Gonzales 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 8/15/2017) (mcrd)
IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
OSCAR VESS GONZALES,
NANCY A. BERRYHILL,
Acting Commissioner of Social Security, §
MEMORANDUM OPINION AND ORDER
Plaintiff Oscar Vess Gonzales (“Plaintiff” or “Mr. Gonzales”) 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
REVERSED and REMANDED.
Plaintiff alleges that he is disabled as a result of a gunshot wound he sustained
on April 9, 2011. After his application for disability insurance benefits and
supplemental security income (“SSI”) were denied initially and on reconsideration,
Plaintiff requested a hearing before an administrative law judge (“ALJ”). That hearing
was held on January 7, 2015. At the time of the hearing, Plaintiff was 48 years old. He
has a 9th grade education and past work experience as a glazier. Plaintiff has not
engaged in substantial gainful activity since March 26, 2013.
The ALJ found that Plaintiff was not disabled and therefore not entitled to
supplemental social security income and disability insurance benefits. The medical
evidence established that Plaintiff suffered from a fracture of his right lower extremity
and from acute anxiety disorder. But the ALJ concluded that only the claimant’s
fracture of his right lower extremity was severe and that it did not meet or medically
equaled the severity of one of the listed impairments in 20 CFR Part 404. The ALJ
further determined that Plaintiff had the residual functional capacity (“RFC”) to
perform a full range of sedentary work but could not return to his past relevant
employment. Relying on a vocational expert’s testimony, the ALJ found that Plaintiff
was capable of working as an eyeglass packager (DOT #713.684-038), semiconductor
loader (DOT# 726.687-030), or film inspector (DOT# 726.684-050) – jobs that exist in
significant numbers in the national economy. Given his age, education, and exertional
capacity for sedentary work, the ALJ determined that Plaintiff was not disabled under
the Medical-Vocational Guidelines.
Plaintiff appealed that decision to the Appeals Council. The Council affirmed.
Plaintiff then filed this action in federal district court. Plaintiff argues that the
ALJ erred by (1) not ordering a consultative examination of Plaintiff’s physical
impairments, (2) relying on a vocational expert (“VE”) who only spoke to the jobs the
claimant could perform if he needed to use a cane even though the use of a cane was
not reflected in his RFC, (3) failing to apply the correct standard in determining the
severity of Plaintiff’s conditions, and (4) determining Plaintiff’s RFC without ordering
a consultative exam of his physical impairments.
For the reasons and to the extent explained below, the hearing decision is
reversed and remanded.
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)).
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).
Mr. Gonzales appears to argue that the ALJ erred for four reasons. He
specifically contends that the ALJ erred by (1) assigning various state agency medical
consultant opinions limited weight, (2) relying on a vocational expert who only spoke
to the jobs the claimant could perform if he needed to use a cane even though the ALJ
did not find that he needed to use one, (3) applying an improper standard to determine
whether Mr. Gonzales’ mental impairments are “severe,” and (4) determining Mr.
Gonzales’ RFC without first calling for a consultative exam to determine Mr. Gonzales’
The Court discusses each of these arguments in further detail below.
The ALJ’s decision to assign the state agency consultant reports limited weight
is not a ground for reversal.
In his decision, the ALJ explains that he “accord[s] little weight to the state
agency consultants’ findings regarding the claimant’s physical limitations. (Exhibits
B1A, B7A).” Administrative Record [Dkt. No. 10 (“Tr.”)] at 19. Mr. Gonzales argues
that the ALJ erred by so doing. He appears to note that there are no other medical
opinions that speak to Mr. Gonzales’ RFC and that, “by not relying on ... medical expert
evidence, the ALJ ‘succumbed to the temptation to play doctor.’” See Dkt. No. 15 at 8
(quoting Schmidt v. Sullivan, 914 F.2d 117-18 (7th Cir. 1990)).
