Petition for Writ of Certiorari — Kerwick v. Barnhart (No. 05-1617)

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Supreme Court, U.S.

FILED

051617 JUN 16 2006

No. OFFICE OF THE CLERK ~

IN THE

SUPREME COURT OF THE UNITED STATES

NATALIE KER WICK,

Petitioner,

COMMISSIONER OF SOCIAL SECURITY,

Respondent.

On Petition For Writ of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

PETITION FOR WRIT OF CERTIORARI

ANTHONY R. REEVES

Counsel of Record

BARKAN NEFF HANDELMAN MEIZLISH, LLP

320 West Kennedy Blvd., Suite 100

Tampa, Flonda 33630

(813) 258-8821

QUESTIONS PRESENTED i

1. Whether the Commissioner of Social Secunty, in determining

if the claimant is disabled within the meaning of Title I of the

Social Security Act, must weigh the opinion of the treating

physician using all of the factors provided in 20 C.F.R. §

404.1527 and 416.927?

2. Whether the Commissioner of Social Secunty, in

determining if the claimant is disabled within the meaning of

Title Il of the Social Security Act, must give weight to the

opinion of the treating specialist in claims in which the

claimant’s impairments stem from a rare disease?

PARTIES TO THE PROCEEDING

There are no parties to the proceedings other than those

listed in the caption.

Pursuant to Rule 29.6, Petitioner states that no parties

are corporations.

TABLE OF CONTENTS

Page(s)

Opinions below

Jurisdiction

Statutory provision inVOlVed..................sccssecesscereeesseesoeees

Statement

A. The statutory and regulatory framework

B. The proceedings in this case

Reasons for granting the petition

A. The Eleventh Circuit’s decision conflicts with

Decisions of three other courts of appeals

B. The court of appeals’ construction of 20 C.F.R. §

has significant public policy implications regarding

404.1527 the evaluation process of impairments

that stem from rare disease

Conclusion

TABLE OF AUTHORITIES

Cases: Page(s)

Bowen v. Yuckert, 482 U.S. 137 (1987)................ 13

Clark v. Commissioner of Social Security,

BES FOG TAD Ge Gal CF ea chine ncvatersisrrvceeses 8,9, 10

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

Services, 52 F.3d 288 (10" Cir. 1995) ........0. 02. 8, 9,10

Newton v. Apfel, 209 F.3d 448 (5™ Cir. 2000)... 8,9, 10

Prosch v. Apfel, 201 F.3d 1010 (8 Cir. 1999)............ 89,10

Schaal v. Apfel, 134 F.3d 496 (2d Cir. 1998).........0.0.. 8,9

Sullivan v. Zebley, 110 S. Ct. 885 (1990)... eee. 13

Statutes and regulations:

42 U.S.C. 423(d)........00.-- PES ORF Sa DeSean SONS ee 2

20 C.F.R.:

Pt. 404

EGE i hiccateiccissinnmmentiapdintecssbnebndioonannen 2

NE PPS etches insoniceaviccsetndinchentericiesletabachinans 3

NE I. BP FOE ie sen vncsesecconesssienececciopeis 2,3, 4, 5, 8,9

IED eB Tso ninniicn decdpencencctanilnarers tay ae Oe eS

Gatien tGt 1G 3,14

Pt. 416

I BG atic cccncecnitcccabiopienainaniaanectinnen 13

IN IE wcsikcbinsdtiesserdaciaspitctunprickesmbicabsontess 5

Miscellaneous:

Social Security Ruling No. 96-2p

(available in 1996 WL 374188)... axe 5,9

Carlos Rados, Orphan Products: Hope for People

with Rare Diseases, FDA Consumer,

November-December RS RRR tetra 14

TABLE OF AUTHORITIES continued Page(s)

Enn E.Huiras, Cheryl J. Barnes, Lawrence F.

Eichenfield, Andrew N. Pelech, and Beth A. Drolet,

Pulmonary Thromboembolism Associated with

Klippel-Trenaunay Syndrome, Pediatrics,

October 1, 2005

Jack Hirsh, Stuart D. Gould, John M. Spandorfer,

Unilateral Leg Swelling: Clues to Cause and

Ways to Treat, Patient Care, February 1, 2006

NIH Launches Clinical Studies Nationwide to

Investigate RareDiseases, NIH News

National Institute of Health (May 5, 2006)

<http://www.nih.gov/news/pr/may2006/ner-0.5.htm>.. 12

| IN THE

SUPREME COURT OF THE UNITED STATES

NATALIE KERWICK,

Petitioner,

COMMISSIONER OF SOCIAL SECURITY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

Petitioner Natalie Kerwick respectfully requests that a writ

of certiorari issue to review the judgment of the United States

Court of Appeals for the Eleventh Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1-4) is

unreported. The opinion of the district court (Pet. App. 6-24) is

unreported.

JURISDICTION

The judgment of the court of appeals was entered on

January 18, 2006. On Apmil 12, 2006, Justice Thomas extended

the time within which to file a petition for a writ of certiorari to

and including June 16, 2006. The jurisdiction of this Court is

invoked under 28 U.S.C. 1254(1).

STATUTORY PROVISIONS INVOLVED

STATEMENT

Relevant provisions of the Social Security Act, 42 U.S.C.

423(d) et seq. and implementing regulations, 20 C.F.R. Pts. 404

and 416 are set forth in the Appendix to the petition, Pet. App.

25-48.

STATEMENT

Title I] of the Social Secunty Act mandates eligibility of

Social Secunty benefits to disabled workers. This case

concerms the weight of the evidence needed to establish

“disability” for the purposes of being awarded benefits under

the Social Secunty Act. Specifically, it presents the questions

whether the Commissioner of Social Secunty, in determining if

the claimant ts disabled within the meaning of Title II of the

Social Secunty Act, must weigh the opinion of the treating

physician using all of the factors provided in 20 C.F.R.

404.1527 and whether the opinion of the treating specialist is

entitled to greater deference m claims in which claimant’s

impairments stem from a rare diseasc.

A. Statutory and Regulatory Framework

Title II of the Social Secunty Act defines “disability” as the

inability to engage in “any substantial gainful activity by reason

of an impairment which can be expected to result in death” or

last the specified duration. 42 U.S.C. 423(d)(1)(A). “The

impairment must result from anatomical, physiological, or

psychological abnormalities which are demonstrable by

medically acceptable clinical and laboratory diagnostic

techniques.” 20 C.F.R. 404.1508.

In evaluating a disability clam, the Commissioner has

implemented a five-step sequential cvaluation process. 20

C.F.R. 404.1520. The five steps are as follows: Step one, if the

claimant ts engaged in substantial gainful activity; Step two, the

medical severity of the claimant’s impairments; Step three, if

the claimant’s impairments meet or equals the Listings and

duration requirement, Step four, the claimant residual functional

capacity and his or her ability to perform relevant past work;

Step five residual functional capacity, the claimant age,

education, work experience in evaluating if they can adjust to

other work. /d.

If the claimant is found disabled or not disabled at a step,

then the determination or decision is made and further steps are

not considered. Id. If disabled or not disabled is

undeterminable at a step then the following step is considered.

Jd. Before progressing from step three to step four, the residual!

functional capacity of the claimant is assessed. Jd. The residual

functional capacity is used in evaluating step four and step five.

Id.

The residual functional capacity assessment evaluates the

claimant’s impairments and any related symptoms, such as pain,

that may cause physical or mental limitations that affect the

claimant’s performance in a work setting. See 20 CFR

404.1545. The residual functional capacity is based on all the

relevant evidence in the record. Jd. Relevant evidence includes

medical and other evidence. Jd. Such as, statements made about

what the claimant can do provided by medical sources, whether

or not they are based on formal medical examinations. See CFR

404.1513. Other evidence that will be consider are descriptions

and observations of the claimant’s limitations from his or her

impainnents, including limitations that result from claimant’s

symptoms, such as pain, provided by claimant, claimant’s

family or friends. See 20 CFR 404.1545.

All medica] evidence and opinions, regardless of its source,

are evaluated in determining disability. See 20 CFR

404.1527(d). Unless the “treating source’s opinion” is given

controlling weight, “the following factors are considered in

deciding the weight given to any medical opinion.” 20 CFR

404.1527(d)(1). The factors are: (1) Examining relationship, (2)

Treatment relationship, (3) Supportability meaning the more a

medical source presents relevant evidence to support an

opinion, particularly medical signs and laboratory findings, the

more weight we will give that opinion. The better an

explanation a source provides for an opinion, the more weight

we will give that opinion, (4) Consistency meaning the more

consistent an opinion is with the record as a whole, the more

weight we will give to that opinion, (5) Specialization meaning

that in general give more weight to the opinion of a specialist

about medical issues related to his or her area of specialty than

to the opinion of a source who is not a specialist, and (6) Other

factors. See 20 CFR 404.1527(d)(1-6).

If it is found that a “treating source's opinion on the issue(s)

of the nature and severity of [the claimant’s] impairment(s) is

well-supported by medically acceptable clinical and laboratory

diagnostic techniques and is not inconsistent with the other

substantial evidence in the case record”, controlling weight will

be given. See 20 CFR 404.1527(d)(2). If the treating source's

opinion is not given controlling weight, the remaining factors

are applied in “determining the weight to give the opinion.”

Good reasons must be given in the “notice of determination or

decision for the weight” given the “treating source's opinion.”

Id.

In general, the “longer a treating source has treated [the

claimant} and the more times [the claimant] has been seen by a

treating source”, the greater the weight given to the “source’s

medical opinion.” See 20 CFR 404.1527(d)(2)(1). In general the

“more knowledge a treating source has about the impairment”

the greater the weight given the opinion of the treating source.

The treatment the source has provided will be considered, as

well as, “the kinds and extent of examinations testing the source

has performed or ordered from specialists and independent

laboratories.”” See 20 CFR 404.1527(d)(2).

The Commissioner has issued fornal Social Secunty

Rulmgs interpreting the application of the five factors in

evaluating the weight given to a treating sources opinion. If the

opinions of the treating physician are inconsistent with other

substantial evidence, the treating doctor’s opinion is not entitled

to controjling weight, but completely reyectmg the opinion 1s

not an accurate interpretation of 20 C.F.R. § 404.1527 (d)(2).

Social Security Ruling (SSR) 96-2p (1996) (available in 1996

WL 374188, 1, 4). “Treating source medical opinions are stil]

entitled to deference and must be weighed using all of the

factors provided in 20 C.F.R. § 404.1527 and 416.927.” See Ia.

at 4. “In many cases, a treating source’s medical opinion will be

entitled to the greatest weight and should be adopted, even if it

does not meet the test for controlling weight.” See /d. Thus, the

importance of a treating source’s opinion is not easily rejected

and each factor in 20 C.F.R. § 404.1527 (d)(2) must be

considered and discussed.

B. The Proceeding In This Case

Petitioner Natalie Kerwick, was twenty-one years old at the

time of her administrative hearing. Petitioner alleges that she

became disabled on February 8, 1981 due to a capillary-venous-

lymphatic malformation of the nght lower extremity, which

resulted in amputation of her mght leg below the knee and

subsequent surgeries for infections and contounng of the stump.

Petitioner filed an application for Childhood Disability

Benefits on October 6, 1998. (Pet. App. 9). The application

was initially denied. (Id.). Petitioner filed a Request for

Reconsideration on May 5, 1999. (Id.). The Social Secunty

Administration affirmed its decision. (Id.). Petitioner filed a

request for a hearing by an Administrative Law Judge (ALJ).

(id.). A hearing was held on June 7, 2000 and ALJ Rivera

issued an unfavorable decision on August 14, 2000. (Id.). A

request for review was timely filed. (Id.).

In an order dated February 2, 2002, the Appeals Council

issued a Remand Order vacating ALJ Rivera’s decision and

remanded the case for further proceedings. (Id.). A hearing

was held on Apnl 12, 2002 and a supplemental hearing was

held on June 6, 2002. (Id.). On August 12, 2002, ALJ Rivera

issued an unfavorable decision. (Id.) The ALJ found that

petitioner was not disabled, and had the residual functional

capacity to perform the exertional demands of light work

reduced by non-exertional limitations, secondary to nght leg

amputation, that result in the need to alternate sitting and

standing during the course of an 8-hour workday. (Pet. App.

14-15). The ALJ dismissed the opinion of Dr. Mulliken’, the

treating physician and specialist, by finding that it was

inconsistent with the weight of the record when considered in

its entirety and therefore should be given little weight.(Pet. App.

19), The ALJ noted that the opinion of Ira Woletsky, M.D.", a

pediatrician, was given considerable weight as it was supported

by medical findings in the record. In addition, the ALJ gave

some probative weight to K. Seo M.D.’ (Pet. App. 21). The

'Dr. Mulliken is a specialist in vascular birthmarks/ hemangiomas and

malformations (Pet. App. 11). He has examined, treated, and operated on

Petitioner from August 4, 1984 to June 1, 2000 (Pet. App. 11, 20). Dr.

Mulliken has performed multiple procedures on petitioner, including: knee

disarticulation with contouring stump; debulking of the nght buttock and

above the nght knec amputation; shortening, right below-knee amputation of

the stump; contour cxeision of the right buttock and upper thigh; excision of

the infeeted wound in her night thigh; contour resection, overgrown tissuc,

right upper buttock, resection, pedunculated !ymphatico-venous masss, right

perincum (Pet. App. 11-12).

