Fifth Circuit

Schofield v. Saul, 950 F.3d 315 (5th Cir. 2020), Attys Michael Thomas Kelly and Maria Laura Siguad Hernandez, Dallas, TX

Opening paragraph: “The [SSA] denied [Plaintiff’s] application for disability benefits. The SSA based its decision on a highly reticulated, multi-part web of administrative regulations, a multi-page chart called ‘The Matrix’, and subregulatory-guidance documents called the ‘POMS’ and the ‘HALLEX.’ Within this administrative-state labyrinth lies many a trap for the unwary. But in this case, the SSA ensared itself. We reverse.” Id. at 317.

The Court describes the Grid Rules as a “matrix”, and that there are ways out of the matrix, such as in a borderline age situation. Id. at 318. Here, Plaintiff was 54 years, 8 months, and 1 day old on her date last insured. Id. at 319. The Court found “the ALJ did not provide anything in its decision that we can use to evaluate its consideration of Plaintiff’s borderline age”, as he merely noted Plaintiff’s age and then “did nothing to ‘consider whether to use the older age category.’” Id. at 320.

The Court rejected the Agency’s argument that noting the claimant’s age and citing the relevant regulatory provision satisfied its legal duty. First, the Court found that “substantial-evidence review in this Circuit requires more than mere citation to a regulatory provision.” Id. at 321 (citing Salmond v. Berryhill, 892 F.3d 812, 819 (5th Cir. 2018)). The Court stated: “[m]ere citation to the relevant rule, while perhaps helpful to show an agency was aware of its obligations, is not enough to demonstrate the agency fulfilled them. What’s more, a mere legal citation does not answer the principal question—’whether [Plaintiff’s] borderline situation warranted moving her to the [older] category.’ Phillips, 671 F.3d at 706.” Id. at 321.
Second, the Court found the mere-citation standard was not sufficient to satisfy the ALJ’s duty to develop arguments both for and against granting benefits, which is “a unique ‘inquisitorial’ role.” Id. at 321 (citing Smith v. Berryhill, 1239 S. Ct. 1765, 1779, n.20 (2019)).

Third, the Court stated it was not clear the ALJ cited the relevant regulation, as he only cited § 404.1563, not subsection (b), which is the “few days to a few months” provision, or subsection (d), which is the “person closely approaching advanced age” provision, and the ALJ did not explain how one, the other, or both subsections might apply to Plaintiff. Id.

Finally, the Court stated the ALJ’s failure to address the borderline age situation was not harmless, as she would have been entitled to benefits under the older age category. Id. at 321-22. The Court concluded:

Would the ALJ have reached the same decision with an older age category? Maybe. But ‘maybe’ is not substantial evidence. That’s particularly true here because the ALJ never explained why it chose the lower age category in the first place. Cf. Audler v. Astrue, 501 F.3d 446, 449 (5th Cir. 2007) (“Absent some explanation from the ALJ to the contrary, [the applicant] would appear to have met her burden . . . and therefore her substantial rights were affected by the ALJ’s failure to set out the bases for her decision.”). Accordingly, we hold that the ALJ’s error was not harmless, and the mere citation to [Plaintiff’s] age and an SSA regulation did not provide substantial evidence to support the ALJ’s decision.

Id. at 322. The Court “declined to set out how much evidence would be necessary in future borderline situations”, as that inquiry is “case-by-case.” Id. Finally, the Court noted the Appeals Council arguably cured the defect in the ALJ’s decision by giving full consideration to Plaintiff’s borderline age, but at oral argument the SSA counsel adamantly waived any reliance on the Appeals Council’s decision, and so it was waived. Id. Reversed and remanded.

