Filed: Aug. 05, 2005
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 04-1692 ESSIE MORGAN, Plaintiff - Appellant, versus JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY, Defendant - Appellee. Appeal from the United States District Court for the District of South Carolina, at Greenville. Henry M. Herlong, Jr., District Judge. (CA-03-1578-6-20AK) Argued: March 16, 2005 Decided: August 5, 2005 Before LUTTIG, WILLIAMS, and GREGORY, Circuit Judges. Vacated and remanded with instructions by unpu
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 04-1692 ESSIE MORGAN, Plaintiff - Appellant, versus JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY, Defendant - Appellee. Appeal from the United States District Court for the District of South Carolina, at Greenville. Henry M. Herlong, Jr., District Judge. (CA-03-1578-6-20AK) Argued: March 16, 2005 Decided: August 5, 2005 Before LUTTIG, WILLIAMS, and GREGORY, Circuit Judges. Vacated and remanded with instructions by unpub..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 04-1692
ESSIE MORGAN,
Plaintiff - Appellant,
versus
JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL
SECURITY,
Defendant - Appellee.
Appeal from the United States District Court for the District of
South Carolina, at Greenville. Henry M. Herlong, Jr., District
Judge. (CA-03-1578-6-20AK)
Argued: March 16, 2005 Decided: August 5, 2005
Before LUTTIG, WILLIAMS, and GREGORY, Circuit Judges.
Vacated and remanded with instructions by unpublished opinion.
Judge Williams wrote the majority opinion, in which Judge Luttig
concurred. Judge Gregory wrote a separate opinion concurring in
part and dissenting in part.
ARGUED: William Daniel Mayes, Aiken, South Carolina, for Appellant.
Robert Louis Van Saghi, Assistant Regional Counsel, SOCIAL SECURITY
ADMINISTRATION, Denver, Colorado, for Appellee. ON BRIEF: Frank W.
Hunger, Assistant Attorney General, UNITED STATES DEPARTMENT OF
JUSTICE, Office of Immigration Litigation, Washington, D.C.; J.
Strom Thurmond, United States Attorney, Christie Newman, Assistant
United States Attorney, OFFICE OF THE UNITED STATES ATTORNEY,
Columbia, South Carolina; Deana R. Ertl-Lombardi, Regional Chief
Counsel, Region VIII, Allan D. Berger, Assistant Regional Counsel,
SOCIAL SECURITY ADMINISTRATION, Office of the General Counsel,
Denver, Colorado, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
2
WILLIAMS, Circuit Judge:
Essie Morgan injured her back at work. Complaining of severe
pain, she had surgery fusing several cervical vertebrae. The
surgery, however, did not abate her complaints. An ALJ denied
Morgan’s application for Social Security benefits, and the district
court affirmed. Morgan now appeals.
We conclude that because of faulty hypothetical questions the
ALJ posed to the vocational expert, the record lacks substantial
evidence to support the ALJ’s finding that jobs exist in the
national economy for someone with Morgan’s impairments. We
therefore vacate and remand the district court’s order with
instructions to vacate and remand the ALJ’s order. On remand, the
ALJ must reevaluate Morgan’s residual functional capacity (RFC),
and accept such additional testimony as may be necessary to decide
whether relevant jobs exist.
Because, however, the ALJ’s errors, if any, with respect to
the application of the treating physician rule were harmless, and
the ALJ’s decisions discrediting Morgan’s allegations and the
responses of Morgan’s husband and daughter were supported by
substantial evidence, the ALJ need not reevaluate his decision on
these matters on remand.
3
I. Factual Background
Morgan was employed as a cashier at a convenience store in
Aiken, South Carolina. In March 2000, she hurt her back scanning
a twelve-pack at work. She visited Dr. Douglas Holford, an
orthopedic surgeon, who, in April 2000, performed surgery on Morgan
removing two discs and fusing three cervical vertebrae. Under Dr.
Holford’s care, Morgan returned to light-duty, part-time work. In
August 2000, Morgan began complaining of pain in her lower back and
legs, and Dr. Holford’s first impression was that the pain was
caused by degenerative disc disease and sciatica. Nevertheless,
Dr. Holford authorized her to increase to moderate-duty, full-time
work.
Morgan continued complaining of pain, and in January 2001, Dr.
Holford referred Morgan to Dr. William Kirkley, an orthopedist, for
testing. Dr. Kirkley concluded from the tests results that
Morgan’s pain was “subjective,” (R. at 171), and was not caused by
her underlying condition. In February 2001, Morgan quit her job.
Dr. Holford later ordered a Functional Capacity Exam (FCE) to test
Morgan’s functional restrictions. The FCE indicated that although
Morgan’s functional ability was limited, she could nevertheless
work an eight-hour day.
On March 20, 2001, Morgan filed applications for Social
Security benefits. At the hearing on Morgan’s claim, the ALJ
admitted evidence as to the scope of Morgan’s impairment. The most
4
salient pieces of evidence were the FCE, Drs. Holford’s and
Kirkley’s reports, Morgan’s testimony, and written responses to
questionnaires completed by Morgan’s husband and daughter. The ALJ
also accepted testimony from a vocational expert, who testified
regarding the availability of jobs in the national economy.
After weighing this evidence, the ALJ denied Morgan’s claim.
The Appeals Counsel affirmed the ALJ’s decision, as did the
district court. Morgan now appeals, and we have jurisdiction under
28 U.S.C.A. § 1291 (West 1993).
II. Discussion
Morgan argues that: (1) the vocational expert’s testimony was
insufficient evidence on which the ALJ could conclude the national
economy had jobs for someone with her functional restrictions; (2)
the ALJ improperly applied the treating physician rule in
discrediting the opinion of Dr. Holford; (3) the record lacked
substantial evidence upon which the ALJ could discredit her
allegations of disabling pain; and (4) the ALJ erred in rejecting
the written questionnaire responses submitted by Morgan’s husband
and daughter regarding her pain.