In 2000, Dr. Mulliken completed a Physical Capacities Evaluation

(PCE) and Pain Interrogatory (PI) regarding petitioner's work limitations.

(Pet. App. 20). The doctor reported that petitioner could stand/walk for a

maximum of 2 hours and sit for a maximum of 3 hours in an 8 hour work

day. (Id.). In addition, the doctor reported that petitioner can occasionally

hf 11 - 20 pounds. (Id.) Dr. Mulliken aiso reported that Ms. Kerwick

could not use her fect for repetitive movements, as in operating foot controls,

crawling, or climbing. (Id.).

*Petitioner has been cxamined and treated by Ira Woletsky, M.D., a

pediatrician, since November 18, 1983. (Pet. App. 4, 21). For disability

determination, Dr. Woletsky comp!~.cd an assessment of petitioner in 1999.

(Id.). Dr. Woletsky reported that petitioner’s ability to lift and carry ts

limited and that she can lift and/or carry a maximum of 25 pounds. (Id.)

Dr. Woletsky also indicated that petitioner’s ability to stand and/or walk is

limited and that she can stand and/or walk up to 2 hours per day. (Id.).

’On March 22, 1999, Petitioner was examined by K. Seo, M.D., North

Broadway Medical Associates, for disability determination. (Pet. App. 13).

Dr. Seo reported that petitioner walked into the examining room limping duc

ALJ found that the opinion of Dr. Anthony Buonocore, a state

agency medical consultant, was given considerable weight and

supported by the medical record as a whole (Pet. Appl. 21-22).

The Appeals Council denied petitioner’s request for review.

The district court affirmed. After reviewing pctitioner’s

claimed impairments in detail, the district court concluded that

the ALJ properly stated the requisite good cause and substantial

evidence supports his finding in regards to the amount of weight

given the treating physician. (Pct. App. 19-24). In addition, the

district court determined that the substantial amount of weight

given to Dr. Wotezky opinion by the ALJ was validly based

upon substantial evidence in the record, as well as the weight

given to the opinions of Dr. Buonocore and Dr. Sco. (Pet. App.

21-22).

The court of appeals affirmed. The court concluded that the

opinion of Dr. Mulliken, a treating physician and a specialist

was inconsistent with the weight of the record in its entircty.

(Pet. App. 3-4). The court found that the ALJ demonstrated

good cause for this conclusion by relying on petitioner’s high

school attendance, other medical opinions in the record, and

petitioner’s own testimony. (Id.).

Petitioner petitioned for a rehearing which was denied by

the court of appeals. (Pet. App. 5).

— — Ee — — —— —

to a heavy prosthesis on her right leg and had difficulty standing up from the

Sitting position. (Id.). In addition, Dr. Seo reported that petitioner had

difficulty getting on and off the examining table with the prosthesis; without

the prosthesis, obvious difficulty. (Id.). Dr. Seo’s impression was that

petitioner was able to sit without much difficulty, able to stand less than one

hour in an 8 hour working period, able to walk a couple of blocks, and able

to lift and carry less than 10 pounds. (Pet. App. 21). Dr. Seo noted,

“Considering hemangioma in nature, prognosis is poor. Presently, she ts

using a long leg prosthesis, however, it may be difficult using the long leg

prosthesis considering hemangioma, weight bearing is also difficult I

believe considering extensive hemangiomatas lesions of the nght thigh,

probably requires another debulking procedure. Probably she is disabled”

(Tr. 214).

REASONS FOR GRANTING THE PETITION

The court of appeals in this case permitted the

Commissioner to disregard its own interpretation of 20 C.F.R. §

404.1527, holding that the treating source’s opinion was

inconsistent with the evidence in the entirety, therefore entitling

the ALJ to reject it. The court’s decision is in direct conflict

with the decisions of three other circuits. See Newton v. Apfel,

209 F.3d 448, 456 (5" Cir. 2000) refering Clark v.

Commissioner of Social Security, 143 F.3d 115, 118 (2d Cir.

1998); Goatcher v. U.S. Department of Health & Human Servs.,

52 F. 3d 288, 290 (10" Cir. 1995); Schaal v. Apfel, 134 F.3d

496, 504 (2d Cir. 1998); dissent in Prosch v. Apfel, 201 F.3d

1010, 1116 (8” Cir. 1999).

By finding that the treating specialist’s opinion was

inconsistent with the evidence in the entirety, thus, the ALJ was

entitled to reject it, the court appeals did not consider the

necessity of a specialist’s opinion in claims involving rare

diseases.

A. The Eleventh Circuit’s Decision Conflicts With Decisions

of Three Other Courts Of Appeals.

The Commissioner must evaluate the medical evidence to

determine if the claimant’s impairments render her physically or

mentally incapable of performing substantial gainful activity.

The Commissioner “makes a finding about the residual

functional capacity based on all the relevant medical and other

evidence in the case record.” 20 C.F.R. §404.1520.

In evaluating the weight of the medical evidence, it is well

established that a treating source’s opinion is entitled to

controlling weight in certain circumstances. “If the

commissioner finds that a treating source's opinion on the issue

of the nature and severity of the plaintiff's impairments is well

supported by the medically acceptable clinical and lab

diagnostic techniques and is not inconsistent with other

substantial evidence, the commissioner will give it controlling

weight.” See 20 C.F.R. § 404.1527 (d)(2). If the opinions of the

treating physician are inconsistent with other substantial

evidence, the treating doctor’s opinion is not entitled to

controlling weight, but completely rejecting the opinion is not

an accurate interpretation of 20 C.F.R. § 404.1527 (d){2). See

SSR 96-2p (1996) (available in 1996 WL 374188, at 1, 4).

“Treating source medical opinions are still entitled to deference

and must be weighed usmg all! of the factors provided in 20

C.F.R. § 404.1527 and 416.927.” See Id. at 4. “In many cases, a

treating source's medical opinion will be entitled to the greatest

weight and should be adopted, even if it does not meet the test

for controlling weight.” See Id.

If an opinion of a treating source is not given controlling

weight, the regulations direct an ALJ to consider a series of

factors to determine the weight to give the opinion. 20 C.F.R. §

404.1527 (d). The factors an ALJ must consider are: (1) the

length of the treatment relationship; (2) the nature and extent of

the treatment relationship; (3) the quantity of evidence in

support of the opinion; (4) the consistency of the opinion with

the record as a whole; and (5) whether the treating physician is

also a specialist (emphasis added). Jd. Several federal courts

have found that an ALJ must consider each of the § 404.1527

(d) factors in determining whether to reject or give little weight

to the opinion of a treating specialist physician. See Newton v.

Apfel, 209 F.3d 448, 456 (5™ Cir. 2000); Clark v. Commissioner

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

v. U.S. Department of Health & Human Servs., 52 F. 3d 288,

290 (10" Cir. 1995); Schaal v. Apfel, 134 F.3d 496, 504 (2d Cir.

1998); dissent in Prosch v. Apfel, 201 F.3d 1010, 1116 (8" Cir.

1999).

In Schaal, the Second Circuit interpreted the 199]

Regulations [56 Fed.Reg. 36,932(1991)]regarding the weight of

a treating doctor’s opinion, finding that an ALJ’s failure to

consider all the factors listed in 20 C.F.R. § 404.1527 (d)(2)(i)

was a legal error (emphasis added} Schaal v. Apfel, 134 F.3d

496, 504 (2d Cir. 1998).

aa 10

In Clark v. Commissioner of Social Security, the Second

Circuit relied on Schaal in remanding the case to the District

Court. In determining if the SSA’s decision was based on

substantial evidence and proper legal standard, the Second

Circuit examined the weight given to the opinions of treating

sources. Clark, 143 F.3d 115, 118 (2d Cir. 1998). The Second

Circuit found that when controlling weight is not given to the

treating sources’ opinions, the factors listed in 20 C.F.R. §

404.1527 (d)(2) must be considered (emphasis added). Jd.

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

Services, the Tenth Circuit remanded the case because the “ALJ

failed to apply the correct legal standards in weighing the

opinion of the appellant’s treating physician.” Goatcher Vv. U.S

Department of Health & Human Services, 52 F. 3d 288, 289

(10" Cir. 1995). The Tenth Circuit found that an ALJ must

consider the specific factors listed in 20 C.F.R. § 404.1527 (d)

in determining the weight given to any medical evidence

(emphasis added). /d. at 290.

The Fifth Circuit followed the findings in Clark and

Goatcher in Newton, stating that “an ALJ is required to

consider each of the § 404.1527 (d) factors before declining to

give any weight to the opimions of the claimant’s treating

specialist (emphasis added).” Newton v. Apfel, 209 F.3d 448,

456 (5" Cir. 2000).

Similarly, in Prosch, Eighth Circuit Judge Lay’s dissenting

opinion found that rejecting the treating doctor’s opinion based

solely on factors 3 and 4 was insufficient. Prosch v. Apfel, 201

F.3d 1010, 1116 (8" Cir. 1999). Circuit Judge Lay explains that

“the ALJ and the majority have failed to consider the language

in Social Security Ruling 96-2p” by failing to consider factors

(1), (2) and (5) in rejecting the opinion of the treating doctor.

See Id.

In the present matter, the Eleventh Circuit held that the

treating source’s Opinion was inconsistent with the evidence in

the entirety, therefore the ALJ was entitled to reject the treating

source’s opinion. The court failed to follow the standards set out

in 20 C.F.R. § 404.1527(d) in evaluating the weight given to the

treating specialist. The Court relied on only one of the factors,

factor (4), listed in 20 C.F.R. § 404.1527(d) to discredit the

opinion of the treating specialist.

Following the other circuits and the SSR, the opinion of Dr.

Mulliken, petitioner’s treating physician, should not have been

completely rejected by the ALJ. In the given matter, Dr.

Mulliken met four of the five factors. Dr. Mulliken maintained

an examining relationship, had a long term treatment

relationship, his opinion was supported by the medical

diagnosis of petitioner, and Dr. Mulliken is a specialist.

Factor one is met by Dr. Mulliken treating petitioner from

August 4, 1984 through June 1, 2000 (Pet. App. 11, 20).

Factor two is met by Dr. Mulliken not only examined petitioner

but performed numerous surgeries on her to address her

impairments (Pet. App. 11-12). Factor three is met by the

medical diagnosis of petitioner being Klippel. Traunary

Syndrome (KTS), which is a “rare congenital anomaly

characterized by unilateral limb overgrowth, venous

varicosities, and capillary malformations (port wine stains) of

the affected limb or limbs.” Erin E. Huiras, Cheryl J. Barnes,

Lawrence F. Eichenfield, Andrew N. Pelech, and Beth A.

Drolet, Pulmonary Thromboembolism Associated with Klippel-

Trenaunay Syndrome, Pediatrics, October 1, 2005, at 1016.

KTS vanes in degrees of severity with surgical operations being

treatment for the most severe cases. See Jack Hirsh, Stuart D.

Gould, John M. Spandorfer, Unilateral Leg Swelling: Clues to

Cause and Ways to Treat, Patient Care, February 1, 2006, at 38.

Petitioner has a severe form of KTS as demonstrated through

the numerous amounts of surgeries she has undergone. Factor

five is completed by Dr. Mulliken being a specialist in the ficld

of vascular birthmarks/ hemangiomas and malformations (Pet.

App. 1I1).

By meeting the majority of these factors, Dr. Mulliken’s

opinion is entitled to substantial weight. The Eleventh Circuit

found that since the ALJ stated reasons such as the testrmony of

the petitioner, petitioner’s daily activities and the other medical

evidence was adequate to reject the opinion of the Dr. Mulliken.

(Pet. App. 3-4). Only factor (4) inconsistency with the record in

its entirety was focused on by the ALJ as cause to reject the

opinion of the treating specialist. Using one factor to

completely reject the opinion of the treating doctor contradicts

the decisions made in three other Circuit Courts.

In sum, the court of appeal’s decision misconstrues the

evaluation process of the 20 C.F.R. § 404.1527(d) factors,

creates a conflict with decision in three other circuits, and

invalidates the Social Security Rulings. Accordingly, review by

this Court is warranted.

B. The court of appeals’ construction of 20 C.F.R. §

404.1527 has significant public policy implications

regarding the evaluation process of impairments that stem

from rare diseases.

Rare, unique disorders present a situation to Social Security

Administration that has not been adequately addressed by

regulations and case law. A rare disease is defined as “a disease

or condition affecting fewer than 2000,000 persons in the

United States.” See NIH Launches Clinical Studies Nationwide

to Investigate Rare Diseases, NIH News National Institute of

Health, (May 5, 2006)

<http://www.nih.gov/news/pr/may2006/nerr-05.htm>.

Approximately 6,000 rare disorders have been identified in the

United States affecting about 25 million Americans. See /d.

Rare diseases are not taken into consideration in determining

the method of evaluating impairments for Social Security

Disability Insurance Benefits.

Social Security publishes Listing of Impairments that

outlines impairments that are considered disabling. The

Listings provide a description of various physical and mental

illnesses and abnormalities. See 10 CFR pt. 404, subpt. P, App.

1 (pt. A). There are 125 impairments defined in the adult

listings. See /d. The listings are divided into body system

categories which are: musculoskeletal, special senses and ~

speech, respiratory, cardiovascular, digestive, genitor-urinary,

hemic and lymphatic, skin, and endocrine. See /d. Four groups

of listings are not categorized by the body system: multiple

body system impairments, neurological impairments,

neurological impairments, mental disorders, and malignant

neoplastic diseases. See /d. For an impzinment to meet a listing,

the claimant must show that the isipairment meets all the

specified medical criteria. Sullivan v. Zebley, 110 S.Ct. 885

(1990).

