Case: 23-30831 Document: 45-1 Page: 1 Date Filed: 07/12/2024
United States Court of Appeals
for the Fifth Circuit
____________ United States Court of Appeals
Fifth Circuit
FILED
No. 23-30831
July 12, 2024
____________
Lyle W. Cayce
Joshua Jones, Clerk
Plaintiff—Appellant,
versus
Martin O’Malley, Commissioner of Social Security,
Defendant—Appellee.
______________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:22-CV-443
______________________________
Before Smith, Engelhardt, and Ramirez, Circuit Judges.
Kurt D. Engelhardt, Circuit Judge:
Plaintiff Joshua Jones appeals the judgment of the district court affirming the Commissioner of Social Security’s denial of his claims for disability insurance benefits (“DIB”) and supplemental security income (“SSI”)
under Titles II and XVI of the Social Security Act (“Act”), 42 U.S.C.
§§ 423, 1381. Because we conclude that the Commissioner’s decision is
based upon proper legal standards and is supported by substantial evidence,
we AFFIRM.
Case: 23-30831 Document: 45-1 Page: 2 Date Filed: 07/12/2024
No. 23-30831
I.
On October 1, 2019, Jones submitted applications for SSI and DIB,
asserting a disability onset date of February 22, 2018. 1 He alleged the following illnesses, injuries, or conditions: “cervical and lumbar regions, disc
herniation bulging and derangement L4-5, L5-S1, C5-6, C7, blurring vision,
diabetes, neuropathy, broken great toe on the right [foot], high blood pressure, high cholesterol.” The applications were denied, at the agency level,
on March 12, 2020, and upon reconsideration, on November 10, 2020. 2
Thereafter, on February 23, 2021, Jones, represented by counsel, filed a request for a hearing before an administrative law judge (“ALJ”). The hearing
was held, via telephone, on August 5, 2021. 3
_____________________
1
Prior to the August 5, 2021 hearing before the ALJ, Jones amended his onset date
to December 10, 2019.
2
As explained in Bowen v. Yuckert, 482 U.S. 137, 142 (1987):
The initial disability determination is made by a state agency
acting under the authority and supervision of the [Commissioner]. 42
U.S.C. §§ 421(a), 1383b(a);
20 C.F.R. §§ 404.1503, 416.903 (1986). If the
state agency denies the disability claim, the claimant may pursue a threestage administrative review process. First, the determination is
reconsidered de novo by the state agency. §§ 404.909(a), 416.1409(a).
Second, the claimant is entitled to a hearing before an administrative law
judge (“ALJ”) within the Bureau of Hearings and Appeals of the Social
Security Administration. 42 U.S.C. §§ 405(b)(1), 1383(c)(1) (1982 ed. and
Supp. III); 20 C.F.R. §§ 404.929, 416.1429, 422.201 et seq. (1986). Third,
the claimant may seek review by the Appeals Council. 20 C.F.R. §§
404.967 et seq., 416.1467 et seq. (1986). Once the claimant has exhausted
these administrative remedies, he may seek review in federal district court.
42 U.S.C. § 405(g). See generally Bowen v. City of New York,
476 U.S. 467,
472 (1986).
3
The hearing was held via telephone, with Jones’ consent, because of the
extraordinary circumstances presented by the COVID-19 pandemic.
2
Case: 23-30831 Document: 45-1 Page: 3 Date Filed: 07/12/2024
No. 23-30831
On October 6, 2021, the ALJ issued a decision denying Jones’ claims.
Jones timely appealed to the Appeals Council, which denied review on January 4, 2022.
On February 21, 2022, Jones sought judicial review of the Commissioner’s final administrative decision by filing suit in federal district court.
See 42 U.S.C. § 405(g). The magistrate judge, considering cross-motions for
summary judgment, recommended that Jones’ motion be denied and that the
Commissioner’s motion be granted. See
28 U.S.C. § 636(b). On September
26, 2023, the district judge overruled Jones’ objections, adopted the June 26,
2023 report and recommendation, denied Jones’ motion for summary judgment, granted the Commissioner’s cross-motion, and dismissed Jones’
claims with prejudice. Following entry of a final judgment, this appeal followed. Appellate jurisdiction is provided by
28 U.S.C. § 1291.
II.