We must uphold the ALJ’s factual findings “if they are
supported by substantial evidence and were reached through
application of the correct legal standard.” Craig v. Chater, 76
F.3d 585, 589 (4th Cir. 1996). “Substantial evidence is ‘such
5
relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.’” Id. (quoting Richardson v. Perales,
402
U.S. 389, 401 (1971)). “It consists of more than a mere scintilla
of evidence but may be somewhat less than a preponderance.” Laws
v. Celebrezze,
368 F.2d 640, 642 (4th Cir. 1966). “In reviewing
for substantial evidence, we do not . . . reweigh conflicting
evidence, make credibility determinations, or substitute” the ALJ’s
judgment with our own.
Craig, 76 F.3d at 589.
With these principles in mind, we address Morgan’s arguments
in turn.
A. The Vocational Expert’s Testimony
Morgan first argues that her FCE reveals that her functional
capacity is more limited than the hypotheticals the ALJ posed to
the vocational expert, and that this fact resulted in the record
lacking any relevant evidence on the question of whether she could
engage in work that exists in the national economy. We agree.
The parties concede that the ALJ properly resolved the first
four steps of the Social Security Administration’s five-step
sequential evaluation process.1 The fifth step, however, is in
1
In relevant part, the Code of Federal Regulations provides:
At the first step, we consider your work activity, if
any. If you are doing substantial gainful activity, we
will find that you are not disabled. . . .
At the second step, we consider the medical severity of
6
dispute. The claimant is disabled at the fifth step if the ALJ
determines that the claimant cannot “engage in any . . . kind of
substantial gainful work which exists in the national economy.”2
42 U.S.C.A. § 423(d)(2)(A) (West 2003).
To decide whether the claimant is disabled under this
standard, the ALJ must proceed in a two-tiered analysis. The ALJ
must first determine the claimant’s RFC. See 20 C.F.R.
your impairment(s). If you do not have a severe medically
determinable physical or mental impairment that meets the
duration requirement in [20 C.F.R.] § 404.1509, or a
combination of impairments that is severe and meets the
duration requirement, we will find that you are not
disabled. . . .
At the third step, we also consider the medical severity
of your impairment(s). If you have an impairment(s) that
meets or equals one of our listings in appendix 1 of this
subpart and meets the duration requirement, we will find
that you are disabled. . . .
At the fourth step, we consider our assessment of your
residual functional capacity and your past relevant work.
If you can still do your past relevant work, we will find
that you are not disabled. . . .
At the fifth and last step, we consider our assessment of
your residual functional capacity and your age,
education, and work experience to see if you can make an
adjustment to other work. If you can make an adjustment
to other work, we will find that you are not disabled. If
you cannot make an adjustment to other work, we will find
that you are disabled.
20 C.F.R. § 404.1520(a)(4)(i-v) (2004).
2
The “national economy” is defined as “the region where [the
claimant] lives or in several regions in the country.” 20 C.F.R.
§ 404.1560(c)(1) (2004).
7
§ 404.1520(a)(4)(v), (e) (2004).3 The “RFC is an assessment of the
individual’s ability to do sustained work-related physical and
mental activities in a work setting on a regular and continuing
basis.” Social Security Ruling (SSR) 96-8p at *1. To determine
the claimant’s RFC, the ALJ must consider the relevant medical
evidence and other evidence of the claimant’s condition in the
record, including testimony from the claimant and family members.
20 C.F.R. § 404.1529(c)(3) (2004).
The ALJ must then decide the ultimate issue of whether the
Commissioner has satisfied her burden of showing that the claimant
can engage in a job that “exist[s] in significant numbers in the
national economy.” 20 C.F.R. § 404.1560(c)(1) (2004); 20 C.F.R. §
404.1560(c)(2) (providing that the Commissioner bears the burden at
the second tier of step five); Wilson v. Heckler, 743 F.2d 218, 220
(4th Cir. 1984) (same). In deciding whether the Commissioner has
met her burden, the ALJ generally must accept evidence from a
vocational expert, who, based on the claimant’s age, education,
work experience, and RFC, testifies whether there are jobs for such
3
It is more precise to say that the claimant’s RFC is
determined after step three--when the ALJ determines whether the
claimant’s condition meets a listed impairment, see 20 C.F.R. §
404.1520(a)(4)(iii) (2004)--and that it is first applied at step
four--when the claimant must prove that she is unable to do past
relevant work, see 20 C.F.R. § 404.1520(a)(4)(iv). The RFC is then
used again at step five. See SSR 96-8p *2. The Commissioner does
not argue that Morgan was unable to do past relevant work. We,
like the parties, therefore focus on the RFC only as it relates to
step five.
8
a person in the national economy. See 20 C.F.R. § 404.1520(g)(1).
The Commissioner can show that the claimant is not disabled only if
the vocational expert’s testimony that jobs exist in the national
economy is in response to questions from the ALJ that accurately
reflect the claimant’s work-related abilities. See Walker v.