But any such error is harmless. The ALJ found that “the claimant is somewhat
more functionally limited than was previously determined” by the state agency medical
consultants, not less. Tr. at 19. In particular, the state agency consultant reports
concluded that Mr. Gonzales could stand and/or walk for 4 hours in an 8-hour work
day. See id. at 53, 62, 74, & 85 (each report reaching this conclusion). And the ALJ
concluded that Mr. Gonzales could only stand and/or walk for 2 hours in an 8-hour
work day. Id. at 17-18.
A person who can stand and/or walk for at least 4 hours during an 8-hour work
day can necessarily also stand and/or walk for at least 2 hours in the same period. As
a result, Mr. Gonzales is able to perform any jobs that the ALJ properly identified at
Step 5 regardless of whether the ALJ erred by assigning the state agency medical
consultant reports “limited weight.”
The ALJ’s decision to rely on the VE’s testimony is not a ground for reversal.
Mr. Gonzales also argues that the Commissioner failed to meet her burden at
Step 5 of the analysis to identify jobs that he could perform that exist in significant
numbers in the national economy. He notes that, in finding that the Commissioner met
this burden, the ALJ relies on testimony from a vocational expert who only identifies
jobs that Mr. Gonzales could perform if he “requires the use of a cane when walking.”
Dkt. No. 15 at 8. But he does not use a cane to walk, as evident in the ALJ’s RFC,
which contains no such limitation. Mr. Gonzales concludes that, as a result, “[t]he
Court cannot know if the VE would have testified that sedentary work is available in
this case, had the ALJ excluded the use of a cane from the hypothetical question.” Id.
Here too, the Court disagrees. The VE found that there are jobs that Mr.
Gonzales can perform – even if Mr. Gonzales were so impaired that he would “require
the use of a cane when walking.” The fact that the ALJ found that Mr. Gonzales does
not use a cane – that is, that he is not so impaired that he would “require the use of
a cane when walking” – means that he can perform jobs that someone who needs a
cane can perform and any additional jobs that someone who does not need a cane can
perform. The Court therefore cannot find, on this basis, that the Commissioner failed
to meet her burden at Step 5.
The ALJ’s failure to find the combination of Mr. Gonzales’ impairments to be
severe and to consider their combined effect requires reversal.
Mr. Gonzales contends that the ALJ applied the wrong legal standard to
determine whether his impairments are severe.
In Stone v. Heckler, the United States Court of Appeals for the Fifth Circuit
“construed the current regulation as setting the following standard in determining
whether a claimant’s impairment or combination of impairments is severe: ‘[A]n
impairment can be considered as not severe only if it is a slight abnormality [having]
such minimal effect on the individual that it would not be expected to interfere with
the individual’s ability to work, irrespective of age, education or work experience.’”
Stone v. Heckler, 752 F.2d 1099, 1101 (5th Cir. 1985) (quoting Estran v. Heckler, 745
F.2d 340, 341 (5th Cir. 1984)). In making a severity determination, the ALJ must set
forth the correct standard by reference to Fifth Circuit opinions or by an express
statement that the Fifth Circuit’s construction of the regulation has been applied. See
Hampton v. Bowen, 785 F.2d 1308, 1311 (5th Cir. 1986). The ALJ is also “required to
consider the combined effects of all impairments without regard to whether any such
impairment, if considered separately, would be of sufficient severity.” Loza v. Apfel, 219
F.3d 378, 393 (5th Cir. 2000).
