Prince v. Chater ( 1996 )


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  •                 IN THE UNITED STATES COURT OF APPEALS
    FOR THE FIFTH CIRCUIT
    No. 95-60257
    Summary Calendar
    BERNA C. PRINCE,
    Plaintiff-Appellant,
    versus
    SHIRLEY S. CHATER, COMMISSIONER
    OF SOCIAL SECURITY,
    Defendant-Appellee.
    Appeal from the United States District Court for the
    Southern District of Mississippi
    (4:94-CV-69)
    January 16, 1996
    Before GARWOOD, WIENER and PARKER, Circuit Judges.*
    GARWOOD, Circuit Judge:
    Plaintiff-appellant    Berna     C.   Prince   (Prince)        appeals   the
    district court’s judgment affirming the denial of her claim for
    Social    Security   disability     insurance    benefits      by    defendant-
    appellant Commissioner of Social Security (Commissioner).
    Facts and Proceedings Below
    Prince    was   thirty-seven    years   old    at   the    time    of    the
    *
    Pursuant to Local Rule 47.5, the Court has determined that this
    opinion should not be published and is not precedent except under
    the limited circumstances set forth in Local Rule 47.5.4.
    administrative law judge’s (ALJ’s) decision denying disability
    benefits to her.      She has a high school education and has worked as
    a cashier and head bank teller.          Prince injured her back while
    working in April 1988, and she was assessed as having a fifteen
    percent permanent partial impairment for Worker’s Compensation
    purposes. After her injury and shortly before she alleges that she
    became completely disabled, Prince worked two jobs for a total of
    seventy to eighty hours a week.       In March 1992, Prince quit one of
    her jobs because of the mental stress, following the advice of a
    physician.     Her back was treated conservatively with bracewear,
    medications,    and    activity   restrictions,   and   she   declined   the
    surgery offered by her physician.        She went on temporary leave of
    absence from her job as head teller on June 15, 1992; the leave
    became permanent thirty days later.         She has not been gainfully
    employed since that time.
    Prince filed her application for disability benefits in June
    1992.   She was represented by counsel at a hearing before an ALJ on
    January 6, 1994.        The ALJ denied her claim for benefits in a
    decision dated February 18, 1994. The ALJ concluded that, although
    Prince no longer could perform her previous jobs as a cashier or
    head bank teller, she had the residual functional capacity to
    perform sedentary work.      The ALJ relied heavily on a letter dated
    July 28, 1993, from Prince’s treating physician, Dr. Cameron.            The
    letter stated, inter alia, that Prince (1) had a herniated disc;
    (2) could perform the activities of daily living without severe
    pain, though she had to quit her job because of the pain associated
    2
    with work activities; (3) had not demonstrated any neurological
    deficit; (4) was advised by him to remain as active as possible and
    continue     working;        (5)        was       a    candidate      for   vocational
    rehabilitation; and (6) could perform a sedentary job.
    Prince requested a review of the ALJ’s denial of benefits by
    the Appeals Council, and she submitted additional evidence of her
    disability      for    its   consideration.               The   additional      evidence
    consisted of four items:           (1) a letter dated March 15, 1994, from
    Dr. Cameron opining that Prince could not perform sedentary work;
    (2) a letter dated March 28, 1994, from Dr. Nicholson stating that
    Prince was currently under his care for treatment of hypertension
    and depression and had previously been treated for gastritis; (3)
    a letter dated March 22, 1994, from a teacher of Prince’s daughter
    stating that Prince‘s house showed signs of neglect, that her
    daughter’s hair was occasionally in French braids for two weeks at
    a time, and that Prince always was seated in a chair on her visits
    to the house; and (4) a letter dated March 23, 1994, from Prince’s
    mother stating that she and the children had to help Prince with
    the household work, that she helped Prince with the children, and
    that   Prince    was    often      in    great        pain.     The   Appeals    Council
    specifically declined to give weight to Dr. Cameron’s new letter
    because he did not give any reason for his change of opinion from
    July 1993 to March 1994.           Dr. Cameron did not indicate that he had
    performed any tests on Prince——or had even seen her (or any medical
    records pertaining to her not previously examined)——since his
    previous opinion.        After considering the record as whole as it
    3
    existed at that time (including the new evidence), the Appeals
    Council refused to review the ALJ’s denial of benefits on June 21,
    1994.   See 20 C.F.R. §§ 404.970 (1995).               Consequently, the ALJ’s
    decision became the final decision of the Commissioner.                    See 20
    C.F.R. § 404.981 (1995).
    Prince filed a complaint seeking judicial review of the denial
    of benefits on July 11, 1994, and she filed two motions for remand.
    She submitted another letter from Dr. Cameron, dated July 18, 1994,
    to the district court for its consideration on her appeal and
    motions for remand.        She also submitted other new evidence to
    support her request for remand, including letters from two other
    doctors, medical reports of MRI scanning and epidural blocks that
    were completed in September 1994, and evidence that she had seen a
    vocational rehabilitation counselor in July 1994.
    The magistrate judge to whom the case was assigned recommended
    upholding the decision of the Commissioner and denying remand. The
    district    court    adopted     the   report    and    recommendation    of     the
    magistrate   judge    in   its    entirety      and    affirmed   the   denial    of
    benefits.
    Discussion
    This    Court   reviews     the   Commissioner’s       decision    “only     to
    determine whether it is supported by substantial evidence on the
    record as a whole and whether the [Commissioner] applied the proper
    legal standard.”      Greenspan v. Shalala, 
    38 F.3d 232
    ,           236 (5th Cir.
    4
    1994), cert. denied, 
    115 S. Ct. 1984
    (1995).1          We may not reweigh
    the   evidence   or   substitute   our   judgment     for    that    of    the
    Commissioner. 
    Id. Prince alleges
    that the Commissioner’s decision
    was not supported by substantial evidence and that the Commissioner
    applied an improper legal standard.      Alternatively, she urges that
    the district court erred in failing to grant a remand based on the
    evidence not considered by the Appeals Council.
    I.    Determination of Residual Functional Capacity
    To   qualify    for   disability   benefits,     a    claimant      must
    demonstrate an “inability to engage in any substantial gainful
    activity by reason of a medically determinable physical or mental
    impairment” that can be expected to last for at least one year.             42
    U.S.C. § 423(d)(1)(A) (1995). An individual is considered disabled
    only if her impairments are so severe that she is not only unable
    to do her previous work but cannot, considering her age, education,
    and work experience, engage in any other kind of substantial
    gainful employment that exists in the national economy.             42 U.S.C.
    § 423(d)(2)(A) (1995).      Once an individual proves that she can no
    longer perform her past relevant work, however, the burden shifts
    to the Commissioner to prove that there are other jobs existing in
    the national economy that she could perform.         See Fields v. Bowen,
    
