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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.