Memorandum Opinion and Order- Page 1

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

BRENDA O. GITTENS, §

§

Plaintiff, §

§

v. § Civil Action No. 3:04-CV-2363-L

§

MICHAEL J. ASTRUE, §

COMMISSIONER OF THE SOCIAL §

SECURITY ADMINISTRATION, §

§

Defendant. §

MEMORANDUM OPINION AND ORDER

This is a social security case. Plaintiff Brenda O. Gittens (“Plaintiff” or “Gittens”) filed this

action seeking judicial review of a final decision of the Commissioner of Social Security (the

“Commissioner”), who denied her application for disability benefits under Title II of the Social

Security Act. Pursuant to 28 U.S.C. § 636(b), and an order of the court in implementation thereof,

the case was referred to United States Magistrate Judge Irma C. Ramirez, for review and submission

of proposed findings of fact and recommendation for disposition. On May 19, 2007, the magistrate

judge filed her Findings, Conclusions and Recommendations (the “Report”), in which she

recommended that the court affirm the Commissioner’s decision and dismiss Plaintiff’s Complaint.

Plaintiff filed timely objections to the Report. 

After an independent review of the pleadings, file, record, applicable law, the magistrate

judge’s findings and conclusions, and consideration of Plaintiff’s Objections, the court determines

that, as set forth fully below, the magistrate judge’s finding that remand is not warranted is incorrect,
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and hereby rejected. Accordingly, the court remands this case to the Commissioner for further

proceedings consistent with this order.

I. Factual and Procedural Background

Plaintiff seeks judicial review of a final decision by the Commissioner denying her claim for

disability benefits under Title II of the Social Security Act. On February 8, 2001, Gittens filed an

application for Social Security disability benefits, alleging disability due to a shoulder and neck

injury. On April 16, 2002, the Administrate Law Judge (“ALJ”) held a hearing on Gittens’s

application and she personally appeared and testified. The ALJ issued an unfavorable decision on

April 16, 2002. Gittens filed a request for review of this decision and the Appeals Council denied

her request on September 1, 2004. The ALJ’s decision, therefore, became the final decision of the

Commissioner. Plaintiff filed this action on November 3, 2004, pursuant to 42 U.S.C. § 405(g),

contending that the Commissioner’s determination that she was not entitled to disability benefits was

not supported by substantial evidence on the entire record. 

II. Analysis

A. Legal Standard

Judicial review in a social security case is limited to a determination of whether the ALJ’s

decision to deny benefits is: (1) supported by substantial evidence and (2) whether the proper legal

standard was applied. Austin v. Shalala, 994 F.2d 1170, 1147 (5th Cir. 1993). Substantial evidence

is defined as relevant evidence that a reasonable mind would accept as sufficient to support a

conclusion. Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994), cert. denied, 514 U.S. 1120

(1995) (citing Richardson v. Perales, 402 U.S. 389, 401 (1977)). It is more then a scintilla, but less

than a preponderance. Perales, 402 U.S. at 401; Haywood v. Sullivan, 888 F.2d 1463, 1466 (5th Cir.
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1989). The district court may not reweigh the evidence or substitute its own judgment for that of

the Commissioner. Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988). The court must

scrutinize the record, however, to ascertain whether substantial evidence supports the

Commissioner’s findings. Hollis v. Bowen, 837 F.2d 1378, 1383 (5th Cir. 1988). A finding of no

substantial evidence is appropriate only when there is no medical evidence or credible evidentiary

choices in the record to support the Commissioner’s decision. Johnson, 864 F.2d at 343-44;

Gutierrez v. Barnhart, 2005 WL 1994289 at *7 (5th Cir. Aug. 19, 2005). If the findings are

supported by substantial evidence, “they are conclusive and must be affirmed.” 42 U.S.C. § 405(g).

A disabled worker is entitled to monthly benefits under the Social Security Act if certain

conditions are met. 42 U.S.C. § 423(a). The Act defines “disability” as the inability to engage in

substantial gainful activity by reason of any medically determinable physical or mental impairment

that can be expected to result in death or last for a continued period of twelve months. Id. §

423(d)(1)(A); Cook v. Heckler, 750 F.2d 391, 393 (5th Cir. 1985).

