1 District Judge of the Southern District of Texas, sitting by designation. IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

________________

No. 98-11172

________________

GLORIA D. NEWTON,

Plaintiff-Appellant,

versus

KENNETH S. APFEL, COMMISSIONER OF SOCIAL SECURITY,

Defendant-Appellee.

________________

Appeal from the United States District Court for the

Northern District of Texas

________________ April 25, 2000

Before HIGGINBOTHAM and PARKER, Circui t 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 o btain 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 in2 See 20 C.F.R. Part 404, Subpart P, App. 2.

2 relying exclusively on the medical-vocational guidelines, and improperly failed to consider

Newton’s ongoing treatment when assess ing 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 o n 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 establis hed

without cont radiction that Newton suffered from SLE since 1989. Her condition was3

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 symptomatolo gy. 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 wit h the shakes and chills, pain in the

right eye a nd 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 p hysician, Dr. Carrera, completed a

disability statement and certified that Newton was disabled by SLE and could not work.4

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 substa ntial evidence and (2)

whether the Commissioner used the proper legal standards to evaluate the evidence. S ee

Brown v. Apfel

, 192 F.3d 492, 496 (5th Cir. 1999) ; Martinez v. Chate r , 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.” R ipley v. Chater

, 67 F.3d 552, 555 (5th Cir. 1995) (internal

qu otations omitted); s ee also Fraga v. Bowen

, 810 F.2d 1296, 1302 (5th Cir. 1987). The

court does not rew eigh the evidence in the record, try the issues d e novo

, or substitute its

judgment for the Commissioner’s, even if the evidence weighs against the Commissioner’s

decision. S ee 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 lasti ng at least twelve months that prevents her from engaging in

substantial gainful activity. S ee 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.5

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 acti vity; (2) the claimant has a severe impairment; (3) the claimant’s impairment

meets or equals a listed impairment in Appendix 1 of the Reg ulations; (4) the impairment

prevents t he 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 perfor ming 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 som e type of alternative work that exists in the national economy. S ee

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.6

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 Administrati on (“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 A LJ determines that the treating physician’s records are inconclusive or otherwise

inadequate to receive controlling weight, absent other medical opi nion 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

as sessment, 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,7

crawl, reach or drive, but she could not climb or perform repetitive operations of foot

co ntrols. 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, pleuritic chest pain and cognitive changes; findings of synovitis, polyarthritis, and a

malar rash; and laboratory results consistent with lupus. He noted that the clinical records

showed at least three months of active disease despite prescribed treatment, and further noted

that the disease had remained active or was expected to remain active for at least 12 months.

He indicated that Newton had exhibited symptoms of severe fatigue, fever, malaise, and

weight loss. In addition, her lupus resulted in the moderate involvement of her joints; mild

involvement of the muscles in the form of myalgias; moderate to marked pleuritic chest pain;

mild renal involvement in the form of persistent proteinuria; mild skin involvement because

of a recurring malar rash; and mild or subtle decline in cognitive function. He stated that the

degree of fatigue th at could reasonably be expected to result from SLE would prevent

Newton from performing sustained work activities, even of a sedentary nature.

Medical expert Otto Willbanks also testified before the ALJ. Willbanks noted that

Newton’s SLE was well established and was documented in the record. Based on his review

o f the medical records, Willbanks stated that Newton experienced intermittent joint and8

muscle pain, intermittent chest pain, and a rash characteristic of SLE. He observed that there

was some interference with kidney function as well, but he could not determine the extent.

Willbanks testified that the record did not contain sufficient information regarding the

degree o f severity of any of the complicating factors, although he noted that many of

Newton’s problems were denoted as mild at various points in the record. He testified that

the record did not indicate that Newton’s lupus (or the related complications) met the criteria

for any listed impairment. Willbanks stated that Pertusi’s office notes failed to document the

frequency of Newton’s lupus flare ups and the extent or degree of severity of her symptoms.

Willb anks observed that the record showed Newton suffered from relapses of arthralgias,

possibly arthritis, and swelling, but that he saw no records indicating that Newton’s condition

was, at any time, totally non-responsive to medication.

Willbanks re viewed Pertusi’s interrogatory responses. He criticized Pertusi for listing

the complications that occurred from time to time without providing the frequency, degree,

or manner they interfered with Newton’s activities. Willbanks testified that he did not see

medical evidence to suggest that Newton’s flare ups would prevent her from performing a

job that involved sitting six to eight hours a day, but admitted that he also saw no evidence

that she could perform such a job.

