Prince v. Chater

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-60257 Summary Calendar

BERNA C. PRINCE,

Plaintiff-Appellant,

versus

SHIRLEY S. CHATER, COMMISSIONER OF SOCIAL SECURITY,

Defendant-Appellee.

Appeal from the United States District Court for the Southern District of Mississippi (4:94-CV-69)

January 16, 1996 Before GARWOOD, WIENER and PARKER, Circuit Judges.*

GARWOOD, Circuit Judge:

Plaintiff-appellant Berna C. Prince (Prince) appeals the

district court’s judgment affirming the denial of her claim for

Social Security disability insurance benefits by defendant-

appellant Commissioner of Social Security (Commissioner).

Facts and Proceedings Below

Prince was thirty-seven years old at the time of the

*

Pursuant to Local Rule 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. administrative law judge’s (ALJ’s) decision denying disability

benefits to her. She has a high school education and has worked as

a cashier and head bank teller. Prince injured her back while

working in April 1988, and she was assessed as having a fifteen

percent permanent partial impairment for Worker’s Compensation

purposes. After her injury and shortly before she alleges that she

became completely disabled, Prince worked two jobs for a total of

seventy to eighty hours a week. In March 1992, Prince quit one of

her jobs because of the mental stress, following the advice of a

physician. Her back was treated conservatively with bracewear,

medications, and activity restrictions, and she declined the

surgery offered by her physician. She went on temporary leave of

absence from her job as head teller on June 15, 1992; the leave

became permanent thirty days later. She has not been gainfully

employed since that time.

Prince filed her application for disability benefits in June

1992. She was represented by counsel at a hearing before an ALJ on

January 6, 1994. The ALJ denied her claim for benefits in a

decision dated February 18, 1994. The ALJ concluded that, although

Prince no longer could perform her previous jobs as a cashier or

head bank teller, she had the residual functional capacity to

perform sedentary work. The ALJ relied heavily on a letter dated

July 28, 1993, from Prince’s treating physician, Dr. Cameron. The

letter stated, inter alia, that Prince (1) had a herniated disc;

(2) could perform the activities of daily living without severe

pain, though she had to quit her job because of the pain associated

2 with work activities; (3) had not demonstrated any neurological

deficit; (4) was advised by him to remain as active as possible and

continue working; (5) was a candidate for vocational

rehabilitation; and (6) could perform a sedentary job.

Prince requested a review of the ALJ’s denial of benefits by

the Appeals Council, and she submitted additional evidence of her

disability for its consideration. The additional evidence

consisted of four items: (1) a letter dated March 15, 1994, from

Dr. Cameron opining that Prince could not perform sedentary work;

(2) a letter dated March 28, 1994, from Dr. Nicholson stating that

Prince was currently under his care for treatment of hypertension

and depression and had previously been treated for gastritis; (3)

a letter dated March 22, 1994, from a teacher of Prince’s daughter

stating that Prince‘s house showed signs of neglect, that her

daughter’s hair was occasionally in French braids for two weeks at

a time, and that Prince always was seated in a chair on her visits

to the house; and (4) a letter dated March 23, 1994, from Prince’s

mother stating that she and the children had to help Prince with

the household work, that she helped Prince with the children, and

that Prince was often in great pain. The Appeals Council

specifically declined to give weight to Dr. Cameron’s new letter

because he did not give any reason for his change of opinion from

July 1993 to March 1994. Dr. Cameron did not indicate that he had

performed any tests on Prince——or had even seen her (or any medical

records pertaining to her not previously examined)——since his

previous opinion. After considering the record as whole as it

3 existed at that time (including the new evidence), the Appeals

Council refused to review the ALJ’s denial of benefits on June 21,

1994. See 20 C.F.R. §§ 404.970 (1995). Consequently, the ALJ’s

decision became the final decision of the Commissioner. See 20

C.F.R. § 404.981 (1995).

Prince filed a complaint seeking judicial review of the denial

of benefits on July 11, 1994, and she filed two motions for remand.

