the ALJ was entitled to reject the treating physician’s opinion but the ALJ impermissibly relied on his own medical opinions to develop his factual finding
How later courts described this case
- the ALJ was entitled to reject the treating physician’s opinion but the ALJ impermissibly relied on his own medical opinions to develop his factual finding
- summarizing 20 C.F.R. § 404.1520(b)-(f)
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
MICHAEL IRWIN WEINBERG, §
§
Plaintiff, §
§
v. § Civil Action No. 3:18-CV-2706-BH
§
NANCY A. BERRYHILL, ACTING, §
COMMISSIONER OF THE SOCIAL §
SECURITY ADMINISTRATION, §
§
Defendant. § Consent1
MEMORANDUM OPINION AND ORDER
Based on the relevant findings, evidence, and applicable law, the Commissioner’s decision
is REVERSED, and the case is REMANDED for further proceedings.
I. BACKGROUND
Michael Irwin Weinberg (Plaintiff) seeks judicial review of the final decision of the
Commissioner of the Social Security Administration (Commissioner) denying his claim for a period
of disability and disability insurance benefits (DIB) under Title II of the Social Security Act (Act),
and for supplemental security income (SSI) under Title XVI of the Act. (docs. 1;24.)
A. Procedural History
On December 24, 2015, Plaintiff filed his application for SSI and DIB, alleging disability
beginning on July 2, 2015. (doc. 16-1 at 83-84, 93-102.)2 His claim was denied initially on May
11, 2016, and upon reconsideration on June 15, 2016. (Id. at 81-92,103-124.) On July 15, 2017,
1By consent of the parties and the order of transfer dated December 21, 2018 (doc. 20), this case has been
transferred for the conduct of all further proceedings and the entry of judgment.
2Citations to the record refer to the CM/ECF system page number at the top of each page rather than the page
numbers at the bottom of each filing.
Plaintiff requested a hearing before an Administrative Law Judge (ALJ). (Id. at 147.) He appeared
and testified at a hearing on July 26, 2017. (Id. at 44-80.) On September 26, 2017, the ALJ issued
a decision finding Plaintiff not disabled and denying his claims for benefits. (Id. at 14-24.)
Plaintiff appealed the ALJ’s decision to the Appeals Council on September 29, 2017. (Id.
at 585.) The Appeals Council denied his request for review on August 10, 2018, making the ALJ’s
decision the final decision of the Commissioner. (Id. at 5-10.) Plaintiff timely appealed the
Commissioner’s decision under 42 U.S.C. § 405(g). (See doc. 1.)
B. Factual History
1. Age, Education, and Work Experience
Plaintiff was born on December 9, 1959, and was 57 years old at the time of the initial
hearing. (doc. 16-1 at 56.) He graduated high school and could read and write. (Id.) He had
previous work experience as steel salesman and a stocker. (Id. at 48-49.)
2. Medical Evidence
From August 2014 through October 2014, Plaintiff presented to Christus St. Elizabeth
Hospital (Christus) for chronic neck pain, medication refills, vertigo, dizziness upon standing,
muscle aches, fatigue, and a back injury from a fall in his bathroom. (Id. at 429, 521-25.) His pain,
which he rated at five out of ten, was exacerbated by movement but relieved by rest. (Id at 428.) At
his physical exam, he appeared healthy and well-nourished and had full range of motion in his neck,
normal motor strength and tone, and normal movement in all extremities. (Id. at 522, 527.)
On January 7, 2015, Plaintiff met with Dr. Howard Wilcox, M.D. (Dr. Wilcox), for lower
back pain, left leg pain, and numbness in the bottom of his feet. (Id. at 516.) He complained of pain
in his lower back when carrying groceries, difficulty walking, and numbness and tightness in his
2
legs, and he was most comfortable when reclining, walking or standing. (Id.) Imaging of his lumbar
spine revealed moderate degenerative spine changes and a mild compression fracture. (Id. at 440.)
On March 12, 2015, Plaintiff met with Angela Rori, N.P. (NP Rori), for back pain, which
he described as throbbing, constant, and aggravated by twisting. (Id. at 509.) He also reported
numbness, tingling, and pain radiating down his leg. (Id.) Physical exam revealed cervical spine
spasms, reduced range of motion, tenderness on palpation, and lumbar/lumbosacral spine spasms.
