UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 01-30714
_______________________
EVELYN FRANK,
Plaintiff-Appellant,
versus
JO ANNE B. BARNHART, COMMISSIONER
OF SOCIAL SECURITY,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Eastern District of Louisiana
_________________________________________________________________
March 25, 2003
Before JONES, SMITH, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:
Appellant Frank seeks rehearing of our opinion that
affirmed the Secretary’s denial of disability benefits for her
degenerative disc disease condition. She urges that our opinion
conflicts with this court’s recent decision in Watson v. Barnhart,
288 F.3d 212 (5th Cir. 2002). Because her claim raises questions
as to the proper scope of Watson, we publish this order on
rehearing, followed by our original (unpublished) opinion.
ON PETITION FOR REHEARING
On petition for rehearing, Frank contends that in Watson,
decided a week after the issuance of the opinion in her case, this
court extended the Singletary decision1 to require that in all
disability cases the Commissioner must make a finding that a
claimant is capable of sustained employment in order to defeat a
disability claim. However, nothing in Watson suggests that the ALJ
must make a specific finding regarding the claimant’s ability to
maintain employment in every case.
Relying on Singletary2 and Wingo v. Bowen,3 and taking
account of the particular and peculiar evidence before the ALJ,
Watson required the ALJ to make a finding as to the claimant’s
ability to maintain a job for a significant period of time,
notwithstanding the exertional, as opposed to non-exertional
(e.g., mental illness) nature of the claimant’s alleged disability.
Watson requires a situation in which, by its nature, the claimant’s
physical ailment waxes and wanes in its manifestation of disabling
symptoms. For example, if Frank had alleged that her degenerative
disc disease prevented her from maintaining employment because
1
Singletary v. Bowen, 798 F.2d 818 (5th Cir. 1986).
2
Singletary echoes but did not cite changes in Social Security disability
regulations made to liberalize the criteria for disability determinations in
mental illness cases. See Pagan v. Bowen, 862 F.2d 340, 342-44 (D.C. Cir.
1988)(discussing regulatory changes). Whether the new regulations might have
affected Singletary is a matter for speculation.
3
852 F.2d 827 (5th Cir. 1988)
2
every number of weeks she lost movement in her legs, this would be
relevant to the disability determination.
At bottom, Watson holds that in order to support a
finding of disability, the claimant’s intermittently recurring
symptoms must be of sufficient frequency or severity to prevent the
claimant from holding a job for a significant period of time. An
ALJ may explore this factual predicate in connection with the
claimant’s physical diagnosis as well as in the ability-to-work
determination. Usually, the issue of whether the claimant can
maintain employment for a significant period of time will be
subsumed in the analysis regarding the claimant’s ability to obtain
employment. Nevertheless, an occasion may arise, as in Watson,
where the medical impairment, and the symptoms thereof, is of such
a nature that separate consideration of whether the claimant is
capable of maintaining employment is required.
Frank did not establish the factual predicate required by
Watson to necessitate a separate finding in this regard.
For the foregoing reasons, Frank’s petition for rehearing
is DENIED.
ORIGINAL OPINION
3
Evelyn Frank appeals the district court’s summary
judgment against her in a lawsuit challenging the Commissioner of
Social Security’s decision to deny her disability benefits. See 42
U.S.C. § 405(g) (permitting applicants for disability benefits to
bring a civil action challenging adverse administrative decisions).
Frank claims that the administrative law judge (ALJ) who decided
her application erred in three respects: (1) he failed to give
proper weight to the opinion of her treating physician, (2) he
failed to consider whether Frank could maintain employment for more
than short periods of time, and (3) he relied on improper
considerations in determining Frank’s credibility.
I
Frank contends that, in evaluating the opinion of her
treating physician, Dr. Zeringue, the ALJ did not consider each of
the six factors set out for evaluating such evidence as required by
20 C.F.R. § 404.1527(d). See Newton v. Apfel, 209 F.3d 448, 456 -
58 (5th Cir. 2000) (requiring, in the absence of competing first-
hand medical evidence, that the ALJ consider each of the §
404.1527(d) factors in evaluating the medical opinion of a treating
physician). The controversy seems to focus on a note that Dr.
Zeringue wrote by hand to the Social Security Administration. The
entire text of the note reads:
Pt. is under my medical care and has been since
February 3, ‘94. She is unable to work because of
cervical & lumbar strain/sprain & poss. intervertebral
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disc injury. Left hand and left knee abrasion/contusion.
It is unknown when the pt. will be able to return.
Frank argues that this opinion should have been evaluating using
each of the factors set out in § 404.1527(d) before being given
“little weight” by the ALJ.
Assuming arguendo that the ALJ did not consider the six
factors, he was not required to do so with respect to the doctor’s
conclusion that Frank was unable to work. The ALJ must consider
the six factors in subsection (d) only with respect to the medical
opinions of treating physicians. Subsection (d) is entitled “How
we weigh medical opinions” and explicitly applies only to “medical
opinions.” Subsection (e) of the regulation expressly explains
that some opinions by physicians are not medical opinions, and as
such have no “special significance” in the ALJ’s determination. 20
C.F.R. § 404.1527(e) & (e)(3). Among the opinions by treating
doctors that have no special significance are determinations that
an applicant is “disabled” or “unable to work.” 20 C.F.R. §
404.1527(e)(1). These determinations are legal conclusions that
the regulation describes as “reserved to the Commissioner.” The
factors set out at subsection (d) apply only to medical opinions,
not opinions “reserved to the Commissioner.” Assuming arguendo
that the ALJ did not consider the six factors in subsection (d), he
was not required to do so with respect to Dr. Zeringue’s opinion
that Frank could not work. The doctor’s opinion was not a medical
opinion within the meaning of the regulation.
