Jones v. Astrue
Filing
20
MEMORANDUM OPINION: The Commissioner's decision is AFFIRMED in part and VACATED in part and REMANDED to the Commissioner for further proceedings consistent with this memorandum opinion. (Ordered by Chief Judge Sidney A Fitzwater on 7/5/2011) (dnc)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
DALLAS DIVISION
LARRY M. JONES,
Plaintiff,
VS.
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
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§ Civil Action No. 3:10-CV-2342-D
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MEMORANDUM OPINION
Plaintiff Larry M. Jones (“Jones”) brings this action under § 205(g) of the Social
Security Act (the “Act”), 42 U.S.C. § 405(g), for judicial review of the final decision of the
Commissioner of Social Security (“Commissioner”) denying his claim for a period of
disability and disability insurance benefits. For the reasons that follow, the court affirms in
part, and vacates and remands in part, the Commissioner’s decision.
I
On July 14, 2006 Jones applied for a period of disability and disability insurance
benefits, alleging disability due to HIV/AIDS, fatigue, back pain, skin rashes, pneumonia,
bronchitis, and depression. After his application was denied initially and on reconsideration,
Jones requested a hearing before an administrative law judge (“ALJ”). In a November 28,
2008 decision, the ALJ found that Jones had been disabled since January 1, 2006 but that his
disability had ended on January 1, 2007. The Appeals Council remanded the decision on
April 16, 2009, and, after two supplemental hearings, the ALJ issued a decision on February
9, 2010 determining that Jones was disabled as of January 1, 2006 but that the disability had
ended on January 2, 2007. Jones’s request for review of the ALJ’s decision was denied by
the Appeals Council, and the ALJ’s decision became the final decision of the Commissioner.
The ALJ followed the five-step sequential process prescribed in 20 C.F.R.
§ 404.1520(a)(4) and concluded that (1) Jones was not presently working; (2) he had severe
HIV, AIDS, degenerative disc disease, and mood disorder impairments; (3) Jones’s
impairments were not so severe in combination as to meet or medically equal an impairment
listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 from January 1, 2006 until the present;
(4) the impairments were yet severe enough to prevent Jones from doing his past relevant
work as a warehouseman; and (5) Jones could not perform relevant work that existed in
significant numbers in the national economy from January 1, 2006 through January 1, 2007,
making him disabled during that time. The ALJ then applied the eight-step process in
§ 404.1594(f) to determine that medical improvement occurred as of January 2, 2007 such
that Jones could perform a significant number of jobs in the national economy and was no
longer disabled as of that date. R. 23.
Jones now seeks judicial review on the following five grounds:1 first, the ALJ should
have applied a preponderance of the evidence standard in determining whether his
impairments equaled any of the impairments listed in 20 C.F.R. Part 404, Subpart P,
1
The arguments are presented in a different order in Jones’s briefing. The court has
arranged the arguments in a manner that better reflects the order of analysis in the eight-step
inquiry.
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Appendix 1; second, the ALJ did not properly consider medical expert (“ME”) opinion
evidence when determining whether his impairments were severe enough to equal any of the
listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1; third, the ALJ failed to cite
medical evidence indicating that an improvement occurred between January 1, 2007 and
January 2, 2007; fourth, the ALJ did not provide a detailed enough justification before giving
little weight to a treating physician’s opinion on Jones’s residual functional capacity
(“RFC”); and, fifth, the ALJ failed to demonstrate that the medical improvement resulted in
an increased ability to work, because the ALJ asked a faulty hypothetical question to a
vocational expert (“VE”) and the VE did not explain what percentage of the jobs mentioned
would match Jones’s RFC. The Commissioner responds that the ALJ did not err in weighing
the opinions of the MEs or the treating physician, and that the ALJ properly established a
medical improvement that increased Jones’s ability to work and enabled him to engage in
substantial gainful activity.
II
A
The court’s review of the Commissioner’s decision is limited to determining whether
substantial evidence supports the decision and whether the Commissioner applied the proper
legal standards to evaluate the evidence. Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995);
Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1995) (per curiam). “The Commissioner’s
decision is granted great deference and will not be disturbed unless the reviewing court
cannot find substantial evidence in the record to support the Commissioner’s decision or
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finds that the Commissioner made an error of law.” Leggett v. Chater, 67 F.3d 558, 564 (5th
Cir. 1995) (footnotes omitted).
“The court may not reweigh the evidence or try the issues de novo or substitute its
judgment for that of the [Commissioner].” Kane v. Heckler, 731 F.2d 1216, 1219 (5th Cir.
1984) (citations omitted). “If the Commissioner’s findings are supported by substantial
evidence, then the findings are conclusive and the Commissioner’s decision must be
affirmed.” Martinez, 64 F.3d at 173. “Substantial evidence is ‘such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.’” Greenspan v. Shalala,
38 F.3d 232, 236 (5th Cir. 1994) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
“It is more than a mere scintilla, and less than a preponderance.” Spellman v. Shalala, 1 F.3d
357, 360 (5th Cir. 1993) (citing Moore v. Sullivan, 919 F.2d 901, 904 (5th Cir. 1990) (per
curiam)). “To make a finding of ‘no substantial evidence,’ [the court] must conclude there
is a ‘conspicuous absence of credible choices’ or ‘no contrary medical evidence.’” Dellolio
v. Heckler, 705 F.2d 123, 125 (5th Cir. 1983) (citation omitted). Even if the court should
determine that the evidence preponderates in the claimant’s favor, the court must still affirm
the Commissioner’s findings if there is substantial evidence to support these findings. See
Carry v. Heckler, 750 F.2d 479, 482 (5th Cir. 1985). The resolution of conflicting evidence
is for the Commissioner rather than for the court. See Patton v. Schweiker, 697 F.2d 590,
592 (5th Cir. 1983) (per curiam).
B
For purposes of social security determinations, “disability” means an “inability to
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engage in 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.”
42 U.S.C.
§ 423(d)(1)(A) (2006). Under the five-step sequential inquiry the Commissioner considers
whether (1) the claimant is presently engaged in substantial gainful activity, (2) the
claimant’s impairment is severe, (3) the claimant’s impairment meets or equals an
impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1, (4) the impairment prevents
the claimant from doing past relevant work, and (5) the claimant cannot presently perform
relevant work that exists in significant numbers in the national economy. See, e.g., Leggett,
67 F.3d at 563-64 n.2; Martinez, 64 F.3d at 173-74; 20 C.F.R. § 404.1520(a)(4) (2011). “The
burden of proof is on the claimant for the first four steps, but shifts to the [Commissioner]
at step five.” Bowling v. Shalala, 36 F.3d 431, 435 (5th Cir. 1994) (per curiam) (citing
Anderson v. Sullivan, 887 F.2d 630, 632-33 (5th Cir. 1989) (per curiam)). At step five, once
the Commissioner demonstrates that other jobs are available to a claimant, the burden of
proof shifts to the claimant to rebut this finding. Selders v. Sullivan, 914 F.2d 614, 618 (5th
Cir. 1990) (per curiam).
