E. SCOTT FROST, Magistrate Judge.
Pursuant to 42 U.S.C. § 405(g), Plaintiff seeks judicial review of a decision of the Commissioner of Social Security ("Commissioner") denying his application for Supplemental Security Income ("SSI") under Title XVI of the Social Security Act.
Plaintiff initially claimed disability due to post-traumatic stress disorder ("PTSD"), anxiety, and an arm injury. R. 144. He protectively filed an application for SSI on March 6, 2012, alleging disability beginning August 8, 2011. R. 128, 144. The Commissioner denied the application initially and on reconsideration. R. 47-48. On November 19, 2013, Administrative Law Judge ("ALJ") William Helsper held a hearing on Plaintiff's claims. See R. 31-45. Through his representative at the hearing before the ALJ, Plaintiff amended his alleged onset date to July 4, 2013, based upon a metastatic disease. R. 32.
On February 12, 2014, the ALJ issued an unfavorable decision finding that Plaintiff was not disabled and was capable of performing work that exists in significant numbers in the national economy. R. 12-23. Applying the sequential, five-step analysis set out in the regulations (20 C.F.R. § 416.920(a)(4)) the ALJ first determined that Plaintiff had not engaged in substantial gainful activity since the amended alleged onset date. R. 14. The ALJ next determined that Plaintiff had "the following severe impairments: diabetes, hepatitis C, arthritis, degenerative disc disease, hypertension, left arm pain status post injury, soft tissue sarcoma, polysubstance abuse, in remission, posttraumatic stress disorder, [and] obsessive compulsive disorder." Id. Third, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or equaled the severity of any impairment in the listings.
The ALJ then determined that Plaintiff retained the residual functional capacity ("RFC")
On June 1, 2015, the Appeals Council found no reason to review the ALJ decision and thus denied Plaintiff's request for review. R. 1. The ALJ's decision is the Commissioner's final decision and is properly before the Court for review. See Higginbotham v. Barnhart, 405 F.3d 332, 334 (5th Cir. 2005) (stating that the Commissioner's final decision "includes the Appeals Council's denial of [a claimant's] request for review").
Plaintiff commenced this social security appeal on November 4, 2015. See Compl. In the sole issue presented, he argues that the ALJ improperly considered opinions of his treating physician. See Pl.'s Br. at 1-13.
In general,
Audler v. Astrue, 501 F.3d 446, 447-48 (5th Cir. 2007). If, at any step, the Commissioner determines that the claimant is or is "not disabled, the inquiry is terminated." Id. at 448. The Commissioner must assess the claimant's RFC before proceeding to Steps 4 and 5. Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005). For Steps 1 through 4, the claimant has the burden to show disability, but the Commissioner has the burden at Step 5 to "show that there is other substantial work in the national economy that the claimant can perform." Audler, 501 F.3d at 448. If the Commissioner carries that Step 5 burden, "the burden shifts back to the claimant to rebut th[e] finding" that he or she can perform other work that is available in the national economy. Newton v. Apfel, 209 F.3d 448, 453 (5th Cir. 2000).
"Judicial review of the Commissioner's decision to deny benefits is limited to determining whether that decision is supported by substantial evidence and whether the proper legal standards are applied." Sun v. Colvin, 793 F.3d 502, 508 (5th Cir. 2015) (quoting Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001)). "Substantial evidence is `such relevant evidence as a reasonable mind might accept to support a conclusion' and constitutes `more than a mere scintilla' but `less than a preponderance' of evidence." Hardman v. Colvin, 820 F.3d 142, 147 (5th Cir. 2016) (quoting Newton, 209 F.3d at 452). "In applying the substantial evidence standard, the court scrutinizes the record to determine whether such evidence is present, but may not reweigh the evidence or substitute its judgment for the Commissioner's." Perez, 415 F.3d at 461. The courts neither "try the questions de novo" nor substitute their "judgment for the Commissioner's, even if [they] believe the evidence weighs against the Commissioner's decision." Masterson, 309 F.3d at 272. The Commissioner resolves conflicts of evidence. Sun, 793 F.3d at 508.
Claimant contends that, when determining his RFC, the ALJ failed to properly consider opinions of his treating physician, Federico Ilang-Ilang, M.D. While characterizing the issue as a failure to accord the opinions controlling weight, he also argues that the ALJ improperly weighed the opinions by failing to conduct the detailed analysis required by Newton v. Apfel, 209 F.3d 448 (5th Cir. 2000) and 20 C.F.R. § 416.927.
When considering whether a claimant is disabled, the Commissioner considers the medical evidence available, including medical opinions.
