IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
________________
No. 98-11172
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GLORIA D. NEWTON,
Plaintiff-Appellant,
versus
KENNETH S. APFEL, COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
________________
Appeal from the United States District Court for the
Northern District of Texas
________________
April 25, 2000
Before HIGGINBOTHAM and PARKER, Circuit Judges, and ATLAS, District Judge1
ATLAS, District Judge:
Plaintiff, Gloria D. Newton, filed a civil action under Section 205(g) of the Social
Security Act, 42 U.S.C. § 405(g), to obtain judicial review of the final decision of the
Commissioner of the Social Security Administration (“Commissioner”) denying Newton’s
claim for disability insurance benefits under Title II of the Social Security Act. The district
court affirmed the decision of the Commissioner, and Newton appealed. This court has
jurisdiction pursuant to 28 U.S.C. § 1291.
Because the Administrative Law Judge (“ALJ”) failed to give sufficient weight to the
opinion of Newton’s treating physician without requesting additional information, erred in
1
District Judge of the Southern District of Texas, sitting by designation.
relying exclusively on the medical-vocational guidelines, and improperly failed to consider
Newton’s ongoing treatment when assessing Newton’s ability to work, we reverse and
remand for additional consideration by the ALJ consistent with this opinion.
I. FACTUAL AND ADMINISTRATIVE BACKGROUND
Newton applied for disability insurance benefits on December 15, 1992, alleging
disability as the result of systemic lupus erythematosus (“SLE”). Newton subsequently
amended her claim to allege entitlement to a closed period of disability insurance benefits
beginning May 2, 1989 and ending September 12, 1994. Newton requested a hearing before
an ALJ, and ALJ Rebecca Westfall held a hearing February 13, 1995 in Fort Worth, Texas.
Newton was represented by counsel.
On September 15, 1995, the ALJ ruled that Newton was not disabled according to the
Medical-Vocational Guidelines2 because she had the residual functional capacity to perform
work not exceeding the sedentary level of exertion. The Appeals Council denied Newton’s
request for review of her case on May 9, 1997, leaving the ALJ’s decision to stand as the
final decision of the Commissioner.
Newton worked through May 1, 1989, when she stopped working because chest pain
and swelling in her feet and knees made it too painful to stand. Newton returned to part-time
employment as a silk-screener on September 12, 1994, working 25-30 hours a week.
The medical evidence in the record dated back to September 1989 and established
without contradiction that Newton suffered from SLE since 1989. Her condition was
2
See 20 C.F.R. Part 404, Subpart P, App. 2.
2
identified by her treating physician, Raymond M. Pertusi, D.O., a rheumatologist. In
summary, the ALJ found that Newton intermittently experienced swollen and painful joints,
pleuritic chest pain, fevers, fatigue, a rash, and kidney or urinary problems. Pertusi had
prescribed a regimen of Prednisone, Plaquenil and other medications to control the SLE and
associated symptomatology. During the period of claimed disability, Newton’s condition
required emergency room treatment on no fewer than nine occasions, and Newton was
admitted to the hospital for treatment on at least four occasions. Newton was examined and
treated by Pertusi frequently throughout the period.
Pertusi continued to see Newton after she returned to part-time work in September
1994. On February 1, 1995, Newton complained of bilateral hip and leg pain and pain across
her shoulders. She reported at that time taking 6-7 Advil before going to work. She had mild
swelling in her right hand. Pertusi again diagnosed SLE and possible Sjogrens’ syndrome.
He prescribed Daypro for her pain and advised that she stop taking Advil.
On April 5, 1995, Newton reported being ill with the shakes and chills, pain in the
right eye and nose, and chest pain when she inhaled. Pertusi diagnosed sinusitis, otitis
media, and other ear problems. Based on Newton’s statement that the Daypro upset her
stomach, Pertusi discontinued that prescription.
On July 24 and 28, 1996, in connection with Newton’s application for food stamps
from the Texas Department of Human Services, a physician, Dr. Carrera, completed a
disability statement and certified that Newton was disabled by SLE and could not work.
