Petition for Writ of Certiorari — Fink v. Barnhart

6

requested of respondent on June 27, 2005 any statistical

evidence of the frequency of treating physician consultative

examinations. Instead, respondent routinely employs “key

consultative examination providers” (See 20 CFR

404.1519s(e)), who tend to develop a relationship with the

Administration, in preference to treating physicians. Social

Security Law and Practice’ at Sect. 37:74, p.63 pointedly notes

that these consultative physicians "are employed and paid by the

government for the purpose of defending against a disability

claim...."

As more than four million Social Security Disability

claims were decided in 2004,’ the scope and import of the cases

at bar can hardly be overstated. Petitioners urge that this

constitutes an important question of federal law that should be

settled by the Supreme Court.

SSA also introduced regulations to require that SSA

recontact the treating physician by telephone or mail in an

attempt to resolve perceived discrepancies prior to rejecting his

findings in favor of those of a non-treating physician consultant

(20 CFR 404.1512(e)(1)). “Enforcing the Agency’s Duty to

Recontact Physicians” was one of the three “Hot Topics in

Federal Court Litigation” at the November 2004 conference of

the National Organization of Social Security Claimants’

Representatives. There is a split between the Circuits on this

issue, which must be resolved. The Fifth Circuit, in the cases

below, held that failure to comply with this regulation

constitutes harmless error. But in the Eighth Circuit cases of

Bowman v. Barnhart, 310 F.3d 1080 (8" Cir. 11/20/2002) and

O'Donnell v. Barnhart, 318 F.3d 811 (8" Cir. 02/07/2003), 32,

and in the Tenth Circuit cases of White v. Massanari, 287 F.3d

, Travers, Timothy E., ed., Social Security Law and Practice, Clark,

- Boardman, Callaghan (Deerfield, IL., 1993).

4

U.S. Office of Disability Programs, January 2005

7

903 (10" Cir. 2001) and Robinson v. Barnhart, 366 F.3d 1078

(10" Cir. 2004), the courts of appeals remanded for failure to

comply with 20 CFR 404.1512(e)(1). This conflict between the

Circuits must be resolved.

A third such regulation requires SSA to consider the

factors of 20 C.F.R. 404.1527(d)(2), regarding the nature of the

competing treating and non-treating physician opinions, prior to

rejecting the findings of the treating physician. Again, the

Circuits are split. The Fifth Circuit, in the cases below, found

failure to comply with this regulation to be harmless error. The

Second Circuit in Clark v. Commissioner of Social Security,

143 F.3d 115, 118 (2d Cir. 1998), the Sixth Circuit in Wilson v.

Commissioner of Social Sec., 378 F.3d 541 (6" Cir. 2004), and

the Tenth Circuit, in Robinson v. Barnhart, 366 F.3d 1078 (10"

Cir. 2004) and Goatcher v. U.S. Department of Health &

Human Servs., 52 F.3d 288, 290 (10th Cir. 1995) all found

failure to consider the factors of 20 C.F.R. 404.1527(d)(2) to be

reversible error. This conflict between the Circuits must also

be resolved.

In the cases at bar, the Fifth Circuit Court of Appeals

found that failure to comply with 42 USC 423(d)(5)(B)and

implementing regulations constituted “harmless error.” But the

Sixth Circuit, in Wilson v. Commissioner of Social Sec., 378

F.3d 541 (6" Cir. 2004) addressing the same argument, found

that failure of respondent to follow its own procedural

regulations, particularly 20 C.F.R. 404.1527(d)(2), constitutes

deprivation of a “substantial right” and is reversible error. This

division between the Circuits must also be resolved.

Finally, the Fifth Circuit, in the cases below, found that

the obligation to develop the record can be shifted to claimants,

presumably even unrepresented claimants. The Tenth Circuit,

in White v. Barnhart, 287 F.3d 903, 908 (10th Cir. 2001) and

Robinson v. Barnhart, 366 F.3d 1078 (10" Cir. 2004) expressly

rejected this argument. This conflict between the Circuits must

also be resolved.

8

Thus, at least four Circuits are in conflict on matters that

directly affect millions of disabled claimants each year.

Accordingly, petitioners respectfully urge that it is appropriate

that the Supreme Court resolve these issues, which are so

important to millions of disabled Americans each year.

The Congress has instructed the Social Security

Administration in the use of treating physicians by amending

the Act. Only the Judiciary can enforce the will of the

Congress.

1. Whether the court of appeals erred in holding that,

in Social Security Disability claims, failure of the Social

Security Administration to comply with 20 C.F.R.

404.1527(d){2) and implementing regulations, which require

that the Commissioner “make every reasonable effort to

obtain from the individual's treating physician...all medical

evidence, including diagnostic tests, necessary in order to

properly make such determination,” constitutes harmless

error.

Prior to 1984, the Social Security Act contained

provisions for consultative examinations by non-treating

physicians but no restrictions on their use.

In 1982, Respondent was engaged in an accelerated

program of review of eligibility for recipients of Social Security

Disability benefits. The program resulted in an avalanche of

complaints to Congress about the methods of evaluation. —_In

the 97th Congress, the Senate Finance Committee heard such

complaints as that of Ethel A. Kage, of Reed City, Michigan,

whose husband had died, she felt, partially as a result of

improper termination of his benefits due to deficiencies in the

system of disability evaluation. Her main complaint was that

the Social Security Administration "ignored" the findings of the

physician who had treated her husband for a number of years

and instead relied upon the findings of a consultative physician

9

who had performed a brief exam.

Also submitted into the Congressional Record was a

letter from Sen. John Heinz, Chairman of the Special

Committee on Aging, which stated:

Psychiatric consultants have publicly complained that

the brief time allotted to them to evaluate the patient's

- condition is altogether insufficient to reach a valid

conclusion about the individual's mental health, and the

American Psychiatric Association (APA) has pointed

out that the consultations are too cursory and too brief

to be of value.°

Senator Cohen noted that the Act did not even provide

the deference to the treating physician accorded in workers’

compensation cases.’

In 1984, the Senate finally passed SB 476, subsequently

including its provisions as an amendment to HR 3755, which it

passed 96-4. The provisions of that amendment subsequently

became 42 USC 423(d)(5\B).

Petitioners urge that the proper interpretation of that

amendment includes the following:

1. Consultative exams are designed to be used by SSA

only where there is conflicting medical evidence that it is

necessary to resolve in order to make an _ eligibility

determination. Instead, in many cases, they are in fact ordered

routinely, used as a counterpoint to the report of the treating

physician, and relied upon almost exclusively.

2. The amendment directs SSA to give great credence to

, Hearing before the Committee on Finance of the United States

Senate, Ninety-Seventh Congress, Second Session, August 18, 1982, p.54.

