Wilkerson v. Colvin
MEMORANDUM OPINION AND ORDER: The hearing decision is reversed and this case is remanded to the Commissioner of Social Security for further proceedings consistent with this opinion. (Ordered by Magistrate Judge David L. Horan on 3/23/2017) (mcrd) Modified on 3/23/2017 (mcrd).
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
DANNY T. WILKERSON,
NANCY A. BERRYHILL,
Acting Commissioner of Social Security, §
MEMORANDUM OPINION AND ORDER
Plaintiff Danny T. Wilkerson seeks judicial review of a final adverse decision of
the Commissioner of Social Security pursuant to 42 U.S.C. § 405(g). For the reasons
explained below, the hearing decision is remanded.
Wilkerson alleges that he is disabled due to a variety of ailments, including
“fibromyalgia and chronic fatigue syndrome, among other things.” Dkt. No. 16 at 6.
After his application for supplemental security income (“SSI”) benefits was denied
initially and on reconsideration, he requested a hearing before an administrative law
judge (“ALJ”). That hearing was held on September 24, 2014. At the time of the
hearing, he was 50 years old. He is a high school graduate and does not have past
relevant work as that term is defined in the Commissioner’s regulations. He has not
engaged in substantial gainful activity since October 9, 2012.
The ALJ found that Wilkerson was not disabled and therefore not entitled to SSI
benefits. Although the medical evidence established that he suffered from fibromyalgia,
chronic fatigue syndrome, major depressive disorder, panic disorder, anxiety, and social
phobia, among other conditions, the ALJ concluded that the severity of those
impairments did not meet or equal any impairment listed in the social security
regulations. The ALJ further determined that he “ha[d] the residual functional
capacity to sit up to six hours and stand up to six hours in an eight-hour day, ... to lift
ten pounds frequently and twenty pounds occasionally, occasionally climb, balance,
bend, stoop, kneel, crouch, and crawl, ... [and] occasionally interact with the general
public, and with supervisors and coworkers.” Administrative Record [Dkt. No. 12]
(“Tr”) at 25.
Relying on a vocational expert’s testimony, the ALJ found that Wilkerson was
capable of working as a photocopy operator, housekeeper, and routing clerk – jobs that
exist in significant numbers in the national economy. Given his age, education, and
exertional capacity for light work, the ALJ determined that he was not disabled under
the Medical-Vocational Guidelines.
Wilkerson appealed that decision to the Appeals Council. The Council affirmed.
He then filed this action in federal district court. He challenges the hearing
decision on three general grounds: (1) the ALJ improperly rejected the opinion of his
treating physician, Dr. Deno Barroga; (2) the ALJ improperly rejected the opinion of
an examining psychologist, Dr. Julie Duncan, PhD; and (3) substantial evidence does
not support the ALJ’s findings with respect to Wilkerson’s residual functional capacity
The Court determines that the hearing decision must be reversed and this case
remanded to the Commissioner of Social Security for further proceedings consistent
with this opinion.
Judicial review in social security cases is limited to determining whether the
Commissioner’s decision is supported by substantial evidence on the record as a whole
and whether the Commissioner applied the proper legal standards to evaluate the
evidence. See 42 U.S.C. § 405(g); Copeland v. Colvin, 771 F.3d 920, 923 (5th Cir. 2014);
Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995). Substantial evidence is “more than
a mere scintilla. It means such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971);
accord Copeland, 771 F.3d at 923. The Commissioner, rather than the courts, must
resolve conflicts in the evidence, including weighing conflicting testimony and
determining witnesses’ credibility, and the Court does not try the issues de novo. See
Martinez v. Chater, 64 F.3d 172, 174 (5th Cir. 1995); Greenspan v. Shalala, 38 F.3d
232, 237 (5th Cir. 1994). This Court may not reweigh the evidence or substitute its
judgment for the Commissioner’s but must scrutinize the entire record to ascertain
whether substantial evidence supports the hearing decision. See Copeland, 771 F.3d
at 923; Hollis v. Bowen, 837 F.2d 1378, 1383 (5th Cir. 1988). The Court “may affirm
only on the grounds that the Commissioner stated for [the] decision.” Copeland, 771
F.3d at 923.