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II. APPLICABLE LEGAL STANDARDS
A. Judicial Review
The federal courts review the Commissioner’s denial of social security benefits only
to ascertain whether (1) the final decision is supported by substantial evidence and (2)
whether the Commissioner used the proper legal standards to evaluate the evidence. See
Brown v. Apfel, 192 F.3d 492, 496 (5th Cir. 1999); Martinez v. Chater, 64 F.3d 172, 173
(5th Cir. 1995). If the Commissioner’s findings are supported by substantial evidence, they
must be affirmed. Martinez, 64 F.3d at 173. “Substantial evidence is such relevant evidence
as a reasonable mind might accept to support a conclusion. It is more than a mere scintilla
and less than a preponderance.” Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995) (internal
quotations omitted); see also Fraga v. Bowen, 810 F.2d 1296, 1302 (5th Cir. 1987). The
court does not reweigh the evidence in the record, try the issues de novo, or substitute its
judgment for the Commissioner’s, even if the evidence weighs against the Commissioner’s
decision. See Brown, 192 F.3d at 496. “Conflicts in the evidence are for the [Commissioner]
and not the courts to resolve.” Id. (quoting Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir.
1990)).
B. Standard for Entitlement to Social Security Benefits
The claimant has the burden of proving she has a medically determinable physical or
mental impairment lasting at least twelve months that prevents her from engaging in
substantial gainful activity. See 42 U.S.C. § 423(d)(1)(A). Substantial gainful activity is
defined as work activity involving significant physical or mental abilities for pay or profit.
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20 C.F.R. § 404.1572(a) and (b). The ALJ uses a five-step sequential process to evaluate
claims of disability and decides whether: (1) the claimant is not working in substantial
gainful activity; (2) the claimant has a severe impairment; (3) the claimant’s impairment
meets or equals a listed impairment in Appendix 1 of the Regulations; (4) the impairment
prevents the claimant from doing past relevant work; and (5) the impairment prevents the
claimant from doing any other work. 20 C.F.R. § 404.1520.
The claimant bears the burden of proof on the first four steps and the burden shifts
to the Commissioner for the fifth step. Thus, the claimant must show first that she is no
longer capable of performing her past relevant work. 20 C.F.R. § 404.1520(e). If the
claimant satisfies this burden, then the Commissioner must show that the claimant is capable
of engaging in some type of alternative work that exists in the national economy. See
Chaparro v. Bowen, 815 F.2d 1008, 1010 (5th Cir. 1987). Once the Commissioner makes
this showing, the burden of proof shifts back to the claimant to rebut this finding. Id.
III. DISCUSSION
In her appeal from the final decision of the Commissioner and on appeal before this
court, Newton argues that the ALJ failed to give proper weight to the opinion of Newton’s
treating physician, erroneously relied on the medical-vocational guidelines, and improperly
failed to consider Newton’s ongoing medical treatment when assessing her ability to work.
Newton also argues that the Appeals Council failed to consider new evidence presented on
appeal.
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A. Consideration of Treating Physician’s Opinion
Newton argues that the ALJ erred as a matter of law by failing to give proper weight
to the opinion of her treating physician. Specifically, Newton argues that the ALJ failed to
comply explicitly with applicable Social Security Administration (“SSA”) regulations for
evaluating a treating physician’s opinion.
The Court concludes that, absent reliable medical evidence from a treating or
examining physician controverting the claimant’s treating specialist, an ALJ may reject the
opinion of the treating physician only if the ALJ performs a detailed analysis of the treating
physician’s views under the criteria set forth in 20 C.F.R. § 404.1527(d)(2). Additionally,
if the ALJ determines that the treating physician’s records are inconclusive or otherwise
inadequate to receive controlling weight, absent other medical opinion evidence based on
personal examination or treatment of the claimant, the ALJ must seek clarification or
additional evidence from the treating physician in accordance with 20 C.F.R. § 404.1512(e).
