Appendix — Fink v. Barnhart
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Dr. Gessner or Dr. Landry, but only Claimant's subjective
complaints. The findings reflected in the records of Dr. Gessner
and Dr. Landry equate to the same degree of limitation set forth
by the consultative orthopedic examiner (Dr. Keppel). Dr.
Weisberg agreed with Dr. Keppel that Claimant should be able
to perform sedentary and light work.
The medical evidence establishes carpal tunnel
syndrome of the dominant nght hand. This is a "severe"
impairment, but was not diagnosed and is not shown to have
caused any significant limitation of work-related functioning
prior to 1998 (2 years after the date last insured). Stone v.
Heckler, 752 F.2d 1099 (Sth Cir. 1985); Social Security Ruling
96-3p.
The evidence does not show any "severe" cervical or
lumbar disc herniation. As noted above an MRI in 1987 and
CT/myelogram in 1989 showed only mild or minimal bulging
at one or two lumbar levels, and an MRI in 1994 showed only
a small disc hemiation at C6-7. Surgery has not been indicated.
Claimant has sought only sporadic and limited conservative
treatment. As Dr. Weisberg testified and the treatment records
reflect, there have been no significant persistent neurological
findings, and all diagnostic studies have shown only mild or no
abnormalities (including the negative EMG/NCS of the upper
extremities). The weight of the medical evidence shows, at
most, a persistent or recurrent "severe" soft tissue disorder of
the spine superimposed on the mild degenerative changes. This
conclusions is consistent with the testimony of Dr. Weisberg,
as supported by the clinical findings of the two treating
physicians. |
The evidence does not show any "severe" cardiac,
gastrointestinal, or reproductive disease. Cardiac testing was
negative for ischemia. Claimant is not under follow-up for any
' cardiac coridition. She did not allege any chest pain or other
cardiac symptoms at the hearing. The evidence shows a small
1]
hiatal hernia and superficial peptic ulcer disease. The symptoms
of these conditions are apparently reasonably well controlled on
medication. Claimant has not alleged any work-related
functional impairment resulting from her gastrointestinal
conditions. At the hearing, Claimant's attorney made a
considerable effort to highlight Claimant's allegations
concerning her reproductive system. However, when asked
directly, the attorney stated that they were not alleging such
problems to be a "severe" medically determinable impairment.
Claimant alleged that she bled continuously for seven months
at a time for two years. However, Dr. Weisberg testified that
such bleeding would have meant severe anemia, which ts not
shown in the record. There is only a brief note in 1995
indicating that she was taking an 1ron supplement. The medical
records indicate that Claimant complained of heavy uterine
bleeding occurring twice per month (not quite as bad as she
alleged at the hearing), which was resolved with the
hysterectomy.
The evidence does not show an impairment or
combination of impairments which meets or equals the criteria
of any impairment described in Appendix 1, Subpart P,
Regulations Part 404. _
Claimant testified that, in 1980, she was suffering with
back problems such that she was unable to drive. She obtained
a GED in 1985. In 1998, she helped care for her invalid father,
but denied lifting him. She alleged that she remains unable to
work because of problems with her back, neck, hands, and legs.
She takes hot showers to relieve muscle spasms. She has been
maintained on Soma since 1980. She has "pins and needles"
pain in her legs. She now drives very seldom.
Claimant's allegations concerning her symptoms and
related functional limitations lack credibility. While her
medically determinable conditions can reasonably be expected
to produce some symptoms, the weight of the evidence does not
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demonstrate persistent symptoms or related functional
limitations that would preclude her from performing at least
light and sedentary work (with limited use of the right hand
since 1998). As discussed above, the objective medical
evidence has shown only minor degenerative changes of the
cervical and lumbar spine with no significant persistent
indications of neurological abnormality on clinical examination.
She has been under sporadic conservative care. As noted above,
detailed history and physical examinations on three occasions
did not indicate any significant back, neck, hand, or leg
complaints. Claimant's allegation that she has taken Soma since
1980 is contrary to the medical evidence and reason. As noted
above, the medical records indicate several occasions (outside
of the records of Dr. Landry and Dr. Gessner) when she
reported no pain medication. Moreover, Dr. Weisberg testified
that Soma is a short-term medication which loses its effect after
6 to 12 months. The fact that Drs. Gessner and Landry
continued to prescribe Soma for extended periods of time calls
into question their belief of Claimant's subjective complaints.
_ Neither Dr. Gessner or Dr. Landry indicated that Claimant's
symptoms were severe enough to warrant surgery. Claimant has
made some admissions of significant daily activities consistent
with an ability to perform at least light and sedentary work
activity. As noted above, during a detailed history and physical
in 1997, she described her daily activities as "good and normal".
Contrary to her testimony, the medical records indicate that she
did lift her invalid father while caring for him. In a report to the
Administration filed with her application, her admitted daily
activities included cooking, shopping, visiting friends, and
driving. (Ex., 1E/4), While she attempted to portray her abilities
in a less favorable light at the hearing, it was apparent that she
has engaged in reasonably normal activities during the 20-year
period since the alleged onset date. She cared of her mother and
father, got a GED, went through pregnancy and childbirth
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twice, and raised her children. Her allegation of doing these
things only through family help is not persuasive or credible.
Social Security Ruling 96-7p.
The evidence establishes that Claimant has had the
residual functional capacity to perform light work activities
with (since 1998) moderate limitation of the dominant right
hand with regard to fine manipulation. The credible evidence
does establish any further exertional or non-exertional
limitations on her ability to perform work activities. These
conclusions are consistent with the weight of the medical
evidence, including the opinion of the consultative orthopedic
examiner
and the medical expert at the hearing. Dr. Weisberg's
conclusions were well supported and consistent with the weight
of the other medical evidence, including the minimal clinical
findings and diagnostic study results reflected in the treatment
records.
The opinions of the two treating physicians (Gessner
and Landry) with regard to diagnosis and functional assessment
were clearly based on unsubstantiated subjective complaints
and are without support. They are not entitled to controlling
weight. The opinions set forth by Dr. Gessner in November
1999 (on the form provided by Claimant's attorney) are quite
inconsistent and unsubstantiated. His functional restrictions,
and particularly his limitation on sitting, clearly contradict his
earlier and repeated statement that Claimant could perform
"sedentary" secretarial-type work. His statements indicating
severe symptoms and very limited functional ability are
contrary to his repeated statements that Claimant's complaints
did not indicate a need for surgery. His reported diagnosis of
"cervical disc disease" and functional limitations related to the
upper extremities are not at all reflected in his treatment
records. Other than a brief diagnosis of cervical strain, his care
was almost exclusively related to Claimant's low back |
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complaints. Dr. Gessner conclusions of November 1999 were
clearly based on subjective complaints, including complaints
that Claimant had not yet voiced at the time of his treatment.
Dr. Gessner provided medication for subjective symptoms
during a period of worker's compensation litigation, and his
conclusions are not supported by his clinical findings or
objective diagnostic test results. Dr. Landry's treatment records
and functional opinions set forth in October 1999 reflect no
definitive diagnosis or objective findings. He merely noted the
"history" of lumbar and cervical disc herniation and the
possibility of carpal tunnel syndrome. Contrary to his indication
on the form in October 1999, his records reflect no sensory
deficits except for decreased sensation in the right middle finger
tip on one occasion. Dr. Landry had no objective findings
except for the MRI showing a small cervical disc herniation in
1994. The EMG/NCS and clinical examinations showed no
evidence of radiculopathy. Dr. Landry's conclusion that
Claimant cannot sustain alternated standing and _ sitting
throughout the course of an 8 hour day is utterly without
support. Like Dr. Gessner, Dr. Landry treated Claimant for
subjective symptoms which, at least for some period of time,
were related to litigation. Like Dr. Gessner, Dr. Landry did not
think that surgery was indicated. Social Security Rulings 96-2p
and 96-6p.
The evidence does not indicate any past relevant work
or work skills. The burden of proof thus shifts to the
Administration to show jobs existing in significant numbers in
the national economy that he can perform.
Claimant was able to perform a full range of light work
prior to the onset of right-sided carpal tunnel syndrome in 1998.
Therefore, rule 202.20 of the Medical-Vocational Guidelines
(Appendix 2, Subpart P, Regulations Pt. 404) directs a finding
that she was "not disabled". Since 1998, Claimant's
non-exertional limitation with regard to the use of her right
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hand, requires that rule 202.20 be used only as a framework.
Vocational expert testimony was obtained to determine whether
jobs exist in significant numbers within the parameters of
Claimant's residual functional capacity and other vocational
factors.
The vocational expert was asked whether an individual
of the same age, education, and past work. experience as
Claimant, with the residual functional capacity to perform work
as set forth above, could perform any jobs existing in the
national economy. The vocational expert testified that such a
person would be precluded from performing production-type
work. However, they would be able perform several office jobs,
including mail clerk, file clerk, information clerk, receptionist,
telephone solicitor, and order clerk. The number of such jobs
available in the sedentary category would be in excess of
100,000 in Louisiana and in the millions nationwide. The
number of such jobs in the light category would be between
200,000 and 400,000 in Louisiana. With regard to the number
of such jobs available in 1986 (at the date Claimant was last
insured), the vocational expert testified that the above numbers
would be reduced by 15 to 20 percent.
The vocational expert's testimony was credible and
indicative of jobs existing in significant numbers that Claimant
can perform and was able to perform when she was last insured
under the Act.
As the evidence establishes that Claimant 1s capable of
performing jobs existing in significant numbers in the national
economy, she is "not disabled within the meaning of the Social
Security Act and corresponding regulations.
FINDINGS
After careful consideration of the entire record, the
Administrative Law Judge makes the following findings:
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l. Records from the Administration indicate that Claimant
met the insured status requirements of the Act on the date she
allegedly became unable to work, September 19, 1980, and that
she continued to meet them only through June 30, 1986.
2. There is no-evidence of substantial gainful activity since
the alleged onset date.
3. Claimant has the following "severe" impairments: carpal
tunnel syndrome of the nght upper extremity (since 1998) and
soft tissue impairments superimposed on mild degenerative
changes in the cervical and lumbar spine.
4. The evidence does not establish an impairment or
combination of impairments which meets or equals the criteria
of any impairment described in Appendix 1, Subpart P,
Regulations Part 404.
F Claimant's allegations concerning her symptoms and
limitations lack credibility.
6. Claimant has the residual functional capacity to perform
light and sedentary work with (since 1998) moderate limitation
of the dominant right hand for fine manipulation.
7. Claimant does not have any past relevant work.
8. Claimant is 44 years o'd (and was 30 at the date she was
last insured under the Act). She has a GED, no work experience
in the past 15 years, and no transferable work skills.
9. Considering her age, education, past work experience,
and residual functional capacity, there are jobs existing in
significant numbers in the national economy that Claimant is
capable of performing and has been capable of performing since
her alleged onset date. Examples of such jobs include mail
clerk, file clerk, information clerk, receptionist, telephone
solicitor, and order clerk.
DECISION
It is the decision of the Administrative Law Judge,
based on the applications for disability insurance benefits and
supplemental security income protectively filed as of July 22,
1998, that Claimant is "not disabled" within the meaning of the
Social Security Act and corresponding regulations.
S/MICHAEL S. HERTZIG
Administrative Law Judge
SEP 2 5 2000
APPENDIX B:
ACTION OF APPEALS COUNCIL
ON REQUEST FOR REVIEW
Ms. Maxann C. Fink
335 Fox Croft St
Slidell, LA 70461
Dear Ms. Fink:
The Appeals Council has considered the request for review of
the Administrative Law Judge’s decision issued on September
25, 2000.
Social Security Administration regulations provide that the
Appeals Council will grant a request for review where: (1)
there appears to be an abuse of discretion by the Administrative
Law Judge; (2) there is an error of law; (3) the Administrative
Law Judge’s action, findings, or conclusions are not supported
by substantial evidence; or (4) there is a broad policy or
procedural issue which may affect the general public interest.
The regulations also provide that where new and material
evidence is submitted with the request for review, the entire
record will be evaluated and review will be granted where the
Appeals Council finds that the Administrative Law Judge’s
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actions, findings, or conclusion is contrary to the weight of the
evidence currently of record (20 C.F.R. 404.970 and 416.1470).
The Appeals Council has concluded that there is no basis under
the above regulations for granting your request for review.
Accordingly, your request is denied and the Administrative Law
Judge’s decision stands as the final decision of the
Commissioner of Social Security in your case. In reaching this
conclusion, the Appeals Council has considered the applicable
statutes, regulations, and rulings in effect as of the date of this
action.
Specifically, the Appeals Council considered the final
regulations, effective February 19, 2002, implementing the new
lisitngs for musculoskeletal (and related) impairments. The
new regulations do not provide a basis to change the
Administrative Law Judge’s decision.
If you desire a court review of the Administrative Law Judge’s
decision, you may commence a civil action by filing a
complaint in the United States District Court for the judicial
district in which you reside within sixty (60) days from the date
of the ;
receipt of this letter. It will be presumed that thts letter is
received within five (5) days after the date shown above unless
a reasonable showing to the contrary is made. The complaint
date should name the Commissioner of Social Security as the
defendant and should include the Social Security number(s)
shown at the top of this notice. The right to court review is
provided for in sections 205(g) and 1631(c)(3) of the Social
Security Act, as amended (42 U.S.C. 405(g) and 1388(c)(3)).
If you cannot file your complaint within 60 days, you may ask
the Appeals Council to extend the time in which you may begin
a civil action. However, the Council will only extend the time
if you provide a good reason for not meeting the deadline. Your
reason(s) must be set forth clearly in your request.
If a civil action is commenced, the Commissioner must be
served by sending a copy of the summons and complaint by
registered or certified mail to the General Council, Social
Security Administration, Room 611, Altmeyer Building, 6401
Security Boulevard, Baltimore, MD 21235. (See rules 4(c) and
(i) of the Federal Rules of Civil Procedure.) In addition, you
must serve the United States Attorney for the district in which
you file your complaint and the Attorney General of the United
States, as provided in the Federal Rules of Civil Procedure.
Sincerely yours,
S/ C. Michael Sullivan
Acting Administrative Law Judge
APPENDIX C:
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MAXANN C. FINK CIVIL ACTION
VERSUS NO: 02-2136
JO ANNE B. BARNHART, SECTION: "B"(1)
COMM. SOCIAL SECURITY ADMINISTRATION
MAGISTRATE’S REPORT AND RECOMMENDATION
Plaintiff, Maxann C. Fink ("Fink"), seeks judicial
review, pursuant to Section 405(g) of the Social Security Act
(the "Act"), of the final decision of the Commissioner of the
Social Security Administration (the "Commissioner") denying
her claims for disability insurance benefits under Title II of the
Social Security Act ("Act"), 42 U.S.C. § 423, and for
supplemental security income ("SSI") under Title XVI of the
Act, 42 U.S.C. § 1382(a)(3). This matter is before the court on
the parties’ cross-motions for summary judgment, as ordered by
the court's minute entry of February 24, 2003 (Rec. doc. 14).
PROCEDURAL HISTORY
On August 11, 1998, Fink submitted an application for
benefits based on an inability to work since September 10,
1980. R. 106-08. Her disabling conditions were described as
five ruptured disks, three in the back and two in the neck. R.
125. She reported receipt of workers’ compensation benefits
from September 9, 1981 through September, 1987 and a lump
sum payment of $65,261.00 in May, 1991 with $7,940 used for
medical expenses and $7,526 for attorney's fees. R. 109. These
were related to a September 9, 1980 injury to her back when she
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was employed as a selector earning $269.20 per week. R.
112-20.
