12-3343-cv Cichocki v. Astrue 

# United States Court of Appeals 1 

### FOR THE SECOND CIRCUIT 2 3 

### August Term 2012 4 5 

### (Argued: April 26, 2013 Decided: September 5, 2013) 6 7 

### No. 12-3343-cv 8



### _____________________________________ 9 10 

### M ELANIE 

### C ICHOCKI 

### , 11 

### Plaintiff-Appellant , 12 13 

### -v.- 14 15 

### M ICHAEL 

### J. A STRUE 

### , Commissioner of Social Security 16 

### Defendant-Appellee

. 17



### _____________________________________ 18 19 

### Before: C ALABRESI 

### , L IVINGSTON 

### , and LYNCH 

### , Circuit Judges

. 20 21 Appeal from the judgment of the UnitedStates District Court for the Western 22 District of New York (Skretny, J. ), entered July 30, 2012, granting defendant’s motion 23 on the pleadings and dismissing Plaintiff-Appellant’s complaint challenging the denial 24 of disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 401 25 et seq . We hold that the failure to conduct anexplicit function-by-function analysis at 26 Step Four of a disability determination is not a per se ground for remand. Because the 27 Administrative Law Judge’s (“ALJ”) Step Four analysis pr ovides a basis for meaningful 28 judicial review, applies the correct legal standards, and because substantial evidence 29 supports the ALJ’s residual functional ca pacity determination, we AFFIRM the 30 judgment below. 31 32 JAYA A. S HURTLIFF , Law Offices of Kenneth Hiller, 33 PLLC, Amherst, New York, for Plaintiff-Appellant

. 34 35 D ENNIS J. C ANNING , Special Assistant U.S. 36 Attorney (S TEPHEN P. C ONTE , Regional Chief 37 Counsel, Social Security Administration, on the 38 brief ) for W ILLIAM J. H OCHUL , J R ., United States 39 Attorney for the Western District of New York, for 40 Defendant-Appellee. 41P ER C URIAM 1 Plaintiff-Appellant Melanie Cichocki (“Cich ocki”) appeals from a judgment of the 2 United States District Court for the We stern District of New York (Skretny, J. ), 3 entered July 30, 2012, dismissing her complaint challenging the denial of disability 4 insurance benefits under Title II of the Social Security Act (the “SSA” or “Act”), 42 5 U.S.C. § 401 et seq . The district court granted th e motion of defendant Commissioner 6 of Social Security (“Commissioner”) for judg ment on the pleadings, finding substantial 7 evidence to support the Commissioner’s denial of benefits, which was on the ground 8 that Cichocki was not disabled within the meaning of the Act. On appeal, Cichocki 9

argues, inter alia , that the Administrative Law Judg e (“ALJ”) who reviewed her claim, 10 and whose decision became that of the Commissioner, erred by failing explicitly to 11 engage in a function-by-function assessment of her limitations and restrictions as part 12 of his residual functional capacity(“RFC”) analysis at Step Four. 1 For the reasons 13

1 The Commissioner of Social Security has promulgated regulations that set forth a “five-step sequential evaluation process,” 20 C.F.R. § 404.1520(a)(4), to guide disability determinations: The first step of this process requires the Secretary [of Health and Human Services] to determine whet her the claimant is presently employed. If the claimant is not e mployed, the Secretary then determines whether the claimant has a “severe impairment” that limits her capacity to work. If the claimant has such an impairment, the Secretary next considers whether the claimant has an impairment that is listed in Appendix 1 of the regulations. When the claimant has such an impairment, the Secretary will find the claimant disabled. However, if the claimant does not have a listed impairment, the Secretary must determine, under the fourth step, whether the claimant possesses the residual functional capacity to perf orm her past relevant work. Finally, if the claimant is unable to perform her past relevant work, the Secretary

