Myers v. Apfel

UNITED STATES COURT OF APPEALS
For the Fifth Circuit

No. 99-31403

CINDY T. MYERS,

Plaintiff-Appellant,

VERSUS

KENNETH S. APFEL, COMMISSIONER OF SOCIAL SECURITY

Defendant-Appellee.

Appeal from the United States District Court
For the Western District of Louisiana
January 11, 2001

Before REYNALDO G. GARZA, STEWART, and DENNIS, Circuit Judges.

PER CURIAM:

Cindy Myers filed an application for disability benefits under

Title II of the Social Security Act, 42 U.S.C. §§ 401-403. After

a hearing, an ALJ denied her claim, and the district court

subsequently affirmed the decision. For the following reasons, we

reverse the decision of the district court and remand for further

proceedings consistent with this opinion.

I. Facts and Procedure

1
 Cindy Myers worked as a stagehand when she injured her back in

January of 1986. Prior to that job, she had worked as a clerk and

as a secretary. She was treated by Dr. Mark Hontas, an orthopedic

professor, for back pain; he diagnosed back strain and recommended

physical therapy. Myers’s back pain increased after she was in a

car accident in September of 1986. In 1988, Dr. Ray Haddad,

chairman of orthopedic surgery at Tulane Medical Center Hospital

and Clinic, treated Myers and diagnosed L5-S1 radiculopathy (a

disease of the nerve roots in the back) and lytic lesion in the

left hip. He recommended that she lose weight, and if the pain did

not subside, he recommended surgery, which Myers refused. A

February 1988 MRI revealed a ruptured disc, and Dr. Haddad again

suggested surgery.

On September 28, 1988, Dr. Frank Kriz, an orthopedist,

diagnosed low back strain and a bulging, but not ruptured, disc.

He discharged Myers on December 6, 1988, giving her a five-percent

disability rate and recommending that she see a psychiatrist, from

whom she received antidepressants. Myers worked as a receptionist

for three-month intervals in 1989 and 1990. On June 30, 1990,

Myers, then thirty-three years old, was last insured for disability

benefits.

In February of 1993, following another car accident, Myers saw

Dr. William Johnston, and a second MRI showed degenerative disc

disease. Dr. Johnston diagnosed chronic pain syndrome and referred

Myers to a physical medicine specialist, who diagnosed sacroiliac

2
dysfunction (an unlevel pelvis from overstretched ligaments). In

1994, Myers was treated by Dr. Vanda Davidson, an orthopedist.

Using the results from Drs. Hontas, Haddad, and Johnston, Dr.

Davidson concluded Myers could lift ten pounds occasionally, lift

one pound frequently, stand two hours out of the day for ten

minutes at a time, and sit four hours out of the day for thirty

minutes at a time. Her ability to reach and to push and pull would

be affected.

Myers filed an application for disability benefits on May 26,

1994. After she was denied benefits, she was granted a hearing

before an ALJ. Dr. Rufus Craig, an internist, was called as a

medical expert (ME) by the ALJ. Without examining Myers and based

only on a review of her medical records, Dr. Craig testified that

Myers could not squat, stoop, or bend, but could sit six hours of

eight, stand and walk two hours of eight, and occasionally lift ten

pounds. Her “emotional overlay” would also limit her work. A

vocational expert (VE) also testified. The VE said there were no

jobs for claimants Myers’s age with her education and experience

who could sit for up to six hours a day, stand and walk for two

hours, lift up to ten pounds, but who could not squat, stoop, bend,

or kneel. However, he believed that a claimant who could not squat

or crawl but who could stoop and bend in limited amounts and

occasionally kneel could perform sedentary work. Responding to a

hypothetical in which a person could sit for only thirty minutes at

a time, the VE testified that jobs would be very limited, and when

3
asked about a person who could stand for only ten minutes at a time

and who could sit for only thirty minutes at a time (i.e., Dr.

Davidson’s conclusion about Myers), he said there would be no jobs

at all. Finally, Myers testified that she had lower back pain and

numbness and that sitting was painful.

The ALJ found that Myers was not disabled and that although

she was unable to return to her prior work on June 30, 1990 (the

date when her insured status expired), she could make an adjustment

to sedentary work. He concluded that Myers had a severe

impairment, but that she could perform some sedentary work. The

ALJ focused on the following evidence: Myers had mild scoliosis and

no objective evidence of pain in 1986; x-rays looked normal, but

then a lesion was discovered in 1987; there was possible evidence

of a sequestrated disc in 1988, but Myers refused surgery;1 she can

cook, shower, do household chores, watch television, and shop;

records from Dr. Kriz showed maximum improvement; and Dr. Johnston

only noted a minimal bulge and no evidence of cord or root

compression. Using the VE’s testimony regarding a claimant who

could not squat or crawl, could sometimes kneel, could occasionally

crawl, and would need to stretch every half-hour, the ALJ concluded

a significant number of jobs did exist which Myers could hold.