"After identifying relevant medical opinions of treating physicians, ALJs must determine whether any such opinion is entitled to controlling weight." Bentley v. Colvin, No. 3:13-CV-4238-P, 2015 WL 5836029, at *7 (N.D. Tex. Sept. 30, 2015) (citing 20 C.F.R. § 416.927(c)(2) and its Title II counterpart, § 404.1527(c)(2)). When identifying and considering relevant opinions, ALJs "must remember" that some medical records, such as medical source statements provided by a treating source, "may actually comprise separate medical opinions regarding diverse physical and mental functions, such as walking, lifting, seeing, and remembering instructions, and that it may be necessary to decide whether to adopt or not adopt each one." Titles II & XVI: Med. Source Ops. on Issues Reserved to the Comm'r, SSR 96-5P, 1996 WL 374183, at *4 (S.S.A. July 2, 1996).
The regulations provide a six-factor detailed analysis to follow unless the ALJ gives "a treating source's opinion controlling weight." 20 C.F.R. § 416.927(c)(1)-(6) (effective Aug. 24, 2012, to Mar. 26, 2017).
In addition, "the ALJ may re-contact a treating physician or other medical source if there is insufficient evidence to determine whether the claimant is disabled." Perry v. Colvin, No. 3:13-CV-2252-P, 2015 WL 5458925, at *7 (N.D. Tex. Sept. 17, 2015); accord Jones v. Colvin, No. 4:13-CV-818-A, 2015 WL 631670, at *7 (N.D. Tex. Feb. 13, 2015) (accepting recommendation of Mag. J. which recognized that, effective March 26, 2012, this new regulation replaced the former mandatory requirement of § 404.1512(e) applied in Newton). 20 C.F.R. § 416.920b(c)(1). Further, "if after weighing the evidence [the ALJ] cannot reach a conclusion about whether [the claimant is] disabled," § 416.920b(c) provides "various options, including re-contacting a treating physician or other medical source, to resolve an inconsistency or insufficiency of evidence." Bentley, 2015 WL 5836029, at *8 (citing 20 C.F.R. §§ 404.1520b(c), 416.920b(c) (effective Mar. 26, 2012 to March 26, 2017)).
ALJs who find a treating source opinion not entitled to controlling weight must consider the six regulatory factors to properly assess the weight to give such opinions. Newton, 209 F.3d at 456. However, "Newton requires only that the ALJ `consider' each of the [regulatory] factors and articulate good reasons for its decision to accept or reject the treating physician's opinion. The [ALJ] need not recite each factor as a litany in every case." Jeffcoat v. Astrue, No. 4:08-CV-672-A, 2010 WL 1685825, at *3 (N.D. Tex. April 23, 2010) (emphasis added); accord Emery v. Astrue, No. 7:07-CV-084-BD, 2008 WL 4279388, at *5 (N.D. Tex. Sept. 17, 2008); Burk v. Astrue, No. 3:07-CV-899-B, 2008 WL 4899232, at *4 (N.D. Tex. Nov. 12, 2008) (accepting recommendation of Mag. J.). Newton, furthermore, does not require the detailed analysis when "there is competing first-hand medical evidence and the ALJ finds as a factual matter that one doctor's opinion is more well-founded than another." 209 F.3d at 458. Likewise, the detailed analysis under Newton is not necessary when the ALJ has weighed the treating physician's opinion against opinions of other treating or examining physicians who "have specific medical bases for a contrary opinion." Id.
The ALJ, as fact-finder, "has the sole responsibility for weighing evidence and may choose whichever physician's diagnosis is most supported by the record." Muse v. Sullivan, 925 F.2d 785, 790 (5th Cir. 1991). ALJs have considerable discretion in assigning weight to medical opinions and may reject the opinion of a physician when the evidence supports a contrary conclusion. Newton, 209 F.3d at 455-56. Additionally, for good cause shown, an ALJ may assign little or no weight to an opinion from a treating source. Id. "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 456.
Medical records prior to Claimant's alleged amended onset of disability show a history of hypertension, back pain, diabetic ketoacidosis, diabetes mellitus, traumatic arm pain, PTSD, anxiety, and obsessive compulsive disorder ("OCD"). See R. 216-19, 226-33, 270, 272-78, 280, 285, 300, 336-40, 343-44, 402, 405, 408-09, 416, 418-19, 427, 440-41, 452-53, 455, 457-58, 477-80, 486-87. The month before his amended onset of disability State Agency Medical Consultant Robert Gilliland, M.D., assessed Claimant's mental capacity for the period March 6, 2012, through August 13, 2012. See R. 280.
