THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

WICHITA FALLS DIVISION

JILL E. WILSON, §

§

Plaintiff, §

§

v. § Civil Action No. 7:03-CV-0083-BF(R)

§

JO ANNE B. BARNHART, § ECF

Commissioner of Social Security § 

Administration, §

§

Defendant. §

MEMORANDUM OPINION AND ORDER

This is a consent case before the United States Magistrate Judge. Before the Court is

Plaintiff Jill E. Wilson’s (“Plaintiff”) social security appeal. The Court has reviewed Plaintiff’s

brief, the Commissioner of Social Security’s (“the Commissioner”) brief, and Plaintiff’s reply. For

the reasons stated below, the Court AFFIRMS in part and REVERSES and REMANDS in part

the final decision of the Commissioner.

I. Background

A. Procedural History

Plaintiff seeks judicial review of the Commissioner’s final decision denying her claim for

disability benefits. Plaintiff filed her application for disability benefits on November 20, 2000,

claiming a disability onset date of May 11, 1999. (Tr. at 66-68.) The Social Security Administration

denied both her initial application and her request for reconsideration. (Id. at 53-57, 59-62.)

Plaintiff then requested a hearing before an Administrative Law Judge (“ALJ”). (Id. at 63.) Plaintiff

had a hearing on July 23, 2002, before ALJ Thomas E. Bennett. (Id. at 26.) On January 28, 2003,

the ALJ issued an unfavorable decision, after concluding that Plaintiff could perform her past

 

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relevant work. (Id. at 23-24.) On March 27, 2003, the Appeals Council denied Plaintiff’s request

for review, thus rendering the ALJ’s decision the final decision of the Commissioner. (Id. at 5-6.)

Plaintiff filed this lawsuit on May 7, 2003.

Plaintiff contends that the ALJ’s decision is not supported by substantial evidence because

the ALJ did not address the evidence of the side effects of Plaintiff’s medication. (Pl.’s Br. at 17.)

Plaintiff also argues that the ALJ did not apply the appropriate legal standard to the opinion of

Plaintiff’s treating physician. (Id. at 17-20.)

B. Factual History

1. Plaintiff’s Age, Education, and Work Experience

Plaintiff was born on February 12, 1970. (Tr. at 29.) She has a bachelor’s degree in

psychology. (Id. at 30.) Plaintiff has past relevant work experience as a case worker, a substitute

teacher, a sales representative, a general clerk, a child care monitor, and a volunteer coordinator.

(Id. at 15.)

2. Plaintiff’s Medical Evidence

In her disability report, dated November 10, 2000, Plaintiff listed her disabling conditions

as “spondylolisthesis, severe and chronic back pain because of [spondylolisthesis], [and] severe and

chronic migraines.” (Id. at 95.) Plaintiff claims a disability onset date of May 11, 1999. (Id. at 66.)

Because Plaintiff has an extensive medical history, the Court only discusses the medical evidence

of record that is relevant to the two points of error alleged by Plaintiff.

Plaintiff has experienced back pain since she was twelve years old, and her back pain

worsened after the birth of her last child in May 1999. (See id. at 131.) Grade 2 spondylolisthesis

is the cause of Plaintiff’s back pain. (Id.) In addition to back pain, Plaintiff experienced pain that

 

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radiated into her right buttock, hip, and throughout her right leg. (See id. at 129, 131.)

On February 29, 2000, and March 28, 2000, Dr. Stephen H. Hochschuler (“Dr.

Hochschuler”) examined Plaintiff. (Id. at 131, 121.) During both examinations, Dr. Hochschuler

stated that Plaintiff needed surgery to stabilize her back. (Id.) Dr. Marcom E. Herren also has

examined Plaintiff multiple times relating to her back pain. (See Tr. at 155, 186, 187-89, 192, 193-

95.)

On March 29, 2000, Dr. Craig C. Callewart (“Dr. Callewart”) examined Plaintiff. Dr.

