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regarding Bradley andOldham as "out-dated" and outlining the more stringent standards for disregarding the medical opinions of treating physicians stated in Newton
Summary of this case from Alejandro v. BarnhartOpinion
3:99-CV-946-AH
May 4, 2000
MEMORANDUM OPINION AND ORDER
Pursuant to the written consents of the parties to proceed before a United States magistrate judge and the District Court's Transfer Order filed on in accordance with the provisions of 28 U.S.C. § 636(b), came on to be considered Plaintiff complaint brought under 42 U.S.C. § 405(g) seeking judicial review of the Defendant's denial of Plaintiff's application for disability insurance benefits under Title II of the Social Security Act as amended.
Procedural History: James E. Hudson ("Plaintiff") filed an application for Title II benefits on October 13, 1993, alleging the inability to work since May 21, 1993 (Administrate Record "Tr." 17). The Plaintiff alleged he was disabled due to the sequelae of a stroke, including cognitive deficits and organic depression (Id.)
The Plaintiff's application was initially denied on August 4, 1994 (Tr. 90-93). He filed for reconsideration, which was denied on January 13, 1995 (Tr. 68). He filed a request for hearing on March 13, 1995 (Tr. 67) and the hearing was held on January 24, 1996 before Administrative Law Judge ("ALJ") Randolph D. Mason. (Tr. 31-66). The Plaintiff, Donna R. Humphries, a vocational expert, and Alvin Smith, Ph.D., a medical expert, testified at the hearing. The ALJ issued his decision denying the Plaintiff's claim on June 17, 1996. The ALJ found at step five of the sequential evaluation process that the Plaintiff had the residual functional capacity to perform medium work (Tr. 25). The Plaintiff filed a request for review with the Appeals Council which was denied on February 26, 1998 (Tr. 5-6). Therefore, the ALJ's decision became the Commissioner's final administrative decision.
Standard of Review — Social Security: In a Social Security case, the scope of judicial review is limited to a determination of whether the ALJ's decision to deny benefits is (1) supported by substantial evidence and (2) whether the proper legal standard was applied. Kinash v. Callahan, 129 F.2d 736, 738 (5th Cir. 1997) (citing Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995)).
Substantial evidence means more than a scintilla, but less than a preponderance. Haywood v. Sullivan, 888 F.2d 1463, 1466 (5th Cir. 1989). It is defined as relevant evidence that a reasonable mind would accept as sufficient to support a conclusion, Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994) (citing Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420 (1971)), cert. denied, 514 U.S. 1120, 115 S.Ct. 1984 (1995).
In determining whether substantial evidence exists, the court does not reweigh the evidence, retry the issues, or substitute its own judgment. Id. (citing Haywood, 888 F.2d at 1466); Bowling v. Shalala, 36 F.3d 431, 434 (5th Cir. 1994). Rather, this court reviews the ALJ's legal conclusions de novo and ensures that the correct legal standard was utilized by the administrative court.
The Commissioner's decision is granted great deference. Leggett v. Chafer, 67 F.3d 558, 564 (5th Cir. 1995). Accordingly, the absence of substantial evidence will be found only where there is a "conspicuous absence of credible choices" or "no contrary medical evidence." Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983). Findings of fact which are supported by substantial evidence are conclusive. Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1995).
Discussion: To prevail on a claim for disability benefits, a claimant must establish a physical or mental impairment lasting at least twelve months that prevents him from engaging in any substantial gainful activity. Cook v. Heckler, 750 F.2d 391, 393 (5th Cir. 1985) (citing 42 U.S.C. § 416(i)(1), 423(d)(1)(A)). In determining whether a claimant can engage in substantial gainful activity, the Commissioner uses a five-step sequential inquiry. Martinez, 64 F.3d at 173-74. The five steps are:
(1) whether the claimant is presently working;
(2) whether the claimant's ability to work is significantly limited by a physical or mental impairment;
(3) whether the claimant's impairment meets or equals an impairment listed in Appendix 1 to the regulations;
(4) whether the impairment prevents the claimant from doing past relevant work; and
(5) whether the claimant cannot presently perform relevant work that exists in significant numbers in the national economy.
As noted above, the ALJ's determination that Hudson was not disabled was made at the fifth step. Once a claimant shows that he has no longer capable of performing his past relevant work, 20 C.F.R. § 404.1520(e), the burden shifts to the Commissioner to show that the claimant is capable of engaging in some type of alternative work that exists in the national economy. Chaparro v. Bowen, 815 F.2d 1008, 1010 (5th Cir. 1987). If such a showing is made, the burden shifts back to the claimant to rebut the showing. Selders v. Sullivan, 914 F.2d 614, 618 (5th Cir. 1990).