In September and October, 1998, the Commissioner
sought and received medical records from Chalmette Delaronde
_ Medical Center, Washington St. Tammany Regional Medical
Center ("Bogalusa Charity") and Dr. Edmund Landry. R. 77,
153, 156 and 166. On November 12, 1998, a consultative
examination report from Dr. Frederick L. Keppel, an orthopedic
surgeon, was received. R. 77 and 216-17.
On November 23, 1998, Fink was notified that her claim
for benefits was denied. R. 77-84. Her request for
reconsideration was denied on March 9, 1999.-R. 85-90. The
deadline for Fink to request a hearing before an AU was May
12, 1999. R. 91.
On November ], 1999, the Commissioner received from
Fink a questionnaire completed by Dr. Landry on October 25,
1999. R. 221-22. On November 8, !999, the Commissioner
received from Fink an undated questionnaire completed by Dr.
Ralph Gessner. R. 219-20. On November 9, 1999, attorneys
Brian Spurlock and Robert Moffett were appointed as Fink's
representatives. R. 24.!
On December 14, 1999, Fink requested a hearing before
an ALJ. R. 94. She explained that she missed the May 12, 1999
deadline because from August 26, 1998 until his death on April
6, 1999, she cared for her father, a stroke victim. R. 92-93. A
statement submitted by Fink reported that since her application
her right hand and arm hurt and were weak. R. 137. She also
reported that she was seeing Dr. Landry every six months for
prescriptions. R. 137.
On March 1, 2000, Fink notified the Commissioner that
she would submit additional medical evidence as soon as it was
'Up to this point in the administrative process Fink was unrepresented.
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received by her. R. 140. On April 3, 2000, she submitted
records from Dr. Gessner for the period from September 10,
1980 through December 16, 1986. R. 223-33 and 238-46. On
May 1, 2000, she submitted records from Dr. Landry for the
period from April 26, 1999 through March 24, 2000. R. 234-37.
On July 8, 2000, the ALJ notified the vocational expert
and Leon Weisberg, M.D. of the need for their testimony at the
hearing. R. 101-04. Dr. Weisberg was sent copies of the
pertinent medical exhibits. R. 103. On July 26, 2000, there was
a hearing before the ALJ where the following testified: (1)
Fink; (2) Dr. Weisberg; and (3) Thomas Merinier, a vocational
expert. R. 25. On September 25, 2000, a decision denying
Fink's claim for benefits was issued. R. 11-23. |
On November 9, 2000, Fink notified the Appeals
Council that her appeal was based in part on the
Commissioner's failure to comply with 20 C.F.R.
§404.1512(e)(1).2. She requested that she be provided with
evidence of attempts by the Commissioner to have consultative
examinations performed by treating physicians. Rec. doc. 10.
On June 7, 2002, the Appeals Council denied her request for
review of the ALJ's decision. R. 5-6.
Fink filed her appeal with this court on July 12, 2002.
Rec. doc. 1. The case was submitted on cross-motions for
summary judgment on February 24, 2003. Rec. doe. 14. On
March 18, 2003, Fink filed a memorandum in response to the
Commissioner's cross-motion for summary judgment. Rec. doc.
16. Fink is represented by counsel in this proceeding.
7404 C.F.R. § 404.1512(e)(1) pertains to the circumstances under
which the Commissioner will recontact a claimant's treating physician.
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STATEMENT OF ISSUES ON APPEAL
Plaintiff's request for judicial review raises the
following issues:
a. Didthe Commissioner err by failing to recontact the treating
physicians before ordering a consultative examination?
b. Did the Commissioner err by ordering a consultive
examination without soliciting a treating physician to perform
the examination?
c. Did the Commissioner err by providing the consultative
examination report to the medical expert that testified at the
hearing before the ALI without recontacting the treating
physician?
d. Did the ALJ err by rejecting the findings of the treating
physicians without attempting to recontact them?
e. Did the ALJ err by rejecting the findings of the treating
physician without applying the criteria found in 20 C.F.R. §
404.1527(d)(2).
THE ALJ’ S FINDINGS RELEVANT TO
ISSUES ON APPEAL
The ALJ made the following firidings relevant to the
issues On appeal: :
1. Records from the Administration indicate that Claimant met
the insured status requirements of the Act on the date she
allegedly became unable to work, September 19, 1980, and that
she continued to meet them only through June 30, 1986.
2. There isno evidence of substantial gainful activity since the
alleged onset date.
3. Claimant has the following "severe" impairments: carpal
tunnel syndrome of the right upper extremity (since 1988) and
soft tissue impairments superimposed on mild degenerative
changes in the cervical and lumbar spine.
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4. The evidence does not establish an impairment or
combination of impairments which meets or equals the criteria
of any impairment described in Appendix I, Subpart P,
Regulations Part 404.
5. Claimant's allegations concerning her symptoms and
limitations lack credibility.
6. Claimant has the residual functional capacity to perform
light and sedentary work with (since 1998) moderate limitation
of the dominant right hand for fine manipulation.
7 Claimant does not have any past relevant work.
8. Claimant is 44 years old (and was 30 at the date she was last
insured under the Act). She has a GED, no work experience in
the past 15 years, and no transferable work skills.
9. Considering her age, education, past work experience, and
residual functional capacity, there are jobs existing in
significant numbers in the national economy that Claimant is
capable of performing and has been capable of performing since
her alleged onset date.. Examples-of such jobs include mail
clerk, file clerk, information clerk, receptionist, telephone
solicitor, and order clerk. R. 22-23.
ANALYSIS
a. Standard of Review.
The function of this court on judicial review 1s limited
to determining whether there is substantial evidence in the
record to support the final decision of the Commissioner as trier
of fact and whether the Commissioner applied the appropriate
legal standards in evaluating the evidence. Newton v. Apfel, 209
F.3d 448, 452 (5h Cir. 2000); Spellman v. Shalala, | F.3d 357,
360 (Sth Cir. 1993). Substantial evidence is more than a
scintilla but less than a preponderance and is such relevant
evidence as a reasonable mind might accept as adequate to
support acorclusion. Richardson v. Perales, 402 U.S. 389, 401,
25
91 S.Ct. 1420, 1427 (1971); Newton, 209 F.3d at 452.
Alternatively, substantial evidence may be described as that
quantum of relevant evidence that a reasonable mind might
accept as adequate to support a conclusion. Carey v. Apfel, 230
F.3d 131, 135 (5°h Cir. 2000). This court may not re-weigh the
evidence, try the issues de novo or substitute its judgment for
the Commissioner's. Id.; Selders v. Sullivan, 914 F.2d 614, 617
(5th Cir. 1990).
The ALJ is entitled to make any finding that is
supported by substantial evidence, regardless of whether other
conclusions are also permissible. See Arkansas v. Oklahoma,
503 U.S. 91, 113, 112 S.Ct. 1046, 1060 (1992). Despite this
court's limited function, it must scrutinize the record in its
entirety to determine the reasonableness of the decision reached
and whether substantiai evidence exists to support it. Villa, 895
F.2d at 1022; Johnson v. Bowen, 864 F.2d 340, 343-44 (Sth Cir. -
1988). Any findings of fact by the Commissioner that are
supported by substantial evidence are conclusive. Ripley v.
Chater, 67 F.3d 552, 555 (5th Cir. 1995). 3
To be considered disabled and eligible for SSI, plaintiff
must show that he is unable "to engage in any substantial
gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result
in death or which has lasted or can be expected to last for a
continuous period of not less than twelve months." 42 U.S.C.
§ § 423(d)(1)(A), 13 82c(a)(3)(A). The Commissioner has
promulgated regulations that prov ide procedures for evaluating
a Claim and determining disability. 20 C.F.R. §§ 404.1501 to
404.1599 & appendices, §§ 416.901 to 416.-998 (1997). The
regulations include a five-step evaluation process for
determining whether an impairment prevents a person from
engaging in any substantial gainful activity. Id. §§ 404.1520,
416.920; Newton v. Apfel, 209 F.3d at 453; Greenspan v.
26
Shalala’, 38 F.3d 232, 236 (Sth Cir. 1994), cert. den. 115 S. Ct.
1984 (1995). The five-step inquiry terminates if the
Commissioner finds at any step that the claimant is or is not
disabled. Leggett v. Chater, 67 F.3d 558, 564 (5" Cir., 1995).
The claimant has the burden of proof under the first four
parts of the inquiry. /d. If he successfully carries this burden,
*The five-step analysis requires consideration of the following:
First, if the claimant is currently engaged in substantia! gainful
employment, he or she is found not disabled. 20 C.F.R. §§ 404.1520(b),
416.920(b).
Second, if it is determined that, although the claimant is not en-
gaged in substantia! employment, he or she has no severe mental or physi-
ical impairment which would limit the ability to perform basic work-relat-
ed functions, the claimant is found not disabled. Id. §§ 404.1520(c),
416.920(c).
Third, if an individual's impairment has lasted or can be expect-
ed to last for a continuous period of twelve months and is either included
in a list of serious impairments in the regulations or is medically equiv-
alent to a listed impairment, he or she is considered disabied without
consideration of vocational evidence. Id. §§ 404.1520(d), 416.920(d).
Fourth, if a determination of disabled or not disabled cannot be
made by these steps and the claimant has a severe impairment, the claim-
ant's residual functional capacity and its effect on the claimant's past rel-
evant work are evaluated. If the impairment does not prohibit the claim-
ant from returning to his or her former employment, the claimant is not
disabled. Id. §§ 404.1520(e), 416.920(e).
Fifth, if it is determined that the claimant cannot return to his or
her former employment, then the claimant's age, education and work ex-
perience are considered to see whether he or she can meet the physical
and mental demands of a significant number of jobs in the national econ-
omy. If the claimant cannot meet the demands, he or she wil] be found
disabled. Id. §§ 404.1520(f)(1), 416.920(f{I ). To assist the Commis-
sioner at this stage, the regulations provide certain tables that reflect
major functional and vocational patterns. When the findings made with
respect to claimant's vocational factors and residual functional capacity
coincide, the rules direct a determination of disabled or not disabled. Jd.
§ 404, Sub-pt. P, App. 2, §§ 200.00-204.00, 416.969 (1994) ("Medical-
- Vocational Guidelines").
1
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the burden shifts to the Commissioner to show that other
substantial gainful employment is available in the national
economy, which the claimant is capable of performing.
Greenspan, 38 F.3d at 236; Kraemer v. Sullivan, 885 F.2d 206,
208 (Sth Cir. 1989). When the Commissioner shows that the
claimant is capable of engaging in alternative employment, "the
ultimate burden of persuasion shifts back to the claimant.” /d.;
accord Selders, 914 F.2d at 618.
The Court “weigh{s] four elements of proof when
determining whether there is substantial evidence of disability:
(1) objective medical facts; (2) diagnoses and opinions of
treating and examining physicians; (3) the claimant's subjective
evidence of pain and disability; and (4) [her] age, education,
and work history." Martinez v. Chater, 64 F.3d 172, 174 (Sth
Cir. 1995). 'The Commissioner, rather than the courts, must
resolve conflicts in the evidence.” /d.
b. Testimony of Maxann Fink and vocational expert at hearing
before ALJ.
Fink completed the eleventh grade and obtained a GED.
R. 33. She did not work after 1982. R. 34. She received
workers’ compensation benefits for eleven years after her injury
and was under Dr. Gessner’s care during that time. R. 35. Fink
was sent to a physical therapist by Dr. Gessner. R. 37. After her
workers’ compensation claim was settled, she went to Bogalusa
Charity Hospital. R. 35.
Fink had three children and their ages at the time of the
hearing were 21, 18 and 4. R. 38-39. She was required to rest in
bed during her pregnancies and during one of them she was
hospitalized for a month and a half. R. 41-43. She kept up with
her children’s activities and teachers at school but she was not
active in PTA groups or classroom activities. R. 45-46 and 49.
Fink attributed the eighteen year delay in filing her claim to a
divorce, personal things and procrastination. R. 37-38. She was
unable to work because of her back, neck, hands and legs. R.
28
44. Fink took Soma, a pain killer, -four-times a day for eighteen
years. R. 39. She rarely drove a car because her hands became
numb. R. 46-47. She took hot showers in the morning to relieve
her muscle spasms. R. 47. Her family and friends shopped for
her. R. 45. She rarely went to the grocery store. R. 45. Fink took
care of her invalid father in 1997 and 1998. R. 49. She never
lifted her father because there was special equipment for that
purpose. R. 50. It was only necessary for her to crank the
equipment and pull it. R. 51.
The vocational expert testified that there were jobs
available for a younger individual with a GED and no work
experience who had a moderate impairment of the dominant
right upper extremity and could occasionally engage in fine
manipulation with the right hand but could otherwise engage in
a full range of sedentary work activities . R. 70. A light
impairment would increase the number of jobs available. R. 71.
If the limitations described by Fink were added, there would be
no jobs available. R. 73.
c. Medical evidence including the testimony of Dr. Leon
Weisberg presented at the hearing.
On January 9, 1981, Fink was seen by Dr. Gessner.* She
reported that on September 10, 1980, she hurt her back while
lifting a case of bottles above her head. R. 224. She indicated
there were no prior injuries to her back. The diagnosis was a
slight degree of spondylolisthesis at L5-S1 and spina bifida.’ R.
224. On February 18, 198], Fink reported to Dr. Gessner that
she was pregnant. Fink was seen by Dr. Gessner twice 1n May,
1981. R. 226.
4 r ree , ‘ ; :
Dr. Gessner's speciality is not identified in the medical records
* Disorder of the spinal nerve roots. Stedman's Medical Dictionary
(26th Ed. 1995), p. 1484.
29
Fink returned to Dr. Gessner in April, 1982. R. 226. A
lumbar CT scan was scheduled in June, 1982. R. 226. Fink
returned to Dr. Gessner in August, September, October and
November, 1982. R. 225-27. Soma was prescribed. R. 225 and
227.
On February 1, 1983, Fink was seen by Dr. Gessner and
reported that she continued to have intermittent low back pain
especially with physical exertion. Dr. Gessner recommended
conservative treatment. He did not believe she could return to
her prior work of transferring cases and materials but believed
she could possibly do sedentary work. He recommended that
she go into a rehabilitation school. Her prescription for Soma
was refilled. R. 227. On March 15, 1983, Dr. Gessner reported
that Fink had a considerable amount of discomfort in her low
back and diagnosed her with a herniated disc at LS-S1 and
slight degree of spondylothesis in that area. R. 228..In April,
1983, Dr. Gessner reported that Fink was a candidate for
sedentary work and that her pain was controlled with Soma. R.
228. A month later she had more weakness in her left leg but
was neurologically intact. R. 228. In July, 1983, she reported
numbness in both legs and a mild spasm. R. 228. On August 24,
1983, Dr. Gessner reported that a disc space injection was not
appropriate. Fink still had a mild degree of spasm in her back
with pain radiating into her nght leg. R. 228. In December,
1983, Dr. Gessner reported that she had anxiety about surgery.
Soma helped her and Valium was prescribed as a muscle
relaxer. R. 228.
In 1984, Fink was seen by Dr. Gessner about once a
month. R. 229-30. She continued to report back pain with
muscle spasms. She was given a course of physiotherapy but
there was only a minimal response. In the first part of the year
Soma was prescribed. By June, 1984, Dr. Gessner
recommended that she take the Soma only when she was
symptomatic. R. 229. On July 24, 1984, he reported that she
30
still had discomfort but was not to the point where surgery was
indicated. R. 230. On November 14, 1984, Dr. Gessner visited
with Fink and her rehabilitation counselor. A recent episode of
cold weather exacerbated her pain. She had a mild degree of
spasm. Dr. Gessner did not feel that Fink was capable of
working at that time but that possibly after the first of the year
she could return to light duty work. R. 230.
On January 16, 1985, Fink's condition was unchanged.