A court must assume that the “ALJ and Appeals Council have applied an
incorrect standard to the severity requirement unless the correct standard is set forth
by reference to [Stone] or another [opinion] of the same effect, or by an express
statement that the construction [the Fifth Circuit gave] to 20 C.F.R. § 404.1520(c)
(1984) is used.” Stone, 752 F.2d at 1106. Notwithstanding this presumption, the Court
must look beyond the use of ‘magic words’ and determine whether the ALJ applied the
correct severity standard. See Hampton, 785 F.2d at 1311. That is, the presumption
may be rebutted by a showing that the ALJ applied the correct legal standard,
regardless of the ALJ’s recitation of the severity standard, or that the ALJ’s application
of the incorrect standard was harmless. See Morris v. Astrue, No. 4:11-cv-631-Y, 2012
WL 4468185, at *9 (N.D. Tex. Sept. 4, 2012), rec. adopted, 2012 WL 4466144 (N.D. Tex.
Sept. 27, 2012); see also Taylor v. Astrue, No. 3:10-cv-1158-O-BD, 2011 WL 4091506,
at *6 (N.D. Tex. June 27, 2011), rec. adopted, 2011 WL 4091503 (N.D. Tex. Sept. 14,
2011) (applying harmless error analysis in Stone error cases).
Mr. Gonzales concedes that the ALJ cited to Stone in his decision. But he
disputes that he actually applied that standard correctly.
The Court agrees that the ALJ applied the wrong legal standard when
determining the severity of Mr. Gonzales’ impairments.
The ALJ found Mr. Gonzales’ physical limitations to be severe and his mental
limitations to be non-severe. He necessarily erred by so doing. When making a severity
determination, the ALJ “is required to consider the combined effects of all impairments
without regard to whether any such impairment, if considered separately, would be of
sufficient severity.” Loza, 219 F.3d at 393. Because the ALJ found that Mr. Gonzales’
physical impairments to be severe, he surely would have also found Mr. Gonzales
combination of physical and mental impairments to be severe had he applied the
proper severity standard.
The Court would find that the ALJ erred even if Mr. Gonzales’ mental
impairments were the only ones that he suffered.
The ALJ found “[t]he claimant’s medically determinable mental impairment of
anxiety” to be nonsevere because it “does not cause more than minimal limitation in
the claimant’s ability to perform basic mental work activities.” Id.
But, as another judge in this District has explained, “[t]he ‘minimal effect on an
individual’s ability to work’ definition that the ALJ [apparently applied] in this case
is not the standard set forth in Stone. In the Fifth Circuit, the appropriate legal
standard for determining whether a claimant’s impairment is severe is de minimus.”
Ruby v. Astrue, No. 3:08-cv-1012-B (BF), 2009 WL 4858060, at *7 (N.D. Tex. Dec. 14,
2009) (citing Stone, 752 F.2d at 1101; Loza v. Apfel, 219 F.3d 378, 391 (5th Cir. 2000)).
A condition is consequently “severe” if it is “expected to interfere with the individual’s
ability to work” at all. Stone, 752 F.2d at 1101. “Unlike the standard that the ALJ
applied, Stone provides no allowance for minimal interference on a claimant’s ability
to work.” Ruby, 2009 WL 4758060 at *8.
In the past, the ALJ’s failure to properly apply the severity standard would be
grounds for automatic remand because it constituted a legal error. See, e.g., Scroggins
v. Astrue, 598 F. Supp. 2d 800, 806-07 (N.D. Tex. Jan. 27, 2009); Sanders v. Astrue,
2008 WL 4211146, at *8 (N.D. Tex. March 21, 2014). More recently, however, courts
have not automatically remanded such cases. See, e.g., Lacy v. Colvin, No. 3:13-cv1312-BN, 2013 WL 6476381, at *8 (N.D. Tex. Dec. 10, 2013); Rivera v. Colvin, No. 3:12cv-1748-G-BN, 2013 WL 4623514, at *6 (N.D. Tex. Aug. 28, 2013); Easom v. Colvin, No.
3:12-cv-1289-N-BN, 2013 WL 2458540, at *4-*6 (N.D. Tex. June 7, 2013).
