IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

RANDY SMITH, §

 §

Plaintiff, §

 § Civil Action No. 3:05-CV-1881-D

VS. §

 §

JO ANNE B. BARNHART, §

COMMISSIONER OF §

SOCIAL SECURITY, §

 §

Defendant. §

MEMORANDUM OPINION 

Plaintiff Randy L. Smith (“Smith”) brings this action under

§ 205(g) of the Social Security Act (the “Act”), 42 U.S.C.

§ 405(g), for judicial review of the final decision of the

Commissioner of Social Security (“Commissioner”) denying his

application for a period of disability and disability insurance

benefits under title II of the Act. The administrative law judge

(“ALJ”) found that Smith is not disabled because, although he

cannot perform his past relevant work, he can perform other work

existing in significant numbers in the national economy. For the

reasons that follow, the court VACATES the Commissioner’s decision

and REMANDS this case for further proceedings.

I

Smith was born in April 1962, has a high school education with

some college credits, and has previously worked as a customer

service clerk, tax examining assistant, telephone cable installer,

and self-employed pool cleaner. He applied for disability

 

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insurance benefits in November 2002, contending that he became

disabled in June 2000 due to cluster headaches and depression. His

claim was denied initially and on reconsideration, and he requested

and received a hearing before an ALJ.

The ALJ conducted hearings in April and September 2004 and

denied Smith’s claim. The ALJ concluded in a February 2005

decision that Smith is not disabled. He determined at step two of

the five-step sequential process that Smith’s headaches and

depression are severe within the meaning of 20 C.F.R. § 404.1521

(2005). He determined at step three that, although Smith exhibits

symptoms of Listing 12.04, his impairments are not sufficiently

severe to meet or equal a listing in Appendix 1, Subpart P,

Regulation No. 4. He determined at step four that Smith is unable

to perform any of his past relevant work. The ALJ concluded at

step five that Smith has the residual functional capacity (“RFC”)

to perform a significant range of medium work and that, although

Smith cannot perform the full range of medium work, he can perform

work that exists in significant numbers in the national economy and

is therefore not disabled under the Act.

Smith sought review by the Appeals Council, which denied his

request. The ALJ’s decision thus became the final decision of the

Commissioner, and Smith now seeks judicial review. In his appeal,

Smith contends the Commissioner’s decision is not supported by

substantial evidence because (1) the ALJ failed to consider all of

 

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Smith’s impairments in determining his RFC, (2) the ALJ failed to

give due consideration to the opinions expressed by the treating

physicians, (3) the ALJ failed to properly consider Smith’s

credibility, and (4) the Commissioner failed to establish the

existence of other work that Smith can perform.

II

The court’s review of the Commissioner’s decision is limited

to determining whether substantial evidence supports the decision

and whether the Commissioner applied the proper legal standards to

evaluate the evidence. Ripley v. Chater, 67 F.3d 552, 555 (5th

Cir. 1995); Martinez v. Chater, 64 F.3d 172, 173 (5th Cir. 1995)

(per curiam). “The Commissioner’s decision is granted great

deference and will not be disturbed unless the reviewing court

cannot find substantial evidence in the record to support the

Commissioner’s decision or finds that the Commissioner made an

error of law.” Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995)

(footnote omitted).

“The court may not reweigh the evidence or try the issues de

novo or substitute its judgment for that of the [Commissioner].”

Kane v. Heckler, 731 F.2d 1216, 1219 (5th Cir. 1984). “If the

Commissioner’s findings are supported by substantial evidence, then

the findings are conclusive and the Commissioner’s decision must be

affirmed.” Martinez, 64 F.3d at 173. “Substantial evidence is

‘such relevant evidence as a reasonable mind might accept as

 

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adequate to support a conclusion.’” Greenspan v. Shalala, 38 F.3d

232, 236 (5th Cir. 1994) (quoting Richardson v. Perales, 402 U.S.

389, 401 (1971)). “It is more than a mere scintilla, and less than

a preponderance.” Spellman v. Shalala, 1 F.3d 357, 360 (5th Cir.

1993) (citing Moore v. Sullivan, 919 F.2d 901, 904 (5th Cir. 1990)

(per curiam)). “To make a finding of ‘no substantial evidence,’

[the court] must conclude that there is a ‘conspicuous absence of

credible choices’ or ‘no contrary medical evidence.’” Dellolio v.