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With respect to Dr. Zeringue’s medical opinion, the ALJ
did not reach any conclusions that conflicted with the doctor’s
evaluation. The ALJ specifically found that Frank suffered from,
among other impairments, “degenerative disc disease at L5; a
history of strains and sprains of the cervical and lumbar regions,
and [of the] left hand and knee . . . .” The ALJ’s findings of
fact on Frank’s medical condition therefore do not conflict with
Dr. Zerengue’s evaluation that Frank suffered from lumbar and
cervical strain and left hand and knee abrasions.
II
Frank contends that the ALJ erred in considering only
whether she could obtain her past relevant work, not whether she
could maintain such work on a sustained basis. She cites
Singletary v. Bowen, 798 F.2d 818 (5th Cir. 1986), in which we held
that a person qualifies as disabled under the act if he cannot
sustain a job for a significant period of time, even if he is
sometimes capable of working for short spurts. A person is
disabled within the meaning of the Social Security Act if he is
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.” 20
C.F.R. § 404.1527. In Singletary, the applicant suffered from a
severe mental impairment. Although he could sometimes work for
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short periods of time, he could never hold a job for long periods.
We held that working in short spurts only did not constitute
“substantial gainful activity” and that the applicant therefore
might qualify as “disabled.”
Here, nothing in the record suggests that Frank can work
only in short spurts. Even Frank herself does not contend that her
situation resembles Singletary’s: she does not allege that she can
work for short spans of time, but cannot hold a job. Instead, she
just seems to contend that she cannot work at all. We therefore do
not see how the ALJ committed any error under Singletary.
We suppose that Frank’s Singletary argument is that the
ALJ applied the wrong legal standard. Frank seems to argue that
the ALJ must in every case articulate separate and distinct
findings that the applicant can perform the incidents of a job and
that he can maintain the job over a sustained period, even if the
applicant does not contend that his situation resembles
Singletary’s. We reject this approach. Singletary simply
interpreted “disability” under the Act to apply to cases in which
a person could work for short periods, but could not hold a job.
It did not require, as Frank seems to suggest, separate findings on
“obtaining” and “maintaining” a job in every case, even cases in
which the applicant does not suggest that there is any difference
between the issue of his ability to work and his ability to sustain
work.
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III
Frank also contends that the ALJ relied on impermissible
factors in assessing her credibility. Frank claimed that she would
rather work, if she were able, than accept disability payments.
The ALJ noted that, if this statement were true, it would lend
support to her claim of disability. He decided that Frank’s
statement was not credible, however, at least in part because she
was unemployed for five years even before she was injured. He
reasoned that, if Frank really felt so strongly about wanting to
work, she would have found some employment in the five years before
she sustained injuries. Frank objects to this reasoning, arguing
that her employment status prior to her injury is simply not
relevant to the determination of her disability status.
Frank also points to language in the ALJ’s decision in
which he questions her credibility in light of the medical
evidence. The ALJ seems to draw his own medical conclusions from
some of the data, without relying on a medical expert’s help:
The undersigned finds it significant that despite
allegations of disabling impairments since October of
1993, consultative examinations . . . revealed no
evidence of atrophy. It would seem reasonable that
disabling symptoms that allegedly preclude any
significant walking, standing, sitting, lifting, and
carrying would result in observable findings of atrophy
or muscle tone loss . . . .
It would appear from this paragraph that the ALJ made his own
medical conclusions about whether a patient would show signs of
atrophy or muscle tone loss as a result of Frank’s alleged
8
impairments. The Seventh Circuit has, in several cases, warned
ALJ’s against “playing doctor” and making their own independent
medical assessments. For example, in Schmidt v. Sullivan, 914 F.2d
117, 118 (7th Cir.1990), Judge Posner warned:
But judges, including administrative law judges of the
Social Security Administration, must be careful not to
succumb to the temptation to play doctor. . . . The
medical expertise of the Social Security Administration
is reflected in regulations; it is not the birthright of
the lawyers who apply them. Common sense can mislead; lay
intuitions about medical phenomena are often wrong.
In Schmidt, a former executive claimed that he could not return to
high stress executive positions because of a heart condition. The
executive nevertheless remained physically active and played
handball for forty minutes a week. The ALJ relied heavily on this
fact in concluding that the executive was not disabled. The
Seventh Circuit rejected this reasoning, holding that the ALJ could
not substitute his medical judgment for a doctor’s. Although
common sense might dictate that a person who can play handball can
hold down a job, common sense about medical matters is often wrong.
We decline to reach the merits of either of these two
arguments, because, even if the ALJ made any error, the error would
be harmless. See Morris v. Bowen, 864 F.2d 333, 336 (5th Cir.
1988) (applying harmless error analysis in disability benefits
context). The ALJ’s twelve-page, single spaced opinion relies very
little on his assessment of Frank’s credibility. Instead, the
overwhelming factor in the decision was medical evidence from a
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variety of sources indicating that Frank could indeed hold down her
old job as a clerical worker. It is inconceivable that the ALJ
would have reached a different conclusion on this record, even had
the ALJ accepted at face value Frank’s statement that she would
prefer to work.
We therefore AFFIRM the decision of the district court
granting summary judgment in favor of the Commissioner.
AFFIRMED.
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