Jones v. Astrue

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued March 4, 2011 Decided August 5, 2011

No. 09-5414

MELVIN A. JONES,

APPELLANT

v.

MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:08-cv-01591)

Jonathan K. Osborne, student counsel, argued the cause as

amicus curiae in support of the appellant. With him on the brief

were Steven H. Goldblatt, appointed by the court, Doug Keller,

Supervising Attorney, and Amanda Boote Santella, student

counsel.

Melvin Jones, pro se, filed briefs.

Fred E. Haynes, Assistant U.S. Attorney, argued the cause

for the appellee. With him on the brief were Ronald C. Machen

Jr., U.S. Attorney, and R. Craig Lawrence and Alan Burch,

Assistant U.S. Attorneys.

2

Before: GARLAND and BROWN, Circuit Judges, and

RANDOLPH, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge: Melvin Jones challenges a

judgment of the district court affirming the Social Security

Administration’s denial of his application for disability benefits.

Jones contends that an Administrative Law Judge did not

properly apply the “treating physician rule” in evaluating his

application, and further argues that new evidence has come to

light that warrants a remand to the agency. We agree with both

contentions.

I

Jones suffers from a variety of health problems. He has

been diagnosed with degenerative disk disease, lumbar spinal

stenosis, congestive heart failure, cardiomyopathy, chronic

obstructive pulmonary disease, emphysema, and gout. As a

child, he underwent several surgeries, which created an

asymmetry in the length of his legs. In 2006, he was involved

in a car accident that aggravated his pre-existing back problems.

Jones engaged in manual labor for most of his life and held jobs

moving furniture and office equipment. He alleges that, by

2004, he was unable to perform the tasks required for those jobs

-- including lifting and driving -- and could no longer work.

To qualify for disability benefits under Title XVI

(Supplemental Security Income) of the Social Security Act, 42

U.S.C. § 1381 et seq., a claimant must establish that he is

disabled. Id. § 1381a. The Act defines “disability” as the

“[inability] to engage in any substantial gainful activity by

reason of any medically determinable physical or mental

impairment[,] . . . which has lasted or can be expected to last for

3

a continuous period of not less than 12 months.”

Id. § 1382c(a)(3)(A); cf. id. § 423(d)(1). The Act further states

that “[a]n individual shall be determined to be under a disability

only if his physical or mental . . . impairments are of such

severity that he is not only unable to do his previous work but

cannot, considering his age, education, and work experience,

engage in any other kind of substantial gainful work which

exists in the national economy.” Id. § 1382c(a)(3)(B); cf. id.

§ 423(d)(2)(A).

The Social Security Administration (SSA) has established

a five-step sequential process for assessing a claimant’s

eligibility for disability benefits. In the first four steps, the

claimant bears the burden of proof. See Butler v. Barnhart, 353

F.3d 992, 997 (D.C. Cir. 2004). At step one, the claimant must

demonstrate that he is not engaged in “substantial gainful” work.

20 C.F.R. § 416.920(b). At step two, he must establish that he

has a “severe impairment” that “significantly limits [his]

physical or mental ability to do basic work activities.” Id.

§ 416.920(c). At step three, the claimant must show that he

suffers from an impairment that meets or equals an impairment

listed in the appendix to the SSA regulations. If so, he is found

to be disabled within the meaning of the Act, and the inquiry

concludes. Id. § 416.920(d). If not, the inquiry proceeds to step

four, which requires the claimant to show that he does not have

the “residual functional capacity” to perform the requirements

of his past relevant work. Id. § 416.920(e), (f). If he makes that

showing, the claimant has carried his burden, and the burden

then shifts to the Commissioner of Social Security to

demonstrate, at step five, that the claimant is able to perform

other work. Id. § 416.912(g); see also Butler, 353 F.3d at 997.

At this stage, the Commissioner considers the claimant’s

residual functional capacity, age, education, and work

experience to determine whether the claimant can make an

adjustment to other work, see 20 C.F.R. § 416.920(a)(4)(v),

4

(g)(1), and must show that there are jobs in the national

economy that the claimant can perform, id. § 416.912(g). If

there are not, the claimant is disabled and eligible for benefits.

Id. § 416.920(a)(4)(v).

Jones applied for supplemental security income disability

benefits in May 2005. In the ensuing three years, he saw a

number of doctors, including his treating physician, Dr. Ashwini

Sardana. In 2008, after evaluating him on several occasions, Dr.

