Nash v. Apfel, (10th Cir. 2000)

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UNITEDSTATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

ELLA L. NASH,

Plaintiff-Appellant,

v.

KENNETH S. APFEL, Commissionerof Social Security Administration,

Defendant-Appellee.No. 99-7109

(D.C. No. 98-CV-561-BU)

(E.D. Okla.)

ORDER AND JUDGMENT(*)

Before BRORBY, ANDERSON, andMURPHY, Circuit Judges.

After examining the briefs and appellate record, this panel has determinedunanimously to grant the parties' request for a decision on the briefs without oralargument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is thereforeordered submitted without oral argument.

Plaintiff-appellant Ella L. Nash appeals from the district court's orderaffirming the decision of the Commissioner of Social Security which foundher ineligible for disability insurance benefits and supplemental security incomebenefits. We affirm after "closely examin[ing] the record as a whole to determinewhether the [Commissioner's] decision is supported by substantial evidence andadheres to applicable legal standards." Evans v. Chater, 55 F.3d 530, 531(10th Cir. 1995).

Ms. Nash claims disability since December 23, 1993, due to morbidobesity, back pain, numbness and pain in her legs and feet, varicose veins,swollen feet, and edema. In denying Ms. Nash's application for benefits, theadministrative law judge (ALJ) followed the established five-step evaluationprocess. See 20 C.F.R. § 404.1520 (disability insurance); 20 C.F.R.§ 416.920(supplemental security income); Williams v. Bowen, 844 F.2d 748, 750-51(10th Cir. 1988) (generally describing the five-step analysis). The ALJ found thatMs. Nash (1) was not performing substantial gainful activity, (2) had severeimpairments, (3) did not, however, have a listed impairment, and (4) was unableto perform her past relevant work as a grill cook. At step five, the ALJ found thatMs. Nash had the residual functional capacity (RFC) to perform a full range ofsedentary work. Application of the Medical-Vocational Guidelines, 20 C.F.R.pt. 404, Subpt. P, App. 2, rule 201.18 (the grids), directed a finding of notdisabled.

The district court affirmed the denial of benefits. On appeal, Ms. Nashargues that the ALJ conducted an improper evaluation of her impairment underthe listing for obesity, 20 C.F.R. pt. 404, subpt. P, app. 1, § 9.09. She alsoasserts that ALJ's analysis of her RFC was conclusory and legally insufficient. Before turning to the arguments made by Ms. Nash, however, we address theCommissioner's contention that we must limit our consideration of Ms. Nash'sargument concerning the obesity listing.

Threshold Issues Raised by Commissioner

The Commissioner proposes two restraints on our evaluation of this appeal. First, he asserts that Ms. Nash waived her claims under two subsections of theobesity listing, § 9.09A and B, by mentioning only one subsection, § 9.09D, at theAppeals Council level. See Appellee's Br. at 6-9. In James v. Chater, 96 F.3d1341, 1343 (10th Cir. 1996), we stated that "issues not brought to the attention ofthe Appeals Council on administrative review may, given sufficient notice to theclaimant, be deemed waived on subsequent judicial review." The application ofthe waiver doctrine is discretionary. See Sussman v. Patterson, 108 F.3d 1206,1210 (10th Cir. 1997). We note that the Supreme Court has granted certiorarion the issue of whether a federal court may impose an issue exhaustionrequirement upon social security claimants barring issues that were notspecifically raised by the claimant during the administrative process. See Sims v.Apfel, 162 F.3d 1160 (5th Cir. 1998), cert. granted, 68 U.S.L.W. 3345 (U.S.Nov. 29, 1999) (No. 98-9537). Under these circumstances, we exercise ourdiscretion to consider Ms. Nash's additional arguments under the obesity listing.

The Commissioner's next contention is that we may not grant benefits toMs. Nash under listing 9.09, the obesity listing, no matter how we resolve herissues on appeal. See Appellee's Br. at 14-16. As the Commissioner points out,the listing has been deleted and replaced with more restrictive guidance "about theevaluation of claims for benefits involving obesity to the prefaces of [revised]musculoskeletal, respiratory, and cardiovascular body system listings." RevisedMedical Criteria for Determination of Disability, Endocrine System and RelatedCriteria, 64 Fed. Reg. 46122, 46123 (1999). The change became effective onOctober 25, 1999, see id. at 46122, while the present case was on appeal in thiscourt. The Revised Medical Criteria state that the deletion is to have "onlya prospective effect," id. at 46126, without affecting individuals previouslyfound disabled under the listing, see id. The Commissioner argues that"[t]akentogether," these statements mean that pending claims, even claims on judicialreview, should be "evaluated in accordance with the revised Listing regulations." Appellee's Br. at 16. We disagree with this interpretation and position.