(Id. at 512.) Plaintiff was assessed with lumbar radiculopathy and was prescribed Tylenol-Codine
and cyclobenzaprine, and it was recommended that he follow up with a neurospine surgeon. (Id.)
On April 20, 2015, Plaintiff met with Dr. Troy Jones, M.D. (Dr. Jones), for an MRI of his
cervical spine without contrast. (Id. at 436.) Comparison to previous images taken in 2011 revealed
marked degenerative changes in the mid and lower cervical spine with reversal of normal lordotic
curvature in the region. (Id.) Plaintiff also had large anterior osteophytes from C3 inferiorly, and
moderate to marked disc space height narrowing at C4-C5, C5-C6, C6-C7 and C7-T1. (Id.) There
were marked mid to lower cervical spine degenerative changes with multilevel spinal stenosis and
narrowing, similar to his prior MRI, as well as interval increase in size of a possible sebaceous cyst
at the upper right back/lower neck. (Id. at 437.) Dr. Jones recommended clinical correlation. (Id.)
On May 13, 2015, Plaintiff met with Dr. Wilcox for nausea and a “strange sensation in neck
and head[.]” (Id. at 502.) He complained of episodes of a sharp sensation that started in his neck that
radiated to his head. (Id.) Plaintiff had a c-spine stenosis but was hesitant about having spinal
decompression surgery because he did not have anyone to help him during the recovery period. (Id.)
He deferred having the procedure and was expected to have several exacerbation episodes. (Id.)
On July 10, 2015, Plaintiff presented to Christus, complaining of nausea, coughing,
3
dizziness, and a mild aching pain in his chest, and CT imaging of his chest was performed. (Id. at
384.) The physician’s impression was that Plaintiff’s complaints were was due to alcohol abuse,
hyperbilirubinemia, and hypokalemia. (Id. at 388-89.) Plaintiff was instructed to follow up with
his primary care physician and the alcohol/detox/rehab and life resource groups. (Id.)
On September 29, 2015, Plaintiff met with NP Rori to discuss disability because he had been
off work since July 2015. (Id. at 648.) He was to initiate disability paperwork with the social security
office, and the physician’s statement would be completed when the paperwork was received from
the social security office. (Id. at 651.) On October 28, 2015, he again met with NP Rori,
complaining of fatigue, weight loss, abdominal pain, nausea, vomiting, muscle aches, arthralgia/joint
pain, and back pain. (Id. at 490.) Physical examination revealed normal motor strength and tone,
joints, normal movement of all extremities, full range of neck motion, and limited
ambulation/ambulated with a limp. (Id.)
On January 9, 2016, Plaintiff sought care from Christus for vomiting, and he felt hot, cold
and achy with abdominal pain. (Id. at 330.) An ultrasound revealed that his gallbladder was
contracted. (Id.) From January 9, 2016 through January 11, 2016, he was hospitalized for his
abdominal pain. (Id. at 332.) Plaintiff was given IV fluids, pain control, and had multiple work ups,
including a CT of the abdomen and pelvis and a HIDA scan. (Id.) “[A] history of chronic
alcoholism” was noted, and he left against medical advice due to being evicted from his home. (Id.)
On April 22, 2016, Plaintiff met with Dr. Pfeil (Dr. Pfeil) for neck and back pain, prostate
problems, and asthma symptoms. (Id. at 587.) He complained of a history of neck pain, lower back
pain that radiated down to his legs, and numbness in his left hand, for which he used over the
counter medications, as well as limitations in sitting, standing or walking for long periods, lifting
4
and carrying, bending and stooping. (Id. at 587.) His physical exam revealed ambulation with a
slight limp on his right leg, unsteadiness with tandem walking and heel/toe standing, inability to
stand on heels and toes due to unsteadiness, and inability to bend all the way over and get back up
due to lower back pain. (Id.) Plaintiff was able to squat all the way down but had a hard time getting
back up. (Id.) His straight leg raises were negative bilaterally, and he had decreased sensation in his
left hand in an ulnar nerve distribution pattern. (Id.) Dr. Pfeil noted limitations in working overhead,
lifting and carrying more than 20 pounds, bending and stooping, and sitting, standing or walking
more than one to two hours before changing positions. (Id.)