Sardana completed a medical assessment, which noted that

Jones suffered from numerous infirmities affecting his back,

heart, and lungs. In assessing Jones’ capacity for work, Sardana

concluded that, while Jones could occasionally bend or balance,

he could never stoop, crouch, crawl, or climb. Of greatest

significance to this appeal, Sardana opined that Jones could

stand for only two hours of an eight-hour work day and could sit

for only four hours.

Following his car accident in 2006, Jones saw Dr. Peter

Moskovitz, the orthopedic surgeon who had operated on his

knee when he was a child. Dr. Moskovitz reported that Jones

had progressive back and leg pain, left-sided sciatica, and

degenerative disc changes. He recommended a comprehensive

lumbar spine program.

In March 2007, Jones went to see Dr. Rafael Lopez, a

physician to whom the SSA had referred him for a disability

examination. Dr. Lopez’s report stated that Jones had normal

range of motion, and could squat, rise, and walk without

difficulty. He opined that Jones had full ability to use his upper

and lower extremities for work-related activities.

Jones’ medical records were also reviewed by Drs. M.V.

Kumar and Subramanian Srinivas as part of the disability-claims

process. Based on the records, the doctors concluded that,

5

although Jones was impaired in his occupational functioning, he

could sit for six hours in an eight-hour work day and could stand

for two.

The SSA denied Jones’ claim in November 2005. In May

2007, the agency denied Jones’ petition for reconsideration.

Jones requested a hearing before an Administrative Law Judge

(ALJ), which was held in January 2008.

The ALJ’s decision, issued in March 2008, followed the

five-step analysis outlined above. ALJ Opinion (March 3, 2008)

(J.A. 29-40). At step one, the ALJ determined that Jones had

not engaged in gainful activity since May 31, 2005 -- the date of

his application. At step two, he found that Jones had several

severe impairments, including degenerative disc disease, lumbar

spinal stenosis, congestive heart failure, chronic obstructive

pulmonary disease, and emphysema. Although the ALJ

concluded at step three that none of Jones’ impairments met or

equaled those listed in the regulatory appendix, he determined

at step four that Jones was unable to perform any past relevant

work.

Turning to step five, the ALJ found that Jones had the

residual functional capacity to perform other work, albeit only

sedentary work. In so finding, the ALJ rejected Dr. Sardana’s

opinion that Jones could not sit for more than four hours in an

eight-hour day. ALJ Op. at 5-6. The ALJ said that, although

“Dr. Sardana’s report provides a basis for the finding of some

limitations related to back pain, respiratory, and cardiovascular

problems,” the “report and the balance of the medical record do

not rule out work within the scope of the residual functional

capacity adopted here.” Id. at 9. Based on the views of a

vocational expert, the judge concluded that there were jobs in

the national economy for a person of Jones’ age and with his

education, work experience, and residual functional capacity.

6

Accordingly, the ALJ concluded that Jones was not disabled

within the meaning of the Social Security Act. Id. at 11-12.

Jones sought review of the ALJ’s decision in the United

States District Court. See 42 U.S.C. §§ 405(g), 1383(c)(3). He

argued that, in failing to adhere to Dr. Sardana’s determination

that he could not sit for more than four hours, the ALJ violated

the “treating physician rule,” which obligated the judge to

explain his reasons for rejecting Sardana’s opinion. Jones v.

Astrue, 654 F. Supp. 2d 37, 41-42 (D.D.C. 2009). The court was

unpersuaded, finding that “[t]here is nothing in Dr. Sardana’s

report or elsewhere in the medical record that supports his

opinion that Mr. Jones could only sit for four hours in an eight

hour work day.” Id. at 42. Accordingly, the court granted the

government’s motion for judgment of affirmance. Id.

While Jones was pursuing his district court litigation against

the SSA, he was also filing complaints against Dr. Lopez -- the

doctor whom the SSA had engaged to examine him during the

pendency of his disability claim. Jones complained about Lopez

to the District of Columbia Board of Medicine and, in July 2008,

received a letter stating that the Board had “determined that a

violation of the Health Occupations Revision Act did occur that

would warrant disciplinary action.” Letter from Jacqueline A.