“In order to qualify for disability insurance benefits or [supplemental security
income], a claimant must suffer from a disability.” Id. (citing 42 U.S.C. § 423(d)(1)(A));
20 C.F.R. §§ 404.1527(c), 416.927(c). A disabled worker is entitled to monthly social
security benefits if certain conditions are met. See 42 U.S.C. § 423(a). The Act defines
“disability” as the inability to engage in substantial gainful activity by reason of any
medically determinable physical or mental impairment that can be expected to result
in death or last for a continued period of 12 months. See id. § 423(d)(1)(A); see also
Copeland, 771 F.3d at 923; Cook v. Heckler, 750 F.2d 391, 393 (5th Cir. 1985).
“In evaluating a disability claim, the Commissioner conducts a five-step
sequential analysis to determine whether (1) the claimant is presently working; (2) the
claimant has a severe impairment; (3) the impairment meets or equals an impairment
listed in appendix 1 of the social security regulations; (4) the impairment prevents the
claimant from doing past relevant work; and (5) the impairment prevents the claimant
from doing any other substantial gainful activity.” Audler v. Astrue, 501 F.3d 446, 44748 (5th Cir. 2007).
The claimant bears the initial burden of establishing a disability through the
first four steps of the analysis; on the fifth, the burden shifts to the Commissioner to
show that there is other substantial work in the national economy that the claimant
can perform. See Copeland, 771 F.3d at 923; Audler, 501 F.3d at 448. A finding that the
claimant is disabled or not disabled at any point in the five-step review is conclusive
and terminates the analysis. See Copeland, 771 F.3d at 923; Lovelace v. Bowen, 813
F.2d 55, 58 (5th Cir. 1987).
In reviewing the propriety of a decision that a claimant is not disabled, the
Court’s function is to ascertain whether the record as a whole contains substantial
evidence to support the Commissioner’s final decision. The Court weighs four elements
to determine whether there is substantial evidence of disability: (1) objective medical
facts; (2) diagnoses and opinions of treating and examining physicians; (3) subjective
evidence of pain and disability; and (4) the claimant’s age, education, and work history.
See Martinez, 64 F.3d at 174.
The ALJ has a duty to fully and fairly develop the facts relating to a claim for
disability benefits. See Ripley, 67 F.3d at 557. If the ALJ does not satisfy this duty, the
resulting decision is not substantially justified. See id. However, the Court does not
hold the ALJ to procedural perfection and will reverse the ALJ’s decision as not
supported by substantial evidence where the claimant shows that the ALJ failed to
fulfill the duty to adequately develop the record only if that failure prejudiced Plaintiff,
see Jones v. Astrue, 691 F.3d 730, 733 (5th Cir. 2012) – that is, only if Plaintiff’s
substantial rights have been affected, see Audler, 501 F.3d at 448. “Prejudice can be
established by showing that additional evidence would have been produced if the ALJ
had fully developed the record, and that the additional evidence might have led to a
different decision.” Ripley, 67 F.3d at 557 n.22. Put another way, Plaintiff “must show
that he could and would have adduced evidence that might have altered the result.”
Brock v. Chater, 84 F.3d 726, 728-29 (5th Cir. 1996).
The ALJ erred when assigning Dr. Barroga’s opinion limited weight.
Wilkerson first contends that the ALJ erred by “essentially reject[ing] the
opinion of [his] treating physician,” Dr. Barroga. Dkt. No. 16 at 16; see Tr. at 26 (“The
undersigned gives little weight to [Dr. Barroga’s] assessment.”). Wilkerson specifically
argues that the ALJ erred by rejecting his treating physician’s opinion without
conducting the detailed analysis 20 C.F.R. § 416.927(c) requires and without good
cause. The Court agrees.
The ALJ is required to consider the Section 426.927(c) factors in this case.