Bowen, 889 F.2d 47, 50 (4th Cir. 1989).4
In this case, after considering the evidence presented, the
ALJ relied primarily on the FCE in deciding Morgan’s RFC. (R. at
15 (“I give greater weight to the results of actual testing[, i.e.,
the FCE,] than I do the opinion of Dr. Holford, especially in light
of Dr. Kirkley’s opinion.” ).) The FCE determined, in relevant
part, that Morgan was not able to do full time “sedentary” work,
but she could work a full 8-hour day only if the job required her
to sit, stand, walk, or climb each for no more than 1/3 of the day,
or, in other words, she could do each activity for no more than 2
hours and 40 minutes per day. In determining Morgan’s RFC,
however, the ALJ found that Morgan was not able to do full-time
“sedentary” work, but she could work a full 8-hour day at a
4
If the claimant’s RFC reveals that she has the functionality
to do a particular category of work, “sedentary” or “light,” for
example, without further restrictions, the ALJ need not question a
vocational expert. Instead, the ALJ may consult the grids found in
20 C.F.R. Part 404, subpart P, Appendix 2 (2004). Wilson v.
Heckler, 743 F.2d 218, 222 (4th Cir. 1984). Because Morgan’s RFC
was “sedentary” with restrictions, the grids were inapplicable and
testimony from a vocational expert was required.
Id.
9
“sedentary” job if the job also allowed her to have a “sit/stand
option.” (R. at 16.)
Morgan contends that the FCE’s sit, stand, walk, or climb
combination is more restrictive than the RFC’s “sit/stand option.”
We agree. Whatever a “sit/stand option” is, it provides only for
sitting and standing, and, even interpreted in the manner most
consistent with the FCE, it still provides that Morgan may sit or
stand for 1/2 of an 8-hour day, or 4 hours. The “sit/stand option”
would therefore require Morgan to sit and stand significantly
longer than the restrictions indicated by the FCE.
The ALJ’s error with respect to Morgan’s RFC, moreover,
translated into deficient hypotheticals the ALJ posed to the
vocational expert. Each of the ALJ’s hypotheticals assumed that
Morgan could work a full eight-hour day alternating sitting and
standing. (R. at 56-57.) According to the FCE, however, Morgan
must also have the ability to walk or climb for 1/3 of the day in
order to complete a full eight-hour workday. The vocational
expert’s testimony that the national economy has a significant
number of jobs for an employee who is able to work a full eight-
hour day alternating sitting and standing was therefore incapable
of producing a reliable assessment of relevant work opportunities
for Morgan. See Walker, 889 F.2d at 50.
10
B. Dr. Holford’s Opinions
Morgan next argues that the ALJ erred in failing to credit the
opinions of Dr. Holford under the treating-physician rule. For the
reasons that follow, we hold that the FCE was substantial
evidentiary support for the ALJ’s decision to discredit Dr.
Holford’s legal conclusions and that even if the ALJ erred in
rejecting what we will assume is Dr. Holford’s medical opinion,
such error was harmless.
The Code of Federal Regulations draws a distinction between a
physician’s medical opinions and his legal conclusions. “Medical
opinions are statements from physicians . . . that reflect
judgments about the nature and severity of [the claimant’s]
impairment(s), including . . . symptoms, diagnosis and prognosis,
what [the claimant] can still do despite impairment(s), . . . and
[the claimant’s] physical or mental restrictions.” 20 C.F.R. §
404.1527(a)(2) (2004). Legal conclusions, on the other hand, are
opinions on issues reserved to the ALJ, such as “statements[s] by
a medical source that [the claimant is] ‘disabled’ or ‘unable to
work.’” 20 C.F.R. § 404.1527(e)(1). While the ALJ must give a
treating physician’s medical opinions special weight in certain
circumstances, Craig, 76 F.3d at 590 (holding that a treating
physician’s medical opinion must be given controlling weight only
when it “is well supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the
11
other substantial evidence” in the record (quoting 20 C.F.R. §
404.1527(d)(2))), the ALJ is under no obligation to give a treating
physician’s legal conclusions any heightened evidentiary value. See
20 C.F.R. § 404.1527(e)(3) (“We will not give any special
significance to . . . [a treating physician’s legal conclusions].
. . . “). The ALJ is not free, however, simply to ignore a
treating physician’s legal conclusions, but must instead “evaluate
all the evidence in the case record to determine the extent to
which the [treating physician’s legal conclusion] is supported by
the record.” SSR 96-5p at *3.
In her brief, Morgan points to four opinions given by Dr.
Holford: (1) “she probably qualifies for disability,” (R. at 293);
(2) “[h]er functional capacity evaluation basically figures that
she can’t work a total of an 8 hour day,” (R. at 292); (3) “[s]he
can possibly do modified duty [from her cashier job] but it would
probably be a 4 hour day,” (R. at 293.); and (4) “it would be hard
[for her] to sit or stand for a 5 hour day.”5 (R. at 317.) The
ALJ discredited Dr. Holford’s opinions, noting that
5
The dissent chides us for focusing only on these four
statements, but Morgan cites only these statements in her brief to
support her argument that the ALJ erred by failing to apply the
treating physician rule. Moreover, while the dissent’s summary of
Morgan’s medical condition is accurate, it is also not relevant to
the issue presented on appeal. That summary tends to show that
Morgan’s impairment is severe, as required at step two of the five-
step evaluation process, but it shows nothing new as to the impact
of Morgan’s impairment on her functional capacity, as required at
step five.
12
statements that a claimant is ‘disabled’, “unable to
work,” can or cannot perform a past job . . . or the
like are not medical opinions but are administrative
findings dispositive of a case, requiring familiarity
with the [Code of Federal Regulations] and legal
standards set forth therein. Such issues are reserved to
the Commissioner. . . . Opinions on issues reserved to
the Commissioner, such as [those] of Dr. Holford, can
never be entitled to controlling weight. . . . I give
greater weight to the results of actual testing[, i.e.,
the FCE,] than I do the opinion of Dr. Holford.