Callewart recommended that Plaintiff undergo sacrum fusion surgery, which he stated could prevent

the progression of Plaintiff’s spondylolisthesis and could relieve seventy-five percent of her pain

symptoms. (Id. at 203.) Dr. Callewart examined Plaintiff again on May 24, 2000. (See id. at 201.)

Before Plaintiff’s surgery, she took Prozac and Xanax for depression and anxiety. (Id. at

206.) She took Darvocet and Lortab for migraine headaches. (Id.) Plaintiff also took various

medications and injections to control her back pain, including epidural steroid injections. (Id. at

195.)

Dr. Callewart performed sacrum fusion surgery upon Plaintiff on June 5, 2000. Following

her surgery, Plaintiff experienced edema of her lower extremities and was hospitalized from June

21, 2000, through June 24, 2000. (Id. at 135.) 

Dr. Callewart’s physician’s assistant examined Plaintiff on June 26, 2000. (Id. at 200.) The

physician’s assistant encouraged Plaintiff to walk frequently and to rest. (Id.) He also instructed

Plaintiff not to sit down for long periods of time, not to lift anything heavier than a gallon of milk,

and to slowly increase her periods of sitting and walking. (Id.) 

Dr. Callewart examined Plaintiff on July 26, 2000. (Id. at 199.) He noted that Plaintiff’s

 

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overall condition had improved but that she was experiencing thigh and calf tenderness. (Id.) He

told Plaintiff to continue a program of walking and swimming and not to lift anything weighing

more than one or two gallons of milk. (Id.)

Dr. Callwart’s physician’s assistant saw Plaintiff again on November 21, 2000. (Id. at 198.)

He noted that Plaintiff was feeling better but still had pain around the site of her surgery. (Id.) She

told him that standing for long periods of time made her pain worse. (Id.) He recommended that

she engage in aerobic conditioning and gentle stretching but that she avoid high impact activities

and wear a brace if she did any repetitive bending. (Id.)

Dr. Callewart saw Plaintiff on January 17, 2001. (Id. at 197.) Plaintiff still was experiencing

some pain and numbness. (Id.) She had stumbled a few times and felt tired. (Id.) Dr. Callewart

told Plaintiff to participate in a home walking program, entailing walking for forty minutes, three

to four times a week. (Id.)

Dr. Callewart completed a “Physical Residual Functional Capacity Questionnaire” on July

22, 2002. (Id. at 241.) Dr. Callewart stated that during a typical workday, Plaintiff’s constant pain

and other symptoms would interfere with the concentration required to complete even simple work

tasks. (Id. at 242.) He stated that Plaintiff could tolerate moderate work stress “okay.” (Id.) Dr.

Callewart also stated that, in his estimation, Plaintiff is capable of the following: walking one city

block without resting and without severe pain; sitting for ten minute intervals before needing to

stand up; standing for ten minute intervals without needing to sit down or walk around; and sitting,

and standing or walking, for less than two hours total in an eight-hour workday. (Id. at 242-43.)

In addition, Dr. Callewart said that Plaintiff needs to walk around every ten minutes during an eighthour workday. (Id. at 243.) He thought that Plaintiff would require a job that permitted her to shift

 

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at will from sitting, standing, or walking and that would allow her to take unscheduled breaks at

fifteen minute intervals. (Id.) He stated that if Plaintiff engaged in prolonged sitting she would need

to elevate her legs at a forty-five degree angle. (Id.) Dr. Callewart said that Plaintiff needed to use

a cane or other assistive device while engaging in occasional standing or walking and that she could

lift weights of less than ten pounds “rarely.” (Id.) Dr. Callewart stated that she could rarely twist

her body and could never stoop, crouch, or climb ladders or stairs. (Id. at 244.) He thought that

Plaintiff would have good days and bad days, but that her impairments and treatments would likely

cause her to miss more than four days of work each month. (Id.) He classified her condition as

permanent and likely to worsen with age. (Id.)