On April 26, 2016, x-ray imaging of Plaintiff’s cervical spine revealed two projections that
demonstrated multilevel moderately severe changes of spondylosis with disc space loss, endplate
osteophytes, disc space narrowing, diffuse facet arthrophathy, and soft tissue vascular calcification.
(Id. at 593.) Compared to a 2011 study, Plaintiff’s severe degenerative changes appeared to have
worsened. (Id.)
3. Hearing
On July 26, 2017, Plaintiff and a vocational expert (VE) testified at a hearing before the
ALJ. (Id. at 44-80.) Plaintiff was represented by an attorney. (Id. at 46.)
a. Plaintiff’s Testimony
Plaintiff testified that he was 5'9", approximately 165 pounds, 57 years old, and divorced and
he had been living in his truck for the last year and a half with his dog. (Id. at 56-59.) He worked
as a steel salesman, which required him to actively call customers, and a stocker. (Id. 49-50.) He
began working full-time at Dallas Animal Services as an intake person on March 7, 2017, at an
hourly rate of $10.37. (Id. at 51-52, 54.)
5
Plaintiff stopped working in 2015 because he injured his back while working at North Shore
Supply. (Id. at 59.) He went out to the deck on a rainy day when trying to clock out and fell because
of his neck and “equilibrium problems.” (Id. at 59-60, 63.) He did not file a workman’s
compensation claim, but he missed a week of work because he was unable to walk and was let go
from his position as a result. (Id. at 60-61.) While at home, he had to crawl to the bathroom because
of his back injury. (See id. at 60.) He collected unemployment benefits for six months and looked
for work in sales and as a forklift driver. (Id. at 60-61.)
Plaintiff was hospitalized and underwent a lot of tests but left against medical advice because
he was being evicted from his apartment and needed to get his dog. (Id. at 65.) He denied an alcohol
abuse problem and suggested that his fatty liver may have been caused by something else. (See id.
at 64.) He could not live with his mother because she lived in an assisted living facility and did not
have any relatives that he could live with. (Id. at 69.)
When questioned by his attorney, Plaintiff testified that he had constant pressure and pain
in his neck. (Id. at 70.) The worst part was the disorientation and equilibrium problems. (Id. at 70.)
He could not walk and turn his head at the same time because he would trip and fall, which occurred
daily at his current job. (See id. at 70-71.) When he moved from Beaumont to Dallas, he had neck
issues, numbness in his hands, his back, and feet, as well as shooting pains in the bottom of his feet,
and he experienced a lot of pain and discomfort. (Id. at 73.) He had pain in his neck and his back
when sitting down. (Id. at 74.)
b. VE’s Testimony
The VE testified that a hypothetical individual that must avoid dusts, fumes, odors, and
pulmonary irritants would not be able to perform any of Plaintiff’s past work experience. (Id. at 78.)
6
According to her experience, a salesperson in the steel industry was out in the warehouse climbing,
bending, and stooping. (Id. at 79.) She was unsure if Plaintiff could perform that work, but he had
transferable skills, such as compiling lists of prospective customers for sales leads, traveling through
an assigned territory, calling customers or perspective customers to solicit their orders or talk with
customers, provide quote prices, credit terms, and prepare sales contracts. (doc. 23-1 at 38-39.)
There were three light semiskilled jobs that would require little vocational adjustment or no new
skill that Plaintiff could perform, including a general merchandise salesperson, DOT 279.357-034
(SVP 3, light), with approximately 3,000 jobs in Texas and 36,000 jobs nationally; group
salesperson, DOT 259.357-010 (SVP 3, light), with approximately 500 jobs in Texas and 4,600 jobs
nationally; fuel sales, DOT 269.357-010 (SVP 4, light), approximately 1,500 jobs in Texas and
17,000 jobs nationally. (Id. at 39.)
The VE then considered a hypothetical individual limited to sitting six hours, standing and
walking no more than three hours, lifting 20 pounds occasionally, 10 pounds frequently, occasional
climbing, balancing, stooping, kneeling, crouching, crawling, no climbing of ladders, ropes, or
scaffolds, and avoiding dusts, fumes, odors, pulmonary irritants. (Id.) The hypothetical individual
could perform past work. (Id. at 39-40.)
