Opinion
Civil Action No. 3:02-CV-2759-D
October 31, 2003
MEMORANDUM OPINION
Plaintiff Melvin R. Salisbury ("Salisbury") 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 application for a period of disability and disability insurance benefits under title II of the Act. The dispositive question is whether the Administrative Law Judge ("ALT") complied procedurally with the requirements of 20 C.F.R. § 404.1527(d) when he accorded little weight to the opinion of Salisbury's treating orthopaedic physician Concluding he did not meet this requirement, the court vacates the Commissioner's decision and remands for further proceedings.
I
Salisbury was born on July 25, 1949 and was 50 years old on November 3, 1999, the alleged onset date of disability. He was considered an individual closely approaching advanced age throughout the period that the claim was being considered. See 20 C.F.R. § 404.1563. Salisbury is a high school graduate who attended college for two years following a three-year tenure in the military. R. 77, 108. In September 1974 Salisbury began working for United Parcel Service ("UPS") and remained with the company for over 25 years until the alleged onset of disability. R. 93, 117. Sailsbury asserts that he suffers from nocturnal seizures, progressively worsening low back pain, post-traumatic stress disorder with depression, and upper gastrointestinal bleeding. He maintains that since the onset of his disability, he has suffered severely and has been unable to work as a consequence.
Salisbury's disability application was denied initially and upon reconsideration. R. 55-59, 60-64. The ALJ later denied the claim after a hearing. R. 8-19. He concluded that Salisbury's seizure disorder and lumbar disc disease were severe impairments. R. 12, 18. The ALJ did not find, however, that Salisbury's impairments, or combination of impairments, met any of the listed impairments described in 20 C.F.R. pt. 404, subpart P, App. 1. Id. Further, based on a review of the record related to Salisbury's medical conditions, and employing the aid of a vocational expert ("VE"), the ALJ found that Sailsbury has sufficient residual functional capacity ("RFC") to perform a restricted range of light work under 20 C.F.R. § 404.1567(b). He found that Sailsbury has the following nonexertional limitations: he should avoid unprotected elevations or dangerous moving machinery as a consequence of seizure disorder. R. 17, 18. The ALJ concluded that Salisbury's past relevant work as a UPS operations manager did not require the performance of work-related activities precluded by medically determinable impairments, as confirmed by the VE's testimony. Id. Based on these findings, the ALJ determined at step four of the five-step process that Sailsbury is not disabled within the meaning of the Act.
Under Social Security Ruling 83-10, light work involves "lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds" and "standing or walking, off and on, for a total of approximately 6 hours of an 8-hour workday." SSR 83-10: Titles II and XVI: Determining Capability to do Other Work — the Medical-Vocational Rules of Appendix 2, 1983 WL 31251, at *5, *6 (1983). Salisbury's treating orthopaedic physician, George W. Wharton, M.D. ("Dr. Wharton"), opined in a March 27, 2002 Physical Capacities Evaluation ("PCE") that Salisbury can sit only for one hour and stand/walk for only one hour, with the opportunity to alternate sitting and standing throughout the day. R. 370. Dr. Wharton concluded that Salisbury can lift/carry up to 10 pounds occasionally, i.e., up to 33% of the day, but can never stoop, kneel, crouch, or crawl. R. 371. Dr Wharton's PCE therefore supports a finding that Salisbury cannot perform light work, as the ALJ found. The ALJ rejected Dr. Wharton's opinion in the following relevant finding:
The undersigned gives little weight to Dr. Wharton's assessment of physical residual functional capacity at Exhibit 10F. Social Security Ruling 96-2p is to be considered in evaluating treating source opinion — here, treating source opinion is not given controlling weight because the conclusions are not well-supported by his own clinical findings. The undersigned does not accept Dr. Wharton's conclusions that Mr. Salisbury is limited to only one hour of sitting, standing or walking. Dr. Wharton's own findings suggested few, if any musculoskeletal limitations. Moreover, it was Mr. Salisbury's testimony that he stopped working due to seizures, and he acknowledged to the consultant psychiatrist that he stays busy around the house by doing little tasks, he goes to the store, and watches a lot of television. He also acknowledged to that examiner that he stopped working due to the seizure condition. The limitations Dr. Wharton cited are likely intended to support social services for Mr. Salisbury and do not represent informed opinion about disability, as the term is framed by the Act and implementing Regulations.