Rather, where the Court has already found that the ALJ failed to properly apply
the severity standard, the presumption that legal error occurred may be rebutted by
showing that the error was harmless. See Middleton v. Colvin, No. 3:13-cv-2647-BN,
2014 WL 1158894, at *4 (N.D. Tex. March 21, 2014) (citing cases) (“[T]he presumption
may be rebutted by a showing that the ALJ applied the correct legal standard,
regardless of the ALJ’s recitation of the severity standard, or that the ALJ’s application
of the incorrect standard was harmless.”).
“Many courts have presumed that [such an error] is harmless where the analysis
continues beyond Step 2.” Id. (citing Lederman v. Astrue, 829 F. Supp. 2d 531, 539
(N.D. Tex. 2011)).
But it is not harmless – even if the analysis continues beyond Step 2 – where the
ALJ applies an incorrect severity standard, then “explicitly rejects one or more of the
claimant’s impairments as non-severe based on that error, and proceeds to the later
steps of the sequential analysis only with respect to the other claimed impairments.”
Jones, 821 F. Supp. 2d at 850.
Mr. Gonzales argues that the ALJ’s error is material because the ALJ
improperly found his mental impairments to be non-severe and then failed to consider
those impairments later in the sequential analysis. See Dkt. No. 15 at 7.
The Court agrees. When determining Mr. Gonzales’ RFC, the ALJ does not
discuss any mental limitations that Mr. Gonzales might face due to his diagnosed acute
anxiety disorder. This constitutes legal error. “The law of this Circuit requires
consideration of the combined effect of impairments” in every stage of the sequential
analysis. Loza, 219 F.3d at 394-99 (finding that “[t]he ALJ erred by separately
evaluating the consequences of [the claimant’s] mental and physical impairments and
not considering their combined effects” after improperly determining that the
claimant’s mental impairment was non-severe) (citing Fraga v. Bowen, 810 F.2d 1296,
1305 (5th Cir. 1987)). As such, the ALJ is required to consider “‘the degree of
impairment caused by the combination of physical and mental problems’” that Mr.
Gonzales faces. See id. at 399 (quoting Strickland, 615 F.2d at 1110)).
The ALJ appears to make some references to Mr. Gonzales’ mental health
records in his RFC determination. He specifically “note[s] that [Mr. Gonzales] has not
received ongoing mental health treatment for any mental health condition” and
purports to “accord great weight to the state agency consultant’s opinion regarding the
claimant’s mental limitations,” an opinion which he finds to be consistent with a
consultative exam on Mr. Gonzales’ mental limitations. Dkt. No. 11-3 at 19-20.
These comments could suggest that the ALJ considered Mr. Gonzales’ mental
health conditions in his RFC determination and simply found that they caused no
mental limitations whatsoever.
But the Court cannot make this inference. The ALJ has a responsibility “to
adequately explain his reasoning in making the findings on which his ultimate decision
rests, and in doing so must address all pertinent evidence.” Calzada v. Astrue, 753 F.
Supp. 250, 269 (S.D.N.Y. 2010) (dropping cases). The Court’s inability to clearly
determine whether the ALJ adequately considered certain limitations or not
constitutes reversible error. See Kneeland v. Berryhill, 850 F.3d 749, 762 (5th Cir.
2017) (finding an ALJ materially erred by failing to address an examining physician’s
medical opinion because while “it is possible that the ALJ considered and rejected
[that] opinion, ... without any explanation, we have no way of knowing”); Audler, 501
F.3d at 448 (remanding where, due to the ALJ’s failure to adequately explain why the
claimant was not disabled, “‘we, as a reviewing court, simply cannot tell whether her
decision is based on substantial evidence or not.’ Cook v. Heckler, 783 F.2d 1168, 1172
(4th Cir. 1986)).