    805 F.2d 1168
    , 1170 (5th Cir. 1986).        If the Commissioner meets
    1
    The Supreme Court has explained that “substantial evidence is more
    than a scintilla and less than a preponderance. It is of such
    relevance that a reasonable mind would accept it as adequate to
    support a conclusion.” Falco v. Shalala, 
    27 F.3d 160
    , 162 (5th
    Cir. 1994)(citing Richardson v. Perales, 
    91 S. Ct. 1420
    , 1427, 1428
    (1971)).
    5
    this burden, then the claimant must show that she cannot perform
    the alternate work.        
    Id. The ALJ
    found that Prince was unable to perform her past
    relevant work as a cashier and head teller but that she retained
    the residual functional capacity to perform the full range of
    sedentary work.      Prince argues that the ALJ’s determination was
    “contrary to the overwhelming weight of the law and evidence and
    not supported by any law or evidence.”            She also argues that the
    ALJ made three more specific errors:         failing to require testimony
    by a vocational expert, discounting her subjective complaints of
    pain,   and    declining    to   believe   the   opinion   of   her   treating
    physician.      This Court finds no reversible error.
    A.       Credibility of Subjective Complaints of Pain
    Pain, in and of itself, can be a disabling condition when it
    is “constant, unremitting, and wholly unresponsive to therapeutic
    treatment.”      Harrell v. Bowen, 
    862 F.2d 471
    , 480 (5th Cir. 1988)
    (citations omitted).        Prince testified that she suffered pain so
    severe that she would be unable to stand more than two to three
    hours or sit more than one hour a day.           She testified that four or
    five days a week the pain was so severe that she could not leave
    the house and needed aid to get out of bed.            On the two or three
    “good days” a week, Prince testified that she dressed herself, took
    care of her children, performed light house cleaning, cooked
    breakfast and dinner, washed clothes, and walked about a mile.
    The ALJ found that Prince’s subjective complaints of pain were
    not credible. Prince argues that there was no substantial evidence
    6
    to support the ALJ’s credibility determination.
    “‘[T]he evaluation of a claimant’s subjective symptoms is a
    task particularly within the province of the ALJ who has had an
    opportunity to observe whether the person seems to be disabled.’”
    