2stated below, we conclude that the failure explicitly to engage in such a function-by1 function analysis does not constitute a per seerror requiring remand. Because the 2 ALJ’s Step Four analysis of Cichocki’s limitations and restrictions provides an 3 adequate basis for meaningful judicial review, the ALJ’s determination applies the 4 correct legal standards, and because it is supported by substantial evidence, remand 5 is not required. In an accompanying summaryorder filed today, we reject Cichocki’s 6 remaining arguments. Accordingly, we affirm the judgment of the district court. 7
B ACKGROUND 8 9 Cichocki, who has a high school educatio n, was 37 years old when she filed for 10 disability insurance benefits on April 7, 2009. After the Commissioner denied her 11 application, she filed a written request fo r a hearing, which was held on January 6, 12 2011, and at which Cichocki, represented by counsel, testified. Cichocki worked from 13 1995 to 2001 as a nurse’s aide or home health aide but stated at the hearing that she 14 could no longer lawfully work in this capacity. 2From 2002 to 2008, Cichocki held 15 various positions, working as a superm arket cashier and bakery clerk, and also 16 working for a janitorial company and a tempo rary employment agency. Cichocki has 17

determines whether the claimant is capable of performing any other work. If the claimant satisfies her bu rden of proving the requirements in the first four steps, the burden then sh ifts to the Secretary to prove in the fifth step that the claimant is capable of working.
Perez v. Chater , 77 F.3d 41, 46 (2d Cir. 1996).

2Cichocki does not dispute that she was discharged from health care-related employment for not following directions or disregarding patient care protocols, and that she has been sued by patients alleging injury in her care.

3no record of employment since October 20, 2008, when she suffered a seizure at her 1 Buffalo, New York home and received emer gency care at Buffalo’s Mercy Hospital 2 before returning home later that day. 3 Based on his determination that Cichocki was not disabled, as defined in the 4 SSA, the ALJ issued a decision denying Cich ocki’s claim in May 2011. Employing the 5 five-step evaluation process set out in 20 C.F.R. § 404.1520(a)(4), the ALJ found at 6 Step One that Cichocki was not engaged in substantial gainful activity and, at Step 7 Two, that she suffered from impairments, including a seizure disorder, back pain, and 8 bipolar disorder. The ALJ determined that Cichocki had severe impairments, as 9 defined in the Act, consisting of a history of seizure activity and “mild degenerative disc 10 disease of the lumbar spine and mild facet arthropathy.” He determined that 11 Cichocki’s bipolar disorder did not constitute a severe impairment under the SSA 12 because Cichocki had experienced no episodes of decompensation of extended duration 13 and had only mild limitations as to her activities of daily living and social functioning, 14 as well as concentration, persistence, or pace. See 20 C.F.R. § 404.1520a(d)(1). 15 As relevant here, the ALJ found at Step Three that Cichocki’s impairments did 16 not meet or medically equal the specified cri teria of any listed impairment, so that a 17 finding of disability was not permitted at St ep Three. As a result, the ALJ undertook 18 a Step Four assessment, which focuses on whether, despite a disability claimant’s 19 severe impairments, the claimant “possesse s the residual functional capacity to 20 perform her past relevant work.” Perez , 77 F.3d at 46. 21

22

4At Step Four, the ALJ determined that Cichocki was able to perform light work 1 as defined in 20 C.F.R. § 404. 1567(b), that she could occasion ally be exposed to extreme 2 heat or cold, but that she could “never work at unprotected heights or around 3 mechanical parts, and never operate a motor vehicle in a work environment.” The 4 ALJ’s assessment did not explicitly analyze Cichocki’s work-related abilities on a 5 function-by-function basis. See SSR 96-8p, 1996 WL 374184, at *1 (July 2, 1996). 6 Discussing the limitations relied upon by Cichocki, however, the ALJ noted that 7 Cichocki’s seizures “are transient in na ture and by November 2010 were considered 8 nearly completely controlled by medication.” The ALJ referenced the report of one of 9 Cichocki’s treating physicians, Dr. McLean, who “found the claimant able to lift/carry 10 20 pounds continuously and up to 50 pounds occasionally, sit for six hours, stand for 11 four hours and walk for three hours in an eight-hour workday,” as well as “occasionally 12 climb stairs and ramps, stoop, kneel, and crouch.” The ALJ also recited Cichocki’s own 13 observations as to her daily activities: 14 In a Daily Activities Questionnaire the claimant said that her typical 15 activities included doing “whatever chores needed to be done that day,” 16 walking her dogs, going to scheduled appointments, watching television, 17 reading, preparing meals, cleaning her house, doing laundry, and 18 weeding and other yard work. She en joyed bird watching. She said she 19 got out often, but did not drive due toseizure activity that was still under 20 investigation. With regard to exerti onal ability, the claimant stated that 21 she had no difficulties kneeling, climbing stairs, standing, walking or 22 sitting. 23 Given the ALJ’s conclusion that Cichocki could perform light work with the restrictions 24 he specified, the ALJ found that Cichocki would be capable of performing two of her 25 past jobs including, as relevant here, the job of bakery clerk, and was thus not disabled. 26

