Newton v. Apfel, 98-11172

• Decision Date: 25 April 2000
• Docket Number: No. 98-11172,98-11172
• Parties: (5th Cir. 2000) GLORIA D. NEWTON, Plaintiff-Appellant, v. KENNETH S. APFEL, COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee
• Court: U.S. Court of Appeals — Fifth Circuit

Page 448

209 F.3d 448 (5th Cir. 2000)

GLORIA D. NEWTON, Plaintiff-Appellant, v. KENNETH S. APFEL, COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee.

No. 98-11172

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

April 25, 2000

[Copyrighted Material Omitted]

[Copyrighted Material Omitted]

Appeal from the United States District Court for the Northern District of Texas

Before HIGGINBOTHAM and PARKER, Circuit Judges, and ATLAS, District Judge ¹

ATLAS, District Judge:

Plaintiff, Gloria D. Newton, filed a civil action under Section 205(g) of the Social Security Act, 42 U.S.C. 405(g), to obtain judicial review of the final decision of the Commissioner of the Social Security Administration ("Commissioner") denying Newton's claim for disability insurance benefits under Title II of the Social Security Act. The district court affirmed the decision of the Commissioner, and Newton appealed. This court has jurisdiction pursuant to 28 U.S.C. 1291.

Because the Administrative Law Judge ("ALJ") failed to give sufficient weight to the opinion of Newton's treating physician without requesting additional information, erred in relying exclusively on the medical-vocational guidelines, and improperly failed to consider Newton's ongoing treatment when assessing Newton's ability to work, we reverse and remand for additional consideration by the ALJ consistent with this opinion.

I.FACTUAL AND ADMINISTRATIVE BACKGROUND

Newton applied for disability insurance benefits on December 15, 1992, alleging disability as the result of systemic lupus erythematosus ("SLE"). Newton subsequently amended her claim to allege entitlement to a closed period of disability insurance benefits beginning May 2, 1989 and ending September 12, 1994. Newton requested a hearing before an ALJ, and ALJ Rebecca Westfall held a hearing February 13, 1995 in Fort Worth, Texas.

Newton was represented by counsel.

On September 15, 1995, the ALJ ruled that Newton was not disabled according to the Medical-Vocational Guidelines ² because she had the residual functional capacity to perform work not exceeding the sedentary level of exertion. The Appeals Council denied Newton's request for review of her case on May 9, 1997, leaving the ALJ's decision to stand as the final decision of the Commissioner.

Newton worked through May 1, 1989, when she stopped working because chest pain and swelling in her feet and knees made it too painful to stand. Newton returned to part-time employment as a silk-screener on September 12, 1994, working 25-30 hours a week.

The medical evidence in the record dated back to September 1989 and established without contradiction that Newton suffered from SLE since 1989. Her condition was identified by her treating physician, Raymond M. Pertusi, D.O., a rheumatologist. In summary, the ALJ found that Newton intermittently experienced swollen and painful joints, pleuritic chest pain, fevers, fatigue, a rash, and kidney or urinary problems. Pertusi had prescribed a regimen of Prednisone, Plaquenil and other medications to control the SLE and associated symptomatology. During the period of claimed disability, Newton's condition required emergency room treatment on no fewer than nine occasions, and Newton was admitted to the hospital for treatment on at least four occasions. Newton was examined and treated by Pertusi frequently throughout the period.

Pertusi continued to see Newton after she returned to part-time work in September 1994. On February 1, 1995, Newton complained of bilateral hip and leg pain and pain across her shoulders. She reported at that time taking 6-7 Advil before going to work. She had mild swelling in her right hand. Pertusi again diagnosed SLE and possible Sjogrens' syndrome. He prescribed Daypro for her pain and advised that she stop taking Advil.

On April 5, 1995, Newton reported being ill with the shakes and chills, pain in the right eye and nose, and chest pain when she inhaled. Pertusi diagnosed sinusitis, otitis media, and other ear problems. Based on Newton's statement that the Daypro upset her stomach, Pertusi discontinued that prescription.

On July 24 and 28, 1996, in connection with Newton's application for food stamps from the Texas Department of Human Services, a physician, Dr. Carrera, completed a disability statement and certified that Newton was disabled by SLE and could not work.