Title II of the Act provides for the payment of insurance benefits to
persons who have contributed to the program and suffer from a physical or
mental disability. 42 U.S.C. § 423(a)(1)(D). Title XVI of the Act provides for
the payment of disability benefits to indigent persons under the SSI program.
42 U.S.C. § 1382(a). Both titles of the Act define “disability” 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); § 1382c(a)(3)(A);
see also Newton v. Apfel,
209 F.3d 448, 452 (5th Cir. 2000) (claimant must
have “a medically determinable physical or mental impairment lasting at
least twelve months that prevents [the claimant] from engaging in substantial
gainful activity”).
3
Case: 23-30831 Document: 45-1 Page: 4 Date Filed: 07/12/2024
No. 23-30831
As authorized by Congress, the Commissioner has promulgated
regulations establishing procedures for evaluating claims and determining
disability. See 42 U.S.C. §§ 405(a) and 1383(d)(1). Pursuant to
20 C.F.R.
§ 404.1520, a five-step sequential process is used to decide whether the
applicant is disabled. Newton,
209 F.3d at 453 (citing
20 C.F.R. § 404.1520).
Specifically, the Commissioner determines (1) whether the claimant
is performing substantial gainful activity (if so, he is not disabled); (2)
whether the claimant has a severe impairment (if not, he is not disabled); (3)
whether the claimant’s impairment meets or equals one of the listed
impairments set forth in Appendix 1 of the applicable regulations, see 20
C.F.R. pt. 404, subpt. P, app. 1 (if so, he is disabled; if not, the inquiry
proceeds to step four); (4) whether the claimant’s residual functional
capacity allows him to perform his past work (if so, he is not disabled); and,
(5) if not, whether the claimant, considering his residual functional capacity,
age, education, and work experience, is able to adjust to other work. See 20
C.F.R. §§ 404.1520(a)(4), 416.920(a)(4); Barnhart v. Thomas,
540 U.S. 20,
24–25 (2003).
The claimant bears the burden of proof for the first four steps and it
shifts to the Commissioner for the fifth step. Newton, 209 F.3d at 453. If the
Commissioner fulfills the burden of pointing out potential alternative
employment, the burden then shifts back to the claimant to prove that he
cannot perform the alternate work. Boyd v. Apfel,
239 F.3d 698, 705 (5th Cir.
2001) (citing Muse v. Sullivan,
925 F.2d 785, 789 (5th Cir. 1991)); Newton,
209 F.3d at 453.
III.
On appeal, Jones asserts three issues. We review a denial of social security benefits “only to ascertain whether (1) the final decision is supported
by substantial evidence and (2) whether the Commissioner used the proper
4
Case: 23-30831 Document: 45-1 Page: 5 Date Filed: 07/12/2024
No. 23-30831
legal standards to evaluate the evidence.” Newton, 209 F.3d at 452. “A finding of no substantial evidence is appropriate only if no credible evidentiary
choices or medical findings support the decision.” Boyd,
239 F.3d at 704
(quoting Harris v. Apfel,
209 F.3d 413, 417 (5th Cir. 2000)).
A. “Retroactive” Application of Listing 1.15
Jones’ first issue concerns step three of the five-step sequential
process. At step three, the ALJ considers whether the claimant’s
impairment meets or equals one of the listed impairments set forth in
Appendix 1 of the regulations, see 20 C.F.R. pt. 404, subpt. P, app. 1, Listing
of Impairments (“Listings”). The listed impairments are physical and mental
impairments that are considered disabling regardless of the claimant’s age,
education, or work experience. Sullivan v. Zebley, 493 U.S. 521, 529–30
(1990); 20 C.F.R. pt. 404, subpt. P, app. 1. Thus, if a claimant has one of the
listed impairments, and satisfies the requisite criteria of severity, the claimant
is disabled, and the sequential evaluation ends at step three.