Dr. Gilliland completed a Psychiatric Review Technique on August 13, 2012, wherein he stated that an RFC assessment was necessary and a coexisting non-mental impairment required a referral to another medical speciality. Id. Dr. Gilliland found anxiety-based disorders (PTSD and OCD), personality disorders, and a substance abuse disorder (reportedly in remission) that do not precisely satisfy diagnostic criteria but moderately limit Claimant in all areas of mental functioning. R. 280, 285, 287-88, 290. In a Mental Residual Functional Capacity Assessment, Dr. Gilliland found Claimant (1) markedly limited in his abilities to understand, remember, and carry out detailed instructions; (2) moderately limited in his abilities to maintain attention and concentration for extended periods, work with others without being distracted, complete a normal workday without interruptions from psychological symptoms, perform at a consistent pace without an unreasonable number and length of rest periods, interact appropriately with general public, accept instructions and respond appropriately to criticism from supervisors, and to respond to changes in the work setting; and (3) not significantly limited in all other listed abilities. See R. 294-95. From a mental functional capacity standpoint, Dr. Gilliland assessed that Claimant would be limited to making simple decisions and understanding, remembering, and carrying out simple instructions only. R. 296.
The day before his alleged onset of disability, July 3, 2013, Claimant visited his treating physician, Dr. Ilang-Ilang for a diabetic follow-up in which he complained of night sweats, body aches, fever, nausea, and being very emotional upset for fourteen days prior to the visit. See R. 490. He rated his pain as "10." Id. Dr. Ilang-Ilang prescribed medication for pain and PTSD; made several diagnoses, including diabetes, arthritis, PTSD, and OCD; and instructed Claimant about weight loss and exercise. R. 491.
That same day, Dr. Ilang-Ilang completed a Residual Functional Capacity Questionnaire ("RFCQ")
On July 4, 2013, Midland Memorial Hospital admitted Claimant for the flu. R. 498. Claimant's chief complaints were cough and body aches and he reported that the symptoms had started two weeks earlier. R. 500. Examination showed Claimant to be "[c]hronically ill-appearing" and "in moderate apparent distress from malaise." R. 502. A chest x-ray revealed a "[n]ewly developed bi-basilar pulmonary nodules" that would be considered "metastatic disease until proven otherwise." R. 505. A CT scan taken the next day revealed evidence of metastatic disease to the lungs, new moderate splenomegaly, and small left pleural effusion and bibasilar atelectasis. R. 506. Following the CT scan, a hospital physician diagnosed lung mass and discharged Claimant to home. Id.
On August 5, 2013, Claimant returned to Dr. Ilang-Ilang for follow-up on his hypertension, diabetes, lungs, and cough. R. 558. A review of his systems revealed he was positive for chills, malaise, fatigue, and possibly fever. Id. The doctor diagnosed diabetes, pneumonia, sarcoma, and cancer. R. 559. His treatment plan included continuing on medications and bed rest. Id. Later that month, Claimant began treatment with Dr. Patel. See R. 510-12.
Claimant visited Dr. Ilang-Ilang on September 5, 2013, for follow-up on his various impairments. See R. 552. Dr. Ilang-Ilang stated that Claimant was "undergoing chromosomal test on the sarcoma" and identified the sarcoma as Stage 4. R. 554. He refilled Claimant's medications. R. 552, 554. Later that month, Claimant returned to Dr. Patel with complaints of calf pain. R. 567. Two months later, Claimant visited Dr. Ilang-Ilang for further follow-up and the doctor removed bed rest from his instructions to Claimant. See R. 570-71.
The ALJ specifically considered the July 2013 RFCQ (Exhibit 17) and the opinions stated therein. See R. 20. He noted that the physician "opined that the claimant is unable to perform even sedentary work and would miss work more than four times a month as a result of his impairments." Id. The ALJ accorded "little weight" to this opinion because he found the opinion "quite conclusory," provided "very little explanation of the evidence relied on in forming that opinion," "inconsistent with the claimant's activities of daily living, which include driving and helping to care for his 13 month old child," and "inconsistent with the claimant's essentially normal physical examinations findings" previously set out by the ALJ. Id.