    Harrell, 862 F.2d at 480
    (citations omitted).     The ALJ discussed
    the reasons for finding her claims of severe pain incredible:
    (1)Although she had had lumbar symptoms since April 1988, claimant
    continued to work two jobs until March 1992; (2) her physicians
    reported the presence of pain in Prince, but they described it as
    tolerable; (3) the pain did not preclude the activities of daily
    living; (4) Prince’s treatment had been conservative, without need
    of hospitalizations or frequent emergency visits; and (5) Prince
    took medications which relieved her symptoms without any recorded
    side effects.   These, along with the ALJ’s observation of Prince
    during the hearing, constitute substantial evidence to support the
    conclusion that her complaints of pain were exaggerated.2
    B.   Vocational Expert
    Prince next alleges that the ALJ erred by failing to require
    testimony by a vocational expert.   The testimony of a vocational
    expert is required if a claimant has adverse conditions that are
    not taken into account in the medical-vocational guidelines (the
    2
    Prince testified that she continues most of the activities of daily
    living only two to three days a week and that the medications only
    relieve “some” of the pain. However, the ALJ was not required to
    fully credit Prince’s testimony, and the other factors set forth
    above also support the ALJ’s decision. The fact that Prince’s own
    treating physician considered her pain in his July 28, 1993,
    opinion that she could perform sedentary work is the strongest
    support for the ALJ’s decision.
    7
    Guidelines) set forth in 20 C.F.R. Part 404, Subpart P, Appendix 2.
    Lawler v. Heckler, 
    761 F.2d 195
    , 197-98 (5th Cir. 1985); see also
    