She submitted another letter from Dr. Cameron, dated July 18, 1994,

to the district court for its consideration on her appeal and

motions for remand. She also submitted other new evidence to

support her request for remand, including letters from two other

doctors, medical reports of MRI scanning and epidural blocks that

were completed in September 1994, and evidence that she had seen a

vocational rehabilitation counselor in July 1994.

The magistrate judge to whom the case was assigned recommended

upholding the decision of the Commissioner and denying remand. The

district court adopted the report and recommendation of the

magistrate judge in its entirety and affirmed the denial of

benefits.

Discussion

This Court reviews the Commissioner’s decision “only to

determine whether it is supported by substantial evidence on the

record as a whole and whether the [Commissioner] applied the proper

legal standard.” Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir.

4 1994), cert. denied, 115 S.Ct. 1984 (1995).1 We may not reweigh

the evidence or substitute our judgment for that of the

Commissioner. Id. Prince alleges that the Commissioner’s decision

was not supported by substantial evidence and that the Commissioner

applied an improper legal standard. Alternatively, she urges that

the district court erred in failing to grant a remand based on the

evidence not considered by the Appeals Council.

I. Determination of Residual Functional Capacity

To qualify for disability benefits, a claimant must

demonstrate an “inability to engage in any substantial gainful

activity by reason of a medically determinable physical or mental

impairment” that can be expected to last for at least one year. 42

U.S.C. § 423(d)(1)(A) (1995). An individual is considered disabled

only if her impairments are so severe that she is not only unable

to do her previous work but cannot, considering her age, education,

and work experience, engage in any other kind of substantial

gainful employment that exists in the national economy. 42 U.S.C.

§ 423(d)(2)(A) (1995). Once an individual proves that she can no

longer perform her past relevant work, however, the burden shifts

to the Commissioner to prove that there are other jobs existing in

the national economy that she could perform. See Fields v. Bowen,

805 F.2d 1168, 1170 (5th Cir. 1986). If the Commissioner meets

The Supreme Court has explained that “substantial evidence is more than a scintilla and less than a preponderance. It is of such relevance that a reasonable mind would accept it as adequate to support a conclusion.” Falco v. Shalala, 27 F.3d 160, 162 (5th Cir. 1994)(citing Richardson v. Perales, 91 S.Ct. 1420, 1427, 1428 (1971)).

5 this burden, then the claimant must show that she cannot perform

the alternate work. Id.

The ALJ found that Prince was unable to perform her past

relevant work as a cashier and head teller but that she retained

the residual functional capacity to perform the full range of

sedentary work. Prince argues that the ALJ’s determination was

“contrary to the overwhelming weight of the law and evidence and

not supported by any law or evidence.” She also argues that the

ALJ made three more specific errors: failing to require testimony

by a vocational expert, discounting her subjective complaints of

pain, and declining to believe the opinion of her treating

physician. This Court finds no reversible error.

A. Credibility of Subjective Complaints of Pain

Pain, in and of itself, can be a disabling condition when it

is “constant, unremitting, and wholly unresponsive to therapeutic

treatment.” Harrell v. Bowen, 862 F.2d 471, 480 (5th Cir. 1988)

(citations omitted). Prince testified that she suffered pain so

severe that she would be unable to stand more than two to three

hours or sit more than one hour a day. She testified that four or

five days a week the pain was so severe that she could not leave

the house and needed aid to get out of bed. On the two or three

“good days” a week, Prince testified that she dressed herself, took

care of her children, performed light house cleaning, cooked

breakfast and dinner, washed clothes, and walked about a mile.

The ALJ found that Prince’s subjective complaints of pain were

not credible. Prince argues that there was no substantial evidence

6 to support the ALJ’s credibility determination.

“‘[T]he evaluation of a claimant’s subjective symptoms is a

task particularly within the province of the ALJ who has had an

opportunity to observe whether the person seems to be disabled.’”