Schuler v. Saul, 805 Fed. Appx. 304 (5th Cir. Apr. 8, 2020), pro se claimant

Plaintiff was awarded Social Security benefits in 2007; in 2012, the SSA informed Plaintiff that a mistake was made in calculating his benefits in 2007. His former employer submitted a Corrected Wage and Tax Statement (W-2c), indicating he earned less in 2007 than SSA originally believed. SSA told Plaintiff it had overpaid him $54 and his future payments would be reduced. Plaintiff challenged the SSA’s findings. In 2015, a hearing was held before an ALJ, who found the W-2c to be valid on its face, and that a later letter from the employer did not establish the W-2c was invalid. While pending before the district court, Plaintiff submitted a new W-2c, which he had requested from his employer in 2013, but was not provided until 2018. The district court refused to remand the case back to SSA based on this new evidence, finding it was insufficient to merit such an action. However, the Court found that Plaintiff’s new evidence was “material” and that there is at least a “reasonable possibility” that SSA would have evaluated the first W-2c differently based on the new evidence. Id. at 306. As such, the Court reversed and remanded.

Dell v. Saul, 807 Fed. Appx. 385 (5th Cir. June 1, 2020), Atty Robert Lucien Marrero, New Orleans, LA

Plaintiff appealed the ALJ’s step 5 denial of his disability insurance claim, specifically focusing on the vocational testimony as “unreliable”. First, Plaintiff suggested the VE needed to disclose her methodology, but the Court found that Plaintiff never asked for the methodology in front of the SSA, and the Supreme Court has already rejected a categorical rule that would require a VE to always disclose their methodology. Id. at 386 (citing Biestak, 139 S. Ct. at 1157 and Krell v. Saul, 931 F.3d 582, 587 (7th Cir. 2019) (“Biestek clearly held that vocational experts are not categorically required to provide their underlying data.”).

Second, the Court rejected Plaintiff’s argument that a Daubert-style rigor should be applied to VE testimony, finding that Daubert does not apply in agency proceedings (citing Palm Valley Health Care, Inc. v. Azar, 947 F.3d 321, 329 (5th Cir. 2020)), nor do the federal rules of evidence. Id.
Third, the Court rejected Plaintiff’s argument that there might be methodological problems with the VE’s job data, as the hearing representative did not question the VE about such problems during the hearing, and even now “fails to point to any data that conflicts with or undermines the expert’s testimony.” Id. at 387. Affirmed.

Russo v. Saul, 805 Fed. Appx. 269 (5th Cir. Feb. 19, 2020), Atty William Allan Cohn, Frisco, TX

Plaintiff appealed the ALJ’s denial of her disability insurance claim, which involved a remote date last insured. The Court found her appeal to be a challenge to (1) the ALJ’s failure to consider certain medical evidence and (2) the ALJ’s failure to consider the combination of her impairments when considering medical equivalence at step 3. The Court rejected both arguments.
First, regarding the medical evidence, Plaintiff argued that certain records were not specifically identified in the list of exhibits attached to the ALJ’s decision. However, the Court stated that the list of exhibits identified hundreds of pages of medical records and included each of the records referenced by Plaintiff. In addition, the Court found that the ALJ specifically discussed the medical records and explained the weight assigned to them. The Court stated: “Even if the ALJ failed to consider certain records, [Plaintiff] has not met her burden of showing that any error was prejudicial.” Id. at 273.

Second, regarding the listing argument, the Court first noted that Plaintiff bore the burden of establishing that the combination of her impairments met or equaled all of the specified medical criteria of a listed impairment, and yet she pointed to no evidence showing that she could not meet or equal every requirement of a listing, nor did she identify a single listing to which her combination of impairments was allegedly equivalent. Id. Moreover, the Court found the ALJ did properly consider Plaintiff’s impairments in combination when considering the listings and when assessing the RFC. Id. at 273-74. As a result, the Court affirmed the district court judgment.

Salmond v. Berryhill, 892 F.3d 812 (5th Cir. 2018)

Plaintiff, a former physician and army veteran, was diagnosed with PTSD between 1995 and 1997. He continued working until 2006 when he reported a turn for the worse. Between 2006 and 2011 Plaintiff received treatment for his mental health through Veterans Affairs, including inpatient residential programs. In 2013, two VA doctors examined Plaintiff to determine his eligibility for VA benefits. The VA ultimately determined that he had a 70% disability rating due to his PTSD, depression, and bipolar disorder with a 100% total disability individual unemployability rating. This rating signified that he was unable to secure or follow a substantial gainful occupation as a result of his service-related medical condition. As a result, the VA granted Plaintiff benefits.