Watson, Executive Dir., D.C. Bd. of Med., to Melvin Jones

(Feb. 12, 2010) (reproduced at Amicus Br. app. B). Jones also

filed a complaint in the Superior Court of the District of

Columbia, alleging that Dr. Lopez’s report constituted

fraudulent misrepresentation because he had performed only a

cursory examination and used no diagnostic tools to arrive at his

medical conclusions. Compl. ¶ 9, Jones v. Lopez, No. 2009 CA

233 (D.C. Sup. Ct. Nov. 13, 2009). The judge in that case

determined that Lopez’s report did contain “a false

representation of material fact” regarding Jones’s physical

condition, but ultimately dismissed the complaint because Jones

7

failed to show, by “clear, convincing, and unequivocal

evidence,” that Lopez made the false statement “knowingly” or

“recklessly.” Sup. Ct. Tr. 245-49, Jones v. Lopez, No. 2009 CA

233 (D.C. Sup. Ct., Sept. 10, 2010) (appended to Appellant’s pro

se brief).

On November 30, 2009, acting pro se, Jones filed a timely

appeal from the district court’s judgment. In addition to

challenging that judgment, Jones proffered, as new evidence,

the letter from the Board of Medicine and the transcript of the

Superior Court proceeding. A special panel of this court

appointed amicus curiae to present arguments in support of

Jones’ position. We review those arguments below.

II

Sentence four of 42 U.S.C. § 405(g) grants the district court

power “to enter, upon the pleadings and transcript of the record,

a judgment affirming, modifying, or reversing the decision of

the Commissioner of Social Security, with or without remanding

the cause for a rehearing.” In reviewing an SSA decision, “[t]he

findings of the Commissioner of Social Security as to any fact,

if supported by substantial evidence, shall be conclusive.” Id.

Accordingly, the “Commissioner’s ultimate determination will

not be disturbed if it is based on substantial evidence in the

record and correctly applies the relevant legal standards.”

Butler, 353 F.3d 992, 999 (D.C. Cir. 2004). On appeal, this

court reviews the district court’s judgment of affirmance de

novo, “as if the agency’s decision ‘had been appealed to this

court directly.’” Gerber v. Norton, 294 F.3d 173, 178 (D.C. Cir.

2002) (quoting Dr. Pepper/Seven-Up Cos. v. FTC, 991 F.2d 859,

862 (D.C. Cir. 1993)); see Igonia v. Califano, 568 F.2d 1383,

1387 (D.C. Cir. 1977).

8

Amicus contends that the Commissioner did not “appl[y]

the relevant legal standards,” Butler, 353 F.3d at 999, because

he transgressed the “treating physician rule” by rejecting the

opinion of Jones’ treating physician without explanation. As

this court noted in Butler: “‘Because a claimant’s treating

physicians have great familiarity with [his] condition, their

reports must be accorded substantial weight.’ . . . We thus

require an ALJ ‘who rejects the opinion of a treating physician

[to] explain his reasons for doing so.’” Id. at 1003 (quoting

Williams v. Shalala, 997 F.2d 1494, 1498 (D.C. Cir. 1993)); see

20 C.F.R. § 416.927(d)(2) (“Generally, we give more weight to

opinions from your treating sources, since these sources are

likely to be the medical professionals most able to provide a

detailed, longitudinal picture of your medical impairment(s)

. . . . We will always give good reasons in our notice of . . .

decision for the weight we give your treating source’s

opinion.”).

It is clear that the ALJ did reject the opinion of Jones’

treating physician. Dr. Sardana concluded that Jones could sit

no more than four hours in an eight-hour day. The ALJ, by

contrast, concluded that Jones could sit for six hours and, as a

consequence, was able to engage in sedentary work. It is also

clear that the ALJ did not, as required by the treating physician

rule, explain his reasons for rejecting Dr. Sardana’s opinion. He

did say that “Dr. Sardana’s report provides a basis for the

finding of some limitations related to back pain, respiratory, and

cardiovascular problems, but not below the sedentary level.”

ALJ Op. at 9. But he did not say why that was so. This kind of

“bare statement,” sans any explanation, violates the treating

physician rule. Butler, 353 F.3d at 1003; Simms v. Sullivan, 877

F.2d 1047, 1052-53 (D.C. Cir. 1989).

The government disputes this conclusion on three grounds.

9

First, the government contends it is unfair to characterize

the ALJ as “rejecting” Sardana’s opinion because the judge did

not reject the doctor’s entire report, instead agreeing that it

“provides a basis for the finding of some limitations.” Amicus,

the government charges, does not “acknowledge the difference

between an ALJ weighing an opinion versus rejecting an

opinion.” Gov’t Br. 15 (emphasis added).