. Hearing before the Committee on Finance of the United States

Senate, Ninety-Seventh Congress, Sccond Session, August 18, 1982, p.17.

3

Ibid.

10

the findings and reports of a beneficiary's treating physician

who more often than not has lived closely with that subject's

disabilities and through his/her hands-on experience has

developed a more thorough knowledge of the illness than the

consultative examiners who may give no more than 30 minutes

for the evaluation.

3. SSA complains that treating physicians too often

provide mere opinion without the necessary test results or

specific medical findings upon which the disability examiner

can make the necessary determination. This amendment is

telling SSA to ask the proper questions of the treating physician

so it can elicit a helpful response. If there are tests to be

conducted and scientific assessments made of an individual's

functional capabilities, SSA should work with the treating

physician to get those answers. Under the provisions in this

amendment, we should witness far fewer consultative exams

and more thorough and factually based reports by treating

physicians.

Should the Court be inclined to question this

interpretation, it should first note that the foregoing was taken,

almost verbatim and specifically including the phrase “used as

a counterpoint to the report of the treating physician,” from the

remarks of the lead author’ of S.B. 476, Sen. Carl Levin, to the

full Senate in urging the amendment just prior to its passage.”

This is now the law of the land. 42 USC 423(d){5)(B)

provides:

In making any determination the Commissioner of

Social Security shall make every reasonable effort to

obtain from the individual's treating physician (or other

treating health care provider) all medical evidence,

including diagnostic test, necessary in order to properly

* With Sen. William S. Cohen of Maine

» See Appendix “L” for the full text.

11

make such determination, prior to evaluating medical

evidence obtained from any other source on a

consultative basis. (Emphasis supplied)

That is, respondent’s obligation to a claimant is such

that it must try every reasonable means to base its

determination on the findings and opinions of the treating

physicians until it can be fairly said that it would be

unreasonable to ask it to make further effort. Only then can

respondent consider findings of a non-treating physician.

Claimant urges this to be clearly the most insightful means of

determining a claimant’s true condition. But, wise or unwise,

prudent or imprudent, that is the law this Court now interprets.

In Schisler v. Heckler, 787 F.2d 76 (2™ Cir. 1986), the

Second Circuit noted non-acquiescence with the newly enacted

“treating physician rule”’and directed respondent to

expeditiously “state in relevant publications...that

adjudicators...are to apply the treating physician rule of this

circuit.” In response, respondent offered a proposed Social

Security Ruling (SSR) that was rejected by the Second Circuit

in Schisler v. Bowen, 851 F.2d 43 (2™ Cir. 1988). The Second

Circuit offered instead an approved SSR.

Finally, the Social Security Administration enacted in

1991 new regulations on consultative and treating physicians

essentially adopting the proposals of the Second Circuit.

Included among these are 20 CFR 404.1512 and

404.1527(d)(2).

20 CFR 404.1512(e) and (f) provide that the consultative

examination shall be ordered only if still necessary after

recontacting the treating physician. The relevant portions of

these regulations read as follows:

(e) Recontacting medical sources. When the evidence

we reccive from your treating physician or psychologist

or other medical source is inadequate for us to

determine whether you are disabled, we will need

additional information to reach a determination or a

12

decision. To obtain the information, we will take the

following actions.

(1) We will first recontact your treating physician or

psychologist or other medical source to determine

whether the additional information we need ts readily

available. We will seek additional evidence or

clarification from your medical source when the

report from your medical source contains a conflict

or ambiguity that must be resolved, the report does

not contain all the necessary information, or does

not appear to be based on medically acceptable

clinical and laboratory diagnostic techniques.

(f) Need for consultative examination. If the

information we need is not readily available from the

records of your medical treatment source, or we are

unable to seek clarification from your medical source,

we will ask you to attend one or more consultative

examinations at our expense. See 404.1517 through

404.1519 for the rules governing the consultative

examination process. Generally, we will not request a

consultative examination until we have made every

reasonable effort to obtain evidence from your own

medical sources.

We will not evaluate this evidence until we have

made every reasonable effort to obtain evidence

from your medical sources. (Emphasis supplied)

Counsel for Petitioners has repeatedly obtained remands

from the district courts over the past decade when ALJs have

failed to comply with the criteria of 20 CFR 404.1512(e)(1).

All of these cases have been unreported, though a number of

them were summarized in Lewis v. Chater, 1996 WL 43111

(E.D. La. July 31, 1996) (No.Civ.A.95-3402) (attached to

plaintiff's Fifth Circuit brief in Fink).

13

The Fifth Circuit took its first step toward enforcement

of 42 USC 423(d)(5)(B) and implementing regulations in

Newton v. Apfel, 209 F.3d 448 (5" Cir. 2000). More recently,

in the Eighth Circuit cases of Bowman v. Barnhart, 310 F.3d

1080 (8" Cir. 11/20/2002) and O ‘Donnell v. Barnhart, 318 F.3d

811 (8" Cir. 02/07/2003), 432, and in the Tenth Circuit cases of

White v. Massanari, 287 F.34903 (10" Cir. 2001) and Robinson

v. Barnhart, 366 F.3d 1078 (10" Cir. 2004), the courts of

appeals remanded for failure to comply with 20 CFR

404.1512(e)(1).

The amendment to the Act and the subsequent

regulations do not remove from the ALJ the authority to make

the final evaluation of the evidence. It merely provides

procedures to ensure that every reasonable effort is made to turn

to the treating physician(s) to obtain the medical evidence upon

which the decision is based. When the treating physician(s)

cannot provide that information, a consultative examination is

ordered, employing a treating physician if he is qualified and

willing (20 CFR 404.1519h) or a non-treating physician if he is

not.

But the consultative examination cannot be ordered until

the treating physician is contacted in an attempt to obtain the

necessary information, including an explanation of perceived

discrepancies.

And, as noted, 42 USC 423(d)(5)(B) and 20 CFR

404.1512(f) prohibit even considering evidence from a

consulting examiner until “every reasonable effort” 1s made to

obtain the requisite information from the treating physician

through recontact as provided in 20 CFR 404.1512(e)(1).

Respondent has regularly ignored the regulations and the

mandate of 42 USC 423(d)(5)(B), and, presumably, the ALJs

are not instructed in their implementation. Otherwise, it is

unlikely that the ALJ in Passaro v. Barnhart, E.D.LA. No.04-

1300, would have openly expressed his disdain for the Reform

Act as follows:

14

Q Well, you present me with a difficult case,

ma’am. Okay. I -- there are doctors here who say that

you know basically, you’re totally incapacitated.

A And well, I do agree.

Q And then I have a consultative exam from Dr.

Forette, which basically says, he can’t find very much

wrong with you at all and you need to go to work.

A_ I mean this is three doctors to one.

Q Well -- yeah. That’s true. So maybe it should --

I’m not sure I’m supposed to evaluate on the vote basis.