C
A claimant can sometimes be found to have had a disability at one point in time but
no longer to be disabled due to medical improvement. See 42 U.S.C. § 423(f)(1) (permitting
cessation of benefits upon proof of medical improvement and ability to engage in substantial
gainful activity). Medical improvement is “any decrease in the medical severity of [the
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claimant’s] impairment(s) which was present at the time of the most recent favorable medical
decision that [claimant was] disabled or continued to be disabled.”
20 C.F.R.
§ 404.1594(b)(1) (noting that the changes must be in the symptoms, signs, and/or laboratory
findings associated with the impairment). In proceedings to terminate disability benefits
because of medical improvement, the ultimate burden of proof lies with the Commissioner.
See Griego v. Sullivan, 940 F.2d 942, 944 (5th Cir. 1991) (per curiam). Termination
proceedings are governed by the following eight-step sequential process:
(1) Is the claimant engaged in substantial gainful activity? (If so,
the disability has ended.)
(2) If not, does the claimant have an impairment [or]
combination of impairments which meets or equals the severity
of an impairment listed in Appendix 1? (If so, the disability is
continuing.)
(3) If not, has there been medical improvement?
(4) If there has been medical improvement, is it related to the
claimant’s ability to do work?
(5) If there has been no medical improvement, or if the medical
improvement is not related to the claimant’s ability to do work,
is one of the exceptions to medical improvement applicable? (If
not, the disability is continuing.)
(6) If there has been medical improvement related to the
claimant’s ability to do work, or if one of the first group of
exceptions is applicable, is the combination of impairments
severe? (If not, the disability has ended.)
(7) If so, is the claimant able to engage in past relevant work? (If
so, the disability has ended.)
(8) If not, is the claimant able to perform other substantial
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gainful activity?
Id. at 944 n.1 (citing 20 C.F.R. § 404.1594(f)) (characterizing steps 7 and 8 as part of the
“substantial gainful activity” prong analysis of 42 U.S.C. § 423(f)).
The instant case, of course, does not involve a termination of benefits already
awarded. The ALJ determined that Jones was disabled, albeit for a “closed period” of time.
See, e.g., Waters v. Barnhart, 276 F.3d 716, 719 (5th Cir. 2002) (defining “closed period”
as where “a new applicant for disability benefits was disabled for a finite period of time
which started and stopped prior to the date of [ALJ’s] decision”). Nevertheless, in deciding
this closed period case, the court will apply the burden of proof and eight-step process used
in a termination case. See id. at 719 (applying 42 U.S.C. § 423(f) framework, generally, and
Griego’s burden of proof allocation to closed period case). Because the Waters panel held
that the Commissioner has the burden of demonstrating in a closed period case, as in a
termination case, that the disability has ceased, the court will follow this allocation of the
burden. See id. (holding that medical improvement prong of 42 U.S.C. § 423(f) applied).
The court will also follow the eight-step process in determining whether there is reversible
error in the ALJ’s determination that Jones is able to perform other substantial gainful
activity. Although the Fifth Circuit has yet to decide whether the eight-step process provides
the proper analytical framework for the second prong of § 423(f) in a closed period case,
when the Waters panel extended the medical improvement standard of the first prong of
§ 423(f) to closed period cases, it observed that “in closed period cases, the ALJ engages in
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the same decision-making process as in termination cases.”2 Id. Moreover, several district
courts in this circuit have noted that both types of cases concern a medical improvement
followed by a termination of benefits and have applied the eight-step process to closed period
cases as generally applicable to any situation where an improvement is followed by
termination of benefits.3 The court will therefore follow in this case the eight-step analysis
for determining whether a claimant can engage in substantial gainful activity with medical
2
In Waters the ALJ had applied the five-step inquiry (usually used for making an
initial determination of disability) at two different points in time—the beginning and end of
the alleged closed period—to determine when the claimant became disabled (i.e., at the date
when the claimant fulfilled the requirements of the five-step inquiry) and ceased to be
disabled (i.e., at the date when the claimant ceased to fulfill the requirements of the five-step
inquiry). See Waters, 276 F.3d at 718. In the context of the arguments presented on appeal,
it was unnecessary for the Waters panel to decide whether the normal five-step sequential
process for making disability determinations applied to termination cases or to closed period
determinations. Waters only required that the ALJ place the burden on the Commissioner,
in whatever medical improvement analysis was done, to prove that the claimant was no
longer disabled. Therefore, although several courts have decided to apply to closed period
cases the eight-step process used in termination cases, see Chavis v. Astrue, 2010 WL
624039, at *6 (N.D.N.Y. Feb. 18, 2010) (listing district court cases across multiple circuits
adopting eight-step analysis from 20 C.F.R. § 404.1594(f) in determining termination of
disability status in closed period cases), the Fifth Circuit has not determined whether to do
so.
3
See Van Allen v. Astrue, 2010 WL 3766690, at *5-6 (N.D. Tex. Sept. 28, 2010)
(Lane, J.) (applying eight-step process in closed period case, reasoning that “[t]he
determination of a closed period of disability entails both a disability and a termination”);
McCarthy v. Astrue, 2010 WL 1489913, at *4-5 (E.D. La. Mar. 19, 2010) (Mag. Judge
recommendation) (stating eight-step analysis as the prescribed method to determine whether
second prong of § 423(f) has been met); Vicknair v. Astrue, 2009 WL 2949764, at *4 (N.D.
Tex. Sept. 15, 2009) (Lane, J.) (applying eight-step process to closed period case, noting that
once medical improvement is shown, Commissioner determines claimant’s ability to perform
substantial gainful activity under the later steps found in 20 C.F.R. § 1594(f)); Campos v.
Astrue, 2009 WL 47126, at *6 (S.D. Tex. Jan. 6, 2009) (stating the eight-step process as
applicable to determination whether disability continues in closed period case).
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improvement, as prescribed by 20 C.F.R. § 404.1594(f).
When determining the propriety of a decision of “not disabled,” this court’s function
is to ascertain whether the record considered as a whole contains substantial evidence that
supports the final decision of the Commissioner, as trier of fact. The court weighs four
elements of proof to decide if there is substantial evidence of disability: (1) objective medical
facts; (2) diagnoses and opinions of treating and examining physicians; (3) the claimant’s
subjective evidence of pain and disability; and (4) age, education, and work history.
