     12-3343-cv
     Cichocki v. Astrue



1                         United States Court of Appeals
2                               FOR THE SECOND CIRCUIT
3
4                                      August Term 2012
5
6              (Argued: April 26, 2013                 Decided: September 5, 2013)
7
8                                       No. 12-3343-cv
9                           _____________________________________
10
11                                    MELANIE CICHOCKI,
12                                    Plaintiff-Appellant,
13
14                                              -v.-
15
16                    MICHAEL J. ASTRUE, Commissioner of Social Security
17                                   Defendant-Appellee.
18                         _____________________________________
19
20   Before:          CALABRESI, LIVINGSTON, and LYNCH, Circuit Judges.
21
22           Appeal from the judgment of the United States District Court for the Western
23   District of New York (Skretny, J.), entered July 30, 2012, granting defendant’s motion
24   on the pleadings and dismissing Plaintiff-Appellant’s complaint challenging the denial
25   of disability insurance benefits under Title II of the Social Security Act, 42 U.S.C. § 401
26   et seq. We hold that the failure to conduct an explicit function-by-function analysis at
27   Step Four of a disability determination is not a per se ground for remand. Because the
28   Administrative Law Judge’s (“ALJ”) Step Four analysis provides a basis for meaningful
29   judicial review, applies the correct legal standards, and because substantial evidence
30   supports the ALJ’s residual functional capacity determination, we AFFIRM the
31   judgment below.
32

33                                     JAYA A. SHURTLIFF, Law Offices of Kenneth Hiller,
34                                     PLLC, Amherst, New York, for Plaintiff-Appellant.
35
36                                     DENNIS J. CANNING, Special Assistant U.S.
37                                     Attorney (STEPHEN P. CONTE, Regional Chief
38                                     Counsel, Social Security Administration, on the
39                                     brief) for WILLIAM J. HOCHUL, JR., United States
40                                     Attorney for the Western District of New York, for
41                                     Defendant-Appellee.
1    PER CURIAM

2          Plaintiff-Appellant Melanie Cichocki (“Cichocki”) appeals from a judgment of the

3    United States District Court for the Western District of New York (Skretny, J.),

4    entered July 30, 2012, dismissing her complaint challenging the denial of disability

5    insurance benefits under Title II of the Social Security Act (the “SSA” or “Act”), 42

6    U.S.C. § 401 et seq. The district court granted the motion of defendant Commissioner

7    of Social Security (“Commissioner”) for judgment on the pleadings, finding substantial

8    evidence to support the Commissioner’s denial of benefits, which was on the ground

9    that Cichocki was not disabled within the meaning of the Act. On appeal, Cichocki

10   argues, inter alia, that the Administrative Law Judge (“ALJ”) who reviewed her claim,

11   and whose decision became that of the Commissioner, erred by failing explicitly to

12   engage in a function-by-function assessment of her limitations and restrictions as part

13   of his residual functional capacity (“RFC”) analysis at Step Four.1 For the reasons


           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 whether the claimant is presently
           employed. If the claimant is not employed, 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 perform her past relevant work. Finally,
           if the claimant is unable to perform her past relevant work, the Secretary

                                               2
1    stated below, we conclude that the failure explicitly to engage in such a function-by-

2    function analysis does not constitute a per se error requiring remand. Because the

3    ALJ’s Step Four analysis of Cichocki’s limitations and restrictions provides an

4    adequate basis for meaningful judicial review, the ALJ’s determination applies the

5    correct legal standards, and because it is supported by substantial evidence, remand

6    is not required. In an accompanying summary order filed today, we reject Cichocki’s

7    remaining arguments. Accordingly, we affirm the judgment of the district court.

 8                                        BACKGROUND
 9
10         Cichocki, who has a high school education, was 37 years old when she filed for

11   disability insurance benefits on April 7, 2009. After the Commissioner denied her

12   application, she filed a written request for a hearing, which was held on January 6,

13   2011, and at which Cichocki, represented by counsel, testified. Cichocki worked from

14   1995 to 2001 as a nurse’s aide or home health aide but stated at the hearing that she

15   could no longer lawfully work in this capacity.2 From 2002 to 2008, Cichocki held

16   various positions, working as a supermarket cashier and bakery clerk, and also

17   working for a janitorial company and a temporary employment agency. Cichocki has



           determines whether the claimant is capable of performing any other
           work. If the claimant satisfies her burden of proving the requirements in
           the first four steps, the burden then shifts 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).
           2
             Cichocki 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.

                                                3
1    no record of employment since October 20, 2008, when she suffered a seizure at her

2    Buffalo, New York home and received emergency care at Buffalo’s Mercy Hospital

3    before returning home later that day.