    Fields, 805 F.2d at 1170
    (the Guidelines may not be applied to
    solely non-exertional impairment).               If the claimant suffers solely
    from an exertional impairment or if her non-exertional impairment
    does not significantly affect her residual functional capacity, an
    ALJ may rely exclusively on the Guidelines to determine whether
    there is work in the national economy that the claimant can
    perform.    Fraga v. Bowen, 
    810 F.2d 1296
    , 1304 (5th Cir. 1987).
    In the instant case, the ALJ relied on the Guidelines, 20
    C.F.R. §§ 404.1569 and 404 Subpart P, Appendix 2, to find that
    Prince was not disabled.           Prince suggests that her severe pain
    constitutes a non-exertional limitation that was not considered in
    the Guidelines.         Thus, she argues the ALJ erred by failing to
    require a vocational expert to testify regarding her combination of
    exertional and non-exertional limitations.
    Although pain is a non-exertional impairment, the ALJ found
    that Prince’s subjective claims of pain were credible only to the
    extent    that   they    limited      her       to   sedentary    work.     The   ALJ
    specifically found that claimant’s testimony regarding pain was not
    credible to the extent alleged and rejected her assertions that her
    pain was so frequent and intense as to prevent her from performing
    the full range of sedentary work.                    Because the ALJ found that
    Prince’s pain did not affect her residual functional capacity to
    perform    the   full    range   of    sedentary        work,    no   non-exertional
    impairment existed that would require the testimony of a vocational
    8
    expert.     Reliance on the Guidelines was proper.3           See 
    Fraga, 810 F.2d at 1304
    ; see also 20 C.F.R. § 404.1569a(b) (1995).
    C.   Substantial Evidence         and    Weight   Given     to   Treating
    Physician’s Opinion
    After hearing testimony and reviewing the medical evidence,
    the ALJ found that although Prince suffers from a severe medical
    condition, she retains the residual functional capacity to perform
    the full range of sedentary work.              The medical evidence reveals
    that Prince developed back problems in 1988.                Dr. Cameron began
    treating her in April 1991.       After an MRI performed at that time,
    Dr. Cameron continued conservative treatment and recommended that
    Prince remain active and continue working.            In November 1992, Dr.
    Cameron reported that Prince was capable of clerical/administrative
    activity.    In July 1993, Dr. Cameron opined that she would not
    “be able to perform any job which requires crawling,
    bending, squatting or climbing. She should not lift more
    than 10 pounds occasionally or 5 pounds frequently. She
    should be able to perform most of her job activities
    directly in front of her and should be able to sit
    periodically during a work day.”
    This   assessment   of   her    functional      abilities    limited     her   to
    sedentary work under 20 C.F.R. §§ 404.1567(a).               Dr. Cameron also
    reported that Prince was able to perform activities of daily living
    without severe pain and that she could return to work if she found
    “a   more   sedentary”   job.     Dr.     Cameron’s      opinion   constitutes
    3
    In addition, Prince complains that she was forced to bear an
    improper burden of proof. An examination of the record does not
    indicate that the ALJ erred in dividing the burdens of proof. The
    Commissioner met the burden of proving that Prince could perform
    sedentary work by means of the Guidelines, and Prince failed to
    rebut that proof. See 
    Fields, 805 F.2d at 1169-70
    .
    9
    substantial evidence that Prince could perform the full range of
    sedentary work.
    Prince’s Point of Error number three states “It was error for
    Defendant   not   to   believe   treating    physician   of   Plaintiff.”
    Although her argument under this point of error is vague, Prince’s
    reply brief complains that Dr. Cameron’s March 15, 1994, letter
    opinion that she could not perform sedentary work was disregarded
    by the Appeals Council.      Under this theory, the July 28, 1993,
    opinion that Prince could perform sedentary work would presumably
    be invalidated by Dr. Cameron’s March 15, 1994, opinion.
    This Court has not considered whether new evidence presented
    to the Appeals Council but not presented to the ALJ can constitute
    grounds for reversing the ALJ’s disability determination.            The
    circuits are split on the issue.     Five circuits have held that new
    evidence presented to the Appeals Council becomes part of the
    record for reviewing whether the ALJ’s holding is supported by
    substantial evidence.     E.g., O’Dell v. Shalala, 
    44 F.3d 855
    , 859
    (10th Cir. 1994); Keeton v. Dep’t of Health and Human Servs., 
    21 F.3d 1064
    , 1066-67 (11th Cir. 1994); Ramirez v. Shalala, 
    8 F.3d 1449
    , 1452 (9th Cir. 1993); Browning v. Sullivan, 
    958 F.2d 817
    ,
    822-23 (8th Cir. 1992); Wilkins v. Secretary of Dep’t of Health and
    Human Servs., 
    953 F.2d 93
    , 96 (4th Cir. 1991).        Two circuits have
    held that appellate review for substantial evidence is restricted
    to the evidence before the ALJ, without regard to new evidence
    submitted to the Appeals Council.       E.g., Cotton v. Sullivan, 
    2 F.3d 692
    , 695-96 (6th Cir. 1993); Eads v. Secretary of Dep’t of Health
    10
    and Human Servs., 
    983 F.2d 815
    , 816-18 (7th Cir. 1993).                 We need
    not reach the issue in this case because the result is the same
    whether Dr. Cameron’s March 15, 1994, letter is considered or not.
    If it is not considered, then the evidence provided by him is that
    Prince can perform sedentary work. If we do consider Dr. Cameron’s
    March 15, 1994, letter, there is still substantial evidence on the
    record as a whole supporting the ALJ’s determination.
    Dr. Cameron’s March 15, 1994, letter states that Prince “is
    unable to tolerate standing or sitting for periods long enough to
    allow even employment in a sedentary job.                She would also have
    great    difficulties   getting   to    and   from   a   work   place   due   to
    increased pain with transportation activities.”            This later letter
    fails to explain——or even suggest——why Dr. Cameron’s opinion changed
    since July 28, 1993.     The March 1994 letter does not say that the
    July 1993 letter is wrong or was not intended to mean what it says.
    Dr. Cameron does not state in his March 1994 letter that he has
    performed tests on Prince since the previous opinion, nor does he
    indicate that he has examined her (or medical records pertaining to
    her not previously examined) since that date.             Though the medical
