United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 4, 2021 Decided July 23, 2021
No. 20-5263
MARIA A. SAUNDERS,
APPELLANT
v.
KILOLO KIJAKAZI, ACTING COMMISSIONER, SSA,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:18-cv-02492)
Christine P. Benagh argued the cause and filed the briefs
for appellant. Elliott Andalman entered an appearance.
Johnny H. Walker, Assistant U.S. Attorney, argued the
cause for appellee. With him on the brief was R. Craig
Lawrence, Assistant U.S. Attorney.
Before: WILKINS and RAO, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge WILKINS.
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WILKINS, Circuit Judge: Maria Saunders appeals the
Social Security Administration’s denial of her disability claim.
In 2014, Saunders slipped on ice at work. She filed for
disability benefits, which an Administrative Law Judge
(“ALJ”) denied after a 2017 hearing. On appeal, Saunders
raises several claims, including that the ALJ failed to consider
certain medical opinions. We agree with Saunders and reverse
and remand to the District Court with instructions to remand to
the Commissioner.
I.
Appellant Maria Saunders worked as a bus attendant for
the Washington, D.C., school system. In this role, Appellant
helped students with special needs and those in wheelchairs on
and off the bus. On January 7, 2014, Appellant slipped and fell
on ice at work, suffering a hip contusion and back pain. When
she first received medical attention at the emergency room,
Appellant was prescribed heat, Bengay, salt soaks, ibuprofen,
and muscle relaxants. Appellant never returned to work.
Instead, she filed a disability claim with the Social Security
Administration (“SSA” or “Commissioner”) six months after
her fall. Over the next three years, Appellant proceeded to
receive dozens of medical opinions, including multiple
opinions from two treating physicians: Dr. Williams,
Appellant’s generalist, and Dr. Liberman, Appellant’s
neurologist. Appellant also applied for and received disability
benefits from the Washington, D.C., workers’ compensation
board.
In November 2017, an ALJ held a hearing for Appellant
after her federal disability claims were denied on
reconsideration. The ALJ heard Appellant’s testimony and
heard testimony from a vocational expert. Relying on the
Dictionary of Occupational Titles, the vocational expert
3
testified that the closest job description was that of a bus
attendant, which the Dictionary of Occupational Titles defines
as “light work.” 1 But the vocational expert acknowledged that
the job description was not an exact match and that, as
performed by Appellant, it was heavy work.
A few months later, the ALJ issued her decision and
concluded that Appellant was not disabled. The ALJ evaluated
the medical evidence before turning to some—but not all—of
the medical opinions that Appellant provided. First, the ALJ
gave “some” weight to the medical opinions offered by the
District of Columbia agency consultants—Dr. Walter Goo and
Dr. Alex Hemphill—who opined that Appellant could carry up
to twenty pounds occasionally and up to ten pounds regularly,
but the ALJ ultimately concluded that Appellant could perform
the full range of light work. J.A. 6. Second, the ALJ gave
“some” weight to Dr. Stanley Rothschild, who examined
Appellant in August 2017 and noted that Appellant’s MRI test
showed nothing atypical, but the ALJ refused to give weight to
Dr. Rothschild’s conclusion that Appellant could return to
work. J.A. 6–7. Third, the ALJ gave “little” weight to
Dr. Eugene Miknowski, who examined Appellant in
November 2014, because most of his findings were
inconsistent with the medical evidence. J.A. 7. Fourth, and
notably for the purposes of this appeal, Appellant gave “no
weight to the opinion offered by Dr. Joseph Lieberman [sic],
M.D., in November 2017,” where Dr. Liberman opined that
1
Light work is work that “involves lifting no more than 20 pounds
at a time with frequent lifting or carrying of objects weighing up to
10 pounds,” “requires a good deal of walking or standing,” or
“involves sitting most of the time with some pushing and pulling of
arm or leg controls.” 20 C.F.R. § 404.1567(b). A claimant is
considered capable of performing a full or wide range of light work
only if he or she has “the ability to do substantially all of these
activities.” Id.
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Appellant was permanently disabled. Id. Significantly,
Appellant had also visited Dr. Liberman—her treating
neurologist—in December 2014, but the ALJ made no note of
this visit and the ensuing medical opinion. Cf. id. Fifth, the
ALJ gave no weight to the disability certificate produced by
Dr. Peter Lavine in October 2014. Id. Finally, the ALJ
considered some (but not all) of the opinions offered by Dr.
Edwin Williams—Appellant’s treating generalist—but
accorded them “little” or no weight because the opinions were
inconsistent with the medical evidence, some were
pronouncements of disability, and because Dr. Williams was a
primary care provider, not a specialist. J.A. 7–8.