The ALJ interpreted Dr. Ilang-Ilang's opinions as foreclosing sedentary work and the doctor indeed set out specific functional limitations that would preclude such work generally. See Titles II & XVI: Determining Capability to do Other Work — The Medical-Vocational Rules of Appendix 2, SSR 83-10 (PPS-101), 1983 WL 31251, at *5 (S.S.A. Jan. 1, 1983) (providing guidance as to the various exertional levels). Had Dr. Ilang-Ilang specifically concluded that Claimant could not work at a sedentary level, such conclusion, of itself, would not qualify as a medical opinion. See Titles II & XVI: Med. Source Ops. on Issues Reserved to the Comm'r, SSR 96-5P, 1996 WL 374183, at *5 (S.S.A. July 2, 1996) (recognizing that use of phrases such as "sedentary work" to reflect "judgment regarding the extent to which an individual is able to perform exertional ranges of work goes beyond medical judgment regarding what an individual can still do and is a finding that may be dispositive of the issue of disability"). While such a conclusion is not entitled to any special significance, his medical opinions, i.e., the claimant's symptoms, diagnosis, prognosis, physical and mental restrictions, and other medical judgments as to the nature and severity of the claimant's impairments, see 20 C.F.R. § 416.927(a)(2) (effective Aug. 24, 2012, to Mar. 26, 2017); SSR 96-5P, 1996 WL 374183, at *2, that support such a legal conclusion may be entitled to special significance.
As a treating source, the medical opinions of Dr. Ilang-Ilang are entitled to controlling weight if well-supported as required by the regulations and not inconsistent with other substantial evidence. The ALJ did not accord the opinions controlling weight, but instead gave them "little weight." R. 20. At this point, there is no need to determine whether the ALJ erred in not giving the opinions controlling weight because even if the Court were to find no error in that respect, such finding merely clears the first hurdle. Once the ALJ finds that a medical opinion of a treating source is not entitled to controlling weight, he or she must make the detailed analysis required by 20 C.F.R. § 416.927(c) unless there is reliable medical evidence from a treating or examining physician controverting the opinions of the treating source.
In this case, the ALJ did not recite the six factors, although he does note in conclusory fashion that he had "considered opinion evidence in accordance with the requirements of 20 CFR 416.927" and various social security rulings. See R. 17. An ALJ cannot substitute a general, conclusory statement for consideration of the six factors. Furthermore, the ALJ decision reflects little consideration of the factors overall. It thus appears that the ALJ procedurally erred by not more fully considering and weighing the opinions of Dr. Ilang-Ilang.
A procedural error does not require reversal and remand, however, unless the error affects the substantial rights of the claimant. Snodgrass v. Colvin, No. 3:11-CV-0219-P, 2013 WL 4223640, at *7 (N.D. Tex. Aug. 13, 2013) (citing Taylor v. Astrue, 706 F.3d 600, 603 (5th Cir. 2012)). To warrant reversal, the error must "cast into doubt the existence of substantial evidence to support the ALJ's decision." Morris v. Bowen, 864 F.2d 333, 335 (5th Cir.1988). "Remand is required only when there is a realistic possibility that the ALJ would have reached a different conclusion absent the procedural error." Ware v. Colvin, No. 3:11-CV-1133-P, 2013 WL 3829472, at *4 (N.D. Tex. July 24, 2013) (citing January v. Astrue, 400 F. App'x 929, 933 (5th Cir. 2010) (per curiam)).
On the record before the Court, the failure to conduct the detailed analysis is not harmless error. Dr. Ilang-Ilang provided the only reliable medical opinions of Claimant's physical abilities from a treating or examining source. Rather than properly weigh and consider those opinions in accordance with the regulation and Newton, the ALJ discounted them as conclusory and inconsistent with activities of daily living, including caring for an infant,
In making his RFC assessment, the ALJ rejected specific medical opinions of Dr. Ilang-Ilang. Rejecting medical opinions when there is no contrary opinion from a treating or examining source requires usurping the physicians' role. See Newton v. Apfel, 209 F.3d 448, 453-58 (5th Cir. 2000). "That is neither the role of the ALJ nor this Court. Neither the courts nor ALJs may rely on their own medical opinions as to the limitations presented by a claimant's impairments." Howeth v. Colvin, No. 3:12-CV-0979-P, 2014 WL 696471, at *11 (N.D. Tex. Feb. 24, 2014) (citing Williams v. Astrue, 355 F. App'x 828, 832 (5th Cir. 2009) (per curiam) (reversing denial of benefits when the ALJ impermissibly relied on his own medical opinions as to limitations presented by the claimant's impairments)). It is reversible error for ALJs to substitute their own medical opinions for those of a treating physician. Evans v. Colvin, No. 1:14-CV-202-BL, 2015 WL 9685552, at *3 (N.D. Tex. Dec. 8, 2015) (recommendation of Mag. J.), adopted by 2016 WL 112645 (N.D. Tex. Jan. 8, 2016).