On January 29, 1995, she reported she was in the hospital for
nausea and vomiting and was seven weeks pregnant. On March
6, 1985, Dr. Gessner reported that therapy seemed to help her
pain.-He did not prescribe any medication. R. 231. On May 7,
1985, he reported that she may have problems in her third
trimester. He remarked that she was disabled from work activity
secondary to her low back injury. R. 231. The baby was born in
September, 1985. She reported back pain in November, 1985,
and Soma was prescribed. R. 232. Her medication was refilled
in December, 1985. R. 232.
From January through August, 1986, Fink was seen by
Dr. Gessner at least once a month. Soma and Valium were
prescribed. R. 232-33. On May 14, 1986, he reported that she
had three children and was trying to keep up with them. She
was trying to control her pain by restricting her activities and
taking Soma. She was to call him if she had acute pain. R. 233.
On June 25, 1986, Dr. Gessner reported that Fink was
involved in a motor vehicle accident the day before. She
complained of pain tn her neck, right arm, shoulder and leg.
Soma and Tylenol #3 were prescribed. R. 233. On July 8, 1986,
he reported that Fink was improved. R. 233. Her medications
were continued in July. In August, 1986, the Tylenol #3 was
eliminated but she was continued on Soma. R. 233. She was
seen by Dr. Gessner on November 4, 1986 and on December
16, 1986. R. 233. Dr. Gessner reported that Fink's pain was
controlled with Soma 350. She had weakness in her legs. She
31
was neurologically intact with no sensory loss. He
recommended conservative treatment and asked her to return in
thee months. Her prescription for Soma was refilled. R. 233.
On January 8, 1987, there was a CT scan of the
lumbrosacral spine and there was no evidence of disc bulging
or herniation. R. 148. On March 16, 1987, there was a MRI
scan of Fink's lumbar spine at Chalmette General Hospital
("Chalmette General"). The study was ordered by Dr. Gessner.
The study revealed degenerative disc changes with minimal
bulging at LS-S1. R. 147. |
On January 23, 1989, Fink was admittee to Chalmette
General at the request of Dr. Gessner. R. 149. She reported a
constant dull ache in her lower back that radiated down her
right leg to her foot. She stated there were intermittent episodes
of sharp shooting pain and occasional numbness in her right
foot. Her medications were Soma and Darvocet. The diagnosis
was low back syndrome. R. 150. A lumbar myelogram and CT
scan revealed mild to moderate diffuse bulging at the L4-5 and
L5-SI. There was no evidence of disc herniation, stenosis or
encroachment on the neural foramina. There were no findings
at L3-4. R. 152. Dr. Gessner concluded that surgery was not
warranted. Fink was discharged to be treated as an outpatient on
a conservative basis. R. 151.
On May 28, 1990, Fink was seen at Chalmette General's
emergency room. Drs. Gessner and West were reflected as the
admitting and attending physicians. Fink reported she was
injured in a motor vehicle accident and complained of pain in
the left pelvic and hip area. R. 154. An x-ray failed to find an
acute fracture or dislocation. R. 155.
On January 7, 1994, Dr. Landry, an orthopedic surgeon,
reported to Michael Lash, an attorney, that he interviewed and
examined Fink on January 7, 1994. R. 164. She reported an
injury to her neck in a December 16, 1992 accident when she
was rear-ended by an eighteen wheeler truck. R. 164. She went
32
to Slidell Memorial following the accident due to soreness all
over and a particularly painful left shoulder. She was given an
injection and went to Dr. Raoul Reyes, who treated her with
medication and heat therapy three times a week. She stopped
seeing Dr. Reyes in June or July, 1993. She was then seen by
Dr. Diamond, her family physician.
Dr. Landry ‘reported that Fink complained of
intermittent left sided neck and shoulder pain that became
worse with weather changes. She described her lower back
injury from 1980 and reported that she still had back problems
but they were not changed by the December, 1992 accident. She
reported taking Motrin when needed and that Soma provided
some relief. She also used Tylenol at times. R. 164.
Dr. Landry found that her cervical Jordosis was normal.
There was tenderness of the left neck muscle and tendon. Her
neck motion was normal and without any spasms. The
neurological examination of the upper extremities was normal.
There was no muscle atrophy. R. 165. Cervical x-rays did not
reveal any evidence of fracture, dislocation or demineralization.
The disc spaces were normal. R. 165. A cervical MRI revealed
a small type Ha disc herniation at C6-7. Dr. Landry
recommended cervical traction. R. 163. By March 28, 1994 the
cervical traction was discontinued as it only increased her neck
pain and caused headaches. R. 162. An EMG and nerve
conduction studies done on July 24, 1994 did not reveal any
abnormalities. R. 161. Dr. Landry discussed with her the
possibility of an anterior cervical fusion at C6-7. She preferred
to live with the problem and take Soma, Advil and Tylenol as
needed. R. 161. Dr. Landry advised her to settle her litigation as
though the surgery would be done so she could proceed with
surgery in the future. He recommended that she see him every
six months as long as she took prescription medication. R. 161.
On March 14, 1996, Fink was seen at Bogalusa Charity
Hospital for complaints of heavy bleeding. R. 211. The
33
_ diagnosis was dysfunctional uterine bleeding and dilation and
curettage of the uterus was recommended. R. 206 and 209. The
physical exam found there was no acute distress. R. 208. The
dilation and curettage procedure was completed on March 27,
1996. R. 207. On March 31, 1996, she complained of low
abdominal pain. R. 205. On April 1, 1996, bed rest was
prescribed. R. 204. On April 8, 1996, no blood was reported. R.
203. On April 15, 1996, there was bleeding and she was
scheduled for a total abdominal hysterectomy. R. 202.
Fink returned to Dr. Landry on May 3, 1996 and
reported continued problems with neck pain, tension and
headaches. R. 160. She did not want surgery but reported
intermittent pain, numbness and tingling in the upper
extremities, the left more than the right. She also reported back
pain. She took Soma four times a day. Dr. Landry examined her
neck and back. His diagnosis was cervical and lumbar disc
disease. R. 160.
A total abdominal hysterectomy was performed at
Bogalusa Charity Hospital on May 8, 1996. R. 197-99. On May
29 and July 1, 1996, Fink was seen at Bogalusa Charity
Hospital for post-surgical followup. R. 183-84.
On January 17, 1997, Fink returned to Dr. Landry and reported
chronic neck and back pain. R. 158. The diagnosis was cervical
and lumbar disc disease. R. 158.
On February 27, 1997, Fink was seen at Bogalusa
Charity Hospital for complaints of severe heartburn. She took
Pepcid daily and was diagnosed with a possible peptic ulcer. R.
181. On March 14, 1997, Fink was given an upper GI series at
Bogalusa Charity. It revealed a small hiatal hernia and active
superficial peptic ulcer disease. R. 173. On March 25 and May
1, 1997, she was seen at Bogalusa Charity. R. 178-79.
On June 18, 1997, Fink returned to Dr. Landry and
reported that her ligation was over. She complained of chronic.
neck and back pain with occasional upper extremity radiation.
34
Her symptoms increased with activity. She took Soma, Pepcid
and Ibuprofen. Dr. Landry reported she was to gradually
increase her activities with a walking program. R. 159.
On July 15, 1997, Fink was hospitalized for one day at
Bogalusa Charity with a complaint of chest pain. R. 177 and
187. At her discharge her condition was stable. Pepcid was
prescribed. R. 186. The physical exam did not contain any
report of neck or back pain. R. 189-90. On August 4, 1997, a
Stress test was negative for ischemia. R. 212-15. On November
20, 1997, Fink was seen at Bogalusa Charity following a fall
and was diagnosed with a rib contusion. R. 172.- An x-ray
indicated a questionable fracture of the end of the eighth rib. R.
171.
On April 22, 1998, Fink returned to Dr. Landry. She
was taking Soma and occasionally Tylenol. She complained of
occasional stiffness, muscle tension, headaches and constant
low back pain of variable intensity. She experienced occasional
numbness and tingling in the lower extremities with long
sitting. She was walking one mile per day and swam in the
summer. R. 157. On May 27, 1998, Fink went to Bogalusa
Charity and reported that she had pulled a muscle in her upper
back. R. 185.
On November 2, 1998, Fink was seen by Dr. Frederick
Keppel, an orthopedic surgeon, at the request of the Disability
Determination Services. R. 216. Dr. Keppel found that she
should be able to perform sedentary and light duty activities. R.
216-17. His diagnosis and prognosis stated:
The patient has a history of chronic neck pain, possibly
a C6-C7 disc herniation from history, although she
shows no signs of any neurologic deficits. Her findings
of right hand numbness may be secondary to carpal
tunnel syndrome of the right hand and wrist. She also
has chronic lower back pain with very little in the way
of neurologic findings. The patient showed some
35
subjective weakness in all motor groups. I am not sure
whether or not she is giving a good effort on motor
examination.
R. 217.
On April 26, 1999, Fink returned to Dr. Landry, who
stated: “The patient says that her neck 1s about the same. Her
back bothered her a lot in the last year as she was lifting her
invalid father until he died last month.” R. 237. Dr. Landry
recommended a liver function study because of her usage of
Tylenol and Soma. He felt she was disabled from gainful
employment and she was unable to perform activities on regular
basis including climbing, bending, lifting and prolonged sitting,
standing or walking. R. 237.
On October 25, 1999, Fink returned to Dr. Landry and
reported increased tingling in the nght hand and weakness with
repetitive use. There was diminished sensation in the right
middle finger tip. The grip strength for both hands was less than
expected as normal. Dr. Landry reported that she remained
disabled from employment. R. 236. At that time, he completed
a questionnaire indicating that Fink had pain, significant
limitation of spinal movement and sensory loss. The answers
also indicated she had reduced grip strength bilaterally, felt
cramping if she attempted to write for more than about ten
minutes, suffered with low back pain after sitting for a
protracted period and needed to recline at will periodically
during the day for relief of pain. Fink could lift twenty pounds
at a time and remain standing or walking for two hours in an
eight hour day. She could not stand, walk or sit for six hours in
an eight hour day. R. 221. She could not alternate standing or
sitting for eight hours without walking about or reclining. R.
222.
On November 8, 1999, Dr. Gessner completed a similar
questionnaire with similar results for Fink's condition as of June
30, 1986. R. 219-20.
36
On March 24, 2000, Fink was seen by Dr. Monroe
Laborde, who took over from Dr. Landry. Fink reported pain in
her neck that radiated to the right hand with some numbness.
She reported improvement in the arm pain and numbness. The
examination of her neck revealed a good range of motion and
her neurologic status was intact. Dr. Laborde reported that as far
as he knew she remained disabled. R. 235.
At the hearing, Dr. Leon Weisberg testified as a medical
expert. Dr. Weisberg was board certified in neurology and
psychiatry and the chair of those departments at Tulane
University Medical Center. R. 51-52. Prior to the hearing Dr.
Weisberg reviewed Fink's medical records. He stated that he did
not see any severe impairments. R. 53. Spina bifida and
spondylolisthesis were radiological diagnoses. The fatter
indicated anterior displacement of the arterial body. Neither
diagnosis caused muscular, skeletal or neurological
disturbances. R. 53-54. He testified that a disc herniation by
itself did not cause symptoms. R. 54. However, he did not
doubt Fink's report of low back or neck pain. R. 54. There was
no evidence of radiculopathy (nerve root compression) or
mylopathy (spinal cord compression). The reports of muscle
spasms were evidence of a soft tissue injury. It was his opinion
that Fink had a soft tissue injury unaccompanied by
radiculopathy. R. 55. Dr. Weisberg testified that there was
evidence of a right sided carpal tunnel syndrome. R. 55. There
was no evidence of motor dysfunction of the nght hand. With
repetitive right hand activity Fink would develop tingling,
numbness and weakness in her hand. This would produce some
limitations that could be expected to last more than twelve
months. R. 55-56.
Dr. Weisberg agreed with the ALJ that there was very
little in the record by way of neurologic findings, except for the
right hand. R. 57. He testified that Soma was a muscle relaxer
and a short term medication and that it was very unusual for a
37
person to be taking it as long Fink took it. After six months to
a year, its effectiveness wore off. R. 58.
Dr. Weisberg agreed that Dr. Landry's report of April
22, 1998 that Fink was walking a mile per day and swimming
in the summer (R. 157) was commensurate with Dr. Keppel's
finding that she was able to engage in sedentary or light duty
(R. 216-17). R. 59. Dr. Weisberg found no support in the
medical record for the limitations that Dr. Landry and Dr.
Gessner indicated were present when they completed the
questionnaires in the fall of 1999. R. 59-61 and 67.
The disc herniation at C6-7 revealed by the January 13,
1994 cervical MRI (R. 163) was a mechanical abnormality.
There was no abnormality on the lumbar myelogram done in the
late 19-80's (R. 152). R. 58. Dr. Weisberg testified that Fink's
Statements of limiting pain was not supported by findings on
examination by her physicians. He stated that, "[w]hen pain 1s
not supported by findings on examination then it tends to be
less severe than when it is supported by findings on
examination." R. 68.° .
d. Plaintiff's Appeal.
IssueNo.1. |Didthe Commissioner err by failing to recontact
the treating physicians. before ordering a
consultative examination? .
Issue No.2. Did the Commissioner err by ordering a
consultive examination without soliciting a
treating physician to perform the examination?
Issue No.3. Did the Commissioner err by providing the
‘consultative examination report to the medical
expert that testified at the hearing without
°As to the gynecological issues, Dr. Weisberg did not see a laboratory
study in the record to support the diagnosis of anemia. R. 61 and 63-64.
Fink's counsel acknowledged that she was not claiming disability on the
basis of iron deficiency anemia. R. 66.
38
recontacting the treating physician?
Issue No.4. Did the ALJ err by rejecting the findings of the
treating physicians without attempting to
recontact them?
Finks' first four alleged errors are procedural and
related. Rec. doc. 16 at p. |. In Morris v. Bowen, 864 F.2d 333
(5h Cir. 1988), the Fifth Circuit stated:
The duty of an appellate court when reviewing an
agency decision regarding disability benefits and
supplemental security income benefits is not to reweigh
the evidence, but merely to determine if there is
substantial evidence in the record to support the ©
agency's decision. Moreover, procedural 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. Id. at 335 (citations,
brackets and quotation marks omitted). See also
Ferguson v. Barnhart, 2003 WL 21277130, *1
(E.D.La.)(Duval, J.).
Fink urges that a consultative examination was ordered
by the Commissioner without first attempting to recontact the
treating physician in violation of 20 C.F.R. § 404.1512(e)(1).
This regulation arises in the context of the claimant's burden to
establish a disabling impairment.
[Y Jou have to prove to us that you are blind or disabled.
Therefore, you must bring to our attention everything
that shows that you are blind or disabled. This means
that you must furnish medical and other evidence that
we can use to reach conclusions about your medical
impairment... .
4
39
20 C.F.R. § 404.1512(a).
After describing what is meant by evidence and the
claimant's responsibility to provide evidence, the regulation
describes the Commissioner's responsibility, in part, as follows:
Before we make a determination that you are not
disabled, we will develop your complete medical
history. .. We will make every reasonable effort to help
you get medical reports from your own medical sources
when you give us permission to request the reports.
20 C.F.R. § 404.1512(d).
The record demonstrates that before any determination
was made on Fink's application the Commissioner sought and
obtained records from the following providers: Chalmette
Delaronde Medical Center (R. 153); Dr. Edmund Landry (R.
156); and,Bogalusa Charity (R. 166). The request to Dr. Landry
was dated September 15, 1998 and he provided the notes of his
treatment from January 7, 1994 through April 22, 1998. R.