This is just word play. Although the ALJ may have

accepted some of Sardana’s conclusions, the government does

not dispute that the ALJ rejected Sardana’s opinion that Jones

could only sit for four hours in a workday, and instead found

that he could sit for at least six. Id. at 21; see ALJ Op. at 5-6.

Moreover, the government acknowledges that “this is a

significant difference” because “a finding that Jones could only

sit for four hours in a work day would require a finding of

inability to perform sedentary work,” contrary to the finding of

the ALJ. Gov’t Br. 21. Hence, whether one calls what the ALJ

did “rejecting” or “weighing,” the treating physician rule

requires an explanation for his disagreement with Dr. Sardana’s

opinion. See Butler, 353 F.3d at 998, 1000-03 (finding the

treating physician rule violated where the ALJ rejected the

doctor’s opinion on the critical issue of whether the claimant

could stoop, even though he credited other findings); 20 C.F.R.

§ 416.927(d)(2) (stating that, when a treating physician’s

opinion is not given controlling weight, the SSA “will always

give good reasons . . . for the weight . . . give[n] to [the] treating

source’s opinion” (emphasis added)).

Second, the government urges us to affirm the ALJ on the

ground offered by the district court: that “nothing in Dr.

Sardana’s report or elsewhere in the medical record . . . supports

his opinion that Mr. Jones could only sit for four hours in an

eight hour work day.” Jones, 654 F. Supp. 2d at 42. The amicus

vigorously disputes this claim on the merits. For our purposes,

10

however, it is sufficient that the ALJ did not say this and

certainly did not explain it. The treating physician rule requires

an explanation by the SSA, not the court. See Butler, 353 F.3d

at 1002; cf. SEC v. Chenery Corp., 332 U.S. 194, 196 (1947)

(“[A] simple but fundamental rule of administrative law . . . is

to the effect that a reviewing court, in dealing with a

determination or judgment which an administrative agency

alone is authorized to make, must judge the propriety of such

action solely by the grounds invoked by the agency.”).

Finally, the government urges us to affirm the ALJ on the

ground that the record contained medical opinions supporting

the ALJ’s view that Jones could sit for at least six hours, and

thus contradicting Sardana’s opinion that he could not. As the

government points out, Drs. Kumar and Srinivas both opined

that Jones was capable of sitting for six hours. But again, the

ALJ did not cite those opinions -- or explain why he rejected the

opinion of Jones’ treating physician in favor of the views of two

doctors who did not personally examine Jones. See Gov’t Br. 5

(stating that Drs. Kumar and Srinivas “reviewed Jones’s medical

records”); Oral Arg. Recording 19:25-19:33 (acknowledgment

by government counsel that Kumar did not examine Jones). To

the contrary, the ALJ’s only reference to the reports of those

doctors was to state that he disagreed with their opinions that

Jones was capable of “light” (rather than only sedentary) work.

ALJ Op. at 9 (referencing Exhibits 8F and 15F).

Citing Williams v. Shalala, the government maintains that

it is “‘of no moment’ that the ALJ did not expressly state his

reason for not applying the treating physician rule because he

noted the contradictory evidence in the record.” Gov’t Br. 23

(quoting Williams, 997 F.2d at 1499). In Butler, the government

made the same appeal to Williams, and we rejected it for the

same reason we do today: the ALJ did not “‘note[] the

contradictory evidence in the record,’” Butler, 353 F.3d at 1002

11

(quoting Williams, 997 F.2d at 1499). As we said in Butler,

“[t]his case is not analogous to Williams . . . because the ALJ

here did not acknowledge the contradictory evidence in the

record [that] ‘supplie[d] the reason’ for rejecting the treating

physician’s opinion.” Id. (quoting Williams, 997 F.2d at 1499).

Indeed, as the government conceded at oral argument, the ALJ

cited no evidence contradicting Dr. Sardana’s finding that Jones

could sit for only four hours per day. See Oral Arg. Recording

19:07.

Because the ALJ failed to explain his reason for rejecting

Dr. Sardana’s opinion regarding Jones’ capacity to sit, his

decision cannot survive review. Cf. Simms, 877 F.2d at 1052-53

(reversing the SSA’s denial of an application for disability

benefits because the ALJ “offered no reason for crediting the

consulting physicians over” the treating physician). We will

therefore direct a remand pursuant to sentence four of § 405(g).