If a claimant’s impairment does not meet the Listings,

the claimant can qualify for benefits through demonstrating that

her unlisted impairment, or combination of impairments, is

equivalent to a listed impairment. 20 CFR § 404.1520(e) and 20

CFR § 416.926(a). The claimant demonstrates this equivalency

through showing medical findings equal in severity to all the

criteria for the one most similar listed unpairment. See Jd. If an

adult’s impairment meets or equals the listing, the claimant is

presumed disabled. See Bowen v. Yuckert, 482 U.S. 137, 141

(1987).

All illnesses, abnormalities, and impairments that can be

disabling are not covered by the Listings. Sullivan v. Zebley,

110 S. Ct. 885, (1990). “The equivalence analysis excludes

claimants who have unlisted impairments, or combination of

impairments, that do not fulfill all the criteria for any one listed

impairment.” Sullivan v. Zebley, 110 S. Ct. 885 (1990).

Rare diseases arc not among the most “frequently

diagnosed” impairments, therefore rare diseases are cxcluded

from the listings. The categories in the Listings are narrowly

tailored and fail to include rare diseases that by their nature are

unusual. People with rare diseases are likely to have to

continue past the listings cvaluation to *he determination of

residual functional capacity.

i. Step Three Evaluation of . diseases requires a

significant amount of weight be given to the opinion of a

specialist.

When an impairment does not meet or equal the Listing, the

ALJ makes a finding about the claimant’s residual functional

capacity (RFC) “based on all the relevant medical and other

evidence” in the claimant’s case record. See 20 C.F.R. §

404.1520(e). Other evidence may include descriptions of the

claimant’s “limitations that go beyond the symptoms, such as

pain,-that are important in the diagnosis and treatment” of

claimant’s medical condition. See 20 C.F.R. § 404.1545(a).

Observations by the treating or examining physician regarding

the claimant’s limitations and observations made “during formal

medical examinations” are all considered in determining the

claimant’s RFC. See Jd. These observations and descriptions

along with the medical records are considered by the ALJ in

evaluating to what degree the claimant’s impairments kecp her

from performing work activities. See Id.

Evaluating the medical evidence and medical opinions

regarding claimant’s limitations in cascs where the impairment

is from a rare disease presents a unique situation. Rare diseases

present claims that a gencral practitioner or consultant is not

-adequatcly trained or equipped to evaluate. People with rare

diseases “often must travel long distances-to visit the few

doctors knowledgeable about thcir illnesses.” See Carlos Rados,

Orphan Products: Hope for People with Rare Diseases, FDA

Consumer, November-December 2003. The inadequate training

of general practitioners or consultants in the areas of rare

diseases makcs their opinion of the limitations of the person

suffering from a rare disease insufficient. Rare discases are not

seen often and in gencral, non-specialist physicians lack

exposure to the intricate complexitics of such discases.

A specialist in the medical arena of the specific rare disease

is the best trained and has sufficicnt exposure to the intricacies

of the discase in order to formulate an opinion of the physical

and or mental limitations that a person diagnosed with such

disease suffers. While a general practitioner or consultant lacks

the ability to understand and fully treat rare diseases, a specialist

is in a position to evaluate the needs and treat the complications

associated with rare discases.

In weighing the opinions given regarding the claimant’s

limitation, a specialist who understands the complexities of the

rare disease is necessary and his/her opinion should be given a

great amount of deference.

2. Klippel-Trenaunay Syndrome is a rare disease that

does not meet the listings, therefore the opinion of the

specialist should have been given significant weight.

The National Institute of Health Office of Rare Diseases

(NORD) lists Klippel-Trenaunay Syndrome (KTS) as a rare

disease. “KTS is a rare congenital anomaly characterized by

unilateral limb overgrowth, venous varicosities, and capillary

malformations (port wine stains) of the affected limb or limbs.”

Erin E. Huiras, Cheryl J. Bames, Lawrence F. Eichenfield,

Andrew N. Pelech, and Beth A. Drolet, Pulmonary

Thromboembolism Associated with Klippel-Trenaunay

Syndrome, Pediatrics, October 1, 2005, at 1016. “Large venous

malformations such as those observed in KTS are rare, and

many physicians are unfamiliar with the potential

complications, which include hypercoagulability, thrombosis,

and pulmonary embolism.” See Jd. Treatment of KTS typically

consist of compression stockings to reduce swelling and

“orthopedic surgery is recommended only in severe cases of

leg-size discrepancy due to a malformed bony architecture.”

Jack Hirsh, Stuart D. Gould, John M. Spandorfer, Unilateral

Leg Swelling: Clues to Cause and Ways to Treat, Patient Care,

February 1, 2006, at 38.

KTS is an exainple of a rare disease that does not meet or

equal the Listing of Impairments. Therefore, an evaluation of

disability for a person diagnosed with KTS stems on the weight

of the evidence in the entirety, which includes all medical

evidence, and description and observations of claimant’s

limitations.

In the present case, petitioner was diagnosed with KTS,

capillary-venous-lymphatic malformation of the nght lower—

extremity and underwent numerous surgeries beginning in

1986. (Pet. App. 11). Dr. Mulliken performed these surgeries,

which include: knee disarticulation with contouring stump;

debulking of the nght buttock and above the nght knee

amputation; shortening, right below-knee amputation of the

stump; contour excision of the nght buttock and upper thigh;

excision of the infected wound in her right thigh; contour

resection, Overgrown tissue, mght upper buttock, resection,

pedunculated lymphatico-venous mass, nght perineum (Oet.

App. 11-12). As demonstrated through the nuinber of surgeries

that petitioner has undergone, petitioner suffers from an severe

case of KTS.

Like other rare diseases, people diagnosed with KTS require

specialist to treat their conditions. With such a severe case as

petitioner’s, a specialist is essential. Due to the complexity of

KTS and the severity of petitioner’s condition, a specialist

would be in the best position to evaluate claimant’s limitations

and give a well-founded opinion and description of them. In

cases of rare diseases, such as KTS, rejecting the opinion of a

specialist fails to recognize the uniqueness and the specificity of

knowledge require to understand the complexitics of these

disorders.

In sum, by rejecting the opinion of a specialist in a claim

involving a rare disease, the court of appeals’ decision

conflicted with public policy that recognizes the importance of a

specialist in treating and being knowledgeable about rare

diseases and their affect on claimants’ limitations. Accordingly,

review by this Court is warranted.

CONCLUSION

The petition for a wnt of certiorari should be granted.

Respectfully submitted.

Anthony R. Reeves

Counsel for Petitioner

APPENDIX

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 05-12724

Non-Argument Calendar

D.C. Docket No. 03-00523-CV-FIM-33-SPC

FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

NOVEMBER 17, 2005

THOMAS K. KAHN

nee CHRK

NATALIE KERWICK,

Plaintiff-AppellJant,

versus

COMMISSIONER OF SOCIAL SECURITY,

Defendant-Appellee.

Appeal from the United States District Court

For the Middle District of Florida

(November 17, 2005)

Before BIRCH, BLACK, and BARKETT, Circuit Judges.

PER CURIAM:

Natalic Kerwick, a 24-year old high school graduate,

appeals the district court’s order affirming the Commissioner’s

denial of her application for Childhood Disability Benefits

through deceased wage-carner John Kerwick, pursuant to 42

U.S.C. § 405 (g). Kerwick asserts the Administrative Law

Judge (ALJ) erred in failing to accord controlling weight to Dr.

John B. Mulliken’s opinion. We affirm.

I. DISCUSSION

We must determine whether the Commissioner’s

decision is supported by substantial evidence and based on

proper legal standards. Crawford v. Comm'r of Soc. Sec., 363

F.3d 1155. 1158 (11™ Cir. 2004). “Substantial evidence is . .

such relevant evidence as a reasonable person would accept as

adequate to support a conclusion.” Jd. (citation omitted). “’

Even if the evidence preponderates against the Commissioner’s

findings, we must affirm if the decision reached is supported by

substantial evidence.” Jd. At 1158-59 (citation omitted). We

“review de novo the legal principles upon which the

Commissioner’s decision is based.” Moore v. Barnhart, 405

F.3d 1208, 1211 (11" Cir. 2005).

A claimant bears the burden of establishing disability.

Jones v. Apfel, 190 F.3d 12224, 1228 (11" Cir. 1999). Social

security regulations provide a ftve-step sequential process to

evaluate whether a claimant has proven she is disabled. See 20

C.F.R. § 416.920(a). At the fourth step, the ALJ makes a

determination of the claimant’s Residual Functional Capacity

by considering the claimant’s ability to sit, stand, walk, lift,

carry, push, pull, reach, handle, stoop, crouch, and other work-

related physical demand. Jd. § 404.1545(b).

Social security regulations also provide guidelines for

the ALJ to use when evaluating medical opinion evidence. Jd. §

404.1527. The ALJ considers many factors when weighing

medical opinions, including the examining relationship, the

aie

treatment relationship, whether, an opinion is amply supported,

whether an opinion is consistent with the record, and a doctor’s

specialization. Jd. § 404.1527(d). In social security disability

benefits cases, generally, the opinions of examining physicians

are given more weight than non-treating. physicians, and the

opinions of specialists (on issues within their areas of expertise)

are given more weight than non-specialists. See § 404.1527 (d)

(1)-(2), (5).

A treating physician’s testimony “’must be given

substantial or considerable weight unless good cause is shown

to the contrary.’” Crawford, 363 F.3d at 1159 (citation omitted).

We have “concluded ‘good cause’ exists when the: (1) treating

physician’s opinion was not bolstered by the evidence; (2)

evidence supported a contrary finding; or (3) treating

physician’s opinion was conclusory or inconsistent with the

doctor’s won medical records.” Phillips v. Barnhart, 357 F.3d

1232, 1240-41 (11" Cir. 2004). An ALJ does not need to give a

treating physician’s opinion considerable weight if the

claimant’s own testimony regarding her daily activities

contradicts that opinion. /d. at 1241. However, the ALJ must

clearly articulate reasons for giving less weight to the treating

physician’s opinion. Phillips, 357 F.3d at 1241.

Additionally, the opinion of a specialist is generally

entitled to more weight than the opinions of other non-

specialists. See 10 C.F.R. § 404.1527(d)(5). However, the ALJ

must “always consider the medical opinions in [the] case record

together with the rest of the relevant cvidence. . . reccive[d].”

Id. § 404.1527(b). While specialists “generally” arc cntitled to

more weight, when therc are intemal inconsistcncies, the

specialist’s opinion deserves Icss deference. See Guilliams v.

Barnhart, 393 F.3d 798, 803 (8 Cir. 2005).

The ALJ accorded little weight to the opinion of Dr.

Mulliken, a treating physician and a specialist, finding Dr.

Mulliken’s opinion was inconsistent with the weight of the

record in its entirety. Substantial cvidence supports this

conclusion. The ALJ noted Dr. Mulliken opined Kerwin could

(1) sit for three hours; (2) stand or walk for 2 hours; (3)

occasionally lift up to 20 pounds; (4) grasp, push, and pull with

no limitation; and (5) bend and squat, but not crawl or climb or

use her feet repetitively. The ALJ pointed out Dr. Mulliken’s

opinion Kerwick could not sit more than three hours or stand for

more than two hours is contradicted by Kerwick’s high school

attendance, where she sat for nearly seven hours a day, and past

employment, where she worked eight hours a day. In high

school, Kerwick sat in a classroom 42 minutes or every hour, 7

times a day, 5 days a week. Kerwick was active while working

in child care, sitting and standing eight hours a day. Also, she

successfully performed clerical work at her uncle’s office for a

month.

Dr. Mulliken’s opinion is also inconsistent with other

medical opinions in the record. The ALJ examined evidence

from multiple medical sources- Dr. Woletsky, a treating

pediatrician who saw Kerwick about four or five time per year;

Dr. Seo, a consulting physician; Dr. Smith, a consulting

orthopedic surgeon; and Dr. Buonocore, a state agency medical

consultant. Evidence from these sources support a finding

Kerwick is able to sit without diffculty for up to six hours.

Further, Dr. Mulliken’s opinion is inconsistent with

Keriwck’s own testimony. Kerwick acknowledged she could sit

for a couple of hours, then stand for an hour. Kerwick testified

she could drive a car, and help cook and clean at home, Also, in

the past, Kerwick participated in a gym class and in the Special

Olympics.

Il. CONCLUSION

In sum, the ALJ articulated several reasons for giving

less weight to Dr. Mulliken’s opinion. Thus, we conclude the

ALJ’s determination that Dr. Mulliken’s opinion should be

given little weight is supported by substantial evidence.

AFFIRMED

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

No. 04-12724-EE

| FILED

U.S. COURT OF APPEALS

| ELEVENTH CIRCUIT

| JAN 18 2006

THOMAS K. KAHN

CLERK

NATALIE KERWICK,

Plaintiff-Appellant,

versus

COMMISSIONER OF SOCIAL SECURITY,

Defendant-Appellee.

On Appeal from the United States District Court for the

Norther District of Flonda

BEFORE: BIRCH, BALCK, and BARKETT, Circuit Judges.

PER CURIAM:

The petition(s) for rehearing filed by appellant, Natalie

Kerwick is DENIED.