Further, the ALJ acknowledges that Mr. Gonzales likely experienced a number
of “mild” limitations in his “ability to perform basic work activities” – none of which are
discussed in his RFC determination. Dkt. No. 11-3 at 16-17 (finding that “[t]he
claimant’s medically determinable mental impairments of anxiety does not cause more
than minimal limitation in the claimant’s ability to perform basic mental work
activities,” given the “mild” limitations in “daily living,” “social functioning,” and
“concentration, persistence or pace” that Mr. Gonzales experiences). The state agency
consultant report the ALJ references – which he purports to “accord great weight” for
its consistency with a consultative exam in the record – does not find that the ALJ
faces no limitations due to his acute anxiety disorder either. It, instead, concludes that
his mental condition may lead to at least some limitations. See Tr. at 83.
The Commissioner contends that the ALJ did not have to include mental
limitations in his RFC determination that do not arise to the level of a severe
impairment. See Dkt. No. 18 at 5.
The Court disagrees. The Fifth Circuit has explained that, “‘throughout the
disability determination process,’” the ALJ is required to consider the combined effect
of any impairments “without regard to whether any such impairment, if considered
separately, would be of sufficient severity.” Loza, 219 F.3d at 393 (quoting 20 C.F.R.
The ALJ’s RFC determination would have been different had he considered the
limitations that Mr. Gonzales faces due to his acute stress disorder. This, in turn, could
“have affected the jobs available at step five of the sequential evaluation process, and
[Mr. Gonzales] may have been found disabled.” Kneeland, 850 F.3d at 761-62.
For these reasons, “the interaction or cumulation of all of Mr. [Gonzales’] mental
and physical medical problems and impairments” must be considered in the ALJ’s RFC
determination on remand. Loza, 219 F.3d at 399.
The ALJ’s failure to order a consultative examination as to how Mr. Gonzales’
physical conditions impacted his ability to work also requires reversal.
Mr. Gonzales argues that he has a long-standing diagnosis of chronic bilateral
pain and, as a result, the ALJ had a duty to order a consultative examination to
determine the extent of Mr. Gonzales’ physical impairments. The Court agrees.
The Fifth Circuit has explained that “[t]he 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. This usually includes “request[ing] a medical source statement describing the
types of work that the applicant is still capable of performing” despite his or her
ailments. Ripley, 67 F.3d at 557; see also SSR 96-5P (defining “medical source
statements” as “medical opinions submitted by acceptable medical sources, including
treating sources and consultative examiners, about what an individual can still do
despite a severe impairment(s), in particular about an individual’s physical or mental
But “[t]he absence of such a statement ... does not, in itself, make the record
incomplete. In a situation such as the present one, our inquiry focuses upon whether
the decision of the ALJ is supported by substantial evidence in the existing record.”
Ripley, 67 F.3d at 557.
An ALJ’s determination is supported by substantial evidence when the claimant
has failed “to present evidence to raise a suspicion concerning a non-exertional
impairment.” Brock, 84 F.3d at 728 (citing Turner v. Califano, 563 F.2d 669, 671 (5th
Cir. 1977)). A few stray references to impairments, for which a claimant “never sought
medical treatment” are not sufficient “to raise a suspicion of non-exertional
impairment.” Id. But a medical record establishing that the claimant suffered from and
received treatment for a medical condition is sufficient. See Ripley, 67 F.3d at 552;
Fitzpatrick v. Colvin, No. 3:15-cv-3202-D, 2016 WL 1258477, at *8 (N.D. Tex. March
31, 2016) (finding that the ALJ should have ordered a consultative exam where state
agency medical consultants determined that the claimant’s affective disorders caused
“mild restrictions in activities of daily living, mild difficulties maintaining social
functioning, mild difficulties in maintaining concentration, persistence, or pace, and
no episodes of decompensation”).
