only 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.
McDaniel v. Bowen, 800 F.2d 1026, 1031-32 (11th Cir. 1986); see
Phillips, 357 F.3d at 1237 (stating that an impairment is severe if it
"significantly limits" the claimant's physical or mental ability to
perform basic work activities); 20 C.F.R. § 404.1521(a) (stating that an
impairment "is not severe if it does not significantly limit [the
claimant's] physical or mental ability to do basic work activities").
A. Chronic Fatigue
Syndrome
Social Security Ruling
99-2p ("SSR 99-2p") confirms that a disability claim involving CFS is
evaluated "using the sequential evaluation process, just as for any other
impairment." SSR 99-2p at 4. According to SSR 99-2p, CFS is "a
systemic disorder consisting of a complex of symptoms that may vary in
incidence, duration, and severity . . . characterized in part by prolonged
fatigue that lasts 6 months or more and that results in substantial reduction
in previous levels of occupational, educational, social, or personal
activities." Id. at 1. Symptoms of CFS include "[s]ore throat;
[t]ender cervical or axillary lymph nodes; [m]uscle pain; [m]ulti-joint pain
without joint swelling or redness; [h]eadaches of a new type, pattern, or
severity; [u]nrefreshing sleep; and [p]ostexertional malaise lasting more than
24 hours." Id. at 2. A person with CFS might also exhibit
"muscle weakness, swollen underarm (axillary) glands, sleep disturbances,
visual difficulties (trouble focusing or severe photosensitivity), orthostatic
intolerance (e.g., lightheadedness or increased fatigue with prolonged
standing), other neurocognitive problems (e.g., difficulty comprehending and
processing information), fainting, dizziness, and mental problems (e.g.,
depression, irritability, anxiety)."
When accompanied by
appropriate medical signs or laboratory findings, CFS can be a medically
determinable impairment. Id. at 2. There must be
an impairment
result[ing] from anatomical, physiological, or psychological abnormalities that
can be shown by medically acceptable clinical and laboratory diagnostic
techniques. The Social Security Administration and regulations further require
that an impairment be established by medical evidence that consists of signs,
symptoms, and laboratory findings, and not only by an individual's statement of
symptoms.
Id. Recognized examples of medical signs,
clinically documented over a period of at least six consecutive months, that
will establish the existence of a medically determinable impairment in a CFS
case include "[p]alpably swollen or tender lymph nodes on physical
examination; [n]onexudative pharyngitis; [p]ersistent, reproducible muscle
tenderness on repeated examinations . . .; or, [a]ny other medical signs that
are consistent with medically accepted clinical practice and are consistent
with the other evidence in the case record." Id. at 3. Further, CFS
may be established by: (1) laboratory findings including neurally mediated
hypotension or an abnormal exercise stress test; and (2) mental findings,
including problems with short-term memory, information processing,
visual-spatial issues, comprehension, concentration, speech, word-finding,
calculation, and anxiety or depression. Id. Citing Ruling 99-2p, we have
recognized that "there are no specific laboratory findings that are"
widely accepted as indicative of CFS and no test for CFS. Vega v. Comm'r of
Soc. Sec., 265 F.3d 1214, 1219-20 (11th Cir. 2001) (holding that the ALJ
failed to analyze the effect of CFS on a claimant's ability to do work
meaningfully when he rejected CFS as a diagnosis for want of a definite test or
specific laboratory findings to support the diagnosis).
B. Medical Opinions
Generally, the opinions
of examining or treating physicians are given more weight than
non-examining or non-treating physicians unless "good cause" is shown.
See 20 C.F.R. § 404.1527(d)(1), (2); Lewis v. Callahan, 125 F.3d
1436, 1440 (11th Cir. 1997). Good cause exists to discredit a physician's
testimony when it is contrary to or unsupported by the evidence of record, or
it is inconsistent with the physician's own medical records. Phillips,
357 F.3d at 1240-41; Edwards v. Sullivan, 937 F.2d 580, 583-84
(11th Cir. 1991) (concluding that good cause existed not to rely on a treating
physician's findings when, inter alia, his treatment notes contained
unexplained inconsistencies). The ALJ may reject the opinion of any physician
when the evidence supports a contrary conclusion. Sryock v. Heckler,
764 F.2d 834, 835 (11th Cir.1985).
Further, when a treating
physician makes merely conclusory statements, the ALJ may afford them such
weight as is supported by the clinical or laboratory findings and other
consistent evidence of the claimant's impairments. Wheeler v. Heckler,
784 F.2d 1073, 1075 (11th Cir. 1986); see Vega, 265 F.3d at 1220
(holding that the ALJ erred in failing to give the findings and assessments of
the treating physicians any weight when the medical evidence and claimant's
testimony supported a diagnosis of CFS). When a treating physician's opinion
does not warrant controlling weight, the ALJ must nevertheless weigh the
medical evidence based on many factors, including the examining relationship,
the treatment relationship and the frequency of examination, whether an opinion
is amply supported, whether an opinion is consistent with the record, and a
doctor's specialization. 20 C.F.R. § 404.1527(d). Where an ALJ articulates
specific reasons for failing to accord the opinion of a treating or examining
physician controlling weight and those reasons are supported by substantial
evidence, there is no reversible error. Moore, 405 F.3d at 1212-13.
