Findings, Conclusions and Recommendation of 

the United States Magistrate Judge–Page 1

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

BONITA A. PLANK, §

PLAINTIFF, §

§

VS. § CIVIL ACTION NO. 4:04-CV-172-Y

§

JO ANNE B. BARNHART, §

COMMISSIONER OF SOCIAL SECURITY, §

DEFENDANT. §

FINDINGS, CONCLUSIONS AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

AND

NOTICE AND ORDER

This case was referred to the United States Magistrate Judge pursuant to the provisions of

Title 28, United States Code, Section 636(b). The Findings, Conclusions and Recommendation of

the United States Magistrate Judge are as follows:

FINDINGS AND CONCLUSIONS

A. STATEMENT OF THE CASE

Plaintiff Bonita A. Plank brings this action pursuant to Sections 405(g) and 1383(c)(3) of

Title 42 of the United States Code for judicial review of a final decision of the Commissioner of

Social Security denying her claim for disability benefits under Title II and supplemental security

income or SSI benefits under Title XVI of the Social Security Act. Plank applied for SSI benefits

on February 20, 2002 (her protective filing date) and disability insurance benefits on March 13,

2002, alleging she has been disabled since December 29, 2000. (Tr. 209, 211, 214). Plank met the

requirements for disability insured status through March 31, 2002. (Tr. 212). 

 

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After the Social Security Administration denied her applications for benefits initially and on

reconsideration, Plank requested a hearing before an administrative law judge (the "ALJ"), and ALJ

Randolph D. Mason held a hearing on July 9, 2003 in Fort Worth, Texas. (Tr. 233). Plank was

represented by counsel. On September 22, 2003, the ALJ issued an unfavorable decision finding

Plank was capable of performing a modified range of light work activity and was therefore not

disabled or entitled to disability insurance and SSI benefits. (Tr. 14-22). The Appeals Council

denied Plank’s request for review of her case, leaving the ALJ’s decision to stand as the final

decision of the Commissioner. (Tr. 5).

B. STANDARD OF REVIEW

The Social Security Act defines a disability as a medically determinable physical or mental

impairment lasting at least twelve months that prevents the claimant from engaging in substantial

gainful activity. 42 U.S.C. § 423(d), 1382c(a)(3)(A); McQueen v. Apfel, 168 F.3d 152, 154 (5th Cir.

1999). To determine whether a claimant is disabled, and thus entitled to disability benefits, a fivestep analysis is employed. 20 C.F.R. §§ 404.1520, 416.920. First, the claimant must not be presently

working at any substantial gainful activity. Substantial gainful activity is defined as work activity

involving the use of significant physical or mental abilities for pay or profit. 20 C.F.R. §§ 404.1527,

416.972. Second, the claimant must have an impairment or combination of impairments that is

severe. An impairment or combination of impairments is severe if it has more than minimal effect

on the claimant’s physical or mental ability to do basic work activities. 20 C.F.R. §§ 404.1520(c),

416.920(c); Stone v. Heckler, 752 F.2d 1099, 1101 (5th Cir. 1985), cited in Loza v. Apfel, 219 F.3d

378, 392 (5th Cir. 2000). At the third step, disability will be found if claimant’s impairment or

 

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combination of impairments meets or equals an impairment listed in the appendix to the regulations.

Id. §§ 404.1520(d), 416.920(d). Fourth, if disability cannot be found on the basis of claimant’s

medical status alone, the impairment or impairments must prevent the claimant from returning to

his past relevant work. Id. §§ 404.1520(e), 416.920(e). And fifth, the impairment must prevent the

claimant from doing any work, considering the claimant's residual functional capacity, age,

education, and past work experience. Id. §§ 404.1520(f), 416.920(f); Crowley v. Apfel, 197 F.3d

194, 197-98 (5th Cir.1999). 

At steps one through four, the burden of proof rests upon the claimant to show he is disabled.

If the claimant satisfies this responsibility, the burden shifts to the Commissioner at step five of the

process to show that there is other gainful employment the claimant is capable of performing in spite

of his existing impairments. Crowley, 197 F.3d at 198. If the Commissioner meets this burden, the

claimant must then prove that he cannot in fact perform the work suggested. Waters v. Barnhart, 276

F.3d 716, 718 (5th Cir. 2002). A finding at any point in the five-step process that a claimant is

disabled or not disabled is conclusive and terminates the analysis. Masterson v. Barnhart, 309 F.3d

267, 272 (5th Cir. 2002).