In response to questing by Plaintiff’s attorney, the VE testified that a person who missed
work consistently two times per week due to pain would not be able to sustain employment. (Id. at
40.) A person who was off task more than 20% of the time due to pain on a consistent basis would
be unable to sustain employment. (Id.)
C. ALJ’s Findings
The ALJ issued his decision denying benefits on September 26, 2017. (doc. 16-1 at 14-24.)
7
At step one, he found that Plaintiff had not engaged in substantial gainful activity since July 2, 2015,
the alleged onset date. (Id. at 16.) At step two, the ALJ found that he had the following severe
impairments: cervicalgia and degenerative disc disease. (Id. at 17.) Despite those impairments, at
step three, he found that Plaintiff had no impairments or combination of impairments that met or
equaled the severity of one of the impairments listed in the social security regulations. (Id. at 18.)
Next, the ALJ determined that Plaintiff retained the RFC to perform light work; he could
occasionally lift and/or carry up to twenty pounds and frequently lift and/or carry up to ten pounds.
(Id. at 19.) He could stand and/or walk about six hours in an eight-hour workday, sit for six hours
in an eight-hour workday and occasionally stoop, kneel, crouch, crawl, and climb, but must avoid
concentrations of dust fumes and odors. (Id.) The ALJ found that Plaintiff was capable of
performing his past relevant work as a sales person. (Id. at 22.) Accordingly, the ALJ determined
that Plaintiff had not been under a disability, as defined by the Social Security Act, from July 2,
2015, through September 26, 2017. (Id. at 23-24.)
II. STANDARD OF REVIEW
Judicial review of the Commissioner’s denial of benefits is limited to whether the
Commissioner’s position is supported by substantial evidence and whether the Commissioner
applied proper legal standards in evaluating the evidence. Greenspan v. Shalala, 38 F.3d 232, 236
(5th Cir. 1994); 42 U.S.C. § 405(g), 1383(C)(3).3 Substantial evidence is defined as more than a
scintilla, less than a preponderance, and as being such relevant and sufficient evidence as a
reasonable mind might accept as adequate to support a conclusion. Leggett v. Chater, 67 F.3d 558,
3The scope of judicial review of a decision under either the supplemental security income program or the
social security disability program is the same. Davis v. Heckler, 759 F.2d 432, 435 (5th Cir. 1985). The relevant
law and regulations governing the determination of claims under either program are also identical, so courts may rely
on decisions in both areas without distinction in reviewing an ALJ’s decision. See id.
8
564 (5th Cir. 1995). In applying the substantial evidence standard, the reviewing court does not
reweigh the evidence, retry the issues, or substitute its own judgment, but rather, scrutinizes the
record to determine whether substantial evidence is present. Greenspan, 38 F.3d at 236. A finding
of no substantial evidence is appropriate only if there is a conspicuous absence of credible
evidentiary choices or contrary medical findings to support the Commissioner’s decision. Johnson
v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988).
To be entitled to social security benefits, a claimant must prove that he or she is disabled as
defined by the Social Security Act. Leggett, 67 F.3d at 563–64; Abshire v. Bowen, 848 F.2d 638,
640 (5th Cir. 1988). The definition of disability under the Social Security Act is “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); Anthony v.
Sullivan, 954 F.2d 289, 292 (5th Cir. 1992).
The Commissioner utilizes a sequential five-step inquiry to determine whether a claimant
is disabled:
1. An individual who is working and engaging in substantial gainful activity
will not be found disabled regardless of medical findings.
2. An individual who does not have a “severe impairment” will not be found to
be disabled.
3. An individual who “meets or equals a listed impairment in Appendix 1” of
the regulations will be considered disabled without consideration of
vocational factors.
4. If an individual is capable of performing the work he has done in the past, a
finding of “not disabled” must be made.
5. If an individual’s impairment precludes him from performing his past work,
9
other factors including age, education, past work experience, and residual
functional capacity must be considered to determine if work can be
performed.
