IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

TIMOTHY D. PARHAM, §

 §

Plaintiff, §

 § Civil Action No. 3:05-CV-1043-D

VS. §

 §

JO ANNE B. BARNHART, §

COMMISSIONER OF SOCIAL §

SECURITY, §

 §

Defendant. §

MEMORANDUM OPINION

Plaintiff Timothy D. Parham (“Parham”) 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 Parham is not disabled because he retains the

residual functional capacity (“RFC”) to perform his past relevant

work, as it is performed in the national economy. For the reasons

that follow, the court affirms in part, and vacates and remands in

part, the Commissioner’s decision.

I

Parham was born in November 1958, has a high school education,

and has previously worked as a photographer, furniture

restorer/refinisher, courier, and maintenance person. He applied

for disability insurance benefits in May 1999, contending that he

 

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became disabled in November 1998 due to a back injury and a mental

impairment. His claim was denied initially and on reconsideration,

and he requested and received a hearing before an ALJ. The ALJ

conducted hearings in 2000 and 2001 and denied his claim. Parham

sought review, and in 2002 the Appeals Council remanded for another

hearing. Following a third hearing in 2003, the ALJ again denied

his claim.

The ALJ concluded in a written decision that Parham was not

disabled. He determined at step four of the five-step sequential

process that Parham has the RFC to perform light work activity

because he can stand and walk for two or more hours a day and

perform the basic mental demands of competitive, remunerative,

unskilled work. The ALJ concluded that Parham’s RFC does not

prevent him from performing his past relevant work as a

photographer, as generally performed in the national economy, and

that he therefore is not disabled under the Act.

Parham sought review by the Appeals Council, which denied his

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

Commissioner, and Parham now seeks judicial review.

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

 

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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

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

 

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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.

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,

 

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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;

(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

 

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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

Parham contends the ALJ erred in rejecting the opinions of

Parham’s treating physicians and in failing to acknowledge all

restrictions imposed by the treating and other physicians. He

addresses first the opinion of Juan Macho, M.D. (“Dr. Macho”), who

treated him for his back problems. 

A

Parham began seeing Dr. Macho for his back pain in June 1995

and continued under his care through at least August 2002. Dr.

Macho diagnosed Parham with degenerative disc disease. In June

2000 Dr. Macho assessed Parham as having the ability to sit only

for two hours out of an eight-hour workday, stand and/or walk for

less than one hour out of an eight-hour workday, lift up to 10

pounds occasionally, and rarely or never lift more than 10 pounds.

Dr. Macho found in a Physical Capacities Evaluation that Parham’s

impairment would last indefinitely. These restrictions would

indicate that Parham is unable to perform light work, which is

defined as work that “involves lifting no more than 20 pounds at a

time with frequent lifting or carrying of objects weighing up to 10

pounds” or that may “require[ ] a good deal of walking or standing,

or . . . sitting most of the time.” 20 C.F.R. § 404.1567(b)

 

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(2005). 

The ALJ rejected Dr. Macho’s opinion in part because he found

that it “was based on [Parham’s] exaggerated self-reports.” R. 30.

The ALJ based this conclusion on an interview Parham had with David

E. Faris, Ph.D. (“Dr. Faris”), a psychologist Parham saw in

December 2000. The ALJ summarized Dr. Faris’ evaluation as

follows:

Dr. Faris’ description of the interview with

[Parham] did not demonstrate [Parham] was

experiencing chronic pain with his logical

thinking and decisions. [Parham] remarked how

he was glad to have someone to “talk to” and

even discussed at that time his finances and

having another roommate to help defray

expenses. Dr. Faris remarked how [Parham] had

had no recent panic attack, but he stated how

[Parham’s] physical condition was his primary

disabling condition.

Id.

The ALJ also declined to accept Dr. Macho’s opinion because he

afforded great weight to the opinion of Dubose Murray, M.D. (“Dr.

Murray”), a consulting physician who examined Parham in July 2000.