In Newton v. Apfel, the United State Court of Appeals for the Fifth Circuit found
that “an ALJ is required to consider each of the § [416.927(c)] factors before declining
to give any weight to the opinions of the claimant’s treating specialist.” See 209 F.3d
448, 456 (5th Cir. 2000) (making this point in the context of 20 C.F.R. § 404.1527(c),
an equivalent to 20 C.F.R. § 416.927(c)). These factors include: “(1) the physician’s
length of treatment of the claimant; (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.” Id.; 20
C.F.R. § 416.927(c). The Court of Appeals has since explained that “[t]he Newton court
limited its holdings to cases where the ALJ rejects the sole relevant medical opinion
before it.” Qualls v. Astrue, 339 F. App’x 461, 467 (5th Cir. 2009). As a result, when
there are competing opinions of treating or examining physicians, the ALJ does not
need to consider each Section 416.927(c) factor when declining to defer to the treating
physician’s opinion. See id. at 465.
The Commissioner argues that “the ALJ had no duty to evaluate Dr. Barroga’s
opinion using the factors in 20 C.F.R. § 416.927(c)” because “there is competing-first
hand medical evidence and the ALJ finds as a factual matter that one doctors opinion
is more well-founded than another.” Dkt. No. 17 at 18 (quoting Newton v. Apfel, 209
F.3d 448, 458 (5th Cir. 2000)).
The Commissioner is correct that an ALJ is not required to conduct a Section
416.927(c) analysis before rejecting a treating physician’s opinion in the “‘absen[ce] [of]
reliable medical evidence from a treating or examining physician controverting the
claimant’s treating specialist.’” Qualls, 339 F. App’x at 466 (quoting Newton, 209 F.3d
at 453)). But that is not the case here.
The ALJ declined to defer to Dr. Barroga’s conclusions because they are
purportedly not supported by “objective medical evidence.” Tr. at 23, 27-28. The ALJ
specifically cites to x-ray results and observations in Drs. Rakiya Diallo, Yasmin Khan,
and Jamie Williamson’s respective examination notes suggesting that Wilkerson’s
symptoms were fairly minimal. See id. at 29. The ALJ also cites Drs. Frederick
Cremona and Laurence Ligon’s respective State Agency Consultant Reports, to which
he assigned substantial weight. The ALJ found that these reports indicate that
Wilkerson’s allegations were not fully consistent with the objective medical evidence
and that Wilkerson could perform light work activity.
None of the evidence the ALJ cites in his decision allows him to bypass a Section
416.927(c) analysis before assigning Dr. Barroga’s opinion limited weight. The Fifth
Circuit only allows an ALJ to bypass this analysis when he or she points to a
“competing opinion” of an “examining physician.” Qualls, 339 F. App’x at 467. Drs.
Khan, Diallo, and Williamson tracked Plaintiff’s symptoms at particular moments in
time. They were not “called upon to explain how Wilkerson’s fibromyalgia affected his
work-related limitations.” Dkt. No. 18 at 5. They consequently cannot be said to have
provided a competing opinion. As this Court has noted, “[m]edical notes that do not
give an opinion on Plaintiff’s physical limitations in the workplace or what activities
[he] would be able to perform do not controvert the opinion of Plaintiff’s treating
physician.” Anderson v. Colvin, No. 3:15-cv-781-BN, 2016 WL 299019, at *6 (N.D. Tex.
Jan. 25, 2016) (citing Jackson v. Astrue, No. 4:10-cv-150-Y, 2011 WL 816850, at *9
(N.D. Tex. Feb. 15, 2011)).
The ALJ also cites to Drs. Cremona and Ligon’s respective State Agency
Consultant Reports, in which they conclude that Plaintiff could perform light work. But
neither actually examined Wilkerson. As such, the ALJ’s decision to defer to them in
place of the treating physician is not supported by substantial evidence. See Villa v.
Sullivan, 895 F.2d 1019, 1024 (5th Cir. 1990) (citing Lamb v. Bowen, 847 F.2d 698, 703
(11th Cir. 1988), and Strickland v. Harris, 615 F.2d 1103, 1109-10 (5th Cir. 1980), to
explain that an ALJ may not solely rely on the reports of non-examining physicians
when the non-examining physician’s conclusions “either contradict or are unsupported
by findings made by an examining physician”).
The ALJ was therefore required to conduct the detailed analysis Section
416.927(c) requires before rejecting Dr. Barroga’s conclusions.
The ALJ did not consider the Section 416.927(c) factors in this case.