5The Appeals Council denied Cichocki’s request for review on August 11, 2011. 1 On September 8, 2011, Cichocki commenced this action. In granting the 2 Commissioner’s motion for judgment on th e pleadings and dismi ssing the case, the 3 district court held that substantial evid ence supports the ALJ’s determination that 4 Cichocki is not disabled with in the meaning of the Act. Cichocki v. Astrue , No. 11 Civ. 5 755, 2012 WL 3096428 (W.D.N.Y. July 30, 2012). Re levant here, the district court held 6 that remand was not required even though the ALJ did not conduct a 7 function-by-function analysis as part of his Step Four RFC determination. Cichocki 8 subsequently filed this timely appeal. 9 10 D ISCUSSION 11 12 “When deciding an appeal from a denial of disability benefits, we focus on the 13 administrative ruling rather thanthe district court’s opinion.” Kohler v. Astrue , 546 14 F.3d 260, 264-65 (2d Cir. 2008) (quoting Curry v. Apfel , 209 F.3d 117, 122 (2d Cir. 15 2000)). We “conduct a plenary review of the administrative record to determine if there 16 is substantial evidence, considering th e record as a whole, to support the 17 Commissioner’s decision and if the correctlegal standards have been applied.” Id. at 18 265 (quoting Shaw v. Carter , 221 F.3d 126, 131 (2d Cir. 2000)); see also 42 U.S.C. 19 § 405(g) (“The findings of the Commissioner of Social Security as to any fact, if 20 supported by substantial evidence, shall be co nclusive . . . .”). “The claimant has the 21 general burden of proving that he or she ha s a disability within the meaning of the Act, 22 and bears the burden of proving his or he r case at steps one through four of the 23 sequential five-step framework est ablished in the SSA regulations.” Burgess v. Astrue , 24 537 F.3d 117, 128 (2d Cir. 2008) (internal quotation marks and citation omitted). 25

6As relevant here, Cichocki argues that the ALJ’s failure to conduct an explicit 1 function-by-function analysis in concluding , at Step Four, that she was able to return 2 to her past work as a bakery clerk is a per seerror requiring remand. For the following 3 reasons, we disagree. 4 A claimant is disabled and entitled todisability insurance benefits if she is 5 unable to “to engage in any substantial gainful activity by reason of any medically 6 determinable physical or mental impairment which can be expected to result in death 7 or which has lasted or can be expected to last for a continuous period of not less than 8 12 months.” 42 U.S.C. § 423(d)(1)(A). If a claimant has a severe impairment limiting 9 “her mental or physical ability to do basic work activities” but not constituting a listed 10 impairment in Appendix 1 of the Social Se curity regulations, the Commissioner asks, 11 at Step Four, “whether, despite the claimant’s severe impairment, he or she has 12 residual functional capacity to perform . . . her past work.” Shaw v. Chater , 221 F.3d 13 126, 132 (2d Cir. 2000) (citing DeChirico v. Callahan , 134 F.3d 1177, 1179-80 (2d Cir. 14 1998)). Social Security Ruling 96-8p provides that an individual’s RFC “is an 15 assessment of an individual’s ability to do sustained work-related physical and mental 16 activities in a work setting on a regular and continuing basis.” SSR 96-8p, 1996 WL 17 374184, at *1 (July 2, 1996). 18 Before an ALJ classifies a claimant’s RF C based on exertional levels of work ( i.e., 19 whether the claimant can perform sedentary, light, medium, heavy, or very heavy 20 work), he “must first identify the individual’sfunctional limitations or restrictions and 21 assess his or her work-related abilities on a function-by-function basis, including the 22