R. 16. Although the ALJ cited Social Security Ruling 96-2p, which construes § 1527(d), he did not, in according Dr. Wharton's opinion little weight, explicitly address each of the factors set out in § 1527(d).
See Newton v. Apfel, 209 F.3d 448, 456 (5th Cir. 2000) ("The regulation is construed in Social Security Ruling (`SSR') 96-2p[.]").
Section 1527(d) provides:
How we weigh medical opinions. Regardless of its source, we will evaluate every medical opinion we receive. Unless we give a treating source's opinion controlling weight under paragraph (d)(2) of this section, we consider all of the following factors in deciding the weight we give to any medical opinion.
(1) Examining relationship. Generally, we give more weight to the opinion of a source who has examined you than to the opinion of a source who has not examined you.
(2) Treatment relationship. Generally, we give more weight to opinions from your treating sources, since these sources are likely to be the medical professionals most able to provide a detailed, longitudinal picture of your medical impairment(s) and may bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations or brief hospitalizations. If we find that a treating source's opinion on the issue(s) of the nature and severity of your impairment(s) is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record, we will give it controlling weight. When we do not give the treating source's opinion controlling weight, we apply the factors listed in paragraphs (d)(2)(i) and (d)(2)(ii) of this section, as well as the factors in paragraphs (d)(3) through (d)(6) of this section in determining the weight to give the opinion. We will always give good reasons in our notice of determination or decision for the weight we give your treating source's opinion.
(i) Length of the treatment relationship and the frequency of examination. Generally, the longer a treating source has treated you and the more times you have been seen by a treating source, the more weight we will give to the source's medical opinion. When the treating source has seen you a number of times and long enough to have obtained a longitudinal picture of your impairment, we will give the source's opinion more weight than we would give it if it were from a nontreating source.
(ii) Nature and extent of the treatment relationship. Generally, the more knowledge a treating source has about your impairment(s) the more weight we will give to the source's medical opinion. We will look at the treatment the source has provided and at the kinds and extent of examinations and testing the source has performed or ordered from specialists and independent laboratories. For example, if your ophthalmologist notices that you have complained of neck pain during your eye examinations, we will consider his or her opinion with respect to your neck pain, but we will give it less weight than that of another physician who has treated you for the neck pain. When the treating source has reasonable knowledge of your impairment(s), we will give the source's opinion more weight than we would give it if it were from a nontreating source.
(3) Supportability. The more a medical source presents relevant evidence to support an opinion, particularly medical signs and laboratory findings, the more weight we will give that opinion. The better an explanation a source provides for an opinion, the more weight we will give that opinion. Furthermore, because nonexamining sources have no examining or treating relationship with you, the weight we will give their opinions will depend on the degree to which they provide supporting explanations for their opinions. We will evaluate the degree to which these opinions consider all of the pertinent evidence in your claim, including opinions of treating and other examining sources.
(4) Consistency. Generally, the more consistent an opinion is with the record as a whole, the more weight we will give to that opinion.
(5) Specialization. We generally give more weight to the opinion of a specialist about medical issues related to his or her area of specialty than to the opinion of a source who is not a specialist.
(6) Other factors. When we consider how much weight to give to a medical opinion, we will also consider any factors you or others bring to our attention, or of which we are aware, which tend to support or contradict the opinion. For example, the amount of understanding of our disability programs and their evidentiary requirements that an acceptable medical source has, regardless of the source of that understanding, and the extent to which an acceptable medical source is familiar with the other information in your case record are relevant factors that we will consider in deciding the weight to give to a medical opinion.
Salisbury sought review by the Appeals Council, which denied his request. The ALJ's decision thus became the final decision of the Commissioner. Salisbury now seeks judicial review.