3. Plaintiff’s Hearing

On July 23, 2002, Plaintiff had a hearing before ALJ Thomas E. Bennett. (Id. at 26.)

Attorney Tom Schrandt (“Mr. Schrandt”) represented Plaintiff at this hearing. (Id.) As with the

medical evidence, the Court only relates the relevant portions of Plaintiff’s hearing.

Plaintiff testified that she experiences constant pain in her lower back and legs. (Id. at 40.)

She said that she has good and bad days. (Id.) A “bad day” consists of staying in bed for most of

the day. (Id.) A “good day” consists of taking care of her children’s basic needs and doing chores

around the house. (Id.) Due to numbness in her feet, Plaintiff testified that she “scoots” her feet

when she walks and occasionally trips and falls. (Id. at 42.) She said that her pain medications help

her pain but that they make her “drowsy and dizzy and lethargic or not alert.” (Id.) Plaintiff

testified that half of her days are “good days” and half are “bad days.” (Id.) Plaintiff said that she

can only walk or stand for ten minutes before having to sit down. (Id. at 44.)

The Vocational Expert (“VE”), Clifton A. King, testified that an individual with the residual

 

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functional capacity that the ALJ attributed to Plaintiff could perform her past relevant work as a

volunteer coordinator. (Id. at 48.) Upon questioning by Mr. Schrandt, the VE testified that, if

someone experienced enough pain to interfere with his or her attention and concentration, that

person would be unable to perform simple work tasks on a constant basis. (Id. at 48-49.) Also upon

questioning by Mr. Schrandt, the VE testified that, if a person were going to miss four to five days

of work a month, he or she would not be able to perform unskilled employment or professional level

employment. (Id. at 49.) 

C. The ALJ’s Findings

The ALJ issued an unfavorable decision on January 28, 2003. (Id. at 24.) The ALJ

ultimately concluded that Plaintiff is not disabled because she is capable of performing her past

relevant work as a volunteer coordinator. (Id. at 23.) The ALJ determined that Plaintiff has the

residual functional capacity to do the following: stand and/or walk a maximum of four hours during

the work day; sit as required; occasionally lift and/or carry objects weighing twenty pounds;

frequently lift and/or carry objects weighing ten pounds; occasionally stoop, crouch, and climb

ramps or stairs. (Id.) The ALJ concluded that Plaintiff cannot crawl or climb ladders, ropes, or

scaffolds or work with vibrating equipment. (Id.) The ALJ stated that the medical evidence

established that Plaintiff has severe spondylosis and spondylolisthesis with a history of fusion. (Id.)

The ALJ also stated that Plaintiff’s allegations and testimony were not entirely credible, considering

her report to examiners, the findings of the examinations, the medical reports, and the extent of her

treatment. (Id.) In reaching these conclusions, the ALJ did not give the opinion of Plaintiff’s

treating physician, Dr. Callewart, “controlling weight.” (Id. at 20.)

II. Standard of Review

 

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To receive social security benefits, Plaintiff must establish that she is disabled for purposes

of the Social Security Act. Leggett v. Chater, 67 F.3d 558, 563-64 (5th Cir. 1995); Abshire v.

Bowen, 848 F.2d 638, 640 (5th Cir. 1988) (per curiam). The Social Security Act defines a disability

as “the inability to engage in any substantial gainful activity by reason of any medically

determinable physical or mental impairment which can be expected to result in death or which has

lasted or can be expected to last for a continuous period of not less than [twelve] months.” 42

U.S.C. § 423(d)(1)(A); Anthony v. Sullivan, 954 F.2d 289, 292 (5th Cir. 1992).