The medical record raises at least a suspicion that Mr. Gonzales faces physical
limitations that could impact his ability to work here. The evidence establishes that
Mr. Gonzales was “shot through the lower extremity with a large caliber handgun,
causing substantial damage to his leg and foot,” that he has received treatment for a
mental and physical conditions, even if this treatment was not consistent, and that he
has experienced pain ongoing pain as a result. Tr. at 13-15. The evidence also
establishes – and the ALJ appears to agree – that Mr. Gonzales’ condition has at least
some effect on Mr. Gonzales’ ability to work. See Tr. at 17-19 (the ALJ’s discussion of
the state agency medical consultants’ conclusions and his own conclusions regarding
Mr. Gonzales’ physical limitations).
“What the record does not clearly establish is the [precise] effect [Mr. Gonzales’]
condition had on his ability to work.” Ripley, 67 F.3d at 557.
The ALJ determined Mr. Gonzales’ RFC based on his own review of the medical
records, medical consultant agency reports that he assigned “limited weight,” and Mr.
Gonzales’ inconsistent treatment history, ability to ambulate without assistive devices,
and ability to perform certain chores.
These rationales, on their own, do not provide substantial evidence for the ALJ’s
determination as to “the effect [Mr. Gonzales’] condition[s] had on his ability to work.”
Id. at 557-58 (finding that the ALJ’s interpretation of the medical records only
established the claimant’s problems with his back and not his ability to work).
The Fifth Circuit has explained that, as a non-medical professional, 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). The Court of Appeals reasons that “‘[c]ommon sense can mislead’” and “‘lay
intuitions about medical phenomena are often wrong.’” Id. (quoting Schmidt, 914 F.2d
Courts have therefore consistently found that an ALJ’s RFC determination is not
supported by substantial evidence where the ALJ has failed to either elicit or take into
account the opinion of a treating or examining physician. See Ripley, 67 F.3d at 557-58;
Williams v. Astrue, 355 F. App’x 828, 832 (5th Cir. Dec. 10, 2009) (“[T]he ALJ
impermissibly relied on his own medical opinions as to the limitations presented by
‘mild to moderate stenosis’ and ‘posterior spurring’ to develop his factual findings.”);
Butler v. Barnart, 99 F. App’x 559, 560 (5th Cir. June 2, 2004) (“There was no medical
opinion or evidence submitted reflecting that, after Butler had two and one-half toes
amputated from his left foot, he could perform work requiring standing or walking for
six-hour periods during an eight-hour work day. Thus, there was not substantial
medical evidence in the record to support the ALJ’s determination.”); Tyler v. Colvin,
No. 3:15-cv-3917-D, 2016 WL 7386207, at *5 (N.D. Tex. Dec. 20, 2016) (“[T]he ALJ
impermissibly relied on his own medical opinion to develop his RFC determination.”).
And, while there does appear to be some evidence as to Mr. Gonzales’ ability to
work from state agency medical consultants, the ALJ assigned these reports “limited
weight.” Further, these physicians did not treat or examine Mr. Gonzales. The ALJ
consequently could not rely upon this evidence to determine how Mr. Gonzales’
conditions impacted his ability to work – even if he had wanted to do so. See Villa v.
Sullivan, 895 F.2d 1019, 1023-24 (5th Cir. 1990) (explaining that the ALJ’s decision
is not substantially supported where “the reports of non-examining physicians
constitute the sole medical evidence presented” or “when a non-examining physician
makes specific medical conclusions that either contradict or are unsupported by
findings made by an examining physician”); Fitzpatrick, 2016 WL 1258477, at *8
(finding that the ALJ “improperly made an independent RFC finding” as to “the effects
of [the claimant’s] mental impairments on his ability to work” where “other than the
opinions of the two [state agency medical consultants],” there was no evidence in the
record as to the claimant’s ability to work despite his impairments).
For these reasons, the ALJ erred by failing to request a consultative exam from
a treating or examining physician before determining Mr. Gonzales’ RFC.
The hearing decision is REVERSED and this case is REMANDED to the
Commissioner of Social Security for further proceedings consistent with this opinion.
DATED: August 15, 2017
DAVID L. HORAN
UNITED STATES MAGISTRATE JUDGE
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