"Retroactivity is not favored in the law." Bowen v. Georgetown Univ.Hosp., 488 U.S. 204, 208 (1988).(1) Arule changing the law is retroactivelyapplied only if Congress expressly authorized retroactive rulemaking and theagency clearly intended the rule to have retroactive effect. See id. TheCommissioner has not satisfied this standard. In particular, he has not shownan intention to apply the 1999 deletion retroactively to a claimant who waserroneously denied benefits under the earlier listing, even though a claimantwho was granted benefits may continue to receive them. Without a morespecific statement of intent, we will not conclude that the agency intended thisperverse result.(2)

Issues Raised by Ms. Nash

Ms. Nash argues that the ALJ failed to adhere to applicable legal standardsin determining that her impairment did not meet or equal the listing for obesity ineffect at the time of the hearing. The listing, § 9.09, required a claimant to meetcertain weight and height standards and also one of five additional requirements.(3) It is not disputed that the combination of Ms. Nash's height and weight satisfiesthe initial standard. The question is whether she meets any other specifications ofthe listing. Ms. Nash argues that, properly evaluated, she showed the history ofpain and limitation required by § 9.09A; hypertension required by § 9.09B; andchronic venous insufficiency required by § 9.09D.

A review of the medical evidence of record shows that Ms. Nash did notdemonstrate any of these required conditions. The record contains "no findingson medically acceptable imaging techniques of arthritis in the affected joint orlumbosacral spine," a requirement of § 9.09A. Similarly, a review of the manyblood pressure readings in the record shows that Ms. Nash's diastolic bloodpressure was not persistently in excess of the 100 reading, and, in fact, only onereading reached that figure. Therefore, the record provides no indication thatMs. Nash could have satisfied § 9.09B. Moreover, despite the consultativeexaminer's comment that she had "minimal varicose veins on left lower leg onlateral knee," Appellant's App., Vol. 2 at 137, there is no evidence of chronicvenous insufficiency or persistent edema. The ALJ's decision reflects adequateconsideration of the evidence relevant to § 9.09D.

Contrary to Ms. Nash's contentions, there was no need for the ALJ'sdecision to analyze her condition under either § 9.09A or B or provide a moreextensive discussion under § 9.09D. The ALJ is "required to discuss the evidenceand explain why he found that appellant was not disabled at step three." Cliftonv. Chater, 79 F.3d 1007, 1009 (10th Cir. 1996). He need not, however, discussevery piece of evidence. See id. at 1009-10. The ALJ performeda proper stepthree analysis and his determination that Ms. Nash did not have a listedimpairment is supported by substantial evidence.

Finally, Ms. Nash challenges the ALJ's determination that she had theRFC to perform the full range of sedentary work as conclusory and withoutfactual support. The ALJ's RFC determination, however, flows from the medicalevidence in the record as well as from his assessment of Ms. Nash's impairments. The ALJ noted that a non-examining physician opined that Ms. Nash's "ability todo work-related activities is unimpaired as to sitting, standing, moving about,lifting, carrying, handling objects, hearing, speaking and traveling." Appellant'sApp., Vol. 2 at 138. The ALJ also listed Ms. Nash's daily activities, whichincluded part-time work in a restaurant, washing clothes, very light housework,and driving to and from work, the store, and the laundromat.

This is not a case in which the ALJ relied on "the absence of evidence"to make his RFC determination. See Thompson v. Sullivan, 987 F.2d1482, 1491(10th Cir. 1993). Ample evidence supports the assessment of Ms. Nash's RFC.

The judgment of the United States District Court for the Eastern Districtof Oklahoma is AFFIRMED.

Entered for the Court

Michael R. Murphy

Circuit Judge

FOOTNOTES

Click footnote number to return to corresponding location in the text.

*. This order and judgment is not bindingprecedent, except under thedoctrines of law of the case, res judicata, and collateral estoppel. The courtgenerally disfavors the citation of orders and judgments; nevertheless, an orderand judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.

1. A common definition of the term"retroactive" is that it extends a statuteor ruling "in scope or effect to matters that have occurred in the past." Black'sLaw Dictionary 1318 (7th ed. 1999).

2. The Commissioner suggests that wegive deference to the position taken inhis appellate brief. Like the Supreme Court, we "decline[] to give deference to anagency counsel's interpretation of a statute where the agency itself has articulatedno position on the question, on the ground that 'Congress has delegated to theadministrative official and not to appellate counsel the responsibility forelaborating and enforcing statutory commands.'" Bowen, 488 U.S. at 212(quoting Investment Co. Inst. v. Camp, 401 U.S. 617, 628 (1971)).

3. The additional requirements are:

A. History of pain and limitation of motion in any weight-bearing joint orspine (on physical examination) associated with x-ray evidence of arthritisin a weight-bearing joint, or spine;

B. Hypertension with diastolic blood pressure persistently in excess of 100mm. Hg;

C. History of congestive heart failure manifested by past evidence ofvascular congestion such as hepatomegaly, peripheral or pulmonary edema;

D. Chronic venous insufficiency with superficial varicosities in a lowerextremity with pain on weight-bearing and persistent edema; or

E. Respiratory disease with total forced vital capacity equal to or less thanthe value specified in Table III-A or III-B or III-C.

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