1. Medical Opinions Presented to ALJ
Newton’s treating physician, Dr. Pertusi, is an Assistant Professor of Medicine and
Rheumatology at the Texas College of Osteopathic Medicine. Pertusi submitted an
assessment, dated January 30, 1995, stating that Newton could occasionally lift up to ten
pounds; stand or walk less than two hours per regular work day; sit continuously for thirty
minutes at a time, for a total of two hours out of an eight-hour work day; and stand, walk and
sit for a combined total of three hours out of an eight-hour work day. Pertusi also found
Newton was able to reach and handle items and occasionally balance, stoop, kneel, crouch,
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crawl, reach or drive, but she could not climb or perform repetitive operations of foot
controls. Pertusi also stated that Newton should avoid temperature extremes. Pertusi
asserted that Newton had been under these restrictions since December 1989 through the date
of his assessment. Pertusi based his assessment on diagnoses of SLE, polyarthritis, fatigue
and anemia. He stated that Newton suffered from impairments that could reasonably be
expected to produce pain or other symptoms.
Pertusi also responded to interrogatories from Newton’s attorney. In the responses,
Pertusi asserted that the diagnosis of SLE was supported by documented episodes of fatigue,
fever, pleuritic chest pain and cognitive changes; findings of synovitis, polyarthritis, and a
malar rash; and laboratory results consistent with lupus. He noted that the clinical records
showed at least three months of active disease despite prescribed treatment, and further noted
that the disease had remained active or was expected to remain active for at least 12 months.
He indicated that Newton had exhibited symptoms of severe fatigue, fever, malaise, and
weight loss. In addition, her lupus resulted in the moderate involvement of her joints; mild
involvement of the muscles in the form of myalgias; moderate to marked pleuritic chest pain;
mild renal involvement in the form of persistent proteinuria; mild skin involvement because
of a recurring malar rash; and mild or subtle decline in cognitive function. He stated that the
degree of fatigue that could reasonably be expected to result from SLE would prevent
Newton from performing sustained work activities, even of a sedentary nature.
Medical expert Otto Willbanks also testified before the ALJ. Willbanks noted that
Newton’s SLE was well established and was documented in the record. Based on his review
of the medical records, Willbanks stated that Newton experienced intermittent joint and
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muscle pain, intermittent chest pain, and a rash characteristic of SLE. He observed that there
was some interference with kidney function as well, but he could not determine the extent.
Willbanks testified that the record did not contain sufficient information regarding the
degree of severity of any of the complicating factors, although he noted that many of
Newton’s problems were denoted as mild at various points in the record. He testified that
the record did not indicate that Newton’s lupus (or the related complications) met the criteria
for any listed impairment. Willbanks stated that Pertusi’s office notes failed to document the
frequency of Newton’s lupus flare ups and the extent or degree of severity of her symptoms.
Willbanks observed that the record showed Newton suffered from relapses of arthralgias,
possibly arthritis, and swelling, but that he saw no records indicating that Newton’s condition
was, at any time, totally non-responsive to medication.
Willbanks reviewed Pertusi’s interrogatory responses. He criticized Pertusi for listing
the complications that occurred from time to time without providing the frequency, degree,
or manner they interfered with Newton’s activities. Willbanks testified that he did not see
medical evidence to suggest that Newton’s flare ups would prevent her from performing a
job that involved sitting six to eight hours a day, but admitted that he also saw no evidence
that she could perform such a job.
2. The ALJ’s Decision
The ALJ found that Newton had not engaged in substantial gainful activity between
May 1, 1989 and September 12, 1994, the period of claimed disability (first step of the five-
step process). The ALJ also found that Newton suffered from SLE, a “severe” impairment
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(second step), but that Newton’s impairment did not meet or equal the severity of any listed
impairment for which she would be found presumptively disabled (the third step).
The ALJ then addressed whether Newton retained the residual functional capacity to
perform either her past relevant work (fourth step) or some lesser level of work activity (fifth
step). The ALJ rejected Newton’s testimony regarding her pain and functional limitations.
The ALJ found that Newton retained the residual functional capacity to perform the
exertional requirements of a full range of sedentary work, which precluded her from
performing her past relevant work. The ALJ considered Newton’s relatively young age, high
school education, and past work experience. The ALJ applied the Medical-Vocational
Guidelines without a vocational expert and entered a finding that Newton was not under a
disability at any time through the date of her decision.
The ALJ’s decision must stand or fall with the reasons set forth in the ALJ’s decision,
as adopted by the Appeals Council. See Knipe v. Heckler, 755 F.2d 141, 149 n.16 (10th Cir.