7functions in paragraphs (b), (c), and (d) of 20 CFR 404.1545 and 416.945.” Id. at *1

. 1 The functions described in paragraphs (b), (c), and (d) of 20 CFR §§ 404.1545 and 2 416.945 include physical abilities such as sitting, standing, walking, lifting, carrying, 3 pushing, pulling, or other physical function s; mental abilities such as understanding, 4 remembering, carrying out instructions, and responding appropriately to supervision; 5 and other abilities that may be affected by impairments, such as seeing, hearing, and 6 the ability to tolerate environmental factors. See20 C.F.R. §§ 404.1545, 416.945; SSR 7 96-8p, 1996 WL 374184, at *5-6. Social Securi ty Ruling 96-8p cautions that “a failure 8 to first make a function-by-function asse ssment of the individual’s limitations or 9 restrictions could result in the adjudica tor overlooking some of an individual’s 10 limitations or restrictions,” which “could lead to an incorrect use of an exertional 11 category to find that the individual is able to do past relevant work” and “an erroneous 12 finding that the individual is not disabled.” 1996 WL 374184, at *4. 13 We have not yet declared whether an ALJ’s failure to conduct an explicit 14 function-by-function analysis at Step Four regarding the numerous illustrative 15 functions listed in paragraphs (b), (c), and (d) is a per seerror requiring remand. See 16 Knighton v. Astrue861 F. Supp. 2d 59, 66 (N.D.N.Y. 2012) (“The courts are divided as 17 to whether the failure to provide a function-by-function analysis is per segrounds for 18 remand or whether it may constitute harmless error.”); Drennen v. Astrue , No. 10 Civ. 19 6007, 2012 WL 42496, at *4 (W.D.N.Y. Jan. 9, 2012) (noting that while the Second 20 Circuit “has yet to address the obligation of an ALJ to conduct a function-by-function 21 analysis before expressing the RFC in terms of exertional levels of work,” at least five 22

8circuit courts “have found that an ALJ is no t required to discuss each factor in [his] 1 opinion”). We have said more generally (and now repeat) that where we are “unable 2 to fathom the ALJ’s rationale in relation toevidence in the record, especially where 3 credibility determinations and inference draw ing is required of the ALJ,” we will not 4 “hesitate to remand for further findings ora clearer explanation for the decision.” 5 Berry v. Schweiker , 675 F.2d 464, 469 (2d Cir. 1982). The automatic remand rule urged 6 by Cichocki, however, goes far beyond this sensible practice. As already noted, the 7 functions in paragraphs (b), (c), an d (d) of 20 CFR §§ 404.1545 and 416.945 are only 8 illustrative of the functions potentially relevant to an RFC assessment. Adopting a per 9

serule that these functions must be explicit ly addressed on pain of remand (no matter 10 how irrelevant or uncontested in the circumsta nces of a particular case) would thus not 11 necessarily ensure that all relevant functi ons are considered. Any such rule in this 12 Circuit, moreover, would put us at odds withsister Circuits who have recognized that 13 an ALJ need not expressly discuss a claimant ’s capacity to perform each work-related 14 function before classifying the claimant’s RFC in exertional terms. 15 We decline to adopt a per serule. The relevant inquiry is whether the ALJ 16 applied the correct legal standards and wh ether the ALJ’s determination is supported 17 by substantial evidence. Where an ALJ’s analysis at Step Four regarding a claimant’s 18 functional limitations and restrictions affords an adequate basis for meaningful judicial 19 review, applies the proper legal standards, and is supported by substantial evidence 20 such that additional analysis would be unne cessary or superfluous, we agree with our 21 sister Circuits that remand is not necessarymerely because an explicit function-by22