156-64. In the note for April 22, 1998, Dr. Landry reported that
Fink was to return in one year "if needed.” R. 157. Dr. Landry
discussed exercises she could do for weight loss to improve her
overall fitness without aggravating her neck and _ back
conditions. R. 157. Dr. Landry's notes do not contain any
information on Fink's ability to perform work-related physical
activities, and in this respect the medical records were
inadequate for the Commissioner to act on Fink's application
(e)- Recontacting medical sources. When the
evidence we receive 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
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
40
whether the additional information we need is 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. We may do this by
requesting copies of your medical source's records,.a
new report, or a more detailed report from your medical
source, including your treating source, or by
telephoning your medical source. |
20 C.F.R. § 404.1512(e). Fink contends that the Commissioner
was required to recontact Dr. Landry. The Commissioner's letter
of September 15, 1998 to Dr. Landry reported to him that his
patient had made an application for disability benefits and
sought copies of his records or a narrative report. The nature of
Fink's alleged disability, back and neck problems, was
mentioned and the type of information requested, for example
laboratory findings, was described. The letter also requested:
[A] statement, based on your medical findings, of the
claimant's ability to perform work-related physical
activities such,as sitting, standing, -walking, lifting,
carrying, handling objects, hearing, speaking, and
traveling. R. 156.
In comparison, Bogalusa Charity was only asked to send
medical records. R. 166. Notwithstanding the request to Dr.
Landry, he did not supply a statement describing Fink's ability
to perform work-related physical activities. R. 157-65. By
October 13, 1998, the other health care providers had responded
to the Commissioner's request for information. R. 166. Prior to
November 12, 1998, the Commissioner made the decision to
ask Fink to appear for a consultative examination before Dr.
Keppel. R. 216-37.
7
4)
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. . . . Generally, we will not request a
consultative examination until we have made every
reasonable effort to obtain evidence from your own
medical sources.
20 C.F.R. § 404.1512(f). The regulations defines reasonable
effort as follows:
"Every reasonable effort" means that we will make an
initial request for evidence from your medical source
and, at any time between 10 and 20 calendar days after
the initial request, if the evidence has not been received,
we will make one followup request to obtain the
medical evidence necessary to make a determination.
The medical source wiil have a minimum of 10 calendar
days from the date of our followup request to reply,
unless our experience with that source indicates that a
longer period 1s advisable in a particular case.
20 C.F.R. § 404.1512(d)(1). These regulations implemented 42
U.S.C. 423(d)(5)(B).’
The Commissioner complied with the regulations in
contacting the health care providers identified by Fink. Dr.
Landry was not only asked to submit his records but he was also
asked to provide a statement on his patient's ability to perform
™In making any determination the Commissioner . . . shall 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 a determination, prior to evaluating medical evidence
obtained from any other source on a consultative basis." 42 U.S.C.
§ 423(d)(5)(B).
42
work related activities. Dr. Landry, however, declined to do so.
The regulations required that the Commissioner make one
followup request.’ The record does not reflect that such a
_ request was sent. 3
The question remains whether this procedural
impropriety casts doubt on the existence of substantial evidence
to support the ALJ's decision. Morris v. Bowen, 864 F.2d 333,
335 (S'h Cir. 1988). Because Fink's first four alleged procedural
issues are related, this question will be deferred until after their
consideration. However, in considering the first four issues
raised by Fink, the court will assume that had Dr. Landry been
contacted a second time, he would have submitted a report
similar to his questionnaire responses of October, 1999: that
Fink remained disabled from employment.
_ Fink contends that instead of requesting that she see Dr.
Keppel for a consultative examination, the Commissioner was
required to send her to her treating physician, Dr. Landry. The.
regulations state:
When in our judgment your treating source is
qualified, equipped, and willing to perform the
additional examination or tests for the fee schedule
payment, and generally furnishes complete and timely
reports, your treating source will be the preferred source
to do the purchased examination. Even if only a
supplemental test is required, your treating source is
ordinarily the preferred source.
*The regulations also provide that, "[w]e may not seek additional evi-
dence or clarification from a medical source when we know from past ex-
perience that the source either cannot or will not provide the necessary
findings. 20 C.F.R. § 404.1512(e)(2). But for Dr. Landry's failure to pro-
vide the requested information in response to the Commissioner's initial
request, there is nothing in the record to indicate that he would not have
provided the necessary findings if requested to do so in a followup request.
43
20 C.F.R. § 404.1519h. The question is whether the
Commissioner abused his discretion in not arranging a
consultative examination with Dr. Landry. In Meditrust
Financial Services Corp. v. Sterling Chemicals, Inc., 168 F.3d
211, 215 (Sth Cir. 1999), the Fifth Circuit held:
When reviewing for arbitrary and capricious actions
resulting in an abuse of discretion, we affirm an
administrator's decision if it is supported by substantial
evidence. A decision is arbitrary only if made without
a rational connection between the known facts and the
decision or between the found facts and the evidence.
Assuming that both parties were given an opportunity to
present facts to the administrator, our review of factual
determinations is confined to the record available to the
administrator. :
Id. at 215 (citations and quotation marks omitted). The record
indicates that Fink was sent to Dr. Landry by her attorney in
connection with a clarm for damages for personal injuries
arising out of a December 16, 1992 accident. Dr. Landry failed
to respond to the Commissioner's initial request for a statement
of Fink's ability to perform work-related physical activities.
There were rational connections to the Commissioner's decision
not to pursue an examination with Dr. Landry.
Fink urges that the Commissioner should not have
provided Dr. Keppel’s report to Dr. Weisberg without
recontacting Dr. Landry. The regulation states, "[w]e will not
evaluate this evidence (a consultative examination) until we
have made every reasonable effort to obtain evidence from your
medical sources." 20 C.F.R. § 404.1512(f). The record reveals
that the Commissioner did not make the followup request to Dr.
Landry. See 20 C.F.R. § 404.1512(e)(1) and (f). However,
because Fink obtained responses from Drs. Gessner and Landry
prior to the hearing and these were presented to Dr. Weisberg
in advance of the hearing, Dr. Weisberg was able to review the
as
treating physicians' records before the hearing.
Fink contends that in the face of the perceived discrepancies
m the records of Drs. Gessner and Landry, the regulations
imposed on the ALJ the obligation to recontact the treating
sources. The regulations states that, "[w]je 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." After an introductory
description of Fink and her claim, the ALJ thoroughly reviewed
the medical evidence, including Dr. Weisberg's testimony. R.
14-19. The ALJ found that the evidence established carpal
tunnel syndrome in the right hand but it did not demonstrate: (a)
severe cervical or lumbar disc herniation; (b) cardiac,
gastrointestinal, or reproductive disease; or (c) an impairment
or combination of impairments that met any hsting criteria. The
ALJ also found that Fink's limitation allegations lacked
credibility and that she possessed the residual functional
capacity to perform light work activities with moderate
limitation of the right hand. R. 19-20.
The questionnaire responses from Drs. Gessner and
Landry were in conflict with the opinion of Dr. Keppel.
"[C]onflicts in the evidence, including medical opinions, are to
be resolved by the Secretary, not by the courts." Patton v.
Schwieker, 697 F.2d 590, 592 (Sh Cir. 1983). See also
Martinez v. Chater, 64 F.3d 172, 174 (S’h Cir. 1995). In Patton
the conflict was between the conclusions of the consulting
physician on the one hand and the those of the treating
physicians on the other hand. 697 F.2d at 592. It was in order
for the ALJ to resolve any conflicts in the medical opinions.
The ALJ found that the questionnaire responses were
not substantiated by the medical record. R. 21. In Scoit v.
Heckler, 770 F.2d 482, 485 (S°h Cir. 1985), the Fifth Circuit
stated,
The ALJ may give less weight to a treating physician's opinion
45
when there is good cause shown to the contrary, as 1s the case
when his statement as to disability is "so bnef and conclusory
that it lacks strong persuasive weight, is not supported by
medically acceptable clinical laboratory diagnostic aes,
or is otherwise unsupported by the evidence.
Id. at 485 (citations and quotation marks omitted) and see Loza
v. Apfel, 219 F.3d 378, 395 (S’h Cir. 2000). It was within the
ALJ's province to determine whether the questionnaire
responses were substantiated by the medical records.
The only conflicts identified by the ALJ were: (1) Dr.
Gessner's questionnaire responses concerning Fink's limitations
on sitting versus the statements found in his notes that Fink
could perform sedentary secretarial type work (R. 219-20, 227
and 228); (2) Dr. Gessner's responses concerning her severe
symptoms and very limited functional ability versus the
statements 1n his notes indicating that surgery was not required
(R. 227, 228 and 230); and (3) Dr. Landry's response indicating
a sensory loss versus the report in his note of decreased
sensation in the nght middle finger tip on one occasion (R.
236).
In Lewis v. Chater, 1996 WL 43111 (E.D.La.) (Duval,
J.), the issue was whether the ALJ was required to recontact the
¢laimant's treating physician. The District Court found that the
ALJ resolved the perceived conflicts between the treating
physician's notes and a report by the same physician without
recontacting the physician. It also found that there was no
apparent reason why the physician "could not have been
recontacted and it cannot be said that . .. [the treating
physician's] notes [which for the most part were illegible]
support a finding that his detailed, albeit formulated, report . .
. was in error." The conflicts described by the ALJ with the
records and questionnaire responses from Drs. Gessner and
Landry are similar to those issues that the ALJ was called upon
to resolve by Scott v. Heckler. They are not similar to the
46
illegible notes found in Lewis 3
v. Chater. The ALJ was not required to recontact Drs. Landry
and Gessner because of the conflicts between their
questionnaire responses and their notes of treatment.
The only procedural error was the Commissioner's
failure to followup with Dr. Landry and this does not cast doubt
on the existence of substantial evidence to support the ALJ's
decision. Morris v. Bowen, 864 F.2d 333, 335 (Sth Cir. 1988).
Dr. Keppel opined that Fink was able to perform sedentary and
light duty activities. R. 217. He reached this conclusion after
conducting an examination of Fink on November 2,1998 and
reviewing x-rays of her neck and back. R. 216-17. Dr. Keppel's
diagnosis was chronic neck and back pain by history but very
little in the way of neurologic findings. R. 217. The absence of
neurologic findings was supported by the physical examination.
R. 216-17. Dr. Weisberg did not examine Fink, but he reviewed
the medical records from Drs. Landry, Gessner and Keppel. R.
53. He found no evidence of nerve root or spinal cord
compression. It was his opinion that Fink had a soft tissue
injury unaccompanied by radiculopathy. R. 55. He cited the
reports of muscle spasms as evidence of a soft tissue injury. R.
55. While there was evidence of a right sided carpal tunnel
syndrome, there was no evidence of motor dysfunction of the
right hand. R. 55-56. Dr. Weisberg did not doubt that Fink was
suffering back pain from a soft tissue injury. R. 67. However,
he testified that Fink's statements of limiting pain was not
supported by findings on examination by her physicians. He
stated that, "[w]hen pain is not supported by findings on
examination then it tends to be less severe than when it is
supported by findings on examination." R. 68.
Pain alone can constitute a disabling impairment, if it is
linked to a medically determinable impairment. Falco v.
Shalala, 27 F.3d 160, 163 (Sth Cir. 1994) and Abshire v.
Bowen, 848 F.2d 638, 642 (S’h Cir. 1988). The pain must be
47
constant, unremitting, and wholly unresponsive to therapeutic
treatment. Falco v. Shalala, 27-F.3d 160, 163 (S°h Cir. 1994).
Subjective evidence of pain will not take precedence over
conflicting medical evidence. Harper v. Sullivan, 887 F.2d 92,
96 (Sh Cir. 1989). The medical records and testimony are
substantial evidence for the finding that Fink's pain was not
disabling. Fink's alleged procedural improprieties do not cast
doubt on the existence of this evidence.
Issue No. 5. Did the ALJ err by rejecting the findings of the
treating physician without applying the criteria
found in 20 C.F.R. § 404.1527(d)(2).
Fink cites Newton v. Apfel, 209 F.3d 448 (S’h Cir.
2000), for the proposition that the ALJ was required to consider
the six factors found in 20 C.F.R. § 404.1527(d){(2) before
rejecting the questionnaire responses from Drs. Gessner and
Landry.” In Newton, the ALJ rejected the opinion of the
claimant's treating physician that the claimant could not
perform any sedentary work. The Fifth Circuit reversed the
decision of the ALJ and stated:
The Court concludes that, absent reliable medical
evidence from a treating or examining physician
controverting the claimant's treating specialist, an ALJ
may reject the opinion of the treating physician only if
the ALJ performs a detailed analysis of the treating
physician's views under the criteria set forth in 20
C.F.R. § 404.1527(d)(2)
Newton, 209 F.3d at 453. The ALJ in Newton rejected the
*The six factors found in § 404.1527(d) are: (1) the physician's length
of treatment of the claimant; (2) the physician's frequency of examination;
(3) the nature and extent of the treatment relationship; (4) the support of
the physician's opinion afforded by the medical evidence; (5) the consis-
tency of the opinion with the record as a whole; and (6) the specialization
of the treating physician.
48
opinion of the treating physicians and relied on the testimony at
the hearing of a medical expert who reviewed the claimant's
records but did not examine her. Newton does not apply to the
ALJ's decision on Fink's claim because there was reliable
medical evidence from an examining physician, Dr. Keppel,
controverting the answers provided by the treating physicians
in the questionnaires.
RECOMMENDATION
Accordingly, IT IS RECOMMENDED that defendant's motion
for summary judgment (Rec. doe. 13) be GRANTED and
plaintiffs motion for summary judgment (Rec. doe. 12) be
DENIED. :
OBJECTIONS —
A party's failure to file written objections to the proposed
findings, conclusions and recommendations in a magistrate
judge's report and recommendation within ten (10) days after
being served with a copy shall bar that party, except upon
grounds of plain error, from attacking on appeal the —
unobjected-to proposed factual findings and legal conclusions
accepted by the district court, provided that the party has been
served with notice that such consequences will result from a
failure to object. Douglass v. United Servs. Auto. Ass'n, 79 F.3d
1415, 1430 (Sth Cir. 1996) (en banc).
=
New Orleans, Louisiana, this 11" day of August, 2003.
S/ SALLY SHUSHAN
United States Magistrate Judge
APPENDIX D:
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MAXANN C. FINK CIVIL ACTION
VERSUS NO: 02-2136
JO ANNE B. BARNHART, SECTION: "B"(1)
COMM. SOCIAL SECURITY ADMINISTRATION
ORDER
The Court, after considering the complaint, the record, the
applicable law, the Magistrate Judge's Report and
Recommendation, and plaintiff's objections to same, hereby
approves the Magistrate Judge's Report and Recommendation
and adopts it as its opinion. Accordingly,
IT IS ORDERED that defendant's motion for summary
judgment (Rec. Doc. 13) is GRANTED and the plaintiff's
motion for summary judgment (Rec. Doc. 12) is DENIED.
New Orleans, Louisiana, this 26" day of September, 2003.
S/ Ivan M. Lemelle
UNITED STATES DISTRICT JUDGE
49
APPENDIX E:
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
MAXANN C. FINK CIVIL ACTION
VERSUS NO: 02-2136
JO ANNE B. BARNHART, SECTION: "B"(1)
COMM. SOCIAL SECURITY ADMINISTRATION
JUDGMENT
The Court having approved the Report and Recommendation of
the United States Magistrate Judge and having adopted it as its
opinion herein; Accordingly,
IT 1S ORDERED, ADJUDGED AND DECREED that there be
judgment in favor of defendant, Jo Anne B. Barnhart,
Commissioner of the Social Security Administration, and
against the plaintiff, Maxann C. Fink, affirming the
Commissioner's decision.
New Orleans, Louisiana, this 26" day of September, 2003.