In his report, Dr. Murray concluded that Parham’s X-rays indicated

a “noted narrowing of the L4-L5 interspace and some osteophytic

lipping of a mild nature on the lateral view of L4-L5 also between

L3 and L4 without any particular joint narrowing noted.” Id. at

521. He also observed that “[t]here is no evidence of

spondylolysis or spondylolisthesis noted.” Id. Dr. Murray’s

impression was that Parham had a “[n]arrowing of the L4-L5

 

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1

Parham contends it is unclear how long Dr. Murray believed he

could stand and/or walk because of changes he made in the Medical

Assessment Form. He maintains that if this was unclear to the ALJ,

he should have recontacted Dr. Murray for clarification of this

point, pursuant to the requirements of 20 C.F.R. § 404.1512(e)(1).

After reviewing the Medical Assessment Form, however, it is clear

that Dr. Murray checked both the circle that states “At least 2

hours in an 8 hour workday” and the circle that states “About 6

hours in an 8 hour workday” and handwrote the word “to” between the

circles, indicating that he believed Parham could stand or walk for

at least two and no more than about six hours in a workday. See R.

526.

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interspace with minor osteoarthritic lipping noted.” Id. He

concluded that “[w]hile the physical findings are not remarkable in

reference to reflexes, motor weakness or sensory changes,” Parham

was “having back difficulty and pain at this time.” Id. Dr.

Murray recommended that Parham request a myelographic examination

and stated that “[i]f the myelogram showed occult surgical

pathology, this could be addressed. Otherwise, if it were not

remarkable, then continued conservative treatment would be

recommended.” Id. at 522. Dr. Murray assessed Parham as having

the ability to lift and/or carry up to 20 pounds frequently, to

stand or walk for two to six hours in an eight-hour day, and to sit

for fewer than six hours in an eight-hour workday. Id. at 526.1

The ALJ also discussed other evidence in the record. He

mentioned that in May 1999 a chiropractor had indicated that Parham

could not perform more than sedentary work, but the ALJ noted that

Parham had not yet reached maximum medical improvement at that

time. He also cited a January 2001 report from the Multi-

 

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Disciplinary Spine Clinic that stated that Parham could return to

activity as tolerated, and in August 2002 there was evidence of

deficits, but not to the point of disability, and to an August 6,

2002 hospital record that reflected that Parham works part time.

Based on this evidence, the ALJ gave great weight to Dr. Murray’s

opinion.

B

Parham argues on several grounds that the ALJ erred in his

decision. He maintains that it was inappropriate for the ALJ to

reject the opinion of a treating physician based solely on reports

of another physician; that nothing in Dr. Faris’ report indicates

that he believed Parham was exaggerating in any way; that the ALJ’s

interpretation that Parham was exaggerating is an unwarranted

extrapolation from the evidence; and that because Dr. Faris is not

a medical doctor, it is unreasonable to expect a deep discussion of

Parham’s physical problems in his reports. Parham also contends

that the ALJ did not allude in his decision to certain underlying

records from Dr. Macho and from Parkland Hospital and, while

referring to certain physical limitations that Dr. Macho imposed,

did not mention several others. He posits that the ALJ erred by

failing to follow Dr. Macho’s opinion that Parham meets the

requirements for a listing that has since been removed, and that it

is instructive, if not dispositive, that other providers shared Dr.

Macho’s opinions. Parham also argues that the ALJ mischaracterized

 

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the evidence in various contexts, and that, although the ALJ

discussed the report of Dr. Murray, his summary of the report is

incomplete, which is critical given the great weight the ALJ

assigned to it. He asserts that it is unclear how long Dr. Murray

believed Parham could stand and/or walk because of changes he made

in the Medical Assessment Form, and that if this was unclear to the

ALJ, he should have recontacted Dr. Murray for clarification, under

the requirements of 20 C.F.R. § 404.1512(e)(1). Parham argues that

if the ALJ intended to rely on Dr. Murray’s statements, he should

have made all the restrictions, not just some, part of the RFC that

the ALJ created. He argues that the extent of the limitations

raises the necessity of a vocational specialist, which is of itself

sufficient to warrant a remand. Parham also complains that, when

discussing the opinion of Chris Holowiski, D.C., the ALJ overlooked

portions of the opinion, he made an incomplete reference to a

passage from the report of the Multi-Disciplinary Spine Clinic, and

he failed to note important items of objective evidence.

C

As a threshold matter, the court notes that Parham does not

explain why the grounds on which he relies demonstrate that the ALJ

committed reversible error in evaluating his physical limitations.