Heckler, 705 F.2d 123, 125 (5th Cir. 1983)). Even if the court

should determine that the evidence preponderates in the claimant’s

favor, the court must still affirm the Commissioner’s findings if

there is substantial evidence to support these findings. See Carry

v. Heckler, 750 F.2d 479, 482 (5th Cir. 1985). The resolution of

conflicting evidence is for the Commissioner rather than for this

court. See Patton v. Schweiker, 697 F.2d 590, 592 (5th Cir. 1983)

(per curiam).

For purposes of social security determinations, “disability”

means an inability to engage in substantial gainful activity

because of any medically determinable physical or mental impairment

or combination of impairments that could be expected either to

result in death or to last for a continuous period of not fewer

than 12 months. 42 U.S.C. § 423(d)(1)(A). To determine whether a

claimant is disabled, the Commissioner uses a five-step sequential

inquiry. Leggett, 67 F.3d at 563; Martinez, 64 F.3d at 173-74.

 

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The Commissioner must consider whether (1) the claimant is

presently working; (2) the claimant’s ability to work is

significantly limited by a physical or mental impairment; (3) the

claimant’s impairment meets or equals an impairment listed in

Appendix 1, Subpart P, Regulation No. 4; (4) the impairment

prevents the claimant from doing past relevant work; and (5) the

claimant cannot presently perform relevant work that exists in

significant numbers in the national economy. Leggett, 67 F.3d at

563 n.2; Martinez, 64 F.3d at 173-74; 20 C.F.R. § 404.1520 (2005).

“The burden of proof is on the claimant for the first four steps,

but shifts to the [Commissioner] at step five.” Bowling v.

Shalala, 36 F.3d 431, 435 (5th Cir. 1994) (per curiam) (citing

Anderson v. Sullivan, 887 F.2d 630, 632-33 (5th Cir. 1989) (per

curiam)). At step five, once the Commissioner demonstrates that

other jobs are available to a claimant, the burden of proof shifts

to the claimant to rebut this finding. Selders v. Sullivan, 914

F.2d 614, 618 (5th Cir. 1990) (per curiam).

When determining the propriety of a decision of “not

disabled,” this court’s function is to ascertain whether the record

considered as a whole contains substantial evidence that supports

the final decision of the Commissioner, as trier of fact. The

court weighs four elements of proof to decide if there is

substantial evidence of disability: (1) objective medical facts;

(2) diagnoses and opinions of treating and examining physicians;

 

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1Smith initially contends that the ALJ failed to consider all

his impairments in determining his RFC. He first argues that the

ALJ omitted certain facts contained in an evaluation by J. Lawrence

Muirhead, Ph.D. Smith also maintains that, although the ALJ

concluded that his depression resulted in a mild degree of

limitation in activities of daily living, mild limitation in

maintaining concentration, persistence, or pace, and one or two

episodes of decomposition, in posing his hypothetical questions to

the vocational expert, he did not ask the witness to consider these

limitations. The court does not rely on these arguments in

deciding this appeal and expresses no opinion on their merit.

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(3) the claimant’s subjective evidence of pain and disability; and

(4) age, education, and work history. Martinez, 64 F.3d at 174

(citing Wren v. Sullivan, 925 F.2d 123, 126 (5th Cir. 1991) (per

curiam)).

“The ALJ has a duty to develop the facts fully and fairly

relating to an applicant’s claim for disability benefits.” Ripley,

67 F.3d at 557. “If the ALJ does not satisfy [this] duty, [the]

decision is not substantially justified.” Id. Reversal of the

ALJ’s decision is appropriate, however, “only if the applicant

shows that he was prejudiced.” Id. The court will not overturn a

procedurally imperfect administrative ruling unless the substantive

rights of a party have been prejudiced. See Smith v. Chater, 962

F. Supp. 980, 984 (N.D. Tex. 1997) (Fitzwater, J.).

III

A

Smith contends the ALJ did not consider the extent to which

his headaches impact his ability to perform medium work.1 He notes

 

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that the ALJ found that he has headaches that are “severe” within

the meaning of the regulations. That is, according to the ALJ’s

opinion, Smith has cluster headaches that significantly limit his

ability to perform basic work activities. See R. 27 (citing 20

C.F.R. § 404.1521; Stone v. Heckler, 752 F.2d 1099 (5th Cir. 1985);

Policy Interpretation Ruling Titles II and XVI: Considering

Allegations of Pain and Other Symptoms in Determining Whether a

Medically Determinable Impairment is Severe, SSR 96-3p, 1996 WL

374181 (July 2, 1996). Smith maintains that the ALJ never

indicated, however, to what extent these severe headaches impact

Smith’s ability to perform work-related activities, and that the

ALJ merely concluded that Smith could perform medium work without

explaining how the headaches would restrict him from performing

work at that level or at greater levels of exertion. Smith thus

posits that the ALJ failed to consider all his vocationally

significant impairments, even those that the ALJ recognized exist.

