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).

Forte v. Barnhart, No. 03-2111, __ F.3d __ (8th Cir. July 29, 2004)

The Eighth Circuit, in an opinion by Judge Theodore McMillian, affirms an ALJ decision in which appellant had argued that the ALJ (1) improperly discounted allegations of disabling pain, (2) failed to give appropriate weight to the treating physician's opinion (3) did not consider his obesity in assessing his residual functional capacity (RFC) and (4) failed to correctly frame a hypothetical question to the VE:

This court has stated that “‘[a]n arguable deficiency in opinion-writing technique is not a sufficient reason for setting aside an administrative finding where . . . the deficiency probably had no practical effect on the outcome of the case.’” Id. (quoting Benskin v. Bowen, 830 F.2d 878, 883 (8th Cir. 1987)).

Seems like the ALJ made enough of an effort to explain himself to pass muster, and the Court was unconvinced that had error occurred, it would have affected the outcome. For example, the ALJ "reviewed the progress notes and pointed out, among other things, that in June and August 1999, Dr. Ketcham had reported that Forte was walking six to eight miles a week, had denied that pain was radiating down his legs, and had not displayed chronic pain behavior."

Food Pyramid Not Responsible for Obesity in US

Via Reuters:  In the Journal of the American Dietetic Association, Dr. Jeanne P. Goldberg and her colleagues argue that most Americans do not follow the United States Department of Agriculture (USDA) food guide pzyramid, so it cannot be blamed for obesity:

"I only wish the pyramid were powerful enough to have an influence on the American diet," Goldberg told Reuters Health. "Because if it did, we would be eating extremely well."

First released in 1992, the latest edition of the pyramid recommends that Americans eat 6 to 11 servings of carbohydrates a day, or the equivalent of 6 to 11 slices of bread. It suggests that people eat between 2 and 4 servings of fruit, between 3 and 5 servings of vegetables, 2 to 3 servings of meat and other protein sources, and up to three daily servings of dairy products.

Medicare Now Considers Obesity to be an Illness

From USAToday: Tommy Thompson, Secretary of Health & Human Services, announced at a Senate hearing yesterday that Medicare will remove barriers to covering anti-obesity treatments after 40 years of saying fat was not an illness and not covered.

Previously, Medicare's Coverage Issues Manual said obesity was not an illness, and by law, only illnesses and injury could be covered. The new HHS language stops short of calling obesity a disease, which would have required Medicare to pay for treatments. But the change removes the reference to obesity not being an illness. That means approval of treatments is possible, but only if scientific research proves them effective and a national Medicare panel agrees. So coverage won't change immediately. HHS officials say they can't predict what this will cost Medicare because they don't know yet what it will be asked to cover.