Martinez, 64 F.3d at 174 (citing Wren v. Sullivan, 925 F.2d 123, 126 (5th Cir. 1991) (per
curiam)). “The ALJ has a duty to develop the facts fully and fairly relating to an applicant’s
claim for disability benefits.” Ripley, 67 F.3d at 557. “If the ALJ does not satisfy [this] duty,
[the] decision is not substantially justified.” Id. Reversal of the ALJ’s decision is
appropriate, however, “only if the applicant shows that he was prejudiced.” Id. The court
will not overturn a procedurally imperfect administrative ruling unless the substantive rights
of a party have been prejudiced. See Smith v. Chater, 962 F. Supp. 980, 984 (N.D. Tex.
1997) (Fitzwater, J.).
III
Because the eight-step process is sequential, making it possible to moot the necessity
for decisions at later steps, the court first addresses Jones’s argument that the ALJ should
have found under a preponderance of evidence standard that his impairments equaled Listing
1.04 (disorder of the spine) and Listing 14.08 (HIV infection) of 20 C.F.R. Part 404, Subpart
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P, Appendix 1.4 Cf. Clarification of Evidentiary Standard for Determinations and Decisions,
73 Fed. Reg. 76,940-02, 76,941 (Dec. 18, 2008) (“Adjudicators at each level of the
administrative review process, including the Appeals Council, consider whether a claimant
has proven his claim using an evidentiary standard called the ‘preponderance of the evidence’
when they make a determination or decision.” (emphasis added)).5 This appears to be an
argument directed at step two of the eight-part inquiry. See 20 C.F.R. § 404.1594(f)(2)
(“[D]o you have an impairment or combination of impairments which meets or equals the
severity of an impairment listed in [20 C.F.R. Part 404, Subpart P, Appendix 1]? If you do,
your disability will be found to continue.”).
The ALJ did not explicitly state whether she was applying a particular standard during
step two of the eight-step inquiry. Rather, Jones assumes that the ALJ applied an incorrect
standard based on his perception that two MEs opined in favor of finding that his
4
As noted supra at § I, the ALJ determined that Jones was disabled from January 1,
2006 through January 1, 2007. Therefore, to the extent Jones complains of the ALJ’s failure
to find that his impairments equaled Listings 1.04 and 14.08 during that period, the argument
is moot because both parties agree that he was disabled for that period. The court only
reviews the ALJ’s determination regarding the medical equivalence of impairments from
January 2, 2007 onward.
5
Under Waters, 276 F.3d at 719, however, the Commissioner has the burden of proof
in determining cessation of disability status. Although Jones included in his opening brief
a block quotation from Griego noting the burden of proof, it was not until his reply brief that
Jones raised the argument that the ALJ failed to apply the correct burden of proof. See P.
Reply Br. 2. The court will not consider an argument presented for the first time in a reply
brief. See, e.g., Jacobs v. Tapscott, 2006 WL 2728827, at *7 (N.D. Tex. Sept. 25, 2006)
(Fitzwater, J.) (citing Senior Unsecured Creditors’ Comm. of First RepublicBank Corp. v.
FDIC, 749 F. Supp. 758, 772 (N.D. Tex. 1990) (Fitzwater, J.)), aff’d, 277 Fed. Appx. 483
(5th Cir. 2008).
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impairments equaled Listing 1.04 and Listing 14.08, while only one ME opined against.
Regardless, this court is not part of the administrative review process; the substantial
evidence standard, not the preponderance of evidence standard, governs here. See 42 U.S.C.
§ 405(g) (“The findings of the Commissioner of Social Security as to any fact, if supported
by substantial evidence, shall be conclusive.”). Although it is possible to remand a decision
based on an error of law, this does not mean that Jones can recast his disagreements over the
ALJ’s weighing of the factual evidence as a legal question of misapplied standards, absent
more concrete evidence that the ALJ actually applied one legal standard instead of another.
Jones can offer no more than supposition that the ALJ applied the wrong legal standard in
determining step two, based on his subjective opinion of which side the evidence clearly
favored. The court therefore holds that Jones has failed to establish a legal error that
warrants reversal, and it applies the substantial evidence standard to evaluate the ALJ’s
determination regarding whether Jones’s impairments equaled Listings 1.04 or 14.08.
Three MEs testified regarding Jones’s HIV and musculoskeletal impairments. John
Vorhies, M.D. (“Dr. Vorhies”), testified in a July 7, 2009 hearing that Jones’s limitations in
HIV and lumbar degenerative disc disease and joint disease had never reached the point
where they equaled Listing 1.04 or Listing 14.08. R. 60-61. Camille Hemlock, M.D. (“Dr.
Hemlock”), testified at a November 19, 2009 hearing that Jones’s impairments had equaled
Listings 1.04 and 14.08 since 2006, even though there was some evidence of gaps in
treatment. R. 46, 49.
The parties dispute whether Rima Bishara, M.D. (“Dr. Bishara”), testified in favor of
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Jones because many parts of her testimony were marked as inaudible in the hearing
transcript. Dr. Bishara testified that Jones’s impairments might have equaled the HIV listing
from April 2006 to September 2006, with about six months of recovery time after that, then
agreed with the ALJ’s suggestion that the impairments equaled the HIV listing only from
April 2006 until about December 2006. R. 128. But this time period is irrelevant given the
scope of this review; Dr. Bishara offered no opinion about whether Jones’s impairments
equaled the HIV listing during any period past January 2, 2007. Therefore, even by Jones’s
argument, which emphasizes the number of MEs testifying for and against, there is
substantial evidence that Jones’s impairments did not equal the HIV listing.
Although the question whether Jones’s impairments equaled the spinal disorder listing
is more ambiguous, the court holds that substantial evidence supports the ALJ’s finding that
Jones did not meet the listing. The transcript of Dr. Bishara’s testimony reflects that the ALJ
asked this question: “And then after that his first the record suggests equal the muscular
skeletal as of six months prior to October?” to which Dr. Bishara answered, “Yes.” Id. It
is unclear what the ALJ meant by the question that is garbled on the record. Jones urges the
court to interpret the question as acknowledging that Jones’s impairments equaled the
musculoskeletal listings since six months prior to October 2006. The Commissioner cites
a different part of the hearing transcript to argue that Dr. Bishara found that Jones’s
impairments fell short of equaling Listing 14.08. At this part the ALJ asked Dr. Bishara,
“[D]id you find that he had a back impairment where he had that met or equaled the listing
there?” and Dr. Bishara responded, “Not based on the record that I have[.]” R. 124. Other
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parts of Dr. Bishara’s testimony also cast doubt on whether she found that Jones’s
impairments equaled Listing 1.04. For example, after a discussion about the evidence on file
regarding Jones’s back impairments, the ALJ asked, “Does the record reflect the distribution
of pain or the limitation of motion, the other things that are required?” and Dr. Bishara
replied, “That’s exactly what I’m saying. It does not.” R. 126. And directly after Dr.