The Commissioner responds that the ALJ did consider the impact

of Smith’s headaches because he determined that Smith could not

climb ropes or ladders and should avoid working around hazardous

machinery and outside in the sunlight. She reasons that, although

the ALJ did not specifically state in his decision that these

restrictions were in response to Smith’s headaches, he properly

assessed all of Smith’s impairments because Smith testified at the

hearing that the light hurts his eyes, and he reported to his

 

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treating physicians that he experienced dizziness and blackouts

associated with his headaches.

In his reply brief, Smith argues that the Commissioner has not

established that the restrictions on climbing ropes and ladders and

working around hazardous machinery and in the sunlight are the only

ones that apply to someone who experiences severe, debilitating

headaches. Smith posits that, had the ALJ properly considered all

his functional limitations, he would not have determined that Smith

can perform a significant range of medium work.

B

Even if the ALJ’s determination that Smith can perform a

significant range of medium work is erroneous, the court cannot

reverse the decision on this ground unless Smith is prejudiced by

the error. See Ripley, 67 F.3d at 557. The ALJ found that Smith

could lift up to 50 pounds occasionally and up to 25 pounds

frequently, sit six hours out of an eight-hour workday, and

stand/walk six hours out of an eight-hour workday, with the

additional limitations that his work not involve climbing ropes or

ladders, being around hazardous machines, or working outside in the

sunlight. Based on these limitations, the ALJ concluded that Smith

has the RFC to perform a significant range of medium work, which is

defined as work that “involves lifting no more than 50 pounds at a

time with frequent lifting or carrying of objects weighing up to 25

pounds.” 20 C.F.R. § 404.1567(c) (2005). The ALJ also concluded

 

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that, although Smith’s additional limitations——i.e., the

limitations on climbing, hazardous machinery, and sunlight——prevent

him from performing the full range of medium work, he can

nonetheless perform “work that exists in significant numbers in the

national economy.” R. 31. The ALJ stated that he based this

determination on the testimony of the vocational expert (“VE”).

At the hearing, the ALJ asked the VE to consider a

hypothetical claimant with the same age, education, and past work

as Smith. The ALJ’s hypothetical assumed that the claimant had the

RFC to lift 50 pounds occasionally, 25 pounds frequently, sit six

hours per day, and stand or walk six hours per day, with the

additional limitations that the claimant could not climb ladders or

ropes, would have to avoid hazards, and would have to avoid working

outside in sunlight. The hypothetical claimant also had the

ability to understand, remember, and follow simple one, two, threestep instructions and complete repetitive tasks, but would be

required to avoid complex instructions. The ALJ asked whether

there were positions in the region or national economy that the

hypothetical claimant could perform. The VE responded that the

hypothetical claimant could not perform Smith’s past relevant work.

But he could perform the full range of unskilled sedentary

occupations and approximately 75 percent of unskilled light

occupations, although he would be precluded from performing

approximately 90 percent of unskilled medium occupations.

 

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The VE’s conclusion that a hypothetical claimant with Smith’s

RFC, as determined by the ALJ, would be precluded from performing

approximately 90 percent of unskilled medium work appears to

contradict the ALJ’s conclusion that Smith could perform a

significant range of medium work. But even assuming arguendo that

the ALJ’s finding regarding Smith’s ability to perform medium work

is not supported by substantial evidence, Smith has not shown that

this error prejudiced him. The VE testified that a hypothetical

claimant with Smith’s RFC, as determined by the ALJ, could perform

the full range of unskilled sedentary work and approximately 75

percent of unskilled light work. The ALJ noted this in his

decision and cited specific examples of unskilled sedentary and

light work as the type Smith could perform. Provided the ALJ’s

determination of Smith’s RFC is supported by substantial evidence,

the ALJ was entitled to conclude that Smith is not disabled because

there was substantial evidence at step five that Smith can perform

a significant numbers of jobs in the national economy.