Like Newton, "[t]his is not a case where there is competing first-hand medical evidence and the ALJ finds as a factual matter that one doctor's opinion is more well-founded than another." See 209 F.3d at 458. While the ALJ relied on medical opinions of a state agency consultant, such opinions do not constitute first-hand medical evidence, because it appears that they were formed on a second-hand basis from a review of then existing medical records. Furthermore, the consultant only addressed Claimant's mental abilities and his opinions were for a period ending before the amended onset date of disability. Like Newton, this is not "a case where the ALJ weighs the treating physician's opinion on disability against the medical opinion of other physicians who have treated or examined the claimant and have specific medical bases for a contrary opinion." See id. Instead, like Newton, the ALJ in this case rejected medical opinions of a treating physician without a contrary opinion by an examining or treating physician. See id. By doing so, the ALJ erred. Furthermore, to the extent the ALJ perceived a need for an additional or updated medical opinion, he took no steps to secure such opinion from any medical expert. The medical record before the ALJ provides no basis for rejecting the limitations noted by Claimant's treating physician.
The Commissioner in this case carried her Step 5 burden through testimony of a VE who identified sedentary jobs based upon the RFC assessed by the ALJ. Had the ALJ properly considered the medical opinions of Dr. Ilang-Ilang, there is a realistic possibility that his RFC assessment would have changed. The opinions of Dr. Ilang-Ilang support limitations greater than the RFC assessment. A change in the limitations within the questioning to the VE would cast doubt upon the existence of substantial evidence to support the ALJ's decision because to constitute substantial evidence to support a Step 5 finding of non-disability, testimony from a VE must include all limitations warranted by the evidence. See Masterson v. Barnhart, 309 F.3d 267, 273 (5th Cir. 2002); Boyd v. Apfel, 239 F.3d 698, 706 (5th Cir. 2001). Accordingly, to rely on the VE testimony to satisfy the Step 5 burden, the ALJ's hypothetical questioning would need to include all limitations warranted by the evidence.
The Court finds that the ALJ improperly considered and weighed opinions of Dr. Ilang-Ilang. There is no good cause to discount the weight of those opinions relative to any other expert. The ALJ failed to perform the detailed analysis required by 20 C.F.R. § 416.927. Had he conducted that analysis and properly considered and weighed the opinions of the treating physician there a realistic possibility that he would have altered the hypothetical to the VE to include greater limitations than assessed in the current RFC. Had the ALJ accepted Dr. Ilang-Ilang's opinions about Claimant's exertional limitations, no full-time jobs would exist that he could perform according to VE testimony in this case. See R. 44. Alternatively, there is a realistic possibility that the ALJ would have utilized procedures in 20 C.F.R. § 416.920b(c)(1) to secure additional evidence. The changes resulting from either alternative "would cast into doubt the existence of substantial evidence to support the ALJ's current decision." Perry v. Colvin, No. 3:13-CV-2252-P, 2015 WL 5458925, at *11 (N.D. Tex. Sept. 17, 2015). Consequently, the procedural error casts doubt on the existence of substantial evidence to support the decision to deny benefits. Therefore, Claimant's substantial rights have been affected by the consideration and weight accorded to the opinions of the treating physician by the ALJ. This procedural error is not harmless and warrants remand.
Relying on Foster v. Astrue, 410 F. App'x 831 (5th Cir. 2011) (per curiam), the Commissioner would have the Court disregard the opinions of Dr. Ilang-Ilang for "good cause" because the opinions are contained within a check-the-box format. See Def.'s Resp. Br. at 6. Although such "format typifies `brief or conclusory' testimony," that observation alone did not justify declining to give "considerable weight" to the treating physician in Foster. See Foster, 410 F. App'x at 833 (noting three reasons for not giving considerable weight to the opinions expressed in the questionnaire). Furthermore, to discount medical opinions of a treating source for good cause requires a contrary opinion of another expert. See Newton v. Apfel, 209 F.3d 448, 456 (5th Cir. 2000). Foster does not stand for the broad proposition asserted by the Commissioner.
For the foregoing reasons and pursuant to the fourth sentence of 42 U.S.C. § 405(g), the Court reverses the decision of the Commissioner and remands this case for further administrative proceedings consistent with this order.
20 C.F.R. § 416.967(a). To determine whether an individual has the ability to perform the full range of sedentary work from an exertional standpoint, Program Policy Statement (PPS) 101 elaborates:
Title II & XVI: Determining Capability to do Other Work — The Medical-Vocational Rules of Appendix 2, SSR 83-10 (PPS-101), 1983 WL 31251, at *5 (S.S.A. Jan. 1, 1983).