(R. at 15.) The ALJ did not err in concluding that at least the
first three of Dr. Holford’s opinions were legal conclusions and
were thus deserving of no special weight. Dr. Holford’s first two
opinions--that Morgan was “disabled” and that she “can’t work” an
8 hour day--are clearly legal conclusions. See 20 C.F.R. §
404.1527(e)(1). Dr. Holford’s third opinion is also a legal
conclusion: an opinion that Morgan cannot complete the duties of
her previous job is merely a legal conclusion on an issue reserved
for the ALJ at the fourth step of the sequential evaluation
process. See 20 C.F.R. § 404.1520(a)(4)(iv) (“At the fourth step
. . . . [i]f you can still do your past relevant work, we will find
that you are not disabled.”). Moreover, the FCE was substantial
evidence to support the ALJ’s decision to discredit these legal
conclusions.
It is a closer question whether Dr. Holford’s fourth opinion--
that “it would be hard [for Morgan] to sit or stand for a 5 hour
day”--is a medical opinion. Even assuming, however, that this
opinion is a medical opinion due special weight under the treating-
13
physician rule, any error in failing to credit this opinion was
harmless. The ALJ attempted to adopt the FCE in determining
Morgan’s RFC. As Morgan herself recognizes, however, the FCE does
not materially contradict Dr. Holford’s (assumed) medical opinion.
Dr. Holford’s opinion was that Morgan would have difficulty sitting
and standing for more than 5 hours. Nothing in his opinion is
meaningfully contradicted by the FCE’s determination that Morgan
could not sit and stand for more than 2/3 of an 8-hour day, or 5
hours and 20 minutes, but that she could also walk or climb the
remainder of the 8-hour workday. Any error the ALJ may have made
in rejecting Dr. Holford’s medical opinion, which provided
essentially the same time restriction on sitting and standing as
the FCE, was therefore harmless.6 Cf. Ngarurih v. Ashcroft, 371
F.3d 182, 190 n.8 (4th Cir. 2004) (“While the general rule is that
an administrative order cannot be upheld unless the grounds upon
which the agency acted in exercising its powers were those upon
which its action can be sustained, reversal is not required where
the alleged error clearly had no bearing on the procedure used or
6
In characterizing our analysis of this issue as internally
contradictory, the dissent reveals a misunderstanding of the
harmless error doctrine. For purposes of that doctrine, it would
not make a difference if in fact “the FCE is an entirely inadequate
substitute for Dr. Holdford’s medical opinions” as the dissent
contends. Post at 28. What matters is whether the FCE itself
contains findings that are materially indistinguishable from Dr.
Holford’s assumed medical opinion. Even the dissent does not argue
that it does.
14
the substance of the decision reached.” (internal quotation marks
omitted)).
C. Morgan’s Testimony
Morgan also argues that the sources on which the ALJ relied to
discredit her own testimony regarding the disabling nature of her
pain were not substantial evidence. For the following reasons, we
hold that the opinion of Dr. Kirkley and the FCE were substantial
evidentiary support for the ALJ’s decision to discredit Morgan’s
testimony.
In evaluating claims of disabling pain, the ALJ must proceed
in a two-part analysis. First, because pain alone, no matter how
disabling, cannot create a “disability” under the Social Security
Act without an underlying medical condition that causes the pain,
the ALJ must determine whether the claimant has produced medical
evidence of a “medically determinable impairment which could
reasonably be expected to produce . . . . the actual pain, in the
amount and degree, alleged by the claimant.” Craig, 76 F.3d at 594
(emphasis added). It is important to note that while the claimant
must introduce objective medical evidence of an impairment, the
evidence must only demonstrate that the impairment reasonably could
be expected to produce the pain alleged.
Id. at 595. Second, if,
and only if, the ALJ finds that the claimant has produced such
evidence, the ALJ must then determine, as a matter of fact, whether
15
the claimant’s underlying impairment actually causes her alleged
pain. Craig, 76, F.3d at 595. The ALJ need not find either that
the claimant’s pain is real, or, if he finds that it is real, that
it is caused by her underlying medical condition if such findings
are “inconsistent with the available evidence.” Id.
Here, the ALJ concluded that the objective evidence revealed
that Morgan’s medical condition could reasonably be expected to
produce the pain she alleged, and thus analyzed whether her medical
condition actually produced the allegedly disabling pain. In
discrediting Morgan’s allegations of pain, the ALJ relied on
“[Morgan’s] activities, particularly her hobbies of needlepoint,
crochet, etc.; the lack of frequent emergency room visits or
hospitalizations for pain; the absence of significant side-effects
attributable to medication, the results of [the FCE], and the
opinions of Drs. Kirkley and Holford.” (R. at 16.)
Dr. Kirkley opined that
[Morgan’s] MRI really didn’t show anything that I think
would explain her symptoms. . . . I told her I could
give her a note to be out of this work indefinitely
because of complaints of pain but strictly speaking and
on an objective basis I can find no reason why she
theoretically could not do the job. It is true that
people do have chronic pain and that it does sometimes
keep an individual from being able to work.
Unfortunately, the complaint is subjective. . . .
(R. at 171 (emphasis added).) Although Dr. Kirkley did not
question Morgan’s subjective experience of pain, he also believed
that her pain was not caused by her underlying condition. The fact
16
that Dr. Kirkley authorized Morgan’s absence from work based on her
complaints of pain in no way casts doubt on his belief that
Morgan’s condition did not produce her pain. And while it is true
that Dr. Kirkley gave his opinion about the source of Morgan’s pain
more than a year before she gave her testimony, Morgan has pointed
to no additional objective evidence submitted after Dr. Kirkley
gave his opinion that would call his opinion into doubt by linking
her pain with her underlying condition. Moreover, the FCE concluded
that Morgan was able to work an entire 8-hour day. Because the FCE
measures a claimant’s functionality, which takes account of her
pain, the FCE, like Dr. Kirkley’s opinion, also contradicts
Morgan’s allegations of pain.