The Commissioner appears to argue that the ALJ considered the Section
416.927(c) factors even if he did not explicitly purport to do so. See Dkt. No. 17 at 18
(noting that the ALJ considered that Dr. Barroga was treating Plaintiff for
fibromyalgia, and thereby, necessarily considered the “treating and nature of
treatment factors”). Courts in this district do not always require the ALJ to discuss
each of the Section 416.927(c) factors “if it is clear that the ALJ has nevertheless
considered the factors and the ALJ’s decision to afford limited weight to the treating
physician constitutes ‘good cause.’” Gerkn v. Colvin, No. 3:13-cv-1586-BN, 2014 WL
840039, at *6 (N.D. Tex. March 4, 2014) (citing Brock v. Astrue, No. 3:10-cv-1399-BD,
2011 WL 4348305, at *4 (N.D. Tex. Sept. 16, 2011)).
The ALJ does not appear to have considered all of the Section 416.927(c) factors
in this case. The ALJ discussed select pieces of evidence in some of Dr. Barroga’s
examinations of Wilkerson. He also explains why Dr. Barroga’s findings at these
examinations are not entirely supported by the record. The Court agrees that, by so
doing, the ALJ might have considered the nature of Barroga’s relationship with
Wilkerson (Factor No. 3), the support for Dr. Barroga’s opinion afforded by the medical
evidence of record (Factor No. 4), and the consistency of the opinion with the record as
a whole (Factor No. 5) – at least in part.
It does not follow that the ALJ considered the length of time in which Dr.
Barroga treated Wilkerson (Factor No. 1),the frequency with which Dr. Barroga treated
Wilkerson (Factor No. 2), the full nature and extent of Dr. Barroga’s relationship with
Wilkerson since he started treating him in 2005 (Factor No. 3), or Dr. Zahabi’s
specialty in rheumatology (Factor No. 6). The ALJ does not at all discuss when Dr.
Barroga first treated Wilkerson (2005) or last treated Wilkerson (2015), how often
Wilkerson specifically received treatment from Dr. Barroga, or whether Dr. Zahabi’s
specialty in rheumatology might inform his conclusions about a long-term patient
suffering from an illness “that often lacks objective clinical findings.” Bragg v. Comm’r
of Soc. Security Admin., 567 F. Supp. 2d 893, 912 (N.D. Tex. 2008) (citing Welch v.
Unum Life Ins. Co. of Am., 382 F.3d 1078, 1087 (10th Cir. 2004), among other cases).
In the absence of sufficient evidence in the ALJ’s decision that he discussed each of
these factors, the Court cannot simply presume that he did so. Courts “may affirm only
on the grounds the Commissioner stated for [the] decision.” Purdhomme v. Colvin, 605
F. App’x 250, 254 (5th Cir. 2015) (citing Copeland, 771 F.3d at 923).
The ALJ’s decision to reject Dr. Barroga’s opinion is not supported by
But it ultimately does not matter whether the ALJ considered the Section
416.927(c) factors in this case. The ALJ’s decision to assign limited weight to Dr.
Barroga’s opinions is not substantially supported by the evidence. The ALJ has
consequently acted without good cause.
In Bragg, another judge in this District explained that, “[w]hen a claimant has
an accepted diagnosis, such as fibromyalgia, that often lacks objective clinical findings,
an allegation of an absence of objective clinical findings does not alone constitute good
cause to reject opinions of treating physicians. To show good cause under the
circumstances, the ALJ’s decision must do more than merely state that the opinions
‘are not supported by any objective clinical findings.’” 567 F. Supp. 2d at 911.
“[F]ibromyaliga is an illness with only subjective symptoms.” Campbell v. Astrue, No.
SA CV 7-864-PLA, 2008 WL 4792672, at *10 (C.D. Cal. Oct. 29, 2008) (citing Sarchet
v. Chater, 78 F.3d 305, 306-07 (7th Cir. 1996)). As such, an absence of objective clinical
findings may be entirely consistent with the treating physician’s conclusions. And the
ALJ repeatedly explained that he rejected Dr. Barroga’s conclusions precisely because
they were not supported by the “objective medical evidence.” See Tr. at 23, 27-28.