ENTERED FOR THE COURT

“s/ Susan H. Black” me

UNITED STATE CIRCUIT JUDGE

; ij.

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

NATALIE KERWICK,

Plaintiff,

vs. Case No. 2:03-cv-5230FtM-

33SPC

JO ANNE B. BARNHART,

Commissioner of Social Security,

Defendant.

ORDER

This matter comes before the Court on Magistrate Judge

Sheri Polster Chappell’s Amended Report = and

Recommendation (Dec. #12) filed on February 11, 2005,

recommending that the decision of the Social Security

Commissioner denying her application for a period of childhood

disability and disability insurance benefits be AFFIRMED. The

Plaintiff filed an Objection to the Report and Recommendation

(Doc. #13) on February 22, 2005. :

After conducting a careful and complete review of the

findings and recommendations, a district judge my accept,

reject or modify the magistrate judge’s report and

recommendation. 20 U.S.C. § 636 (b)(1); Williams v.

Wainwright, 681 F.2d 732, 732 (11" Cir. 1982), cert. denied,

459 U.S. 1112 (1983). A district judge “shall make a de novo

determination of those portions of the report of specified

proposed findings or recommendations to which objection is

made.” 28 U.S.C. § 636 (b)(1)(C). This requires that the district

judge “give fresh consideration to those issues to which specific

objection has been made by a party.” Jeffrey S. by Ernest S. v.

State Bd. Of Educ. Of Ga., 896 F.2d 507, 512 (11" Cir.

1990)(quoting H.R. 1609, 94" Cong., § 2 (1976)). The district

judge reviews legal conclusions de novo, even in the absence of

an objection. See Cooper-Houston v. Southern Ry. Co., 37 F.3d

603, 604 (11 Cir. 1994).

After conducting a careful and complete review of the

findings, conclusions and recommendations, and giving de novo

review to matters of law and those matters to which objections

were filed, the Court accepts the factual findings and legal

conclusions of the magistrate judge, and the recommendation of

the magistrate judge regarding the motions.

Accordingly, it is now

ORDERED, ADJUDGED, and DECREED:

United States Magistrate Judge Sheri Polster Chappell’s

Amended Report and Recommendation (Doc. #12) is

ACCEPTED and APPROVED and Plaintiff's Objection to the

Report and Recommendation is OVERRULED.

DONE and ORDERED in Chambers in Fort Myers,

Florida, this 1‘ day of March, 2005.

“s/Virginia M. Hernandez Convington”

Virginia M. Hernandez Covington

UNITED STATES DISTRICT JUDGE

-8-

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA

FORT MYERS DIVISION

NATALIE KERWICK, — -

Plaintiff,

VS. Case No. 2:03-cv-5230FtM-

33SPC

JO ANNE B. BARNHART,

Commissioner of Social Security,

Defendant.

REPORT AND RECOMMENDATION’

This matter comes before the Court on the Plaintiff

Natalie Kerwick’s appeal to the district court from a final

decision of the Commissioner of Social Security denying her

application for a period of childhood disability and disability

insurance benefits. (Doc. #1). The Commissioner filed a

response (Doc. #4) on October 28, 2003. The plaintiff filed her

memorandum of law on January 20, 2004, (Doc. #8). The

Commissioner filed its memorandum of law on February 6,

2004, (Doc. #9). Thus, this appeal is now nipe for

determination.

FACTS

Procedural History

' This Report and recommendation addresses only the issues brought up

for review by the District Court pursuant to 28 U.S.C. § 405(g).

-9-

On October 6, 1998, the Plaintiff filed her application for

childhood disability benefits under Sections 202(d) and 223 of

the Social Secunty Act (the Act) alleging disability since her

birth on February 8, 1998. (Tr. 122). The application was

denied initially. The Plaintiff timely filed a request for

reconsideration on May 5, 1999, (Tr. 114-115). The Social

Security Administration affirmed its decision and the Plaintiff

appealed (Tr. 116-120). The Plaintiff timely filed a request for

hearing (Tr. 118-120). A hearing was held on June 7, 2000,

before the Honorable Ruben Rivera, Administrative Law Judge

(ALJ)(Tr. 71-91). The plaintiff was assisted by attorney, Bart

Nadel. On August 14, 2000, the ALJ issued an Order denying

benefits to the Plaintiff (Tr. 2232-234). The Plaintiff appealed

the ALJ’s decision through the Appeal’s Council. Upon

review, on February 2, 2003, the Appeals Council issued an

order remanding the case back to the ALJ (Tr. 250-253).

The case was subsequently heard on April 12, 2002, before

the Honorable Ruben Rivera, Jr. (tr. 71-90). A supplemental

hearing was held on June 6, 2002, (Tr. 91-106). On August 12,

2002, the ALJ issued an unfavorable decision (tr. 14-26). The

Plaintiff filed a request for review with the Appeals Council on

September 3, 2002. The request for review was denied on

August 22, 2004, (Tr. 6-8) making the ALJ’s decision of

August 12, 2002, the final decision of the Commissioner.

Pursuant to 42 USC § 405(g), the Plaintiff filed the instant case

and the case is now ripe for review.

Plaintiff's History

At the time of the administrative hearing, the Plaintiff was

twenty-one (21) years old (Tr. 18). The Plaintiff will have

reached the age of twenty-two (22) by February 8, 2003, and

therefore, pursuant to 20 CFR § 404.1569 is considered to a

“younger individual” (tr. 26). The Plaintiff has a high school

education and has no past relevant work (Tr. 23, 124). The

Plaintiff alleges that disability began at birth on February 8,

-10-

1981, due to capillary-venous-lymphatic- -malformation” of the

lower extremity (Klippel- Trenaunay Syndrome)*(Tr. 122, 130,

160). It resulted in the amputation of the right leg below the

knee (Tr. 168). The Plaintiff required multiple surgeries

through the years to address infections, contouring of the stump

and debulking procedures on the right buttock and i thigh

(Tr. 153-169).

The Plaintiff briefly worked in a day care where she cared

for children from age one (1) though five (5) years old (Tr. 56).

She stated that she would work from 8:30A.M. to sometimes

6:00P.M. (Tr. 56, 58). She later began another job relating to

young children as a teacher’s aide in a Collier County

elementary school (Tr. 60). She stayed in this position for

approximately 3 to 4 months (Tr. 60). The Plaintiff testified

that these were the only two (2) jobs that she held and she did

not seek other employment after leaving the elementary school

(Tr. 61). She states that working with the young children was

difficult due to the high volume of walking (Tr. 61).

While she attended high school, the Plaintiff was able to

attend seven classes during the day which were 42 minutes long

(Tr. 65), however she indicated she was frequently absent due

to illness (Tr. 65, 147). She participated in all gym activities,

and physical activities except for jumping jacks and squat

thursts (Tr. 88). She was able to walk around school, however,

if she needed to go to another floor she would often use the

elevator (Tr. 75). She states that often times she would “run

herself down” if she was doimg a lot of walking and the stump

would bleed, swell, and she would develop a high fever. The

: Capillary-venous is defined as one of the minute vessels that convey

blood from a capillary network into small veins. Lymphatic capillary is

defined as one of the smallest lymphatic vessels. Malformation is a

deformity or abnormal shape or structure.

* Klippel-Trenaunay Syndrome is characterized by a patchy pot-wine

stain on an extremity that overlics a combined venous and lymphatic

malformation with associated bony enlargement.

Http://www.kidsplastsurg.com/klippel.html accessed January 27, 2005.

Plaintiff testified that she used a prosthesis but the appliance

often rubbed against the stump and malfunctioned (Tr. 149).

When asked at the hearing about her ability to sit for any

length of time, the Plaintiff testified that excessive sitting also

affected her due to the malformation on her right buttock and

hip (Tr. 64). She further testified that sitting for a long time

would cause bleeding on her buttock and hip (Tr. 64).

However, she indicated that she could sit for a couple of hours

if she was able to squirm and not stay in one spot (Tr. 64).

When asked at the hearing about her ability to stand for any

given length of time, she stated that she could stand for about an

hour if “pushing herself” but could go a little longer is she was

able to sit in between (Tr. 64).

At hearing, the Plaintiff testified that she could cook “a little

bit”, cleans her own room, and can throw laundry into the

washing machine (Tr. 85). She has a dnver’s license and drives

herself to the store (Tr. 79) but cannot drive for long distances

in the car. She is able to walk on smooth surfaces for thirty (30)

minutes and lift 10 to 15 pounds. Additionally, she performs

sedentary duties such as watching television, listening to the

radio and completing homework (Tr. 144).

Medical History

The Plaintiff'was born on February 8, 1981, with capillary

venous lympathic malformation of the nght lower extremity.

On August 4, 1984, Dr. J.B. Mulliken* performed a surgery for

subtotal excision of the skin and subcutaneous malformation of

the right calf and dorsum foot (Tr. 186). Dr. Mulliken believed

that a high amputation was inevitable (Tr. 168). Because she

* Dr. John B. Mulliken is an associate professor of surgery at Harvard

Medical School and Fellow of the American College of Surgeons. Dr.

Mulliken is on staff at the Children’s Hospital and Brigham and Women’s

Hospital! in Boston, Massachusetts (Tr. 230). Dr. Mulliken co-authored a

book on Vascular Birthmarks, Hemangiomas and Malformations which

ineluded a picture of the Plaintiff to depict massive Klippel-Trenaunay

syndrome {Tr. 231).

a2;

continued to have problems with her right leg, Dr. Mulliken

performed a right knee disarticulation’ with contouring of the

stump on June 5, 1984.

On August 23, 1985, the Plaintiff underwent a debulking®

procedure of the nght lower above the knee amputation (Tr.

164). The Plaintiff was diagnosed with Klippel-Trenaunay

Syndrome combined with veno-lymphatic capillary

malformation of the mght lower extremity (Tr. 164). Dr.

Mulliken indicated that the Plaintiff underwent multiple

procedures for recurrent infections (Tr. 164).

On July 17, 1989, the Plaintiff developed breakdown of the

amputated stump which prevented her from wearing her

prosthesis (Tr. 165). Dr. Mulliken diagnosed the only

alternative was to shorten the femur and re-sect some of the

abnormal skin (Tr. 165). Subsequently, on November 4, 1993,

the plaintiff underwent a wide contour excision of the mght

buttock and upper thigh (Tr. 160) due to a difficulty in sitting

and its large size. At that time, he noted in his report that the

Plaintiff was able to ambulate with the prosthesis (Tr. 160). On

March 28, 1994, Dr. Mulliken performed an excision on an

infected wound (Tr. 159). Dr. Mulliken opined that she had

resistant pseudomonas (Tr. 159).

On February 8, 1998, at the age of seventeen (17), the

Plaintiff participated in physical therapy with Ellen Almodovar,

P.T. while attending high school (Tr. 200). Mrs. Almodovar

stated that the Plaintiff ambulated with a_ prosthetic

independently throughout the school and without an assistive

device (Tr. 2 ). She stated that the Plaintiff was able to

negotiate steps independently, occasionally using the wall for

balance (Tr. 200). Her muscle strength in bilateral lower

extremities was good to normal (tr. 200). Furthermore, she

exhibited decreased passive range of motion in right hip straight

~ * Disarticulation is defined as an amputation through a joint. Taber's

Cyclpedic Medical Dictionary, 762 (Donald Menes, M.D. cd., 19” ed. F.A.

Davis 1997\herinaftcr Taber's).

® Debulking is a surgical procedure to remove a large portion of a tumor

when complete excision is not possible.

leg raise only, however all else is within functional to nomnal

limits. Mrs. Almodovar indicated that the Plaintiff participated

in physical education classes but refused to come to the physical

therapy consult sessions (Tr. 200). She explained that since the

Plaintiff was independent at school and no reports of difficulty

were made, physical therapy was not recommended for the

following year (Tr. 200).

On March 22, 1999, the Plaintiff presented to Dr. K. Seo

complaining of difficulty standing, walking (unable to walk

more than 2 blocks), swelling of the night thigh and frequent

fevers. Dr Seo noted the difficulty walking and maneuvering

with and without the prosthesis (tr. 214). However, Dr. Sea

indicated that the upper extremities showed normal range of

motion or the shoulder joints, elbow joints and wrist joints (Tr.

214). A physical examination of the Plaintiff revealed swelling

of the nght thigh due to hemangiomatas lesions (Tr. 20, 215).

Muscle strength in the left leg was grade 5/5 and the nght leg

was 3/5. Dr. Seo opined that, at that time, the Plaintiff was able

to sit without much difficulty, was able to stand less than one

hour in an eight (8) hour working period, was able to walk

couple blocks and lift/carry less than 10 Ibs (Tr. 215).

On July 22, 1999, the Plaintiff presented to Dr. Milton M.

Smith, a State Agency medical consultant, at the request of the

Division of Disability Determinations (Tr. 216). Upon

examination, the Plaintiff was found to have a full range of

motion in the upper extremities, gnp strength was normal, no

motor or sensory deficits, biceps and triceps were present and

equal bilaterally, and ankle and knee jerk reflexes were present

and equal bilaterally. Examination of the Plaintiff's nght hip

revealed minimal range of motion with no redness, swelling,

increased warmth or tenderness (tr. 20, 216). Dr. Smith’s

impression was that the Plaintiffs physical examination was

entirely normal except for the right above knee amputation (tr.

218). He further noted that there was marked functional

disability to standing, walking, twisting and carrying (Tr. 218).