In his brief, the Plaintiff alleges the ALJ's decision was made in error because: (1) the decision fails to comment on a report by the Commissioner's own consultative examiner which states that the Plaintiff may "not be able work in any capacity"; (2) the decision's statement that the Plaintiff "is not able to interact appropriately with co-workers and supervisors and concentrate on and attend to work tasks on a sustained basis" is in contravention with the language of Social Security Ruling 85-15; and (3) the decision applies outdated caselaw to avoid affording proper weight to reports of treating physicians. Specifically, the Plaintiff asserts that the ALJ applied outdated caselaw and failed to give the proper weight to the reports of two treating physicians, Dr. James L. Thomason and Dr. Carolyn Veit-Contos.
The third claim asserted by Hudson substantively addresses the second prong of the court's authority to review an adverse Social Security determination, to wit: whether the proper legal standard was applied. His first claim that the report of the Commissioner's own consultative examiner was disregarded is essentially collateral to the third claim.
In his decision, the ALJ cited to two Fifth Circuit opinions, Bradley v. Bowen, 809 F.2d 1054 (5th Cir. 1987) and Oldham v. Schweiker, 660 F.2d 1078 (5th Cir. 1981), to support his decision to give Dr. Smith's opinion greater weight than to that of Dr. Thomason. (Tr. 21). The standard articulated in those decisions was
. . . that, although the opinion of an examining physician is generally entitled to more weight than the opinion of a non-examining physician, the ALJ is free to reject the opinion of any physician when the evidence supports a contrary conclusion.Bradley, 809 F.2d at 1057 (quoting Oldham, 660 F.2d at 1084). Prior to the date of the ALJ's decision on June 17, 1996, the standard for assessing the weight to be given to a treating doctor's opinion had changed:
Although not conclusive, an evaluation by the claimant's treating physician should be accorded great weight. Greenspan v. Shalala, 238 F.3d 232, 237 (5th Cir. 1994), cert. denied, ___ U.S. ___ 115 S.Ct. 1984, 131 L.Ed.2d 871 (1995). A treating physician's opinion on the nature and severity of a patient's impairment will be given controlling weight if it is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with . . . other substantial evidence." 20 C.F.R. § 404.1527(d)(2).Martinez v. Chater, 64 F.3d 172, 176 (5th Cir. 1995).
The decision of the ALJ in this case, which was affirmed by the Appeals Council, is at best problematic where, as here, (1) the ALJ's decision explicitly relied on case law which had been substantially altered by subsequent decisions; (2) the decision failed to address the Commissioner's own examining consultant's opinion — that of Dr. Eugene Bonham, M.D. — which expressed views consistent with those expressed by Hudson's treating doctors; and (3) where the ALJ relied on the opinions of non-examining clinical psychologist, Alvin Smith, Ph.D., in finding that Hudson's cognitive defects were not severe.
The Commissioner's decision becomes indefensible in the face of the Fifth Circuit's recent opinion in Newton v. Apfel, ___ F.3d ___, 2000 WL 364867 (5th Cir. 2000). In Newton, the court held that an ALJ may reject the opinion of the treating physician only if the ALJ performs a detailed analysis of the treating physician's views under the criteria set forth in 20 C.F.R. § 404.1527(d)(2). 2000 WL 364867 at *3 and *6. It is readily apparent from a review of the ALJ's decision in this case that he neither addressed these factors expressly or in substance. The decision in Hudson's case is likewise defective by reason of the ALJ's failure to obtain supplemental information in accordance with SSR96-2p and 20 C.F.R. § 404.1512(e). Id. at *7-8 Finally, the Fifth Circuit held in Newton that the ALJ's reliance on a non-treating, non-examining physician's opinion did not constitute substantial evidence to support the conclusion that the claimant had the residual capacity to perform sedentary work. A fortiori, the ALJ's reliance on the opinion of Alvin Smith, who is not a medical doctor, and who only reviewed medical records in evidence does not constitute substantial evidence to support a finding of no disability.
Although the ALJ's failure to request additional evidence is not grounds for reversal absent prejudice, Ripley v. Chater, 67 F.3d 552, 557 (5th Cir. 1995), where Dr. Bonham, the examining consultative physician, expressed views consistent with Hudson's treating doctors, the ALJ should have inquired further to obtain additional information which might have led to a different decision. Id. at n. 22.
CONCLUSION
The Commissioner's decision relied on an out-dated standard for assessing the weight to be given to the opinion's of Plaintiff's treating physicians and therefore erred in rejecting these opinions without addressing the factors set out in 20 C.F.R. § 404.1527(d)(2). The ALJ also erred in failing to request additional information from either Plaintiff's treating doctors or from the Commissioner's consulting examining physician.
It is therefore ORDERED that Plaintiff's application for disability benefits under Title II of the Social Security Act as amended is hereby REMANDED to the Commissioner for further review consistent with the court's opinion set out above.