The Commissioner argues that this case is distinct from Bragg because, in that
case, the ALJ failed to “fully consider the opinions of all of [the claimant’s] treating
and examining physicians.” Dkt. No. 17 at 16. The ALJ may have recited some facts
from the physicians in the record. But the ALJ often failed to cite or otherwise discuss
the portions of physician opinions that contradict his conclusions. For instance, as
discussed in greater detail below, the ALJ failed to discuss an examining physician’s
findings that Wilkerson would have difficulty concentrating, interacting with others,
and coping with normal work pressures, among other curious omissions.
The Commissioner also contends that “[t]he ALJ in the instant case did more by
reciting the medical opinions by several other treating and examining physicians that
contradicted Dr. Barroga’s conclusions.” Dkt. No. 17 at 15. But, as Wilkerson correctly
notes, “the ‘other evidence’ the ALJ relied on was nothing more than an absence of
clinical findings noted by other physicians.” Dkt. No. 18 at 4. This includes select
observations that “Plaintiff had diffuse tenderness but normal range of motion in the
extremities, normal strength, normal reflexes, and normal coordination, with no
cranial nerve or sensory deficit (Tr. 26, 229),” and “no musculoskeletal or psychiatric
abnormality (Tr. 26, 235).” Dkt. No. 17 at 15.
These observations might not allow the ALJ to reject Dr. Barroga’s findings even
if Wilkerson only suffered from conditions that, unlike fibromyalgia, can be tracked by
objective clinical findings. These physicians “d[id] not give an opinion on [Wilkerson’s]
physical limitations in the workplace or what activities [he] would be able to perform.”
Anderson, 2016 WL 299019, at *6. And so they “do not controvert the opinion of
[Wilkerson’s] treating physician.” Id. “An [ALJ] may not arbitrarily reject
uncontroverted medical testimony.” Strickland, 615 F.2d at 1110.
The ALJ’s failure to properly consider Dr. Barroga’s opinion is material.
“[F]ailure to adhere to the procedures proscribed by the Social Security
regulations is generally sufficient grounds for reversal and remand of an
administrative decision.” Alejandro v. Barnhart, 291 F. Supp. 2d 497, 515 (S.D. Tex.
2003) (citing Frey v. Bowen, 816 F.2d 508, 512 (10th Cir. 1987)). But a failure does not
necessarily dictate a remand for further review. The Court will affirm a decision if the
ALJ’s error is harmless and remand if the plaintiff was prejudiced due to the error. See
id. A plaintiff establishes prejudice by showing that the ALJ could have reached a
different outcome but for the error in question. Newton, 209 F.3d at 458.
The ALJ could have reached a different outcome here. The ALJ determined
Wilkerson’s RFC without regard to Dr. Barroga’s conclusions. As the ALJ
acknowledges, Dr. Barroga’s conclusions suggest that Wilkerson’s functional
limitations are “debilitating.” Tr. at 27. Dr. Barroga specifically concluded that
Wilkerson could only sit and stand for two hours or so in an eight-hour work day, was
incapable of handling the stress associated with even a low stress job, and would be
absent more than four days a month, among other findings. See id. at 27-28. During
the administrative hearing, the ALJ prohibited Wilkerson’s counsel from asking the
vocational expert to consider the “limitations that [Dr. Barroga] had pointed out.” Id.
at 52. The ALJ reasoned that these observations “call for less than full-time work.”
Id. at 53. He also suggested that, if he found Dr. Barroga’s opinion to be credible, he
would find Wilkerson to be disabled, “regardless of what the vocational expert would
The ALJ’s error might have impacted his determination on Wilkerson’s RFC,
which, “in turn, would likely have affected the jobs available at step five of the
sequential evaluation process.” Kneeland v. Berryhill, __ F.3d __, No. 15-30880, 2017
WL 927781, at *1 (5th Cir. March 8, 2017).
The ALJ failed to properly weigh Dr. Barroga’s opinion and Wilkerson was
harmed by that error.
The ALJ erred by not explaining the extent to which he accepted Dr. Julie
Duncan’s conclusions and his rationale for so doing.
Wilkerson next challenges the ALJ’s purported decision to assign Dr. Duncan’s
conclusions concerning Wilkerson’s work-related limitations no weight. The
Commissioner counters that the ALJ acted properly in so doing. In other words, both
parties appear to presume that the ALJ considered Dr. Duncan’s conclusions
concerning Wilkerson’s work-related limitations and rejected them.