2. The ALJ’s Decision

The ALJ found that Newton had not engaged in substantial gainful activity between

May 1, 1989 and September 12, 1994, the period of claimed disability (first step of the fivestep process). The ALJ also found that Newton suffered from SLE, a “severe” impairment9

(second step), but that Newton’s impairment did not meet or equal the severity of any listed

impairment for which she would be found presumptively disabled (the third step).

The ALJ then addressed whether Newton retained the residual functional capacity to

perform either her past relevant work (fourth step) or some lesser level of work activity (fifth

step). The ALJ rejected Newton’s testimony regarding her pain and functional limitations.

The ALJ found that Newton retained the residual fu nctional capacity to perform the

exertional requirements of a full range of sedentary work, which precluded her from

performing her past relevant work. The ALJ considered Newton’s relatively young age, high

school education, and past work experience. The ALJ applied the Medical-Vocational

Guidelines without a vocational expert and entered a finding that Newton was not under a

disability at any time through the date of her decision.

The ALJ’s decision must stand or fall with the reasons set forth in the ALJ’s decision,

as adopted by the Appeals Council. S ee Knipe v. Heckler

, 755 F.2d 141, 149 n.16 (10th Cir.

1985) (citing Dong Sik Kwon v. INS , 646 F.2d 909, 916 (5th Cir.1981) ( en banc )).

3. ALJ’s Failu re to Give Treating Physician’s Opinions Proper Weight

The ALJ correctly placed the bu rden on Newton at the fourth step of the five-step

process. It appears, however, that the ALJ did not properly place the burden on the

C ommissioner at the fifth step. The ALJ stated that Pertusi’s opinions regarding the

claimant’s residual functional capacity, specific ally his opinion that Newton could not

perform even sedenta ry work during the period of claimed disability, were not entitled to

“grea t weight.” In actuality, the ALJ gave Pertusi’s opinions n o weight. The ALJ found3 To the extent the ALJ relied on Newton’s late 1994 through January 1995 part-time work as

support for the finding that Newton had the residual functional capacity to perform sedentary

work during prior periods, the finding is not supported by substantial evidence in the record.

Newton’s abilit

y to work part-time after the claimed disabilit y period, and only if medicated

for pain, is not evidence of Newton’s ability to work from May 1989 to September 1994.

Additionally, Newton’s sincere desire to work, and her efforts to do so on a part-time basis,

should not be perverted into evidence that she could have worked during the preceding four

years.

10 Pertusi’s opinion regarding residu a l functional capacity was not reliable because it was

insufficiently substantiated by clinical or diagnostic evidence, and thus was conclusory. The

ALJ also faulted Pertusi for failing to include work restrictions for Newton in his medical

notes and contemporaneous records during the 1989-1994 period, finding that this omission

undermined Pertusi’s cr edibility as to his assessment of claimant’s residual functional

capacity. The ALJ also rejected Pertusi’s opinions because of the inconsistency between

Pertusi’s January 30, 1995 opinion that Newton was totally disabled and the fact that at the

time of Pertusi’s opinion Newton was working 25-35 hours per week. 3

Requirements for Giving Wei g ht to Treating Physicians’ Opinions

. -- The

opinion of the treating physician who is familiar with the claimant’s impairments, treatments

and responses, should be accorded great weigh t in determining disability. See Leggett v.

Chater

, 67 F.3d 558, 566 (5th Cir. 1995); Greenspan v. Shalala

, 38 F.3d 232, 237 (5th Cir.

1994), cert. denied

, 514 U.S. 1120 (1995). A treating physician’s opinion on the nature and

severity of a patient’s impairment will be given controlling weight if it is “well-supported by

medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent

with

. . . other substantial evidence.” M artinez

, 64 F.3d at 176 (citing 20 C.F.R.11

§ 404.1527(d)(2)). “The opinion of a specialist generally is accorded greater weight than that

of a non-specialist.” Paul v. Shalala , 29 F.3d 208, 211 (5th Cir. 1994).

Even though the opinio n and diagnosis of a treating physician should be afforded

considerable weight in determini ng disability, “the ALJ has sole responsibility for

determining a claimant’s disability status.” I d. “‘[T]he ALJ is free to reject the opinion of

any physician when t he evidence supports a contrary conclusion.’” I d. The treating

physician’s opinions are not conclusive. See Brown

, 192 F.3d at 500. The opinions may be

assigned little or no weight when good cause is shown. G reenspan , 38 F.3d at 237. Good

cause may permit an ALJ to discount the weight of a treating physician rel ative 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. S ee, e.g., Brown

, 192 F.3d at 500; Greenspan , 39 F.3d at 237; Paul

, 29 F.3d at

211.