4          Based on his determination that Cichocki was not disabled, as defined in the

5    SSA, the ALJ issued a decision denying Cichocki’s claim in May 2011. Employing the

6    five-step evaluation process set out in 20 C.F.R. § 404.1520(a)(4), the ALJ found at

7    Step One that Cichocki was not engaged in substantial gainful activity and, at Step

8    Two, that she suffered from impairments, including a seizure disorder, back pain, and

9    bipolar disorder. The ALJ determined that Cichocki had severe impairments, as

10   defined in the Act, consisting of a history of seizure activity and “mild degenerative disc

11   disease of the lumbar spine and mild facet arthropathy.”            He determined that

12   Cichocki’s bipolar disorder did not constitute a severe impairment under the SSA

13   because Cichocki had experienced no episodes of decompensation of extended duration

14   and had only mild limitations as to her activities of daily living and social functioning,

15   as well as concentration, persistence, or pace. See 20 C.F.R. § 404.1520a(d)(1).

16         As relevant here, the ALJ found at Step Three that Cichocki’s impairments did

17   not meet or medically equal the specified criteria of any listed impairment, so that a

18   finding of disability was not permitted at Step Three. As a result, the ALJ undertook

19   a Step Four assessment, which focuses on whether, despite a disability claimant’s

20   severe impairments, the claimant “possesses the residual functional capacity to

21   perform her past relevant work.” Perez, 77 F.3d at 46.

22

                                                 4
1          At Step Four, the ALJ determined that Cichocki was able to perform light work

2    as defined in 20 C.F.R. § 404.1567(b), that she could occasionally be exposed to extreme

3    heat or cold, but that she could “never work at unprotected heights or around

4    mechanical parts, and never operate a motor vehicle in a work environment.” The

5    ALJ’s assessment did not explicitly analyze Cichocki’s work-related abilities on a

6    function-by-function basis. See SSR 96-8p, 1996 WL 374184, at *1 (July 2, 1996).

7    Discussing the limitations relied upon by Cichocki, however, the ALJ noted that

8    Cichocki’s seizures “are transient in nature and by November 2010 were considered

9    nearly completely controlled by medication.” The ALJ referenced the report of one of

10   Cichocki’s treating physicians, Dr. McLean, who “found the claimant able to lift/carry

11   20 pounds continuously and up to 50 pounds occasionally, sit for six hours, stand for

12   four hours and walk for three hours in an eight-hour workday,” as well as “occasionally

13   climb stairs and ramps, stoop, kneel, and crouch.” The ALJ also recited Cichocki’s own

14   observations as to her daily activities:

15         In a Daily Activities Questionnaire the claimant said that her typical
16         activities included doing “whatever chores needed to be done that day,”
17         walking her dogs, going to scheduled appointments, watching television,
18         reading, preparing meals, cleaning her house, doing laundry, and
19         weeding and other yard work. She enjoyed bird watching. She said she
20         got out often, but did not drive due to seizure activity that was still under
21         investigation. With regard to exertional ability, the claimant stated that
22         she had no difficulties kneeling, climbing stairs, standing, walking or
23         sitting.

24   Given the ALJ’s conclusion that Cichocki could perform light work with the restrictions

25   he specified, the ALJ found that Cichocki would be capable of performing two of her

26   past jobs including, as relevant here, the job of bakery clerk, and was thus not disabled.

                                                 5
1          The Appeals Council denied Cichocki’s request for review on August 11, 2011.

2    On September 8, 2011, Cichocki commenced this action.                In granting the

3    Commissioner’s motion for judgment on the pleadings and dismissing the case, the

4    district court held that substantial evidence supports the ALJ’s determination that

5    Cichocki is not disabled within the meaning of the Act. Cichocki v. Astrue, No. 11 Civ.

6    755, 2012 WL 3096428 (W.D.N.Y. July 30, 2012). Relevant here, the district court held

7    that remand was not required even though the ALJ did not conduct a

8    function-by-function analysis as part of his Step Four RFC determination. Cichocki

 9   subsequently filed this timely appeal.
10
11                                        DISCUSSION
12
13         “When deciding an appeal from a denial of disability benefits, we focus on the

14   administrative ruling rather than the district court’s opinion.” Kohler v. Astrue, 546

15   F.3d 260, 264-65 (2d Cir. 2008) (quoting Curry v. Apfel, 209 F.3d 117, 122 (2d Cir.

16   2000)). We “conduct a plenary review of the administrative record to determine if there

17   is substantial evidence, considering the record as a whole, to support the

18   Commissioner’s decision and if the correct legal standards have been applied.” Id. at

19   265 (quoting Shaw v. Carter, 221 F.3d 126, 131 (2d Cir. 2000)); see also 42 U.S.C.