Myers filed suit in the district court, but the court

1
Myers testified that she finally agreed to have surgery, but was
unable to undergo the procedure because she and her husband moved
out of state.

4
affirmed, finding that the VE and ME’s testimony as well as

Myers’s own testimony were substantial evidence to support the

decision of the ALJ.

II. Standard of review

“We review the Secretary’s decision only to determine whether

it is supported by substantial evidence on the record as a whole

and whether the Secretary applied the proper legal standard.”

Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994) (citing 42

U.S.C. §§ 405(g), 1383(c)(3)). “Substantial evidence is ‘such

relevant evidence as a reasonable mind might accept as adequate to

support a conclusion.’” Id. (citing Richardson v. Perales, 402

U.S. 389, 401 (1971)) (in turn citing Consolidated Edison Co. v.

NLRB, 305 U.S. 197, 229 (1938)). “In applying the substantial

evidence standard, we scrutinize the record to determine whether

such evidence is present. We may not reweigh the evidence, try the

issues de novo, or substitute our judgment for that of the

Secretary.” Id. (citing Haywood v. Sullivan, 888 F.2d 1463, 1466

(5th Cir. 1989)).

III. Discussion

To determine disability, the Commissioner uses a five-step

analysis:

The first two steps involve threshold determinations that
the claimant is not presently engaged in substantial
gainful activity and has an impairment or combination of
impairments which significantly limits his physical or
mental ability to do basic work activities. In the third
step, the medical evidence of the claimant’s
impairment(s) is compared to a list of impairments

5
 presumed severe enough to preclude any gainful activity.
If the claimant’s impairment matches or is equal to one
of the listed impairments, he qualifies for benefits
without further inquiry. If the person cannot qualify
under the listings, the evaluation proceeds to the fourth
and fifth steps. At these steps, analysis is made of
whether the person can do his own past work or any other
work that exists in the national economy, in view of his
age, education and work experience. If he cannot do his
past work or other work, the claimant qualifies for
benefits.

Loza v. Apfel, 219 F.3d 378, 390 (5th Cir. 2000) (internal citations

omitted). The claimant bears the burden of proof on the first four

steps, but the Commissioner bears the burden on the fifth step.

Greenspan, 38 F.3d at 236 (citing Bowen v. Yuckert, 482 U.S. 137,

146 n.5 (1987)). The Commissioner found Myers not disabled based

on the fifth step because she could adjust to sedentary work.

Myers argues on appeal that the ALJ failed to address the specific

strength requirements of this work.

The Social Security Administration’s rulings are not binding

on this court, but they may be consulted when the statute at issue

provides little guidance. B.B. ex. rel. A.L.B. v. Schweiker, 643

F.2d 1069, 1071 (5th Cir. 1981). The Fifth Circuit has frequently

relied upon the rulings in evaluating ALJs’ decisions. See Newton

v. Apfel, 209 F.3d 448, 456 (5th Cir. 2000)(relying on SSR 96-2p);

Scott v. Shalala, 30 F.3d 33, 34 (5th Cir. 1994)(relying on SSR 83-

12); Spellman v. Shalala, 1 F.3d 357, 362 (5th Cir. 1993)(relying

on SSR 83-20).

The following rulings are relevant to this dispute. First,

SSR 96-8p provides that a residual functional capacity (RFC) “is an

6
assessment of an individual’s ability to do sustained work-related

physical and mental activities in a work setting on a regular and

continuing basis.” 1996 WL 374184, *1 (S.S.A. 1996). “A ‘regular

and continuing basis’ means 8 hours a day, for 5 days a week, or an

equivalent work schedule.” Id. at *2. “The RFC assessment is a

function-by-function assessment based upon all of the relevant

evidence of an individual’s ability to do work-related activities.”

Id. at *3. “However, without the initial function-by-function

assessment of the individual’s physical and mental capacities, it

may not be possible to determine whether the individual is able to

do past relevant work . . . .” Id. RFC involves both exertional

and nonexertional factors. Exertional capacity involves seven

strength demands: sitting, standing, walking, lifting, carrying,

pushing, and pulling. Id. at *5. “Each function must be

considered separately.” Id. “In assessing RFC, the adjudicator

must discuss the individual’s ability to perform sustained work

activities in an ordinary work setting on a regular and continuing

basis . . . .” Id. at *7. The RFC assessment must include a

resolution of any inconsistencies in the evidence. Id.

Second, SSR 96-9p also provides that

[i]nitially, the RFC assessment is a function-by-function
assessment based upon all of the relevant evidence of an
individual’s ability to perform work-related activities.
. . . The impact of an RFC for less than a full range of
sedentary work is especially critical for individuals who
have not yet attained age 50. Since age, education, and
work experience are not usually significant factors in
limiting the ability of individuals under age 50 to make
an adjustment to other work, the conclusion whether such

7
 individuals who are limited to less than the full range
of sedentary work are disabled will depend primarily on
the nature and extent of their functional limitations or
restrictions.