Cf., e.g., P. Br. 18 (explicitly asserting that ALJ’s recitation of

requirements of 20 C.F.R. § 404.1529 is insufficient to satisfy

requirements of SSR 96-7p). Nor does he specify the applicable

 

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2

In his reply brief, Parham cites SSR 96-7p to contend that

the ALJ did not consider important items of objective evidence and

that the ALJ was obligated to discuss the objective medical and

other evidence thoroughly in his RFC assessment. See P. Reply Br.

4. If Parham intends by this argument to identify a basis for

arguing legal error or a standard of review, the court declines to

consider arguments raised for the first time in a reply brief. See

LeCoq v. Barnhart, No. 3:04-CV-0825, slip op. at 7 n.1 (N.D. Tex.

Aug. 24, 2005) (Fitzwater, J.) (citing Senior Unsecured Creditors’

Comm. of First RepublicBank Corp. v. FDIC, 749 F. Supp. 758, 772

(N.D. Tex. 1990) (Fitzwater, J.)).

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standard of review that governs the arguments he makes.2 It is not

enough for Parham to advance the general assertion that the ALJ

erred. Reversal of the ALJ’s decision is appropriate “only if the

applicant shows that he was prejudiced.” Ripley, 67 F.3d at 557.

And as noted above, the court will not overturn a procedurally

imperfect administrative ruling unless the substantive rights of a

party have been prejudiced. See Smith, 962 F. Supp. at 984.

Generally, when a social security plaintiff “does not otherwise

identify the legal standard under which [he] seeks review, the

court . . . will address [his] arguments under the settled

principles that resolution of conflicting evidence is for the

Commissioner and that the court must affirm the Commissioner’s

findings if they are supported by substantial evidence.” LeCoq v.

Barnhart, No. 3:04-CV-0825, slip op. at 12 (N.D. Tex. Aug. 24,

2005) (Fitzwater, J.) (citations omitted). 

Parham has failed to make the required showing of reversible

error based on the ALJ’s decision not to accept Dr. Macho’s opinion

or on the other grounds that he advances. “A treating physician’s

 

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opinion on the nature and severity of a patient’s impairment will

be given controlling weight if it is ‘well-supported by medically

acceptable clinical and laboratory diagnostic techniques and is not

inconsistent with . . . other substantial evidence.’” Newton v.

Apfel, 209 F.3d 448, 455 (5th Cir. 2000) (ellipsis in original)

(quoting Martinez, 64 F.3d at 176). 

Even though the opinion and diagnosis of

a treating physician should be afforded

considerable weight in determining disability,

the ALJ has sole responsibility for

determining a claimant’s disability status.

The ALJ is free to reject the opinion of any

physician when the evidence supports a

contrary conclusion. The treating physician’s

opinions are not conclusive. The opinions may

be assigned little or no weight when good

cause is shown. Good cause may permit an ALJ

to discount the weight of a treating physician

relative to other experts where the treating

physician’s evidence is conclusory, is

unsupported by medically acceptable clinical,

laboratory, or diagnostic techniques, or is

otherwise unsupported by the evidence. 

Id. at 455-56 (citations, quotation marks, and brackets omitted).

An ALJ can therefore rely on the opinion of a consulting examining

physician instead of the contrary opinion of a treating physician

when there is reliable medical evidence to support the consulting

examining physician’s opinion. See id. at 453 (“[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

 

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criteria set forth in 20 C.F.R. § 404.1527(d)(2).”).

This is a case in which the ALJ accepted the opinion of the

consulting examining physician and other evidence over the opinion

of the treating physician and other evidence that would have

permitted the ALJ to find in plaintiff’s favor. The ALJ did not

commit reversible error in doing so, because his decision is

supported by substantial evidence. “The ALJ is free to reject the

opinion of any physician when the evidence supports a contrary

conclusion.” Id. at 455 (quoting Paul v. Shalala, 29 F.3d 208, 211

(5th Cir. 1994)). Dr. Murray’s opinion constitutes substantial

evidence that Parham is not physically disabled because it is

supported by medically acceptable clinical and laboratory

diagnostic techniques, a reasonable mind might accept it to support

the conclusion of non-disability, and it is more than a scintilla.