20   § 405(g) (“The findings of the Commissioner of Social Security as to any fact, if

21   supported by substantial evidence, shall be conclusive . . . .”). “The claimant has the

22   general burden of proving that he or she has a disability within the meaning of the Act,

23   and bears the burden of proving his or her case at steps one through four of the

24   sequential five-step framework established in the SSA regulations.” Burgess v. Astrue,

25   537 F.3d 117, 128 (2d Cir. 2008) (internal quotation marks and citation omitted).

                                                6
1          As relevant here, Cichocki argues that the ALJ’s failure to conduct an explicit

2    function-by-function analysis in concluding, at Step Four, that she was able to return

3    to her past work as a bakery clerk is a per se error requiring remand. For the following

4    reasons, we disagree.

5          A claimant is disabled and entitled to disability insurance benefits if she is

6    unable to “to engage in any substantial gainful activity by reason of any medically

7    determinable physical or mental impairment which can be expected to result in death

8    or which has lasted or can be expected to last for a continuous period of not less than

9    12 months.” 42 U.S.C. § 423(d)(1)(A). If a claimant has a severe impairment limiting

10   “her mental or physical ability to do basic work activities” but not constituting a listed

11   impairment in Appendix 1 of the Social Security regulations, the Commissioner asks,

12   at Step Four, “whether, despite the claimant’s severe impairment, he or she has

13   residual functional capacity to perform . . . her past work.” Shaw v. Chater, 221 F.3d

14   126, 132 (2d Cir. 2000) (citing DeChirico v. Callahan, 134 F.3d 1177, 1179-80 (2d Cir.

15   1998)).   Social Security Ruling 96-8p provides that an individual’s RFC “is an

16   assessment of an individual’s ability to do sustained work-related physical and mental

17   activities in a work setting on a regular and continuing basis.” SSR 96-8p, 1996 WL

18   374184, at *1 (July 2, 1996).

19         Before an ALJ classifies a claimant’s RFC based on exertional levels of work (i.e.,

20   whether the claimant can perform sedentary, light, medium, heavy, or very heavy

21   work), he “must first identify the individual’s functional limitations or restrictions and

22   assess his or her work-related abilities on a function-by-function basis, including the

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

2    The functions described in paragraphs (b), (c), and (d) of 20 CFR §§ 404.1545 and

3    416.945 include physical abilities such as sitting, standing, walking, lifting, carrying,

4    pushing, pulling, or other physical functions; mental abilities such as understanding,

5    remembering, carrying out instructions, and responding appropriately to supervision;

6    and other abilities that may be affected by impairments, such as seeing, hearing, and

7    the ability to tolerate environmental factors. See 20 C.F.R. §§ 404.1545, 416.945; SSR

8    96-8p, 1996 WL 374184, at *5-6. Social Security Ruling 96-8p cautions that “a failure

9    to first make a function-by-function assessment of the individual’s limitations or

10   restrictions could result in the adjudicator overlooking some of an individual’s

11   limitations or restrictions,” which “could lead to an incorrect use of an exertional

12   category to find that the individual is able to do past relevant work” and “an erroneous

13   finding that the individual is not disabled.” 1996 WL 374184, at *4.

14         We have not yet declared whether an ALJ’s failure to conduct an explicit

15   function-by-function analysis at Step Four regarding the numerous illustrative

16   functions listed in paragraphs (b), (c), and (d) is a per se error requiring remand. See

17   Knighton v. Astrue 861 F. Supp. 2d 59, 66 (N.D.N.Y. 2012) (“The courts are divided as

18   to whether the failure to provide a function-by-function analysis is per se grounds for

19   remand or whether it may constitute harmless error.”); Drennen v. Astrue, No. 10 Civ.

20   6007, 2012 WL 42496, at *4 (W.D.N.Y. Jan. 9, 2012) (noting that while the Second

21   Circuit “has yet to address the obligation of an ALJ to conduct a function-by-function

22   analysis before expressing the RFC in terms of exertional levels of work,” at least five

                                                8
1    circuit courts “have found that an ALJ is not required to discuss each factor in [his]

2    opinion”). We have said more generally (and now repeat) that where we are “unable

3    to fathom the ALJ’s rationale in relation to evidence in the record, especially where

4    credibility determinations and inference drawing is required of the ALJ,” we will not

5    “hesitate to remand for further findings or a clearer explanation for the decision.”