Bishara responded to the garbled question on page 128 of the record, Jones’s attorney asked
a follow-up question, inquiring whether Dr. Bishara had remembered to consider X-ray
evidence from June 2006 showing moderate to severe degenerative disc disease. The
attorney asked, “So if [Jones] didn’t equal the listing back then, he would have at least had
significant problems from that?” R. 128. Unless the response to the earlier garbled question
was unfavorable to Jones, it is doubtful that Jones’s attorney would have attempted to elicit
from Dr. Bishara an opinion on the significance of Jones’s problems under the assumption
that Jones did not equal the listing at the time. On the other hand, after a largely inaudible
discussion about Dr. Bishara’s opinion about whether Jones met or equaled Listing 1.04, the
ALJ asked, “When you said it probably equals, what functional limitations that are in the
record are you relying [on] to say that it probably equals?” R. 127. Although Dr. Bishara’s
answer is inaudible, the fact that the ALJ asked such a question suggests that at some point
Dr. Bishara opined that Jones’s limitations “probably equaled” Listing 1.04. Nevertheless,
there is some doubt as to whether two MEs would unequivocally support the view that
Jones’s impairments equaled Listing 14.08 after December 2006.
Even assuming arguendo that Dr. Bishara concluded that Jones’s impairment equaled
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Listing 1.04 after January 1, 2007, the ALJ’s finding is supported by at least substantial
evidence if not a preponderance of evidence. In addition to evidence in the form of ME
opinions, Jones rated his back pain as a 6 on a scale of 0 to 10 on January 3, 2007 and
reported a pain level of 0 on March 23, 2007. R. 19, 945, 960. Progress notes from July 27,
2007, September 18, 2007, January 23, 2008, March 26, 2008, May 9, 2008, July 7, 2008,
September 5, 2008, and December 5, 2008 indicated that although Jones had reported back
pain,6 his gait and range of motion were normal. R. 863, 879, 893, 929, 940, 1222, 1229,
1299. The attending consultant’s notes from February 28, 2008 indicate “lumbar spine
normal” and “can heel & toe walk.” R. 843. An electrodiagnostic report from the same date
indicates that “[a]ll sensory and motor nerve conduction studies were normal.” R. 846.
Although on February 20, 2009 Jones rated his pain as 8 on a scale of 1 to 10, R. 1219, on
April 14, 2009 the examining physician found “no significant abnormalities” in the
musculoskeletal system, noting, “Neurovascular intact. Range of motion normal,” and
making no mention of back pain. R. 1097-98. Hanna J. Abu-Nassar, M.D. (“Dr. AbuNassar”), examined Jones on April 3, 2009 and estimated that he could walk one-half of a
block at a time, stand 30 minutes per hour, sit 45 minutes per hour, lift 10 pounds level and
over head, carry 15 pounds, bend, and climb 8 steps at a time. R. 1235. Dr. Abu-Nassar also
noted that, although Jones had a limp to the right and could not walk on his heels and in
6
On September 18, 2007 and January 23, 2008 Jones rated his pain as 6 on a scale of
1 to 10. R. 928, 1229. On May 9, 2008 and September 5, 2008 Jones rated his pain as 7. R.
878, 1221. On July 7, 2008 Jones rated his pain from a herniated disc as 5. R. 1223. On
December 5, 2008 Jones rated his pain as 8. R. 1298.
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tandem, Jones did have the ability to walk on his toes, get on and off the examination table
normally, and move around the room normally. R. 1236. Dr. Abu-Nassar also noted that
Jones had obtained a cane, but that Jones had done this on his own rather than in response
to a physician’s recommendation. R. 1234. Lanita Dawson-Jones, M.D. (“Dr. DawsonJones”), also examined Jones on April 3, 2009 and recorded that the limited examination
revealed “mild lumbar levoscoliosis” and “varying degrees” of degenerative disc disease at
all lumbar levels. R. 1239. Yet when evaluating Jones’s actual abilities, Dr. Dawson-Jones
noted as being normal all movements of the lumbar spine; the only abnormal movements
noted elsewhere were that the forward flexion of the right leg and straight leg raising of the
right leg were limited to 70 degrees rather than 90, flexion-extension of the right leg was at
120 degrees rather than 150, and lower extremity muscle weakness on the right leg was rated
as 4 out of 5, where 5 is normal. R. 1240-41. Printouts dated June 19, 2009, June 25, 2009,
and September 8, 2009 indicated a pain score of “10” for the back, see R. 1362, 1383, 1449,
but there is no indication in the record of how these reported scores were obtained, whether
they were substantiated by objective evidence of limitations, or whether this was Jones’s
subjective description.
See 20 C.F.R. Part 404, Subpart P, Appendix 1, § 1.00(D)
(“[P]hysical findings must be determined on the basis of objective observation during the
examination and not simply a report of the individual’s allegation; e.g., ‘He says his leg is
weak, numb.’”); cf. R. 1363, 1385, 1450 (indicating that nurse recording the data did not
need to intervene with mobility assistance, despite alleged maximum pain rating).
Accordingly, considering the record as a whole, the court is unable to conclude that
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the ALJ’s decision is not supported by substantial evidence, or that the ALJ failed to allocate
properly the burden of proof. Although Jones rated his back pain at levels ranging between
0 and 10, which would indicate that he experienced increasing pain beginning in 2007, there
is objective medical evidence (in the form of physician observations of actual ability and
electrodiagnostic tests) to support the finding that his degenerative disc disease, nerve root
compression, and lumbar stenosis did not cause loss of function (i.e., the loss of ability to
ambulate effectively). Jones presented some objective evidence of degenerative disc disease
and neuropathy through the nerve conduction and electromyogram test results, but the record
evidence permitted the ALJ to find that there was insufficient showing of the “required loss
of function for a musculoskeletal impairment,” given that such loss of function must
generally be shown by “inability to ambulate effectively on a sustained basis [i.e., for at least
twelve months].” See Audler v. Astrue, 501 F.3d 446, 449 (5th Cir. 2007) (citing 40 C.F.R.
Part 404, Subpart P, Appendix 1, § 1.00(B)(2)) (internal quotation marks omitted). As
defined in 40 C.F.R. Part 404, Subpart P, Appendix 1, § 1.00(B)(2)(b)(1), an inability to
ambulate effectively is “defined generally as having insufficient lower extremity functioning
. . . to permit independent ambulation without the use of a hand-held assistive device(s) that
limits the functioning of both upper extremities.” Although some 2009 examinations
indicated that Jones could only walk about one-half of a block at a time before resting, see
R. 1235, 1427, and Jones testified in a September 11, 2008 hearing that he could not go
shopping on his own, id. at 116, Jones admitted in an April 6, 2009 interview with J.