20 C.F.R. §§
404.1520(a)(4)(iii), 416.920(a)(4)(iii); see also Zebley,
493 U.S. at 530; Bowen
v. Yuckert,
482 U.S. 137, 141 (1987).
In this instance, Jones argues that the ALJ should have evaluated his
claims utilizing Listing 1.04—the applicable musculoskeletal listing that was
in effect in October 2019, when Jones filed his applications for benefits, and
in March and November 2020, when his claims were considered and denied
at the agency level—rather than Listing 1.15, which became effective on April
2, 2021. See 20 C.F.R. pt. 404, subpt. P, app. 1. Because his claims were filed
more than a year prior to Listing 1.15’s effective date, and Listing 1.15 requires satisfaction of additional, more stringent criteria than Listing 1.04, 4
_____________________
4
Listing 1.15 addresses disorders of the skeletal spine resulting in compromise of a
nerve root(s). See 20 C.F.R. pt. 404, subpt. P, app. 1, § 1.15. The ALJ focused on the fact
that Jones did not meet the criteria of section D of the Listing, which requires:
5
Case: 23-30831 Document: 45-1 Page: 6 Date Filed: 07/12/2024
No. 23-30831
_____________________
1. A documented medical need for a walker, bilateral canes, or
bilateral crutches or a wheeled and seated mobility device involving the use
of both hands; or
2. An inability to use one upper extremity to independently
initiate, sustain, and complete work-related activities involving fine and
gross movements, and a documented medical need for a one-handed,
hand-held assistive device that requires the use of the other upper
extremity or a wheeled and seated mobility device involving the use of one
hand; or
3. An inability to use both upper extremities to the extent that
neither can be used to independently initiate, sustain, and complete work-related activities involving fine and gross movements.
20 C.F.R. pt. 404, subpt. P, app. 1, § 1.15(D) (effective April 2, 2021).
Applying Listing 1.15, the ALJ found that it was not met because “there was no
evidence to support the medical necessity of a hand-held assistive device nor an inability to
use both upper extremities.” Jones admits that he does not use a hand-held assistive device
and does not have the inability to use both upper extremities.
Listing 1.04 did not impose either of these requirements, outlining the criteria for
disorders of the spine as follows:
Disorders of the spine (e.g., herniated nucleus pulposus, spinal
arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease,
facet arthritis, vertebral fracture), resulting in compromise of a nerve root
(including the cauda equina) or the spinal cord. With:
A. 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).
or
B. Spinal arachnoiditis, confirmed by an operative note or
pathology report of tissue biopsy, or by appropriate
medically acceptable imaging, manifested by severe
burning or painful dysesthesia, resulting in the need for
changes in position or posture more than once every 2
hours;
or
6
Case: 23-30831 Document: 45-1 Page: 7 Date Filed: 07/12/2024
No. 23-30831
Jones maintains that the ALJ’s application of Listing 1.15 to his pending claim
was impermissibly retroactive and violated his constitutional due process and
equal protection rights.
Although we have not previously had occasion to do so, the D.C.,
Sixth, and Seventh Circuits have considered, and rejected, similar
retroactivity challenges to the application of amended Listings to pending
disability claims. See Cox v. Kijakazi, 77 F.4th 983 (D.C. Cir. 2023); Combs
v. Comm’r of Soc. Sec.,
459 F.3d 640 (6th Cir. 2006) (en banc); McCavitt v.
Kijakazi,
6 F.4th 692 (7th Cir. 2021). Guided by the Supreme Court’s
analysis in Landgraf v. USI Film Prod.,
511 U.S. 244, 280 (1994), these courts
have determined that the Social Security Administration’s (“SSA”)
application of amended Listings to pending disability claims is not properly
regarded as retroactive. 5
The Supreme Court’s analysis in Landgraf confirms that “[a] statute
does not operate ‘retrospectively’ merely because it is applied in a case
arising from conduct antedating [its] enactment[.]” 511 U.S. at 269. “Rather,
the court must ask whether the new provision attaches new legal
consequences to events completed before its enactment.”