The Commissioner uses the following sequential five-step inquiry to determine whether a

claimant is disabled: (1) an individual who is working and engaging in substantial gainful activity

will not be found disabled regardless of medical findings; (2) an individual who does not have a

“severe impairment” will not be found to be disabled; (3) an individual who “meets or equals a listed

impairment in Appendix 1" of the regulations will be considered disabled without consideration of

vocational factors; (4) if an individual is capable of performing the work he or she has done in the

past, a finding of “not disabled” must be made; and (5) if an individual’s impairment precludes him

or her from performing his or her past work, other factors including age, education, past work

experience, and residual functional capacity must be considered to determine if work can be

performed. Wren v. Sullivan, 925 F.2d 123, 125 (5th Cir. 1991) (per curiam) (summarizing 20

C.F.R. § 404.1520(b)-(f)). The claimant bears the burden of proving he or she is disabled under the

first four steps. Leggett, 67 F.3d at 564. If at any point during the examination of the first four steps

the Commissioner determines the claimant is or is not disabled, the inquiry terminates. Id. If the

claimant meets his or her burden under the first four steps, the Commissioner then bears the burden

at step five to show the claimant is capable of performing other gainful employment available in the

 

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national economy. Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994). The Commissioner may

satisfy this burden by referencing the Medical-Vocational Guidelines of the regulations or by expert

vocational expert testimony or other similar evidence. Fraga v. Bowen, 810 F.2d 1296, 1304 (5th

Cir. 1987).

The Commissioner’s determination receives great deference. Leggett, 67 F.3d at 564. Title

42, section 405(g) of the United States Code Annotated limits judicial review of the Commissioner’s

findings to: (1) whether substantial evidence supports the decision and (2) whether the

Commissioner utilized the proper legal standard. Greenspan, 38 F.3d at 236; 42 U.S.C.A. § 405(g)

(1999). Substantial evidence is “that which is relevant and sufficient for a reasonable mind to accept

as adequate to support a conclusion; it must be more than a scintilla, but it need not be a

preponderance.” Leggett, 67 F.3d at 564. The Court does not re-weigh the evidence, retry the

issues, or substitute its own judgment for that of the Commissioner. Greenspan, 38 F.3d at 236.

Instead, the Court scrutinizes the record to determine whether substantial evidence supports the

decision. Id.

III. Discussion

Plaintiff states two reasons why the Court should reverse the decision of the Commissioner.

First, Plaintiff argues that the ALJ did not consider Plaintiff’s allegations of the side effects of her

medication and that the Social Security Regulations obligate the ALJ to consider such allegations

and explain the weight given to them. (Pl.’s Br. at 17.) Second, Plaintiff claims that the ALJ

improperly rejected the opinion of Dr. Callewart, Plaintiff’s treating physician, and that the ALJ did

not properly evaluate what weight to give Dr. Callewart’s opinion. (Id. at 18-20.)

A. Did the ALJ Properly Consider the Side Effects of Plaintiff’s Medication?

 

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Plaintiff claims that the ALJ did not consider Plaintiff’s testimony at her hearing that her pain

medications “have the side effects of making me drowsy and dizzy and lethargic or not alert.” (Id.

at 16 (citing Tr. at 42).) Plaintiff argues that the ALJ should have considered Plaintiff’s allegations

and explained the weight that he assigned to them. (Id. at 17 (citing Crowley v. Apfel, 197 F.3d 194,

199 (5th Cir. 1999).)

The Social Security Regulations require the ALJ to consider the “type, dosage, effectiveness,

and side effects of any medication.” 20 C.F.R. § 404.1529(c)(3)(iv). Contrary to Plaintiff’s

assertion, the Court finds that the ALJ did consider Plaintiff’s testimony about the side effects of her

medication. In his decision, the ALJ stated that “[t]he claimant reported difficulty with

concentration or with memory.” (Tr. at 18.) The only time that Plaintiff alleged symptoms

interfering with her concentration or memory was her testimony at the hearing that her pain

medication causes her to not be alert, to be drowsy, and that she does not “know what’s going on.”

(See id. at 42, 44-45.)