    opinion of a claimant’s treating physician is ordinarily given
    great weight, 
    Greenspan, 38 F.3d at 237
    , a physician’s unexplained
    and unsupported change of opinion need not be given controlling
    weight in the disability determination.          See Stanley v. Secretary
    of Dep’t of Health and Human Servs., 
    39 F.3d 115
    , 118 (6th Cir.
    1994).     Consequently, the ALJ’s determination is supported by
    substantial evidence when considering the record as a whole——even
    11
    if the March 15, 1994, letter is considered.
    II.   Remand
    This Court has held that a case may be remanded to the
    Commissioner for consideration of additional evidence if there is
    new, material evidence and the claimant can show good cause for the
    failure to incorporate such evidence into the record in a prior
    proceeding.          Latham    v.   Shalala,      
    36 F.3d 482
    ,    483    (5th     Cir.
    1994)(quoting 42 U.S.C. § 405(g)).                     “For new evidence to be
    material, there must exist the ‘reasonable possibility that it
    would     have       changed    the    outcome         of     the     [Commissioner’s]
    determination.’” 
    Id. (citation omitted).
                        The evidence must also
    relate to the time period for which benefits were denied, and not
    concern      evidence    of    a    later-acquired          disability       or   of   the
    subsequent deterioration of the previously non-disabling condition.
    Johnson v. Heckler, 
    767 F.2d 180
    , 183 (5th Cir. 1985); see 
    Latham, 36 F.3d at 483
    & n. 2.
    Prince contends that the district court should have remanded
    her   case     for    reconsideration        by    the      Commissioner       based    on
    information obtained after the Appeals Council denied her appeal.
    Prince bases her contention on still another letter from Dr.
    Cameron dated July 18, 1994, a letter from Dr. Pearson dated
    October 17, 1994, hospital records regarding epidural blocks and an
    MRI performed on Prince in September 1994, evidence that she had
    attended vocational rehabilitation in July 1994, and a letter from
    Dr.   Kelly      dated   October      24,   1994.           Prince’s    contention      is
    unconvincing.         She fails to show that any of this evidence meets
    12
    the requirement that it be both material and that there was good
    cause for the failure to incorporate such evidence into the record
    in the prior proceeding.      See 
    Latham, 36 F.3d at 483
    .
    Dr. Cameron’s July 18, 1994, letter states that Prince was
    unable to return to work because of the severity of her symptoms,
    and he opined that Prince was totally disabled “from a standpoint
    of return to employment.”         Dr. Cameron wrote a similar letter,
    dated March 15, 1994, which the Appeals Council considered in
    making its decision to affirm the denial of benefits.              The July
    letter does not indicate that Dr. Cameron had observed or treated
    Prince (or examined previously unexamined records pertaining to
    her) after his March letter (or at any time after his contradictory
    July 28, 1993 letter), and it provides no new medical evidence, and
    does not explain the change in opinion from the July 1993 letter.
    Therefore,   it   cannot   meet   the   requirement   that   it   provide   a
    reasonable possibility that it change the outcome.
    The letters from Dr. Pearson and Dr. Kelly do not indicate
    that either physician treated Prince during the relevant time
    period or that her reported disability was likely to have existed
    during the relevant time period.           Dr. Pearson’s letter, dated
    October 17, 1994, states that he had treated Prince “for the last
    few months” for the pain caused by the herniated disc in her lumbar
    spine.   He opined that Prince’s pain and low back injury would
    interfere with her functioning in a job requiring lifting or
    prolonged sitting.    He did not indicate that he treated Prince——or
    that she was disabled——prior to either the ALJ hearing or the
    Appeals Council decision.         Dr. Pearson’s letter fails to provide
    13
    a reasonable possibility for changing the outcome of the disability
    determination.   See Leggett v. Chater, 
    67 F.3d 558
    , 567 (5th Cir.
    1995) (examination after the relevant time period not basis for
    remand when claimant fails to prove that disability was not the
    result of the deterioration of a condition that was previously not
    disabling).
    Similarly, Dr. Kelly’s letter, dated October 24, 1994, states
    that Prince suffered chronic back pain, insomnia, hypertension, and
    significant depression, and she opines that Prince “is a very
    credible candidate for disability benefits.”   The letter does not
    indicate that Prince was disabled during the relevant time frame.
    If Dr. Kelly was treating Prince for significant depression during
    the relevant time frame, Prince fails to show good cause for the
    failure to put this in the record before the ALJ or the Appeals
    Council.   If Dr. Kelly was not treating Prince during the relevant
    time frame, then her letter has no reasonable possibility of
    changing the outcome on remand.4
    Finally, neither the records of the epidural block and the MRI
    performed on Prince in September 1994, nor the evidence that she
    had seen a vocational rehabilitation counselor in July 1994,
    provide a reasonable possibility for a change in outcome.   None of
    4
    The Appeals Council considered a letter from Dr. Nicholson, dated
    March 28, 1994, indicating that he was treating Prince for
    depression and hypertension.    Dr. Nicholson had prescribed the
    Xanax that she was taking on an “as needed” basis at the time of
    the hearing before the ALJ. As it appears that Dr. Nicholson was
    treating Prince during the relevant time period and that Prince had
    her depression under control at the time of the ALJ hearing, it is
    unlikely that a nontreating physician’s letter has a reasonable
    possibility of changing the outcome.
    14
    this evidence shows that Prince is disabled.       Presumably, the
    reports are evidence that she was in severe enough pain to seek to
    have the pain blocked by this means.     Although the ALJ relied in
    part on Prince’s failure to seek emergency care for pain and her
    reliance on conservative methods of treatment, this July and
    September 1994 evidence is not material because it occurred outside
    of the relevant time frame.    See 
    Johnson, 767 F.2d at 183
    .    The
    fact that Prince sought vocational rehabilitation in July 1994 also
    fails to provide a reasonable possibility that the result of her
    disability determination would be different on remand.
    Conclusion
    For the foregoing reasons the district court’s judgment in
    favor of the Commissioner is
    AFFIRMED.
    15
    