Id. at 269–70.
Thus, a newly enacted statute or regulation has a retroactive effect when “it
would impair rights a party possessed when he acted, increase a party’s
_____________________
C. Lumbar spinal stenosis resulting in pseudoclaudication,
established by findings on appropriate medically
acceptable imaging, manifested by chronic nonradicular
pain and weakness, and resulting in inability to ambulate
effectively, as defined in 1.00B2b.
20 C.F.R. pt. 404, subpart P, app. 1, § 1.04(A) (effective Feb. 19, 2002 through April 1,
2021); see 66 Fed. Reg. 58,040,
2001 WL 1453802 (Nov. 19, 2001).
5
Congress has not granted the SSA authority to promulgate rules that are
retroactive within the meaning of Landgraf. See Cox, 77 F.4th at 991.
7
Case: 23-30831 Document: 45-1 Page: 8 Date Filed: 07/12/2024
No. 23-30831
liability for past conduct, or impose new duties with respect to transactions
already completed.” Id. at 280. In contrast, when a “new statute[] passed
after the events in suit . . . authorizes or affects the propriety of prospective
relief, application of the new provision is not retroactive.” Id. at 273.
Of course, “deciding when a statute operates ‘retroactively’ is not
always a simple or mechanical task.” Id. at 268. Instead, “[t]he conclusion
that a particular rule operates ‘retroactively’ comes at the end of a process of
judgment concerning the nature and extent of the change in the law and the
degree of connection between the operation of the new rule and a relevant
past event.” Id. at 270. “Familiar considerations of fair notice, reasonable
reliance, and settled expectations offer sound guidance” for this analysis. Id.
Having carefully examined the Cox, Combs, and McCavitt decisions,
as well as contrary determinations by the Ninth Circuit and the district court
for the Northern District of California,6 the district court was persuaded that
applying Listing 1.15 to Jones’ pending Social Security application does not
_____________________
6
Maines v. Colvin, 666 F. App’x 607, 608 (9th Cir. 2016), an unpublished opinion,
is not persuasive. Its determination that the relevant Listings were those in effect on the
date that the claimant’s application was filed is premised solely on
42 U.S.C. § 1382(c)(7)
(establishing the effective date of an application for benefits based on the later of the
application’s filing date and the date the applicant becomes eligible for benefits). The
decision also lacks any consideration of Landgraf’s retroactivity standards.
Kokal v. Massanari, 163 F. Supp. 2d 1122, 1130–33 (N.D. Cal. 2001), directed that
the claim for benefits be determined utilizing the obesity Listing in effect on the date that
the application was filed, reasoning that using the later, more demanding Listing would
have an adverse retroactive effect on the plaintiff’s substantive rights. Kokal is not
persuasive for the reasons stated in Combs: “The actual substantive right to benefits derives
from the Act’s definition of disability, not step three [the Listings].” Combs,
459 F.3d at
650 (emphasis added). “A change in step three requiring more detailed proof simply does
not attach new legal consequences to the act of filing a claim.”
Id. “The application of the
revised listing to claims filed before the change is accordingly not retroactive in a way that
would make the regulation beyond the authorized rulemaking power of the
Commissioner.”
Id.
8
Case: 23-30831 Document: 45-1 Page: 9 Date Filed: 07/12/2024
No. 23-30831
yield impermissible retroactive effects. Guided by the Landgraf principles
and the thorough analyses undertaken by our sister circuits, as well as the
district court judge and magistrate judge assigned to this matter, we agree.
The SSA’s application of the amended musculoskeletal listing, Listing 1.15,
to Jones’ pending claims does not deny fair notice, disrupt reasonable
reliance, or impair settled expectations.