“[U]pon remand, ‘the ALJ should explain what weight he

attaches to [the treating physician’s] conclusions, or if he

attaches none, his reason therefor.” Butler, 353 F.3d at 1003

(quoting Simms, 877 F.2d at 1053).1

1

Amicus also contends that the ALJ did not properly

communicate the full scope of Jones’ impairments to the vocational

expert, who opined -- with respect to the fifth step of the disability

analysis -- that a person with the impairments described by the ALJ

could meet the demands of other available jobs in the national

economy. Specifically, amicus argues that the ALJ failed to include

drowsiness caused by pain medication in the hypothetical he put to the

expert. See Simms, 877 F.2d at 1050 (“Should the ALJ look to the

opinion of a vocational expert in determining the claimant’s ability to

perform ‘other work’ than he has done before, the ALJ must

accurately describe the claimant’s physical impairments in any

question posed to the expert.”). On this point, however, we agree with

the district court that the ALJ sufficiently communicated Jones’

impairments to the expert, including his medicine-induced drowsiness.

12

III

Amicus contends that we should also remand this case to

the SSA pursuant to sentence six of 42 U.S.C. § 405(g), which

states that the court “may at any time order additional evidence

to be taken before the Commissioner of Social Security, but only

upon a showing [1] that there is new evidence [2] which is

material and [3] that there is good cause for the failure to

incorporate such evidence into the record in a prior proceeding.”

Amicus argues that the letter from the District of Columbia

Board of Medicine, responding to Jones’ complaint regarding

Dr. Lopez’s examination, constitutes such “additional

evidence.” The letter states: “The Board has determined that a

violation of the Health Occupation Revision Act did occur that

would warrant disciplinary action.” Jones, arguing pro se,

contends that the transcript of the Superior Court proceedings

constitutes such additional evidence as well. That transcript

records the following judicial finding regarding Dr. Lopez’s

report on Jones’ condition: “[T]he court finds that there was a

false representation of material fact. Plaintiff satisfies [this] by

clear and convincing evidence.” Sup. Ct. Tr. 245. We agree

with both amicus and Jones.2

See Hr’g Tr. at 31 (asking the expert to consider a claimant who, due

to “fatigue” and “the effects of medication,” could not be expected to

“concentrate, maintain attention for extended periods, [or] keep up

with the pace”).

2

As we recently noted in (Kevin) Jones v. Astrue, --- F.3d ----,

2011 WL 2652393 (D.C. Cir. July 8, 2011), three circuits have held

that a court ordering a remand under sentence four of § 405(g) -- as we

do in Part II above -- may also order the Commissioner to consider

additional evidence even if the requirements of sentence six are not

met. Id. at *3. We did not need to decide the issue to resolve that

case, and we do not need to do so here. Because we conclude that the

evidence proffered by amicus and Jones satisfies the requirements of

13

The first and third requirements for a sentence-six remand

are satisfied when there is new “evidence not in existence or

available to the claimant at the time of the administrative

proceeding.” Sullivan v. Finkelstein, 496 U.S. 617, 626 (1990).

In this case, Jones received the letter from the Board of

Medicine in February 2010, nearly two years after the ALJ

issued his decision. Similarly, the Superior Court transcript

records proceedings that did not take place until September

2010. Accordingly, neither document was available, or even in

existence, at the time of the ALJ hearing, and there was thus

good cause for Jones’ failure to incorporate that evidence into

the record of the disability proceeding. See Bauzo v. Bowen,

803 F.2d 917, 926 (7th Cir. 1986); Caulder v. Bowen, 791 F.2d

872, 878-79 (11th Cir. 1986).3

The government argues that the Board of Medicine’s letter

nonetheless fails to satisfy sentence six because, “[a]lthough the

date of the . . . letter makes it seem new, the underlying content

of the complaint is not new.” Gov’t Br. 32. Jones, the

Commissioner points out, “previously contended that Dr. Lopez

. . . provided a cursory examination and that his report relayed

sentence six, we need not decide whether we could also order an

evidentiary remand under sentence four.

3

The letter and the transcript were likewise unavailable during the

pendency of Jones’ district court case, which concluded with the

issuance of the court’s judgment in September 2009. The district

court thus had no occasion to consider that evidence. Because “our

review functions are as broad as those that may be performed by the

district court,” we may determine for ourselves whether the evidence

satisfies the requirements of § 405(g)’s sixth sentence. Johnson v.