Wren v. Sullivan, 925 F.2d 123, 125 (5th Cir. 1991) (summarizing 20 C.F.R. § 404.1520(b)-(f)).
Under the first four steps of the analysis, the burden lies with the claimant to prove disability.
Leggett, 67 F.3d at 564. The analysis terminates if the Commissioner determines at any point during
the first four steps that the claimant is disabled or is not disabled. Id. Once the claimant satisfies
his or her burden under the first four steps, the burden shifts to the Commissioner at step five to
show that there is other gainful employment available in the national economy that the claimant is
capable of performing. Greenspan, 38 F.3d at 236. This burden may be satisfied either by reference
to the Medical-Vocational Guidelines of the regulations or by expert vocational testimony or other
similar evidence. Fraga v. Bowen, 810 F.2d 1296, 1304 (5th Cir. 1987). A finding that a claimant
is not disabled at any point in the five-step review is conclusive and terminates the analysis.
Lovelace v. Bowen, 813 F.2d 55, 58 (5th Cir. 1987).
III. RESIDUAL FUNCTIONAL CAPACITY
Plaintiff presents one issue for review:
The ALJ’s RFC determination is not supported by substantial evidence where, after
failing to weigh the Consulting examiner’s opinion, he gave little weight to the only
other opinion in the record, the state agency, and impermissibly played doctor.
(doc. 24 at 4.)
Residual functional capacity, or RFC, is defined as the most that a person can still do despite
recognized limitations. 20 C.F.R. § 416.945(a)(1). The RFC determination is a combined “medical
assessment of an applicant’s impairments with descriptions by physicians, the applicant, or others
of any limitations on the applicant’s ability to work.” Hollis v. Bowen, 837 F.2d 1378, 1386-87 (5th
10
Cir. 1988) (per curiam). It “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.” Social Security
Ruling (SSR) 96-8p, 1996 WL 374184, at *1 (S.S.A. July 2, 1996). An individual’s RFC should
be based on all of the relevant evidence in the case record, including opinions submitted by treating
physicians or other acceptable medical sources. 20 C.F.R. § 416.945(a)(3) (2012); SSR 96-8p, 1996
WL 374184, at *1.
The ALJ “is responsible for assessing the medical evidence and determining the claimant’s
[RFC].”4 Perez v. Heckler, 777 F.2d 298, 302 (5th Cir. 1985). The ALJ may find that a claimant
has no limitation or restriction as to a functional capacity when there is no allegation of a physical
or mental limitation or restriction regarding that capacity, and no information in the record indicates
that such a limitation or restriction exists. See SSR 96-8p, 1996 WL 374184, at *1. The ALJ’s RFC
decision can be supported by substantial evidence even if he does not specifically discuss all the
evidence that supports his decision or all the evidence that he rejected. Falco v. Shalala, 27 F.3d
160, 163-64 (5th Cir. 1994). A reviewing court must defer to the ALJ’s decision when substantial
evidence supports it, even if the court would reach a different conclusion based on the evidence in
the record. Leggett, 67 F.3d at 564. Nevertheless, the substantial evidence review is not an
uncritical “rubber stamp” and requires “more than a search for evidence supporting the
[Commissioner’s] findings.” Martin v. Heckler, 748 F.2d 1027, 1031 (5th Cir. 1984) (citations
4 On January 18, 2017, the Administration updated the rules on the evaluation of medical evidence. See 82
Fed. Reg. 5844, 5853 (Jan. 18, 2017). For claims filed on or after March 27, 2017, the rule that treating sources be
given controlling weight was eliminated. See Winston v. Berryhill, 755 F. App’x 395, 402 n.4 (5th Cir. 2018) (citing
20 C.F.R. § 404.1520c(a) (“We will not defer or give any specific evidentiary weight, including controlling weight,
to any medical opinion(s)”). Because Plaintiff filed his application before the effective date, the pre-2017
regulations apply.
11
omitted). The Court “must scrutinize the record and take into account whatever fairly detracts from
the substantiality of the evidence supporting the” ALJ’s decision. Id. Courts may not reweigh the
evidence or substitute their judgment for that of the Secretary, however, and a “no substantial
evidence” finding is appropriate only if there is a “conspicuous absence of credible choices” or “no
contrary medical evidence.” See Johnson, 864 F.2d at 343 (citations omitted).