Lawrence Muirhead, Ph.D., a clinical psychologist, that he could use public transportation,
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visit his mother,7 and run errands, id. at 1245. Although the definition in 20 C.F.R. Part 404,
Subpart P, Appendix 1 § 1.00(B)(2)(b)(2) states that the inability to ambulate effectively
includes the “inability to carry out routine ambulatory activities, such as shopping or
banking” or “the inability to walk a block at a reasonable pace on rough or uneven surfaces,”
there is substantial evidence of Jones’s functional abilities to support the ALJ’s decision not
to fully credit Jones’s testimony or to conclude that, even with rest between one-half blocks,
Jones could still walk one block at a reasonable pace.
In reaching his determination, the ALJ noted gaps in Jones’s medical treatment,
interpreting this as circumstantial evidence of the lack of severity of Jones’s condition. R.
19. The ALJ also attached particular importance to the lack of objective evidence in the
record that reflected the severity described in Listing 1.04. See R. 16. For example, she
noted that there were no neurovascular abnormalities, see R. 846 (interpreting sensory and
nerve conduction study results as “normal” and concluding that there was no evidence of
peripheral neuropathy, although there was some evidence of chronic radiculopathy), and that,
as recently as 2009, Jones had demonstrated normal range of motion in his lumbar spine
when examined, id. at 16. To demonstrate nerve root compression at a level of severity
meeting Listing 1.04(A), it was necessary for Jones to show that his symptoms were
characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor
7
Jones resided with his mother at the beginning of the disability investigations, R. 43,
but later moved out, id. at 1245. There is no indication in the record whether Jones continued
to visit others outside the home after his mother died in June 2009.
- 17 -
loss, sensory or reflex loss, and indication of limitation on the straight-leg raising test. See
Listing 1.04A. Regardless how other parts of Dr. Bishara’s testimony should be evaluated,
it cannot be disputed that when the ALJ asked her whether the available record at the time
September 11, 2008 reflected distribution of pain, limitation of motion, or other symptoms
listed in Listing 1.04, Dr. Bishara clearly answered, “That’s exactly what I’m saying. It does
not.” R. 126. Because there was no evidence of distribution of pain, limitation of motion,
motor loss, or sensory or reflex loss, see, e.g., R. 63, 126, 863, 879, 893, 929, 940, 1097-98,
1222, 1230, 1299, and only some evidence of limitation in straight-leg raising and flexion
in the right leg, id. at 1240-41, substantial evidence supports the ALJ’s finding that Jones’s
symptoms did not equal the level of severity described in Listing 1.04(A).
Furthermore, there is no record evidence—such as medically acceptable imaging,
chronic nonradicular pain and weakness, and an inability to ambulate effectively under the
definition given in § 1.00(B)(2)(b)—to indicate that Jones’s lumbar spinal stenosis met
Listing 1.04(C). As noted above, there was substantial evidence for the ALJ to find that
Jones did not have an “inability to ambulate effectively” under the definition given in §
1.00(B)(2)(b), thereby supporting a finding that his impairment did not equal Listing 1.04(C).
Therefore, the Commissioner’s decision at step two of the eight-step process is
supported by substantial evidence, Jones has failed to establish that the ALJ applied the
wrong standard in evaluating the record, and the decision is affirmed in this respect.
IV
Jones also challenges the ALJ’s closed-period determination on the ground that the
- 18 -
ALJ failed to cite medical evidence to show that an improvement occurred between January
1, 2007 and January 2, 2007. This appears to be an argument directed at step three of the
eight-step process (i.e., whether there has been a medical improvement).
“Medical improvement is any decrease in the medical severity of your impairment(s)
which was present at the time of the most recent favorable medical decision that you were
disabled or continued to be disabled.” 20 C.F.R. § 404.1594(b)(1). Such a determination
must be based on improvement in the “symptoms, signs and/or laboratory findings”
associated with an impairment. Id. Symptoms are defined as “[the claimant’s] own
description of [his] physical or mental impairment.”
Id. § 404.1528(a).
Signs are
“anatomical, physiological, or psychological abnormalities which can be observed,” apart
from the claimant’s statements, shown by medically acceptable laboratory diagnostic
techniques.
Id. § 404.1528(b).
Laboratory findings are defined as “anatomical,
physiological, or psychological phenomena which can be shown by the use of medically
acceptable laboratory diagnostic techniques.” Id. § 404.1528(c).
Although the evidence does not pinpoint January 2, 2007 as the precise point in time
when Jones’s condition improved, objective medical evidence gleaned over 2007, coupled
with Jones’s subjective statements about his symptoms, supports the ALJ’s finding that
Jones’s overall condition had improved over the course of 2006 to such an extent that, as of
January 2, 2007, a medical improvement had occurred. See, e.g., R. 22 (concluding that
“claimant’s statements concerning the intensity, persistence and limiting effects of [the
alleged] symptoms are not credible beginning on January 2, 2007”). For example, on
- 19 -
January 3, 2007 an examining nurse practitioner recorded Jones’s comment that he felt fine
with HIV medication. R. 722. Dr. Bishara also opined at one point that, based on the record,
Jones might have equaled the HIV listing from April 2006 until December 2006, R. 128,
further suggesting that January 2, 2007 is a reasonable cutoff date. Furthermore, evidence
of decreased severity in symptoms from early 2007 would support the ALJ in finding that
Jones was already trending toward improved health sometime before January 2007, such that
by January 2, 2007 he would have made noticeable improvement. For example, according
to Kirk G. Jordan, M.D., a February 12, 2007 chest tomography revealed a “[s]ignificant
improvement within the pulmonary parenchyma” since the previous visit. R. 770. Jones had
frequent hospitalizations in 2006 for bacterial infections related to HIV, see R. 46, 62, but
he did not need to be hospitalized in 2007, and he received more routine, outpatient services
during that year, id. at 43. The ALJ also noted that, while Jones frequently complained in
2006 about fatigue, see, e.g., R. 360, 364, 690, complaints of fatigue were not documented
in 2007, id. at 20. The court therefore holds that the ALJ’s finding of medical improvement
is supported by substantial evidence.
Jones points to evidence that his CD4 count dropped at various points in 2009, that
he received hospital treatment for recurrent pneumonia in 2009, that his back pain worsened
over time, and that he continued to have memory impairments and irritability. Even so, there
is substantial evidence to support the finding that, at least with respect to one impairment,
Jones experienced a decrease in medical severity around January 2, 2007. “Medical
improvement is any decrease in the medical severity of your impairment(s).” 20 C.F.R.
- 20 -
§ 404.1594(b)(1) (emphasis added). Even if Jones’s back pain worsened over 2007, there
is record evidence that his HIV impairment became less severe over the course of late 2006
and 2007. Therefore, the ALJ could have found that a medical improvement occurred as of
January 2, 2007. There is no basis to disturb the ALJ’s conclusion at this step of the
disability closed-period inquiry, and the decision is affirmed in this respect.