1985) (citing Dong Sik Kwon v. INS, 646 F.2d 909, 916 (5th Cir.1981) (en banc)).
3. ALJ’s Failure to Give Treating Physician’s Opinions Proper Weight
The ALJ correctly placed the burden on Newton at the fourth step of the five-step
process. It appears, however, that the ALJ did not properly place the burden on the
Commissioner at the fifth step. The ALJ stated that Pertusi’s opinions regarding the
claimant’s residual functional capacity, specifically his opinion that Newton could not
perform even sedentary work during the period of claimed disability, were not entitled to
“great weight.” In actuality, the ALJ gave Pertusi’s opinions no weight. The ALJ found
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Pertusi’s opinion regarding residual functional capacity was not reliable because it was
insufficiently substantiated by clinical or diagnostic evidence, and thus was conclusory. The
ALJ also faulted Pertusi for failing to include work restrictions for Newton in his medical
notes and contemporaneous records during the 1989-1994 period, finding that this omission
undermined Pertusi’s credibility as to his assessment of claimant’s residual functional
capacity. The ALJ also rejected Pertusi’s opinions because of the inconsistency between
Pertusi’s January 30, 1995 opinion that Newton was totally disabled and the fact that at the
time of Pertusi’s opinion Newton was working 25-35 hours per week.3
Requirements for Giving Weight to Treating Physicians’ Opinions. -- The
opinion of the treating physician who is familiar with the claimant’s impairments, treatments
and responses, should be accorded great weight in determining disability. See Leggett v.
Chater, 67 F.3d 558, 566 (5th Cir. 1995); Greenspan v. Shalala, 38 F.3d 232, 237 (5th Cir.
1994), cert. denied, 514 U.S. 1120 (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.” Martinez, 64 F.3d at 176 (citing 20 C.F.R.
3
To the extent the ALJ relied on Newton’s late 1994 through January 1995 part-time work as
support for the finding that Newton had the residual functional capacity to perform sedentary
work during prior periods, the finding is not supported by substantial evidence in the record.
Newton’s ability to work part-time after the claimed disability period, and only if medicated
for pain, is not evidence of Newton’s ability to work from May 1989 to September 1994.
Additionally, Newton’s sincere desire to work, and her efforts to do so on a part-time basis,
should not be perverted into evidence that she could have worked during the preceding four
years.
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§ 404.1527(d)(2)). “The opinion of a specialist generally is accorded greater weight than that
of a non-specialist.” Paul v. Shalala, 29 F.3d 208, 211 (5th Cir. 1994).
Even though the opinion and diagnosis of a treating physician should be afforded
considerable weight in determining disability, “the ALJ has sole responsibility for
determining a claimant’s disability status.” Id. “‘[T]he ALJ is free to reject the opinion of
any physician when the evidence supports a contrary conclusion.’” Id. The treating
physician’s opinions are not conclusive. See Brown, 192 F.3d at 500. The opinions may be
assigned little or no weight when good cause is shown. Greenspan, 38 F.3d at 237. Good
cause may permit an ALJ to discount the weight of a treating physician relative to other
experts where the treating physician’s evidence is conclusory, is unsupported by medically
acceptable clinical, laboratory, or diagnostic techniques, or is otherwise unsupported by the
evidence. See, e.g., Brown, 192 F.3d at 500; Greenspan, 39 F.3d at 237; Paul, 29 F.3d at
211.
Factors to be Considered Before Declining to Give Treating Physicians’
Opinions Controlling Weight. -- SSA Regulations provide that the SSA “will always give
good reasons in [its] notice of determination or decision for the weight [it gives the
claimant’s] treating source’s opinion” and list factors an ALJ must consider to assess the
weight to be given to the opinion of a treating physician when the ALJ determines that it is
not entitled to “controlling weight.” See 20 C.F.R. § 404.1527(d)(2). Specifically, this
regulation requires consideration of:
(1) the physician’s length of treatment of the claimant,
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(2) the physician’s frequency of examination,
(3) the nature and extent of the treatment relationship,
(4) the support of the physician’s opinion afforded by the medical evidence of
record,
(5) the consistency of the opinion with the record as a whole; and
(6) the specialization of the treating physician.