S/ Ivan M. Lemelle
UNITED STATES DISTRICT JUDGE
50
APPENDIX F:
SOCIAL SECURITY ADMINISTRATION
Office of Hearings and Appeals
DECISION
IN THE CASE OF CLAIM FOR
Supplemental Security Income
IDA J. ROCHESTER 433-21-5553
(Wage Earner) (Social Security Number)
The claimant protectively filed an application for
supplemental security income benefits on June 15, 1998, at
which time she alleged that she was disabled due to mental
illness, with an onset date of November 1, 1997. This
application was denied initially and on reconsideration. The
claimant filed a timely request for a hearing on the matter on
April 23, 1999.
A hearing was subsequently scheduled and held before
the undersigned Administrative Law Judge on March 23, 2000,
in Lafayette, Louisiana. At the hearing the claimant was
represented by Attorney John Pintado. The claimant, a medical
expert (Dr. Jimmie Cole), and a vocational expert (George E.
Hearn) testified at the hearing.
The general issues to be decided in the present case are
whether the claimant ts "disabled" as defined in the Social
Security Act, and if so, the date of onset of such disability and
the duration thereof. After carefully studying all of the
evidence, it is the conclusion of the undersigned that the
claimant does not suffer from an impairment or combination of
impairments that meets or equals the requirements of an
impairment listed in Appendix 1, Subpart P, Regulations No. 4.
51 Zs:
52
Additionally, the undersigned is convinced that there are jobs
existing in significant numbers in the economy the claimant can
perform despite her alleged impairments. Therefore, it is the
decision of the undersigned that the claimant is not disabled
(Section 416.920(d)). | !
Pursuant to section 404.1520, a sequential evaluation is
required in disability cases. First, an individual who is engaging
in substantial gainful activity cannot be found to be disabled.
Second, an individual who does not suffer from a severe
impairment or combination of impairments is not disabled.
Third, an individual who suffers from an impairment that meets
or equals the requirements of an impairment listed in Appendix
1, Subpart P, will found to be disabled without consideration of
vocational factors. Fourth, a determination must be made as to
whether the individual can perform his or her past relevant
work. If not, the burden shifts to the Administration to
demonstrate that, given the individual's age, education, past
relevant work experience, and residual functional capacity,
there are other jobs existing in significant numbers in the
economy that the individual can perform.
Determining the effect of pain and other subjective
symptoms on the claimant's residual medical condition is
present that could reasonably be expected to produce the
symptoms alleged. Consideration must be given to the
claimant's work record, medical history and treatment
(including medication effects and sideOeffects), daily activities,
pain and symptoms, and precipitating/aggravating factors, and
observations made by others
(section 404.1529).
The evidence reveals that the claimant was born on March
3, 1972. Thus, she is presently 28 years old, which is considered
to be a younger "individual" (section 416.963). The claimant
has completed a marginal, sixth grade education and she has no
past relevant work experience. Consistent with her past relevant
53
work history (none) the claimant has not engaged in substantial
gainful activity at any time at issue im her case.
The claimant's testimony at her hearing indicated that
she believes that she is unable to work due to chronic panic
attacks and paranoia. She complained of poor sleep and variable
appetite. The claimant's testimony indicated that she lives with
her sister and that she prefers to stay at home. The claimant also
complained of chest pain, shortness of breath and a heart
murmur. She alleged that she becomes paranoid when she
leaves her home and she contended that she presently is
experiencing visual hallucinations. The claimant informed the
undersigned that she continues to take medication therapy for
her mental health problems. She denied any significant side
effects of medication therapy. In response to questioning by the
undersigned, the claimant reported that her ability to engage in
basic physical work activities is not impaired. However, she
complained of poor concentration, poor stress tolerance, and
poor memory. The medical evidence indicates that the claimant
has a history of poor performance in school, and consistent with
her testimony, she apparently ceased her educational efforts
after the sixth grade. However, the record does not document
that the claimant is suffering from mental retardation.
Her current treating physician is Dr. S. Young, who has
indicated that the claimant is suffering from a panic disorder
with agoraphobia and paranoid schizophrenia (Exhibits 8F,
11F, 13F). The claimant is presently prescribed Risperdal,
Paxil, and Trazodone for her mental health problems and her
related complaints of panic attacks, general nervousness and
paranoia. The claimant has informed Dr. Young on occasion
that she 1s experiencing auditory hallucinations. However, the
undersigned's review of the record does not reveal that the
claimant has ever informed the doctor that she is experiencing
visual hallucinations (as alleged at her hearing). Dr. Young has
54
treated the claimant since the fall, 1998, and he has reported
that he believes that the claimant is experiencing a wide range
_of functional limitations due to her mental health problems,
including marked restrictions in her activities of daily living,
marked limitations in her ability to maintain social functioning,
and frequent failures to complete tasks in a timely manner due
to deficiencies of concentration, persistence or pace (Exhibit
11F). The doctor has also advised that the claimant is subject
to continual episodes of deterioration or decompensation if she
is placed in work or work-like settings. Consistent with his
expert opinion, he has opined that the claimant is experiencing
a substantial loss of her ability to understand, carry out or
remember even simple job instructions.
It appears that Dr. Young has largely relied on the
self-reports of the claimant when evaluating the nature and
severity of the claimant's mental health impairments. However,
the record indicates that the claimant is not a particularly
reliable informant. She was briefly hospitalized from June 29,
1988 through July 1, 1998, for treatment of an alleged panic
disorder (Exhibit 2F). However, at the time of her
hospitalization the claimant reported that she had been
encouraged to report false symptoms in order to obtain
disability benefits. Contact with the claimant's mother indicated
that she was unaware that the claimant was experiencing any
significant mental health symptoms. Consistent with her
mother's report, the claimant also denied that she was in need
of inpatient mental health treatment. Additionally, the claimant
was reported to indicate that she was poorly motivated to work
("lazy and not wanting to work"). Additionally, when seen for
consultative psychological evaluation by Dr. A. Buxton in
October 1998, the claimant exhibited selective recall secondary
to low motivation (Exhibit 5F). Dr. Buxton found it to be
"quite obvious" the claimant was exhibiting evidence of
manipulation and secondary gain during her mental status
55
examination. For example she informed the doctor that she
believed a mouse was bigger than a cat, the only color she could
recall in the American flag was white. Dr. Buxton offered a
G.A.F. rating of 70 which reflected that he did not believe that
the claimant was suffering from any severe, disabling
psychopathology.
_ As previously noted, a medical expert, Dr. Jimmie Cole,
was also present and testified at the claimant's hearing. He
indicated that it was his opinion that the claimant is not
suffering from an impairment or combination of impairments
that meets or equals the requirements of an impairment listed in
Appendix 1, Subpart P, Regulations No. 4. Additionally, his
testimony reflected that the claimant should be capable of
simple jobs involving | or 2 step tasks with no high levels of
stress and no regular contact with the public or large number of
co-workers. Subsequent to the testimony of Dr. Cole, the
vocational expert at the claimant's hearing, Mr. Hearn, indicated
that, given the claimant's age, education, past relevant work
experience, and basic mental work capabilities as described by
Dr. Cole, there would be jobs existing in significant numbers in
the economy that the claimant could perform. These jobs
included numerous housekeeper/cleaner positions and unskilled
assembler positions.
It is the conclusion of the undersigned that the
above-summarized record demonstrates that the claimant is
suffering from panic attacks. The present record does not
objectively document that she is suffering from a severe thought
disorder or schizophrenia nor does the instant record objectively
demonstrate that she is suffering from any severe physical
impairments. The claimant's presentation and demeanor on the
date of the hearing were not, in the undersigned's opinion,
consistent with the presence of a disabling mental impairment.
Also, the medical expert's testimony at the claimant's hearing
did not reflect that the claimant is suffering from a disabling
56
mental impairment. The claimant's treating physician's expert
opinion would generally be entitled to controlling weight.
However, the present record contains substantial evidence that
is contrary to Dr. Young's expert opinions. In particular, the
undersigned again notes that Dr. Young appears to rely heavily
on the claimant's self-reports relative to the nature and severity
of her mental health problems. However, the record contains
significant evidence that indicates that the claimant is not a
reliable informant. Accordingly, the undersigned adopts the
expert opinion of Dr. Cole and finds that the claimant is capable
of performing simple, low stress jobs that involves one or.two
step tasks and do not require significant interaction with the
public or large numbers of coworkers.
Because the claimant has no past relevant work
experience, the burden of proof is on the Administration to
demonstrate that there are jobs existing in significant numbers
in the economy that the claimant can perform. It is the
conclusion of the undersigned that the Administration has met
this burden.
As previously noted, the claimant is a “younger
individual” with a "marginal" educational history. She has no
past relevant work history and is subject to no limitations in her
ability to meet the exertional demands of work. Thus, Section
204.00 of Appendix 2, Subpart P, Regulations No. 4 indicates
that a finding of "not disabled" the limitations and her ability to
meet the mental demands of work do not significantly
compromise her ability to perform work at all exertional levels.
The vocational expert testimony received at the
claimant's hearing indicates that the claimant's
impairment-related limitations do not significantly compromise
the claimant's ability to perform work activities at all levels.
Presented with a hypothetical person of the claimant's profile,
limited as nerein found, Dr. Hearn opined that such a person
could perform the jobs of housekeeper/cleaner/steward, or
57
assembly line worker. Based on personal observation of the
claimant at her hearing and a careful review of all of the
evidence, the undersigned is convinced that the claimant can
perform the jobs cited by the vocational expert in response to
the hypothetical questions posed by the undersigned.
Accordingly, using Section 204.00 as a framework for
decisionmaking and pursuant to Section 416.920(f), it 1s the
decision of the undersigned that the claimant is not disabled as
there are jobs existing in significant numbers in the economy
that she remains capable of performing. Consistent with the
regulations concerning the evaluation of mental impairments,
a completed Psychiatric Review Technique Form is attached to
this decision and reflects the undersigned’s conclusion that the
claimant is not suffering from a disabling mental impairment.
FINDINGS
After carefully considered all of the evidence, the
Administrative Law Judge makes the following findings:
1. The claimant has not engaged in substantial gainful activity
at any time at issue in her case.
2. The medical evidence establishes that the claimant suffers
from panic attacks, but that she does not have an
impairment or combination of impairments listed in or
medically equal to one listed in Appendix |, Subpart P,
Regulations No. 4.
3. The claimant's allegations relative to the nature and severity
of her alleged impairments are found to be not credible.
4. The claimant's history of panic attacks does not prevent her
performance of unskilled, routine jobs that involve | or
2-step job tasks and that are low stress in nature and that
does not require significant interaction with the public or
large numbers of co-workers.
5. The claimant has no past relevant work experience.
4:
58
The claimant is 28-years old, which is defined as a "younger
individual" (Section 416.963).
The claimant has completed a "marginal" 6th grade
education (Section 4] 6.964).
The claimant has no transferable work skills.
The claimant's limitations do not significantly compromise
her ability to perform work at all levels, Section 204.00 of
Appendix 2, Subpart P, Regulations No. 4 indicates that a
finding of not disabled would be appropniate. If her capacity
to work at all levels were significantly compromised, the
remaining work which she would functionally be capable of
performing would be considered in combination with her
age, education and work experience to determine whether
a work adjustment could be made.
Considering the range of work at all levels which the
claimant is stil] capable of performing, in combination with
her age, education and work experience, and using Section
204.00 as a framework for decision making, the claimant is
not disabled.
The claimant was not under a "disability" as defined in the
Social Security Act, at any time through the date of this
decision (Section 416.920(f)).
DECISION
It is the decision of the Administrative Law Judge that,
based on the application protectively filed on June 15, 1998, the
claimant is not eligible for supplemental security income under
Sections 1602 and 1614(a)(3)(A) of the Social Security Act.
S/E. Wilson Crump II
Administrative Law Judge
August 23, 2000
59
APPENDIX G:
ACTION OF APPEALS COUNCIL
ON REQUEST FOR REVIEW
Ms. Ida Rochester
409 Malverm Ave.
Rayne, LA 70578
Dear Ms. Rochester:
The Appeals Council hereby vacates its prior action of August
8, 2002, denying the request for review of the Administrative
Law Judge's decision issued on August 23, 2000, to consider »
further arguments.
Social Security. Administration regulations provide that the
Appeals Council will grant a request for review where: (1) there
appears to be an abuse of discretion by the Administrative Law
Judge; (2) there is an error of law; (3) the Administrative Law
Judge's action, findings, or conclusions are not supported by
substantial evidence; or (4) there is a broad policy or procedural
issue which may affect the general public interest. The
regulations also provide that where new and material evidence
is submitted with the request for review, the entire record will
be evaluated and review will be granted where the Appeals
Council finds that the Administrative Law Judge's actions,
findings, or conclusion is contrary to the weight of the evidence
currently of record (20 CFR 416.1470).
The Appeals Council has concluded that there is no basis under
the above regulations for granting your request for review.
Accordingly, your request is denied and the Administrative Law
Judge's decision stands as the final decision of the
60
61
Commissioner of Social Security in your case. In reaching this
conclusion, the Appeals Council has considered the applicable
statutes, regulations, and rulings in effect as of the date of this
action.
The Appeals Council has also considered the contentions raised
in the material identified on the attached Order of Appeals
Council, but concluded that these contentions do not provide a
basis for changing the Administrative Law Judge's decision.
If you desire a court review of the Administrative Law Judge's
decision, you may commence a civil action by filing a
complaint in the United States District Court for the judicial
district in which you reside within sixty (60) days from the date
of the receipt of this letter. Jt will be presumed that this letter is
received within five (5) days after the date shown above unless
a reasonable showing to the contrary is made. The complaint
should name the Commissioner of Social Security as the
defendant and should include 2
the Social Security number(s) shown at the top of this notice.
The nght to court review is provided for in section 1631(c)(3)
of the Social Security Act (42 U.S.C. 1383(c)(3)).
If you cannot file your complaint within 60 days, you may ask
the Appeals Council to extend the time in which you may begin
a civil action. However, the Council will only extend the time
if you provide a good reason for not meeting the deadline. Your
reason(s) must be set forth clearly in your request.
If a civil action is commenced, the Commissioner must be
served by sending a copy of the summons and complaint by
registered or certified mail to the General Counsel, Social
Security Administration, Room 611, Altmeyer Building, 6401
62
Security Boulevard, Baltimore, MD 21235. (See rules 4(c) and
(1) of the Federal Rules of Civil Procedure). In addition, you
must serve the United States Attorney for the district in which
you file your complaint and the Attorney General of the United
States, as provided in the Federal Rules of Civil Procedure.
Sincerely yours, original signed by
S/Richard Ross
Acting Appeals Officer
December 17, 2002
cc:
Paul Brian Spurlock, Esq.
a ee ao a z re” “7s
APPENDIX H:
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LAFAYETTE-OPELOUSAS DIVISION
IDA J. ROCHESTER CIVIL ACTION
VERSUS NO: 02-2114
JO ANNE B. BARNHART, JUDGE DOHERTY
COMM. SSA MAG. JUDGE HILL
REPORT AND RECOMMENDATION
This social security appeal was referred to me for
review, Report and Recommendation pursuant to this Court's
Standing Order of July 8, 1993. Ida J. Rochester, born March 3,
1972, filed an application for supplemental security income on
June 15, 1998, alleging disability as of November |, 1997, due
to mental illness. .
FINDINGS AND CONCLUSIONS
After a review of the entire administrative record and
the briefs filed by the parties, and pursuant to 42 U.S.C. §
405(g), I find that there is substantial evidence in the record to
support the Commissioner's decision of non-disability and that
the Commissioner's decision comports with all relevant legal
standards. Anthony v. Sullivan, 954 F.2d 289, 292 (Sth Cir.
1992).
In fulfillment of F.R.Civ.P. 52, I find that the
Commissioner's findings and conclusions are supported by
substantial evidence, which can be outlined as follows:
(1) Records from Pauline Faulk Centre for Behavioral
Health dated June 29 to July 1, 1998. Claimant was referred for
63
inpatient treatment from the Crowley Mental Health Clinic. (Tr.