The Court does not agree with this presumption. It is not clear whether the ALJ
assigned any weight to Dr. Duncan’s conclusions concerning Wilkerson’s work
limitations. He, in fact, never purported to assign Dr. Duncan’s conclusions any weight.
Instead, the ALJ appears to have selectively cited Dr. Duncan’s report to the extent it
supports his conclusion, summarily dismissed other sections of her report concerning
Wilkerson’s inability to function at home because they are purportedly only based on
Wilkerson’s self-reports, and then ignored Dr. Duncan’s conclusions that Wilkerson
would have difficulties relating to concentration, pace, social interaction, and coping
with the normal pressures of work. The ALJ’s failure to discuss Dr. Duncan’s findings
concerning Wilkerson’s work-related limitations could mean that he implicitly rejected
those specific findings. But it could also mean that he failed to consider them at all.
Regardless, the ALJ’s failure to discuss Dr. Duncan’s conclusions concerning
Wilkerson’s work limitations is an error of law in and of itself. See Kneeland, 2017 WL
927781, at *8 (finding the ALJ’s “root error” to be “failing to address – or even mention
– Dr. Bernauer’s opinion his decision”). If the ALJ did not consider Dr. Duncan’s
conclusions, “remand is appropriate for consideration of [these] conclusion[s].” id. at
*10. And if the ALJ implicitly “assigned [them] no weight, ... remand is appropriate for
an explanation of the rejected medical [findings], or an explanation of what weight was
assigned.” Id. “[T]he ALJ cannot [simply] reject a medical opinion without an
explanation.’” Id. at *8. The ALJ has an obligation to evaluate every medical opinion
he or she receives, 20 C.F.R. § 416.927(c), and to fully and fairly develop the entire
record, see Copeland, 771 F.3d at 923. The ALJ “cannot ‘pick and choose’ only the
evidence that supports his position.” Loza v. Apfel, 219 F.3d 378, 383 (5th Cir. 2000)
(citing Switzer v. Heckler, 742 F.2d 382, 385-86 (7th Cir. 1984), among other cases).
The Commissioner argues that any error in not addressing Dr. Duncan’s
conclusions should be deemed harmless. She contends that Dr. Duncan’s conclusions
are incorporated in the RFC assessment. As she notes, the RFC assessment accounts
for “Plaintiff’s mild difficulties in social functioning and concentration, persistence, or
pace.” Dkt. No. 17 at 21.
But, by failing to explicitly address Dr. Duncan’s conclusions, “it [is] impossible
to know whether the ALJ properly considered and weighed [her findings]” in
determining Plaintiff only faced “mild” limitations in these areas. Kneeland, 2017 WL
927781, at *10.
“Of course it is possible that the ALJ considered and rejected [Dr. Duncan’s]
opinions, [though] without any explanation, [the Court has] no way of knowing.” Id. at
*10. The mere possibility that the ALJ may have properly considered Dr. Duncan’s
findings does not make the failure to explain harmless. To show prejudice, Wilkerson
is not required to establish unequivocally that the ALJ would have reached a different
decision. See Gullett v. Chater, 973 F. Supp. 614, 621 (E.D. Tex. 1997). He need only
establish that the ALJ might reach a contrary conclusion on remand.
This burden is met here. If the ALJ failed to consider Dr. Duncan’s conclusions
and now afforded them some weight, the ALJ might have reached a contrary
conclusion. Dr. Duncan specifically found that Wilkerson “cannot sustain concentration
and persist in work-related activity at a reasonable pace, ... maintain effective social
interaction on a consistent and independent basis with supervisors, co-workers, and
the public, or cope with normal pressures in a competitive work setting.” Tr. at 48.
These are traits that necessarily inform the ALJ’s RFC determination. This, “in turn,
would likely have affected the jobs available at step five of the sequential evaluation
process.” Kneeland, 2017 WL 927781, at *1.
The ALJ failed to explain how he weighed Dr. Duncan’s conclusions concerning
Wilkerson’s work-related limitations and Wilkerson was harmed by that error.
Substantial evidence does not support the ALJ’s RFC determination.
Finally, Wilkerson appears to argue that the ALJ’s RFC determination is
“internally inconsistent” and therefore not supported by substantial evidence. Dkt. No.
16 at 25. The Court agrees.
