# Margaret Williams v. Donna E. Shalala, Secretary, United States Department of Health and Human Services

> Court of Appeals for the D.C. Circuit · July 9, 1993 · 997 F.2d 1494

URL: https://www.frixlaw.com/law-library/cases/9484468

## Case

- **Full name:** Margaret WILLIAMS, Appellant, v. Donna E. SHALALA, Secretary, United States Department of Health and Human Services, Appellee
- **Court:** Court of Appeals for the D.C. Circuit
- **Decided:** July 9, 1993
- **Citations:** 997 F.2d 1494; 302 U.S. App. D.C. 292; 1993 U.S. App. LEXIS 17030; 1993 WL 245741
- **Precedential status:** Published
- **Opinion:** Dissent by Wald
- **Judges:** Wald, Henderson, Randolph
- **Cited by:** 82 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9484468

## How later opinions describe it (automated extraction)

- stating that the fact that the ALJ did not “expressly state his reason for not applying the treating physician rule is of no moment because he noted the contradictory evidence in the record, which record supplie[d] the reason” for rejecting the treating physician’s opinion
- stating that a hypothetical question’s failure to accurately reflect a claimant’s condition may be cured by a record showing that claimant, on cross-examination, made the vocational expert aware of any of the claimant’s omitted impairments
- finding that the fact that “the ALJ did not expressly state his reason for not applying the treating physician rule is of no moment because he noted the contradictory evidence in the record, which . . . supplies the reason”
- concluding that the ALJ “did not err by failing to include in the hypothetieals [to the vocational expert] precise physical conditions whose existence rested solely on [the claimant’s] subjective complaints”
- finding that the decision’s reference to contradictory evidence sufficed because the administrative “record supplies the reason” for the decision