A. Consulting Examiner’s Opinion
Plaintiff argues that the ALJ’s determination is not supported by substantial evidence
because he failed to weigh the consulting examiner’s opinion, and that his failure to rely on any
medical opinion to determine his RFC is expressly prohibited by Ripley. (doc. 24 at 10, 13.)
The Commissioner is entrusted to make determinations regarding disability, including
weighing inconsistent evidence. 20 C.F.R. § 404.1529(b). Every medical opinion is evaluated
regardless of its source, but the Commissioner generally gives greater weight to opinions from a
treating source. Id. § 404.1527(c)(2). A treating source is a claimant’s “physician, psychologist, or
other acceptable medical source” who provides or has provided a claimant with medical treatment
or evaluation, and who has or has had an ongoing treatment relationship with the claimant. Id. §
404.1502. When “a treating source’s opinion on the issue(s) of the nature and severity of [a
claimant’s] impairment(s) is well-supported by medically acceptable clinical and laboratory
diagnostic techniques and is not inconsistent with the other substantial evidence,” the Commissioner
must give such an opinion controlling weight. Id. § 404.1527(c)(2). If controlling weight is not given
to a treating source’s opinion, the Commissioner considers six factors in deciding the weight given
to each medical opinion: (1) whether the source examined the claimant or not; (2) whether the
source treated the claimant; (3) the medical signs and laboratory findings that support the given
12
opinion; (4) the consistency of the opinion with the record as a whole; (5) whether the opinion is
made by a specialist or non-specialist; and (6) any other factor which “tend[s] to support or
contradict the opinion.” See id. § 404.1527(c)(1)–(6).
While an ALJ should afford considerable weight to opinions and diagnoses of treating
physicians when determining disability, sole responsibility for this determination rests with the ALJ.
Newton v. Apfel, 209 F.3d 448, 455 (5th Cir. 2000). If evidence supports a contrary conclusion, an
opinion of any physician may be rejected. Id. A treating physician’s opinion may also be given little
or no weight when good cause exists, such as “where the treating physician’s evidence is
conclusory, is unsupported by medically acceptable clinical, laboratory, or diagnostic techniques,
or is otherwise unsupported by the evidence.” Id. at 455–56. Nevertheless, “absent reliable medical
evidence from a treating or examining physician controverting the claimant’s treating specialist, an
ALJ may reject the opinion of the treating physician only if the ALJ performs a detailed analysis of
the treating physician’s views under the criteria set forth in [then] 20 C.F.R. § 404.1527(d)(2).” Id.
at 453. A detailed analysis is unnecessary, however, when “there is competing first-hand medical
evidence and the ALJ finds as a factual matter that one doctor’s opinion is more well-founded than
another,” or when the ALJ has weighed “the treating physician’s opinion on disability against the
medical opinion of other physicians who have treated or examined the claimant and have specific
medical bases for a contrary opinion.” Id. at 458.
Here, the ALJ noted that Dr. Pfeil met with Plaintiff and assessed physical limitations due
to his low back and neck pain. (doc. 16-1 at 20-21.) The ALJ also noted that no treating or
examining physician opined that Plaintiff could not work. (Id. at 22.) Besides stating that he
carefully considered all of the objective medical evidence and opinions, the ALJ never directly
13
assigned weight to or explained why he disregarded Dr. Pfeil’s examining source opinion as to
Plaintiff’s physical limitations. (Id. at 22.) Because he gave little weight to the only other medical
opinion in the record, the ALJ appears to have relied on his own opinion in making his RFC
determination.