V
Jones also challenges the ALJ’s RFC determination (first used for step four of the
eight-step process),8 contending that the ALJ committed reversible error when she
determined that the opinions of her treating physician, Deborah Morris-Harris, M.D. (“Dr.
Morris-Harris”), were entitled to “no significant weight” but did not adequately explain why.
R. 22.
A
Jones maintains that, under 20 C.F.R. § 404.1527(d)(2), the ALJ must “always give
good reasons in [her] notice of determination or decision for the weight [she] give[s] [the]
treating source’s opinion,” and that a treating source’s opinion on the nature and severity of
a claimant’s impairments, if “well-supported by medically acceptable clinical and laboratory
diagnostic techniques and . . . not inconsistent with . . . other substantial evidence,” must be
given “controlling weight.” Newton v. Apfel, 209 F.3d 448, 455 (5th Cir. 2000) (internal
8
See 20 C.F.R. § 404.1594(b)(4), (c)(2) (explaining that, at step four, the ALJ must
assess whether medical improvement is related to ability to work by comparing the new RFC
to the old RFC).
- 21 -
quotation marks and citations omitted); id. at 456 (“[A]n 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.”); see also 20 C.F.R. § 404.1527(d)(1)-(6) (listing five
factors—examining relationship, treatment relationship, supportability, consistency,
specialization—that must be weighed with any other factors brought to ALJ’s attention).
The Commissioner responds that the ALJ’s decision to give Dr. Morris-Harris’
opinion no significant weight is justified because the evidence overall is contrary to Dr.
Morris-Harris’ opinions, and that Newton only requires the ALJ to discuss the § 404.1527(d)
factors when favoring the testimony of a non-examining, non-specialty physician over that
of the claimant’s treating physician when the record does not contain competing first-hand
medical evidence to support the ALJ’s decision. The Commissioner argues in the alternative
that the ALJ’s discussion of the § 404.1527(d) factors is sufficient.
B
Although the court holds below that the ALJ committed Newton-type error that
requires that the decision be vacated and remanded, it agrees at a threshold level that the ALJ
was not obligated to give Dr. Morris-Harris’ opinions controlling weight.
Section
404.1527(d)(2) only permits a treating physician’s opinion on the nature and severity of an
impairment to carry controlling weight when it is “well-supported by medically acceptable
clinical and laboratory diagnostic techniques” and “not inconsistent with other substantial
evidence” in the record. 20 C.F.R. § 404.1527(d)(2). Some of the record evidence conflicts
with Dr. Morris-Harris’ opinion about Jones’s abilities. Although Dr. Morris-Harris opined
- 22 -
on September 5, 2008 and June 22, 2009 that the side effects of the HIV medication would
make regular job attendance difficult, R. 1028, 1306, other evidence in the record indicated
that Jones felt “fine” on HIV medication on January 3, 2007 and did not experience weight
loss, id. at 722, 1028, 1306, leading the ALJ to find that the HIV medication’s side effect of
diarrhea was not debilitating, see id. at 67 (relating ME’s opinion that lack of weight loss
indicates that problem was not significant). Dr. Morris-Harris also noted that Jones had
chronic weakness and fatigue that could preclude him from working a full eight-hour day.
R. 1028, 1306. The ALJ pointed to a dearth of recent evidence of fatigue and to Dr. Vorhies’
testimony that Jones had anemia at about the same time that Jones reported fatigue. The ALJ
found this to be persuasive evidence that the anemia might have caused the fatigue and that,
because Jones’s anemic condition had stabilized afterwards, see, e.g., R. 1306 (indicating no
anemia on September 22, 2009), fatigue was not a permanent problem, id. at 20. The ALJ
also criticized the relative lack of evidence supporting the existence of fatigue, concluding
that medical records would have revealed more frequent indications of fatigue than every two
years if Jones had suffered from debilitating levels of fatigue. R. 20. Because contrary
evidence exists and Dr. Morris-Harris’ opinion is not in this respect “well-supported,” the
ALJ was not obligated to give controlling weight to Dr. Morris-Harris’ opinions on fatigue,
nausea, or diarrhea.
Dr. Morris-Harris also opined in a physical RFC capacity questionnaire dated June
21, 2009 that Jones would require occasional rest periods during the day, frequent flexibility
to change positions, and occasional flexibility to elevate his legs, and be limited to two hours
- 23 -
of sitting, two hours of standing and walking, no carrying and lifting of any amount, no
amount of bending, squatting, climbing, reaching up, and only occasional kneeling in an
eight-hour day. R. 1302-03. In a subsequent questionnaire dated September 7, 2009, Dr.
Morris-Harris added that Jones could only sit for five minutes at one time, stand for five
minutes at one time, and walk one-half a block at a time. She stated that Jones would require
a cane for walking, require 3-minute walking breaks every 20 minutes, and never be
permitted to twist, stoop, crotch, squat, or climb ladders or stairs. Dr. Morris-Harris also
estimated that Jones would require “more than four” absences from work per month. R.
1427-29. The ALJ rejected Dr. Morris-Harris’ assessment of Jones’ physical capabilities,
noting that Jones did not begin using a cane until around May 2008. R. 129. Dr. MorrisHarris’ assessment of physical capacity also conflicts with an earlier RFC assessment dating
back to March 21, 2007 by John Durfor, M.D. (“Dr. Durfor”), R. 839, which affirmed that
Jones had maintained the same level of RFC since November 27, 2006, when Scott Spoor,
M.D. (“Dr. Spoor”), assessed Jones to have the ability to carry 10 pounds frequently and 20
pounds occasionally, sit, stand or walk about 6 hours out of an 8-hour work day, and function
without postural or manipulative limitations. R. 708-14. Other record evidence would
permit the finding that Jones’s musculoskeletal condition remained the same over the course
of 2007 and 2008. R. 1234 (noting, in April 3, 2009 examination, that pain levels had
remained at the same intensity since the back pain began in 2007). Therefore, the ALJ was
not required to give controlling weight to Dr. Morris-Harris’ opinion of Jones’s physical
RFC.
- 24 -
Finally, the ALJ discounted Dr. Morris-Harris’ June 21, 2009 conclusion that Jones’s
musculoskeletal limitations began “2 yrs ago” (i.e., around June 2007), R. 1304, and her
September 7, 2009 conclusion that the “earliest” that the musculoskeletal limitations could
have occurred was “2006,” id. at 1429, finding them contradictory. The court holds that
these two conclusions do not necessarily conflict because, in June 2009, Dr. Morris-Harris
was responding to the question, “When did the limitations begin to be disabling[?]” and in
September 2009 she was responding to the question, “What is the earliest date that the
description of symptoms and limitations . . . applies?” (first emphasis added; second
emphasis in original). Nevertheless, the court must uphold the ALJ’s decision not to give
controlling weight to Dr. Morris-Harris’ opinion to the extent it specifies a 2006 onset date
because the opinion is inconsistent with other record evidence. See, e.g., R. 1234 (finding
that back pain began after specific incident in 2007 when Jones popped his back while lifting
a couch); cf. R. 16 (noting evidence of some degenerative changes in the lumbar spine in
2006, but concluding after investigating Jones’s medical history that the musculoskeletal
impairments were asymptomatic until aggravated in 2007).