Dr. Murray conducted an orthopaedic and neurological examination

of Parham in July 2000 for 30 minutes and reviewed AP and lateral

X-rays of his lumbar spine. He concluded that Parham can

frequently lift and/or carry up to 20 pounds, stand or walk for at

least two, and no more than about six, hours in an eight-hour day,

and sit fewer than six hours in an eight-hour workday. This

opinion constitutes substantial evidence that supports the ALJ’s

finding that Parham can perform light work, i.e., work that

“involves lifting no more than 20 pounds at a time with frequent

lifting or carrying of objects weighing up to 10 pounds” or that

 

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may “require[ ] a good deal of walking or standing, or . . .

sitting most of the time.” 20 C.F.R. § 404.1567(b). Because Dr.

Murray’s opinion, combined with other evidence in the record,

including Parham’s statements to Dr. Faris, constitutes substantial

evidence to support his finding that Parham is not disabled, the

ALJ did not err in rejecting Dr. Macho’s opinion and the other

evidence that Parham cites. Nor do any of Parham’s other arguments

support reversing the decision of the ALJ in this respect.

Accordingly, this ground of the ALJ’s decision——i.e., finding that

Parham is not disabled based on his physical limitations——is

affirmed.

IV

Parham advances as the second broad basis for this argument

the contention that the ALJ erred in rejecting the opinion of his

main treating psychiatrist, Antonio Roman, M.D., (“Dr. Roman”), who

diagnosed Parham with severe chronic depression and anxiety

disorder related to pain.

A 

Parham began receiving psychiatric services in January 2001.

His chief complaint at the time of his initial visit was depression

and panic attacks. His treating psychiatrist, Dr. Roman, assigned

at that time a Global Assessment of Functioning (“GAF”) score of

50. In February 2003 Dr. Roman stated in a letter that Parham

suffers from severe chronic depression and anxiety related to pain

 

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3

The form was specifically designed to address the factors in

these Listings.

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and that he does not appear to respond/benefit from current

medical/psychiatric treatment. R. 634. In January 2003 Dr. Roman

completed a “Medical Assessment of Ability to do Work-Related

Activities (Mental).” His assessment contains specific findings

that show that Parham meets the requirements for Listings 12.04

and 12.06.3

The ALJ found that Parham’s mental impairments are not severe

enough to meet or medically equal a Listing. Concerning Parham’s

mental impairment, he concluded that “[t]here is no documentation

of treatment in a psychiatric hospital[ ]” and “no documentation

that [Parham’s] mental impairment has had more than a mild impact

on the activities of daily living or on concentration, persistence,

or pace, or more than a moderate impact on social functioning, and

there have been no episodes of decompensation.” Id. at 30. In

other words, the ALJ found that Parham does not meet the B criteria

of Listings 12.04 or 12.06. See 20 C.F.R. Pt. 404, Subpt. P, App.

1, Listings 12.04 & 12.08 (2005). The ALJ considered Dr. Roman’s

opinion but gave it little weight due to contradictions in the

ratings he set forth in his report. The ALJ noted that Dr. Roman

found Parham “to have unlimited and good ability in carrying out

simple and detailed job instructions and fair ability to carry out

complex job instructions,” yet Dr. Roman rated Parham “as having

 

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marked difficulties in maintaining concentration, persistence, or

pace.” R. 30. Moreover, although Dr. Roman rated Parham “as good

in dealing with the public and relating to coworkers and

supervisors,” Parham’s rating was “poor in relating predictably in

social situations and behaving in an emotionally stable manner,”

and Parham had “marked difficulties in social functioning.” Id.

Because of these perceived contradictions, the ALJ gave Dr. Roman’s

opinion little weight and instead relied more on Parham’s own

testimony as to his functional abilities, e.g., his part-time work,

occasional driving, and personal hygiene. He concluded that

Parham’s “mental impairment does not significantly erode his

residual functional capacity and would not preclude unskilled work

activity.” Id. at 31.

B

Parham contends, in relevant part, that the ALJ erred in

failing to follow Dr. Roman’s opinion that Parham meets the

requirements for Listing 12.04 or 12.06. Before the court can

adequately address this argument, it must analyze whether the ALJ

sufficiently addressed the six factors contained in 20 C.F.R.

§ 404.1527(d). Because Dr. Roman was Parham’s treating physician

for his mental impairment, the ALJ was obligated to give his

“opinion on the nature and severity of [Parham’s] impairment . . .

controlling weight if it is ‘well-supported by medically acceptable

clinical and laboratory diagnostic techniques and is not

 

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inconsistent with . . . other substantial evidence.’” Newton, 209

F.3d at 455 (second ellipsis in original) (quoting Martinez, 64

F.3d at 176). Although “[t]he ALJ is free to reject [Dr. Roman’s

opinion] when the evidence supports a contrary conclusion,” id.