The regulation is construed in Social Security Ruling (“SSR”) 96-2p, which states:
[A] finding that a treating source medical opinion is not well supported by
medically acceptable clinical and laboratory diagnostic techniques or is
inconsistent with the other substantial evidence in the case record means only
that the opinion is not entitled to “controlling weight,” not that the opinion
should be rejected. Treating source medical opinions are still entitled to
deference and must be weighed using all of the factors provided in 20 C.F.R.
404.1527 and 416.927. 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.
SSR 96-2p, 61 F.R. 34490, 34491 (July 2, 1996) (emphasis added). SSR 96-5p provides,
with respect to “Residual Functional Capacity Assessments and Medical Source Statements,”
that “Adjudicators must weigh medical source statements under the rules set out in 20 C.F.R.
404.1527 . . . , providing appropriate explanations for accepting or rejecting such opinions.”
SSR 96-5p, 61 F.R. 34471, 34474 (July 2, 1996).
Several federal courts have concluded that an ALJ is required to consider each of the
§ 404.1527(d) factors when the ALJ intends to reject or give little weight to a treating
specialist’s opinion. See 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 (10th
Cir. 1995); Dwyer v. Apfel, 23 F. Supp. 2d 223, 228 (N.D.N.Y. 1998); Amidon v. Apfel, 3
12
F. Supp. 2d 350, 355-56 (W.D.N.Y. 1998); McDonald v. Apfel, No. CA 3-97-CV-2035R,
1998 WL 159938, *8 (N.D. Tex. Mar. 31, 1998). This court now similarly holds that an ALJ
is required to consider each of the § 404.1527(d) factors before declining to give any weight
to the opinions of the claimant’s treating specialist. The ALJ failed to perform this analysis,
which should be conducted on remand.
ALJ’s Improper Reliance on Non-Treating, Non-Examining Physician. --
The ALJ expressly relied for her findings on the testimony of the medical expert,
Willbanks, and her own disbelief of portions of Newton’s own testimony. There is no
indication that Willbanks had any training in rheumatology. Willbanks, who did not examine
Newton personally, agreed that Newton suffered from SLE. Willbanks’s opinion was based
primarily on his review of Pertusi’s assessments and answers to interrogatories. While
Willbanks apparently had access to Pertusi’s treatment notes, he did not have all the
significant hospitalization records, including records of a five-day hospitalization in 1993.
Willbanks’s opinion also did not take into account other medical opinions supporting
Newton’s claim of disability, such as a hospital note from Dr. Fehl that “Newton’s pain was
due to her progressively increasing and spreading joint pain secondary to her lupus” and the
July 28, 1996, statement from Dr. Carrera, another examining physician, that Newton could
not perform even sedentary work due to her lupus. Willbanks commented that the records
were insufficient for him to determine the severity and frequency of the symptoms, but he
did not testify that Pertusi’s findings or answers should be discredited because they were
conclusory. Willbanks found that Newton’s symptoms were typical for a patient with SLE,
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and that generally the symptoms were responsive to treatment. Willbanks, however, failed
to consider the side-effects of the treatments.
The ALJ nevertheless relied on Willbanks’s conclusory and unsubstantiated opinion
that Newton was not disabled. Under these circumstances, the ALJ’s finding that Newton
had sufficient residual functional capacity to perform sedentary work is not supported by
substantial evidence.
Requirement to Obtain Supplemental Information. -- SSR 96-2p
admonishes:
[I]n some instances, additional development required by a case – for example
to obtain more evidence or to clarify reported clinical signs or laboratory
findings – may provide the requisite support for a treating source’s medical
opinion that at first appeared to be lacking or may reconcile what at first
appeared to be an inconsistency between a treating source’s medical opinion
and the other substantial evidence in the case record. . . .
SSR 96-2p, 61 F.R. at 33491. SSA Regulation 20 C.F.R. § 404.1512(e) provides in pertinent
part:
(e) Recontacting medical sources. When the evidence we receive from your
treating physician or psychologist or other medical source is inadequate for us
to determine whether you are disabled, we will need additional information to
reach a determination or a decision. To obtain the information, we will take
the following actions.