While the ALJ may choose to reject Dr. Pfeil’s opinion, “he cannot independently decide the
effects of Plaintiff’s...impairments on [his ] ability to work, as that is expressly prohibited by
Ripley.” Shugart v. Astrue, No. 3:12-cv-1705-BK, 2013 WL 991252, at *5 (N.D. Tex. Mar. 13,
2013). In Ripley, the ALJ found that the claimant could perform sedentary work even though there
was no medical evidence or testimony to support that conclusion. 67 F.3d at 557. The Fifth Circuit
instructed that when no medical statement of a claimant’s RFC is provided, the court must focus on
whether the ALJ’s decision is supported by substantial evidence in the record. Id. In that particular
case, the Fifth Circuit noted that the record contained a vast amount of evidence establishing that
the claimant had a back problem, but it did not clearly establish the effect the condition had on his
ability to work. Id. It remanded the case with instructions to the ALJ to obtain a report from a
treating physician regarding the effects of the claimant's back condition on his ability to work. Id.
at 557-58. Notably, the Fifth Circuit rejected the Commissioner’s argument that the medical
evidence that discussed the extent of the claimant's impairment substantially supported the ALJ’s
RFC assessment because it was unable to determine the effects of the claimant's condition, no matter
how small, on his ability to work absent reports from qualified medical experts. Id. at 558 n. 27; see
also Williams v. Astrue, 355 F. App’x 828, 832 n.6 (5th Cir. 2009) (“[a]n ALJ may not–without the
opinions from medical experts–derive the applicant’s residual functional capacity based solely on
the evidence of his or her claimed medical conditions, [and] an ALJ may not rely on his own
14
unsupported opinion as to the limitations presented by the applicant’s medical conditions.”); Tyler
v. Colvin, No. 3:15-CV-3917-D, 2016 WL 7386207 (N.D. Tex. Dec. 20, 2016) (finding that an ALJ
impermissibly relied on his own medical opinion to develop his RFC determination).
Because the ALJ failed to expressly explain the weight given to examining medical opinions
and instead independently decided the effects of Plaintiff’s impairments, he erred in determining
Plaintiff’s RFC. See Foley v. Colvin, No. 3:14-CV-4176-BN, 2015 WL 5836173 at *5 (N.D. Tex.
Oct. 2, 2015) (even though the ALJ identified examining medical opinions, his failure to “expressly
explain the weight” given to them was error).
B. Harmless Error
Plaintiff argues that the ALJ’s failure to weigh Dr. Pfeil’s medical opinion was harmful error.
(See doc. 24 at 7-11; doc. 28 at 1.)
The Fifth Circuit has held that “[p]rocedural perfection in administrative proceedings is not
required” and a court “will not vacate a judgment unless the substantial rights of a party are
affected.” Mays v. Bowen, 837 F.2d 1362, 1363-64 (5th Cir. 1988). “[E]rrors are considered
prejudicial when they cast doubt onto the existence of substantial evidence in support of the ALJ’s
decision.” Morris v. Bowen, 864 F.2d 333, 335 (5th Cir. 1988). In the Fifth Circuit, harmless error
exists when it is inconceivable that a different administrative conclusion would have been reached
absent the error. Bornette v. Barnhart, 466 F. Supp. 2d 811 (E.D. Tex. Nov. 28, 2006) (citing Frank
v. Barnhart, 326 F.3d 618, 622 (5th Cir. 2003)).
Here, Dr. Pfeil opined that Plaintiff was limited in working overhead, lifting and carrying
more than 20 pounds, bending and stooping, and sitting, standing, or walking more than one to two
hours before changing positions. (Id. at 589.) His examination showed that Plaintiff was able to
15
squat all the way down but had a hard time getting up; his straight leg raises were negative
bilaterally; he was unable to bend all the way over and get back up due to back pain; had
unsteadiness with tandem walking and heel/toe standing; and initially ambulated with a limp in his
right leg. (Id.) He also had normal range of motion in his both his upper right and upper left
extremities, normal range of motion in his lower left and lower right extremities, and reduced range
of motion in cervical and dorsolumbar spine. (Id. at 589-90.)
Plaintiff visited several physicians over approximately a two-year period for pain in his neck,
lower back, and abdomen. (See doc. 16-1 at 631, 633, 635.) His MRI showed lumbar disc
degeneration, disc protrusion, and cervical spine degenerative changes. (Id. at 436-39.) Several of
his physical exams indicated persistent back pain, neck pain and muscle aches.(See id. at 490,
512,516, 519,521, 525, 533, 535, 576, 593,619, 621,644, 646,652-53.) Plaintiff’s October 2015
physical exam revealed he ambulated with a limp. (Id at 490.) Plaintiff’s examining medical records
are consistent with Dr. Pfeil’s opinions regarding his physical limitations.