A “regulation is not impermissibly retroactive” where “it does not
completely foreclose relief.” Perez Pimentel v. Mukasey, 530 F.3d 321, 326
(5th Cir. 2008). Under the five-step evaluation process, a claimant who does
not satisfy one of the Listings “still has the opportunity to show that his
impairment in fact prevents him from working.” Zebley,
493 U.S. at 535. As
noted in Cox, the Listings only “operate as a presumption of disability that
makes further inquiry unnecessary.”
77 F.4th at 992 (quoting Zebley,
493
U.S. at 532). “An applicant can still demonstrate disability at steps four and
five” such that a change to the Listings will not operate to foreclose
entitlement to disability benefits. Cox,
77 F.4th at 992 (citing Combs,
459 F.3d
at 656 (Gilman, J., concurring)).
Nor does the SSA’s application of updated Listings to pending
disability claims impair Jones’ vested rights, i.e., “legal rights that [he]
already possessed” when he filed his claim. Cox, 77 F.4th at 991. A claimant
“ha[s] no right to [disability] benefits at the time [he] files a claim” because
his “status ha[s] not yet been adjudicated.”
Id. at 992; see also McCavitt,
6
F.4th at 694 (“Rights under a statute may be said to vest on the date of a
judicial decision, for neither Congress nor an agency can alter a judgment
once one has been rendered. . . . But until then claims that rest on statutes or
regulations are contingent, and the rules may change.”) (citing Plaut v.
Spendthrift Farm, Inc.,
514 U.S. 211 (1995)); see also Brown v. Apfel,
192 F.3d
492, 497 (5th Cir. 1999) (recognizing that a claimant whose application has
9
Case: 23-30831 Document: 45-1 Page: 10 Date Filed: 07/12/2024
No. 23-30831
been denied has “no vested property or contract rights in social security
benefits”). 7
Jones suggests he anticipated that the prior rules would apply to his
disability claims. But a law that merely “upsets expectations based in prior
law” does not thereby operate retrospectively. Landgraf, 511 U.S. at 270.
“[A]nticipation alone does not create a vested right.” Cox,
77 F.4th at 992.
Furthermore, the SSA’s decision to revise its musculoskeletal
Listings was not unusual or unforeseeable. The SSA periodically updates its
Listings to reflect advances in medical knowledge, treatment, and methods
of evaluating impairments. The Commissioner amends the Listings through
notice-and-comment rulemaking to “reflect advances in medical knowledge,
treatment, and methods of evaluating . . . impairments.” See Revised Medical
Criteria for Determination of Disability, Musculoskeletal System and Related
Criteria, 66 Fed. Reg. 58,010,
2001 WL 1453802 (Nov. 19, 2001). The
revisions “help to ensure that determinations and decisions regarding
disability have a sound medical basis, that claimants receive equal treatment
through the use of specific criteria, and that people who are disabled can be
readily identified and awarded benefits.”
Id.
The governing regulations in force when Jones filed his claims in
October 2019 provided that the musculoskeletal Listings were set to expire
in January 2020. Indeed, the introduction to the Listings advised that they
would “‘no longer be effective on [January 27, 2020] unless extended by the
Commissioner or revised and promulgated again.’” See 20 C.F.R. pt. 404,
subpt. P, app. 1 (2019).
_____________________
7
In contrast, “the interest of an individual in continued receipt of [social security]
benefits is a statutorily created ‘property’ interest protected by the Fifth Amendment.”
Mathews v. Eldridge, 424 U.S. 319, 332 (1976) (emphasis added).
10
Case: 23-30831 Document: 45-1 Page: 11 Date Filed: 07/12/2024
No. 23-30831
And, in May 2018, almost a year and a half before Jones filed his
applications (asserting a February 2018 onset date) in October 2019, the SSA
announced its proposed new musculoskeletal rules in a Notice of Proposed
Rule Making (NPRM), which noted that the SSA had last updated its
musculoskeletal Listings in 2001 and was proposing revisions, in 2018, to
“reflect our adjudicative experience, advances in medical knowledge and
treatment of musculoskeletal disorders, and recommendations from medical
experts.” 83 Fed. Reg. 20646-01,
2018 WL 2086894 (May 7, 2018). Once the
SSA published its final rules in the Federal Register, the NPRM reported,
the new “final rules [would] include an effective date,” and the SSA would
“continue to use the current rules until that date.”