9function analysis was not performed. See Zatz v. Astrue , 346 F. App’x 107, 111 (7th 1 Cir. 2009) (“[A]n ALJ need not provide supe rfluous analysis of irrelevant limitations 2 or relevant limitations about which there is no conflicting medical evidence.”); Bayliss 3 v. Barnhart , 427 F.3d 1211, 1217 (9th Cir. 2005) (“ Preparing a function-by-function 4 analysis for medical conditions or impairments that the ALJ found neither credible nor 5 supported by the record is unnecessary.”); Depover v. Barnhart , 349 F.3d 563, 567-68 6 (8th Cir. 2003) (“[W]e believe that the ALJ implicitly found that Mr. Depover was not 7 limited in these functions, and in this inst ance we do not see any reason to remand to 8 make the findings explicit.”); Delgado v. Comm’r of Soc. Sec. , 30 F. App’x 542, 547 (6th 9 Cir. 2002) (“Although SSR 96–8p requires a ‘function-by-function evaluation’ to 10 determine a claimant’s RFC, case law does not require the ALJ to discuss those 11 capacities for which no limitation is alleged.”). Remand may be appropriate, however, 12 where an ALJ fails to assess a claimant’s capacity to perform relevant functions, 13 despite contradictory evidence in the record , or where other inadequacies in the ALJ’s 14 analysis frustrate meaningful review. See Myers v. Apfel , 238 F.3d 617, 621 (5th Cir. 15 2001) (remanding where “the ALJ failed to reso lve the inconsistencies in the evidence” 16 regarding claimant’s residual functional capacity). 17 Here, the ALJ’s decision did not include an explicit function-by-function analysis 18 of all possible limitations, but did address a ll relevant limitations. Moreover, the ALJ’s 19 conclusion is supported by substantial evidence. In determining Cichocki’s physical 20 limitations, the ALJ cited Dr. MacLean’s me dical assessment for the proposition that 21 Cichocki can “lift/carry 20 pounds continuous ly and up to 50 pounds occasionally, sit 22

10for six hours, stand for four hours and walk for three hours in an eight-hour workday.” 1 The ALJ also noted that Cichocki can o ccasionally stoop, kneel, crouch, and climb 2 stairs and ramps; can occasionally be ex posed to temperature extremes; and could 3 never crawl, climb ladders or scaffolds, balance, operate a motor vehicle, or work 4 around unprotected heights or moving mechanical parts. The ALJ also relied on 5 Cichocki’s Daily Activities Questionnaire on which she indicated that she performed 6 numerous daily tasks, such as walking her dogs and cleaning her house, that are 7 consistent with a residual capacity to perform light work. He addressed the impact of 8 Cichocki’s seizure disorder, noting that it was “well controlled on medication.” 9 Based on a thorough examination of the evidence of Cichocki’s relevant 10 limitations and restrictions, the ALJ conclu ded that Cichocki’s impairments did not 11 preclude her from light work, subject to specified modifications. 3This determination 12 applied the proper legal standards and was supported by substantial evidence. That 13 the ALJ did not explicitly make additional superfluous findings on a 14 function-by-function basis is not a ground for remand. 15

3 Cichocki argues that the ALJ’s RFC determination was also flawed because it did not take into account mental limitations resulting from her bipolar disorder. At Step Four, however, the ALJ is instructed to consider the effect of a claimant’s severe impairments on her capacity to perform former relevant work. 20 C.F.R. § 404.1520(a)(4) . Having determined at Step Two that Cichocki’s bipolar disorder did not constitute su ch an impairment, the ALJ did not err in failing to assess the impact of this disorder at Step Four. Cichocki’s further argument that the ALJ erred at Step Two in assessing the severity of her bipolar disorder is addressed in the summary order that accompanies this per curiam opinion.

11C ONCLUSION 1 For the foregoing reasons, we AFFIRMthe judgment of the district court. 2

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