Factors to be Considered Before Declining to Give Treating Physicians’

Opinions Controlling Weight

. -- SSA Regulations provide that the SSA “will always give

good reasons in [its] notice of determination or decision for the weight [it gives the

claimant’s] treating source’s opinion” and list factors an A LJ must consider to assess the

weight to be given to the opinion of a treating physician when the ALJ determines that it is

not entitled to “controlling weight.” S ee 20 C.F.R. § 404.1527(d)(2). Specifically, this

regulation requires consideration of:

(1) the physician’s length of treatment of the claimant,12

(2) the physician’s frequency of examination,

(3) the nature and extent of the treatment relationship,

(4) the support of

the physician’s opinion afforded by the medical evidence of

record,

(5) the consistency of the opinion with the record as a whole; and

(6) the specialization of the treating physician.

The regulation is construed in Social Security Ruling (“SSR”) 96-2p, which states:

[A] finding that a treating source medical o pinion is not well supported by

medically acceptable clini cal and laboratory diagnostic techniques or is

inconsistent with the other substantial evidence in the case record means only

that the opini o n is not entitled to “controlling weight,” not that the opinion

should be rejected. T

reating source medical opinions are still entitled to

deference and must be weighed using all of the factors provided in 20 C.F.R.

404.1527 and 416.927. In many cases, a treating source’s medical opinion

will be entitled to the greatest weight and should be adopted even if it does not

meet the test for controlling weight.

SSR 96-2p, 61 F.R. 34490, 34491 (July 2, 1996) (emphasis adde d ). SSR 96-5p provides,

wi th respect to “Residual Functional Capacity Assessments and Medical Source Statements,”

that “Adjudicators must weigh medical source statements under the rules set out in 20 C.F.R.

404.1527

. . . , providing appropriate explanations for accepting or rejecting such opinions.”

SSR 96-5p, 61 F.R. 34471, 34474 (July 2, 1996).

Several federal courts have concluded that an ALJ is required to consider each of the

§ 404.1527(d) factors when the ALJ intend s to reject or give little weight to a treating

specialist’s opinion. S ee Clark v. Commissioner of Social Security , 143 F.3d 115, 118 (2d

Cir. 1998); Goatcher v. U.S. Department of Health & Human Servs.

, 52 F.3d 288, 290 (10th

Cir. 1995); Dwyer v. Apfel

, 23 F. Supp. 2d 223, 228 (N.D.N.Y. 1998); Amidon v. Apfel , 313

F. Supp. 2d 350, 355-56 (W.D.N.Y. 1998); McDonald v. Apfel

, No. CA 3-97-CV-2035R,

1998 WL 159938, *8 (N.D. Tex. Mar. 31, 1998). This court now similarly holds that an ALJ

is required to consider each of the § 404.1527(d) factors before declining to give any weight

to the opinions of the claimant’s treating specialist. The ALJ failed to perform this analysis,

which should be conducted on remand.

ALJ’s Improper Reliance on Non-Treating, Non-Examining Physician

. --

The ALJ expressly relied for he r findings on the testimony of the medical expert,

Willbanks, and her own disbelief of portions of Newton’s own testimony. There is no

indication that Willbanks had any training in rheumatology. Willbanks, who did not examine

Newton personally, agreed that Newton suffered from SLE. Willbanks’s opinion was based

primarily on his review of Pertusi’s assessments and answers to interrogatories. While

Willbanks apparently had access to Pertusi’s treatment notes, he did not have all t h e

significant hospitalization records, including records of a five-day hospitalization in 1993.

Willbanks’s opinion al so did not take into account other medical opinions supporting

Newton’s claim of disability, such as a hospital note from Dr. Fehl that “Newton’s pain was

due to her progressively increasing and spreading joint pain secondary to her lupus” and the

July 28, 1996, statement from Dr. Carrera, another examining physician, that Newton could

not perform even sedentary work due to her lupus. Willbanks commented that the records

were insufficient for him to determine the severity and frequency of the symptoms, but he

did not testify that Pertusi’s findings or answers should be discredited bec ause they were

conclusory. Willbanks found that Newton’s symptoms were typical for a patient with SLE,14

and that generally the symptoms were responsive to treatment. Willbanks, however, failed

to consider the side-effects of the treatments.

The ALJ nevertheless relied on Willbanks’s conclusory and unsubstantiated opinion

that Newton was not disabled. Under these circumstances, the ALJ’s finding that Newton

had sufficient residual functional capacity to perform sedentary work is not supported by

substantial evidence.