On August 23, 1999, Dr. Anthony Buonocore, a state

agency medical consultant, completed a Residual Functional

14.

Capacity Assessment (RFC). The Plaintiff was found to be

capable of lifting/carrying ten (10) Ibs. occasionally, less than

10 Ibs. frequently, stand and/or walk at least 2 hours in an 8

hour workday, and sit for 6 hours in an 8 hour workday (tr.

219). No limitations were placed on pushing and or pulling (tr.

219). The Plaintiff can occasionally climb a ramp or stairs,

balance and stoop.

Administrative Law Judge's Decision

After reviewing the entire record, the ALJ determined that

the Plaintiff meets the non-disability requirements for

Childhood Disability Benefits established in Section 202(d) of

the Social Security Act with the exceptions noted in 20 C.F.R. §

404.355(B)(2)’. The-ALJ found that the Plaintiff had not

engaged in substantial gainful activity since the alleged onset of

disability (tr. 25).

After reviewing the medical record, the ALJ determined that

the Plaintiff did have an impairment or combination of

impairments considered “severe” based upon the requirements

outlined in the Regulations,-20 C.F.R. 404.1520(b) (Tr. 25).

However, the medically determinable impairments do not meet

or medically equal one of the listed impairments in Appendix I,

Subpart P, Regulation No. 4 (Tr. 25).

Upon careful consideration of the medical opinions offered

into the record, the ALJ found that the Plaintiff has the residual

functional capacity to perform a full range of light work

” As outlined by the ALJ, an individual is entitled to Childhood Benefits

on the earnings of record of an insured person who is entitled to old age or

disability benefits or who has dies if (a) you are the insured person’s child,

based upon a relationship described in 20 C.F.R. § 404.355 or (b) you are

dependent on the insured, as defined in 20 C.F.R. § 404.360 and § 404.365

18 or you are 18 years old or older and have a disability that began before

becoming 22 years old, or you are 18 years or older and qualify for benefits

as a full time student as dcsenbed in 20 C-F.R. § 404.367 and § 404.369.

The ALJ concluded that the Plaintiff meets the non-disability requirements

for Childhood Disability Benefits.

-15-

reduced by non-exertional limitations, secondary to nght leg

amputation resulting in the need to alternate sitting and standing

during the course of an eight (8) hour workday (Tr. 26). He

further found that the Plaintiffs exertional limitations do not

allow her to perform the full range of light work. However,

using the Medical-Vocational Rule 202.20 and 201.27 as a

guideline and the testimony of the vocational expert, it was

determined that a significant number of jobs exist in the

national economy that the Plaintiff can perform (Tr. 26).

Therefore, he found that the Plaintiff is not under a “disability”

as defined in the Social Security Act and thus, not entitled to

Childhood Disability under Sections 202 (d) and 223 (Tr. 27).

STANDARD OF REVIEW

“The findings of the Commissioner of Social Security as to

any fact, if supported by substantial evidence shall be

conclusive.” 42 U.S.C. 40S(g). the court “may not decide the

facts anew, re-weigh the evidence or substitute [the court’s]

judgment for that of the [Commissioner].” Bloodsworth v.

Heckler, 703 F.2d 1233, 1239 (11" Cir. 1983). The court will

review the decision to determine whether the correct legal-

Standards were applied. Martin v. Sullivan, 894 F.2d 1520,

1529 (11" Cir. 1990). The court must review the record as a

while and determine whether the decision was reasonable and

supported by substantial evidence. Substantial evidence is more

than a scintilla, and is relevant such that a reasonable person

would accept the evidence as support for the decision.

Richardson v. Perales, 402 U.S. 389, 401 (1971). “even if the

evidence preponderates against the {Commissioner’s] finding,

[the court] must affirm if the decision reached is supported by

substantial evidence.” Martin, 894 F.2d at 1529 (citing Sewell v.

Bowen, 792 F.2d 1065, 1067 (11™ Cir. 1986).

DISCUSSION

-16-

When reviewing the final decision of the Commissioner, the

court must evaluate: (1) whethcr the ALJ followed the five-step

sequential evaluation found in 20 CFR § 404.1520 to determine

whcther or not the individual was disabled, and (2) whether the

ALJ’s decision was supported by substantial evidence.

(1) Whether the ALJ Followed the Five-Step Sequential

Evaluation

To dctermine whether a claimant qualifies for Social

Secunty disability benefits, the ALJ must follow a five step

sequential evaluation process sct forth by 20 C.F.R. 404.1520.

Johnson y, Barnhart, 268 F. Suppr.2d 1317, 1324 (11" Cir.

2002). If a determination as to the claimant’s disability can be

made at one stage, it is not necessary for the ALJ to move on to

the next step in the evaluation. McCruter v. Bowen, 791 F.2d

1544, 1546 (11" Cir. 1986).

The first step in the evaluation process is to consider what

employment the claimant has had, and whether the claimant has

been participating in the substantial gainful activity. Gainful

activity is defined as work that one docs for pay or profit,

whether or no the profit is realized. 20 C.F.R. §404.1520.

Substantial gainful activity is defincd as work that involves

significant physical or mental activitics. Id. The claimant is not

disabled if he/she has been working. Johnson, 268 F.Supp.2d at

1324. Here, the ALJ determined that since the alleged onsct

date of disability, the Plaintiff has not engaged in substantial

gainful activity (Tr. 25). =

The second step is to consider the severity of the claimant’s

impairment, taking into account the duration of the impairment

and impairments in combination. Here, the ALJ must decide

whether the impairment imposes a limit on the claimant’s

physical or mental ability to participate in basic work activities.

Crayton v. Callahn, 120 F.3d 1217, 1219 (11" Cir. 1997). The

ALJ concluded that the Plaintiffs impairments consisting of

status post above the knee and mid thigh amputation of the right

lcg, secondary to capillary-venous-lymphatic malformation and

-17-

residuals of status post multiple corrective surgeries and contour

resections are “severe” within the meaning of the Regulations

(Tr. 19, 25).

The third step in the evaluation process is to consider the

severity of the impairment as compared to a previous listing of

impairments that has been recognized as disabling. Should the

ALJ determine that the impairment meets or equals in severity a

listed impairment, the claimant is presuined to be disabled and

entitled to benefits. Bowen v. New York, 476 U.S. 467, 471,

106 S.Ct. 2002, 90 L.Ed. 2d 462 (1986). The ALJ stated that

while the evidence in the record indicated the plaintiff had

severe impairments. The impairments were not severe enough t

meet or medically equal one of the impairments listed in

Appendix 1, Subpart P, Regulations No. 4 (Tr. 19). The ALJ

then moved on to step four.

The fourth step in the evaluation process requires the ALJ to

determine the plaintiff's residual functional capacity (RFC) and

based on that determination, decide whether the plaintiff is able

to return to her/her previous work. McCruter, 791 F.2d at 1547.

The RFC is defined as the most an individual can do despite the

limitations of their disability. 20 C.F.R. § 404.1545. Past

relevant work is defined as work performed within the last 15

years or 15 years prior to the onset of disability. 20 C.F.R. §

404.156S(a). the work must have lasted for a long enough time

to qualify as gainful activity and to allow the claimant to learn

how to do the job. Id. Here, the ALJ determined the Plaintiff

did not have any past relevant work (Tr. 26). The ALJ then

moved on to Step Five.

At step five, the ALJ must determine based on the

claimant’s vocational factors, age, education, and work

experience that the claimant can perform some other work

found in the national economy. Phillips v. Barnhart, 357 F.3d

1232, 1239 (J1" Cir. 2004). Essentially, the ALJ must

determine if there is other work available, in significant

numbers, in the national economy is not disabled. Id. If the

ALJ determines that the claimant cannot make the transition to

-18-

other work, then the ALJ will determine that the claimant is

disabled and entitled to benefits. /d.

The ALJ employed the use of a vocational expert (VE) to

determine if the Plaintiff could perform work in accordance

with 20 C.F.R. § 404.20(g) (Tr. 23). The vocational expert was

present during the supplemental hearing on June 6, 2002, (Tr.

93-102). Upon review of the Plaintiffs RFC. The VE’s

testimony and the Medical-Vocational Guidelines, the ALJ

concluded that the Plaintiff was capable of performing a

significant range of jobs in the national economy as outlined by

the vocation expert (Tr. 24, 98-99),

(2)Whether the ALJ's Decision is Supported by Substantial

Evidence

The court “may not decide the facts anew, reweigh the

evidence or substitute its judgment for that of the

{Commissioner].” Bloodsworth, 703 F.2d at 1239. If the

Commissioner’s decision is supported by substantial evidence,

it should not be disturbed. Lewis, 125 F.3d at 1440.

The Plaintiff contends that the ALJ’s decision is not

supported by substantial evidence because the ALJ failed to

lend proper weight to the treating physician’s opinions.

Specifically, the Plaintiff argues that the Plaintiff's treating

physician, Dr. Mulliken, should be accorded substantial weight

as opposed to a non-specialist treating physician. The Plaintiff

further argues that the ALJ’s hypothetical questions regarding

the Plaintiff's impairments were inaccurate and thus yielded an

inaccurate assessment by the VE.

a)Whether_the ALJ Accorded the Proper Weight to_the

The Plaintiff contends that the ALJ erred in failing to lend

substantial weight to the Plaintiffs treating, Dr. Mulliken. The

Plaintiff argues that Dr. Mulliken is in the best position to make

a determination as to the extent of the Plaintiff's impairments.

-19-

It is well established that “the testimony of a treating

physician must be given substantial or considerable weight

unless “good cause” is shown to the contrary. Crawford v.

Commissioner of Social Security, 363 F3d 1155, 1159 (11" Cir.

2004) (citing Lewis, 125 F.3d at 1440). A treating physician’s

report “may be discounted when it is not accompanied by

objective medical evidence or is wholly conclusory.” Crawford,

363 F.3d at 1159 (citing Edwards v. Sullivan, 937 F.2d 580,

583-84 (11 Cir. 1991)(holding that good cause existed where

the opinion was contradicted by other notations in the

physician’s own record). The ALJ may not reject medical

opinions without offering some explanation. Holley v. Chater,

931 F.Supp. 840, 848 (S.D. Fla. 1996)(citing MacGregor v.

Bowen, 786 F.2d 1050, 1052 (11 Cir. 19986)). Further, the

“requisite good cause” necessary to discount a treating

physician’s opinion cannot be provided solely by the report of a

non-examining physician. /d. at 848.

Dr. Mulliken began treating the Plaintiff for a congenital

defect of capillary-venous-lympathic syndrome when the

Plaintiff was approximately 2 4 years old (Tr. 66, 168) and

continued to treat her throughout the years when she had

complications with her condition. Clearly, Dr. Mulliken is

familiar with the Plaintiffs condition and impairments and is

considered her treating physician. Although the Plaintiff

testified at hearing in June 2002 that she had seen Dr. Mulliken

the previous summer and that she saw him every two years, the

record does not include any specific medical evidence from Dr.

Mulliken after July 1997 (Tr. 105). A claimant bears the burden

of providing evidence that she is disabled within the meaning of

the Social Secuntty Act. 42 U.S.C. §423(d)(S)(A); 20 C.F.R.

§404.1512.

Upon review of the record in its entirety, the ALJ stated that

he accorded little weight to the opinion of Dr. Mulliken, the

Plaintiff's treating physician (Tr. 22). As grounds for

discounting the opinion, the ALJ stated that Dr. Mulliken’s

opinion was inconsistent with the weight of the record in its

entirety (Tr. 22).

-20-

In his 2000 Physical Capacity Evaluation of the Plaintiff,

Dr. Mulliken opined that she can stand or walk two (2) hours in

an cight (8) hour workday, the Plaintiff can sit three (3) hours in

an (8) hour workday, lift 11-20 Ibs. occasionally, use her hands

for simple grasping, pushing, pulling, and fine manipulation,

bend frequently and squat occasionally (Tr. 227-229).

However, the ALJ pointed to specifics in the Plaintiff's own-

testimony to discount Dr. Mulliken’s opinion. Specifically, the

plaintiff is able to watch television, use the computer, listen to

the radio, fish, visit with friends, stand for an hour, lift ten to

fifteen pounds, help with cooking, clean her room, and

participate in physical education activities (Tr. 21-22).

Further, a Vocational Evaluation report completed by

Audrey Ventimiglia at Eastern Suffolk BOCES on December 5,

1995, reflects that the Plaintiff attended school on a regular

basis, was enrolled in vocational training for child care, and

worked as a babysitter after classes for a five (5) year old child

(Tr. 188). The Plaintiff participated in the Special Olympics

and won five (5) gold medals in track and ficld events,

including the discus and softball throw and the 25 to 50 meter

swim (Tr 188). The cvaluator noted that the Plaintiff

deinonstrated fine motor dexterity and contro] and was very

methodical (Tr. 189). She worked independently and appeared

to enjoy the hands on nature of tasks (Tr. 188).

As further evidence that Dr. Mulliken’s opinion should be

given little weight, the ALJ noted the Plaintiff's refusal to

reccive physical therapy, her lack of medication, and the

absence of noteworthy treatment after 1997 (Tr. 19-22).

Clearly, based upon the Plaintiff's own testimony, she is

capable of successfully participating in sedentary activities.