C
Jones contends that, even if the ALJ need not have given controlling weight to Dr.
Morris-Harris’ opinions, the ALJ was nevertheless obligated to explain the degree of weight
given by analyzing the expert opinion under the factors listed in 20 C.F.R. § 404.1527(d).
1
Under Newton, “absent reliable medical evidence from a treating or examining
- 25 -
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).” Newton, 209 F.3d at 453.
“This court has vacated and remanded decisions of the Commissioner when the ALJ has
rejected the opinion of a treating physician without explicitly considering the § 404.1527(d)
factors and the treating physician’s opinion is not controverted by reliable medical evidence
from another treating or examining physician.” Parham v. Barnhart, No. 3:05-CV-1043-D,
slip op. at 18 (N.D. Tex. Apr. 28, 2006) (Fitzwater, J.) (citing Segovia v. Barnhart, No. 3:04CV-2246-D, slip op. at 14 (N.D. Tex. Aug. 9, 2005) (Fitzwater, J.); Sailsbury v. Comm’r,
2003 U.S. Dist. LEXIS 21327, at *12 (N.D. Tex. Oct. 31, 2003) (Fitzwater, J.)). “Newtontype error supports reversal, however, only when there is error and the plaintiff has suffered
prejudice.” Id. at 17-18 (citing Mettlen v. Barnhart, 88 Fed. Appx. 793 (5th Cir. 2004) (per
curiam) (unpublished opinion) (“In order to obtain reversal, [plaintiff] must show both error
and some resulting prejudice.”)). “Prejudice can be established by showing that the
additional considerations might have led to a different decision.” Id. at 18 (quoting Mettlen,
88 Fed. Appx. at 793) (internal quotation marks omitted).
2
The ALJ concluded that Dr. Morris-Harris’ opinions were entitled to “no weight,” R.
20, after noting that her opinions on his nausea, diarrhea, and fatigue side effects were
inconsistent with Dr. Vorhies’ testimony that the diarrhea was unlikely to be a significant
problem when there is no evidence of weight loss, R. 67, and his testimony that Jones had
- 26 -
suffered several bouts of anemia, id. at 66, which the ALJ interpreted as evidence that the
fatigue could be a temporary effect of anemia that has since stabilized, id. at 20. Dr. Vorhies,
however, was not a treating physician or even an examining physician. He was a testifying
ME, and his knowledge of Jones’s condition was based on a review of Jones’s treatment
record. R. 60. And Dr. Vorhies only addressed generally how weight loss could indicate a
significant condition, where “significant” was rather circularly defined as “enough to cause
him to lose weight,” R. 67. Also, contrary to the ALJ’s explanation in her decision, there is
no indication in the hearing record that Dr. Vorhies took a position on whether Jones’s
fatigue was caused by anemia. Dr. Vorhies simply noted, based on the record, that Jones had
been anemic on several occasions throughout 2006 when he became sick with pneumonia.
Dr. Vorhies did not draw any inferences connecting the anemia and the fatigue. R. 65-66.
Therefore, because Dr. Vorhies was not a treating or examining physician, and
because his testimony does not controvert Dr. Morris-Harris’ specific conclusions, the ALJ
was obligated under Newton to perform a detailed analysis of Dr. Morris-Harris’ views under
the five factors set forth in 20 C.F.R. § 404.1527(d).
Here, the ALJ’s failure to address the five factors caused Jones prejudice. Had the
ALJ acknowledged the importance of the examining and treatment relationships of Dr.
Morris-Harris to Jones (especially when contrasted with Dr. Vorhies’ lack of personal
familiarity as a non-examining physician), she might have been more reluctant to give Dr.
Morris-Harris’ opinion “no weight.”
Had the ALJ examined the supportability and
consistency of Dr. Morris-Harris’ opinion in relation to the other evidence in the record, she
- 27 -
might have recognized that Dr. Vorhies’ generalized opinion (i.e., noting that diarrhea is
generally unlikely to be debilitating when there is no weight loss) did not specifically
contradict Dr. Morris-Harris’ findings (i.e., that diarrhea was debilitating for Jones). Careful
examination of the source, supportability, and consistency of Dr. Morris-Harris’ opinion
might have aided the ALJ in separating out what was actually supported by expert testimony
(e.g., Dr. Vorhies’ testimony noting in effect that Jones’s fatigue occurred around the same
time as Jones’s anemic condition) and what was the ALJ’s own inference (e.g., her
conclusion that the anemia caused the fatigue, which she inaccurately attributed to Dr.
Vorhies). The court concludes that such additional considerations might have led to a
different decision because giving greater weight to Dr. Morris-Harris’ opinion might have
led the ALJ to agree with Dr. Morris-Harris’ conclusions on the severity of Jones’s nausea,
fatigue, and diarrhea and have ultimately affected the ALJ’s RFC determination. A more
limited RFC determination, in turn, might have affected the VE’s determination that Jones
was capable of performing a significant number of jobs available in the economy, a finding
that would directly affect Jones’s finding of disability or lack thereof.
3
The ALJ also adopted a physical RFC different from the one proposed in Dr. MorrisHarris’ physical RFC assessment. Compare R. 21 with id. at 1302. The ALJ concluded that
Jones had greater physical RFC than what Dr. Morris-Harris had opined, but less than what
the medical consultants had determined. See R. 707-14 (physical RFC assessment of Dr.