The ALJ found that Wilkerson “has the residual functional capacity to sit up to
six hours and stand up to six hours in an eight-hour day,” among other capabilities. Tr.
at 26. To reach this conclusion, the ALJ cited to examination notes indicating that
Wilkerson’s symptoms were fairly minimal. But he did not cite any medical opinions
that support his conclusions on Wilkerson’s ability to sit and stand during a work day.
And each physician charged with making a determination about Wilkerson’s ability to
sit and stand disagreed with the ALJ’s conclusions. Dr. Barroga, Wilkerson’s treating
physician, found that Wilkerson could only sit and stand for about one to two hours in
an eight-hour work day. And Drs. Cremona and Ligon, to whom the ALJ otherwise
purported to substantially defer, each found that Wilkerson could only sit and stand
for four hours in an eight-hour work day.
The ALJ’s apparent decision to disregard these physicians’ findings requires the
Court to conclude that his RFC determination is not substantially supported by the
evidence. As a layperson, the ALJ is not permitted to “draw his own medical
conclusions from some of the data, without relying on a medical expert’s help.” Frank
v. Barnhart, 326 F.3d 618, 621-22 (5th Cir. 2003). “While the ALJ may choose to reject
[a physician’s] opinions, [he] cannot then independently decide the effects of Plaintiff’s
... impairments on [his] ability to perform work-related activities.” Nesbitt v. Colvin,
No. 3:12-cv-98-BN, 2013 WL 5299271, at *5 (N.D. Tex. Sept. 20, 2013) (citing Ripley,
67 F.3d at 557-58).
This case may illustrate precisely why courts caution ALJs from “‘succumb[ing]
to the temptation to play doctor.’” Frank, 326 F.3d at 622 (quoting Schmidt v. Sullivan,
914 F.2d 117, 118 (7th Cir. 1990)). The ALJ selectively cited to unremarkable test
results as evidence that Wilkerson’s fibromyalgia did not prevent him from working.
But fibromyalgia often lacks objective clinical findings. Accordingly, each of the
physicians charged with making such a determination found that Wilkerson was more
limited than the ALJ felt that the objective evidence suggests. After all, “‘lay intuitions
about medical phenomena are often wrong.’” Id. (quoting Schmidt, 914 F.2d at 118).
The Commissioner argues that the ALJ actually considered these findings and
simply exercised his discretion to assign them no weight by ignoring them. This
explanation would not cure the ALJ’s error, even if credited.
The ALJ has a duty to fully and fairly develop the facts relating to a claim for
disability benefits. See Ripley, 67 F.3d at 557. The ALJ is thus required to discuss a
physician’s contrary findings and to explain why he has disregarded those findings.
Kneeland, 2017 WL 927781, at *8. This is particularly true where, as here, the ALJ
claimed to have assigned substantial weight to Drs. Cremona and Ligon’s respective
opinions in one section of his analysis and then ignored their findings when they
contradicted his conclusions. The ALJ “cannot ‘pick and choose’ only the evidence that
supports his position.” Loza, 219 F.3d at 383.
The ALJ’s failure to consider these physicians’ opinions on Wilkerson’s ability
to sit and stand during an eight-hour work day is material. The ALJ concluded that
Wilkerson could work up to six-hours in an eight-hour day and only identified jobs that
Wilkerson could perform based on that assumption. Accordingly, if the ALJ afforded
any of these opinions some weight, he could conclude that Wilkerson is unable to work.
This is especially apparent since the burden is on the Commissioner at Step 5 to
identify gainful employment available in the national economy that the claimant is
capable of performing. See Myers v. Apfel, 238 F.3d 617, 621-22 (5th Cir. 2001) (holding
that remand was required when the ALJ failed to consider all evidence from a treating
source and failed to present good cause for rejecting it); Newton, 238 F.3d at 621-22
(holding that remand was required when the ALJ failed to consider each of the Section
416.927(c) factors before declining to give weight to the opinions of the claimant’s
The ALJ erred by disregarding relevant medical opinions when determining
Wilkerson’s RFC and Wilkerson was harmed by that error.
The hearing decision is reversed and this case is remanded to the Commissioner
of Social Security for further proceedings consistent with this opinion.
DATED: March 23, 2017
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?