## Opinion text

WALD, Circuit Judge,
dissenting:
The majority upholds the administrative law judge’s (“ALJ”) conclusion that Margaret Williams, a 64 year old woman with borderline range intelligence and a history of depression who suffers from a severe somato-form disorder and whose entire employment history consists of one week over a decade ago as a cleaning woman, is not disabled within the meaning of Social Security Administration (“SSA”) regulations and is qualified to work as, inter alia, a file clerk or telephone receptionist. I believe this improbable conclusion was reached by the ALJ on the basis of a misapplication of the treating physician rule as well as a flawed hypothetical posed to the vocational expert (“VE”). Accordingly, I dissent.
A Treating Physician
The established rule is that an ALJ must accord substantial weight to the findings of a treating physician such as Dr. Dobbs in social security disability cases, see Poulin v. Bowen, 817 F.2d 865, 873 (D.C.Cir.1987), particularly where, as here, there is agreement among all of the medical experts regarding the existence of a disorder and the only dispute concerns its severity, see Murdaugh v. Secretary of Dep’t of Health and Human Services, 837 F.2d 99, 102 (2d Cir.1988). In this case, the claimant’s ultimate eligibility for benefits hinges on extremely subtle distinctions such as, whether Williams suffers “marked” or only “moderate” difficulties in maintaining social functioning. The majority implicitly concedes, see Majority Opinion (“Maj. op.”) at 1499, that of the several medical professionals engaged by the SSA to examine Williams, only Dr. Sehiff provided relevant evidence contradicting Dobbs’ conclusion that Williams’ somatoform disorder met the various listing level requirements. Thus, this case came down to a contest between the opinion of Williams’ treating physician, Dr. Dobbs, and the views of Dr. Sehiff, a psychologist who saw Williams on only one occasion.
On the one hand, Dobbs’ assessment was based upon approximately 20 years of treating Williams, with frequent visits in the neighborhood of one every few months. On the other hand, Sehiff s contrary position was not only formed from a single visit, but more importantly, was qualified by his own admission that the “[r]ecords of her psychiatric treatment, from the psychiatrist who has apparently treated her for many years, should be quite helpful in shedding further light *1502 upon Ms. Williams’ emotional status.” In balancing Dobbs’ judgment, which is entitled to substantial weight, against SchifFs, which deserves considerably less deference, the scales tip heavily in favor of Dobbs. See Allen v. Weinberger, 552 F.2d 781, 786 (7th Cir.1977) (“[Ojnce it is determined that an impairment exists, the opinions of the treating physician are entitled to substantially greater weight than the impressions of a doctor who sees the claimant only once.”) (internal citations omitted). The length of the treating physician’s relationship with the patient is particularly important in this case because Williams’ disorder is psychiatric in nature, where extended periods of observation are often necessary to reveal the full extent of the dysfunction. See Poulin, 817 F.2d at 873 (“unlike a broken arm, a mind cannot be x-rayed”). For instance, it seems unlikely that a claimant’s ability to maintain social functioning on a sustained basis would be susceptible to precise calibration on the basis of one brief appointment.
The majority contends nonetheless that Dobbs’ diagnosis of total disability is suspect because of alleged inconsistencies in his findings between 1987 and 1989 regarding the severity of Williams’ disability. I can find no such contradictions. In 1987, Dobbs issued a medical examination report in which he concluded: “This patient is, in my opinion, permanently and totally disabled for work due to her chronic mental problems.” In a 1988 letter, he wrote again that Williams “is totally disabled for work.” Finally in 1989, using for the first time the SSA’s Psychiatric Review Technique (“PRT”) form, which requires the psychiatrist to check boxes corresponding to the listing level requirements, Dobbs checked the boxes indicating that Williams could not work. Thus, his bottom line analysis has been entirely uniform.
The majority, however, insists that Dobbs reported inconsistently on Williams’ ability to maintain a level of social functioning that would permit any kind of employment. Thus, in 1987, he noted that she was “tense, sometimes depressed,” but otherwise exhibited “normal” appearance and behavior. In the 1988 letter, he wrote that Williams “suffers from moderate difficulties in social functioning,” and in 1989, on the PRT, he checked the box indicating that she had “marked” difficulties in maintaining social functioning. I do not believe there was sufficient deviation among these three assessments to warrant tossing out Dr. Dobbs’ overall and consistent conclusion that Williams could not maintain a level compatible with holding down a job. However, even if there was a material variation, the obvious explanation for that variation was the gradual but persistent worsening of Williams’ condition. 1 In fact, in his 1989 report, just prior to the second hearing before the ALJ, Dr. Dobbs wrote that Williams had “report[ed] recent severe difficulty with memory (missing appointments), some problems with motor coordination (balance?) and blackouts.” I see no reason why the treating physician’s conclusion that, by 1989, his patient’s condition had deteriorated to the point of meeting a listing level requirement should be rejected because one and two years earlier, he believed her condition was less severe. 2
In sum, it appears to me that the ALJ improperly inverted the treating physician rule — deferring too heavily to Dr. Schiffs one-shot conclusion while according far too little weight to Dr. Dobbs’ long-term exposure to the patient. If there was a basis in the record for treating the treating physician’s findings so cavalierly, it certainly was not adequately revealed by the ALJ. “If the ALJ wishes to disregard the opinion of the treating physician, he must make findings setting forth specific, legitimate reasons for doing so that are based on substantial evi *1503 dence in the record, even where the treating physician’s opinion is controverted by the Secretary’s consultant.” Fife v. Heckler, 767 F.2d 1427, 1431 (9th Cir.1985); see Simms v. Sullivan, 877 F.2d 1047, 1050, 1052 (D.C.Cir.1989). Here, the ALJ explained only:
Dr. Dobbs has indicated that the claimant has an anxiety related disorder, somato-form disorder and a personality disorders [sic] which are of Listing levels of severity. However, the Administrative Law Judge finds that these conclusions are not supported by substantial psychiatric evidence of record which shows that the claimant does, in fact, have a somatoform disorder but that this condition is clearly not of Listing level of severity....
Further, there is no dispute that Dr. Dobbs provided the only medical evidence of Williams’ condition from the time of the first hearing before the ALJ in 1988 to the second hearing in 1989. However, the ALJ failed to mention the evidence in Dr. Dobbs’ 1989 report suggesting deterioration in Williams’ social functioning, stating only that “there has been no significant change in the claimant’s medical condition since the prior hearing decision.” Just a few weeks ago, in a not totally dissimilar case, this court reversed and remanded a decision to an ALJ for a specific explanation of why the treating physician’s opinion was rejected. See Smalls v. Shalala, 996 F.2d 413 (D.C.Cir.1993). I believe that should have been done here as well.
B. ALJ’s Hypothetical
The majority acknowledges that the hypothetical posed by the ALJ to the VE failed to describe Williams’ undisputed limited education and poor spelling and mathematical skills. However, it contends that any deficiency was cured because the “VE stated that he ‘took into account that she has an 8th grade education,’ ” and further, because Williams’ counsel was allowed to propound a hypothetical highlighting Williams’ limited abilities. Maj. op. at 1499. I disagree that either factor repaired the incomplete hypothetical. First, the majority omits that the VE answered the hypothetical on the assumption not only that Williams had an 8th grade education, but that she could perform at that level as well, an assumption that in Williams’ ease is downright wrong. That is, the VE was quite specific that the jobs he had identified “require[d] that a person be able to do educational tasks equivalent to the 8th grade level,” concededly an impossibility for Williams. Thus, the fact that the VE took into account Williams’ formal 8th grade education exacerbated the hypothetical’s omission of her below 8th grade academic skills. See Cunningham v. Heckler, 764 F.2d 911, 918 (D.C.Cir.1985) (ALJ on remand should instruct VE that claimant’s skills are “well below what one might expect from someone with a high-school education”).
Second, simply because Williams’ counsel was subsequently allowed to ask the VE a hypothetical which more accurately described the real level of her academic skills did not cure the error of the ALJ’s misleading hypothetical. The ALJ made abundantly clear that his conclusion that Williams was capable of performing jobs existing in the economy rested on the VE’s “response to a hypothetical question propounded by the Administrative Law Judge ” (emphasis added). Indeed, in response to Williams’ counsel’s hypothetical, the VE admitted that Williams probably could not perform the jobs he had identified. Because the ALJ’s hypothetical did not accurately describe the claimant’s impairments, the response of the VE cannot furnish the substantial evidence of employability on which the ALJ specifically relied. See Simms, 877 F.2d at 1053 ; Diabo v. Secretary of Health, Education & Welfare, 627 F.2d 278, 283 (D.C.Cir.1980).
In sum, I believe the ALJ improperly found Williams ineligible for disability benefits by failing to give sufficient weight to the opinion of her treating physician and by posing a deficient hypothetical to the VE. I note in conclusion that in a case with closer facts, I might be more inclined to give the agency the benefit of any doubt. But the notion that a 54 year old woman with no real work experience of any sort, who eannot make change from a dollar, and who has been treated by a psychiatrist over a 20 year period for illnesses including reported blackouts and dizzy spells is employable as a telephone receptionist, file clerk, or domestic *1504 worker seems to me patently implausible. In Williams’ case, seemingly small errors in the proceedings have brought us to an absurd and regrettable result. 3
I respectfully dissent.
. The majority posits that Dobbs, in his 1987 report, "stated that Williams's condition was chronic rather than episodic, thus implying that the severity of her symptoms remained relatively constant.” Maj. op. 1498. Actually, all Dobbs found was that Williams' illness was not "episodic or cyclical.” This conclusion in no way suggested that her condition was fixed or that the severity of her symptoms was undeviating; a steady worsening would be neither episodic nor cyclical.
. Neither the majority nor the ALJ suggests that Dobbs' conclusion in 1989 was falsified or distorted for the benefit of Williams, and certainly no evidence in the record, substantial or otherwise, supports this inference.
. It is interesting to note, in passing, that there is evidence in the legal literature to suggest that female applicants like Williams, who have been housewives for most of their lives, do not fare as well as others in convincing ALJ’s (90% of whom are male) or medical professionals used by the agency that their "subjective complaints” reflect actual debilitating illnesses. See Linda G. Mills, Recent Developments, A Calculus for Bias: How Malingering Females and Dependent Housewives Fare in the Social Security Disability System, 16 Harv. Women’s L.J. 211 (1993). This circumstance underscores the need to scrutinize closely apparent errors in the records of such cases to insure that they are not prejudicial.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9484468. Public record. Not legal advice.