II A
Salisbury contends on four related grounds that he is entitled to relief: (1) the ALJ failed to apply the appropriate legal standard under § 1527(d) in weighing Dr. Wharton's opinions as the treating physician; (2) by applying the appropriate legal standards, Dr. Wharton's opinions should have been granted great weight; (3) the ALJ's RFC finding is not supported by any expert medical opinion in the record; and (4) Sailsbury was prejudiced by the ALJ's failure to apply the appropriate legal standard to weigh Dr. Wharton's opinions.
The Commissioner maintains the ALJ gave appropriate weight to Dr. Wharton's medical opinion, finding that his PCE was inconsistent with the additional medical evidence he presented, and that other record evidence concerning Salisbury's medical condition allowed the ALJ properly to discount Dr. Wharton's opinion. She asserts that the ALJ did not disregard Dr. Wharton's opinion but expressly declined to give it controlling weight because his conclusions were not supported by his own clinical findings. The Commissioner also posits that the ALJ satisfied the requirements of § 1527(d) factors by providing an explanation for not according it controlling weight: that his opinion contradicted the medical opinion set out in other medical records regarding Sailsbury's functional limitations. According to the Commissioner, the ALJ therefore was not required to perform a detailed analysis under the criteria set forth in § 1527(d). She also reasons that the ALJ sufficiently considered these factors by acknowledging that Dr. Wharton was a treating physician and that he had treated Sailsbury for a number of years. The Commissioner argues that the Fifth Circuit rejects rigid rules of articulation and does not require the ALJ to discuss specifically all the evidence that supports his decision or all the evidence that was rejected. Instead, the ALJ need only explain adequately the reasons for his decision.
The Commissioner also contends that a statement that a claimant is disabled does not mean he is disabled within the meaning of the Act. Salisbury does not rely on such a statement to support his claim that he is disabled. See P. Rep. Br. at 5.
B
Applying the requirements of § 1527(d)(2) to the facts in the administrative record, the court holds that the ALJ failed to perform the required analysis when he gave Dr. Wharton's opinion little weight.
The opinion of the treating physician who is familiar with the claimant's impairments, treatments and responses, should be accorded great weight in determining disability. A treating physician's opinion on the nature and severity of a patient's impairment will be given controlling weight if it is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with . . . other substantial evidence. The opinion of a specialist generally is accorded greater weight than that of a non-specialist.Newton v. Apfel, 209 F.3d 448, 455 (5th Cir. 2000) (citations and quoting marks omitted).
Even though the opinion and diagnosis of a treating physician should be afforded considerable weight in determining disability, the ALJ has sole responsibility for determining a claimant's disability status. The ALJ is free to reject the opinion of any physician when the evidence supports a contrary conclusion. The treating physician's opinions are not conclusive. The opinions may be assigned little or no weight when good cause is shown. Good cause may permit an ALJ to discount the weight of a treating physician relative to other experts where the treating physician's evidence is conclusory, is unsupported by medically acceptable clinical, laboratory, or diagnostic techniques, or is otherwise unsupported by the evidence.Id. at 455-56 (citations, quoting marks, and brackets omitted). Before the ALJ declines to give a treating physician's opinion controlling weight, however, § 1527(d)(2) requires that he "give good reasons" for the weight given to the treating source's opinion. Under § 1527(d) he must consider the following six factors: "(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. at 456.
"Several federal courts have concluded that an ALJ is required to consider each of the § 404.1527(d) factors when the ALJ intends to reject or give little weight to a treating specialist's opinion." Id. (collecting cases). The Newton panel reached a similar conclusion, citing, inter alia, Chief Judge Buchmeyer's opinion in McDonald v. Apfel, 1998 WL 159938, *8 (N.D. Tex Mar. 31, 1998) (Buchmeyer, C.J.). See Newton, 209 F.3d at 456. McDonald held, in pertinent part:
[f]urthermore, if the ALJ does not find that the treating physician's opinion is controlling, then he must consider numerous factors in determining how much weight he will accord it. Those factors are the length of treatment, frequency of examination, nature and extent of the treatment relationship, support of opinion afforded by medical evidence, consistency of opinion with the record as a whole, and specialization of the treating physician. Yet, the ALJ did not address all of these factors, despite the fact that he did not give Dr. Elizondo's medical opinion controlling weight. Thus, the ALJ did not comply with section 404.1527(d).Id. at *8 (emphasis added) (citations omitted).