Turning to the question of whether Appellant could
perform her old job, the ALJ placed considerable weight on the
vocational expert’s testimony. In so doing, the ALJ concluded
that the job description offered by the vocational expert was the
closest match to Appellant’s job as performed generally in the
national economy, though the ALJ noted the vocational
expert’s qualification that Appellant actually performed the job
as heavy work. Nevertheless, the ALJ found that someone with
Appellant’s functional capacity could perform Appellant’s past
work as generally performed in the national economy.
Consequently, the ALJ concluded that Appellant was able to
perform her past work in a light capacity. The Commissioner
adopted the ALJ’s decision.
Saunders appealed the Commissioner’s decision to the
District Court. After the District Court affirmed the
Commissioner’s decision, Appellant timely appealed to this
Court arguing that the ALJ (1) erroneously failed to consider
certain medical opinions, (2) failed to accord proper weight to
the opinions she did consider, (3) failed to consider whether
Appellant was disabled for twelve months, (4) incorrectly
concluded that Appellant’s job existed in the national
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economy, and (5) failed to individually consider each of
Appellant’s functional capabilities. Because we conclude that
the ALJ erred when she failed to consider certain medical
opinions, we remand to the Commissioner.
II.
The Social Security Act (“Act”) sets forth the rules
governing disability benefits. In pertinent part, the Act defines
disability as the “inability to engage in any substantial gainful
activity by reason of any medically determinable physical or
mental impairment which . . . has lasted or can be expected to
last for a continuous period of not less than 12 months.” 42
U.S.C. § 423(d)(1)(A). An individual suffers from 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.” Id. §
423(d)(2)(A).
To determine whether a claimant suffers from a disability,
the ALJ conducts a five-step sequential analysis. 20 C.F.R.
§ 404.1520. At step one, the claimant must show she is not
engaged in substantial gainful activity. Id. § 404.1520(a)(4)(i).
At step two, the ALJ must determine whether the claimant
suffers from a severe impairment. Id. §§ 404.1520(a)(4)(ii),
404.1520(c), 404.1509. At step three, the ALJ evaluates
whether the claimant’s impairment meets or equals an
impairment listed in the regulations. Id. §§ 404.1520(a)(4)(iii),
404.1520(d). Should the claimant make that showing, she is
deemed disabled. Butler v. Barnhart, 353 F.3d 992, 997 (D.C.
Cir. 2004). If not, the ALJ proceeds to step four, where the
claimant must demonstrate that she is incapable of performing
her previous work. 20 C.F.R. §§ 404.1520(a)(4)(iv),
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404.1520(f). A claimant who can perform her previous work
is not disabled, but if she demonstrates her inability to perform
her previous work, the ALJ must then determine at step five
whether the claimant can make an adjustment to other work
while taking into consideration the claimant’s residual
functional capacity. Id. §§ 404.1520(a)(4)(v), 404.1520(g).
The claimant bears the burden of proof on the first four steps,
but the burden shifts to the Commissioner on the fifth step.
Butler, 353 F.3d at 993.
In performing this analysis, the ALJ must adhere to certain
regulatory requirements. The ALJ must consider the
claimant’s statements, “objective medical evidence from an
acceptable medical source,” and medical opinions. 20 C.F.R.
§ 416.929(a). In considering the latter, the ALJ must generally
give more weight to physicians who have examined the
claimant, id. § 404.1527(c)(1), and particularly heavy weight
to medical opinions from a treating source, i.e., a physician
with an existing relationship with the claimant, id.
§ 404.1527(c)(2). Indeed, if a treating source’s medical
opinion “is well-supported by medically acceptable clinical
and laboratory diagnostic techniques and is not inconsistent
with the other substantial evidence,” the ALJ must give the
opinion “controlling weight.” Id.; see also Butler, 353 F.3d at
1003 (quoting Williams v. Shalala, 997 F.2d 1494, 1498 (D.C.
Cir. 1993)).
We review the Commissioner’s ultimate determination of
disability under the familiar substantial evidence standard. The
Commissioner’s determination must be “based on substantial
evidence in the record and correctly appl[y] the relevant legal
standards.” Id. at 999; see also 42 U.S.C. § 405(g).
“Substantial evidence is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.”
Butler, 353 F.3d at 999 (internal quotation marks omitted)
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(quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
Substantial evidence “requires more than a scintilla, but can be
satisfied by something less than a preponderance of the
evidence.” Id. (quoting Fla. Mun. Power Agency v. FERC, 315
F.3d 362, 365–66 (D.C. Cir. 2003)). Thus, while “we must
carefully scrutinize the entire record, . . . we assess only
whether the ALJ’s finding that [the claimant] is not [disabled]
is based on substantial evidence and a correct application of the
law.” Id. (citation omitted). In applying this standard, we must
also be mindful of the harmless-error rule. See Shinseki v.