Although the ALJ did not specifically reference Plaintiff’s symptoms affecting her

concentration or memory as “side effects of her medication,” the ALJ did address Plaintiff’s

testimony about the side effects and state why he did not give her testimony any weight. The ALJ

stated that the medical evidence indicated that Plaintiff’s mental status is normal; she has no

reported episodes of restrictions upon her concentration, persistence or pace; she has not experienced

decompensation lasting for an extended period; she has been able to function independently outside

the home and has not needed a highly supportive environment; and she has been able to cope with

minimal change or increased mental demands. (Id. at 18.) The ALJ basically explained that no

objective medical evidence supported Plaintiff’s testimony. 

 

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The only arguable error the ALJ committed when addressing Plaintiff’s testimony about her

side effects was that he did not specifically state that he was addressing “the side effects of

medication.” The Court concludes that the absence of such a label did not substantially prejudice

Plaintiff’s rights because the ALJ did address her allegations and explain why he did not give them

any weight. See Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988) (per curiam) (stating:

“Procedural perfection in administrative proceedings is not required. This court will not vacate a

judgment unless the substantial rights of a party have been affected.”). Accordingly, the Court

affirms the Commissioner on this ground.

B. Did the ALJ Give the Treating Physician’s Opinion the Proper Weight?

Plaintiff next argues that the ALJ improperly rejected the opinion of Plaintiff’s treating

physician, Dr. Callewart. (Pl.’s Br. at 18-20.) Dr. Callewart stated the following in his responses

to the questionnaire: Plaintiff can rarely lift and carry less than ten pounds in a competitive work

situation; she can stand, walk or sit for less than two hours total in an eight-hour workday; Plaintiff’s

pain and other symptoms would constantly interfere with her concentration; and she was likely to

be absent from work more than four days a month. (Tr. at 242-44.)

The ALJ assigned Dr. Callewart’s opinion “little weight.” The ALJ did not dispute that Dr.

Callewart was Plaintiff’s treating physician. (Tr. at 20 (referring to Dr. Callewart as a “treating

source).) The ALJ stated the following as his reasons for assigning Dr. Callewart’s opinion “little

weight”:

There is no evidence that Dr. Callewart had seen the claimant since January 2001, or that he

had given the claimant any limitations since shortly following the surgery. There is no

evidence that Dr. Callewart had made inquiry of some of the issues expressed, such as

interruptions of concentration due to pain. There also is no evidence of what was told to Dr.

Callewart, which might have influenced the opinion. There is no explanation of

discrepancies between the contemporaneous treating notes and the statement the day before

 

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the hearing. It appears that the opinion of Dr. Callewart is that as an advocate in support of

the claimant’s application for benefits, rather than as an objective treating source. 

(Id.) This is the only reasoning the ALJ provided to explain the weight he gave Dr. Callewart’s

opinion.

1. Did the ALJ Apply the Correct Standard to Determine if the ALJ’s Opinion Should

 Receive “Controlling Weight?”

The first issue the Court addresses is whether the ALJ applied the correct analysis to

determine if Dr. Callewart’s opinion should receive “controlling weight.” Generally, the treating

physician’s opinion is given great weight in the determination of disability. Newton v. Apfel, 209

F.3d 448, 455 (5th Cir. 2000); Leggett, 67 F.3d at 566. In fact, the treating physician’s opinion on

the nature and severity of a patient’s impairment will receive “controlling weight,” if the opinion

is “well supported by medically acceptable clinical and laboratory diagnostic techniques and is not

inconsistent with . . . other substantial evidence.” Martinez v. Chater, 64 F.3d 172, 176 (5th Cir.

1995) (per curiam) (citing 20 C.F.R. § 404.1527(d)(2)). The ALJ, however, alone determines the

status of a claimant’s disability and may reject a physician’s opinion if the evidence supports a

contrary conclusion. Paul v. Shalala, 29 F.3d 208, 211 (5th Cir. 1994).

The Court concludes that the ALJ did not apply the proper standard when evaluating Dr.