A Well, yeah. I mean these doctors have known

me since the wreck happened. One of the doctors has

been my doctor since I had been 19 years old. And he

knows me.

Q Well, hat’s (sic) true.

A And I’m to somebody just to -- I sit around and

it’s very, it’s boring. And it’s --

Q_ The only problem | have to discover with these,

these -- when the treating physicians give these kind of

summary opinions. Is that a lot of times they want the

best for their patient. And they’re basically become

patient advocates and they strew (sic) things in favor of

the patient. Which is I think natural for them to do. But

what it means is that I don’t get an objective assessment

from them. Because they want to you know, see the --

see their patient get what they want. Which is natural.

Because they’re the patient. But I, what I have to decide

is, is whether this is an objective medical opinion, based

on medical records that support it or whether this is

basically patient advocacy. If you understand what |

mean.

A. I did not understand that. What did you mean?

Q What I mean is, is that I got a lot of treating

doctors who will basically give reports that are not

15

accurate because they want to do a favor.

A Keep me coming back.

Q Well, they want to do a favor for their, their

patient. And if their patients want it, then wi Say it

whether it’s true or not.

That ALJ rejected the findings of the irestiiie physicians.

The United States District Court for the Eastern District of

Louisiana rejected the recommendation of the U.S. Magistrate

and remanded the case for rehearing, which is now pending.

Nevertheless, the foregoing demonstrates that the ALJs do not

feel constrained by 42 USC 423(d)(5)(B).

In the cases at bar, accepting the findings of the treating

physicians would have resulted in a finding of disability. But,

in rejecting those findings, the respondent:

1. Ordered consultative examinations without first

attempting to recontact the treating physician to obtain the

needed information, in violation of 20 CFR 404.1512(e)(1);

2. Ordered consultative examinations without soliciting the

treating physician to perform the examination, in violation of 20

CFR 404.1519h;

3. Not only considered, but also relied upon, the findings of

consulting examiners without first recontacting the treating

physicians to resolve a perceived conflict between office notes

and findings on a medical assessment form and to determine the

basis for the treating physician’s endorsement of symptoms

which the ALJ considered not supported by clinical findings, in

violation of 20 CFR 404.1512(f);

4. Rejected the findings of the treating physicians without

recontacting them as required by 20 CFR 404.1512(e)(1); and

5. Rejected the findings of the treating physicians without

considering the criteria of 20 C.F.R. 404.1527(d)(2).

All of which violate, as well, the instructions and intent of 42

USC 423(d)(S)(B).

Finally, the ALJ’s decision in Rochester offered no

reasons whatever for rejecting Dr. Holden’s findings. In

16

Goodley v. Harris, 608 F.2d 234, 236 (Sth Cir. 1979) the Court

of Appeals held that an ALJ may not arbitrarily choose to

ignore uncontroverted medical evidence. And 20 C.F.R.

404.1527(d)(2) states, “We will always give good reasons in

our notice of determination or decision for the weight we give

your treating source’s opinion.” By failing to provide any

reasons, much less “good reasons,” for rejecting Dr. Holden’s

findings, the ALJ committed reversible error.

It is difficult to imagine in the instant cases how the

SSA could have controverted the treating physician rule and the

attendant regulations more than it did. In each case, had the

appropriate law and regulations been followed, it is likely, not

just possible, that a different decision would have resulted. Had

appropriate weight been afforded the opinions of the treating

physicians, a different decision definitely would have resulted.

Yet the Fifth Circuit held that failure to comply with the

Act and regulations constitutes harmless error, stating,

“Because Fink and Rochester were afforded the opportunity to

supplement their respective records with additional medical

reports from their treating physicians, we hold that any

procedural errors committed by the commissioner were

harmless and did not affect Fink’s or Rochester’s substantial

rights. See Morris v. Bowen 864 F.2d 333, 335 (S" Cir. 1988).”

But a claimant cannot know how to supplement the

record to satisfy an ALJ’s reservations about treating physician

opinions unless and until the ALJ articulates them. And in the

rare event that the ALJ does provide sufficient specificity in his

decision to afford supplementation, is the claimant constrained

to submit the additional evidence to the Appeals Council and

wait some two years for redress? And, generally, is not such a

holding clearly inconsistent with Congressional intent?

The Fifth Circuit puts the “harmless error” rule in

perspective in cases such as Frank v. Barnhart, 326 F.3d 618

(5 Cir. 2003) and Anderson v. Sullivan, 887 F.2d 630, 634 (5"

Cir. 1989) when it explained, “The major policy underlying the

17

harmless error rule is to preserve judgments and to avoid waste

of time.”

In Morris, claimant had been unable to work around

machinery. A vocational expert subsequently found a number

of jobs claimant could perform, two of which, “Jawn care” and

“grass Cutting,” required work around machinery. However, the

remainder of the jobs found were within the limitations

imposed by the ALJ, so that it did not matter whether the

claimant could work on lawns. The Court stated that:

[P}rocedural perfection in administrative proceedings is

not required. This court will not vacate a judgment

unless the substantial rights of a party have been

affected. The procedural improprieties alleged by

Morris will therefore constitute a basis for remand only

if such improprieties would cast into doubt the

existence of substantial evidence to support the ALJ’s

decision.

Thus the acceptance by the ALJ of improper jobs did not

prejudice Morris in any way, as the ALJ correctly found other

jobs he could perform. That is hardly equivalent to the situation

in the case at bar. The total abandonment of the implementing

regulations of and the provisions of 42 USC 423(d)(5)(B)

constitutes much more than a bare lack of “procedural

perfection.” It constitutes a flagrant violation of a claimant's

right to have his or her treating physician provide the evidence

on which a determination of eligibility for disability benefits is

based, a right conferred by the same body that drafted the Social

Security Act, the U. S. Congress.

Moreover, if failure to comply with the regulations can

be corrected by allowing opportunity to supplement the records,

why does HALLEX I-5-310 Attachment IV provide:

10. How should the Appeals Council respond to a

challenge to the admissibility of a CE report obtained at

the hearing level without first making every reasonable

effort to obtain the needed information from the

18

claimant's medical source(s)?

As indicated above, we are precluded from evaluating

a CE report obtained pursuant to §

404.1512(f)/416.912(f) until the needed information is

received from the claimant’s medical source(s) or every

reasonable effort has been made to obtain it. If a

decision shows that the ALJ evaluated a CE report

before the needed information was received or every

reasonable effort had been made, there is an error of

law, and the Appeals Council will grant review to

take appropriate corrective action. (emphasis

supplied)

Counsel for Petitioners has obtained a number of

remands from the Appeals Council for failure to comply with

20 CFR 404.1512(e)(1) and related regulations. /n re Jerry

Edwards (attached to Plaintiffs brief in Fink), is selected as

representative, as there was a conflicting opinion from a non-

treating source. In Edwards, the Appeals Council remanded,

saying:

In accordance with 20 CFR 404.1512(e), when the

reports from a treating physician do not contain all of

the necessary information to support the ultimate

assessment provide(d) by the physician, the treating

source must be recontacted and asked to provide a new

report, a more detailed report, or copies of additional

existing medical information. While unreasoned or

undocumented opinions by treating physicians cannot

be determinative, section 404.1512(e) provides that an

effort must be made to obtain evidence from treating

sources whose opinions lack the appropnate

documentation or reasoning.