Here, the ALJ did not accord the treating physician's opinion controlling
weight, and D'Andrea challenges his decision.
C. Subjective Symptoms
When a claimant attempts
to establish disability through her own testimony concerning pain or other
subjective symptoms, we apply a three-part "pain standard," which
requires (1) evidence of an underlying medical condition, and either (A)
objective medical evidence that confirms the severity of the alleged pain
stemming from that condition, or (B) that the objectively determined medical
condition is so severe that it can reasonably be expected to cause the alleged
pain. Wilson v. Barnhart, 284 F.3d 1219, 1225 (11th Cir. 2002); see
Holt v. Sullivan, 921 F.2d 1221, 1223 (11th Cir. 1991) (stating that this
"standard also applies to complaints of subjective conditions other than
pain"). "The claimant's subjective testimony supported by medical
evidence that satisfies the standard is itself sufficient to support a finding of
disability." Id.
"After considering
a claimant's complaints of pain, the ALJ may reject them as not creditable, and
that determination will be reviewed for substantial evidence." Marbury
v. Sullivan, 957 F.2d 837, 839 (11th Cir. 1992). The ALJ must explicitly
and adequately articulate his reasons if he discredits subjective testimony. Id.
"A clearly articulated credibility finding with substantial supporting
evidence in the record will not be disturbed by a reviewing court." Foote
v. Charter, 67 F.3d 1553, 1562 (11th Cir. 1995). There is no requirement
that the ALJ refer to every piece of evidence, but the credibility
determination "cannot merely be a broad rejection which is not enough to
enable . . . this Court to conclude that the ALJ considered [the claimant's]
medical condition as a whole." Dyer, 395 F.3d at 1210-11(quotations
and alterations omitted).
Moreover, the ALJ may
not reject a plaintiff's subjective complaints based on the lack of objective
evidence alone. Watson v. Heckler, 738 F.2d 1169, 1172-73 (11th Cir.
1984). The ALJ must consider such things as: (1) the claimant's daily
activities; (2) the nature and intensity of pain and other symptoms; (3)
precipitating and aggravating factors; (4) effects of medications; (5)
treatment or measures taken by the claimant for relief of symptoms; and (6)
other factors concerning functional limitations. See 20 C.F.R. §
404.1529(c)(3).
After reviewing the
record in this case, we conclude that substantial evidence supports the ALJ's
finding that D'Andrea's CFS was not a severe impairment. In reaching this
conclusion, have considered D'Andrea's argument that the ALJ erred in failing
to accord appropriate weight to the opinion of her treating physician;
we reject the argument because the ALJ articulated at least one specific reason
for disregarding the opinion and the record supports it. We also conclude that
the ALJ had ample reason for rejecting the consulting physician's RFC
assessment; the physician's own clinical findings undermined the assessment.
The ALJ discounted D'Andrea's subjective complaints on credibility grounds, and
those grounds are well supported by the evidence. Finally, although the ALJ
misconstrued the psychologists' findings, the misconstruction was harmless, as
the psychologists' findings do not contradict the ALJ's conclusion that
D'Andrea did not have a severe impairment.
In sum, because we
conclude that substantial evidence supports the determination that D'Andrea's
CFS was not a severe impairment and that she had a RFC to perform her past
relevant work, the district court properly refused to disturb the
Commissioner's decision and its judgment is due to be affirmed.
AFFIRMED.
The following decision
form the U S Circuit Court for the Fifth Circuit will illustrate how a court
will evaluate whether a mental or physical condition is severe within
the meaning of the Social Security Regulations.
BRUNSON v. ASTRUE
JIMMY D. BRUNSON, Plaintiff-Appellant,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee.
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee.
No. 09-41148. Summary Calendar.
United States Court of Appeals, Fifth Circuit.
Filed: July 16, 2010.
Before: JOLLY, STEWART, and ELROD, Circuit Judges.
PER CURIAM.
Jimmy D. Brunson appeals the district court's judgment affirming
the Commissioner of Social Security's decision that he is not entitled to
Social Security disability benefits. Because the Commissioner applied the
correct legal standards and because there is substantial evidence to support
the decision, we affirm.