Harrell, 862 F.2d at 480 (citations omitted). The ALJ discussed

the reasons for finding her claims of severe pain incredible:

(1)Although she had had lumbar symptoms since April 1988, claimant

continued to work two jobs until March 1992; (2) her physicians

reported the presence of pain in Prince, but they described it as

tolerable; (3) the pain did not preclude the activities of daily

living; (4) Prince’s treatment had been conservative, without need

of hospitalizations or frequent emergency visits; and (5) Prince

took medications which relieved her symptoms without any recorded

side effects. These, along with the ALJ’s observation of Prince

during the hearing, constitute substantial evidence to support the

conclusion that her complaints of pain were exaggerated.2

B. Vocational Expert

Prince next alleges that the ALJ erred by failing to require

testimony by a vocational expert. The testimony of a vocational

expert is required if a claimant has adverse conditions that are

not taken into account in the medical-vocational guidelines (the

Prince testified that she continues most of the activities of daily living only two to three days a week and that the medications only relieve “some” of the pain. However, the ALJ was not required to fully credit Prince’s testimony, and the other factors set forth above also support the ALJ’s decision. The fact that Prince’s own treating physician considered her pain in his July 28, 1993, opinion that she could perform sedentary work is the strongest support for the ALJ’s decision.

7 Guidelines) set forth in 20 C.F.R. Part 404, Subpart P, Appendix 2.

Lawler v. Heckler, 761 F.2d 195, 197-98 (5th Cir. 1985); see also

Fields, 805 F.2d at 1170 (the Guidelines may not be applied to

solely non-exertional impairment). If the claimant suffers solely

from an exertional impairment or if her non-exertional impairment

does not significantly affect her residual functional capacity, an

ALJ may rely exclusively on the Guidelines to determine whether

there is work in the national economy that the claimant can

perform. Fraga v. Bowen, 810 F.2d 1296, 1304 (5th Cir. 1987).

In the instant case, the ALJ relied on the Guidelines, 20

C.F.R. §§ 404.1569 and 404 Subpart P, Appendix 2, to find that

Prince was not disabled. Prince suggests that her severe pain

constitutes a non-exertional limitation that was not considered in

the Guidelines. Thus, she argues the ALJ erred by failing to

require a vocational expert to testify regarding her combination of

exertional and non-exertional limitations.

Although pain is a non-exertional impairment, the ALJ found

that Prince’s subjective claims of pain were credible only to the

extent that they limited her to sedentary work. The ALJ

specifically found that claimant’s testimony regarding pain was not

credible to the extent alleged and rejected her assertions that her

pain was so frequent and intense as to prevent her from performing

the full range of sedentary work. Because the ALJ found that

Prince’s pain did not affect her residual functional capacity to

perform the full range of sedentary work, no non-exertional

impairment existed that would require the testimony of a vocational

8 expert. Reliance on the Guidelines was proper.3 See Fraga, 810

F.2d at 1304; see also 20 C.F.R. § 404.1569a(b) (1995).

C. Substantial Evidence and Weight Given to Treating Physician’s Opinion

After hearing testimony and reviewing the medical evidence,

the ALJ found that although Prince suffers from a severe medical

condition, she retains the residual functional capacity to perform

the full range of sedentary work. The medical evidence reveals

that Prince developed back problems in 1988. Dr. Cameron began

treating her in April 1991. After an MRI performed at that time,

Dr. Cameron continued conservative treatment and recommended that

Prince remain active and continue working. In November 1992, Dr.

Cameron reported that Prince was capable of clerical/administrative

activity. In July 1993, Dr. Cameron opined that she would not

“be able to perform any job which requires crawling, bending, squatting or climbing. She should not lift more than 10 pounds occasionally or 5 pounds frequently. She should be able to perform most of her job activities directly in front of her and should be able to sit periodically during a work day.”

This assessment of her functional abilities limited her to

sedentary work under 20 C.F.R. §§ 404.1567(a). Dr. Cameron also

reported that Prince was able to perform activities of daily living

without severe pain and that she could return to work if she found

“a more sedentary” job. Dr. Cameron’s opinion constitutes

In addition, Prince complains that she was forced to bear an improper burden of proof. An examination of the record does not indicate that the ALJ erred in dividing the burdens of proof. The Commissioner met the burden of proving that Prince could perform sedentary work by means of the Guidelines, and Prince failed to rebut that proof. See Fields, 805 F.2d at 1169-70.

9 substantial evidence that Prince could perform the full range of

sedentary work.