If, in the opinion of respondent’s own Appeals Council,

the availability of supplementation of the record does not

obviate the need for remand, then, by respondent’s own

decisions, failure to make every reasonable effort obviously

19

constitutes reversible error.

The comments in the Federal Register accompanying the

promulgation of 20 CFR §§ 404.1512 and 404.1527 clarify the

Commissioner’s intention to make recontact with the treating

source mandatory, rather than permissive, in order to afford

special status to treating sources:

Recontact with treating sources to complete the case

record and to resolve any inconsistencies in the

evidence is one of the principal provisions of this set of

rules. See Sections 404.1512(d) and 416.912(d) of

these final regulations. Far from being restrictive, the

intent of these rules is to require such contacts.56 Fed.

Reg. 36950-1 (August 1, 1991) (Emphasis added).

If the right to have the opinions of treating physicians

serve as the basis for a determination of disability 1s not a

“substantial right,” then the Fifth Circuit panel is correct, and

the U.S. Congress is wrong, for Congress considered the right

sufficiently substantial to amend the Social Security Act to

assure that right to claimants. To the best of petitioners’

knowledge, this is the only occasion on which Congress felt

strongly enough about a question of evidence to Amend the

Social Security Act. They amended it to ensure that decisions

are based on information from treating physicians and

specifically not from non-treating examiners used as a

“counterpoint” to the report of the treating physician.

The Fifth Circuit also distinguished the cases at bar from

Newton v. Apfel, 209 F.3d 448 (5" Cir. 2000) by noting that

Newton was a case in which there were no contradictory

opinions from non-treating physicians. Of course, petitioner

noted that distinction in Fink’s original brief (p.38) and urged

the expansion of Newton to the cases at bar. But there is no

basis for that distinction, and the legislative history

demonstrates that it was precisely cases in which a non-treating

examiner was “used as a counterpoint” to the treating

physicians for which the Act was amended.

20

Moreover, the Fifth Circuit does not deny the

applicability of the Act and regulations to the cases at bar, so

that it, in fact, does expand the Newton decision to the instant

cases. Thus, if the availability of supplementation of the record

did not render the error harmless in Newton, how can it be

harmless in the cases at bar?

There is also a split in the Circuits as to the need for an

ALJ to address the factors of 20 C.F.R. 404.1527(d)(2) (See

Robinson v. Barnhart, 366 F.3d 1078 (10" Cir. 2004)), 930, in

which the Tenth Circuit remanded for failure to address the

factors of 20 C.F.R. 404.1527(d)(2))

Additionally, the Newton court said:

Several federal courts have concluded that an ALJ is

required to consider each of the § 404.1527(d) factors

when the ALJ intends to reject or give little weight to a

treating specialist's opinion. See Clark v. Commissioner

of Social Security, 143 F.3d 115, 118 (2d Cir. 1998); .

Goatcher v. U.S. Department of Health & Human

Servs., 52 F.3d 288, 290 (10th Cir. 1995); Dwyer v.

Apfel, 23 F. Supp. 2d 223, 228 (N.D.N.Y. 1998);

Amidon v. Apfel, 3 F. Supp. 2d 350, 355-56 (W.D.N.Y.

1998); McDonald v. Apfel, No. CA 3-97-CV-2035R,

1998 WL 159938, *8 (N.D. Tex. Mar. 31, 1998). This

court now similarly holds that an ALJ is required to

consider each of the § 404.1527(d) factors before

declining to give any weight to the opinions of the

claimant's treating specialist. The ALJ failed to perform

this analysis, which should be conducted on remand.

The foregoing makes no distinctions between cases

wherein there are or are not contrary opinions by consulting

physicians, nor has anyone proposed any basis for such a

distinction, nor do other Circuits make such distinction. How

would the ability to supplement the record render failure to

consider the factors of 20 C.F.R. 404.1527(d)(2) harmless?

And how does the ability to supplement the record render

21

harmless the failure to employ a treating physician for a

consultative examination?

Respondent offered the same “harmless error” argument

in Wilson v. Commissioner of Social Sec., 378 F.3d 541 (6" Cir.

2004).

Because petitioners consider the opinion to be

dispositive, much of it is quoted herein:

It is an elemental principle of administrative law that

agencies are bound to follow their own regulations. As

the Ninth Circuit well summarized in applying this principle:

[30] The Supreme Court has long recognized that a

federal agency is obliged to abide by the regulations it

promulgates. See Vitarelli v. Seaton, 359 U.S. 535, 545

(1959); Service v. Dulles, 354 U.S. 363, 372 (1957);

Accardi v. Shaughnessy, 347 U.S. 260, 267 (1954). An

agency's failure to follow its own regulations "tends to

cause unjust discrimination and deny adequate notice”

and consequently may result in a violation of an

individual's constitutional! right to due process. Where

a prescribed procedure is intended to protect the

interests of a party before the agency, "even though

generous beyond the requirements that bind such

agency, that procedure must be scrupulously observed."

Vitarelli, 359 U.S. at 547 (Frankfurter, J., concurring);

see also Note, Violations by Agencies of Their Own

Regulations, 87 Harv. L. Rev. 629, 630 (1974)

(observing that agency vioiations of regulations

promulgated to provide parties with procedural

safeguards generally have been invalidated by courts).

[31] Sameena, Inc. v. United States Air Force, 147

F.3d 1148, 1153 (9th Cir. 1998) (parallel citations and

circuit court citations omitted). Consistent with this

principle, courts have remanded the Commissioner's

decisions when they have failed to articulate "good

reasons" for not crediting the opinion of a treating

22

source, as §§ 1527(d)(2) requires. See, e.g., Newton v.

Apfel, 209 F.3d 448, 456 (Sth Cir. 2000); Snell, 177

F.3d at 134; see also Halloran, 362 F.3d at 33 ("We do

not hesitate to remand when the Commissioner has not

provided “‘good reasons’ for the weight given to a

treating physician's opinion and we will continue

remanding when we encounter opinions from ALJ's that

do not comprehensively set forth the reasons for the

weight assigned to a treating physician's opinion.").

[34] In particular, the ALJ...did not explain its

application of the factors listed in 20 C.F.R. §§

404.1527(d)(2) to determine the weight given to

DeWys's opinion. Reversal is therefore required.