(1) We will first recontact your treating physician or psychologist or
other medical source to determine whether the additional information
we need is readily available. We will seek additional evidence or
clarification from your medical source when the report from your
medical source contains a conflict or ambiguity that must be resolved,
the report does not contain all the necessary information, or does not
appear to be based on medically acceptable clinical and laboratory
diagnostic techniques. . . .
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20 C.F.R. § 404.1512(e). Subsection (d) of § 404.1512 provides in part:
Our responsibility. Before we make a determination that you are not disabled,
we will develop your complete medical history for at least the 12 months
preceding the month in which you file your application unless there is a reason
to believe that development of an earlier period is necessary or unless you say
that your disability began less than 12 months before you filed your
application. We will make every reasonable effort to help you get medical
reports from your own medical sources when you give us permission to
request the reports.
20 C.F.R. § 404.1512(d).
The Second Circuit has held that “an ALJ cannot reject a treating physician’s
diagnosis without first attempting to fill any clear gaps in the administrative record.” Rosa
v. Callaghan, 168 F.3d 72, 79 (2d Cir. 1999) (citing Schaal v. Apfel, 134 F.3d 496, 505 (2d
Cir. 1998) (“[E]ven if the clinical findings were inadequate, it was the ALJ’s duty to seek
additional information from [the treating physician] sua sponte.”). The Fifth Circuit also
imposes a duty on an ALJ “to develop the facts fully and fairly relating to an applicant’s
claim for disability benefits.” See Ripley, 67 F.3d at 557. “If the ALJ does not satisfy his
duty, his decision is not substantially justified.” Id. In this case, the ALJ expressed doubts
about Pertusi’s opinions based on Willbanks’s criticisms and Newton’s later part-time work,
but did not request additional information to eliminate those doubts before rejecting the
opinion of the treating physician.
Reversal, however, is appropriate only if the applicant shows prejudice from the
ALJ’s failure to request additional information. Id. “Prejudice can be established by
showing that additional evidence would have been produced if the ALJ had fully developed
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the record, and that the additional evidence might have led to a different decision.” Id. at
557 n.22.
Newton has made a sufficient showing that additional evidence could have been
produced, if requested. The ALJ was faced with what she deemed an incomplete medical
history. The ALJ, without obtaining the supplemental information, made medical
determinations as to claimant’s abilities to do specific jobs. The ALJ erred when she found,
with virtually no meaningful analysis of the specific medical records, that omissions from
the treating specialist’s assessment or answers to interrogatories left gaps preventing a
finding as to the proper weight to accord Pertusi’s opinion of Newton’s residual functional
capacity over the four year period in issue.
4. Conclusion Regarding ALJ’s Failure to Give Proper Weight to
Treating Physician’s Opinions
This is not a case where there is competing first-hand medical evidence and the ALJ
finds as a factual matter that one doctor’s opinion is more well-founded than another. See
and compare, e.g., Spellman v. Shalala, 1 F.3d 357 (5th Cir. 1993). Nor is this a case where
the ALJ weighs the treating physician’s opinion on disability against the medical opinion of
other physicians who have treated or examined the claimant and have specific medical bases
for a contrary opinion. See and compare, e.g., Prosch v. Apfel, 201 F.3d 1010 (8th Cir.
2000). Instead, this is a case where the ALJ summarily rejected the opinions of Newton’s
treating physician, based only on the testimony of a non-specialty medical expert who had
not examined the claimant. At best, the record was incomplete, and Pertusi could have
16
provided clarification or supplementation, if requested. This case is reversed and remanded
for further consideration consistent with this decision.
B. Reliance on Medical-Vocational Guidelines
Newton argues that the ALJ should not have used the medical vocational guideline
grids, 20 C.F.R. Pt. 404, Subpt. P, App. 2 (“Grids”), when determining whether there is work
in the national economy that Newton could perform despite her disability. Newton alleges
that she has significant nonexertional impairments that preclude the application of the Grids
and require the use of a vocational expert to establish that jobs exist which the claimant can
perform.
If impairments are solely exertional or the nonexertional impairments do not
sufficiently affect the claimant’s residual functional capacity, then the Commissioner may
rely exclusively on the Grids to determine whether there is other work in the economy that
the claimant can perform. See Fraga, 810 F.2d at 1304. If, however, the claimant suffers
from nonexertional impairments or a combination of exertional and nonexertional
impairments, then the Commissioner must rely on a vocational expert to establish that such
jobs exist in the economy. Id. In this case, the ALJ did not rely on a vocational expert.