Id. at 20,656.
Relevant here, the May 2018 NPRM proposed removing Listing 1.04
and evaluating musculoskeletal impairments under new Listings 1.15 and
1.16. Id. at 20,647. Thus, because the NPRM was already “in effect when
[he] filed [his] claim,” in October 2019, it would have been unreasonable for
Jones to proceed on the assumption that the rule would remain static while
his claim was adjudicated. See Cox,
77 F.4th at 993.
Following the SSA’s consideration of public comments regarding the
new rules that it had proposed in May 2018, the final version of Listings 1.15
and 1.16 took effect on April 2, 2021. See Revised Medical Criteria for
Evaluating Musculoskeletal Disorders, 85 Fed. Reg. 78164-01,
2020 WL
7056412 (Dec. 3, 2020). And the December 2020 publication of the new SSA
rules announced: “When the final rules become effective, we will apply them
to new applications filed on or after the effective date of the rules, and to
claims that are pending on or after the effective date.”
Id. (emphasis added).
The SSA’s decision to apply the new musculoskeletal impairment
Listings to pending claims also was not unusual. To the contrary, the SSA’s
usual practice is to apply amended Listings to claims that are pending at any
11
Case: 23-30831 Document: 45-1 Page: 12 Date Filed: 07/12/2024
No. 23-30831
stage of the administrative review process, as well as to new claims that are
filed after the amendment’s effective date. See, e.g., 66 Fed. Reg. at 58,011
(Nov. 19, 2001); 80 Fed. Reg. 19,525 (Apr. 13, 2015);
76 Fed. Reg. 19,692
(Apr. 8, 2011).
Jones also alludes to denials of due process and equal protection, citing
the Fourteenth Amendment. The Fourteenth Amendment, however,
applies to the states, not the federal government. See, e.g., Douglass v. Nipon
Yusen Kabushiki Kaisha, 46 F.4th 226, 236 (5th Cir. 2022) (en banc), cert.
denied,
143 S. Ct. 1021 (2023). And Jones does not develop any constitutional
argument independent of his contention that the ALJ’s utilization of the
amended Listings in determining his claims was impermissibly retroactive.
Although Jones complains that a change in rules may result in otherwise
similarly situated persons’ being treated differently based on timing, such
consequences are inevitable.
And, even where equal protection principles apply, unless a “suspect
class [] or a fundamental right is implicated, the classification need only bear
a rational relationship to a legitimate governmental purpose.” Big Tyme Invs.,
L.L.C. v. Edwards, 985 F.3d 456, 468 (5th Cir. 2021). Jones has not
demonstrated that the SSA’s stated rationale for applying updated Listings
to pending claims does not reflect legitimate government interests.
Finally, the Constitution does not establish a general prohibition
against revision of federal agencies’ rules. McCavitt, 6 F.4th at 694
(Constitution does not prevent SSA from applying amended Listings to
pending claims). Given the foregoing, the Commissioner did not err in
evaluating Jones’ claims utilizing Listing 1.15, which became effective on
April 2, 2021, rather than its predecessor, Listing 1.04.
12
Case: 23-30831 Document: 45-1 Page: 13 Date Filed: 07/12/2024
No. 23-30831
B. Medical Equivalency Assessment
Jones’ second issue on appeal also involves step three. Specifically,
he maintains that the ALJ’s determination is not supported by substantial
evidence because it lacks an evidentiary analysis of whether Jones’ combined
impairments are the medical equivalent of Listing 1.15. Indeed, Jones
contends: “the ALJ offered a wholly conclusory statement supported by no
evidence.”