We believe that, given Dr. Kirkley’s opinion and the FCE, the
ALJ’s decision to discredit Morgan’s allegations of pain was
supported by substantial evidence. Even assuming the ALJ erred in
crediting the other evidence contradicting Morgan’s allegations--
her activities, her lack of hospitalizations, the absence of
significant side-effects, and the opinion of Dr. Holford--this
error was therefore harmless. See Ngarurih, 371 F.3d at 190 n.8.
D. Morgan’s Husband’s and Daughter’s
Responses to Questionnaires
Finally, Morgan argues that the ALJ impermissibly discredited
the questionnaire responses submitted by her husband and daughter
on the basis of inherent familial bias. While we agree with
17
Morgan’s argument in principle, we would not reach the issue here,
because the ALJ did not, in fact, discredit the observations of
Morgan’s family members solely because of inherent familial bias.
In the order denying Morgan’s claim, the ALJ found, in part
because of Dr. Kirkley’s opinion and the FCE, that “the allegations
of disabling pain . . . [were not] credible.” (R. at 16 (emphasis
added).) The ALJ gave no indication that “the allegations” of
disabling pain to which he was referring were only Morgan’s
allegations, and not also the allegations of Morgan’s husband and
daughter. Indeed, the most natural reading of the indefinite
article “the” is that it refers to all, not just some, of the
allegations of pain. We believe, therefore, that the ALJ
discredited the questionnaire responses for the same reasons he
rejected Morgan’s own testimony; i.e., Dr. Kirkley’s opinion that
Morgan’s underlying condition did not cause her pain and the FCE
indicating that Morgan maintained the functional capacity to work
an 8-hour day. And as we concluded with respect to Morgan’s
testimony, any error the ALJ made in crediting the other evidence
on which the ALJ relied--here, her activities, her lack of
hospitalizations, the absence of significant side-effects, the
opinion of Dr. Holford, and inherent familial bias--was harmless,
because Dr. Kirkley’s opinion and the FCE were substantial
evidentiary support for the ALJ’s decision to discredit Morgan’s
husband’s and daughter’s observations.
18
III. Conclusion
We therefore vacate and remand the district court’s order with
instructions for the district court to vacate and remand the ALJ’s
order. On remand, the ALJ should, in a manner consistent with this
opinion, redetermine Morgan’s RFC and, if required, accept
additional evidence to determine whether relevant jobs exist for
Morgan in the national economy.
VACATED AND REMANDED WITH INSTRUCTIONS
19
GREGORY, Circuit Judge, concurring in part and dissenting in part:
I agree with my good colleagues that the hypothetical
questions submitted to the vocational expert were flawed, so the
vocational expert’s testimony cannot serve to support a finding
that Morgan is not disabled. However, I must respectfully dissent
from the remainder of the majority opinion.
I.
The ALJ discounted Dr. Holford’s opinion by finding that, “I
give greater weight to the results of [the FCE’s] actual testing
than I do the opinion of Dr. Holford, especially in light of Dr.
Kirkley’s opinion.” Tr. 15. Morgan challenges this, and I agree
that it materially misapplies the Commissioner’s regulations and is
not supported by substantial evidence.
The majority, instead, ignores the bulk of medical evidence
Dr. Holford submitted and suggests that only a few select
statements are at issue here. It then dismisses three of the four
selected statements as legal opinions. This misses the forest for
the trees: the record contains notes Dr. Holford submitted from
some 19 visits, replete with medical impressions and opinions about
Morgan’s condition. The majority then claims that any remaining
discounting of Dr. Holford’s medical opinions was at best harmless
error because it was similar to the FCE. This cannot be correct.
20
A.
From the majority opinion one would never know the full range
of medical evidence Dr. Holford submitted in this case. From his
records in the district court transcript (“Tr.”) we learn the
following: After an emergency room visit and several examinations,
on April 5, 2000 Dr. Holford found Morgan in “a lot of pain” and
diagnosed her with a “C5-6 disc and spondylolisthesis at C6-7,” Tr.
at 308. On April 18, 2000, he removed her C5-6 and C6-7 discs and
fused her vertebrae from C5 through C7 with anterior plating. Dr.
Holford prescribed medication and directed therapeutic exercises.
By the end of May, he concluded that Morgan was doing “fair” and
could return to light work in about four weeks. Tr. 303. Dr.
Holford continued to see Morgan throughout that summer and
prescribed medication and more exercises.
Morgan’s pain did not abate. In fact, after trying to grab an
item that fell off of a shelf, she returned to the emergency room
on June 17, 2000. She still performed light work, but complained
of pain in her shoulders. On August 30, 2000, Dr. Holford noted
that after squatting to stock a shelf at work, Morgan had developed
lower back pain which radiated into her left leg. An x-ray
revealed “degenerative changes of the lumbar spine, mainly at 3-4
and at the thoracal lumbar junction.” Tr. 298. His impression was
that Morgan suffered from sciatica and degenerative disc disease
and he prescribed medication. On September 20, 2000 Dr. Holford
21
felt that Morgan could gradually increase to working 40 hours per
week with moderate duties. By late January of 2001, however,
Morgan still complained bitterly of pain and tenderness in her back
and neck. On January 30, 2001, Dr. Holford tested her range of
motion and found “demonstrable weakness” in several areas. Tr.