Had the ALJ considered Dr. Pfeil’s opinion, he could have found additional limitations that
would affect his RFC determination, and that Plaintiff was precluded from the jobs identified by the
VE, including his past relevant work. The VE testified that if a person was off task more than 20%
of the time due to pain on a consistent basis, that person would not be able to sustain employment.
(doc. 23-1 at 40.) She also testified that a person who missed work consistently two times per week
due to pain would not be able to sustain employment. (Id.)
The ALJ considered but gave little weight to the other opinions in the record, i.e., those of
the state agency medical consultants (SAMCs) because “they overestimate[d Plaintiff’s]
restrictions.” (Id. at 21.) The SAMCs determined that Plaintiff was able to stand and/or walk for
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three hours in an eight-hour day; able to sit for six hours in an eight-hour day; and was limited to
occasional postural activities. (Id. at 88-90.) On reconsideration, they affirmed these findings. (Id.
at 109-11.) The ALJ may reject these opinions but must still support his RFC determination with
substantial evidence. See Williams v. Astrue, 355 F. App’x 828, 832 (5th Cir. 2009) (the ALJ was
entitled to reject the treating physician’s opinion but the ALJ impermissibly relied on his own
medical opinions to develop his factual finding). The ALJ’s failure to rely on a medical opinion in
determining Plaintiff’s RFC casts doubt as to whether substantial evidence exists to support the
finding that Plaintiff is not disabled. See also Laws v. Colvin, No. 3:14-CV-3683-B, 2016 WL
1170826 (N.D. Tex. Mar. 25, 2016) (reversing and remanding for further proceedings for lack of
substantial evidence because the ALJ’s failure to rely on a medial opinion in determining the
plaintiff’s RFC).
Accordingly, the ALJ’s error was not harmless because it is not inconceivable that he would
have reached a different decision had he considered Dr. Pfeil’s opinions. See McAnear v. Colvin,
No. 3:13–cv–4985-BF, 2015 WL 1378728, at *5 (N.D.Tex. Mar. 26, 2015)(finding remand was
required because there was a realistic possibility of a different conclusion by the ALJ where the
court was unsure of whether the ALJ considered the medical source’s opinion and whether such a
review would have changed the outcome of his decision); Paul v. Colvin, No. 3:12–cv–00130, 2013
WL 1294666-G (BH), at (N.D.Tex. Mar. 14, 2013)(finding the ALJ’s error in failing to present good
cause for rejecting a treating source’s opinion was not harmless where it was not inconceivable that
the ALJ would have reached a different conclusion had he considered the opinion); Singleton v.
Astrue, No. 3:11–cv–2332-BN, 2013 WL 460066, at *6 (N.D.Tex. Feb. 7, 2013)(finding the ALJ’s
error in not considering the medical source opinion was not harmless and reversal and remand were
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required because the court could not say what the ALJ would have done had he considered the
opinion, and had he considered the opinion he might have reached a different decision)
IV. CONCLUSION
The Commissioner’s decision is REVERSED, and the case is REMANDED to the
Commissioner for further proceedings.
SO ORDERED, on this 25th day of March, 2020.
4RMA CARRILLO hee ; )
UNITED STATES MAGISTRATE GE
INSTRUCTIONS FOR SERVICE AND
NOTICE OF RIGHT TO APPEAL/OBJECT
A copy of these findings, conclusions and recommendation shall be served on all parties in the
manner provided by law. Any party who objects to any part of these findings, conclusions and
recommendation must file specific written objections within 10 days after being served with a copy.
See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). In order to be specific, an objection must identify
the specific finding or recommendation to which objection is made, state the basis for the objection,
and specify the place in the magistrate judge’s findings, conclusions and recommendation where the
disputed determination is found. An objection that merely incorporates by reference or refers to the
briefing before the magistrate judge is not specific. Failure to file specific written objections will
bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate
judge that are accepted or adopted by the district court, except upon grounds of plain error. See
Douglass v. United Servs. Automobile Ass’n, 79 F.3d 1415, 1417 (Sth Cir. 1996).
4RMA CARRILLO hee ; )
UNITED STATES MAGISTRATE GE
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