Spoor); R. 839 (case assessment form of Dr. Durfor affirming Dr. Spoor’s RFC after review
- 28 -
of evidence in file); R. 1282-89 (physical RFC assessment of medical consultant, Leigh
McCary, M.D. (“Dr. McCary”)). It appears that, as medical consultants, Drs. Spoor, Durfor,
and McCary did not have an opportunity to examine Jones firsthand. To support their
opinions, they cited results on file from earlier examinations and tests done by others. The
ALJ also supported her RFC determination by citing Jones’s self-reported back pain levels,
R. 878 (reporting between a 6 and 8 on a scale of 1 to 10), id. at 1219 (reporting an 8);
pointing to nerve conduction test results done in February 28, 2008, id. at 846; and citing an
October 3, 2007 report, which the ALJ found showed significant improvement in Jones’s
musculoskeletal condition, id. at 22. While the nerve conduction test results, the October
2007 report, and Jones’s self-reported pain ratings were obtained through treating and
examining physicians, the cited evidence does not appear to contain any opinions by these
physicians that would have contradicted Dr. Morris-Harris’ assessment. (In fact, Dr. MorrisHarris was one of the physicians who gathered the data.) Rather, the conclusion that “this
evidence and nerve conduction studies performed . . . suggest symptomatology that would
have precluded the claimant from standing/walking in excess of 4 hours, working without
a sit/stand option, climbing ladders/ropes/scaffolds and more than occasionally performing
postural maneuvers,” R. 22, appears to be the ALJ’s own inference, drawn from the raw data
in the record. From the court’s review of the record, it is not apparent that a treating or
examining physician expressed such a conclusion. Because there does not appear to be
reliable evidence from a treating or examining source to controvert Dr. Morris-Harris’
physical RFC assessments, the ALJ was obligated under Newton to perform a detailed
- 29 -
analysis under the five factors set forth in 20 C.F.R. § 404.1527(d) before rejecting Dr.
Morris-Harris’ physical RFC opinion.
This error is prejudicial and requires reversal because, as before, the consideration of
factors such as the examining and treatment relationships of the various competing medical
opinions might have altered the outcome of the ALJ’s disability determination. Although the
ALJ acknowledged that Dr. Morris-Harris was a treating source, R. 19, she did not address
this treatment relationship as a significant factor in determining the weight of Dr. MorrisHarris’ opinion in relation to the weight accorded to the non-examining physicians’ opinions.
Had the ALJ decided on the weight to accord Dr. Morris-Harris’ opinion after she had given
due consideration to the importance of Dr. Morris-Harris’ examining and treating
relationship, the ALJ might have come to a different conclusion about whether to credit Dr.
Morris-Harris’ evaluation of the physical RFC over the evaluations of non-examining
physicians or the ALJ’s own evaluation of the nerve conduction studies and October 2007
report. A physical RFC determination that attributed more limitations to Jones could affect
the ALJ’s determination at step eight by further limiting the number of jobs that Jones would
be able to perform and leading the ALJ to find that Jones cannot perform any substantial
gainful activity. Jones was therefore prejudiced.
4
Finally, the ALJ found Dr. Morris-Harris’ opinion on the onset date of Jones’s
musculoskeletal limitations was entitled to “no significant weight,” R. 22, finding that two
of Dr. Morris-Harris’ opinions reported contradictory dates. This finding is not supported
- 30 -
by substantial evidence. As noted above, see supra § V(B), these conclusions do not
necessarily conflict because Dr. Morris-Harris was responding to different questions. In June
2009, Dr. Morris-Harris was responding to the question, “When did the limitations begin to
be disabling[?]” and in September 2009 she was responding to the question, “What is the
earliest date that the description of symptoms and limitations . . . applies?” (first emphasis
added; second emphasis in original). Compare R. 1304 with id. at 1429. A treating
physician could logically opine that 2006 was the earliest a patient’s symptoms of
musculoskeletal limitation could have been observed, but that the patient’s limitations did
not begin to be disabling until about 2007. There is evidence in the record that cast doubt
on the 2006 date, see, e.g., R. 1234 (claimant’s explanation to examiner that back pain began
after popping his back in 2007 while lifting a couch), but none of it originates from a treating
or examining source. Therefore, under Newton, the ALJ was required to perform a detailed
analysis under the five factors set forth in 20 C.F.R. § 404.1527(d) before rejecting Dr.
Morris-Harris’ opinion.
This error is prejudicial and requires reversal because the ALJ might have come to a
different conclusion about when Jones’s disability ended had she given greater weight to Dr.
Morris-Harris’ opinion that symptoms of musculoskeletal limitations could have existed as
early as 2006 and that the limitations could have become disabling as of sometime in 2007.
The ALJ might have given greater weight to Dr. Morris-Harris’ opinion had she given proper
weight to the examining and treatment relationships between Dr. Morris-Harris and Jones,
as required under 20 C.F.R. § 404.1527(d)(1) and (2); and if she had engaged in closer
- 31 -
scrutiny of Dr. Morris-Harris’ two putatively “contradictory” statements under the
consistency factor, as required under 20 C.F.R. § 404.1527(4), she might have come to the
conclusion that the two statements do not contradict each other after all.
The court therefore vacates the Commissioner’s decision in part and remands this case
so that the ALJ can comply with Newton.9
VI
Jones argues that the ALJ failed to explain properly how the alleged medical
improvement was related to an increase in his ability to do work, because Susan Birks, a VE,
did not explain what percentage of the jobs she deemed suitable for Jones would comport
with Jones’s RFC, R. 54, and the ALJ posed a faulty hypothetical question to the VE that did
not incorporate the “moderate difficulties in maintaining concentration, persistence or pace”
limitation the ALJ had found, id. at 20. Although the first argument is presented as a
challenge to step four, it in effect appears to challenge step eight, because a VE’s
9
After complying with Newton, the ALJ must proceed with the remainder of the eightstep disability cessation inquiry in light of any revised RFC determinations. Although the
ALJ is free, of course, to find on remand that the evidence does not support the conclusion
that Jones is disabled, she cannot reach this result without assessing Dr. Morris-Harris’
pertinent opinions according to the § 404.1527(d) factors and otherwise complying with this
memorandum opinion.
And although the court need not review the ALJ’s treatment of step eight because of
errors in earlier steps requiring remand, the court notes that the ALJ’s statement of the
allocation of burden, see R. 14 (noting that claimant generally has burden of proving
disability at eighth step, but that a limited burden of going forward with the evidence shifts
to the Social Security Administration) may need reconsideration in light of the instruction
in Waters regarding burden of proof in closed-period cases. See Waters, 276 F.3d at 718-19
(holding that medical improvement standard, where government has burden of proving that
person is no longer disabled, applies in determining cessation date in closed-period cases).
- 32 -
determination of the number of available jobs is part of step eight, not step four.10 Although
this argument contains two components that present distinct issues, the court need not
address either one because the ALJ’s consideration of Dr. Morris-Harris’ opinions on remand
may affect Jones’s RFC determination and require a new response from a VE that has been
reformulated in a way that materially differs from the one challenged in this appeal.
*
*
*
The Commissioner’s decision is AFFIRMED in part and VACATED in part and
REMANDED to the Commissioner for further proceedings consistent with this memorandum
opinion.
July 5, 2011.
_________________________________
SIDNEY A. FITZWATER
CHIEF JUDGE
10
Subsections (b)(4) and (c)(2) of 20 C.F.R. § 404.1594 make clear that an ALJ must
determine whether a medical improvement affects one’s ability to do work by comparing the
old RFC with the new RFC, not by comparing the VE’s opinion of increased number of jobs
available.
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