[35] The ALJ's failure to give "good reasons" for not

crediting DeWys does not constitute harmless error,

notwithstanding the district court's reasoning and the

Commissioner's argument on appeal....Echoing the

district court, the Commissioner contends that,

assuming for argument's sake that the ALJ misread

DeWys's opinion, this mistake qualifies as harmless

error. The Commissioner asserts that the ALJ's rejection

of DeWys's opinion is supported by substantial

evidence, as the ALJ "could" have relied on evidence in

the record--namely, Wilson's testimony and the opinions

of two consulting physicians, which, according to the

Commissioner, contradict DeWys's opinion-to reject

the opinion.

[36] The argument is not persuasive in the context

of this case. A court cannot excuse the denial of a

mandatory procedural protection simply because, as the

- Commissioner urges, there 1s sufficient evidence in the

record for the ALJ to discount the treating source's

opinion and, thus, a different outcome on remand is

unlikely. "[A] procedural error is not made harmless

y+. ok

simply because [the aggrieved party] appears to have

had little chance of success on the merits anyway."

Mazaleski v. Treusdell, 562 F.2d 701, 719.41; see also

Ingalls Shipbuilding, Inc. v. Dir., Office of Workers'

Comp. Programs, 102 F.3d 1385, 1390 (Sth Cir. 1996).

To hold otherwise, and to recognize substantial

evidence as a defense to non-compliance with §§

1527(d)(2), would afford the Commissioner the

ability the violate the regulation with impunity and

render the protections promised therein illusory. The

general administrative law rule, after all, is for a

reviewing court, in addition to whatever substantive

factual or legal review is appropriate, to "set aside

agency action ... found to be. . . without observance of

procedure required by law.” Administrative Procedure

Act, 5 U.S.C. §§ 706(2)(D) (2001).

{37} Our conclusion is consistent with the statement

in Connor v. United States Civil Service Commission,

721 F.2d 1054, 1056 (6th Cir. 1983), that "an agency's

violation of its procedural rules will not result in -

reversible error absent a showing that the claimant has

been prejudiced on the merits or deprived of substantial

rights because of the agency's procedural lapses"

(emphasis added). A procedural right must generally be

understood as “substantial" in the context of this

statement when the regulation is intended to confer a

procedural protection on the party invoking it. The

Supreme Court has recognized the distinction

between regulations "intended primarily to confer

important procedural benefits upon individuals"

and regulations "adopted for the orderly transaction

of business before [the agency}." Am. Farm Lines v.

Black Ball Freight Serv., 397 U.S. 532, 538-39 (1970)

(internal quotation marks omitted). In the former case,

the regulation bestows a "substantial right" on parties

24

before the agency, and "it is incumbent upon agencies to

follow their own procedures. . . even where the internal

procedures are possibly more rigorous than otherwise

would be required." Morton v. Ruiz, 415 U.S. 199, 235

(1974); see also Vitarelli v. Seaton, 359 U.S. 535, 540

(1959); United States ex rel. Accardi v. Shaughnessy,

347 U.S. 260, 267 (1954). In contrast, in the case of

procedural rules "adopted for the orderly transaction of

business," an agency has the discretion "to relax or

modify its procedural rules" and such action “is not

reviewable except upon a showing of substantial

prejudice to the complaining party." Am. Farm Lines,

397 U.S. at 539 (quotation omitted). Section 1527(d)(2)

falls in the former category, creating an important

procedural safeguard for claimants for disability

benefits. Sne//, 177 F.3d at 134.(emphasis supplied)

it 1s noteworthy that the Wilson Court did not even

consider the mandate of 42 USC 423(d)(5)(B). Certainly, if

respondent cannot ignore her own regulations, she cannot

ignore the directive of the U.S. Congress.

2. Whether the court of appeals erred in holding that

this obligation can be shifted to claimants.

Moreover, in the instant cases the Fifth Circuit

effectively delegated to the petitioners the obligation of

developing information that would satisfy the ALJ’s

reservations or perceived inconsistencies, though 20 CFR

404.1512(e)(1) expressly states that respondent will undertake

that task. This is inconsistent with the express holding of the

Tenth Circuit in Robinson v. Barnhart, 366 F.3d 1078 (10" Cir.

2004): |

[32] Third, the ALJ's statement that Dr. Baca's records

did not give a reason for his opinion that claimant is

unable to work triggered the ALJ's duty to seek further

development of the record before rejecting the opinion.

If evidence from the claimant's treating doctor 1s

25

inadequate to determine if the claimant is disabled, an

ALJ is required to recontact a medical source, including

a treating physician, to determine if additional needed

information is readily available. See 20 C.F.R. §§§§

404.1512(e)(1) and 416.912(e)(1) ("We will seek

additional evidence or clarification from your medical

source when the report from your medical source

contains a conflict or ambiguity that must be resolved,

the report does not -contain all the necessary

information, or does not appear to be based on

medically acceptable clinical and laboratory diagnostic

techniques."); see also McGoffin, 288 F.3d at 1252

(holding ALJ had obligation to recontact treating

physician if validity of his report open to question). The

responsibility to see that this duty is fulfilled belongs

entirely to the ALJ; it is not part of the claimant's

burden. White v. Barnhart, 287 F.3d 903, 908 (10th

Cir. 2001). If the ALJ concluded that Dr. Baca failed to

provide sufficient support for his conclusions about

claimant's mental limitations, the severity of those

limitations, the effect of those limitations on her ability

to work, or the effect of prescribed medications on her

ability to work, he should have contacted Dr. Baca for

clarification of his opinion before rejecting it. The ALJ

did not do so.(emphasis supplied)

The decision in White v. Barnhart is at least as direct in

finding that the respondent cannot shift her burden to the

plaintiffs, stating:

Ms. White claims that the ALJ should have recontacted

Dr. Fanning to obtain a more detailed medical

examination and _ disability assessment. The

Commissioner responds by blaming Ms. White for

failing to carry out her "responsibility to bring forth

evidence related to the disability that she claims."

Appellee's Br. at 25. If by this accusation the

26

Commissioner suggests that the ALJ's duty to recontact

a treating physician is contingent on the some further

act by the claimant, the Commissioner is wrong. The

Commissioner, under the governing regulations, must

recontact a treating physician when the information the

doctor provides is "inadequate . . . to determine whether

you [the claimant] are disabled." 20 C. F. R. §§

416.912(e). The regulations do not burden the claimant

with any additional obligation in this regard once the

record is deemed "inadequate."

In the instant cases, the respondent found the evidence

so “inadequate” as to require consultative examinations. She

should first have recontacted the treating physician(s) to attempt

to reconcile perceived inconsistencies or inadequacies.