II.APPLICABLE LEGAL STANDARDS

A.Judicial Review

The federal courts review the Commissioner's denial of social security benefits only to ascertain whether (1) the final decision is supported by substantial evidence and (2) whether the Commissioner used the proper legal standards to evaluate the evidence. See Brown v. Apfel, 192 F.3d 492, 496 (5th Cir. 1999); Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1995). If the Commissioner's findings are supported by substantial evidence, they must be affirmed. Martinez, 64 F.3d at 173. "Substantial evidence is such relevant evidence as a reasonable mind might accept to support a conclusion. It is more than a mere scintilla and less than a preponderance." Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995) (internal quotations omitted); see also Fraga v. Bowen, 810 F.2d 1296, 1302 (5th Cir. 1987). The court does not reweigh the evidence in the record, try the issues de novo, or substitute its judgment for the Commissioner's, even if the evidence weighs against the Commissioner's decision. See Brown, 192 F.3d at 496. "Conflicts in the evidence are for the [Commissioner] and not the courts to resolve." Id. (quoting Selders v. Sullivan, 914 F.2d 614, 617 (5th Cir. 1990)).

B.Standard for Entitlement to Social Security Benefits

The claimant has the burden of proving she has a medically determinable physical or mental impairment lasting at least twelve months that prevents her from engaging in substantial gainful activity. See 42 U.S.C. 423(d)(1)(A). Substantial gainful activity is defined as work activity involving significant physical or mental abilities for pay or profit. 20 C.F.R 404.1572(a) and (b). The ALJ uses a five-step sequential process to evaluate claims of disability and decides whether: (1) the claimant is not working in substantial gainful activity; (2) the claimant has a severe impairment; (3) the claimant's impairment meets or equals a listed impairment in Appendix 1 of the Regulations; (4) the impairment prevents the claimant from doing past relevant work; and (5) the impairment prevents the claimant from doing any other work. 20 C.F.R. 404.1520.

The claimant bears the burden of proof on the first four steps and the burden shifts to the Commissioner for the fifth step. Thus, the claimant must show first that she is no longer capable of performing her past relevant work. 20 C.F.R. 404.1520(e). If the claimant satisfies this burden, then the Commissioner must show that the claimant is capable of engaging in some type of alternative work that exists in the national economy. See Chaparro v. Bowen, 815 F.2d 1008, 1010 (5th Cir. 1987). Once the Commissioner makes this showing, the burden of proof shifts back to the claimant to rebut this finding. Id.

III.DISCUSSION

In her appeal from the final decision of the Commissioner and on appeal before this court, Newton argues that the ALJ failed to give proper weight to the opinion of Newton's treating physician, erroneously relied on the medical-vocational guidelines, and improperly failed to consider Newton's ongoing medical treatment when assessing her ability to work. Newton also argues that the Appeals Council failed to consider new evidence presented on appeal.

A.Consideration of Treating Physician's Opinion

Newton argues that the ALJ erred as a matter of law by failing to give proper weight to the opinion of her treating physician. Specifically, Newton argues that the ALJ failed to comply explicitly with applicable Social Security Administration ("SSA") regulations for evaluating a treating physician's opinion.

The Court concludes that, absent reliable medical evidence from a treating or examining physician controverting the claimant's treating specialist, an ALJ may reject the opinion of the treating physician only if the ALJ performs a detailed analysis of the treating physician's views under the criteria set forth in 20 C.F.R. 404.1527(d)(2). Additionally, if the ALJ determines that the treating physician's records are inconclusive or otherwise inadequate to receive controlling weight, absent other medical opinion evidence based on personal examination or treatment of the claimant, the ALJ must seek clarification or additional evidence from the treating physician in accordance with 20 C.F.R. 404.1512(e).

1.Medical Opinions Presented to ALJ

Newton's treating physician, Dr. Pertusi, is an Assistant Professor of Medicine and Rheumatology at the Texas College of Osteopathic Medicine. Pertusi submitted an assessment, dated January 30, 1995, stating that Newton could occasionally lift up to ten pounds; stand or walk less than two hours per regular work day; sit continuously for thirty minutes at a time, for a total of two hours out of an eight-hour work day; and stand, walk and sit for a combined total of three hours out of an eight-hour work day. Pertusi also found Newton was able to reach and handle items and occasionally balance, stoop, kneel, crouch, crawl, reach or drive, but she could not climb or perform repetitive operations of foot controls. Pertusi also stated that Newton should avoid temperature extremes. Pertusi asserted that Newton had been under these restrictions since December 1989 through the date of his assessment. Pertusi based his assessment on diagnoses of SLE, polyarthritis, fatigue and anemia. He stated that Newton suffered from impairments that could reasonably be expected to produce pain or other symptoms.

Pertusi also responded to interrogatories from Newton's attorney. In the responses, Pertusi asserted that the diagnosis of SLE was supported by documented episodes of fatigue, fever,...