Prince’s Point of Error number three states “It was error for

Defendant not to believe treating physician of Plaintiff.”

Although her argument under this point of error is vague, Prince’s

reply brief complains that Dr. Cameron’s March 15, 1994, letter

opinion that she could not perform sedentary work was disregarded

by the Appeals Council. Under this theory, the July 28, 1993,

opinion that Prince could perform sedentary work would presumably

be invalidated by Dr. Cameron’s March 15, 1994, opinion.

This Court has not considered whether new evidence presented

to the Appeals Council but not presented to the ALJ can constitute

grounds for reversing the ALJ’s disability determination. The

circuits are split on the issue. Five circuits have held that new

evidence presented to the Appeals Council becomes part of the

record for reviewing whether the ALJ’s holding is supported by

substantial evidence. E.g., O’Dell v. Shalala, 44 F.3d 855, 859

(10th Cir. 1994); Keeton v. Dep’t of Health and Human Servs., 21

F.3d 1064, 1066-67 (11th Cir. 1994); Ramirez v. Shalala, 8 F.3d

1449, 1452 (9th Cir. 1993); Browning v. Sullivan, 958 F.2d 817,

822-23 (8th Cir. 1992); Wilkins v. Secretary of Dep’t of Health and

Human Servs., 953 F.2d 93, 96 (4th Cir. 1991). Two circuits have

held that appellate review for substantial evidence is restricted

to the evidence before the ALJ, without regard to new evidence

submitted to the Appeals Council. E.g., Cotton v. Sullivan, 2 F.3d

692, 695-96 (6th Cir. 1993); Eads v. Secretary of Dep’t of Health

10 and Human Servs., 983 F.2d 815, 816-18 (7th Cir. 1993). We need

not reach the issue in this case because the result is the same

whether Dr. Cameron’s March 15, 1994, letter is considered or not.

If it is not considered, then the evidence provided by him is that

Prince can perform sedentary work. If we do consider Dr. Cameron’s

March 15, 1994, letter, there is still substantial evidence on the

record as a whole supporting the ALJ’s determination.

Dr. Cameron’s March 15, 1994, letter states that Prince “is

unable to tolerate standing or sitting for periods long enough to

allow even employment in a sedentary job. She would also have

great difficulties getting to and from a work place due to

increased pain with transportation activities.” This later letter

fails to explain——or even suggest——why Dr. Cameron’s opinion changed

since July 28, 1993. The March 1994 letter does not say that the

July 1993 letter is wrong or was not intended to mean what it says.

Dr. Cameron does not state in his March 1994 letter that he has

performed tests on Prince since the previous opinion, nor does he

indicate that he has examined her (or medical records pertaining to

her not previously examined) since that date. Though the medical

opinion of a claimant’s treating physician is ordinarily given

great weight, Greenspan, 38 F.3d at 237, a physician’s unexplained

and unsupported change of opinion need not be given controlling

weight in the disability determination. See Stanley v. Secretary

of Dep’t of Health and Human Servs., 39 F.3d 115, 118 (6th Cir.

1994). Consequently, the ALJ’s determination is supported by

substantial evidence when considering the record as a whole——even

11 if the March 15, 1994, letter is considered.

II. Remand

This Court has held that a case may be remanded to the

Commissioner for consideration of additional evidence if there is

new, material evidence and the claimant can show good cause for the

failure to incorporate such evidence into the record in a prior

proceeding. Latham v. Shalala, 36 F.3d 482, 483 (5th Cir.

1994)(quoting 42 U.S.C. § 405(g)). “For new evidence to be

material, there must exist the ‘reasonable possibility that it

would have changed the outcome of the [Commissioner’s]

determination.’” Id. (citation omitted). The evidence must also

relate to the time period for which benefits were denied, and not

concern evidence of a later-acquired disability or of the

subsequent deterioration of the previously non-disabling condition.

Johnson v. Heckler, 767 F.2d 180, 183 (5th Cir. 1985); see Latham,

36 F.3d at 483 & n. 2.

Prince contends that the district court should have remanded

her case for reconsideration by the Commissioner based on

information obtained after the Appeals Council denied her appeal.