27

CONCLUSION

The United States Congress understands the importance

of Social Security Disability claims. For these unfortunate

claimants, the decision determines whether they will be able to

relieve the burden on their families with a minimal existence

and whether they will be able to have their medical needs

properly cared for. Because of their numbers, the decision

making system must be somewhat informal. Thus, Lidy v.

Sullivan, 911 F.2d 1075 (5" Cir. 1990) notwithstanding, the few

requests for subpoenas of physicians filed by undersigned

counsel have been uniformly refused. Moreover, Social

Security disability claimants are notoriously unable to pay the

fees of expert testimony, so that treating physicians are not

available for examination by the ALJ.

Accordingly, if an ALJ should have questions of the

treating physician, he would be constrained to call him (even

doctors talk to judges) or send written questions. The

regulations now require it, even when the ALJ is reluctant. If

there are perceived deficiencies in the opinions of treating

physicians, though it may be an additional burden to the ALJ to

contact the treating physician by telephone or by mail, it is one

which must be borne. One cannot simply say, “It would have

been too much trouble to ask the treating physician for an

explanation.”

It is impractical to ask of claimants, especially

unrepresented claimants, that they divine the questions that

would satisfy the reservations of the ALJ and solicit the treating

physicians to answer them. Claimants can barely convince

physicians to execute medical assessment forms. Physicians are

much less likely to ignore inquiries from federal judges.

The total abandonment of the implementing regulations

and the provisions of 42 USC 423(d)(5)(B) constitutes much

more than a bare lack of “procedural perfection.” It constitutes

a flagrant violation of a claimant’s right to have his or her

28

treating physician provide the evidence on which a

determination of eligibility for disability benefits is based, a

right conferred by the same body that drafted the Social

Security Act, the U. S. Congress. Failure to reverse the decision

below would tell Congress that they can pass all the laws

regarding a determination of disability they wish to pass, the

Social Security Administration will ignore those laws, seek and

rely upon whatever opinions it wishes, usually from “key

providers” (See 20 CFR 404.1519s(e)), and do so with

impunity, secure in the knowledge that the judiciary will find

that the “harmless error” or lack of “procedural perfection” does

not invalidate the determination.

Ifthe courts will not enforce the intent of Congress, who

will?

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

PAUL BRIAN SPURLOCK

Attorney for Petitioners

DATE: July 4, 2005

Supreme Court, U.S.

Q,. FILED

05=- 58 JUL 5- 2005

No. ___ OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

MAXANN C. FINK,

Petitioner

v.

JO ANN B. BARNHART,

COMMISSIONER OF SOCIAL SECURITY

Respondent

c/w

IDA J. ROCHESTER,

Ne Petitioner

v.

JO ANN B. BARNHART,

COMMISSIONER OF SOCIAL SECURITY

Respondent

On Petition For Writ of Certiorari

To the Fifth Circuit Court of Appeals

APPENDICES TO PETITION FOR

WRIT OF CERTIORARI

PAUL BRIAN SPURLOCK

Counsel for Petitioners

DISABILITY LAW CENTER,INC.

500 HAGAN AVENUE

NEW ORLEANS, LA 70119

TELEPHONE:(504) 822-2224

No.

In THE

Supreme Court of the United States

MAXANN C. FINK,

Petitioner

v.

JO ANN B. BARNHART,

COMMISSIONER OF SOCIAL SECURITY

Respondent

c/w

IDA J. ROCHESTER,

Petitioner

v.

JO ANN B. BARNHART,

COMMISSIONER OF SOCIAL SECURITY

Respondent ~—

On Petition For Writ of Certiorari

To the Fifth Circuit Court of Appeals

APPENDICES TO PETITION FOR

WRIT OF CERTIORARI

PAUL BRIAN SPURLOCK

Counsel for Petitioners

DISABILITY LAW CENTER,INC.

500 HAGAN AVENUE

NEw ORLEANS, LA 70119

TELEPHONE:(504) 822-2224

APPENDIX A.

APPENDIX B.

APPENDIX C.

APPENDIX D.

APPENDIX E.

APPENDIX F.

APPENDIX G.

APPENDIX H.

APPENDIX I:

APPENDIX J:

APPENDIX K:

APPENDIX L:

ii

INDEX TO APPENDICES

Page

ALJ Decision Denying Benefits to

Petitioner Maxann Fink............... !

Appeals Council Decision, Fink ........ 17

USDC - Magistrate’s Report &

Recommendation, Fink v. Barnhart... . . 20

USDC - Order, Fink v. Barnbart......... 49

USDC - Judgment, Fink v. Barnhart. .... 50

ALJ Decision Denying Benefits to

Petitioner Ida Rochester............... 5]

Appeals Council Decision, Barnhart ..... 59

USDC - Magistrate’s Report & Recom-

mendation, Rochester v. Barnhart...... 62

USDC - Judgment, Rochester......... 80

5" Circuit Court of Appeals, Decision,

Fink c/w Rochester v. Barmhart........ 81

5" Circuit Court of Appeals, Denial of

Petition for Rehearing En Banc........ 84

Senator Levin’s Remarks,

OMS, PREY 20, TOY 6 os oo ook asks 85

APPENDIX A:

SOCIAL SECURITY ADMINISTRATION

Office of Hearings and Appeals

DECISION

IN THE CASE OF | CLAIM FOR

Period of Disability,

- Disability Insurance Benefits, &

Supplemental Security Income

MAXANN C. FINK 436-94-1596

(Wage Earner) (Social Security Number)

Claimant filed concurrent applications for disability

insurance benefits and supplemental security income with a

protective filing date of July 22, 1998. (Ex 6D/1). Following

denial of the claims initially and on reconsideration, she filed a

timely request for hearing. She testified at the hearing, which

was held in Metairie, Louisiana on July 26, 2000. She was

represented by an attorney, Clydia Davenport. Thomas Meunier

testified as vocational expert. Leon Weisberg testified as medi-

cal expert.

Claimant 1s 44 years old. She has a GED and has not

worked in at least the past 15 years. She testified that she last

worked in 1982 and received worker's compensation benefits

for several years thereafter. In her application documents, she

alleged disability since September 19, 1980 due to three rup-

tured discs in her back and two ruptured discs in her neck.

There 1s no evidence of substantial gainful activity after

the alleged onset date. Claimant's wage records reflect only

minimal earnings in 1981 and 1991. (Ex. 8D)

Claimant's insured status under the Act expired on June

]

2

30, 1986. Therefore, to be entitled to benefits on her claim for

disability insurance benefits under Title II of the Act, disability

must be established on or before June 30, 1986.

The medical evidence indicates that Claimant was under

the treatment of Dr. Gessner (orthopedist) from 1981 to Decem-

ber 1986. On January 9, 1981, she reported that she sustained

an injury to her low back a few months earlier. According to Dr.