C

1

The ALJ did not consider all of Smith’s limitations, however,

when he determined Smith’s RFC. “The ALJ has a duty to develop the

facts fully and fairly relating to an applicant's claim for

disability benefits. If the ALJ does not satisfy his duty, his

decision is not substantially justified.” Ripley, 67 F.3d at 557

 

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2As the court explains infra at § IV(B), the ALJ improperly

rejected Dr. Budihardjo’s opinion outright rather than consider it

together with the other medical evidence to determine to what

extent Smith’s headaches would cause him to miss work.

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(footnote omitted). Here, although the ALJ found that Smith has

severe cluster headaches, he did not in determining Smith’s RFC

consider the extent to which the headaches would prevent Smith from

completing a normal workday or workweek.

The record evidence demonstrates that Smith had a seven-year

history of severe, debilitating cluster headaches. Although at

times Smith has experienced improvement due to medication, the

headaches persist and can be as frequent as two to three times or

more per week and can last several hours. Smith is treated with

heavy injections of Imitrex and with oxygen. The medical records

refer to Smith’s headaches as “severe,” R. 224, 266, 301, 363, and

“debilitating,” R. 149, 301, 302, 304, 312, 339. And Imawati

Budihardjo, M.D. (“Dr. Budihardjo”) stated in a May 28, 2004

Physical Residual Functional Capacities Questionnaire (“PRFC

Questionnaire”) that Smith’s impairments——i.e., headaches and

depression——would likely require him to be absent from work due to

the impairments or treatment about four days per month. Although

Dr. Budihardjo noted that he could not evaluate fully this matter,

his selection of the frequency of about four days per month is the

second most severe of the six responses listed on the PRFC

Questionnaire.2 Thus although Smith may be able to perform

 

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sedentary or light work during much of the workweek, the evidence

available to the ALJ demonstrates that Smith is incapacitated or at

least unable to work while he is suffering from, or undergoing

treatment for, an impairment, including a debilitating headache.

In determining Smith’s RFC, the ALJ did not fully and fairly

develop the extent to which his impairments would cause him to be

absent from work or unable to work for a period of time.

2

Smith has demonstrated that he was prejudiced by this error

because, had the ALJ made a determination regarding Smith’s ability

to complete a normal workday or workweek, he might have concluded

that Smith is disabled. See Ripley, 67 F.3d at 557 n.22

(“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.”) (citing Kane, 731 F.2d at 1220)). At the hearing, the

ALJ posed a second hypothetical to the VE, in which he asked the VE

to assume that the claimant had all the same abilities and

limitations as the person in the first hypothetical, with the

additional limitation that the claimant would not have the ability

to sustain an eight-hour workday or a 40-hour workweek and would

have frequent absences due to medical problems. The VE testified

that this hypothetical claimant would be precluded from competitive

employment due to issues such as attendance and absenteeism

 

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concerns. Thus once limitations on Smith’s ability to sustain a

full workday or workweek are included in the RFC, there is a

question whether the Commissioner has established at step five that

Smith is capable of performing work available in significant

numbers in the national economy.

IV

Smith also contends that the ALJ failed to give due

consideration to the opinions expressed by his treating physicians.

He maintains that the ALJ improperly rejected the opinions of Dr.

Budihardjo, Bettina Fehr, M.D., Anwarul Haq, M.D. (“Dr. Haq”), and

Sean Milligan, M.D. (“Dr. Milligan”).

A

The court first considers the opinions of Drs. Milligan and

Haq. Dr. Milligan, a physician at the Dallas Veterans Affairs

Medical Center (“VA”), where Smith was treated, hand wrote an April

4, 2004 letter addressed “To Whom It May Concern.” Dr. Milligan

stated that Smith “has been diagnosed with intractable chronic

cluster headaches,” and he opined that Smith “has been suffering

with these for over seven years, and their severity is such that

they are both physically and emotionally debilitating to the point

that he is unable to maintain gainful employment.” R. 149. Dr.

Haq, a VA staff neurologist, completed an October 29, 2002 form on

which he concluded that Smith was “NOT ABLE TO WORK” due to his

cluster headaches. Id. at 288. Smith alleges that the ALJ failed

 

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to consider Drs. Milligan’s and Haq’s opinions and did not provide

a basis for rejecting the opinions.

“[T]he opinion and diagnosis of a treating physician should be

afforded considerable weight in determining disability.” Newton v.

Apfel, 209 F.3d 448, 455 (5th Cir. 2000). Normally, absent other

reliable medical evidence from a treating or examining physician

controverting the treating physician’s opinion, the ALJ must

consider each of the six factors set out in 20 C.F.R.