I.
Mr. Brunson applied for Social Security disability benefits in
July 2002. He alleged that he had been disabled since March 30, 1997, because
of back problems, depression, diabetes, and high blood pressure. The date on
which he was last insured for purposes of Social Security disability benefits was
September 30, 1998. Accordingly, Mr. Brunson had to establish that he was
disabled before the expiration of his insured status. See Anthony v.
Sullivan, 954 F.2d 289, 295 (5th Cir. 1992). The Social Security
Administration denied his application initially and on reconsideration. Mr.
Brunson requested a hearing before an Administrative Law Judge (ALJ). Following
the hearing, the ALJ found that Mr. Brunson had a medically determinable
impairment related to his back but that, as of September 30, 1998, the date he
was last insured, he did not have an impairment or a combination of
impairments that was severe within the meaning of the sequential evaluation
process used for evaluation of disability benefit claims. The ALJ's
decision became the Commissioner's final decision after the Appeals Council
denied Mr. Brunson's request for review. The district court affirmed the
decision of the Commissioner. Mr. Brunson filed a timely notice of appeal.
II.
Mr. Brunson contends on appeal that (1) the ALJ misstated the
record in asserting that there was no evidence of psychiatric treatment prior
to the expiration of his insured status; and (2) the ALJ erred by ignoring
evidence helpful to Mr. Brunson in deciding that his lumbar impairment is not
severe under step two of the sequential analysis. An impairment is severe if
it significantly limits an individual's physical or mental abilities to do
basic work activities; it is not severe if it is a slight abnormality or
combination of slight abnormalities that has no more than a minimal effect on
the claimant's ability to do basic work activities. Stone v. Heckler,
752 F.2d 1099, 1101 (5th Cir. 1985). We review the Commissioner's decision only
to ascertain whether it is supported by substantial evidence and whether the
Commissioner applied the proper legal standards in evaluating the evidence. Newton
v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000). We may not re-weigh the
evidence or substitute our judgment for that of the Commissioner, even if the
evidence weighs against the Commissioner's decision. Id.
Mr. Brunson is correct in his assertion that the ALJ misstated
the record when he stated that it contained no evidence of any ongoing
psychiatric treatment and no evidence that Mr. Brunson was ever prescribed
psychotropic medication during the period in question (March 30, 1997 through
September 30, 1998). That error, however, is harm less, because the evidence in
the record indicates that Mr. Brunson took anti-depressant medication which
controlled his symptoms of depression during the relevant time period. Thus he
did not have a severe mental impairment prior to September 30, 1998, the
date he was last insured. See Johnson v. Bowen, 864 F.2d 340, 347 (5th
Cir. 1988) (impairments that reasonably can be remedied or controlled by
medication or treatment are not disabling). Accordingly, it would not be
appropriate for us to remand the case for the purpose of having the ALJ correct
this misstatement.
The ALJ applied the proper legal standard of Stone v.
Heckler in determining that Mr. Brunson did not have a severe impairment
or a combination of severe impairments during the period from March 30,
1997 through September 30, 1998. Furthermore, substantial evidence in the
record supports the ALJ's conclusion that Mr. Brunson's back pain did not impose
more than a minimal effect on his ability to engage in basic work-related
activities during the relevant period. The fact that the ALJ cited certain
evidence that he felt supported his decision does not mean that he failed to
consider all of the other evidence in the record. To the contrary, his decision
states expressly that it was made "[a]fter careful consideration of all
the evidence,"and we see no reason or evidence to dispute his assertion.
Indeed, based on our review of all of the evidence in the record, the
Commissioner's decision is supported by substantial. That evidence shows that
Mr. Brunson injured his back on March 30, 1997. His treating physician, Dr.
Williams, recommended physical therapy. In a report dated August 21, 1997, Dr.
Williams released Mr. Brunson to full duty work, finding that he had a four
percent impairment to the person as a whole. Although Dr. Williams occasionally
indicated on forms that Mr. Brunson "can't work," such declarations
are not determinative, particularly when considered in the light of her
clinical findings. See Frank v. Barnhart, 326 F.3d 618, 620 (5th Cir.
2003) (treating physicians' opinions that claimants are unable to work are
legal conclusions for the Commissioner to make). At the hearing, the ALJ asked
Mr. Brunson to describe the most severe medical problem that he had that kept
him from working. Mr. Brunson mentioned his feet, ankle, dizzy spells, and
complications of diabetes, but did not include back pain.
III.
We conclude that the Commissioner's decision is supported by
substantial evidence and resulted from application of the correct legal
standards. Accordingly, the decision of the district court affirming the
Secretary's denial of benefits is
AFFIRMED.
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