296. He ordered an MRI.1 On February 19, 2001, Dr. Holford noted
that the MRI revealed multiple degenerative discs. Dr. Holford
felt Morgan’s job, which included “bending and stooping while
trying to protect her [surgically repaired] neck probably
aggravated a pre-existing condition.” Tr. 295. He set up more
tests.2
On March 20, 2001, Morgan returned to Dr. Holford, who
reviewed the new tests, found Morgan with pain and tenderness in
her back, diagnosed her with radiculopathy and axonal neuropathy,
recommended epidural steroids, and kept her off of work. Dr.
Holford stated that her “[p]rognosis is guarded,” Tr. 294, and
noted that she may qualify for disability for neck and lumbar spine
disease. The steroids evidently offered some short-term aid, but
Morgan still experienced pain. By April 18, 2001, Dr. Holford
1
The MRI was conducted on February 9th by Dr. G. Paul Forsyth.
Dr. Forsyth’s impressions from the MRI were that Morgan had bulging
discs throughout the lumbar area and some joint space narrowing but
no disc fragment, spinal stenosis, or nerve compression.
2
Dr. Melvyn L. Haas subsequently administered electro-
diagnostic studies on February 28, 2001. His impression was “S1
radiculopathy, bilateral” and “early axonal neuropathy.” Tr. 166.
22
found that Morgan had reached maximum medical improvement and had
a “permanent impairment,” but could possibly do “modified duty” for
a 4-hour day if it involved intermittent standing, sitting and
twisting. Tr. 293.3
Dr. Holford also recommended the FCE and, on August 15, 2001,
reviewed it. He observed that she was “up and down,” Tr. 292, and
noted that Morgan’s FCE “basically figures that she can’t work a
total of an 8 hour day.4 She can’t work for more than 4 hours.”
Id. He thought that Morgan qualified for disability “under
cervical and lumbar disc disease. She has an inability to sit,
bend, stoop, or twist long enough to work in an 8 hour day.”
Id.
Later, on January 28, 2002, Dr. Holford again noted Morgan’s back
and neck pain and prescribed more medication. After a March 14,
2002 final evaluation, he indicated that Morgan “[s]till hurts
quite a bit[,]” and had difficulty bending, stooping, twisting,
straightening, and lifting. Tr. 317. He found that she had
reached maximum medical improvement and that she would have
3
On June 11, Morgan again reported to the emergency room and
was given “trigger-point” injections for her back pain.
4
Specifically, the cover letter to Dr. Holford from the
rehabilitation center indicated that Morgan “is able to work at the
“NO CLASSIFICATION Physical Demand Level for an 8 hour day . . . .”
and that “[h]er specific acceptable Leg Lift capability was 0 lbs.
and Torso Lift capability was 0 lbs.” Tr. 290. The letter went on
to state that Morgan “exhibited minimal symptom/disability
exaggeration behavior by our criteria. . . .” Id.
23
difficulty sitting or standing for a five-hour day. He also stated
that “I think she qualifies for disability.”
Id.
All this, of course, is significantly different from the
conclusory assertions the majority selects and dismisses. Merely
because Dr. Holford at one point made some legal conclusions does
not, of course, poison the many other medical opinions. And the
striking picture painted by Dr. Holford’s medical impressions and
opinions simply cannot be ignored.
B.
An examining physician’s opinions are given more weight than
the opinion of one who has not examined the claimant, 20 C.F.R.
§ 404.1527(d)(1), and a treating physician’s opinion is especially
valuable because such doctors
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.
Id. § 404.1527(d)(2). This subsection of the regulations goes on
to explain that:
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.
24
Id. Even when a treating physician’s opinion is not given
“controlling” weight it can still receive much more weight than
other classes of evidence: “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.”
Id. § 404.1527(d)(2)(I). Further,
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.
Id. § 404.1527(d)(2)(ii); see Mastro v. Apfel,
270 F.3d 171, 178
(4th Cir. 2001) (explaining § 404.1527(d)(2)).5
In addition, § 404.1527(d)(3) states that:
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
5
With regard to evaluating treating sources versus non-
treating sources, this court has held that:
“[i]f we find that a treating source’s opinion on the
issue(s) of the nature and severity of [the]
impairment(s) is well supported by medically acceptable
clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence in [the]
case record, we will give it controlling weight.” By
negative implication, if a physician's opinion is not
supported by clinical evidence or if it is inconsistent
with other substantial evidence, it should be accorded
significantly less weight.
Craig v. Chater, 76 F.3d 585, 590 (4th Cir. 1996) (quoting 20
C.F.R. §§ 404.1527(d)(2) and 416.927(d)(2)).
25
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.
Id. Finally, the more consistent an opinion is with the record as
a whole, the more weight it deserves,
id. § 404.1527(d)(4), and
specialists operating in their field of specialty receive more
weight than those of non-specialists.
Id. § 404.1527(d)(5).
C.
Under these regulations, Dr. Holford surely stands alone as
the source whose opinions should receive the greatest weight. He
is a specialist, and his opinions are plainly based upon far more
than mere recitations of subjective statements of pain: he
conducted spinal surgery on Morgan, repeatedly and personally
examined her and ordered, reviewed, and relied upon medical tests.6
He monitored Morgan’s rehabilitation and prescribed pain medication
for a significant period of time. Indeed, the record indicates
that he saw her some 19 times -- much more frequently during the
time in question than any other person who submitted evidence
outside of Morgan’s immediate family. In short, here Dr. Holford
6
The ALJ’s implicit idea that Holford never administered
“actual testing” during many examinations of Morgan flatly ignores
the record. Dr. Holford conducted numerous physical exams, see,
e.g., Tr. 296, 298, 310, 317, and reviewed neurological exams, 299,
X-ray tests, Tr. 298, 300-02, 310, MRIs, Tr. 295, 304, and nerve-
conduction tests, Tr. 294.