Newton testified that she had nonexertional impairments including pain, swelling, and
the inability to stand or sit for limited periods of time. Pertusi stated that Newton’s fatigue
precluded her from working an eight-hour day. The ALJ rejected these claims of
nonexertional impairment, however, concluding that they were not credible.
While an ALJ’s assessment of a claimant’s credibility is accorded great deference, the
record does not contain substantial evidence to support the ALJ’s decision that Newton had
17
no significant nonexertional impairments. During the pertinent time period, Newton was
hospitalized several times due to SLE flare-ups, had approximately nine emergency room
visits, made numerous office visits, had abnormal laboratory results, and complained
frequently of fatigue, weakness, swelling, and pain. While mild or moderate pain will not
render a claimant disabled, see Richardson v. Bowen, 807 F.2d 444, 448 (5th Cir. 1987), the
ALJ ignored Newton’s claims of severe fatigue, weakness, and swelling, all of which are
completely consistent with a diagnosis of SLE.
The ALJ rejected Newton’s claims of nonexertional impairments without citing to any
contrary evidence in the record. There was overwhelming evidence in the administrative
record establishing that Newton suffered significant nonexertional impairments. The ALJ’s
finding of no significant nonexertional impairments is not supported by substantial evidence
and is remanded for further consideration.
C. Consideration of the Effect of Newton’s Medical Treatment
Newton asserts that the ALJ failed to recognize that her ongoing treatment during the
period of claimed disability rendered full-time work impossible. This court has held that if
an individual’s medical treatment significantly interrupts the ability to perform a normal,
eight-hour work day, then the ALJ must determine whether the effect of treatment precludes
the claimant from engaging in gainful activity. See Epps v. Harris, 624 F.2d 1267, 1273 (5th
Cir. 1980).
While Newton did not require daily treatment as did the claimant in Epps, the record
indicates that Newton visited the doctor, the hospital, and the emergency room frequently
during the period in question. The administrative record also indicates that Newton’s illness
18
and its treatment occasionally caused her to sleep for several hours during the day. On
remand, the ALJ shall consider the effect of on-going treatment on Newton’s ability to
remain gainfully employed during the period of claimed disability.
D. Appeals Council’s Failure to Address Newton’s Arguments and Evidence
Newton requested review from the Appeals Council based on new medical evidence.
When the Appeals Council rejected her appeal, the Council issued a standard form denial.
The Hearings, Appeals and Litigation Law Manual (HALLEX) Section I-3-501 (Nov.
11, 1994), provides that the Appeals Council must “specifically address additional evidence
or legal arguments or contentions submitted in connection with the request for review.” The
Council did not specifically address Newton’s new medical evidence, thus violating its own
internal procedures.
While HALLEX does not carry the authority of law, this court has held that “where
the rights of individuals are affected, an agency must follow its own procedures, even where
the internal procedures are more rigorous than otherwise would be required.” See Hall v.
Schweiker, 660 F.2d 116, 119 (5th Cir. 1981). If prejudice results from a violation, the result
cannot stand. Id.
In this case, however, Newton was not prejudiced by the violation of HALLEX
because her new medical evidence consisted of opinions regarding her condition in 1995 and
1996 which are not relevant to Newton’s ability to work during the claimed disability period
between 1989 and 1994. Because the new evidence was not relevant, the Appeals Council’s
failure to address the evidence with greater specificity did not cause Newton’s need to seek
relief from the federal courts.
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IV. CONCLUSION
The ALJ improperly rejected the opinions of Newton’s treating physician without
contradictory evidence from physicians who had examined or treated Newton and without
requesting additional information from the treating physician before rejecting the treating
physician’s opinions as unsupported or conclusory. The ALJ also erred in relying on the
medical-vocational guidelines and in failing to consider the effect of Newton’s medical
treatment on her ability to work. Consequently, this court REVERSES the district court and
REMANDS this case with instructions to remand to the ALJ for further consideration
consistent with this opinion.
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