A denial of disability benefits is reviewed only to determine whether the Commissioner

applied the correct legal standards and whether the decision is supported by substantial evidence in

the record as a whole. Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995); Hollis v. Bowen, 837

F.2d 1378, 1382 (5th Cir. 1988). Substantial evidence is such relevant evidence as a responsible

mind might accept to support a conclusion. Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001). It is

more than a mere scintilla, but less than a preponderance. Id. A finding of no substantial evidence

 

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1

 Plank challenges the Commissioner’s assessment of her mental impairments, not her physical

capabilities. Additionally, Plank does not challenge the accuracy of the evidence as recounted in the ALJ’s written

decision, but instead requests a remand for further administrative review of new evidence submitted after the ALJ

rendered his decision. Accordingly, the summary of her treatment history will be similarly limited and drawn largely

from the ALJ’s decision and Plank’s presentation of the facts in her brief.

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the United States Magistrate Judge–Page 4

is appropriate only if no credible evidentiary choices or medical findings support the decision. Id.

This Court may neither reweigh the evidence in the record nor substitute its judgment for the

Commissioner's, but will carefully scrutinize the record to determine if the evidence is present.

Harris v. Apfel, 209 F.3d 413, 417 (5th Cir.2000); Hollis, 837 F.2d at 1383.

C. ISSUES

Whether new and material evidence was submitted to the Appeals Council that renders the

ALJ’s mental residual functional capacity assessment unsupported by substantial evidence.

D. ADMINISTRATIVE RECORD

1. Treatment History1

Plank has a history of chronic depression and anxiety. She first sought assistance from

Tarrant County’s Mental Health and Mental Retardation services (MHMR) in 1998, and was

diagnosed with major depression. Medication was prescribed that appeared to stabilize her mood

until an exacerbation of her symptoms in 1999. She remained off work for a year. (Tr. 59, 104-40).

Plank started a new job in March 2000 as a court clerk, and continued to follow a medication

regimen of Prozac and Buspar. (Tr. 99). Plank quit her job after nine months of service, asserting

that panic attacks and poor concentration prevented her from working. (Tr. 58). In January 2001,

Plank sought treatment from psychiatrist Geetha Reddy, M.D., at MHMR and reported that Prozac

was no longer effective. (Tr. 88). Plank complained of increased irritability and rages, as well as

 

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more anxiety and panic symptoms. Reddy diagnosed bipolar disorder and prescribed Buspar and

Lithium as a mood stabilizer. Reddy directed Plank to taper her use of Prozac. (Tr. 89). Although

the Lithium was effective, Plank complained that it also caused fluid retention and weight gain. Her

Lithium dosage was reduced. (Tr. 78-79). After a variety of adjustments to her medications were

made with limited success, Plank stopped seeking treatment from MHMR after May 2001 because

she thought they were using her as a “guinea pig.” (Tr. 246).

Plank did not receive further psychiatric treatment until January 2, 2002 when she sought

emergency assistance from the Acute Behaviorial Health Clinic at John Peter Smith Hospital for

increasing panic attacks, depression, and suicidal thoughts. (Tr. 61). Plank was also hospitalized

overnight in February 2002 for depression, panic attacks, and anxiety, but was released at her

request because the unit she was staying in was aggravating her panic attacks. (Tr. 174). Plank was

placed in the Behaviorial Clinic’s outpatient program with a diagnosis of major depression disorder

and a secondary diagnosis of panic disorder. Her routine follow-up visits during the remainder of

2002 reflect fluctuating mildly to moderately severe symptoms of depression and anxiety. (Tr. 16-

17, 143-73).

2. Administrative Hearing

Plank was born August 12, 1970 and graduated high school. (Tr. 235-36). She also

completed a medical assistant training program. She had work experience as a medical assistant,

data entry clerk, and court clerk. (Tr. 236-38). Plank testified that her medications included Xanax,

Wellbutrin, Neurontin, Ultram (for pain), Scalaxin (as a muscle relaxer), Zocor (for her high

cholesterol), and Maxide (to treat fluid retention). (Tr. 239-40).

 

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Plank testified that her mother did most of the housework. Plank also relied on her mother

for transportation because driving usually precipitated a panic attack. (Tr. 241). She accompanied

her mother to the grocery store, but they had to shop for only short periods of time because being

around others made Plank nervous. (Tr. 241).

Plank’s mother, Bess Walsh, testified that Plank and her two children lived with her. She

testified that Plank had panic attacks at least twenty times a month, and each attack could last as

long as one hour. (Tr. 254).

Vocational expert Carol Bennett testified that Plank’s previous work as a court clerk and data

entry clerk was semiskilled to skilled, sedentary work. Work as a medical assistant was considered

skilled work requiring light exertion. (Tr. 264). The ALJ asked Bennett to consider an individual

capable of work that’s limited to simple one- or two-step instructions. Superficial

interaction with co-workers, and no interaction with the public. And let’s say limited

to light work. With no constant repetition of the same motion [with the hands].