The Commissioner has promulgated a five-step sequential process to be used by hearing

officers in disability cases. See 20 C.F.R. § 404.1520(b)-(f); Wren v. Sullivan, 925 F.2d 123, 125

(5th Cir. 1991). The hearing officer is required to ascertain: (1) whether the claimant is currently

engaging in substantial gainful activity; (2) whether the claimant has a severe impairment; (3)

whether the claimant has an impairment that “meets or equals a listed impairment in Appendix 1”

of the regulations; (4) if the claimant has a “severe impairment” under the regulations, whether the

claimant can perform his past work despite any limitations; and (5) if the claimant does not have the

residual functional capacity to perform past work, whether the claimant can perform any other

gainful and substantial work in the economy, considering his age, education, work experience, and
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residual functional capacity. 20 C.F.R. § 404.1520. In the first four steps of the evaluation process,

the claimant bears the burden of proving disability. Bowen v. Yuckert, 482 U.S. 137, 146 (1987).

The burden then shifts to the Commissioner at the fifth step to show that the claimant is capable of

performing work in the national economy. Id. 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 that the claimant is disabled or not disabled at any point in the

five-step review is conclusive and terminates the analysis. Lovelace v. Bowen, 813 F.2d 55, 58 (5th

Cir. 1987). 

B. The ALJ’s Decision

Pursuant to the five-step sequence required by 20 CFR § 303.1520, the ALJ found first that

Gittens is not currently engaging in substantial gainful activity because she has not worked since

August 17, 2000, the alleged onset date of disability. Tr. 13. The ALJ next concluded that Gittens

has a severe impairment pursuant to the second step. Id. Under the third step, the ALJ determined

that Gittens’s impairment does not meet or equal a listed impairment in Appendix 1 of the

regulations. Id. At the fourth step, whether Gittens has the residual functional capacity to perform

her past relevant work, the ALJ concluded that she did not. Id. at 15. On the final step of the

sequence, whether Gittens has the residual functional capacity to perform other work, the ALJ

concluded that she could. Id. Accordingly, the ALJ concluded that Gittens was not disabled and

therefore not entitled to disability insurance benefits. Id. at 17. At the hearing, Gittens, medical

expert George W. Weilepp, M.D., and vocational expert Donna Humphries testified. Id. at 12.

Gittens was represented by an attorney. Id. 
Memorandum Opinion and Order- Page 5

C. The Magistrate Judge’s Report

Gittens made two arguments disputing the ALJ’s conclusions before the magistrate judge:

(1) the medical expert testified that she was entitled to a closed period of disability; and (2) the ALJ

failed to apply the appropriate legal standard in finding that Gittens retains the residual functional

capacity to list 20 pounds, stand/walk for six hours, and sit for six hours during an eight-hour

workday. The magistrate judge rejected both of these arguments and recommended affirming the

Commissioner’s decision and dismissing Gittens’s case. Because Gittens’s objections to the

magistrate judge’s report focus on the second argument, the court only considers the arguments

relating to that contention. 

On the second issue, the magistrate judge found that the ALJ applied the appropriate legal

standard in determining Gittens’s residual functional capacity. The magistrate judge determined that

the ALJ did not “summarily reject[]” the opinions of Dr. Rosenstein, Plaintiff’s treating physician.

Report 18. The magistrate judge also found that the ALJ accorded proper weight to Dr. Rosenstein’s

medical opinions. Id. at 23. Finally, the court rejected Plaintiff’s argument that she suffered

prejudice from the ALJ’s treatment of Dr. Rosenstein’s decision. Accordingly, the magistrate judge

recommended affirming the Commissioner’s final decision. 

D. Plaintiff’s Objection

Gittens has objected to the Report on the second issue, whether the ALJ applied the correct

legal standard in determining her residual functional capacity and whether she experienced prejudice

from the ALJ’s alleged failure to do so. The Commissioner did not respond to Plaintiff’s objections.

The dispute in this case is based on a difference between information on a physical

assessment questionnaire filled out by Dr. Rosenstein, Gittens’s treating neurosurgeon, and the
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testimony of the non-examining medical expert at the April 2002 hearing. In September 2001, Dr.