There is no indication in the ALJ's decision that he considered each of the six factors prescribed by § 1527(d). Without suggesting that on remand he must reach the conclusion that Salisbury is disabled, the court holds that the ALJ must at least perform the required analysis before giving Dr. Wharton's opinion "little weight." See Newton, 209 F.3d at 456 ("The ALJ failed to perform this analysis, which should be conducted on remand.").
The ALJ may reach substantially the same result at step four after addressing the relevant factors. "The law is clear that, although the opinion of an examining physician is generally entitled to more weight than the opinion of a non-examining physician, the ALJ is free to reject the opinion of any physician when the evidence supports a contrary conclusion." Bradley v. Bowen, 809 F.2d 1054, 1057 (5th Cir. 1987) (quoting Oldham v. Schweiker, 660 F.2d 1078, 1084 (5th Cir. Unit B Nov. 1981)). Moreover, the ALJ found Sailsbury not disabled at step four. Even if on remand Salisbury can meet the requirements of step four, the ALJ could still find he is not disabled at step five.
This case is distinguishable from others in which this court has found no error in an ALJ's failure to address the § 1527(d) factors. In Grimes v. Barnhart, No. 3:01-CV-0940-D (N.D. Tex. Mar. 18, 2002) (Fitzwater, J.), and Tipps v. Barnhart, No. 3:01-CV-1295-D (N.D. Tex. Mar. 14, 2002) (Fitzwater, J.), the court held that "[u]nder Newton the ALJ is required to perform a detailed analysis of the treating physician's views under the criteria set forth in 20 C.F.R. § 404.1527(d)(2) only when there is an absence of reliable medical evidence from a treating or examining physician controverting the claimant's treating specialist." Grimes, slip op. at 12; Tipps, slip op. at 11-12.
In Grimes the court vacated and remanded the Commissioner's decision based on material errors in addressing nonexertional limitations imposed by the side effects of prescribed medications. Grimes, slip op. at 17-18.
In Walker v. Barnhart, No. 3:01-CV-1824-D (N.D. Tex. Aug. 13, 2002) (Fitzwater, J.), the claimant failed to identify any specific points of conflict between the evidence supplied by a physician who performed a consultative examination and that adduced by a treating physician. Id., slip op. at 12. The court held that the ALJ was not required to perform a detailed analysis of the treating physician's views under the criteria set forth in § 1527(d)(2) because the ALJ based his decision on reliable medical evidence from the examining physician. Id.
In Herron v. Barnhart, 3.01-CV-1689-D (N.D. Tex. Mar. 6, 2002) (Fitzwater, J.), the court reached a similar conclusion. It held that because the ALJ based his decision on reliable medical evidence from an examining physician that controverted the claimant's treating specialist, the ALJ was not required to perform a detailed analysis of the treating physician's views under the criteria set forth in § 1527(d)(2). Herron, slip op. at 12.
Today's decision is a narrow one that may ultimately prove to be largely procedural. In the circumstances presented here, the ALJ was obligated to consider and address the factors set out in § 1527(d) before according Dr. Wharton's opinion little weight. He did not do so, and the Commissioner's decision must be vacated and this matter remanded for further proceedings.
Sailsbury maintains that the ALJ was obligated to recontact Dr. Wharton before rejecting his PCE opinion. The court need not reach this contention.
* * *
The Commissioner's decision is VACATED and this matter is REMANDED to the Commissioner for further proceedings consistent with this memorandum opinion.JUDGMENT
For the reasons set out in a memorandum opinion filed today, it is ordered and adjudged that the decision of the Commissioner in this case is vacated and this matter is remanded to the Commissioner for further proceedings consistent with the court's memorandum opinion.Taxable costs of court, as calculated by the clerk of court, are assessed against defendant.