26
is uniquely positioned to provide precisely the type of “detailed,
longitudinal picture” of Morgan’s medical impairments that we must
value highly. Id. § 404.1527(d)(2). This long-term perspective is
especially valuable in this kind of case, where a claimant proffers
variable levels of pain from a severe impairment that could cause
-- but may not necessarily result in -- debilitating, disabling
pain. In such cases “snapshot” examinations are especially likely
to mislead and “moving pictures” provided from records of long-term
treating relationships are especially probative. To the extent
that his opinion differs from the FCE -- a product of a single
day’s examination by a non-treating occupational therapist -- the
ALJ was exactly backwards; Holford’s opinions must merit more
weight.7
Regarding the ALJ’s discounting of Dr. Holford’s medical
opinions,8 the majority claims that any error was harmless because
7
Dr. Holford’s medical opinions are also “consistent with the
record as a whole.” 20 C.F.R. § 404.1527(d)(4). Dr. Forsyth
performed an MRI which revealed bulging lumbar disc material on
multiple levels. Dr. Haas also diagnosed Morgan with S1
radiculopathy, bilateral and early axonal neuropathy. While Dr.
Kirkley did not believe that these tests provided an objective
explanation and termed Morgan’s lower back pain “chronic
mechanical,” he also found Morgan’s claims of pain sufficiently
credible to remove her from work indefinitely. Moreover, Morgan
testified that her pain had increased dramatically since she saw
Kirkley over a year ago. Taken together, this all complicates
Kirkley’s brief note sufficiently that they simply cannot count as
substantial evidence to trump Holford’s medical opinions.
8
I freely agree that certain of Holford’s opinion are legal
opinions, which the ALJ need not accept uncritically. But I must
reemphasize, in case it is not perfectly clear, that such opinions
27
of the FCE, which the ALJ “attempted to adopt.” Ante at 14. The
majority’s awkward phrasing reveals problematic reasoning and
internal contradictions. The majority frankly admits that the ALJ
materially misinterpreted the FCE to Morgan’s detriment. See ante
pp. 9-10.9 That is, the ALJ explicitly used the FCE to discount
Dr. Holford’s opinions (because, in supposed contrast, it involved
“actual testing”), Tr. 15, while the majority finds it sufficiently
redundant with Dr. Holford’s “(assumed)” medical opinion to make
discounting Dr. Holford’s opinion harmless error. Ante at 14.
Both propositions cannot be concurrently right; in fact, both are
quite wrong. The FCE’s results do overlap to some extent with Dr.
Holford’s findings. But to the extent they are similar, the FCE is
an entirely inadequate substitute for Dr. Holford’s medical
opinions. Thus it cannot be harmless error. Moreover, the ALJ did
not view the two as similar, and so at a bare minimum the remand
must be accompanied with instructions to construe the FCE as fully
supporting Dr. Holford’s opinions. To the extent the two differ,
for the reasons I have explained above, the FCE cannot possibly
trump Dr. Holford.
are few among many strongly supported medical opinions.
9
Indeed, the ALJ did not stop there but went on and, shall we
say, “attempted to” wield the FCE to discredit both Morgan and (in
the majority’s mind, at least) her family members. See ante at pp.
16-18.
28
I would thus grant the medical opinions submitted by Dr.
Holford significant, appropriate deference.
II.
The ALJ, while recognizing that “[t]he medical evidence in
this case does establish the existence of a medically determinable
impairment which is capable of producing” Morgan’s symptoms, Tr.
15, nonetheless did not find Morgan’s testimony of disabling pain
and limited functional capacity credible. The explanation was
based on:
[c]onsidering the claimant’s activities, particularly her
hobbies of needlepoint, crochet, etc.; the lack of
frequent emergency room visits or hospitalizations for
pain; the absence of significant side-effects
attributable to medication, the results of formal
functional capacities evaluation in June 2001, and the
opinions of Drs. Kirkley and Holford.
Tr. 16.
This explanation reveals important errors and is not supported
by substantial evidence. First, it is difficult to imagine more
benign and gentle hobbies than the occasional practice of
needlepoint and crochet. Morgan testified that her pain varied,
and that she only engaged in her hobbies “probably 45 minutes” on
“a real good day” but never on a bad day. Tr. 51-52. Of course,
a claimant need not be constantly bedridden or completely
incapacitated to be found disabled. See Trotten v. Califano, 624
F.2d 10, 11-12 (4th Cir. 1980) (“An individual does not have to be
29
totally helpless or bedridden in order to be found disabled under
the Social Security Act, otherwise, the ability to perform
substantial gainful activity even one day each month or each year
would disqualify an individual for benefits.” (citations omitted));
see also Waters v. Bowen, 709 F. Supp. 278, 284 (D. Mass. 1989)
(collecting cases where light housework and hobbies like crocheting
did not disqualify claimants as disabled). Indeed, “while a
claimant must show by objective evidence the existence of an
underlying impairment that could cause the pain alleged, ‘there
need not be objective evidence of the pain itself.’” Craig v.
Chater, 76 F.3d at 593 (citations omitted); see also Walker v.
Bowen,
889 F.2d 47, 49 (4th Cir. 1989). Here, the ALJ’s finding
that needlepoint and crochet negate her testimony essentially
requires Morgan to be consistently bedridden or proffer “objective
evidence” of pain; it also ignores the fact that Morgan presented
objective test results which her primary treating physician found
fully capable of producing her disabling pain. This is error.