Like the district court, we disagree. An impairment is medically
equivalent to a listed impairment if it is at least equal in severity and duration
to the criteria of any listed impairment. See 20 C.F.R. § 404.1526(a) (“Your
impairment is medically equivalent to a listed impairment in appendix 1 if it
is at least equal in severity and duration to the criteria of any listed
impairment.”);
20 C.F.R. § 416.926 (impairment is medically equivalent to
a listing if medical findings related to the impairment are at least of equal
medical significance). To demonstrate such equivalency, a claimant “must
present medical findings equal in severity to all the criteria for the one most
similar listed impairment.” Zebley,
493 U.S. at 531; Selders v. Sullivan,
914
F.2d 614, 619 (5th Cir. 1990).
Regarding equivalence, the ALJ explained:
[N]o treating or examining physician has mentioned findings
equivalent in severity to the criteria of any listed impairment. In
reaching this conclusion, the undersigned has also considered the
opinions of the State agency medical consultants who evaluated this
issue at the initial and reconsideration levels of the administrative
review process.
Notably, in the paragraph that immediately precedes this statement, the
ALJ’s decision explains (on pages 4 and 5) that Jones did not “meet” the
functional criteria of Listing 1.15 or 1.16 because there was no evidence to
support the medical necessity of a hand-held assistive device, or an inability
13
Case: 23-30831 Document: 45-1 Page: 14 Date Filed: 07/12/2024
No. 23-30831
to use both upper extremities, that are required by Listings 1.15(D) and
1.16(D). Considering these provisions together, along with additional factual
information set forth in the decision, the ALJ, contrary to Jones’ assertion,
sufficiently articulated the evidentiary bases of his equivalency finding. In
short, the ALJ’s finding was based on the absence of the equivalent functional
impact to what is specified in part D of the relevant Listings.
Jones maintains, however, that the ALJ was compelled to find that his
condition medically equaled Listing 1.15 based on his MRI examination
findings, as well as the consultive examiner’s functional assessments,
observations, and tests. Yet Jones has not demonstrated how these clinical
signs, his symptoms, and his limitations can be considered to medically equal
the relevant criteria in Listing 1.15(D): a documented need for a walker or
two crutches, an inability to use one upper extremity along with a
documented need for a one-handed assistive device, or an inability to use
both upper extremities.
It is Jones’ burden to establish that his impairments medically equal a
listed impairment, and he has not done so. Thus, substantial evidence
supports the ALJ’s conclusion that Jones’ impairments do not meet or equal
Listing 1.15.
C. Impact of Treatment “Interruptions” on Ability to Work
Jones’ third issue on appeal challenges the sufficiency of the ALJ’s
consideration of his contention that interruptions to work schedules,
routines, and attendance associated with his previous and ongoing medical
treatment—including numerous epidural injections, nerve blocks, leftshoulder surgery, and numerous physical therapy appointments—prevented
him from sustained, full-time gainful employment. In support of his
assertion, Jones emphasizes the SSA’s directive—in Social Security Ruling
96-8p—that residual functional capacity assessments “must be based on all
14
Case: 23-30831 Document: 45-1 Page: 15 Date Filed: 07/12/2024
No. 23-30831
of the relevant evidence in the case record,” which includes “[t]he effects of
treatment, including limitations or restrictions imposed by the mechanics of
treatment (e.g., frequency of treatment, duration, disruption to routine, side
effects of medication).” See Title II and XVI: Assessing Residual Functional
Capacity in Initial Claims,” SSR 96-8p, 1996 WL 374184, at *5 (July 2, 1996).
Jones also cites our decisions recognizing that “if an individual’s
medical treatment significantly interrupts the ability to perform a normal,
eight-hour work day, [] the ALJ must determine whether the effect of
treatment precludes the claimant from engaging in gainful activity.” Newton,
209 F.3d at 459 (citing Epps v. Harris,
624 F.2d 1267, 1273 (5th Cir. 1980)).
Finally, he cites Watson v. Barnhart,
288 F.3d 212 (5th Cir. 2002), for the
proposition that this court “has found error where the ALJ failed to
determine whether a condition precluded a person from maintaining, not just
engaging in, substantial gainful employment.”