(quoting Paul, 29 F.3d at 211), “[b]efore the ALJ declines to give

a treating physician’s opinion controlling weight, however,

§ [404.]1527(d)(2) requires that he ‘give good reasons’ for the

weight given to the treating source’s opinion.” Sailsbury v.

Comm’r, 2003 U.S. Dist. LEXIS 21327, at *10 (N.D. Tex. Oct. 31,

2003) (Fitzwater, J.). 

Under § 1527(d) he must consider the following

six factors: “(1) the physician’s length of

treatment of the claimant, (2) the physician’s

frequency of examination, (3) the nature and

extent of the treatment relationship, (4) the

support of the physician’s opinion afforded by

the medical evidence of record, (5) the

consistency of the opinion with the record as

a whole; and (6) the specialization of the

treating physician.”

Id. (quoting Newton, 209 F.3d at 456). “Several federal courts

have concluded that 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 (collecting cases). Newton-type error supports reversal,

however, only when there is error and the plaintiff has suffered

prejudice. See Mettlen v. Barnhart, 88 Fed. Appx. 793 (5th Cir.

2004) (per curiam) (unpublished opinion) (“In order to obtain

reversal, [plaintiff] must show both error and some resulting

 

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prejudice.”). “Prejudice can be established by showing that the

additional considerations ‘“might have led to a different

decision.”’” Id. (quoting Newton, 209 F.3d at 458). Here, the

possibility of prejudice is shown because, had the ALJ given

controlling weight to Dr. Roman’s opinion, he apparently would have

been required to find at step three of the sequential process that

Parham is disabled, i.e., that his mental impairment meets or

equals an impairment listed in Appendix 1, Subpart P, Regulation

No. 4. 

The ALJ rejected Dr. Roman’s assessment of Parham’s mental

limitations on the basis that it was internally contradictory and

inconsistent with Parham’s reported daily activities. The court is

unable to conclude, however, that the ALJ considered any evidence

of an examining or treating physician that controverted Dr. Roman’s

assessment. Absent such evidence, the ALJ was not permitted to

reject Dr. Roman’s opinion without analyzing each § 404.1527(d)

factor. See Segovia v. Barnhart, No. 3:04-CV-2246-D, slip op. at

14 (N.D. Tex. Aug. 9, 2005) (Fitzwater, J.). This court has

vacated and remanded decisions of the Commissioner when the ALJ has

rejected the opinion of a treating physician without explicitly

considering the § 404.1527(d) factors and the treating physician’s

opinion is not controverted by reliable medical evidence from

another treating or examining physician. See, e.g., id. at 14;

Sailsbury, 2003 U.S. Dist. LEXIS 21327, at *12. Because there is

 

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4This case may lie at the outer limits of those in which the

court will vacate and remand where the plaintiff has not explicitly

asserted Newton-type error. Typically, a plaintiff seeks judicial

review on the ground that the ALJ failed to consider the

§ 404.1527(d) factors. See, e.g., Williams v. Barnhart, 31 Fed.

Appx. 833, 2002 WL 180706, at *1 (5th Cir. 2002) (unpublished

opinion) (per curiam) (noting that appellant argued that ALJ should

have considered the treating physician’s opinion under the six

factors set forth in Newton). The Fifth Circuit has in fact

refused to consider Newton error that was not adequately raised in

the district court. As the panel held in Perez v. Massanari, 

Perez’s argument that the ALJ failed to

consider the factors set forth in 20 C.F.R.

§ 404.1527(d)(2) is raised for the first time

in this appeal. As no exceptional

circumstances have been identified, and Perez

had an opportunity to raise the issue in the

district court, we will not consider the 20

C.F.R. § 404.1527(d)(2) issue.

Perez v. Massanari, 273 F.3d 1094, 2001 WL 1085085, at *1 (5th Cir.

2001 (per curiam) (unpublished opinion). Here, however, the record

contains not only the opinion of a treating physician that would

permit the ALJ to find that plaintiff is disabled, it arguably

reflects specific findings of the treating physician that plaintiff

meets a Listing that would require the ALJ to find at step three

that plaintiff is disabled. Under these narrow circumstances——and

without suggesting that the court will consider forfeited Newtontype error in future or arguably less-compelling cases——the court

concludes that the ALJ should be required to address the factors of

§ 404.1527(d) before rejecting the opinion of a treating physician.