Prince bases her contention on still another letter from Dr.

Cameron dated July 18, 1994, a letter from Dr. Pearson dated

October 17, 1994, hospital records regarding epidural blocks and an

MRI performed on Prince in September 1994, evidence that she had

attended vocational rehabilitation in July 1994, and a letter from

Dr. Kelly dated October 24, 1994. Prince’s contention is

unconvincing. She fails to show that any of this evidence meets

12 the requirement that it be both material and that there was good

cause for the failure to incorporate such evidence into the record

in the prior proceeding. See Latham, 36 F.3d at 483.

Dr. Cameron’s July 18, 1994, letter states that Prince was

unable to return to work because of the severity of her symptoms,

and he opined that Prince was totally disabled “from a standpoint

of return to employment.” Dr. Cameron wrote a similar letter,

dated March 15, 1994, which the Appeals Council considered in

making its decision to affirm the denial of benefits. The July

letter does not indicate that Dr. Cameron had observed or treated

Prince (or examined previously unexamined records pertaining to

her) after his March letter (or at any time after his contradictory

July 28, 1993 letter), and it provides no new medical evidence, and

does not explain the change in opinion from the July 1993 letter.

Therefore, it cannot meet the requirement that it provide a

reasonable possibility that it change the outcome.

The letters from Dr. Pearson and Dr. Kelly do not indicate

that either physician treated Prince during the relevant time

period or that her reported disability was likely to have existed

during the relevant time period. Dr. Pearson’s letter, dated

October 17, 1994, states that he had treated Prince “for the last

few months” for the pain caused by the herniated disc in her lumbar

spine. He opined that Prince’s pain and low back injury would

interfere with her functioning in a job requiring lifting or

prolonged sitting. He did not indicate that he treated Prince——or

that she was disabled——prior to either the ALJ hearing or the

Appeals Council decision. Dr. Pearson’s letter fails to provide

13 a reasonable possibility for changing the outcome of the disability

determination. See Leggett v. Chater, 67 F.3d 558, 567 (5th Cir.

1995) (examination after the relevant time period not basis for

remand when claimant fails to prove that disability was not the

result of the deterioration of a condition that was previously not

disabling).

Similarly, Dr. Kelly’s letter, dated October 24, 1994, states

that Prince suffered chronic back pain, insomnia, hypertension, and

significant depression, and she opines that Prince “is a very

credible candidate for disability benefits.” The letter does not

indicate that Prince was disabled during the relevant time frame.

If Dr. Kelly was treating Prince for significant depression during

the relevant time frame, Prince fails to show good cause for the

failure to put this in the record before the ALJ or the Appeals

Council. If Dr. Kelly was not treating Prince during the relevant

time frame, then her letter has no reasonable possibility of

changing the outcome on remand.4

Finally, neither the records of the epidural block and the MRI

performed on Prince in September 1994, nor the evidence that she

had seen a vocational rehabilitation counselor in July 1994,

provide a reasonable possibility for a change in outcome. None of

The Appeals Council considered a letter from Dr. Nicholson, dated March 28, 1994, indicating that he was treating Prince for depression and hypertension. Dr. Nicholson had prescribed the Xanax that she was taking on an “as needed” basis at the time of the hearing before the ALJ. As it appears that Dr. Nicholson was treating Prince during the relevant time period and that Prince had her depression under control at the time of the ALJ hearing, it is unlikely that a nontreating physician’s letter has a reasonable possibility of changing the outcome.

14 this evidence shows that Prince is disabled. Presumably, the

reports are evidence that she was in severe enough pain to seek to

have the pain blocked by this means. Although the ALJ relied in

part on Prince’s failure to seek emergency care for pain and her

reliance on conservative methods of treatment, this July and

September 1994 evidence is not material because it occurred outside

of the relevant time frame. See Johnson, 767 F.2d at 183. The

fact that Prince sought vocational rehabilitation in July 1994 also

fails to provide a reasonable possibility that the result of her

disability determination would be different on remand.

Conclusion

For the foregoing reasons the district court’s judgment in

favor of the Commissioner is

AFFIRMED.