§ 404.1527(d)(2) (2005) prior to rejecting the treating physician’s

opinion. Id. at 453. The ALJ may assign a treating physician’s

opinion little or no weight, however, when the opinion is

conclusory. See id. at 455. The ALJ must consider the six factors

only with respect to treating physicians’ medical opinions, and a

determination that a claimant is disabled or unable to work is a

legal conclusion reserved to the Commissioner. Frank v. Barnhart,

326 F.3d 618, 620 (5th Cir. 2003) (per curiam).

Dr. Milligan’s statement that Smith is “unable to maintain

gainful employment,” R. 149, and Dr. Haq’s statement that Smith is

not able to work are legal conclusions reserved to the

Commissioner, not medical opinions entitled to deference.

Accordingly, assuming that the ALJ rejected or did not give great

weight to these opinions, he did not reversibly err in doing so.

 

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3Although it is not clear from the record, it could be that

Dr. Budihardjo did not consider himself to be the treating

physician because he was a resident, not an attending, physician.

[R. 364]

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B

The ALJ rejected the opinion of Dr. Budihardjo, who reported

in a May 28, 2004 PRFC Questionnaire that Smith has episodes of

severe debilitating cluster headaches, that he was being treated by

the Neurology Department for his headaches and by the Mental Health

Department for depression, and estimated that Smith’s impairments

would require him to be absent from work about four days per month

(although he noted that he could not evaluate this fully). The ALJ

rejected Dr. Budihardjo’s opinion on the basis that this physician

did not treat Smith for his cluster headaches. R. 29 (“I reject

the opinion in exhibit 7F. The doctor’s opinion appears to rely in

part on an assessment of an impairment(s) for which the claimant

received no treatment from that doctor.”).

Smith posits that Dr. Budihardjo was a treating physician

because he treated Smith on November 21, 2003 and in March 2004.

But Dr. Budihardjo noted in the PRFC Questionnaire that he did not

treat Smith for his cluster headaches.3 Rather, for a period of

several years, several other VA physicians treated Smith for his

headaches. Although Smith primarily obtained medical care at the

VA, he did not necessarily see the same physician each time.

Instead, he saw doctors in the Neurology Department for his

 

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4Assuming there are on average approximately 22 workdays per

month, a person who is absent four days misses work about 20

percent of the time.

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headaches, psychologists in the Mental Health Department for his

depression, and staff physicians or residents for other ailments.

It appears that, in responding to the PRFC Questionnaire, Dr.

Budihardjo compiled information from the reports of several

physicians to generate his opinion.

The rationale for affording great weight to the medical

opinion of a treating physician is that he is most “familiar with

the claimant’s impairments, treatments[,] and responses.” Newton,

209 F.3d at 455. Because Dr. Budihardjo did not treat Smith for

his cluster headaches, the ALJ was not required to give the

doctor’s opinion great weight. See id. 

This is not necessarily a reason, however, to reject the

opinion altogether. “The ALJ is free to reject the opinion of any

physician when the evidence supports a contrary conclusion.” Id.

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

neither the ALJ’s decision nor the Commissioner’s brief directs the

court to substantial medical evidence that is inconsistent with Dr.

Budihardjo’s opinion that Smith’s cluster headaches would cause him

to be absent from work perhaps 20 percent of the time.4 On remand,

when the ALJ determines the extent to which Smith’s headaches

impact his ability to complete a normal workday or workweek, the

ALJ should consider Dr. Budihardjo’s opinion with the remaining

 

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medical evidence. The ALJ is not required to give the opinion

great weight and is free to reject it if the evidence supports a

contrary conclusion, but he cannot reject it solely on the ground

that Dr. Budihardjo is not a treating physician.

V

Because the ALJ failed to develop the facts fully and fairly

in determining Smith’s RFC, the court concludes that the decision

that Smith can perform work generally available in the national

economy is not supported by substantial evidence. Smith has

demonstrated that he was prejudiced by this error. Accordingly,

the Commissioner’s decision must be vacated.

Smith raises other issues on appeal, but the court does not

address them because the Commissioner’s decision on remand may

render them moot. On remand, however, the ALJ is free to revisit

these issues in his decision.

* * *

The Commissioner’s decision is VACATED and this case is

REMANDED to the Commissioner for further proceedings consistent

with this memorandum opinion.

July 11, 2006.

_________________________________

SIDNEY A. FITZWATER

UNITED STATES DISTRICT JUDGE

 

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