Also, Morgan was admitted to the emergency room more than
once, and it would be passing strange to penalize a claimant for
having the good sense and good fortune to receive regular treatment
through specialists instead of returning to the emergency room over
and over. Further, I am frankly puzzled as to how a lack of side-
effects from pain medication can discount Morgan’s testimony that
she is still in pain despite the medication. And, as the majority
30
recognizes, ante at 9-10, the FCE restricted Morgan by, for
example, stating that she could not sit or stand for more than 1/3
of the workday each.10
The ALJ’s statement that Dr. Holford’s findings somehow
support that Morgan is not disabled is simply incomprehensible; no
reasonable reading of his submitted evidence, as detailed above in
Part I.A, can claim this. If Dr. Holford’s findings did contradict
Morgan’s claims, I must wonder why Morgan would argue for us to
give them such great weight? Finally, Dr. Kirkley, whatever else
he wrote, specifically signed a document indicating that Morgan was
unable to work indefinitely and only encouraged her to work if she
felt capable. For all of these reasons, I believe that the ALJ’s
decision to discount Morgan’s testimony is unsupported by
substantial evidence.
III.
Finally, the majority’s novel suggestion that the ALJ
discounted the evidence submitted by Morgan’s husband and daughter
10
More specifically, the FCE also stated that she could lift
to her shoulders or carry, push, or pull only 8 pounds occasionally
and 4 pounds frequently; it also noted that she could only lift
overhead 3 pounds occasionally and 2 pounds frequently.
Importantly, the FCE also reported that while Morgan could reach
frequently, she could never bend, squat, kneel, or crawl and could
not sit, stand, walk, or climb for more than 33% of a workday each.
In response to Morgan’s “physical demand classification,” the FCE
listed “no classification.” Tr. 255. With these restrictions
explicitly noted, the FCE found that Morgan’s “current work status”
was “qualified full time.” Id.
31
because of Dr. Kirkley and the FCE is unsustainable. The ALJ was
crystal clear that the family members’ testimony was “viewed as
biased” and given little weight simply because of their
relationship to Morgan.
Morgan’s husband and daughter submitted questionnaires that
indicated Morgan was able to engage in only the most limited of
activities. Morgan’s husband noted that she could not do things
she likes to do, such as work in the yard and house or attend
movies and rummage sales. He stated that Morgan cannot bend or
lift, cannot sit or stand for any long period without pain, and
experiences numbness that makes walking difficult. He wrote that
he must help her complete basic tasks and sometimes must help her
walk or stand up. Morgan’s husband also explained that the pain
has “taken away her independence. She was a very independent and
active lady [and] that has all changed for her . . . .” Tr. 130.
Morgan’s daughter echoed this assessment, writing that while
her mother had previously been highly independent, she now “is
reliant on others to perform the smallest of duties,” Tr. 132, and
has difficulty standing, cooking, cleaning, getting things out of
cabinets, and walking up stairs. She also wrote that Morgan cannot
play with her grandson or have him sit on her lap without pain and
that she had to help her mother lay on the floor in the grocery
store when her legs spasmed uncontrollably.
32
In direct response to this evidence, the ALJ simply stated
that: “[a]s immediate family members, the claimant’s husband and
her daughter would be expected to support the claimant’s effort to
secure disability benefits. While I do not question the veracity
of the claimant’s husband or daughter, their statements are viewed
as biased and I give them little weight.” Tr. 16. In contrast to
the majority’s version of things, it is perfectly clear to me that
the ALJ offered no other reason for discounting this evidence and
then moved on to discuss Morgan’s testimony.
As with other recommendations, the magistrate judge rightly
recognized that the ALJ’s per se discounting of Morgan’s family
members’ observations for bias was reversible error. Courts
consistently and appropriately rely on the testimony of family
members in the full range of matters. As one court explained:
Descriptions of friends and family members who were in a
position to observe the claimant's symptoms and daily
activities have been routinely accepted as competent
evidence. Sprague v. Bowen, 812 F.2d 1226, 1232 (9th
Cir. 1987); 20 CFR § 404.1529(c)(3). A disregard for
such evidence violates the Commissioner's regulations
about observations by nonmedical sources as to how an
impairment affects a claimant's ability to work. Id.
When an ALJ fails to believe lay testimony about a
claimant's allegations of pain or other symptoms, he
should discuss the testimony specifically and make
explicit credibility determinations. Smith v. Heckler,
735 F.2d 312, 313 (8th Cir. 1984).
Behymer v. Apfel,
45 F. Supp. 2d 654, 663 (N.D. Ind. 1999); see
also, e.g., Smolen v. Chater,
80 F.3d 1273, 1289 (9th Cir. 1996)
(“The fact that a lay witness is a family member cannot be a ground
33
for rejecting his or her testimony. To the contrary, testimony
from lay witnesses who see the claimant every day is of particular
value; such lay witnesses will often be family members.” (citation
omitted)); Regennitter v. Comm. of the Social Sec. Admin., 166 F.3d
1294, 1298 (9th Cir. 1999) (noting claimant’s mother’s testimony,
explaining that such lay testimony “provides an important source of
information about a claimant's impairments, and an ALJ can reject
it only by giving specific reasons germane to each witness.”
(citing Smolen)). As Morgan argues, if family members' evidence
was automatically worthless, it would be an odd exercise in
futility to even allow them to fill out questionnaires and submit
them into evidence.
IV.
For these reasons, I believe (1) Dr. Holford’s medical
opinions should receive greater weight, and the evidence submitted
(2) by Mrs. Morgan and (3) her family deserves proper
consideration. When all of Morgan’s evidence is appropriately
considered, the unavoidable conclusion is that the case should be
remanded with instructions to award benefits.
34