155). She claimed that she "was encouraged to give false
symptomatology in order to get disability." She stated that when
she did this, she had been "forced" to come over for admission.
She endorsed a history of depression that was treated in the-
remote past, as well as symptoms consistent with panic attacks
beginning the previous fall. She also had begun isolating
herself. (Tr. 158).
On admission, claimant denied suicidality, homicidality,
and all reportable psychotic symptoms. (Tr. 155). She had no
significant abnormalities on mental status examination.
On examination, claimant's thought process was goal
directed. (Tr. 159). Her mood was little anxious. Her affect was
full range and appropriate to content. She denied all reportable
psychotic symptoms, and had no overt evidence of psychosis.
She was oriented to person, place, time and day of the week.
Insight into reason for admission or referral was limited.
Judgment to theoretical social constructs was good.
Dr. Kevin Young's diagnostic impression was panic
disorder with agoraphobia and depressive disorder, NOS. (Tr.
155). Claimant was continued on Zoloft and started on
Klonopin. (Tr. 156). Her prognosis was fair.
(2) Records from Crowley Mental Health Center dated
February 19 to August 17, 1998. On February 19, 1998,
claimant presented with a history of major depression which
had recurred, and disabling panic attacks. (Tr. 169). Her
intelligence was estimated as minimal. Her orientation,
memory, thought content, thought processes, speech and
psychomotor activity all appeared normal. Affect was
appropriate, mood was depressed, and suicidal ideation was
present.
Claimant's diagnosis was major depression, recurrent,
moderate, without psychotic features, panic disorder with
agoraphobia, and obesity. (Tr. 170). Her Global Assessment of —
65
Functioning score was 55. The plan was to treat her with
antidepressant chemotherapy. (Tr. 169).
, A transcription note dated August 17, 1998, stated that
claimant had not been seen since June 29, and that she had
failed to keep her scheduled appointment on July 13, 1998. (Tr.
163).
(3) Consultative Psychological Examination by Dr.
Alfred E. Buxton dated October 14, 1998. Claimant denied any
significant depression or panic attacks, but instead described
"rather diffused nervousness” that "lasted all day." (Tr. 173).
She also reported memory deficits for the last three years.
In reviewing claimant's medica! records, Dr. Buxton
found it interesting that "throughout many of these notes
reference is made to the fact that she indicated she was lazy and
did not particularly care to work and that she. was certainly
seeking being placed on SSI benefits." He noted that "[o]ne gets
the impression that she was somewhat goal oriented and
perhaps secondary gain was motivating her seeking treatment."
On examination, claimant had no indication of any
sensory or motor handicaps. (Tr. 174). Verbal receptive and
expressive language skills were good, and social skill was
adequate. Recent and remote memories were good for those
things which she desired to recall, and somewhat poor for those
that she desired not to recall. Dr. Buxton noted that this seemed
"to be rather elective on her behalf."
Claimant's ability to attend and concentrate was
adequate for on-task purposes. Her pace was even with a
regular rate of performance. Intellect was a bit subaverage, but
no worse than borderline and probably dull normal or low
average. Judgment and reflective cognition were fair.
Reasoning was fair, and claimant was oriented towards the
concrete, obvious and simple. Insight was poor. Cognitions
were clear and cogent. Mood was even.
Claimant complained of seeing spots and hearing people
66
calling her name, but nothing that would indicate any
hallucinatory experience. Although claimant indicated that she
felt "paranoid," Dr. Buxton noted that there was nothing elicited
which would indicate a paranoid belief a She denied
suicidal or homicidal ideation.
Goal orientation was somewhat questionable. Dr.
Buxton noted that again, there was some evidence to suggest
that she was being somewhat manipulative, and that issues of
secondary gain were motivating her responses. He observed that
she gave some wrong information despite the fact that she could
provide all other relevant demographic and _ historical
information. He noted that it was "[q]Juite obvious that this is
selected memory and again issues of secondary gain seem to be
motivating her response.”
Dr. Buxton concluded that claimant's adaptive daily
living skills were within acceptable limits of general
expectancy. (Tr. 174-75). He suspected that she was competent
as a manager of her own personal affairs, although she reported
that she was somewhat dependent on others. (Tr. 175). He
noted that there was nothing evidenced on that occasion which
would lead to the diagnoses of major depression and panic
disorder with agoraphobia. At best, he found that she would
have a generalized anxiety disorder with degree of impairment
mild to moderate and prognosis fair, and a dysthymic disorder.
He noted that "[e]ven these diagnoses are somewhat tentative
as issues of secondary gain seem to be strongly motivating the
performance and presentation of this individual on this
occasion." The G.A.F. score was 70 over the last 12 months,
and quite possibly even higher.
(4) Psychiatric Review Technique ("PRT") dated
October 28, 1998. Claimant was assessed for anxiety related
disorders and chronic pain disorder. (Tr. 178). Dr. B. R.
Burgoyne determined that she had a slight degree of limitation
as to restriction of activities of daily living and difficulties in
67
maintaining social functioning. (Tr. 185). There was
insufficient evidence of other limitations.
(5) Records from Dr. Vivek Jain and Dr. Mandana
Hashefi dated September 23 to December 23, 1998. Claimant
had seen Dr. Hashefi on September 23, 1998 for a general
check up and complaints of an upper respiratory tract infection.
(Tr. 187, 190). She was seen by Dr. Jain on November 20, 1998
for a twisted right ankle. (Tr. 187, 189-90). X-rays revealed no
fractures, and she was treated with a right foot splint for three
weeks and Ibuprofen.
At a return visit on December 15, claimant had
recovered remarkably. (Tr. 187). On examination, she had no
abnormalities in the right lower extremity, and gait was normal.
Dr. Jain noted that claimant had multiple psychiatric
problems, including depression, for which she was being
followed by Dr. Young. :
(6) Records from Dr. Kevin Young dated July 14, 1998
to March 1, 1999.' On July 14, 1998, claimant reported no
full-blown panic attacks since her release from the hospital on
July 1. (Tr. 212). Initially, she was doing well, but began to
deteriorate by September 18, 1998. (Tr. 201).
On October 20, claimant described psychotic symptoms
for the first time, including paranoia and _ auditory
hallucinations. (Tr. 201, 207). At that session, she had a slightly
disorganized thought process with loose associations. She was
diagnosed with schizophrenia, paranoid type, and started on a
low dose of anti-psychotic medication. (Tr. 202).
On November 6, 1998, claimant reported having more
panic attacks in the prior week after her Zoloft was decreased.
(Tr. 202, 204-05). She again began having a fear of leaving the
house, and had become essentially confined to her living space.
'These records are largely illegible.
68
At one point, she had her sister take care of her children -
because of the degree of anxiety and paranoia.
On November 20, 1998, claimant's Risperdal was
increased. (Tr. 202-03). Her medication for panic attacks was
changed from Zoloft to Paxil. She was also taking Diazepam.
Dr. Young's impression was schizophrenia, paranoid
type; panic disorder with agoraphobia, and obesity. (Tr. 202).
Her GAF was 50.
On December 18, claimant reported continued problems
with hallucinations and paranoid ideation. (Tr. 199, 200). Her
anti-psychotic medication was increased. Dr. Young noted that
claimant's panic attacks had been fairly well controlled with
Paxil and Diazepam.
As to physical abilities, Dr. Young determined that
claimant could sit, stand; walk, lift, carry, and handle objects.
(Tr. 199, 202). She had no difficulty with hearing or speaking.
Due to her paranoia and agoraphobia, traveling was unlikely.
Dr. Young stated that claimant was able to understand her
diagnosis and the purpose of her medications. (Tr. 202). On
formal cognitive testing, she did not seem to have any
significant memory problems. Her overall level of cognitive
capacity was not too impaired. (Tr. 199).
Claimant understood information about her treatment
fairly well. Dr. Young stated that her understanding generally
was good, and her memory was intact. She did have some
problems with concentration and attention due to her psychotic
symptomatology. However, her thought processes were fairly
goal-directed.
Dr. Young observed, that, due to paranoia at that time,
claimant had some problems with appropriate socialization. He
noted that she tended to be quite isolated, and left her house
very little. Dr. Young stated that claimant's adaptation to new
environments was fairly impaired. |
(7) Mental Residual Functional Capacity Assessment
69
dated March 8, 1999. Claimant was found to be moderately
limited in her ability to understand and remember detailed
instructions, carry out detailed instructions, maintain attention
and concentration for extended periods, complete a normal
workday and workweek without interruptions, interact
appropniately with the general public, and set realistic goals or
make plans independently of others. (Tr. 214-15).
(8) PRT dated March 8, 1999. Claimant was assessed
for schizophrenia, paranoid type, and panic disorder with
agoraphobia. (Tr. 218-19). Dr. John M. Boutte noted that
claimant continued to receive psychiatric treatment and
medication with fair control of symptoms. (Tr. 219).
(9) Medical Assessment by Dr. Young dated September
23, 1999. Dr. Young indicated that claimant had agoraphobia
which was sufficiently severe to preclude her leaving home
alone on a daily basis to go to work. (Tr. 228). He checked that
she had medically documented persistence of delusions or
hallucinations, incoherence, loosening of associations, illogical
thinking, or poverty of content of speech, blunt affect, and
emotional withdrawal and/or isolation. (Tr. 229). He noted that
she had marked restriction of activities of daily living and
difficulties in maintaining social functioning. Additionally, she
had frequent deficiencies of concentration, persistence or pace.
Dr. Y oung reported that claimant had had repeated episodes of
deterioration or decompensation and a documented current
history of two or more years of inability to function outside of
a highly supportive living situation. (Tr. 230). He opined that
claimant was disabled from competitive, full-time employment.
He noted that she had demonstrated a substantial loss of ability
to understand, carry out or remember simple instructions,
respond appropriately to supervision, coworkers or usual work
situations, or deal with changes in the routine work settings.
(10) Records from Dr. Young dated August 18, 1999 to
70
March 29, 2000.7 On August 18, 1999, claimant reported fear
of leaving her house and riding in cars. (Tr. 232). She felt that
someone was outside of her house waiting to get in. She also
reported having some difficulty sleeping.
On March 1, 2000, claimant reported that her panic
attacks had come back. (Tr. 234). She also complained of
hearing voices. She had insomnia, was easily fatigued, and had
decreased appetite, but no weight loss.
On March 29, 2000, claimant reported that she
continued to have panic attacks three times a day within one
half hour. (Tr. 235). She complained that she was getting so
paranoid that she could hardly leave her house. Additionally,
she stated that she was not really depressed, but "real nervous.”
Claimant's diagnosis was schizophrenia, paranoid type, and
panic disorder with agoraphobia. The plan was to increase her
Paxil and Risperdal and add Trazodone.’
(11) Claimant's Administrative Hearing Testimony. At
the hearing on March 23, 2000, claimant was 28 years old. (Tr.
42). She was 5 feet 3 inches tall and weighed 290 pounds. She
had completed the sixth grade. She had finished training as a
nursing assistant. (Tr. 43-44).
Claimant testified that she had last worked as a crawfish
peeler for three to four months, but stopped working after she
became ill. (Tr. 44). She had also worked for one month as a
nurse's aide, but had quit because she could not follow
instructions.
As to daily activities, claimant testified that she got her
two children up and dressed them every day. (Tr. 45). She
reported very bad anxiety attacks twice daily which lasted half
Le
2
? - -
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71
an hour. She stated that she did not do housework, and basically
just sat around and watched television all day. (Tr. 46).
Claimant reported that she did not visit people or leave
the house, except with her sister. (Tr. 46, 56). She stated that
she could not sleep, because she was scared. (Tr. 47). She said
that she ate just one time a day. She complained that she had
nausea after her panic attacks.
Claimant testified that during the panic attacks, her
chest hurt and she could not breathe. She stated that she started
having them around 1989, and that they had become worse. (Tr.
48). She reported that the longest she had gone without having
one was about two or three weeks.
Additionally, claimant complained that she had
paranoia. (Tr. 49). She said that she heard voices daily. She
testified that she was taking Risperdal, but that it did not work
too well. She stated that she did not really have any side affects
from her current medications, which also included Paxil. (Tr.
52, 58).
Claimant also testified that she had memory loss. (Tr. 50).
Additionally, she complained of a heart muunur, which caused
chest pain.
As to restrictions, claimant testified that she did not
have difficulty with standing, walking, or using her arms and
hands. (Tr. 52). She had problems with memory and thinking.
It also bothered her to be around crowds. (Tr. 53). Additionally,
She reported that she had allergies. (Tr. 54).
(12) Administrative Hearing Testimony of Dr. Jimmie
D. Cole, Medical Expert. Dr. Cole testified that based on
claimant's medical records, she would be classified under §
12.06 of the listings for panic disorder and generalized anxiety
disorder. (Tr. 67). He noted that there were some
inconsistencies in the record, which indicated less than the
listing level of impairment under the B criteria. (Tr. 68). .
Additionally, he stated that the C criteria were absent.
72
Regarding restrictions, Dr. Cole testified that claimant
would be limited by her education. (Tr. 69). He opined that she
would need to have an occupation that would require one or
two-step commands, avoid high stress situations such as
working under a quota system, and avoid large groups. He
commented that he was not sure why she was taking
medications when she had indicated that her medications were
not helping and that her condition did not deteriorate while she
was off of them for four months. (Tr. 70).
(13) Administrative Hearing Testimony of Dr. George
Hearn, Vocational Expert. Dr. Hearn classified claimant's past
work as a crawfish peeler as light and unskilled, and a nursing
assistant as medium and unskilled. (Tr. 73-74). He noted that
she had very minimal vocational experience and no true
transferable skills. (Tr. 74).
The ALJ posed a hypothetical in which he asked the
expert to assume a claimant of the same age, education and
vocational background who had no exertional limitations, who
would be precluded from performing highly detailed or
complex work, but could perform at least one to two-step
operations under general supervision, who would be precluded
from work with high stresses, such as production quotas, and
who would be precluded from work that would require regular
interaction with the general public and large groups, but not
small groups, of coworkers. In response, Dr. Hearn testified that
such claimant could work as a housekeeper and cleaner, of
which there were 250,000 light jobs nationally and 4,000 to
5,000 statewide; or assembly line worker, of which there were
500,000 light or sedentary jobs nationally and 10,000 statewide.
(Tr. 74-75). When the ALJ modified the hypothetical to include
daily panic attacks, Dr. Hearn testified that there would be no
jobs available. (Tr. 75).
(14) The ALJ's Findings are Entitled to Deference.
Claimant argues that the ALJ erred: (1) in rejecting the findings
73
of the treating psychiatrists without complying with 20 C.F.R.
§ 1512(e)(1) (recontacting medical sources); (2) in rejecting the
findings of the treating psychiatrists without complying with 20
C.F.R. § 404.1527(d)(2) (weighing treatment relationship); (3)
in substituting his medical assessment of plaintiff's psychiatric
condition for that of the treating psychiatnsts; (4) in ordering a
consultative examination by a non-treating psychologist without
attempting to have it performed by a treating psychiatrist; (5) in
failing to address the written testimony of plaintiff's sister; and
(6) that the Appeals Council failed to address plaintiff's
arguments.
As to first error, claimant argues that the ALJ erred in
rejecting Dr. Young's opinion without recontacting him for
clarification as to why he considered claimant disabled, citing
Newton v. Apfel, 209 F.3d 448 (Sth Cir. 2000). Newton states
that if the ALJ determines that the treating physician's records
are inconclusive or otherwise inadequate to receive controlling
weight, absent other medical opinion evidence based on
personal examination or treatment of the claimant, the ALJ
must seek clarification or additional evidence from the treating
physician in accordance with 20 C.F.R. § 404.1512(e).
(emphasis added). Id. at 453. Here, however, there is other
medical opinion evidence based on personal examination or
treatment of the claimant ~ namely, from Dr. Buxton. (emphasis
added).