Thus, a determination that the Plaintiff is capable of engaging in

sedentary or light work is entirely credible. On that basis, the

Court finds the decision of the ALJ is reasonable. He properly

stated the requisite good cause and substantial evidence

supports his findings. Therefore, the Court will not disturb the

findings of the ALJ in regard to the amount of weight given the

treating physician.

21.

The ALJ stated that the opinion of Dr. Seo would be

accorded probative weight based upon the physician’s report

(Tr. 22). As grounds, the ALJ points to the examination report

dated March 22, 1999. In his report, Dr. Seo indicates that the

Plaintiff was able to “sit without much difficulty, able to stand

less than | hour in an 8 hour working period,” and able to walk

a couple of blocks and lift/carry less than ten pounds (Tr. 215).

He further noted that both upper extremities show normal range

of motion of the shoulder joints, elbow joints, and wrist joints

(Tr. 214). Muscle strength in both hands and arms is 5/5 (Tr.

214). Dr. Seo placed no limitations on the Plaintiff's ability to

sit (Tr. 215) and noted that the Plaintiff does not take

medication (Tr. 213). This, the ALJ noted would allow for at

least sedentary work for the Plaintiff (Tr. 22). On that basis, the

Court find that substantial evidence supports the determination

of the ALJ that Dr. Seo’s opinions should be given probative

weight.

The ALJ stated the opinion of Dr. Ira Wotezky is accorded

considcrable weight (Tr. 23). In support thereof, the ALJ refres

to the fact that Dr. Wotezky saw the Plaintiff in 1983, and last

saw her in an cxamination on March 19, 1999 (Tr. 22). Upon,

examination, Dr. Wotezky notes that the Plaintiff was well

adjusted, fatigue was not present, and the Klippel Trenaunay

Syndrome was asymptomatic (Tr. 205-208). Dr. Wotezky’s

medical opinion regarding the Plaintiff's ability to work was

that the Plaintiff could lifi/carry up to 25lbs. and stand/walk up

to 2 hours per day. No limitation was placed on sitting, pushing

and pulling The ALJ found this assessment consistent with the

ability to perform at least sedentary work with the cxertional

ability to lift and/or carry at the light level (Tr. 23). The ALj

found that his opinion accorded considerable weight as it is

supported by objective medical findings of record (Tr. 23) and

the Court will not disturb this opinion based upon substantial

evidence in the record. Lewis, 125 F.3d at 1440.

The ALJ further indicates that the Residual Functional

Capacity Assessment (RFC) completed by Dr. Anthony

Buonocore, a state agency medical consultant, is accorded

-22.-

considerable weight (Tr. 23, 219-226). As noted previously,

Dr. Buonocore opined that the Plaintiff was capable of

lifting/carrying ten (10) Ibs. occasionally, less than 10 Ibs.

frequently, stand and /or walk at least 2 hours in an 8 hour

workday, sit for 6 hours in an 8 hour work day and no

limitations were placed on pushing and/or pulling (Tr. 219).

Furthermore, Dr. Buonocore opined that the Plaintiff can

occasionally climb a ramp or stairs, balance and stoop. This

opinion and the ALJ’s determination is supported by the

medical evidence and the record as a whole and therefore, will

not be disturbed.

Whether the ALJ's Erred in Relying on the Testimony of the

The ALJ is to determine the Plaintiff's residual functional

capacity (RFC) and base on that determination, decide whether

the Plaintiff is able to return to his/ her previous wok.

McCruter, 791 F.2d at 1547. Here, the ALJ determined that the

Plaintiff had mo past relevant work (Tr. 25). Having that

determination, decide the burden shifts to the Social Security

Administration to determine if the Plaintiff was capable of

performing other work. 20 C.F.R §404.1520(g). Often the

Commissioner meets this burden by relying on the grids. Jones

v. Apfel, 190 F.3d 1224 9C.A.11 Ala. 1999\(citing Foote v.

Chater, 67 F.2d 1553, 1559 (11" Cir. 1995)). When the

claimant cannot perform a full range of work at a given level of

exertion or the claunant has non-excrtional nnpairments that

significantly limit basic work skills, exclusive reliance on the

grids is inappropriate, /d. at 1229. Im such cases, the

Commissioner’s preferred methods of demonstrating that the

claimant can perform other jobs is through the testimony of a

vocational expert (VE). In order for the VE’s testimony to

constitute substantial evidence, the ALJ must post a

hypothetical question which comprises all of the claimant’s

impairments. /d. at 1229.

A vocational expert, Everett Tessmer, PhD., presented

testimony at the hearing on June 2, 2002, to help determine

whether or not there are a significant number of jobs in the

national economy that the Plaintiff could perform given her

RFC and vocational factors (Tr. 93-100). The ALJ asked the VE

a hypothetical question. Specifically, he asked the VE to

consider the person to be 21 years of age with a high school

education. The hypothetical person was said to have a valid

drivers’ license and would be able to drive using the left foot,

having a restriction of sitting for no more than two (2) hours at

one time, standing no more than one (1) hour at any given time,

would be able to sit or stand at least six (6) hours in an eight (8)

hour workday, alternating in those positions and with limited

lifting of 10 to 20 Ibs. (Tr. 96-97). The ALJ then asked whether

it would be possible for the hypothetical person to perform the

work that the Plaintiff previously performed (Tr. 97). The VE

responded that the previous jobs could not be preformed by the

Plaintiff based upon the standing and sitting limitations (Tr. 97).

The ALJ went further to inquire as to any transferable job skills

the Plaintiff would have acquired during her job as teacher’s

aide, to which the VE testified that she had little if any

transferable skills (Tr. 97). Finally, the ALJ inquired as to other

kinds of work in the national economy, given the Plaintiffs

physical limitations and RFC, that she could perform. The VE

testified that there are a variety of positions that she could

perform including cashiering (leaning towards the clerical

aspect, telephone answering service, order clerk, an/or a

classified ad clerk as long as the positions required sedentary

exertion (Tr. 98). He also testified that she could perform the

duties of a tourist information assistant or a customer service

clerk (Tr. 99).

The Plaintiff contends that the ALJ erred in not considering

Dr. Mulliken’s opinion and her subjective complaints of

disabling pain and limitations. For the reasons stated

previously, the ALJ discounted Dr. Mulliken’s opinion and

thus, it was not necessary to consider this further. Given the

evidence in the record as a whole, the ALJ found that subjective

-24-

complaints of the Plaintiff were not totally credible. Thus, the

ALJ was not required to probe further the Plaintiff's

unsupported claim in the hypothetical question.

Substantial evidence exists to support the ALJ’s

hypothetical question and the testimony elicited in response.

Consequently, the ALJ concluded that the Plaintiff is capable of

performing other work as described by the vocational expert

and, therefore, the Plaintiff's argument lacks merit. On that

basis, the Court fmds that substantial evidence exists to support

a finding that the Plaintiff is not disabled within the meaning of

the Act.

Accordingly, it is respectfully

RECOMMENDED:

The Final Decision of the Commissioner should be

AFFIRMED.

DONE AND ORDERED at Fort Myers, Florida, this 7”

day of February, 2005.

“s/ Sheri Polster Chappell”

SHERI POLSTER CHAPPELL

UNITED STATES MAGISTRATE

2S.

Statutes and regulations

42 USCS § 423(d)

§ 423. Disability insurance benefit payments

(d) Disability defined.

(1) The term "disability" means--

(A) inability 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 12 months; or

(B) in the case of an individual who has attained the age of

55 and is blind (within the meaning of "blindness" as defined in

section 216(i)(1) [42 USCS § 416(i)(1)]), inability by reason of

such blindness to engage in substantial gainful activity requiring

skills or abilities comparable to those of any gainful activity in

which he has previously engaged with some regularity and over

a substantial period of time.

(2) For purposes of paragraph (1)(A)--

(A) An individual shall be determined to be under a

disability only if his physical or mental impairment or

impairments are of such severity that he is not only unable to do

his previous work but cannot, considering his age, education,

and work experience, engage in any other kind of substantial

gainful work which exists in the national economy, regardless

of whether such work exists in the immediate area in which he

lives, or whether a specific job vacancy exists for him, or

whether he would be hired if he applied for work. For purposes

of the preceding sentence (with respect to any individual),

"work which exists in the national economy” means work which

exists in significant numbers either in the region where such

individual lives or in several regions of the country.

(B) In determining whether an individual's physical or

mental impairment or impairments are of a sufficient medical

severity that such impairment or impairments could be the basis

of eligibility under this section, the Commissioner of Social

-26-

Security shall consider the combined effect of all of the

individual's impairments without regard to whether any such

impairment, if considered separately, would be of such severity.

If the Commissioner of Social Security does find a medically

severe combination of impairments, the combined impact of the

impairments shall be considered throughout the disability

determination process.

purposes of this title [42 USCS §§ 401 et seq.] if alcoholism or

drug addiction would (but for this subparagraph) be a

contributing factor material to the Commissioner's

determination that the individual is disabled.

(3) For purposes of this subsection, a "physical or mental

impairment" is an impairment that results from anatomical,

physiological, or psychological abnormalities which are

demonstrable by medically acceptable clinical and laboratory

diagnostic techniques.

(4) <1) The Commissioner of Social Security shall by

regulations prescribe the criteria for determining when services

performed or earnings derived from services demonstraie an

individual's ability to engage in substantial gainful activity. No

individual who is blind shall be regarded as having

demonstrated an ability to engage in substantial gainful activity

on the basis of earnings that do not exceed an amount equal to

the exempt amount which would be applicable under section

203(f)(8) [42 USCS § 403(f)(8)}, to individuals described in

subparagraph (D) thereof, if section 102 of the Senior Citizens’

Right to Work Act of 1996 had not been enacted.

Notwithstanding the provisions of paragraph (2), an individual

whose services or earnings meet such criteria shall, except for

purposes of section 222(c) [42 USCS § 422(c)], be found not to

be disabled. In determining whether an individual is able to

engage in substantial gainful activity by reason of his earnings,

where his disability is sufficiently severe to result in a

functional limitation requiring assistance in order for him to

work, there shall be excluded from such earnings an amount

equal to the cost (to such individual) of any attendant care

services, medical devices, equipment, prostheses, and similar

items and services (not including routine drugs or routine

medical services unless such drugs or services are necessary for

the control of the disabling condition) which are necessary (as

determined by the Commissioner of Social Security in

regulations) for that purpose, whether or not such assistance is

also needed to enable him to carry out his normal daily

functions; except that the amounts to be excluded shall be

subject to such reasonable limits as the Commissioner of Social

Security may prescribe.

(B) In determining under subparagraph (A) when services

performed or earnings derived from services demonstrate an

individual's ability to engage in substantial gainful activity, the

Commissioner of Social Security shall apply the criteria

described in subparagraph (A) with respect to services

performed by any individual without regard to the legality of

such services.

(5) (A) An individual shall not be considered to be under a

disability unless he furnishes such medical and other evidence

of the existence thereof as the Commissioner of Social Security

may require. An individual's statement as to pain or other

symptoms shall not alone be conclusive evidence of disability

as defined in this section; there must be medical signs and

findings, established by medically acceptable clinical or

laboratory diagnostic techniques, which show the existence of a

medical impairment that results from anatomical, physiological,

or psychological abnormalities which could reasonably be

expected to produce the pain or other symptoms alleged and

which, when considered with all evidence required to be

furnished under this paragraph (including statements of the

individual or his physician as to the intensity and persistence of

such pain or other symptoms which may reasonably be accepted

as consistent with the medical signs and findings), would lead

to a conclusion thai the individual is under a disability.

Objective medical evidence of pain or other symptoms

established by medically acceptable clinical or laboratory

techniques (for example, deteriorating nerve or muscle tissue)

must be considered in reaching a conclusion as to whether the

individual is under a disability. Any non-Federal hospital,

clinic, laboratory, or other provider of medical services, or

physician not in the employ of the Federal Government, which

supplies medical evidence required and requested by the

Commissioner of Social Security under this paragraph shall be

entitled to payment from the Commissioner of Social Security

for the reasonable cost of providing such evidence.

(B) In making any determination with respect to whether an

individual is under a disability or continues to be under a

disability, the Commissioner of Social Security shall consider

all evidence available in such individual's case record, and shall

develop a complete medical history of at least the preceding

twelve months for any case in which a determination is made

that the individual is not under a disability. In making any

determination the Commissioner of Social Security shall make

every reasonable effort to obtain from the individual's treating

physician (or other treating health care provider) all medical

evidence, including diagnostic test, necessary in order to

properly make such determination, prior to evaluating medical

evidence obtained from any other source on a consultative

basis.

(6) (A) Notwithstanding any other provision of this title [42

USCS §§ 401 et seq.], any physical or mental impairment which

arises in connection with the commission by an individual (after

the date of the enactment of this paragraph [enacted Oct. 19,

1980]) of an offense which constitutes a felony under applicable

law and for which such individual is subsequently convicted, or

which is aggravated in connection with such an offense (but

only to the extent so aggravated), shall not be considered in

determining whether an individual is under a disability.

(B) Notwithstanding any other provision of this title [42

USCS §§ 401 et seq.], any physical or mental impairment which

arises in connection with an individual's confinement in a jail,

prison, or other penal institution or correctional facility

pursuantto such individual's conviction of an offense

(committed after the date of the enactment of this paragraph

29-

[enacted Oct. 19, 1980}) constituting a felony under applicable

law, or which is aggravated in connection with such a

confinement (but only to the extent so aggravated), shall not be

considered in determining whether such individual is under a

disability for purposes of benefits payable for any inonth during

which such individual is so confined.

