# Petition for Writ of Certiorari — Fink v. Barnhart

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2006
- **Citation:** 546 U.S. 1150

## Text

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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

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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.

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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

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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:

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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

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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

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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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386007_1666%3A1. Public record. Not legal advice.