Claimant argues that the ALJ erred in giving greater
weight to the opinion of Dr. Buxton rather than to those of the
treating physicians. The ALJ rejected Dr. Young's opinion on
the grounds that Dr. Young had largely relied on the self-reports
of the claimant, while the record indicated that claimant was not
a particularly reliable informant. (Tr. 21). He noted that, at the
time of her hospitalization, claimant reported that she had been
encouraged to report false symptoms in order to obtain benefits.
(Tr. 155). Additionally, the ALJ cited Dr. Buxton's opinion that
74
claimant had exhibited evidence of manipulation and secondary
gain during mental status examination. (Tr. 22, 173-74).
It is well established that the opinion of a treating
physician who is familiar with the claimant's impairments,
treatments and responses, should be accorded great weight in
determining disability. Newton v. Apfel, 209 F.3d 448, 455 (Sth -
Cir. 2000); Leggett v. Chater, 67 F.3d 558, 566 (Sth Cir. 1995);
Greenspan v. Shalala, 38 F.3d 232, 237 (Sth Cir. 1994), cert.
denied, 514 U.S. 1120, 115 S.Ct. 1984, 131 L.Ed.2d 871
(1995). A treating physician's opinion on the nature and severity
of a patient's impairment will be given controlling weight if it
is “well supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with ...
other substantial evidence." Newton, 209 F.3d at 455 (citing 20
C.F.R. § 404.1527(d)(2)). Even though the opinion and
diagnosis of a treating physician should be afforded
considerable weight in determining disability, "the ALJ has sole
responsibility for determining a claimant's disability status." /d.
(citing Paul v. Shalala, 29 F.3d 208, 211 (Sth Cir. 1994)).
[T]he ALJ is free to reject the opinion of any physician when
the evidence supports a contrary conclusion.” /d.
While there are reports in the record indicating that
claimant had mental problems, the ALJ was free to reject those
opinions. The ALJ discounted Dr. Young's findings that
claimant had disabling impairments on the grounds that he
relied primarily on her self-reports. (Tr. 21). Instead, he relied
upon Dr. Buxton's opinion that claimant was motivated by
secondary gain issues. Indeed, Dr. Buxton indicated throughout
his report that claimant's motivation was less than sincere,
citing the observation that she "was certatnly seeking being
placed on SSI benefits;" that she "was somewhat goal oriented
and perhaps secondary gain was motivating her seeking
treatment;” that her recent and remote memories seemed "to be
rather elective on her behalf;" that "there is some evidence to
75
suggest that she is being somewhat manipulative and issues of
secondary gain are motivating her responses," and that, in terms
of orientation, it was "[q]Juite obvious that this is selected
memory and again issues of secondary gain seem to be
motivating her response." (Tr. 173-74). As the evidence
supports a contrary conclusion, the ALJ was free to reject the
opinion of claimant's treating physician.
Additionally, claimant argues that, in rejecting the
opinions of the treating physician, the ALJ was required to
perform a detailed analysis of the treating physician's views
under the criteria set forth in 20 C.F.R. § 404.1527(d)(2)* as
. required by Newton, supra. In Newton, the Fifth Circuit held
that, “absent reliable medical evidence from a treating or
examining physician controverting the claimant's treating
specialist, an ALJ may reject the opinion of the treating
physician only. if the ALJ performs a detailed analysis of the
treating physician's views under the criteria set forth in 20
C.F.R. § 404.1527(d)(2). (emphasis added). Here, however,
there is evidence from an examining physician — namely, Dr.
Buxton. Unlike Newton, this is not a case where the ALJ
summarily rejected the opinions of claimant's treating
physician, based only on the testimony of a non-specialty
medical expert who had not examined the claimant. Thus,
“Specifically, this regulation requires consideration of:
(1) the physician's length of treatment of the claimant,
(2) the physician's frequency of examination,
(3) the nature and extent of the treatment relationship,
(4) the support of the physician's opinion afforded by the medical evi-
dence of record,
(5) the consistency of the opinion with the record as a whole; and
(6) the specialization of the treating physician. —
76
claimant's argument lacks merit.°
Further, claimant argues that the ALJ "substituted" his
medical assessment of plaintiff's psychiatric condition for that
of the treating psychiatrists. However, among the opinions by
treating doctors that have no special significance are
determinations that an applicant is "disabled" or “unable to
work." Frank v. Barnhart, 326 F.3d 618, 620 (Sth Cir. 2003)
(citing 20 C.F.R. § 1527(e)(1)). These determinations are legal
conclusions that the regulation describes as “reserved to the
Commissioner.” Id. As the ALJ, not the treating physician, has
sole responsibility for determining a claimant's disability status,
this argument lacks merit. Newton, 209 F.3d at 455.
Next, claimant argues that the ALJ relied upon a
Claimant cites Trahan v. Barnhart, Docket No. 02-1136 (W.D. La
[Lake Charles Division] July 2, 2003), in support of her argument that an
AL] is required to consider each of the § 404.1527(d) factors before de-
clining to give any weight to the opinions of the claimant's treating spe-
Ctalist, even where a non-specialty expert had examined the claimant.
Trahan, which is an unpublished opinion from outside of this division, is
non-binding on this Court. Other district courts have declined to expand
Newton. See, Alejandro v. Barnhart, --- F Supp 2d ---, 2003 WL
22717702, *18 (S.D.Tex., 2003) (citing Castille v. Barnhart, No. Civ. A.
O1- 2664, 2002 WL 1900815, at *6 (E.D.La. Aug.13, 2002) (unpublished
opinion) (stating that Newton is limited to situations where contrary reli-
able medical evidence from a treating or examining physician is not avai-
lable); Contreras v. Massanari, No. Civ. A. 1:000V242, 2001 WL
520815, at *4 (N.D.Tex. May 14, 2001) (unpublished opinion) (“Newson
is limited to circumstances where the administrative law judge summarily
rejects the opinions of a claimant's treating physician, based only on the
testimony of a non-specialty medical expert who had not examined the
claimant.”); Frank v. Massanari, No. Civ. A. 99-3038, 2001 WL 664594,
at *3 (E.D.La. June 12, 2001) (unpublished opinion) (distinguishes New-
ton as applying to situations “in which there is no competing first-hand
medical evidence on which an administrative court can base its factual
determination" )).
77
consultative examination by a non-treating psychologist without
attempting to have it performed by a treating pocorn, citing
20 C.F.R. § 404.1519h, which provides:
When in our judgment your treating source is qualified,
equipped, and willing to perform the additional
examination or tests for the fee schedule payment, and
generally furnishes complete and timely reports, your
treating source will be the preferred source to do the
purchased examination. Even if only a supplemental test
is required, your treating source is ordinarily the
preferred source.
Claimant argues that this statute requires the ALJ to use
only the treating physician for consultations. She urges that the
ALJ therefore erred by not using Dr. Young for the additional
examination. However, 20 C.F.R. § 404.1519(h) is not the only
regulation that governs physician consultations. 20 C.F.R. §
404.1512(f) supplies the general regulations regarding the need
for consultative examinations. It states:
If the information we need is not readily available from
the records of your medical treatment source, or we are
unable to seek clanfication from your medical source,
we will ask you to attend one or more consultative
examinations at our expense.... Generally, we will not
request a consultative examination until we have made
every reasonable effort to obtain evidence from your
own medical sources. However, in some instances, such
as when a source is known to be unable to provide
certain tests or procedures or is known to be
nonproductive or uncooperative, we may order a
consultative examination while awaiting receipt of
medical source evidence. We will not evaluate this
evidence until we have made every reasonable effort to
obtain evidence from your medical sources.
Further, 20 C.F.R. § 404.1517 provides that:
78
If your medical sources cannot or will not give us
sufficient medical evidence about your impairment for
us to determine whether you are disabled or blind, we
may ask you to have one or more physical or mental
examinations or tests. We will pay for these
examinations. However, we will not pay for any
medical examination arranged by you or your
representative without our advance approval. If we
arrange for the examination or test, we will give you
reasonable notice of the date, time, and place the
examination or test will be given, and the name of the
person or facility who will do it. We will also give the
examiner any necessary background information about
your condition.
Neither these two regulations, nor any other regulation,
requires that the treating physician act as the only consulting
physician. Thus, this argument lacks merit.
Next, claimant argues that the ALJ failed to address the
written testimony of her sister. The record reflects that the ALJ
left the record open at the hearing to receive a short statement
from claimant's sister. (Tr. 78). Such statement is contained on
pages 122 and 123 of the transcript. The ALJ did not indicate
whether he had reviewed this letter in making his decision.
In support of claimant's argument that the ALJ should
have considered this statement, claimant cites Smith v. Heckler,
735 F.2d 312, 317 (8th Cir. 1984), in which the court stated:
"[w]e have frequently criticized the failure of the Secretary to
consider subjective testimony of the family and others. We have
held that a failure to make credibility determinations concerning
such evidence requires a reversal and remand." However, this
case is from the Eighth Circuit and is non-binding on this
Court. |
In the Fifth Circuit, reversal is appropriate only if the
applicant shows prejudice from the deficiencies she alleges.
79
Carey v. Apfel, 230 F.3d 131, 143 (Sth Cir. 2000). Prejudice can
be established by showing that additional evidence would have
been produced if the ALJ had fully developed the record, and
that the additional evidence might have led to a different
conclusion. Newton, 209 F.3d at 458. As claimant has not
shown that she was prejudiced by the ALJ's alleged failure to
consider the letter, this argument lacks merit.
Finally, claimant asserts that the Appeals Council erred
by issuing a standard form denial instead of specifically
addressing her arguments. In support of this argument, claimant
relies on Newton, 209 F.3d at 459, in which the Fifth Circuit
referenced the Hearings, Appeals and Litigation Law Manual
(HALLEX) Section 1-3-501 (Nov. 11, 1994), which provided
that the Appeals Council must "specifically address additional
evidence or legal arguments or contentions submitted in
connection with the’ request for review." However, : this
provision has since been abolished by HALLEX I-3-5-90 (July
20, 1995), which provides that: "[e]ffective immediately, we are
temporarily suspending the requirement for a _ detailed
discussion of additional evidence and for specific responses to
contentions in denial notices." As claimant's request for review
was denied, the Appeals Council was not required to give a
detailed analysis for its decision. Thus, this argument also is
without merit. 3
Based on the foregoing, it is my recommendation that
the Commissioner's decision be AFFIRMED and that this
action be DISMISSED with prejudice.
Under the provisions of 28 U.S.C. § 636(b)(1)(C) and
F.R.Civ.Proc. 72(b), parties aggrieved by this recommendation
have ten (10) business days from service of this Report and
Recommendation to file specific, written objections with the
Clerk of Court. A party may respond to another party's
objections within ten (10) days after being served with a copy
thereof. Counsel are directed to furnish a courtesy copy of any
80
objections or responses to the District Judge at the time of
filing.
FAILURE TO FILE WRITTEN OBJECTIONS TO
THE PROPOSED FACTUAL FINDINGS AND/OR THE
PROPOSED LEGAL CONCLUSIONS REFLECTED IN THIS
REPORT AND RECOMMENDATION WITHIN TEN (10)
DAYS FOLLOWING THE DATE OF ITS SERVICE, OR
WITHIN THE TIME FRAME AUTHORIZED BY
FED.R.CIV.P. 6(b), SHALL BAR AN AGGRIEVED PARTY
FROM ATTACKING THE FACTUAL FINDINGS OR THE
LEGAL CONCLUSIONS ACCEPTED BY THE DISTRICT
COURT, :
EXCEPT UPON GROUNDS OF PLAIN ERROR.
DOUGLASS V. UNITED SERVICES AUTOMOBILE
ASSOCIATION, 79 F.3D 1415 (STH
CIR.1996).
Signed this 2" day of January, 2004, at Lafayette,
Louisiana.
S/C. MICHAEL HILL
UNITED STAI'ES MAGISTRATE JUDGE
APPENDIX I:
_ UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
LAFAYETTE-OPELOUSAS DIVISION
IDA J. ROCHESTER - CIVIL ACTION
VERSUS NO: 02-2114 |
JO ANNE B. BARNHART, JUDGE DOHERTY
COMM.SSA MAG. JUDGE HILL
JUDGMENT
This matter was referred to United States Magistrate
Judge C. Michael Hill for Report and Recommendation. After
an independent review of the record, including the objections
filed herein, this Court concludes that the Report and
Recommendation of the Magistrate Judge is correct and adopts
the findings and conclusions therein as its own.
Accordingly, IT IS ORDERED, ADJUDGED AND
DECREED that the Commissioner's decision is AFFIRMED
and this matter is DISMISSED with prejudice.
Lafayette, Louisiana, this 2" day of January, 2002 .
S/C. MICHAEL HILL
UNITED STATES MAGISTRATE JUDGE
81
APPENDIX J:
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-31055
Summary Calendar
MAXANN C. FINK,
Plaintiff-Appellant
versus
JO ANNE B. BARNHART,
COMMISSIONER OF SOCIAL SECURITY,
Devendant-Appellee
Appeal from the USDC for the Eastern District of LA
USDC No. 02-CV-2136
Consolidated With
No. 04-3012]
Summary Calendar
IDA J. ROCHESTER,
Plaintiff-Appellant
versus
JO ANNE B. BARNHART,
COMMISSIONER OF SOCIAL SECURITY.
Defendant-Appellee
Appeal from the USDC for the Western District of LA
USDC No. 02-CV-2114
83
Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:®
Maxann C. Fink appeals the district court’s judgment
denying her motion for summary judgment, granting the
Commissioner’s cross-motion for summary judgment, and
affirming the Commissioner’s decision denying her applications
for disability insurance benefits and supplemental security
income (SSI) benefits. Ida J. Rochester appeals the district
court’s judgment affirming the Commissioner’s decision
denying Rochester’s application for SSI benefits. The appeals
have been consolidated. In reviewing the Commissioner’s
decisions to deny benefits, we must determine whether there is
substantial evidence in the record to support the decisions and
whether the proper legal standards were used in evaluating the
evidence. Ripley v. Chater, 67 F.3d 552, 555 (5 Cir. 1995).
Fink argues that the Commissioner violated 20 C.F.R.
§ 404.1512(e)(1) and (f) by ordering a consultative examination
(DE) without first recontacting the treating physicians for an
explanation of any perceived discrepancies in the medical
records. Both Fink and Rochester contend that the
Commissioner also violated 20 C.F.R. § 404.1519h by failing
to appoint a treating physician to perform the CE. Fink and
Rochester next challenge the proceedings at their respective
administrative hearings, arguing that the administrative law
judges (ALJs) violated 20 C.F.R. §§ 404.1512(e) and
404.1527(d)(2) by failing to 1) recontact the treating physicians
and 2) consider the necessary regulatory factors when declining
to afford controlling weight to the treating physicians’ opinions.
Rochester also argues that the ALJ erred by failing to address
the written statement of her sister.
® Pursuant to 5" Cir. R. 47.5, the court has determined that this
opinion should not be published and is not precedent except under the
limited circumstances set forth in 5" Cir. R. 47.5.4.
84
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 (5" Cir.
1988). Similarly, Fink’s and Rochester’s reliance upon Newton
v. Apfel for purposes of their alleged ALJ procedural errors is
misplaced since the records for both Fink and Rochester
contained “other medical opinion evidence based on personal
examination” in the form of CE reports, See 209 F.3d 448, 453
(5" Cir. 2000). Accordingly, we hold that the ALJs did not
commit error when declining to afford controlling weight to the
treating physicians’ opinions. Finally, we reject Rochester’s
argument regarding the ALJ’s failure to address her sister’s
written statement as conclusional and lacking merit.