Heckler, 767 F.2d 180, 183 (5th Cir. 1985); see Goerg v. Schweiker,

643 F.2d 582, 584 (9th Cir. 1981) (concluding that, under similar

circumstances, “no useful purpose would be served by” returning the

case to the district court to rule on the sentence-six issue).

14

some aspects of the examination that Jones could not have

physically performed.” Id. But sentence six requires only that

there be new evidence, not that there be an entirely new

allegation. At the time of the ALJ hearing, Jones could only

allege that Lopez’s examination and report were flawed. Now,

he can point to a letter from the Board of Medicine validating

his complaint, as well as a judicial determination that Dr.

Lopez’s report contained a false representation. These pieces of

evidence are certainly “new” within the meaning of § 405(g), as

neither existed at the time of the administrative proceeding. Cf.

Caulder, 791 F.2d at 877-79 (remanding for consideration of

new “objective” evidence of a claimant’s medical condition,

notwithstanding that the claimant had complained of the

problem before the ALJ).

The government also argues that the evidence is not

“material” within the meaning of § 405(g). In order to satisfy

the materiality requirement, the claimant must show that the

evidence “might have changed the outcome of the prior

proceeding.” Melkonyan v. Sullivan, 501 U.S. 89, 98 (1991);

see Finkelstein, 496 U.S. at 626. The government maintains that

the evidence would not have altered the ALJ’s decision because

neither the letter nor the court’s determination undermines the

credibility of Dr. Lopez’s report. With respect to the Board’s

letter, the government insists that it “does not mean what it

says.” Oral Arg. Recording 21:42. While conceding that the

letter appears “fairly damning,” the government argues that it

was merely “inartfully worded.” Oral Arg. Recording 22:00-

22:10. Citing an email that government counsel solicited from

an attorney for the Board, the government insists that “there has

been no finding of misconduct” against Dr. Lopez. Oral Arg.

Recording 22:10-22:32. As for the Superior Court transcript,

the government notes that the Superior Court judge ultimately

dismissed the proceeding because he found insufficient evidence

that Dr. Lopez made a false statement knowingly or recklessly.

15

The government misconstrues both pieces of evidence. The

email from counsel for the Board of Medicine does not say that

the Board has made no finding of misconduct against Dr. Lopez.

It states only that “[a]t [t]his point no sanctions have been

imposed.” Gov’t Br. Ex. A. And the Superior Court judge

plainly found -- by “clear and convincing evidence” -- that Dr.

Lopez did make “a false representation of material fact” in his

medical report concerning Jones. Sup. Ct. Tr. 245. Whether the

doctor did so knowingly or recklessly, while material to Jones’

Superior Court suit for misrepresentation, is immaterial to

Jones’ claim here that the ALJ should not have given weight to

Lopez’s opinion.

Since both the letter and the transcript undermine the

credibility of Dr. Lopez’s report, both pieces of evidence “might

have changed the outcome of the prior proceeding.” Melkonyan,

501 U.S. at 98. Although the government correctly observes

that the ALJ did not rely exclusively on Dr. Lopez’s report, it is

apparent that Lopez’s conclusion that Jones was only mildly

impaired did substantially inform the ALJ’s opinion. The ALJ

stressed Lopez’s “opin[ion] that the claimant had full ability to

use his upper and lower extremities regarding work-related

activities.” ALJ Op. at 8. Indeed, the judge recounted Dr.

Lopez’s findings in greater detail than those of any other

physician including Dr. Sardana, the treating physician.

Accordingly, evidence that Lopez’s conduct in the course of

examining Jones “would warrant disciplinary action,” Bd. Med.

Letter, and that his report on Jones’ physical condition contained

“a false representation of material fact,” Sup. Ct. Tr. 245, might

have prompted the ALJ to assign less weight to Lopez’s opinion

and thus to reach a different result. We will therefore direct a

remand to the Commissioner because the additional evidence

proffered by amicus and Jones satisfies the requirements of

sentence six of § 405(g). See Jackson v. Chater, 99 F.3d 1086,

1089-90, 1097 (11th Cir. 1996).

16

IV

For the foregoing reasons, we reverse the judgment of the

district court and remand the case to that court with instructions

to remand to the Commissioner for further proceedings

consistent with this opinion.

So ordered.