Callewart’s opinion. The first way in which the ALJ failed to apply the proper standard is that the

ALJ failed to enunciate why he declined to give Dr. Callewart’s opinion “controlling weight.” The

ALJ explained the reasons that he gave the opinion “little weight,” but he never addressed why it

did not receive controlling weight. The Social Security Regulations mandate that a treating

physician’s opinion receives “controlling weight” if it is “well supported by medically acceptable

clinical and laboratory diagnostic techniques and is not inconsistent with . . . other substantial

 

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Even when the ALJ recited that a treating physician’s opinion receives controlling

weight, he misstated the legal standard. He stated that “[m]edical opinions of treating physicians

are given controlling weight concerning the claimant’s impairments and the degree of severity

and limitations therefrom, when adequately supported and not contradicted by other evidence”

(Tr. at 20); whereas the actual determination hinges upon whether the treating physician’s

opinion is “well supported by medically acceptable clinical and laboratory diagnostic techniques

and is not inconsistent with . . . other substantial evidence.”

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evidence.” Martinez, 64 F.3d at 176 (citing 20 C.F.R. § 404.1527(d)(2)). The ALJ did not weigh

Dr. Callewart’s opinion against the rest of the medical evidence to determine if it was consistent

with “other substantial evidence.” After assigning “little weight” to Dr. Callewart’s opinion, the

ALJ went on to discuss state agency opinions that differed from Dr. Callewart’s opinion, but the

ALJ did not discuss these agency opinions when determining why Dr. Callewart’s opinion did not

receive controlling weight. (See Tr. at 20-21.) Nor did the ALJ discuss whether “medically

acceptable clinical and laboratory diagnostic techniques” support Dr. Callewart’s opinion. Other

than a mere recital that treating physicians’ opinions generally receive controlling weight, the ALJ’s

opinion appears to circumvent “controlling weight” analysis completely.1

 (See id. at 20.)

The Commissioner argues that the ALJ did not afford Dr. Callewart’s opinion “significant

weight” because the ALJ found that his opinion was not supported by objective findings. (Def.’s

Br. at 7 (citing Tr. At 20).) The ALJ, however, never stated that objective evidence did not support

Dr. Callewart’s opinion, nor did he generally explain how the opinion lacked evidentiary support.

(See Tr. at 20.)

The Commissioner also argues that the ALJ found that Dr. Callewart was not Plaintiff’s

treating physician, and therefore his opinion was not entitled to controlling weight. (Def.’s Br. at

8.) The ALJ’s decision contains no discussion of Dr. Callewart not being Plaintiff’s treating

physician. The ALJ did state that Dr. Callewart had not examined Plaintiff since July 22, 2002, but

 

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he only stated that as one reason he assigned Dr. Callewart’s opinion “little weight,” not to support

a conclusion that Dr. Callewart was not a treating source. (Tr. at 20.) The Court finds no support

for the Commissioner’s argument in the ALJ’s decision. On the contrary, the ALJ specifically refers

to Dr. Callewart as a “treating source,” and the ALJ’s discussion of Dr. Callewart’s opinion directly

follows the ALJ’s summary of the legal standard applied to the opinion of a treating source. (See

Tr. at 20.) Accordingly, the Court finds that the ALJ did find that Dr. Callewart was a treating

physician, and the ALJ, therefore, should have addressed whether Dr. Callewart’s opinion should

receive “controlling weight.”

2. Did the ALJ Apply the Correct Standard to Determine What Weight to Assign Dr.

 Callewart’s Opinion?

The next issue the Court addresses is whether the ALJ applied the correct standard to decide

what weight to give the opinion. An ALJ may reject a treating physician’s opinion for good cause.

Greenspan, 38 F.3d at 237. The Social Security Regulations require an ALJ to give “good reason”

for the weight assigned to a treating physician’s opinion. 20 C.F.R. § 404.1527(d)(2). Section

404.1527(d)(2) requires the ALJ to consider specific factors “to assess the weight to be given to the

opinion of a treating physician when the ALJ determines that [the opinion] is not entitled to

‘controlling weight.’” Newton, 209 F.3d at 456. The factors an ALJ should consider when

determining what weight to assign to a treating physician’s opinion include: (1) the physician’s

length of treatment; (2) the physician’s frequency of examination; (3) the nature and extent of the

treatment of the relationship; (4) the support of the physician’s opinion afforded by the medical

evidence of the record; (5) the consistency of the opinion with the record as a whole; and (6) the

specialization of the treating physician. 20 C.F.R. § 404.1527(d). 