The records reveal that the ALJs’ decisions to deny
benefits were supported by substantial evidence. See Martinez
v. Chater, 64 F.3d 172, 173 (5" Cir. 1995).
Dated 1/31/05
APPENDIX K: |
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-31055
MAXANN C. FINK,
Plaintiff-Appellant
versus
JO ANNE B. BARNHART,
Defendant-Appellee
No. 04-30121
IDA J. ROCHESTER,
Plaintiff-Appellant
versus
JO ANNE B. BARNHART,
Defendant-Appellee
—-———-— we ewww wren nwre eee
ON PETITION FOR REHEARING EN BANC
PER CURIAM:
(X) Treating the Petition for Rehearing En Banc as a
Petition for Panel Rehearing, the Petition for Panel Rehearing
is DENIED. No member of the panel nor judge in regular
active service of the court having requested that the court be
polled on Rehearing En Banc (Fed. R. App. P. and 5" Cir. R.
35), the Petition for Rehearing En Banc is DENIED.
ENTERED FOR THE COURT:
S/ Jerry Smith
United States Circuit Judge Filed: 4/6/05
85
APPENDIX L:
Sen. Levin's remarks, in context, follow:
One of the major causes of complaint and dissatisfaction
with the disability review process has been SSA's reliance on its
own purchased medical reports by doctors who give what are
known as consultative exams. Beneficiaries claim repeatedly
that these exams are only cursory, conducted by doctors who
are not qualified in the necessary field of medicine, and are
relied upon to the exclusion of the medical findings offered by
the treating physician. Consultative exams are designed to be
used by SSA only where there is conflicting medical evidence
that it 1s necessary to resolve in order to make an eligibility
determination. Instead, allegations abound that they are in fact
ordered routinely, used as a counterpoint to the report of the
treating physician, and relied upon almost exclusively.
By passing this legislation today, we are directing SSA
to give great credence to 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.
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 bill 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 provision in this bill, we should
witness far fewer consultative exams and more thorough and
factually based reports by treating physicians.
(See Congressional Record - Senate, May 22, 1984,
pp. 13236-13237)
87
é
at
No. 05-58
FILED
DEC 23 2005
OF THE CLERK
T, U.S. |
In the Supreme Court of the United States
MAXANN C. FINK AND IDA J. ROCHESTER,
PETITIONERS
v.
JO ANNE B. BARNHART, COMMISSIONER
OF SOCIAL SECURITY
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH C/RCUIT
BRIEF FOR THE RESPONDENT IN OPPOSITION
PAUL D. CLEMENT
Solicitor General
Counsel of Record
PETER D. KEISLER
Assistant Attorney General
WILLIAM KANTER
MARK W. PENNAK
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217
QUESTION PRESENTED
Whether the court of appeals correctly held any
procedural errors committed by the Administrative Law
Judge in considering petitioners’ Social Security
disability claims were harmless error.
(I)
TABLE OF CONTENTS
Page
ERP ES OTE PERLE EHCP POEL ECE DO Ue REET OP 1
I 5 Si aS os ea a ee aa eee eee es 1
PONE oe bb Sc ea ws Ga exks uc aeuedecsies eek eRe 2
Ms <8 ba cies wa ae ae ek a 6
Re 3552s bak woe o weiter) ser be ween ad cea Re 16
TABLE OF AUTHORITIES
Cases:
Bowman v. Barnhart, 310 F.3d 1080 (8th Cir. 2002) .... 14
Clark v. Commissioner of Soc. Sec., 143 F.3d 115 (2d
SO SOE oooh a ek hee ewa sea eas Pererreree 14
Goatcher v. United States Dep’t of Health & Human
Servus., 62 Fad 2B8 (10th Cir. 1995) . 02.5. ccc cee 14
Morris v. Bowen, 864 F.2d 333 (5th Cir. 1988) ........... 6
Newton v. Apfel, 209 F.3d 448 (5th Cir. 2000) ... 4,6, 13,14
O'Donnell v. Barnhart, 318 F.3d 811 (8th Cir. 2003) .... 14
Robinson v. Barnhart, 366 F.3d 1078 (10th Cir.
| eA rere eae fe eonptN” Tn anien a ere tries arene 11, 14
White v. Barnhart, 287 F.3d 903 (10th Cir. 2001) .... 11,14
Wilson v. Commissioner of Soc. Sec., 378 F.3d'541
Se es ER Sayre un Gere Due a eer 12
Statutes and regulations:
Social Security Act, 42 U.S.C. 301 et seq.:
Eee BE ee Mls I i a ek ks oo hb has een 2
MUS A a os er 7,8,9
es ee es Te OE eo oi ok ss ss 2
(IIT)
IV
Statutes and regulations—Continued: Page
Social Security Disability Benefits Reform Act of
1984, Pub. L. No. 98-460, § 9, 98 Stat.
MS ty Ces ene n hi oes Eero rr re Tee i]
i es iy vaca enka wee eae 13
20 C.F.R. :
I EE is cs be pce vks caeobwenatauee 7
i sk éaevanaessees 5,10
PN PE EON) ic kc ccc ie cess scenes 5, 7, 10, 15
RN MI AI oink oie ccc sod aweascessecian 7
I es cep kciic cca tk dendaas 5, 10
Eee Perera ee eSoe ee EL ELE ELSES 5,8
NE ikiscrc ike cai ce dee céwsees 5,9
Miscellaneous:
pg OR ES ea ea ere 15
S. Rep. No. 466, 98th Cong., 2d Sess. (1984) ............. 9
SSA, Annual Statistical Supplement, 2005 (Dec.
2005) <http://www.socialsecurity.gov/policy/
docs/statcomps/supplement/2005/2f8-
re I BE 5s sca pois duc a's0s on desce 15
In the Supreme Court of the Gnited States
No. 05-58
MAXANN C. FINK AND IDA J. ROCHESTER,
PETITIONERS
v.
JO ANNE B. BARNHART, COMMISSIONER
OF SOCIAL SECURITY
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
BRIEF FOR THE RESPONDENT IN OPPOSITION
OPINIONS BELOW
The opinion of the court of appeals (Pet. App. 82-84)
is not published in the Federal Reporter but is reprinted
in 123 Fed. Appx. 146. The orders and judgments of the
district courts (Pet. App. 49-50, 81) are unreported.
JURISDICTION
The judgment of the court of appeals was entered on
January 31, 2005. A petition for rehearing en bane was
denied on April 6, 2005 (Pet. App. 85). The petition for
a writ of certiorari was filed on July 5, 2005. The juris-
diction of this Court is invoked under 28 U.S.C. 1254(1).
(1)
STATEMENT
Petitioners sought disability benefits under Title II
of the Social Security Act, 42 U.S.C. 423, and supple-
mental security income (SSI) under Title XVI of the
Social Security Act, 42 U.S.C. 1381 et seq. At issue here
is the role of treating physicians in the consideration of
disability claims by the Social Security Administration
(SSA).
1. Petitioner Maxann C. Fink sought disability and
SSI benefits for back and neck problems associated with
ruptured disks. Pet. App. 20. The administrative law
judge (ALJ) denied these benefits, finding that “there
are jobs existing in significant numbers in the national
economy that [petitioner Fink] is capable of performing
and has been capable of performing since her alleged
onset date.” Jd. at 16. The Appeals Council denied peti-
tioner Fink’s request for review, and the ALJ’s decision
became the SSA’s final decision. /d. at 17-19.
Petitioner Fink sought judicial review in the District
Court for the Eastern District of Louisiana. In a com-
prehensive report recommending that the district court
grant SSA’s motion for summary judgment (Pet. App.
20-48), the magistrate judge concluded that substantial
evidence supported the ALJ’s decision. The magistrate
rejected petitioner Fink’s claims that SSA erred (1) by
failing to recontact her treating physician before order-
ing a consultative examination, (2) by ordering a consul-
tative examination without soliciting the treating physi-
cian to perform the examination, (3) by providing the
consultative examination report to the medical expert
without recontacting the treating physician, and (4) by
rejecting the findings of the treating physician without
attempting to recontact them. /d. at 37-38.
3
Upon review of the administrative record, the magis-
trate judge concluded that SSA had “complied with the
regulations in contacting the health care providers iden-
tified by Fink.” Pet. App. 41. The magistrate judge
further concluded that SSA’s decision to request a con-
sultative examination with someone other than her
treating physician was not an abuse of discretion, given
that her treating physician had “failed to respond to the
Commissioner’s initial request for a statement of [peti-
tioner} Fink’s ability to perform work-related physical
activities.” Jd. at 43. Although the magistrate judge
concluded that SSA should have made a follow-up re-
quest to petitioner Fink’s treating physician, the magis-
trate judge concluded that that lone procedural error
did not cast doubt on the ALJ’s decision, given that peti-
tioner Fink had obtained additional information from
her treating physicians and had furnished that informa-
tion to the medical expert in advance of the hearing be-
fore the ALJ. Jd. at 42, 43-44, 46. Finally, the magis-
trate judge sustained the ALJ’s rejection of the opinions
of the treating physicians on the ground that the ALJ
had reliable medical evidence from the consulting physi-
cian, who had examined petitioner Fink, that contro-
verted the opinions of the treating physicians. Id. at 47-
48.
The district court adopted the magistrate judge’s
report and recommendation as its opinion, and it
granted SSA’s motion for summary judgment. Pet. App.
49-50.
2. Petitioner Ida J. Rochester sought SSI benefits
based on an alleged disability due to mental illness, Pet.
App. 51, specifically “chronic panic attacks and para-
noia.” /d. at 53. The ALJ denied petitioner Rochester’s
request for benefits. /d. at 58. The ALJ found that,
4
although petitioner Rochester suffered from panic at-
tacks, she did not suffer from a disabling mental or
physical impairment within the meaning of the SSI reg-
ulations, and that there were jobs existing in significant
numbers in the economy that petitioner Rochester re-
mains capable of performing. /d. at 55-57. The Appeals
Council, after vacating an initial denial of review in or-
der to consider additional arguments, denied petitioner
Rochester’s request for review, and the ALJ’s decision
became the SSA’s final decision. /d. at 60-62.
Petitioner Rochester sought judicial review in the
District Court for the Eastern District of Louisiana. In
a comprehensive report (Pet. App. 63-72), the magis-
trate judge recommended affirmance of the ALJ’s deci-
sion. In so doing, the magistrate judge rejected, inter
alia, petitioner Rochester’s contentions that the ALJ
erred (1) in rejecting the findings of the treating psychi-
atrists without recontacting them and without giving
appropriate weight to the treating relationship, (2) in
substituting his medical assessment for that of the treat-
ing psychiatrists; and (3) in ordering a consultative ex-
amination without attempting to have it performed by a
treating psychiatrist. See zd. at 72-73.
The magistrate judge reasoned that the ALJ did not
need to recontact petitioner Rochester’s treating psychi-
atrists before rejecting their opinion because the ALJ
had available other medical opinion evidence—that of
the consulting psychiatrist—which was “based on per-
sonal examination or treatment of the claimant.” Pet.
App. 73 (citing Newton v. Apfel, 209 F.3d 448 (5th Cir.
2000)) (emphasis omitted); see also Pet. App. 69-70 (indi-
cating petitioner Rochester submitted to the ALJ addi-
tional information from her treating physician). The
magistrate judge further concluded that the ALJ did not
5
err in giving greater weight to the consulting psychia-
trist’s opinion than to that of the treating psychiatrists,
given that the latter was based largely on petitioner
Rochester’s self-reports, which the evidence demon-
strated were unreliable. /d. at 73-75; see id. at 65 (not-
ing consulting psychiatrist’s observation that many of
the notes in petitioner Rochester’s medical records indi-
cated that “she was lazy and did not particularly care to
work and that she was certainly seeking being placed on
SSI benefits”). In addition, the magistrate judge con-
cluded that no regulations required SSA to use the
treating physic’an as the only consulting physician. /d.
at 77-78.
The district court adopted the magistrate judge’s
report and recommendation as its opinion, and it af-
firmed the denial of benefits. Pet. App. 81.
3. The Fifth Circuit consolidated petitioners’ ap-
peals and affirmed in a short, unpublished per curiam.
Pet. App. 82-84.
Petitioner Fink argued that SSA had violated 20
C.F.R. 404.1512(e)(1) and (f) by ordering a consultative
examination “without first recontacting the treating
physicians for an explanation of any perceived discrep-
ancies in the medical records.” Pet. App. 83. Both peti-
tioners argued that SSA violated 20 C.F.R. 404.1519h by
“failing to appoint a treating physician to perform” the
consultative examination. /bid. Finally, both petition-
ers contended that the ALJs violated 20 C.F.R.
404.1512(e) and 404.1527(d)(2) by “failing to 1) recontact
the treating physicians and 2) consider the necessary
regulatory factors when declining to afford controlling
weight to the treating physicians’ opinions.” /bid.
The court of appeals rejected petitioners’ conten-
tions. Because petitioners Fink and Rochester “were
6
afforded the opportunity to supplement their respective
records with additional medical reports from their treat-
ing physicians,” the court held “that any procedural er-
rors committed by the Commissioner were harmless and
did not affect [petitioners’] substantial rights.” Pet.
App. 84 (citing Morris v. Bowen, 864 F.2d 333 (5th Cir.
1988)). The court of appeals further held that the ALJs
did not err in declining to give controlling weight to the
treating physicians’ opinions. /bid. The court distin-
guished its decision in Newton, supra, where it held that
the ALJ had improperly rejected the opinion of the
treating physician in the absence of contradictory evi-
dence from physicians who had examined or treated the
claimant and without requesting additional information
from the claimant’s treating physician. 209 F.3d at 460.
The court here explained that, unlike in Newton, “the
records for both Fink and Rochester contained ‘other
medical opinion evidence based on personal examination’
in the form of [consultative examination] reports.” Pet.
App. 84 (quoting Newton, 209 F.3d at 453).
ARGUMENT
The per curiam decision of the court of appeals is
unpublished and establishes no precedent that will con-
trol any future cases. Moreover, the decision is correct
and does not conflict with any decision of this Court or
that of any other court of appeals. The petition for a
writ of certiorari therefore should be denied.
1. Based on the facts of these respective cases, the
court of appeals concluded that the ALJs did not err in
rejecting the opinions of petitioners’ treating physicians,
and that any procedural error in failing to recontact the
treating physicians or in failing to engage those physi-
cians for the consultative examination was harmless be-
7
cause both petitioners were afforded the opportunity to
provide additional information from those physicians.
That factbound decision is correct and does not warrant
further review.
a. Petitioners’ principal argument (Pet. 8-24) ap-
pears to be that the statute, 42 U.S.C. 423(d)(5)(B), and
SSA regulations impose mandatory duties upon an ALJ
with respect to obtaining and considering evidence from
treating physicians, and that any failure to comply
strictly with those purported duties, regardless of the
factual circumstances, requires a remand to the agency
for a rehearing. The plain text of the statute and of the
regulations refutes that argument.
The statutory provision upon which petitioners rely,
42 U.S.C. 423(d)(5)(B), states merely that the Commis-
sioner “shall make every reasonable effort to obtain from
the individual’s treating physician (or other treating
health care provider) all medical evidence, including
diagnostic tests, necessary in order to properly make
such determination, prior to evaluating medical evi-
dence obtained from any other source on a consultative
basis.” 42 U.S.C. 423(d)(5)(B) (emphasis added). The
Commissioner’s regulations define “every reasonable
effort” as meaning “that we will make an initial request
for evidence from your medical source and * * * if the
evidence has not been received, we will make one
followup request to obtain the medical evidence neces-
sary to make a determination.” 20 C.F.R.
404.1512(d)(1). That definition defeats petitioners’ claim
that “every reasonable effort” means that the Commis-
sioner “must try every reasonable means to base its de-
termination on the findings and opinions of the treating
physicians until it can be fairly said that it would be un-
ee eee
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.