Plaintiff applied for disability insurance benefits and supplemental security income around this time. After the Social Security Administration denied his applications, he requested a hearing before an ALJ. The ALJ conducted a video hearing, and only Plaintiff testified. At the end of the hearing, the ALJ ordered Plaintiff to undergo a psychological evaluation and arranged for a Social Security Administration psychologist to examine him. The psychologist determined that he did not have the ability to “[r]espond appropriately to work pressures in a usual work setting and to changes in a routine work setting.” The ALJ found that Plaintiff suffered from PTSD, bipolar disorder, depressive disorder, REM dissociative disorder, type 2 diabetes, hypothyroidism, benign postratic hypertrophy, hypertension, and obesity. He concluded that while Plaintiff’s impairments “continue to cause symptoms,” these symptoms were “mild” and did not cause “work-related limitations.” The ALJ relied on treating treatment notes, Plaintiff’s ability to perform basic daily tasks, a two-year gap in treatment and determined that Plaintiff’s own testimony about his condition was “not entirely credible.” The ALJ thus ended the evaluation at Step 2.

Plaintiff appealed to the Appeals Council with an opinion from his treating psychiatrist. The Appeals Council denied review and Plaintiff appealed to the district court and his case was referred to a magistrate judge. The magistrate judge recommended the Commissioner’s decision be reversed and remanded. The district court did not accept the magistrate judge’s recommendation. It concluded that the ALJ’s finding was supported by substantial evidence. It said that “[t]he analysis conducted by the ALJ . . . is self-explanatory, and nothing would be gained by a detailed review of the analysis in this memorandum opinion.” It was “satisfied that the record before the ALJ supports the statements he made in his analysis.” Therefore, it affirmed the ALJ’s determination.

Plaintiff appealed the district court’s denial. Plaintiff argued there is not substantial evidence to support the ALJ’s determination that his mental impairments were non-severe. He argued that all of the medical experts in the record confirm that his mental impairments, either alone or in combination, more than satisfied the applicable de minimis standard. He also emphasizes that the VA assigned him a 100% total disability individual unemployability rating, which was entitled to great weight and argued the district court erred in failing to address this rating in its opinion.

The court agreed. The court began by noting that a, “[s]evere impairment has a specific—if somewhat surprising—meaning. Under our binding precedent, “[a]n impairment can be considered as not severe only if it is a slight abnormality having such minimal effect on the individual that it would not be expected to interfere with the individual’s ability to work, irrespective of age, education or work experience.” Loza v. Apfel, 219 F.3d 378, 391 (5th Cir. 2000) (emphasis added) (quoting Stone v. Heckler, 752 F.2d 1099, 1101 (5th Cir. 1985)). Re-stated, an impairment is severe if it is anything more than a “slight abnormality” that “would not be expected to interfere” with a claimant’s ability to work. Id. This second step requires the claimant to make a de minimis showing. See Anthony v. Sullivan, 954 F.2d 289, 293 n.5 (5th Cir. 1992).” The court explained every doctor in the record determined that Plaintiff had a severe impairment. Despite the agency’s claim that it was not bound by a medical opinion and the ALJ’s denial was supported by the treating psychiatrists’ notes, the court noted that the treating psychiatrist himself determined that Plaintiff suffered from a substantial or complete loss of the ability to perform seventeen out of twenty named activities associated with regular employment. He concluded this based upon his personal observations, medical expertise, and years of treating Plaintiff. The opinion was supported by every other medical opinion. The court noted, “[a]s Third Circuit has observed, “[t]he principle that an ALJ should not substitute his lay opinion for the medical opinion of experts is especially profound in a case involving a mental disability.” Morales v. Apfel, 225 F.3d 310, 319 (3d Cir. 2000). This is not a case in which the treater disagrees with the examiner. All of the medical professionals in this record agree that Salmond’s symptoms would be expected to interfere with his ability to work. Nor is this a case in which a doctor’s treatment notes conflict with his own medical opinion. In such a case, it may be reasonable for the ALJ to weigh a doctor’s treatment notes against the doctor’s ultimate determination.”

