Disability Law Blog

Howard v. Barnhart, No. 03-7094, __ F.3d __ (10th Cir. July 29, 2004)

The Tenth Circuit, in an opinion by Judge Paul J. Kelly, Jr., provides an object lesson in harmless error analysis. Which is to say, if the ALJ's errors don't appear to change the outcome, you lose:

We agree that the lack of analysis accompanying the ALJ's RFC determination is troubling; we have urged ALJs to include reasoning in their decisions to make appellate review not only possible but meaningful. See Barnett v. Apfel, 231 F.3d 687, 689 (10th Cir. 2000). However, our careful review of the record on appeal in light of the deferential appellate standard leads us to conclude that substantial evidence in the record supports the ALJ's RFC determination in this particular case.

The Court also provides a reminder about the burden of proof at step 5 of the SEP:

We disagree with claimant's implicit argument that the agency, not the claimant, has the burden to provide evidence of claimant's functional limitations. As a recent Social Security final rule makes clear, the agency's burden at step five does not include the burden to provide medical evidence in support of an RFC assessment, unless the ALJ's duty to further develop the record is triggered. 68 F.R. 51153, 51155 (2003); cf. Hawkins v. Chater, 113 F.3d 1162 (10th Cir. 1997) (discussing development of the record).

Harris v. Barnhart, 356 F.3d 926 (8th Cir. 2004)

Nothing groundbreaking in this opinion by Circuit Judge Steven M. Colloton, affirming the ALJ's denial of benefits. The most interesting and significant part of the opinion relates to the burden of persuasion at step 5, discussed in Footnote 2:

"Our cases are inconsistent on where the burden of persuasion lies during step five of the Commissioner's process. Compare Young v. Apfel, 221 F.3d 1065, 1069 n.5 (8th Cir. 2000) ("burden of production" shifts to Commissioner, but "burden of persuasion" remains with claimant) and Roth v. Shalala, 45 F.3d 279, 282 (8th Cir. 1995) (same) with Griffon v. Bowen, 856 F.2d 1150, 1153-54 (8th Cir. 1988) ("burden of persuasion" shifts to Secretary). See also, e.g., Bowen v. Yuckert, 482 U.S. at 146 n.5 ("the Secretary bears the burden of proof at step five"); Singh v. Apfel, 222 F.3d 448, 451 (8th Cir. 2000) (stating that "burden of proof" shifts to Commissioner, without specifying burden of "production" or "persuasion"); James, Burdens of Proof, 47 Va. L. Rev. 51, 51 (1961) ("burden of proof" is used in our law to refer to "two separate and quite different concepts": the burden of persuasion and the burden of production) (quoted in Omaha Indian Tribe v. Wilson, 575 F.2d 622,633 n.22 (8th Cir. 1978), rev'd on other grounds, 442 U.S. 653 (1979)).

The Commissioner recently promulgated a new rule designed to clarify that although a burden of production shifts to the Commissioner at step five, the ultimate burden of persuasion remains with the claimant. 68 Fed. Reg. 51153, 51155 (Aug. 26, 2003). We need not opine regarding the location of the burden of persuasion prior to the new rule, because we conclude that even if the Commissioner bore that burden at step five, there is substantial evidence to support her decision."

The Court was unimpressed with a post-ALJ-decision attack on the crediblity of the ME who testifid at the hearing, and signaled that development of the record prior to the ALJ decision is mandatory:

It is well settled that an ALJ may consider the opinion of an independent medical advisor as one factor in determining the nature and severity of a claimant's impairment. See, e.g., Freeman v. Apfel, 208 F.3d 689, 692 (8th Cir. 2000); 20 C.F.R. §§ 404.1527(f)(2)(iii), 416.927(f)(2). Harris's counsel did not question the qualifications or competence of the medical advisor during the administrative hearing when there was an opportunity to make a record on such things, and we are not sympathetic to an effort to impugn the advisor's credibility with collateral materials during judicial review.