(Tr. 264). Bennett testified that a worker with these restrictions could perform the job of machine

tender or routing clerk. (Tr. 265).

3. ALJ Decision

The ALJ found that Plank had not engaged in substantial gainful activity since December

29, 2000 and had a severe combination of impairments that included moderate major depression,

anxiety, panic disorder, chronic low back pain, obesity, and hyperlipidemia. (Tr. 21). However, the

ALJ found that Plank had no impairment or combination of impairments meeting or equaling the

severity of a listed impairment. (Tr. 21). The ALJ found that Plank retained the residual functional

capacity for light work that did not require constant repetition of the same motion with her hands

 

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and and work that was limited to jobs at the lower end of detailed instruction with only superficial

contact with coworkers and no public contact. (Tr. 21). Based on the vocational expert’s testimony,

the ALJ found that Plank was capable of performing other work existing in significant numbers in

the national economy, and accordingly, was not disabled. (Tr. 21-22).

4. Appeals Council Evidence

On September 22, 2003 (the same day that the ALJ issued his decision), Plank’s treating

psychiatrist, James Witschy, M.D., completed a medical evaluation interrogatory assessing Plank’s

mental condition. Plank submitted the assessment to the Appeals Council for consideration in

support of her request for review. (Tr. 198).

Witschy reported that Plank’s mental impairments consisted of bipolar disorder and a panic

disorder without agoraphobia. (Tr. 198). He further found that Plank was moderately restricted in

her activities of daily living. She was considered markedly impaired in her social functioning and

ability to understand, remember and carry out simple instructions; and extremely impaired in her

ability to respond appropriately to supervisors, coworkers or work situations. In addition, Witschy

opined that Plank was extremely limited in dealing with changes in a routine work setting. (Tr.

198). Witschy opined that Plank had constant deficiencies in concentration, persistence or pace on

a constant basis, with constant episodes of deterioration and decompensation in work or work-like

settings. (Tr. 199).

Witschy first saw Plank on June 23, 2003, and continued to treat her on a monthly basis. He

opined that Plank was not capable of working on a full time basis and opined that this disability had

begun prior to the date he began treating Plank. He estimated that Plank’s mental impairment could

 

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be expected to last three to six months if treatment proved successful. (Tr. 199).

D. DISCUSSION

Plank asserts that new and material evidence submitted to the Appeals Council renders the

ALJ’s mental residual functional capacity (RFC) assessment unsupported by substantial evidence.

Plank accurately observes that Witschy’s answers on the detailed medical evaluation interrogatory

form reflect more severe impairments in Plank’s mental functioning than the ALJ found without the

benefit of Witschy’s opinion. 

Plank agrees that the ALJ cannot be faulted for failing to consider a treating source opinion

that was not submitted until after the ALJ rendered his decision. However, the regulations provide

a claimant with the opportunity to forward new and material evidence to the Appeals Council for

consideration in deciding whether to grant a request for review of an ALJ’s decision: 

(b) In reviewing decisions based on an application for benefits, if new and material

evidence is submitted, the Appeals Council shall consider the additional evidence

only where it relates to the period on or before the date of the administrative law

judge hearing decision. In reviewing decisions other than those based on an

application for benefits, the Appeals Council shall evaluate the entire record

including any new and material evidence submitted. It will then review the case if

it finds that the administrative law judge's action, findings, or conclusion is contrary

to the weight of the evidence currently of record.

20 C.F.R. § 416.1470(b). In accordance with the regulations, the Appeals Council stated that

Witschy’s report had been admitted into evidence and considered, but ultimately declined to review

the ALJ’s decision. The Fifth Circuit has recently recognized that new evidence submitted to the

Appeals Council becomes part of the administrative record to be considered by the court in its

substantial evidence review. Higginbotham v. Barnhart, 405 F.3d 332, 337-38 (5th Cir. 2005).

 

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2

 The Commissioner correctly notes that Plank’s insured status for purposes of Title II disability insurance

benefits expired in March 2002; however, entitlement to SSI benefits has no similar restriction.

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the United States Magistrate Judge–Page 9

Witschy’s opinion is both new and material. The report was submitted after the ALJ issued

a decision and it relates to Plank’s ability to perform specific work-related functions during the time

period under consideration by the ALJ.2

 It contradicts the RFC assessment made by the ALJ and

the findings of the non-examining state agency medical consultants, yet the Appeals Council stated

in conclusory fashion that the report presented no basis for disturbing the ALJ’s decision.