Document Info

Docket Number: 95-60257

Filed Date: 1/23/1996

Precedential Status: Non-Precedential

Modified Date: 12/21/2014

Authorities (17)

46-socsecrepser-355-unemplinsrep-cch-p-14338b-shirley-a-odell , 44 F.3d 855 ( 1994 )

Danny KEETON, Plaintiff-Appellant, v. DEPARTMENT OF HEALTH ... , 21 F.3d 1064 ( 1994 )

Beverly Fields v. Otis R. Bowen, M.D., Secretary of Health ... , 805 F.2d 1168 ( 1986 )

Elmer G. JOHNSON, Plaintiff-Appellant, v. Margaret M. ... , 767 F.2d 180 ( 1985 )

Claireather M. Wilkins v. Secretary, Department of Health ... , 953 F.2d 93 ( 1991 )

Alvin R. HARRELL, Plaintiff-Appellant, v. Otis R. BOWEN, M.... , 862 F.2d 471 ( 1988 )

Nancy A. COTTON, Plaintiff-Appellee, v. Louis W. SULLIVAN, ... , 2 F.3d 692 ( 1993 )

William STANLEY, Plaintiff-Appellant, v. SECRETARY OF ... , 39 F.3d 115 ( 1994 )

Thomas Eads, Jr. v. Secretary of the Department of Health ... , 983 F.2d 815 ( 1993 )

Pete FALCO, SSN 452-44-9336, Plaintiff-Appellant, v. Donna ... , 27 F.3d 160 ( 1994 )

Don E. LEGGETT, Plaintiff-Appellant, v. Shirley E. CHATER, ... , 67 F.3d 558 ( 1995 )

Glenn G. LATHAM, Plaintiff-Appellant, v. Donna E. SHALALA, ... , 36 F.3d 482 ( 1994 )

Antonio FRAGA, Plaintiff-Appellant, v. Otis R. BOWEN, M.D., ... , 810 F.2d 1296 ( 1987 )

Patricia GREENSPAN, Plaintiff-Appellant, v. Donna E. ... , 38 F.3d 232 ( 1994 )

Viola BROWNING, Appellant, v. Louis W. SULLIVAN, M.D., ... , 958 F.2d 817 ( 1992 )

Herbert RAMIREZ, Plaintiff-Appellant, v. Donna SHALALA, ... , 8 F.3d 1449 ( 1993 )

Richardson v. Perales , 91 S. Ct. 1420 ( 1971 )

View All Authorities »