Gessner, x-rays showed spina bifida and a slight degree of

spondylolisthesis at L5-S1. Examination indicated positive

straight leg raising.on the right at 45 degrees. By February :,

1983, Claimant was complaining of intermittent low back pain

and leg pain which was worse on the left. She had mild spasm

on examination of the low back. Conservative treatment was

recommended. Dr. Gessner commented that, if Claimant's pain

got to the point where she needed medication ona routine basis,

he would have to proceed with surgery (and she did not subse-

quently undergo any back surgery). Dr. Gessner did not think

that Claimant stated that Claimant was not capable of returning

to her "usual" work (which required heavy exertion (Ex. 1E/6)

However, he believed that she could perform "sedentary" secre-

tarial-type work. On Marc 15, 1983, Claimant complained of

low back discomfort. The diagnostic impression was herniated

disc and slight spondylolisthesis (the previously noted spina

bifida was no longer noted and was apparently not thought to be

significant). From March through December 1983, Claimant's

complaints included weakness 1n the left leg, pain in the right

leg, and numbness in both legs; however, neurological exami-

nation remained intact. The clinical findings were basically

limited to mild muscle spasm and positive straight leg raise.

She was continued on Soma. Dr. Gessner reiterated that she

could do sedentary-type work. The diagnostic impression be-

came only herniated disc (indicating that the shght spondylo-

listhesis was not thought to be significant). In March 1984, Dr.

Gessner started Claimant on physiotherapy (heat, massage,

pa- =

3

ultrasound). On July 24, 1984, she was complaining of discom-

fort which was not to the point where surgery was indicated.

Examination on November 14, 1984 indicated mild spasm. In

January 1985, she was taken off all medication due to preg-

nancy. On May 7, 1985, Dr. Gessner wrote that Claimant was

"disabled from work activity” secondary to her low back, but

provided no supportive findings and did not say whether he was

referring to all work or only her usual work. (If he no longer

believed that she could perform sedentary-type work, his re-

cords do not provide any reason for the change in opinion.) On

July 3, 1985, Claimant complained of back pain and numbness

in hands. Dr. Gessner's records do not reflect prior or subse-

quent complaints regarding the hands. On February 19, 1986,

Claimant complained of increased pain, but there was no men-

tion of any clinical findings. On June 25, 1986, Claimant com- ~

plained of right-sided neck, shoulder, arm, and leg pain after a

motor vehicle accident. The impression was cervical strain and

contusion. On follow-up on July 8, 1986, she was said to be

improved. On December 16, 1986, Dr. Gessner said that her

- pain was "controlled" with Soma. She complained of some

weakness in her legs, but neurological examination was intact

arid she demonstrated good dorsiflexion on examination.

(Exs.11F, 13F).

There 1s no indication that Dr. Gessner examined

Claimant after December 1986. An update of his records as of

April 2000 indicated no records after December 1986. (Ex.

i3F). Claimant testified that she stopped seeing Dr. Gessner

when her worker's compensation claim was settled.

Lumbosacral CT on January 8, 1987 showed no

evidence of bulging or herniation. MRI on March 16, 1987

showed degenerative disc changes with minimal bulging at

LS-S1. (Ex. IF).

Claimant was admitted to Chalmette Medical Center

from January 23 to 25, 1989 for evaluation low back pain

4

complaints. She said she had sustained an injury half a year

earlier. She complained of a constant dull ache in her low back

with radiation down the right lower extremity to the foot.

Sensory examination was normal in the lower extremities.

Motor examination indicated approximately 4+/5 strength

throughout. Lumbar myelogram/CT showed mild bulging of the

lower 2 lumbar discs. Surgical treatment was not thought to be

indicated. The impression was low back syndrome. (Ex. 2F).

Claimant was evaluated at Chalmette Medical Center on

May 28, 1990 for complaints of right hip and shoulder pain

after being involved in a motor vehicle accident. X-rays were

normal. (Ex. 3F).

There is no evidence to indicate that Claimant sought or

received any significant medical treatment for back complaints

from January 1989 to January 1994, a period of 5 years.

Claimant was initially examined by Dr. Landry

(orthopedist) on January 7, 1994. She reported that she injured

her neck in a motor vehicle accident in 1992. She had

complaints of intermittent left-sided neck pain and shoulder

pain, and intermittent “pins and needles" in the left upper

extremity. Examination indicated some tenderness in the left

trapezius area. Range of motion was normal in the neck. There

was no spasm. Neurological examination of the upper

extremities was normal. X-rays of the cervical spine were

normal. She also reported a history of "three damaged discs" in

her low back, but there was no indication of specific low back

complaints or examination of the low back at that time.

Cervical MRI on January 13, 1994 was said to show a small

disc herniation at C6-7. On March 28, 1994, Claimant

complained of left-sided neck pain with intermittent radiation

into the left upper extremity. On examination there was no

tendemess or spasm. Cervical range of motion was normal

except for slight limitation of rotation to the left. There was no

indication of neurological abnormality in the upper extremities

5

except for diffuse weakness on the left. On July 27, 1994, Dr.

Landry noted that EMGs/NCS on July 20, 1994 had shown no

abnormalities. Claimant was not interested in surgery, and it

was noted that she was involved in litigation. (Ex. 4F).

Claimant underwent uterine surgery (D&C) at

Washington/St. Tammany Medical Center on March 27, 1996.

Her complaints indicated two heavy menstrual periods per

month over the previous year. A detailed pre-surgical history

and physical indicated that she was well nourished and in no

acute distress. Her past medical history indicated nothing about

problems with her neck, back, or hands. There was no

indication that she considered herself disabled from working.

She described her occupation as "housewife". She was said to

be taking Pepcid for heartburn. She did not report any pain

medication. (Ex. SF).

Claimant returned to Dr. Landry on May + 1996. She

complained of neck pain and headaches with intermittent pain,

numbness, and tingling in the upper extremities (more on the

left). She denied any change over the past two years and said

that her symptoms were not bad enough to want surgery.

Examination indicated some tendemess in the neck, but no

spasm. On that date, Dr. Landry also examined Claimant's back.

(During the previous two years of treatment there had

apparently been no significant complaints or examination

relating to the back). The examination indicated low back

tenderness, but no spasm. She was able to flex forward to 60

degrees. Reflex and sensory examinations were normal. The

impression was cervical and lumbar disc disease. Soma was

prescribed "as needed”. (Ex. 4F)

After continuing complaints of irregular menstrual

bleeding, Claimant underwent total hysterectomy in May 1996.

A detailed pre-surgical history and physical reficcts some

complaints related to sinus trouble and heartbum. However,

there 1s absolutely no mention of neck, back, or hand problems,

6

or any indication that she considered herself physically

disabled. She again reported her occupation as housewife. (Ex.

SF).

Claimant returned to Dr. Landry on January 17, 1997.