The second way the ALJ failed to apply the proper standard to Dr. Callewart’s opinion is that

 

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he failed to address all the factors listed in § 404.1527(d) of the Social Security Regulations and how

each factor influenced his decision to give Dr. Callewart’s opinion “little weight.” “An ALJ is

required to consider each of the § 404.1527(d) factors when the ALJ intends to reject or give little

weight to a treating specialist’s opinion.” Newton, 209 F.3d at 456. The ALJ summarily referenced

the above enumerated factors and then proceeded to assign Dr. Callewart’s opinion “little weight”

without discussing all of the factors. (See Tr. at 20.) 

The ALJ partially addressed two of the § 404.1527(d) factors. He somewhat discussed Dr.

Callewart’s frequency of examination when he stated that Dr. Callewart had not examined Plaintiff

since July 22, 2002. (Tr. at 20.) The ALJ passingly addressed the consistency of Dr. Callewart’s

opinion with the record as a whole when he mentioned “discrepancies between the contemporaneous

treating notes and the statement the day before the hearing.” The ALJ did not, however, describe

the discrepancies. (Tr. at 20.) The ALJ later discussed the opinions of the State agency’s examining

physicians, but the ALJ never compared Dr. Callewart’s opinion with the treatment notes of

Plaintiff’s other treating physicians. (See id. at 21.)

The ALJ ignored the remaining § 404.1527(d) factors and failed to thoroughly discuss the

factors upon which he did rely. The ALJ did not address how long Dr. Callewart had been treating

Plaintiff, how many times he had examined her, the precise nature of their treatment relationship,

and the support afforded to Dr. Callewart’s opinion by the medical evidence of record. Nor did the

ALJ address how each of these factors affected his decision to assign Dr. Callewart’s opinion “little

weight.” Instead, without providing the evidence or reasoning that caused him to reach these

conclusions, the ALJ summarily determined that Dr. Callewart was acting as an advocate on

Plaintiff’s behalf and was not objective. (Tr. at 20.) The Court does not require the ALJ to exhibit

 

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procedural perfection when applying the § 404.1527(d) factors to a treating source’s opinion, but

the Court does require the ALJ to at least address each factor when rejecting or assigning little

weight to a treating source’s opinion. See, e.g., Alejandro v. Barnhart, 291 F. Supp.2d 497, 508-09

(S.D. Tex. 2003) (accepting as sufficient the ALJ’s narrative discussion of the 20 C.F.R. §

404.1527(d) factors, even though “the ALJ did not explicitly and specifically reference the factors”).

Accordingly, the Court reverses the decision of the Commissioner and remands this case

with the following instructions to the ALJ: (1) the ALJ should reconsider whether Dr. Callewart’s

opinion should receive controlling weight and specifically state the reasons why he does or does not

afford it controlling weight, in accordance with the standard outlined in 20 C.F.R. § 404.1527(d)(2);

and (2) if the ALJ determines that Dr. Callewart’s opinion is not entitled to controlling weight, when

deciding what weight to assign to Dr. Callewart’s opinion, he should consider and discuss each

factor outlined in C.F.R. § 404.1527(d) and explain how each factor influences his determination.

IV. Conclusion

The ALJ correctly considered Plaintiff’s allegations of side effects caused by her medication,

and the Court AFFIRMS the final decision of the Commissioner on this ground. The ALJ did not

apply the correct legal standard to the opinion of Plaintiff’s treating physician, Dr. Callewart, and

the Court REVERSES and REMANDS the final decision of the Commissioner on this ground with

the instructions detailed above. 

SO ORDERED. April 20, 2006.

_____________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE

 

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