Rosenstein filled out a questionnaire and stated that during an eight-hour workday, Gittens could:

(1) sit for 2 hours; stand/walk for 3 hours, and lie down/recline for 3 hours. Tr. 237. He also stated

that she could lift and carry up to 10 pounds occasionally. Id. at 237-38. The doctor also opined

that Gittens could not bend, squat, crawl, climb, reach up, stoop, crouch, or kneel. Id. at 238-39.

To the contrary, Dr. Weilepp, the medical expert, stated that “she’d be capable of restricted light

handling up to 20 pounds occasionally, but not overhead. 10 pounds frequently.” Id. at 378. He

also stated that Gittens could sit for 6 hours cumulatively during a day and that she could “stand and

walk six hours of 90 to 120 minutes [at a time], but no continuous or frequent overhead.” Id. 

In making his decision, the ALJ considered both Dr. Rosenstein and the medical expert’s

opinions. The ALJ went through Gittens’s medical history and referred both to notes and records

from Dr. Rosenstein and a chiropractor. Id. at 14. He noted the opinions and reports made by Dr.

Rosenstein throughout his treatment of Gittens. Id. Nothing in the ALJ’s decision references the

September 2001 questionnaire filled out by Dr. Rosenstein. After outlining Gittens’s medical

history, the ALJ states: “Dr. Weilepp opined that the claimant should not lift more than 20 pounds

occasionally or 10 pounds frequently and should avoid repetitive fine manipulation, and to not

perform any overhead work.” Id. 

In finding that Gittens had the residual functional capacity to perform other work, the ALJ

relied upon the testimony of the vocational expert. The limitations put forth by the ALJ in his

hypothetical questions to Ms. Humphries included “the residual functional capacity for light work,

limited by the inability to reach overhead, and no requirement to crawl, climb or crouch, or do any

bending, stopping or highly repetitive fine motor manipulation on more than an occasional basis.”
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Id. at 15. Ms. Humphries testified that such an individual could perform the jobs of machine tender

or gate guard. Id. The ALJ accepted the vocational expert’s testimony and concluded that Gittens

is not disabled. Id. 

Gittens argues that the ALJ did not given Dr. Rosenstein’s medical opinions controlling

weight, and that therefore he was obligated to weigh the opinions using the factors set forth in 20

C.F.R. § 404.1527(d): length of the treatment relationship and the frequency of examination; nature

and extent of the treatment relationship; supportability; consistency; specialization; and other

factors. Gittens argues that the ALJ had a duty to apply these factors in weighing Dr. Rosenstein’s

opinions and relies upon Newton v. Apfel, 209 F.3d 448 (5th Cir. 2000), in support.

In Newton, the court held:

[A]bsent 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). 

209 F.3d at 453 (emphasis in original). Gittens argues that the ALJ rejected her treating physician’s

medical opinion regarding her limitations on sitting, standing, lifting, and carrying. She contends

that Dr. Rosenstein’s opinions regarding her specific limitations are separate medical opinions that

were rejected by the ALJ when he based his decision on the medical expert’s conflicting testimony.

Pursuant to a Social Security ruling:

Medical source statements are medical opinions submitted by

acceptable medical sources, including treating sources and

consultative examiners, about what an individual can still do despite

a sever impairment(s), in particular about an individual’s physical or

mental abilities to perform work-related activities on a sustained

basis. 
Memorandum Opinion and Order- Page 8

Medical source statements submitted by treating sources provide

medical opinions which are entitled to special significance and may

be entitled to controlling weight on issues concerning the nature and

severity of an individual’s impairment(s). Adjudicators must

remember, however, that medical source statements may actually

comprise separate medical opinions regarding diverse physical and

mental functions, such as walking, lifting, seeing, and remembering

instructions, and that it may be necessary to decide whether to adopt

or not adopt each one.

SSR 96-5P, 1996 WL 374183, *4 (emphasis added).

The magistrate judge determined that the ALJ did not “summarily reject[]” Dr. Rosenstein’s

opinions and notes the many references to the physician’s diagnosis and treatment of Gittens. The

report also states that at the hearing, the parties discussed the notations on the checklist, and that the

ALJ incorporated some of the restrictions in the attorney-created checklist into the hypothetical

questions posed to the vocational expert. Tr. 372-73, 391-95. The magistrate judge notes that in

the written decision, the ALJ included some of the checklist restrictions in his description of

Gittens’s residual functional capacity. Report 20. The magistrate judge also relies on Falco v.