Sanders, 556 U.S. 396, 407 (2009). Consequently, even if we
perceive error, we will affirm the Commissioner’s decision
unless the error is prejudicial.
We agree with Appellant that the ALJ failed to properly
consider key medical opinions that supported Appellant’s
claim that she was disabled. Of particular relevance, the ALJ
failed to consider the medical opinion offered by Dr. Liberman
in December 2014. Dr. Liberman, Appellant’s treating
neurologist, examined Appellant almost twelve months after
she sustained the injury and concluded that Appellant “most
likely has post[-]traumatic myofascial pain syndrome, which
has become chronic.” J.A. 204. Dr. Liberman noted that
Appellant had a “marked limitation of lumbar movement,” was
“very tender over the left lumbar paraspinal region and left
buttock,” her “[s]traight leg raising was 15 [degrees] on the left
and 30 [degrees] on the right,” and she had a “slow and
antalgic” gait. Id.
The ALJ failed to acknowledge, let alone evaluate, Dr.
Liberman’s medical opinion despite her obligation to do so.
SSA’s regulations make clear that “[r]egardless of its source,
[SSA] will evaluate every medical opinion [it] receive[s].” 20
C.F.R. § 404.1527(c) (emphasis added). The regulations also
require ALJs to place more weight on opinions offered by
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treating physicians who have examined the claimant, unless the
opinions are contradicted by substantial evidence. Id. §
404.1527(c)(1). By failing to even consider Dr. Liberman’s
December 2014 medical opinion, the ALJ fell short of her
obligation to “explain [her] reasons” for rejecting Dr.
Liberman’s medical opinion. Butler, 353 F.3d at 1003 (quoting
Williams, 997 F.2d at 1498); see also Jones v. Astrue, 647 F.3d
350, 355 (D.C. Cir. 2011) (remanding to SSA when the ALJ
rejected the treating physician’s medical opinion but “did not
say why that was so”).
The Commissioner attempts to discount this failure to
consider Dr. Liberman’s 2014 evaluation because the opinion
was purportedly duplicative of Dr. Liberman’s 2017 opinion.
We disagree for two reasons. First, on their face, the two
opinions contain substantively different assessments. In 2014,
Dr. Liberman noted that Appellant was unable to raise her legs
to similar degrees, whereas he made no similar finding in 2017.
J.A. 204; J.A. 323–24. Dr. Liberman also concluded that
Appellant’s gait “was slow and antalgic” in 2014, J.A. 204, and
thus unnatural due to pain and discomfort, see Antalgic,
MERRIAM-WEBSTER, https://www.merriam-
webster.com/medical/antalgic (last visited June 25, 2021), but
only “a little bit slow and mildly unsteady” in 2017, J.A. 323.
And although Dr. Liberman stated that Appellant “ha[d] to rest
several times a day” in 2017, J.A. 324, his 2014 assessment
concluded with the determination that Appellant could not
“walk, stand[,] or sit for more than a brief period of time,” J.A.
204. These conclusions are substantially different, so the
Commissioner is wrong to argue that they were duplicative.
Second, over two years passed between the two
evaluations; Appellant’s medical condition could have
ameliorated during that stretch but still entitled her to receive
disability benefits for the period of time during which she was
9
disabled. See 20 C.F.R. § 404.1505(a) (defining disability as
“the inability to do any substantial gainful activity . . . for a
continuous period of not less than 12 months”). Thus, even
assuming that Dr. Liberman’s 2014 opinion was largely
redundant of his 2017 evaluation, the ALJ still had to consider
the 2014 opinion—an opinion given almost exactly twelve
months after Appellant’s fall—to determine whether Appellant
was entitled to at least a closed period of disability. The ALJ’s
evaluation of Dr. Liberman’s 2017 opinion thus did not
incorporate Dr. Liberman’s 2014 opinion, and this incomplete
consideration prejudiced Appellant. Had the ALJ considered
Dr. Liberman’s 2014 opinion, she may have concluded that
Appellant was at least entitled to disability benefits during the
twelve-month period following Appellant’s fall.
We therefore remand to the Commissioner. Appellant
raises several other challenges to the ALJ’s failure to consider
certain medical opinions, but because we are remanding to the
agency, we need not address these challenges, nor do we
address Appellant’s claim that the ALJ failed to conduct a
function-by-function analysis or her argument that the ALJ
incorrectly concluded that Appellant could perform her past
relevant work. See, e.g., Berry v. Astrue, 622 F.3d 1228, 1234
n.3 (9th Cir. 2010) (“Given our remand for a new hearing, we
need not resolve [the other] claim[s].”). It will be for the
Commissioner to evaluate these claims in the first instance
after considering all medical opinions.
III.
For the foregoing reasons, we reverse and remand the
judgment of the District Court with instructions to remand to
the Commissioner for further proceedings consistent with this
opinion.
So ordered.