Neurovascular examination of the upper extremities was intact.

Straight leg raising was said to be positive. (Ex. 4F).

An upper G] series on March 14, 1997 indicated a small

sliding hiatal hernia with minimal reflux and active superficial

peptic ulcer disease.

Claimant was hospitalized from July 15 to 16, 1997 for

evaluation of chest pain. On admission, she reported a recent

episode of chest tightness. She reported that she was otherwise

generally well (again clearly indicating that she did not consider

herself disabled from working). She reported a history "many

years ago" of “disc collapse", but her current complaints

included only some occasional neck pain and stiffness. She did

not report that she was taking any pain medication. She did not

complain of problems with her back or hands. Her activities of

daily living were said to be "good and normal” (again clearly

indicating that she did not consider herself disabled).

Examination of the extremities was said to be within normal

limits, and neurological examination was entirely intact. EKG

showed some abnormalities. She was scheduled for cardiac

follow-up to rule out unstable angina (see below). (Ex. SF).

Claimant returned to Dr. Landry on July 18, 1997. He

noted that her litigation had ended. She complained of

continuing symptoms, but said that she would gradually

increase her activities. (Ex. 4F).

A stress test on August 4, 1997 was negative for cardiac

ischemia. (Ex. 6F).

On November 20, 1997, Claimant was seen at

Washington/St. Tammany hospital with a rib contusion. At that

time, her only medication was said to be Pepcid (no pain

medication). (Ex. SF).

7

Claimant returned to Dr. Landry on April 22, 1998. She

complained that her neck bothered her with “occasional”

stiffness and tension headaches. She complained of "constant"

low back pain, but said that she could live with it. She

complained of “occasional” numbness and tingling in the lower

extremities with long sitting. That complaint was ‘said to

involve most of the left leg and the nght foot. She said that she

was trying to walk a mile a day. (Ex. 4F).

At the request of the Administration, Claimant was

examined by Dr. Keppel (orthopedic surgeon) on November 2,

1998. Dr. Keppel noted the history of C6-7 disc herniation

reflected in Dr. Landry's records. Claimant complained of some

discomfort in her neck. There was no evidence of muscle

spasm, atrophy, or motor weakness, and her reflexes were

intact. Neurological examination was normal except for a

complaint of numbness in the entire right hand. Tinel and

Phalen signs were positive on the right.

Dr. Keppel thought the right hand complaint might be

secondary to carpal syndrome of the right hand and wrist.

Claimant complained of low back pain; however, there was

"very little in the way of neurologic findings". She had

subjective weakness in all motor groups, but Dr. Keppel was

not sure if her effort was good. Her gait was normal and she

demonstrated forward flexion to 80 degrees. There was no

atrophy, and sensory examination was intact. X-rays of the

cervical and lumbar spine were essentially negative. Dr. Keppel

concluded that Claimant should be able to perform sedentary

and light duty activities. (Ex. 7F).

Claimant returned to Dr. Landry on April 26, 1999 for

follow-up of "chronic neck and low back pain”. She stated that

her back had bothered her "a lot" during the previous year

because she was lifting her invalid father. Examination

indicated lumbar tenderness, but no spasm. Straight leg raising

was 90 degrees bilaterally. Examination of the neck indicated

8

normal curvature, no spasm, and full motion. Examination of

the extremities indicated intact and symmetrical reflexes.

Despite the clear and apparent lack of positive findings, Dr.

Landry stated that Claimant was "disabled from gainful

~employment”.

On October 25, 1999, Claimant was seen by Dr. Landry

for follow-up on her neck and back. She complained of

increased tingling in the night hand over the previous 6 weeks

and right hand weakness with repetitive use. Examination of the

hand now indicated negative Tinel's and Phalen's signs.

Sensation was said to be diminished in the right middle finger

tip. Dr. Landry's impression included cervical and lumbar disc

herniation “by history,” and he further concluded that she might

have carpal tunnel syndrome on the right. (Ex. 12F) L/Ciearly,

there was not even a definitive diagnosis that Dr. Landry could

base on his clinical findings and results of diagnostic studies.

At the request of Claimant's attorney, Dr. Landry

completed a form on October 25, 1999. He checked the

following items on the form as being present: pain, significant

limitation of spinal movement, sensory loss, reduced grip

strength bilaterally, numbness and cramping in the right hand

with use, low back pain with sitting for protracted periods, and

a need to recline periodically for relief of pain. He indicated that

the following were not present: muscle spasm, appropriate

radicular distribution of significant motor loss with muscle

weakness, and reflex loss. He believed that Claimant was able

to lift 20 pounds at a time and stand/walk for 2 hours out of an

8 hour day with breaks. He did not believe that she could sit for

6 hours out of an 8 hour day or alternate standing and sitting for

8 hours without walking about or reclining. Claimant's

diagnoses were said to/lumbar and C6-7 disc herniation "by

history" and possible carpal tunnel syndrome. (Ex. OF). Again,

the impression does indicate any definitive diagnosis.

Dr. Gessner completed the same form provided by

9

Claimant's attorney. The form was presumably completed

shortly before it was received by the Administration on

November 8, 1999. By that time, Dr. Gessner had not treated

Claimant in nearly 13 years. He indicated that, as of June 30,

1986 (the date she was last insured under the Act), Claimant

had the following: bilateral numbness in her hands with any

significant use, reduced grip strength bilaterally, "pins and

needles" and cramping with writing for more than 10 minutes,

low back pain with sitting for protracted periods, and a need to

recline periodically on most days to relieve pain. Dr. Gessner

indicated that Claimant could lift only 10 pounds at a time and

could not sit or stand/walk for even 2 hours out of an 8 hour

day. Again, it is to be noted that these symptoms and limitations

were merely checked by Dr. Gessner on the form provided by

the attorney. The diagnosis was said to be chronic low back

pain and cervical disc disease. (Ex. 9F). —

On March 24, 2000, Claimant was examined by Dr.

Laborde (an associate of Dr. Landry). She complained of neck

pain radiating into her right hand with numbness, but said that

the pain and numbness had improved. She demonstrated good

range of motion in her neck and was neurologically intact.

Claimant said that she would obtain x-rays at Charity Hospital

(but there is no indication that she did so). (Ex. 12F).

At the hearing, Dr. Weisberg's testimony indicated as

follows: The objective medical evidence does not support the

diagnoses or degree of limitation set forth by either Dr. Gessner

or Dr. Landry. The medical records support a soft tissue

musculoskeletal impairment at best. There is no evidence of

radiculopathy. There is no evidence of motor disability related

to the right carpal tunnel syndrome. There is no significant

indication of anemia related to Claimant's history of irregular

uterine bleeding. The degree of pain alleged by Claimant is not

supported by the clinical findings or objective studies. There is

almost nothing in the way of clinical findings noted by either