Medical opinions, diagnoses, and evidence of a treating physician who is familiar with the

claimant’s impairments, treatments and responses, are generally given great weight 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). The Commissioner assigns controlling weight to the opinion of a treating

physician if well-supported by medically acceptable clinical and laboratory diagnostic techniques

and not inconsistent with other substantial evidence in the record. 20 C.F.R. §§ 404.1527(d)(2),

416.927(d)(2); Martinez v. Chater, 64 F.3d 172, 176 (5th Cir. 1995). Even if a treating source

opinion is not entitled to controlling weight under the regulations, that does not mean the opinion

should be wholly rejected. Such opinions are still entitled to deference and must be weighed using

the factors outlined in the regulations. These factors include the length of the treatment relationship,

frequency of examination, nature and extent of the treating relationship, evidence supporting the

opinions, the consistency of those opinions, and medical specialization. See 20 C.F.R. §§

404.1527(d), 416.927(d); Newton v. Apfel, 209 F.3d 448, 456 (5th Cir. 2000). See also SOCIAL

SECURITY RULING 96-2p, 96-5p. In many cases, the opinion may be entitled to the greatest weight

 

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3

 See HALLEX, ch. I-3-5-90. Chapter I-3-5-90 contains a 1995 memorandum that suspends the detailed

discussion requirement; however, there is no indication that this memorandum has been rescinded.

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the United States Magistrate Judge–Page 10

and should be adopted even if it does not satisfy the test for controlling weight. SOCIAL SECURITY

RULING 96-2p. 

Plank requests that this matter be remanded so that the Commissioner may weigh the new

evidence in accordance with the regulations and Fifth Circuit authority. The Hearings, Appeals and

Litigation Law Manual ("HALLEX") provides that the Appeals Council will specifically address

additional evidence or legal arguments submitted to it in connection with a request for review. See

HEARINGS, APPEALS AND LITIGATION LAW MANUAL ("HALLEX"), ch. I-3-501 (June 1994). The

Appeals Council has temporarily suspended this requirement,3

 but in the present circumstances, the

lack of a more thorough discussion at the Appeals Council level hinders judicial review. Without

it, there is no confirmation that the evidence was fairly weighed in accordance with the regulations,

and there are no reasons expressed for not assigning controlling weight to a treating source opinion.

See 20 C.F.R. § 416.927(d)(2) (stating that good reasons will be given for weight assigned to a

treating source opinion). 

The Commissioner presents a number of reasons in her brief that support discounting the

opinions Witschy offered; however, the court cannot undertake de novo review of the evidence or

divine the reasons that might support an administrative decision to assign less or no weight to a

treating source opinion when the regulations and the Fifth Circuit require that those reasons first be

expressed at the administrative level. Under the circumstances, the Commissioner’s decision

constitutes legal error and is unsupported by substantial evidence because it is contradicted by a

 

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medical source opinion that is generally entitled to great weight. Reversing the decision and

remanding this matter for further administrative consideration of the evidence is appropriate.

RECOMMENDATION

It is recommended that the decision of the Commissioner be reversed and remanded for

further administrative proceedings consistent with these proposed findings of fact and conclusions

of law.

NOTICE OF RIGHT TO OBJECT TO PROPOSED

 FINDINGS, CONCLUSIONS AND RECOMMENDATION

 AND CONSEQUENCES OF FAILURE TO OBJECT

Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific

written objections in the United States District Court to the United States Magistrate Judge’s

proposed findings, conclusions and recommendation within ten (10) days after the party has been

served with a copy of this document. The court is hereby extending the deadline within which to

file specific written objections to the United States Magistrate Judge’s proposed findings,

conclusions and recommendation until November 28, 2005. The United States District Judge need

only make a de novo determination of those portions of the United States Magistrate Judge’s

proposed findings, conclusions and recommendation to which specific objection is timely made.

See 28 U.S.C. § 636(b)(1). Failure to file by the date stated above a specific written objection to a

proposed factual finding or legal conclusion will bar a party, except upon grounds of plain error or

manifest injustice, from attacking on appeal any such proposed factual findings and legal

conclusions accepted by the United States District Judge. See Douglass v. United Services Auto

Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996)(en banc).

 

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ORDER

Under 28 U.S.C. § 636, it is hereby ORDERED that each party is granted until November

28, 2005 to serve and file written objections to the United States Magistrate Judge’s proposed

findings, conclusions and recommendation. It is further ORDERED that if objections are filed and

the opposing party chooses to file a response, the response shall be filed within seven (7) days of

the filing date of the objections.

It is further ORDERED that the above-styled and numbered action, previously referred to

the United States Magistrate Judge for findings, conclusions and recommendation, be and hereby

is returned to the docket of the United States District Judge.

SIGNED NOVEMBER 4, 2005.

 /s/ Charles Bleil

________________________________

CHARLES BLEIL

UNITED STATES MAGISTRATE JUDGE

 

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