Requi rement to Obtain Supplemental Information

. -- SSR 96-2p

admonishes:

[I]n some instances, additional development required by a case

– for example

to obtain more evidence or to clarify reported clinical signs or laboratory

findings

– may provide the requisite support for a treating source’s medical

opinion that at first appeared to be lacking or may reconcile what at first

appeared to be an inconsistency between a treating source’s medical opinion

and the other substantial evidence in the case record. . . .

SSR 96-2p, 61 F.R. at 33491. SSA Regulation 20 C.F.R. § 404.1512(e) provides in pertinent

part:

(e) R econtacting medical sources

. When the evidence we receive from your

treating physician or psychologist or other medical source is inadequate for us

to determine whether you are disabled, we will need additional information to

reach a determination or a decision. To obtain the information, we will take

the following actions.

(1) We will first recontact your treating physician or psychologist or

other medical source to determine whether the additional information

we need is readily available. We will seek additional evidence or

clarification from you r medical source when the report from your

medical source contains a conflict or ambiguity that must be resolved,

the report does not contain all the necessary information, or does not

appear to be based on medically acceptable cl inical and laboratory

diagnostic techniques. . . .15

20 C.F.R. § 404.1512(e). Subsection (d) of § 404.1512 provides in part:

Our responsibility

. Before we make a determination that you are not disabled,

we will develop your complete medical history for at least the 12 months

preceding the month in which you file your application unless there is a reason

to believe that development of an earlier period is necessary or unless you say

that your disability b egan less than 12 months before you filed your

application. We will make every reasonable effort to help you get medical

reports from

your own medical sources when you give us permission to

request the reports.

20 C.F.R. § 404.1512(d).

The Se cond Circuit has held that “an ALJ cannot reject a treating physician’s

diagnosis without first attempting to fill any clear gaps in the administrative record.” R osa

v. Callaghan

, 168 F.3d 72, 79 (2d Cir. 1999) (citing Schaal v. Apfel

, 134 F.3d 496, 505 (2d

Cir. 1998) (“[E]ven if the clinical findings were inadequate, it was the ALJ’s duty to seek

additional information from [the treating physician] sua spont e.”). The Fifth Circuit also

imposes a duty on an ALJ “to develop the facts fully and fairly relating to an applicant’s

claim for disability benefits.” See Ripley , 67 F.3d at 557. “If the ALJ does not satisfy his

duty, his decision is not substantially justified.” I d. In this case, the ALJ expressed doubts

about Pertusi’s opinions based on Willbanks’s criticisms and Newton’s later part-time work,

but did not request ad ditional information to eliminate those doubts before rejecting the

opinion of the treating physician.

Reversal, however, is appropriate only if the applicant shows prejudice from the

ALJ’s failure to reques t additional information. I d. “ Prejudice can be established by

showing that additional evidence would have been produced if the ALJ had fully developed16

the record, and that the additional evidence might have led to a different decision.” I d. a t

557 n.22.

Newton has made a sufficient showing that additional evidence could have been

produced, if requested. The ALJ was faced with what she deemed an incomplete medical

history. The ALJ, without obtaining the supplemental informati on, made medical

determinations as to claimant’s abilities to do specific jobs. The ALJ erred when she found,

with virtually no meaningful analysis of the specific medical records, that omissions from

the treating specia l ist’s assessment or answers to interrogatories left gaps preventing a

finding as to the proper weight to accord Pertusi’s opinion of Newton’s residual functional

capacity over the four year period in issue.

4. Conclusion Regarding ALJ ’ s Failure to Give Proper Weight to

Treating Physician’s Opinions

This 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

and compare, e.g., Spellman v. Shalala

, 1 F.3d 357 (5th Cir. 1993). Nor is this 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. S ee and compare, e.g., Prosch v. Apfel

, 201 F.3d 1010 (8th Cir.

2000). Instead, this is a case where the ALJ summarily rejected the opinions of Newton’s

treating physician, based only on the testimony of a non-specialty medical expert who had

not examined the claimant. At best, the record was incomplete, and Pertusi could have17

provided clarification or supplementation, if requested. This case is reversed and remanded

for further consideration consistent with this decision.

B. Reliance on Medical-Vocational Guidelines

Newton argues that the ALJ should not have used the medical vocational guideline

grids, 20 C.F.R. Pt. 404, Subpt. P, App. 2 (“Grids”), when determining whether there is work

in the national economy that Newton could perform despite her disability. Newton alleges

that she has significant nonexertional impairments that preclude the application of the Grids

and require the use of a vocational expert to establish that jobs exist which the claimant can

perform.