20 CFR 404.1508

§ 404.1508 What is nceded to show an impairment.

If you are not doing substantial gainful activity, we always look

first at your physical or mental impairment(s) to determine

whether you are disabled or blind. Your impairment must result

from anatomical, physiological, or psychological abnormalities

which can be shown by medically acceptable clinical and

laboratory diagnostic techniques. A physical or mental

impairment must be established by medical evidence consisting

of signs, symptoms, and laboratory findings, not only by your

statement of symptoms (see § 404.1527). (See § 404.1528 for

further information about what we mean by symptoms, signs,

and laboratory findings.)

20 CFR 404.1527(d)

§ 404.1527(d) Evaluating opinion evidence.

(d) How we weigh medical opinions. Regardless of its source,

we will evaluate every medical opinion we receive. Unless we

give a treating source's opinion controlling weight under

paragraph (d)(2) of this section, we consider all of the following

factors in deciding the weight we give to any medical opinion.

(1) Examining relationship. Generally, we give more weight to

the opinion of a source who has cxamined you than to the

opinion of a source who has not examined you.

(2) Treatment relationship. Gencrally, we give more weight to

opinions from your treating sources, since these sources arc

-30-

likely to be the medical professionals most able to provide a

detailed, longitudinal picture of your medical impairment(s) and

may bring a unique perspective to the medical evidence that

cannot be obtained from the objective medical findings alone or

from reports of individual examinations, such as consultative

examinations or brief hospitalizations. If we find that a treating

source's opinion on the issue(s) of the nature and severity of

your impairment(s) is well-supported by medically acceptable

clinical and laboratory diagnostic techniques and is not

inconsistent with the other substantial evidence in your case

record, we wil] give it controlling weight. When we do not give

the treating source's opinion controlling weight, we apply the

factors listed in paragraphs (d){2)(i) and (d)(2)(ii) of this

section, as well as the factors in paragraphs (d)(3) through

(d)(6) of this section in determining the weight to give the

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

determination or decision for the weight we give your treating

source's opinion.

(i) Length of the treatment relationship and the frequency of

examination. Generally, the longer a treating source has treated

you and the more times you have been seen by a treating source,

the more weight we will give to the source’s medical opinion.

When the treating source has seen you a number of times and

long enough to have obtained a longitudinal picture of your

impairment, we will give the source's opinion more weight than

we would give it if it were fro-n a nontreating source.

(ii) Nature and extent of the treatment relationship. Generally,

the more knowledge a treating source has about your

impairment(s) the more weight we will give to the source's

medical opinion. We will look at the treatment the source has

provided and at the kinds and extent of examinations and testing

the source has performed or ordered from specialists and

independent laboratories. For example, if your ophthalmologist

notices that you have complained of neck pain during your eye

examinations, we will consider his or her opinion with respect

-31-

to your neck pain, but we will give it less weight than that of

another physician who has treated you for the neck pain. When

the treating source has reasonable knowledge of your

impairment(s), we will give the source's opinion more weight

than we would give it if it were from a nontreating source.

(3) Supportability. The more a medical source presents relevant

evidence to support an opinion, particularly medical signs and

laboratory findings, the more weight we will give that opinion.

The better an explanation a source provides for an opinion, the

more weight we will give that opinion. Furthermore, because

nonexamining sources have no examining or treating

relationship with you, the weight we will give their opimons

will depend on the degree to which they provide supporting

explanations for their opinions. We will evaluate the degree to

which these opinions consider al] of the pertinent evidence in

your claim, including opinions of treating and other examining

sources.

(4) Consistency. Generally, the more consistent an opinion is

with the record as a whole, the more weight we will give to that

opinion.

(5) Specialization. We generally give more weight to the

opinion of a specialist about medical issues related to his or her

area of specialty than to the opinion of a source who is not a

specialist.

(6) Other factors. When we consider how much weight to give

to a medical opinion, we will also consider any factors you or

others bring to our attention, or of which we are aware, which

tend to support or contradict the opinion. For example, the

amount of understanding of our disability programs and their

evidentiary requirements that an acceptable medical source has,

regardless of the source of that understanding, and the extent to

which an acceptable medical source is familiar with the other

information in your case record are relevant factors that we will

consider in deciding the weight to give to a medical opinion.

20 CFR 404.1520

§ 404.1520 Evaluation of disability in general.

(a) General -- (1) Purpose of this section. This section

explains the five-step sequential evaluation process we use to

decide whether you are disabled, as defined in § 404.1505.

(2) Applicability of these rules. These rules apply to you if you

file an application for a period of disability or disability

insurance benefits (or both) or for child’s insurance benefits

based on disability. They also apply if you file an application

for widow's or widower's benefits based on disability for

months after December 1990. (See § 404.1505(a).)

(3) Evidence considered. We will consider all evidence in your

case record when we make a determination or decision whether

you are disabled.

(4) The five-step sequential evaluation process. The sequential

evaluation process is a series of five "steps" that we follow in a

set order. If we can find that you are disabled or not disabled at

a step, we make our determination or decision and we do not go

on to the next step. If we cannot find that you are disabled or

not disabled at a step, we go on to the next step. Before we go

from step three to step four, we assess your residual functional

capacity. (See paragraph (e) of this section.) We use this

residual functional capacity assessment at both step four and

step five when we evaluate your claim at these steps. These are

the five steps we follow:

(i) At the first step, we consider your work activity, if any. If

you are doing substantial gainful activity, we will find that you

are not disabled. (See paragraph (b) of this section.)

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(ii) At the second step, we consider the medical severity of your

impairment(s). If you do not have a severe medically

determinable physical or mental impairment that meets the

duration requirement in § 404.1509, or a combination of

impairments that is severe and meets the duration requirement,

we will find that you are not disabled. (See paragraph (c) of this

section.)

(iii) At the third step, we also consider the medical severity of

your impairment(s). If you have an impairment(s) that meets or

equals one of our listings in appendix | of this subpart and

meets the duration requirement, we will find that you are

disabled. (See paragraph (d) of this section.)

(iv) At the fourth step, we consider our assessment of your

residual functional capacity and your past relevant work. If you

can still do your past relevant work, we will fmd that you are

not disabled. (See paragraph (f) of this section and §

404.1560(b).)

(v) At the fifth and last step, we consider our assessment of your

residual functional capacity and your age, education, and work

experience to see if you can make an adjustment to other work.

If you can raake an adjustment to other work, we will find that

you are not disabled. If you cannot make an adjustment to other

work, we will find that you are disabled. (See paragraph (g) of

(S) When you are already receiving disability benefits. If you

are already receiving disability benefits, we will use a different

sequential evaluation process to decide whether you continue to

be disabled. We explain this process in § 404.1594(f).

(b) If you are working. If you are working and the work you are

doing is substantial gainful activity, we will find that you are

not disabled regardless of your medical condition or your age,

education, and work experience.

-34-

impairment or combination of impairments which significantly

limits your physical or mental ability to do basic work

activities, we will find that you do not have a severe impairment

and are, therefore, not disabled. We will not consider your age,

education, and work experience. However, it is possible for you

to have a period of disability for a time in the past even though

you do not now have a severe impairment.

(d) When your impairment(s) meets or equals a listed

impairment in appendix I. If you have an impairment(s) which

meets the duration requirement and is listed in appendix 1 or is

equal to a listed impairment(s), we will find you disabled

without considering your age, education, and work experience.

(e) When your impainnent(s) does not meet or equal a listed

impairment. If your impairment(s) does not meet or equal a

listed impairment, we will assess and make a finding about your

residual functional capacity based on all the relevant medical

and other evidence in your case record, as explained in §

404.1545. (See paragraph (g)(2) of this section and § 404.1562

for an exception to this rule.) We use our residual functional

capacity assessment at the fourth step of the sequential

evaluation process to determine if you can do your past relevant

work (paragraph (f) of thts section) and at the fifth step of the

sequential evaluation process (if the evaluation proceeds to this

step) to determine if you can adjust to other work (paragraph (g)

of this section).

(f) Your impairment{s) must prevent you from doing your past

relevant work. If we cannot make a determination or decision at

the first three steps of the sequential evaluation process, we will

compare our residual functional capacity assessment, which we

made under paragraph (e) of this section, with the physical and

mental demands of your past relevant work. (See §

404.1560(b).) If you can still do this kind of work, we will find

that you are not disabled.

-35-

(g) Your impairment(s) must prevent you from making an

adjustment to any other work. (1) If we find that you cannot do

your past relevant work because you have a _ severe

impairment(s) (or you do not have any past relevant work), we

will consider the same residual functional capacity assessment

we made under paragraph (e) of this section, together with your

vocational factors (your age, education, and work experience) to

determine if you can make an adjustment to other work. (See §

404.1560(c).) If you can make an adjustment to other work, we

will find you not disabled. If you cannot, we will find you

disabled.

(2) We use different rules if you meet one of the two special

medical-vocational profiles described in § 404.1562. If you

meet one of those profiles, we will find that you cannot make an

adjustment to other work, and that you are disabled.

20 C.F.R 404.1545 (a)

§404.1545(a) Your residual functional capacity.

(a) General—{1) Residual functional capacity assessment. Your

impairment(s), and any related symptoms, such as pain, may

cause physical and mental limitations that affect what you can

do in a work setting. Your residual functional capacity is the

most you can still do despite your limitations. We will assess

your residual functional capacity based on all the relevant

evidence in your case record. (See §404.1546.)

(2) If you have more than one impairment. We will consider al!

of your medically determinable impairments of which we are

aware, including your medically determinable impairments that

are not "severe," as explained in §§404.1520(c), 404.1521, and

404.1523, when we assess your residual functional capacity.

(See paragraph (e) of this section.)

(3) Evidence we use to assess your residual functional capacity.

We will assess your residual functional capacity based on all of

-36-

the relevant medical and other evidence. In general, you are

responsible for providing the evidence we will use to make a

finding about your residual functional capacity. (See

§404.1512(c).) However, before we make a determination that

you are not disabled, we are responsible for developing your

complete medical history, including arranging for a consultative

examination(s) if necessary, and making every reasonable effort

to help you get medical reports from your own medical sources.

(See §§404.1512(d) through (f).) We will consider any

statements about what you can still do that have been provided

by medical sources, whether or not they are based on formal

medical examinations. (See §404.1513.) We will also consider

descriptions and observations of your limitations from your

impairment(s), including limitations that result from your

symptoms, such as pain, provided by you, your family,

neighbors, friends, or other persons. (See paragraph (e) of this

section and §404.1529.)

(4) What we will consider in assessing residual functional

Capacity. When we assess your residual functional capacity, we

will consider your ability to meet the physical, mental, sensory,

and other requirements of work, as described in paragraphs ({b),

(c), and (d) of this section.

(S) How we will use our residual functional capacity

assessment.

(i) We will first use our residual functional capacity assessment

at step four of the sequential evaluation process to decide if you

can do your past relevant work. (See §§404.1520(f) and

404.1560(b).)

(ii) If we find that you cannot do your past relevant work (or

you do not have any past relevant work), we will use the same

assessment of your residual functional capacity at step five of

the sequential evaluation process to decide if you can make an

adjustment to any other work that exists in the national

economy. (See §§404.1520(g) and 404.1566.) At this step, we

will not use our assessment of your residual functional capacity

alone to decide if you are disabled. We wil! use the guidelines

in §§404.1560 through 404.1569a, and consider our residual

functional capacity assessment together with the information

about your vocational background to make our disability

determination or decision. For our rules on residual functional

capacity assessment in deciding whether your disability

continues or ends, see §404.1594.

20 C.F.R. 404.1513

§404.1513 Medical and other evidence of your impairment(s).

(a) Sources who can provide evidence to establish an

impairment. We need evidence from acceptable medical sources

to establish whether you have a medically determinable

impairment(s). See

20 C.F.R. 404.1508

§404.1508. Acceptable medical sources are—

(1) Licensed physicians (medical or osteopathic doctors);

(2) Licensed or certified psychologists. Included are school

psychologists, or other licensed or certified individuals with

other titles who perform the same function as a school

psychologist in a school setting, for purposes of establishing

mental retardation, learning disabilities, and borderline

intellectual functioning only;

(3) Licensed optometrists, for the measurement of visual acuity

and visual fields (we may need a report from a physician to

determine other aspects of eye diseases);

(4) Licensed podiatrists, for purposes of establishing

impairments of the foot, or foot and ankle only, depending on

38.

whether the State in which the podiatrist practices permits the

practice of podiatry on the foot only, or the foot and ankle; and

(5) Qualified speech-language pathologists, for purposes of

establishing speech or language impairments only. For this

source, "qualified" means that the speech-language pathologist

must be licensed by the State professional licensing agency, or

be fully certified by the State education agency in the State in

which he or she practices, or hold a Certificate of Clinical

Competence from the American Speech-Language-Hearing

Association.