Shalala, 27 F.3d 160, 164 (5th Cir. 1994), for the proposition that the ALJ does not need to

specifically discuss all the evidence that supports his or her decision or all the evidence that was

rejected. 

Gittens responds that the magistrate judge misreads Falco, and that its holding is limited to

an ALJ’s duty to articulate reasons for rejecting subjective complaints of pain. She also points to

two more recent decisions in this circuit that hold that an ALJ is required to explain why he or she

is rejecting the medical opinion of a treating physician. See Loza v. Apfel, 219 F.3d 378, 395 (5th

Cir. 2000) (“No good cause appears in the ALJ opinion or in the record to justify the ALJ's failure

to give ‘considerable weight’ to the treating doctors’ medical evidence.”) (citations omitted); Myers
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v. Apfel, 238 F.3d 617, 621 (5th Cir. 2001) (“The ALJ never presented good cause as to why he

rejected [the treating physician’s] opinion that Myers could sit for only four hours, and he never

professed to having weighed the evidence and credibility of the conflicting evidence. The ALJ

failed to accord considerable weight to the treating physicians’ opinions, diagnoses, and medical

evidence, without subjecting them to the above analysis or showing good cause for not giving them

considerable weight.”).

The court determines that Gittens is correct and Dr. Rosenstein’s medical opinions regarding

her ability to sit, stand, lift, and carry are separate medical opinions that ultimately were rejected by

the ALJ. The ALJ’s decision, however, does not address Dr. Rosenstein’s opinions as stated in the

questionnaire. The court further finds that the ALJ had a duty to explain why these medical opinions

from a treating physician were rejected and to conduct the analysis required by 20 C.F.R. §

404.1527(d)(2), and that the magistrate judge’s reliance on Falco was misplaced.

Two final arguments must be addressed. First, the magistrate judge found that the ALJ’s

disregard of Dr. Rosenstein’s opinions on Gittens’s limitations was warranted, in part, because the

checklist was conclusory and other circuits have held that they are not entitled to controlling weight.

Gittens argues that the Fifth Circuit has in fact allowed the use of such checklists, and that the cases

cited by the magistrate judge are distinguishable because in each case the ALJ explained that the

information on the checklist was inconsistent with other medical evidence. See Santiago-Rivera v.

Barnhart, 2006 WL 2794189, *8-9 (E.D. Pa. Sept. 26, 2006); Mann v. Barnhart, 2005 WL 1995447,

*5 (W.D. Va. Aug. 15, 2005). The court finds that these cases are distinguishable, and that there

is no binding authority requiring the court to reject a checklist as a medical opinion. While on
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remand, an ALJ may find that the checklist is inconsistent with other medical evidence, but that

determination must be made by the ALJ, not the court.

Finally, the court determines that Gittens has demonstrated prejudice due to the ALJ’s failure

to consider Dr. Rosenstein’s opinions about her limitations. “Prejudice can be established by

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

record, and that the additional evidence might have led to a different decision.” Ripley v. Chater,

67 F.3d 552, 557, n.22 (5th Cir. 1995). During the hearing, the vocational expert testified that a

hypothetical individual with the same age, education, past relevant work experience, and the

limitations listed in the questionnaire would not be able to engage in a full-time competitive job in

the regional or national economy. Tr. 395. If the ALJ had relied on this hypothetical, he might have

concluded that Gittens lacked the residual functional capacity for any work and was therefore

disabled.

III. Conclusion

For these reasons, the court sustains Plaintiff’s objection to the magistrate judge’s finding

that remand is not warranted in this case. Gittens has shown that the ALJ failed to explain why he

rejected Dr. Rosenstein’s medical opinions as to her limitations as required by 20 C.F.R. §

404.1527(d). Accordingly, the court rejects the magistrate judge’s conclusion that remand is not

warranted, reverses the final decision of the Commissioner denying disability benefits, and

remands this case to the Commissioner for further proceedings consistent with this order.

It is so ordered this 29th day of February, 2008.

_________________________________

Sam A. Lindsay

United States District Judge