The district court found Jones’ reliance on Epps, Newton, and Watson
unavailing. We do too. Our later cases have clarified that “nothing in Watson
suggests that the ALJ must make a specific finding regarding the claimant’s
ability to maintain employment in every case.” Perez v. Barnhart, 415 F.3d
457, 465 (5th Cir. 2005) (quoting Frank v. Barnhart,
326 F.3d 618, 619 (5th
Cir. 2003)). Rather, “Watson requires a situation in which, by its nature, the
claimant’s physical ailment waxes and wanes in its manifestation of disabling
symptoms.” Perez,
415 F.3d at 465. And the claimant’s evidence must be
“such that his ability to maintain employment was not adequately taken into
account in his RFC [residual functional capacity] determination.”
Id. at 464–
65. A witness’ testimony that a claimant had “good days and bad days,” and
that the claimant’s pain varies in intensity or “wax[es] and wane[s] between
epidural injections,” does not meet the requisite standard.
Id. at 465–66
(“Such . . . assertions [are] simply not sufficient to bring [a claimant’s] case
within the [envisioned] realm of disablement. . . . It is axiomatic that the pain
15
Case: 23-30831 Document: 45-1 Page: 16 Date Filed: 07/12/2024
No. 23-30831
from any type of ailment will vary in intensity, especially the farther one gets
from the treatment that alleviates the pain.”). Jones, like the claimant in
Perez, has not made the necessary showing.
Epps and Newton also are materially distinguishable. In Epps, the
Secretary’s decision regarding Epps’ ability to engage in substantial gainful
employment was not supported by substantial evidence because it did not
properly take into consideration the significant interruptions that the
treatment regimen required for Epps’ back injury—traction three or four
times daily to alleviate pain—would have on a normal, eight-hour work day.
624 F.2d at 1273. And, in Newton, the ALJ was to consider, on remand, the
effect of Newton’s frequent doctor and hospital visits during the relevant
period, as well as evidence that her illness and on-going treatment
occasionally caused her to sleep for several hours during the day, on her
ability to remain gainfully employed during the period of claimed disability.
209 F.3d at 459. Unlike the claimants in Epps and Newton, Jones has not
shown that his treatment requirements adversely affected his ability to work
on a sustained basis. See SSR 96-8p,
1996 WL 374184, at *5 (“RFC is an
assessment of an individual’s ability to do sustained work-related physical
and mental activities in a work setting on a regular and continuing basis,” that
is, “8 hours a day, for 5 days a week, or an equivalent work schedule.”); see
also
20 C.F.R. §§ 404.1545, 416.945 (determine residual functional capacity
for work activity on a regular and continuing basis).
Jones emphasizes the vocational expert’s testimony, during the
August 5, 2021 hearing, that having to miss all or part of a workday 38 times
over a 20-month period, “in addition to ordinary absences due to illness,”
would have prevented Jones from sustaining each of the jobs on which the
ALJ relied in concluding that there are jobs existing in the national economy
that Jones could perform. Pointing to his physical therapy appointments,
16
Case: 23-30831 Document: 45-1 Page: 17 Date Filed: 07/12/2024
No. 23-30831
Jones asserts that he would have had to miss all or part of a workday at least
38 times over 20 months since his disability onset date.
But, Jones, who bears the burden of proof, has not shown this to
actually be true. As both the district judge and magistrate judge concluded,
nothing in the administrative record demonstrates how much work time, if
any, that Jones necessarily would have missed in order to attend 2–3 physical
therapy appointments per week. The same is true of Jones’ other medical
appointments and even the shoulder surgery Jones underwent on June 29,
2020. Finally, whereas Jones’ medical records reflect that he ultimately may
undergo back and neck surgery, the mere possibility of surgery at some
undetermined future time does not automatically render him presently
incapable of sustained employment. Accordingly, the ALJ’s assessment of
Jones’ residual functional capacity and ability to do “other work” is
supported by substantial evidence and utilized proper legal standards.
IV.
Having determined that the Commissioner’s decision utilized proper
legal standards and is supported by substantial evidence, the judgment of the
district court is AFFIRMED.
17