If impairments are solely exertional o r the nonexertional impairments do not

sufficiently affect the claimant’s residual functional capacity, then the Commissioner may

rely exclusively on the Grids to determine whether there is other work in the economy that

the claimant can perform. See Fraga

, 810 F.2d at 1304. If, however, the claimant suffers

from nonexertional impairments or a combination of exertional and nonexertiona l

impairments, then the Commissioner must rely on a vocational expert to establish that such

jobs exist in the economy. Id. In this case, the ALJ did not rely on a vocational expert.

Newton testified that she had non exertional impairments including pain, swelling, and

the inability to stand or sit for limited periods of time. Pertusi stated that Newton’s fatigue

precluded her from working an eight-hour day. The ALJ rejected these claims of

nonexertional impairment, however, concluding that they were not credible.

While an ALJ’s assessment of a claimant’s credibility is accorded great deference, the

record does not contain substantial evidence to support the ALJ’s decision that Newton had18

no significant nonexertional impairments. During the pertinent time period, Newton was

ho spitalized several times due to SLE flare-ups, had approximately nine emergency room

visits, made numerous office visits, had abnormal laboratory r esults, and complained

frequently of fatigue, weakness, swelling, and pain. While mild or moderate pain will not

render a claimant disabled, see Richardson v. Bowen

, 807 F.2d 444, 448 (5th Cir. 1987), the

ALJ ignored Newton’s claims of severe fatigue, weakness, and s w elling, all of which are

completely consistent with a diagnosis of SLE.

The ALJ rejected Newton’s claims of no n exertional impairments without citing to any

contr ary evidence in the record. There was overwhelming evidence in the administrative

record establishing that Newton suffered significant nonexertional impairments. The ALJ’s

finding of no significant nonexertional impairments is not supported by substantial evidence

and is remanded for further consideration.

C. Consideration of the Effect of Newton’s Medical Treatment

Newton asserts that the ALJ failed to recognize that her ongoing treatment during the

period of claimed disability rendered full-time work impossible. This court has held that if

an individual’s medical treatment significantly interrupts the ability to perform a normal,

eight-hour work day, then the ALJ must determine whether the effect of treatment precludes

the claimant from engaging in gainful activity. S ee Epps v. Harris

, 624 F.2d 1267, 1273 (5th

Cir. 1980).

While Newton did not require daily treatment as did the claimant in Epps

, the record

indicates that Newton visited the doctor, the hospital, and the emergency room frequently

during the period in question. The administrative record also indicates that Newton’s illness19

and its treatment occasionally cau sed her to sleep for several hours during the day. On

re mand, the ALJ shall consider the effect of on-going treatment on Newton’s ability to

remain gainfully employed during the period of claimed disability.

D. Appeals Council’s Failure to Address Newton’s Arguments and Evidence

Newton requested review from the Appeals Council based on new medical evidence.

When the Appeals Council rejected her appeal, the Council issued a standard form denial.

The H earings, Appeals and Litigation Law Manual (HALLEX) Section I-3-501 (Nov.

11, 1994), provides that the Appeals Council must “specifically address additional evidence

or legal arguments or contentions submitted in connection with the request for review.” The

Council did not specifically address Newton’s new medical evidence, thus violating its own

internal procedures.

While HALLEX does not carry the authority of law, this court has held that “where

the rights of individuals are affected, an agency must follow its own procedures, even where

the internal procedures are more rigorous than otherwise would be required.” S ee Hall v.

Schweiker

, 660 F.2d 116, 119 (5th Cir. 1981). If prejudice results from a violation, the result

cannot stand. Id.

In this case, however, Newton was not preju diced by the violation of HALLEX

because her new medical evidence consisted of opinions regarding her condition in 1995 and

1996 which are not relevant to Newton’s ability to work during the claimed disability period

between 1989 and 1994. Because the new evidence was not relevant, the Appeals Council’s

failure to address the evidence with greater specificity did not cause Newton’s need to seek

relief from the federal courts.20

IV. CONCLUSION

The ALJ improperly rejected the opinions of Newton’s treating physi cian without

contradictory evidence from physicians who had examined or treated Newton and without

requesting additional informa tion from the treating physician before rejecting the treating

physician’s opinions as unsupported or conclusory. The ALJ also erred in relying on the

medical-vocational guidelines and in failing to consider the eff ect of Newton’s medical

treatment on her ability to work. Consequently, this court REVERSES the district court and

REMANDS this case with instructions to remand to the ALJ f or further consideration

consistent with this opinion.