6    Berry v. Schweiker, 675 F.2d 464, 469 (2d Cir. 1982). The automatic remand rule urged

7    by Cichocki, however, goes far beyond this sensible practice. As already noted, the

8    functions in paragraphs (b), (c), and (d) of 20 CFR §§ 404.1545 and 416.945 are only

9    illustrative of the functions potentially relevant to an RFC assessment. Adopting a per

10   se rule that these functions must be explicitly addressed on pain of remand (no matter

11   how irrelevant or uncontested in the circumstances of a particular case) would thus not

12   necessarily ensure that all relevant functions are considered. Any such rule in this

13   Circuit, moreover, would put us at odds with sister Circuits who have recognized that

14   an ALJ need not expressly discuss a claimant’s capacity to perform each work-related

15   function before classifying the claimant’s RFC in exertional terms.

16         We decline to adopt a per se rule. The relevant inquiry is whether the ALJ

17   applied the correct legal standards and whether the ALJ’s determination is supported

18   by substantial evidence. Where an ALJ’s analysis at Step Four regarding a claimant’s

19   functional limitations and restrictions affords an adequate basis for meaningful judicial

20   review, applies the proper legal standards, and is supported by substantial evidence

21   such that additional analysis would be unnecessary or superfluous, we agree with our

22   sister Circuits that remand is not necessary merely because an explicit function-by-

                                                9
1    function analysis was not performed. See Zatz v. Astrue, 346 F. App’x 107, 111 (7th

2    Cir. 2009) (“[A]n ALJ need not provide superfluous analysis of irrelevant limitations

3    or relevant limitations about which there is no conflicting medical evidence.”); Bayliss

4    v. Barnhart, 427 F.3d 1211, 1217 (9th Cir. 2005) (“Preparing a function-by-function

5    analysis for medical conditions or impairments that the ALJ found neither credible nor

6    supported by the record is unnecessary.”); Depover v. Barnhart, 349 F.3d 563, 567-68

7    (8th Cir. 2003) (“[W]e believe that the ALJ implicitly found that Mr. Depover was not

8    limited in these functions, and in this instance we do not see any reason to remand to

9    make the findings explicit.”); Delgado v. Comm’r of Soc. Sec., 30 F. App’x 542, 547 (6th

10   Cir. 2002) (“Although SSR 96–8p requires a ‘function-by-function evaluation’ to

11   determine a claimant’s RFC, case law does not require the ALJ to discuss those

12   capacities for which no limitation is alleged.”). Remand may be appropriate, however,

13   where an ALJ fails to assess a claimant’s capacity to perform relevant functions,

14   despite contradictory evidence in the record, or where other inadequacies in the ALJ’s

15   analysis frustrate meaningful review. See Myers v. Apfel, 238 F.3d 617, 621 (5th Cir.

16   2001) (remanding where “the ALJ failed to resolve the inconsistencies in the evidence”

17   regarding claimant’s residual functional capacity).

18         Here, the ALJ’s decision did not include an explicit function-by-function analysis

19   of all possible limitations, but did address all relevant limitations. Moreover, the ALJ’s

20   conclusion is supported by substantial evidence. In determining Cichocki’s physical

21   limitations, the ALJ cited Dr. MacLean’s medical assessment for the proposition that

22   Cichocki can “lift/carry 20 pounds continuously and up to 50 pounds occasionally, sit

                                                10
1    for six hours, stand for four hours and walk for three hours in an eight-hour workday.”

2    The ALJ also noted that Cichocki can occasionally stoop, kneel, crouch, and climb

3    stairs and ramps; can occasionally be exposed to temperature extremes; and could

4    never crawl, climb ladders or scaffolds, balance, operate a motor vehicle, or work

5    around unprotected heights or moving mechanical parts. The ALJ also relied on

6    Cichocki’s Daily Activities Questionnaire on which she indicated that she performed

7    numerous daily tasks, such as walking her dogs and cleaning her house, that are

8    consistent with a residual capacity to perform light work. He addressed the impact of

9    Cichocki’s seizure disorder, noting that it was “well controlled on medication.”

10          Based on a thorough examination of the evidence of Cichocki’s relevant

11   limitations and restrictions, the ALJ concluded that Cichocki’s impairments did not

12   preclude her from light work, subject to specified modifications.3 This determination

13   applied the proper legal standards and was supported by substantial evidence. That

14   the   ALJ     did   not   explicitly    make     additional     superfluous     findings     on   a

15   function-by-function basis is not a ground for remand.




            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 such 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.

                                                     11
1                               CONCLUSION

2   For the foregoing reasons, we AFFIRM the judgment of the district court.




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