(b) Medical reports. Medical reports should include—

(1) Medical history;

(2) Clinical findings (such as the results of physical or mental

status examinations);

(3) Laboratory findings (such as blood pressure, x-rays);

(4) Diagnosis (statement of disease or injury based on its signs

and symptoms);

(5) Treatment prescribed with response, and prognosis; and

(6) A statement about what you can still do despite your

impairment(s) based on the acceptable medical source's findings

on the factors under paragraphs (b){1) through (b)(5) of this

section (except in statutory blindness claims). Although we will

request a medical source statement about what you can still do

despite your impairment(s), the lack of the medical source

statement will not make the report incomplete. See §404.1527.

law judge and Appeals Council levels, we will consider residual

functional capacity assessments made by State agency medical

-39-

and psychological consultants and other program physicians and

psychologists to be "statements about what you can still do"

made by nonexamining physicians and psychologists based on

their review of the evidence in the case record. Statements about

what you can still do (based on the acceptable medical source's

findings on the factors under paragraphs (b)(1) through (b)(5) of

this section) should describe, but are not limited to, the kinds of

physical and mental capabilities listed as follows (See

§§404.1527 and 404.1545(c)):

(1) The acceptable medical source's opinion about your ability,

despite your impairment(s), to do work-related activities such as

sitting, standing, walking, lifting, carrying, handling objects,

hearing, speaking, and traveling; and

(2) In cases of mental impairment(s), the acceptable medical

source's opinion about your ability to understand, to carry out

and remember instructions, and to respond appropriately to

_supervision, coworkers, and work pressures in a work setting.

(d) Other sources. In addition to evidence from the acceptable

medical sources listed in paragraph (a) of this section, we may

also use evidence from other sources to show the severity of

your impairment(s) and how it affects your ability to work.

Other sources include, but are not limited to—

(1) Medical sources not listed in paragraph (a) of this section

(for example, nurse-practitioners, physicians’ assistants,

naturopaths, chiropractors, audiologists, and therapists);

(2) Educational personnel (for example, school teachers,

counselors, early intervention team members, developmental

center workers, and daycare center workers);

(3) Public and private social welfare agency personnel; and

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(4) Other non-medical sources (for example, spouses, parents

and other caregivers, siblings, other relatives, fmends,

neighbors, and clergy). 2

(e) Completeness. The evidence in your case record, including

the medical evidence from acceptable medical sources

(containing the clinical and laboratory findings) and other

medical sources not listed in paragraph (a) of this section,

information you give us about your medical condition(s) and

how it affects you, and other evidence froin other sources, must

be complete and detailed enough to allow us to make a

determination or decision about whether you are disabled or

blind. It must allow us to determine—

(1) The nature and severity of your impairment(s) for any

period in question;

(2) Whether the duration requirement described in §404.1509 is

met; and

(3) Your residual functional capacity to do work-related

physical and mental activities, when the evaluation steps

described in §404.1520(e) or (f}(1) apply.

20 CFR 416.926

§ 416.926 Medical equivalence for adults and children.

(a)What is medical equivalence? Your impairment(s) is

medically equivalent to a listed impairment in appendix 1 of

subpart P of part 404 of this chapter if it is at least equal in

severity and duration to the critena of any listed impairment.

20 CFR 416.927

§ 416.927 Evaluating opinion evidence.

-4]-

(a) General. (1) If you are an adult, you can only be found

disabled if you are unable to do 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 12 months. (See § 416.905.) If you are a child, you

can be found disabled only if you have a medically

determinable physical or mental impairment(s) that causes

marked and severe functional limitations and that can be

expected to result in death or that has lasted or can be expected

to last for a continuous period of not less than 12 months. (See §

416.906.) Your impairment must result from anatomical,

physiological, or psychological abnormalities which are

demonstrable by medically acceptable clinical and laboratory

diagnostic techniques. (See § 416.908.)

(2) Evidence that you submit or that we obtain may contain

medical opinions. Medical opinions are statements from

physicians and psychologists or other acceptable medical

sources that reflect judgments about the nature and severity of

your impairment(s), including your symptoms, diagnosis and

prognosis, what you can still do despite impainment(s), and your

physical or mental restrictions.

(b) How we consider medical opinions. In deciding whether you

are disabled, we will always consider the medical opinions in

your case record together with the rest of the relevant evidence

we receive.

evidence relevant to your claim, including medical opinions, we

make findings about what the evidence shows.

(1) If all of the evidence we receive, including all medical

opinion{s), is consistent, and there is sufficient evidence for us

to decide whether you are disabled, we will make our

determination or decision based on that evidence.

-42-

(2) If any of the evidence in your case record, including any

medical opinion(s), is inconsistent with other evidence or is

internally inconsistent, we will weigh all of the evidence and

see whether we can decide whether you are disabled based on

the evidence we have.

(3) If the evidence is consistent but we do not have sufficient

evidence to decide whether you are disabled, or, if after

weighing the evidence we decide we cannot reach a conclusion

about whether you are disabled, we will try to obtain additional

evidence under the provisions of §§ 416.912 and 416.919

through 416.919h. We will request additional existing records,

recontact your treating sources or any other examining sources,

ask you to undergo a consultative examination at our expense,

or ask you or others for more information. We will consider any

additional evidence we receive together with the evidence we

already have.

(4) When there are inconsistencies in the evidence that cannot

be resolved, or when despite efforts to obtain additional

evidence the evidence is not complete, we will make a

determination or decision based on the evidence we have.

(d) How we weigh medical opinions. Regardless of its source,

we will evaluate every medical opinion we receive. Unless we

give a treating source’s opinion controlling weight under

paragraph (d)(2) of this section, we consider all of the following

factors in deciding the weight we give to any medical opinion.

(1) Examining relationship. Generally, we give more weight to

the opinion of a source who has examined you than to the

opinion of a source who has not examined you.

(2) Treatment relationship. Generally, we give more weight to

opinions from your treating sources, since these sources are

likely to be the medical professionals most able to provide a

detailed, longitudinal picture of your medical impairment(s) and

-43-

may bring a unique perspective to the medical evidence that

cannot be obtained from the objective medical findings alone or

fron reports of individual examinations, such as consultative

examinations or brief hospitalizations. If we find that a treating

source's opinion on the issue(s) of the nature and severity of

your impairment(s) is well-supported by medically acceptable

Clinical and laboratory diagnostic techniques and is not

inconsistent with the other substantial evidence in your case

record, we will give it controlling weight. When we do not give

the treating source’s opinion controlling weight, we apply the

factors listed in paragraphs (d)(2)(i) and (d)(2){ii) of this

section, as well as the factors in paragraphs (d)(3) through

(d)(6) of this section in determining the weight to give the

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

determination or decision for the weight we give your treating

source's opinion.

(i) Length of the treatment relationship and the frequency of

examination. Generally, the longer a treating source has treated

you and the more times you have been seen by a treating source,

the more weight we will give to the source's medical opinion.

When the treating source has seen you a number of times and

long enough to have obtained a longitudinal picture of your

impairment, we will give the source's opinion more weight than

we would give it if it were from a nontreating source.

(ii) “eture and extent of the treatment relationship. Generally,

the more knowledge a treating source has about your

uvipairment(s) the more weight we will give to the source's

medical opinion. We will look at the treatment the source has

provided and at the kinds and extent of examinations and testing

the source has performed or ordered from specialists and

independent laboratories. For example, if your ophthalmologist

notices that you have complained of neck pain during your eye

examinations, we will consider his or her opinion with respect

to your neck pain, but we will give it less weight than that of

another physician who has treated you for the neck pain. When

-44-

the treating source has reasonable knowledge of your

impairment(s), we will give the source's opinion more weight

than we would give it if it were from a nontreating source.

(3) Supportability. The more a medical source presents relevant

evidence to support an opinion, particularly medical signs and

laboratory findings, the more weight we will give that opinion.

The better an explanation a source provides for an opinion, the

more weight we will give that opinion. Furthermore, because

nonexamining sources have no examining or treating

relationship with you, the weight we will give their opinions

will depend on the degree to which they provide supporting

explanations for their opinions. We will evaluate the degree to

which these opinions consider all of the pertinent evidence in

your claim, including opinions of treating and other examining

sources.

(4) Consistency. Generally, the more consistent an opinion is

with the record as a whole, the more weight we will give to that

opinion.

(S) Specialization. We generally give more weight to the

opinion of a specialist about medical issues related to his or her

area of specialty than to the opinion of a source who is not a

specialist.

(6) Other factors. When we consider how much weight to give

to a medical opinion, we will also consider any factors you or

others bring to our attention, or of which we are aware, which

tend to support or contradict the opinion. For example, the

amount of understanding of our disability programs and their

evidentiary requirements that an acceptable medical source has,

regardless of the source of that understanding, and the extent to

which an acceptable medical source is familiar with the other

information in your case record are relevant factors that we will

consider in deciding the weight to give to a medical opinion.

-45-

(e) Medical source opinions on issues reserved to the

Commissioner. Opinions on some issues, such as the examples

that follow, are not medical opinions, as described in paragraph

(a})(2) of this section, but are, instead, opinions on issues

reserved to the Commissioner because they are administrative

findings that are dispositive of a case; i.e., that would direct the

determination or decision of disability.

(1) Opinions that you are disabled. We are responsible for

making the determination or decision about whether you meet

the statutory definition of disability. In so doing, we review all

of the medical findings and other evidence that support a

medical source’s statement that you are disabled. A statement by

a medical source that you are "disabled" or "unable to work"

does not mean that we wil] determine that you are disabled.

(2) Other opinions on issues reserved to the Commissioner. We

use medical sources, including your treating source, to provide

evidence, including opinions, on the nature and severity of your

impairment(s). Although we consider opinions from medical

sources on issues such as whether your impairment(s) meets or

equals the requirements of any impairment(s) in the Listing of

Impairments in appendix | to subpart P of part 404 of this

chapter, your residual functional capacity (see §§ 416.945 and

416.946), or the application of vocational factors, the final

responsibility for deciding these issues is reserved to the

Commissioner.

(3) We will not give any special significance to the source of an

Opinion on issues reserved to the Commissioner described in

paragraphs (e)(1) and (e)(2) of this section.

(f) Opinions of nonexamining sources. We consider all evidence

from nonexamining sources to be opinion evidence. When we

consider the opinions of nonexamining sources, we apply the

rules in paragraphs (a) through (e) of this section. In addition,

the following rules apply to State agency medical and

-46-

psychological consultants, other program physicians and

psychologists, and medical experts we consult in connection

with administrative law judge hearings and Appeals Council

review:

(1) [Effective until Aug. 1, 2006.} At the initial and

reconsideration steps in the administrative review process,

except in disability hearings, State agency medical and

psychological consultants are members of the teams that make

the determinations of disability. A State agency medical or

psychological consultant will consider the evidence in your case

record and make findings of fact about the medical issues,

including, but not limited to, the existence and severity of your

impairment(s), the existence and severity of your symptoms,

whether your impairment(s) meets or equals the requirements

for any impairment listed in Appendix | to subpart P of part 404

of this chapter, and your residual functional capacity. These

administrative findings of fact are based on the evidence in your

case record but are not themselves evidence at these steps.

(1) [Effective Aug. 1, 2006.] In claims adjudicated by the State

agency, a State agency medical or psychological consultant (or

a medical or psychological expert (as defined in § 405.5 of this

chapter) in claims adjudicated under the procedures in part 405

of this chapter) will consider the evidence in your case record

and make findings of fact about the medical issues, including,

but not limited to, the existence and severity of your

impairment(s), the existence and severity of your symptoms,

whether your impairment(s) meets or equals the requirements

for any impairment listed in appendix 1 to subpart P of part 404

of this chapter, and your residual functional capacity. These

administrative findings of fact are based on the evidence in your

case record but are not themselves evidence at these steps.

(2) Administrative law judges are responsible for reviewing the

evidence and making findings of fact and conclusions of law.

47-

They will consider opinions of State agency medical or

psychological consultants, other program physicians and

psychologists, and medical experts as follows:

(i) Administrative law judges are not bound by any findings

made by State agency medical or psychological consultants, or

other program physicians or psychologists. However, State

agency medical and psychological consultants and other

program physicians and psychologists are highly qualified

physicians and psychologists who are also experts in Social

Security disability evaluation. Therefore, administrative law

judges must consider findings of State agency medical and

psychological consultants or other program physicians or

psychologists as opinion evidence, except for the ultimate

determination about whether you are disabled. See §

416.912(b)(6).

(ii) When an administrative law judge considers findings of a

State agency medical or psychological consultant or other

program physician or psychologist, the administrative law judge

will evaluate the findings using relevant factors m paragraphs

(a) through (e) of this section, such as the physician's or

psychologist's medical specialty and expertise in our rules, the

supporting evidence in the case record, supporting explanations

provided by the physician or psychologist, and any other factors

relevant to the weighing of the opinions. Unless the treating

source's opinion is given controlling weight, the administrative

law judge must explain in the decision the weight given to the

opinions of a State agency medical or psychological consultant

or other program physician or psychologist, as_ the

administrative law judge must do for any opinions from treating

sources, nontreating sources, and other nonexamining sources

who do not work for us.

(iii) Administrative law judges may also ask for and consider

opinions from medical experts on the nature and severity of

your impairment(s) and on whether your impairment(s) equals

-48.

the requirements of any impairment listed in appendix 1 to

subpart P of part 404 of this chapter. When administrative law

judges consider these opinions, they will evaluate them using

the rules in paragraphs (a) through (e) of this section.

(3) When the Appeals Council makes a decision, it will follow

the same rules for considering opinion evidence as

administrative law judges follow.

(4) [Effective Aug. 1, 2006.] In claims adjudicated under the

procedures in part 405 of this chapter at the Fedcral reviewing

official, administrative law judge, and Decision Review Board

levels of the administrative review process, we will follow the

same rules for considering opinion evidence that administrative

law judges follow under this section.

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.