The court concluded by noting, “[w]e are careful not to “reweigh the evidence or substitute our judgment” for that of the ALJ. Whitehead v. Colvin, 820 F.3d 776, 779 (5th Cir. 2016). However, an ALJ’s decision is subject to judicial review. “A finding of no substantial evidence is appropriate only if no credible evidentiary choices or medical findings support the decision.” Id. at 779 Here, the record cannot support the ALJ’s decision. Even though the “ALJ is free to reject the opinion of any physician when the evidence supports a contrary conclusion,” the issue here is that there is insufficient evidence to support the ALJ’s conclusion. See Garcia v. Berryhill, 880 F.3d 700, 705 n.7 (5th Cir. 2018). Accordingly, the court remanded the case to be further remanded to the ALJ to proceed with the rest of the five-step analysis.

Fabian v. Berryhill, 734 F. App’x 239 (5th Cir. June 5, 2018)

A pro se claimant, Plaintiff, aged 53, suffers from panic attacks, PTSD, depression, and agoraphobia. She claims that these issues stem from an accident when she was two years old which caused a “severe, disfiguring, painful and disabling injury” to her left arm. She filed an application for disability benefits based on her mental health issues when she was twenty-eight years old and has received disability benefits since that date. In 2006, she applied for disabled adult child insurance benefits for the time period from she was 2 to 22 years old and offered reports of her current treating physicians regarding her past and continuing impairments. The Commissioner denied Plaintiff’s application, finding that Plaintiff failed to demonstrate a disability during the relevant time period. Plaintiff appealed to district court, arguing the Commissioner’s decision that she was not entitled to disabled adult child insurance benefits was not supported by substantial evidence and the Commissioner violated her due process rights by applying the incorrect federal regulation to her case.

The court rejected these arguments. First, the court found the ALJ properly evaluated the reports from each of her treating physicians. None of those physicians, however, had treated or evaluated her during the relevant time period. The ALJ specifically noted that those doctors only opined about her current condition and were not willing to speculate regarding her condition before the age of twenty-two. The treating physicians’ opinions regarding her current condition does not establish a retrospective diagnosis. While Plaintiff argued that the ALJ improperly dismissed the testimony of herself and her family, the court noted that such testimony was considered here and is not necessarily sufficient to establish a medically determinable impairment. The court noted that Plaintiff was “essentially asking [it] to re-evaluate all of the evidence in her case and to reach a [different result]” and that such evidence is not sufficient alone to establish a medically determinable impairment. Finally, the court noted the ALJ applied the appropriate regulations in effect at the time of the decision. The court affirmed the district court’s judgment.

Garcia v. Berryhill, 880 F.3d 700 (5th Cir. 2018)

Plaintiff, a Vietnam veteran, applied for social security disability benefits based on hearing loss and PTSD. The ALJ denied Plaintiff’s application, concluding that plaintiff was not disabled and capable of performing his past relevant work. The Appeals Council declined review. Plaintiff appealed under 42 U.S.C. § 405(g), arguing (1) the ALJ impermissibly relied on the VA’s summary of his treating expert’s evaluation, rather than obtaining directly reviewing a copy of the evaluation itself; (2) the ALJ improperly determined that plaintiff’s PTSD was non-severe; and (3) the ALJ was required to and failed to properly consider the VA’s “100% disability rating.”

The court disagreed. The court found that any failure to obtain the actual report was at most harmless and an ALJ’s failure to include certain documentation in the record is ground for reversal only if the applicant can show prejudice. Brock v. Chater, 84 F.3d 726, 728 (5th Cir. 1996) (requiring applicant to show that omitted material “might have altered the result”). Plaintiff presented “no reason to believe the original report would somehow swing the evidentiary pendulum in his favor.” Second, the court found the ALJ “rigorously considered the four broad functional areas set out in the disability regulation for evaluating the severity of mental disorders.” Finally, the court found “the VA’s determination does not bind the Commissioner; it is merely “evidence . . . that must be considered” and that the ALJ did just that. Chambliss v. Massanari, 269 F.3d 520, 522 (5th Cir. 2001). The court affirmed the district court’s judgment.