1996 WL 374185, *2 (S.S.A. 1996). SSR 96-9p also defines

exertional capacity as the aforementioned seven strength demands

and requires that the individual’s capacity to do them on a regular

continuing basis be stated.2 Id. at *5.

The ALJ erred in failing to address the concerns of Social

Security Rulings 96-8p and 96-9p in determining Myers’s Residual

Functional Capacity, specifically her ability to perform all of the

strength demands of sedentary work. He found that she could sit,

lift, and carry ten pounds; would need a sit/stand option; and

would need to stretch every thirty minutes. The ALJ failed,

however, to fully address standing, walking, and pushing/pulling.

The ALJ also failed to set out whether Myers could perform these

demands on a regular and continuing basis. Perhaps most

importantly, the ALJ failed to resolve the inconsistencies in the

evidence. He relied on the opinion of the ME, Dr. Craig, who did

2
We have not found a case in which the Fifth Circuit has
explicitly applied these rulings; however, other circuits have
specifically addressed SSR 96-8p. In Bladow v. Apfel, 205 F.3d
356, 360 (8th Cir. 2000), the court remanded in light of SSR 96-8p’s
requirement of stating the individual’s capacity to perform the
strength demands on a “regular and continuing” basis because the
ALJ had failed to follow the ruling. In Ross v. Apfel, 218 F.3d
844, 849 (8th Cir. 2000), the court again remanded relying on SSR
96-8p. (“The ability to perform sporadic light activities does not
mean that the claimant is able to perform full time competitive
work.”). The Ninth Circuit, in an unpublished opinion, also has
remanded in light of this ruling. Lanclos v. Apfel, 2000 WL
1054893, *3 n.3 (9th Cir. 2000).

8
not examine or treat Myers, but based his conclusion that she met

the requirements for sedentary work on an incomplete reading of the

treating physicians’ reports. However, the medical evidence as a

whole indicates that Myers cannot meet the requirements. For

example, Dr. Haddad diagnosed a ruptured disc, Dr. Johnston

diagnosed degenerative disc disease, and Dr. Davidson put stricter

restrictions on Myers’s capacity.

Also, we do not find that substantial evidence supports the

ALJ’s decision. Myers presented evidence from six different

doctors who all diagnosed some kind of back problem, whether it be

degenerative disc disease or a ruptured disc. The ALJ appeared to

rely solely on Dr. Craig, his own expert, an internist who based

his opinion on an imperfect analysis of the reports of the treating

physicians. Furthermore, the ALJ failed to consider the evidence

carefully. For example, the ALJ cited the fact that Myers was told

to lose weight to alleviate pain; however, her doctor also advised

her that losing weight would not correct her disc problem, and he

consistently recommended surgery.

Finally, “[w]e have long held that ‘ordinarily the opinions,

diagnoses, and medical evidence of a treating physician who is

familiar with the claimant’s injuries, treatments, and responses

should be accorded considerable weight in determining disability.’”

Greenspan, 38 F.3d at 237 (internal citations omitted). See also

Loza, 219 F.3d at 395. These opinions are not conclusive, and the

ALJ must decide the claimant’s status. Greenspan, 38 F.3d at 237.

9
“Accordingly, when good cause is shown, less weight, little weight,

or even no weight may be given to the physician’s testimony. The

good cause exceptions we have recognized include disregarding

statements that are brief and conclusory, not supported by

medically acceptable clinical laboratory diagnostic techniques, or

otherwise unsupported by the evidence.” Id.; see also Leggett v.

Chater, 67 F.3d 558, 566 (5th Cir. 1995) (rejecting an “isolated,

conclusory statement” of a treating physician when considered in

conjunction with other opinions, objective medical evidence, and

claimant’s own testimony).

Not only did the ALJ fail to take into consideration all of

the evidence from the treating doctors, but he also failed to

present good cause as to why he should reject it. An ALJ must

consider the following factors before declining to give any weight

to the opinions of a treating doctor: length of treatment,

frequency of examination, nature and extent of relationship,

support provided by other evidence, consistency of opinion with

record, and specialization. Newton, 209 F.3d at 456. When

presenting hypotheticals to the VE, the ALJ used the ME’s

testimony, based only on an incomplete restatement of the treating

physicians’ reports, as a basis for his conclusion that Myers could

sit for six hours. The ALJ never presented good cause as to why he

rejected Dr. Davidson’s opinion that Myers could sit for only four

hours, and he never professed to having weighed the evidence and

credibility of the conflicting evidence. The ALJ failed to accord

10
considerable weight to the treating physicians’ opinions,

diagnoses, and medical evidence, without subjecting them to the

above analysis or showing good cause for not giving them

considerable weight. “[T]his is a case where the ALJ summarily

rejected the opinions of [Myers’s] treating physician, based only

on the testimony of a non-specialty medical expert who had not

examined the claimant.” Newton, 209 F.3d at 458.

IV. Conclusion

Accordingly, we remand for consideration in light of the

foregoing.

REVERSED AND REMANDED.

11