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no evidence in the record that Dr. Roman’s opinions were

controverted by reliable evidence from another treating or

examining psychiatrist, the ALJ was required to analyze this case

under the § 404.1527(d) factors before assigning little weight to

Dr. Roman’s opinions.4 Although the ALJ is free, of course, to

find on remand that the evidence does not support the conclusion

that Parham is disabled, he cannot reach this result without

 

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- 20 -

assessing Dr. Roman’s opinions according to the § 404.1527(d)

factors.

The ALJ’s rejection of Dr. Roman’s opinion of Parham’s mental

limitations differs from his refusal to give controlling weight to

Dr. Macho’s opinion of Parham’s physical limitations. Dr. Macho’s

opinion was controverted by the opinion of Dr. Murray, who

performed a consulting orthopaedic and neurological examination of

Parham.

[U]nder Newton, the ALJ is required to perform

a detailed analysis of the treating

physician’s views under the criteria set forth

in 20 C.F.R. § 404.1527(d)(2) only when there

is an absence of reliable medical evidence

from a treating or examining physician

controverting the claimant’s treating

specialist.

Sailsbury, 2003 U.S. Dist. LEXIS 21327, at *13 (quoting Grimes v.

Barnhart, No. 3:01-CV-0940-D, slip op. at 12 (N.D. Tex. Mar. 18,

2002) (Fitzwater, J.); Tipps v. Barnhart, No. 3:01-CV-1295-D, slip

op. at 11-12 (N.D. Tex. Mar. 14, 2002) (Fitzwater, J.)). Because

Dr. Macho’s opinion was controverted by reliable medical evidence

from another examining physician (Dr. Murray), the ALJ was not

required to consider the § 404.1527(d) factors.

The court therefore vacates in part and remands the

Commissioner’s decision.

V

Parham raises other issues on appeal. Although some of the

grounds are too conclusory to justify judicial review and others do

 

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5Relatedly, the record appears to reflect another error that

Parham does not raise but that the Commissioner may wish to address

on remand.

 

[I]f the ALJ determines that the treating

physician’s records are inconclusive or

otherwise inadequate to receive controlling

weight, absent other medical opinion evidence

based on personal examination or treatment of

the claimant, the ALJ must seek clarification

or additional evidence from the treating

physician in accordance with 20 C.F.R.

§ 404.1512(e). 

Newton, 209 F.3d at 453. That regulation may require that the ALJ

“seek additional evidence or clarification from” Dr. Roman because

his “report . . . contains a conflict or ambiguity that must be

resolved.” 20 C.F.R. § 404.1512(e)(1) (2005). There is no

indication that the ALJ either sought clarification from Dr. Roman

or afforded Parham an opportunity to supplement the record with

additional medical evidence of his mental limitations. Cf. Fink v.

Barnhart, 123 Fed. Appx. 146, 148 (5th Cir. 2005) (per curiam)

(unpublished opinion) (holding that ALJ’s failure to recontact

treating physician was harmless procedural error because claimants

were afforded opportunity to supplement records with additional

medical reports from treating physicians). Because Dr. Roman’s

report was not controverted by reliable evidence from another

treating or examining psychiatrist, and because the ALJ concluded

it contained internal inconsistencies that needed to be resolved,

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not adequately address the standard of review or state why the

ALJ’s decision is reversible, at least some are sufficient to

warrant review by this court. The court is not addressing the

adequately briefed arguments, however, because the Commissioner’s

decision on remand concerning Parham’s mental impairments may moot

them. Nevertheless, the Commissioner may deem it advisable to take

account of these arguments in reaching a decision on remand to

ensure that the ruling will not be subject to another remand, if

appealed.5

 

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it arguably was error for the ALJ to afford the report little

weight without first attempting to seek clarification from Dr.

Roman.

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* * *

The Commissioner’s decision is AFFIRMED in part and VACATED in

part and REMANDED to the Commissioner for further proceedings

consistent with this memorandum opinion.

April 28, 2006.

_________________________________

SIDNEY A. FITZWATER

UNITED STATES DISTRICT JUDGE

 

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