Weight of
Non-Examining Reviewing Consultant
Circuit-by-circuit
cases for arguing that the ALJ or Appeals Council improperly considered
functional restrictions.
by Sarah H. Bohr
Excerpted from
Social Security
Issues Annotated
Almost every circuit has rendered
decisions as to the weight to be accorded to non-examining source
opinions. The majority of the circuits have held that a non-examining
source’s opinion is entitled to some weight, depending on whether it is
supported by substantial evidence in the record. Practitioners sometimes
assume that the non-examining consultant’s opinion can never be used to
the claimant’s advantage. In many cases, the content of the
non-examining consultant’s evaluation contains functional restrictions
that might not have been considered by the ALJ or the Appeals Council.
The cases discussed below can be used to support arguments that the ALJ
or the Appeals Council improperly considered the functional restrictions
described by the non-examining source or, where appropriate, that the
ALJ failed to consider certain limitations set forth by non-examining
reviewing consultants.
Applicable Regulations
20 C.F.R. §§ 404.1527, 416.927
The regulations were clarified in 2000
to provide that while ALJs “are not bound by any findings made by State
agency medical or psychological consultants, or other program physicians
or psychologists,” these consultants and other program physicians and
psychologists “are highly qualified physicians and psychologists who are
also experts in Social Security disability evaluation.” The regulations
further provide that ALJs “must consider findings of State agency
medical and psychological consultants or other program physicians or
psychologists as opinion evidence, except for the ultimate determination
about whether you are disabled.”
Because non-examining sources do not
have an examining or treating relationship with the claimant, the weight
accorded to their opinions depends upon the degree to which they provide
supporting explanations for their opinions. In addition, the SSA will
evaluate the degree to which these opinions consider all of the
pertinent evidence in a claim, including opinions of treating and other
examining sources.
These regulations also provide that
when evaluating the opinions of non-examining sources, the SSA will
apply the rules set forth in paragraphs (a) through (e) of §§ 404.1527
and 416.927. ALJs are not bound by any findings made by state agency
medical or psychological consultants. Further, “[u]less the treating
source’s opinion is given controlling weight, the administrative law
judge must explain in the decision the weight given to the opinions of a
State agency medical or psychological consultant or other program
physician or psychologist, as the administrative law judge must do for
any opinions from treating sources, non-treating sources, and other
non-examining sources who do not work for us.”
See 65 Fed. Reg. 11,866 (Mar.
7, 2000).
Applicable Rulings
Social Security Ruling 96-6p
SSR 96-6p provides that findings of
fact made by state agency medical and psychological consultants and
other program physicians and psychologists regarding the nature and
severity of an individual’s impairment(s) must be treated as expert
opinion evidence of non-examining sources at the ALJ and Appeals Council
levels of administrative review. ALJs and the Appeals Council may not
ignore these opinions and must explain the weight given to these
opinions in their decisions.
As explained by SSR 96-6p, the
regulations provide “progressively more rigorous tests for weighing
opinions as the ties between the source of the opinion and the
individual become weaker.” For example, SSR 96-6p states that opinions
of physicians or psychologists who do not have a treatment relationship
with the individual are weighed by stricter standards, based to a
greater degree on medical evidence, qualifications, and explanations for
the opinions, than are required of treating sources.
Thus, SSR 96-6p concludes that the
opinions of State agency medical and psychological consultants and other
program physicians and psychologists can be given weight only insofar as
they are supported by evidence in the case record, considering such
factors as (1) the supportability of the opinion in light of the
evidence in the record; (2) consistency with the record, including other
medical opinions; (3) and any explanation for the opinion.
SSR 96-6p further provides that in
some cases, opinions from state agency medical and psychological
consultants and other program physicians and psychologists may be
entitled to greater weight than the opinions of treating or examining
sources. For example, the state agency medical or psychological
consultant or other program physician or psychologist’s opinion may be
accorded greater weight than the treating physician if the state agency
consultant’s opinion is based on a review of a complete case record
versus the treating physician’s access to his or her own progress notes.
Social Security Ruling 96-7p
SSR 96-7p confirms that ALJs and the
Appeals Council are required to consider findings of fact by state
agency medical and psychological consultants and other program
physicians and psychologists about the existence and severity of an
individual’s impairment(s), including the existence and severity of any
symptoms. Id. While ALJs and
the Appeals Council are not bound by any state agency findings, they may
not ignore these opinions and must explain the weight they give to the
opinions in their decisions. Id.
Applicable Case Law
First Circuit
RFC assessments prepared by
consultative non-examining physicians may constitute substantial
evidence, particularly when supported by other evidence in the record.
Giancola v. Shalala, 913 F.
Supp. 638, 645 (1st
Cir. 1996), citing Berrios Lopez
v. Secretary of Health & Human Servs., 951 F.2d 427, 431 (1st
Cir. 1991) (stating that a non-examining agency physician’s report can
sometimes constitute substantial evidence) and
Gordils v. Secretary of Health &
Human Servs., 921 F.2d 327, 329 (1st
Cir. 1990).
In 1994, the First Circuit held that
the amount of weight accorded to a non-testifying, non-examining
physician will vary with the circumstances, including the nature of the
illness and the information provided to the expert.
Rose v. Shalala, 34 F.3d 13,
18 (1st
Cir. 1994), citing Berrios Lopez
v. Secretary of HHS, 951 F.2d 427, 431 (1st
Cir. 1991) (per curiam) (citation omitted). The court further noted that
in some cases, written reports submitted by non-testifying,
non-examining physicians cannot alone constitute substantial evidence.
Id.
The First Circuit held that an
advisory report prepared by a non-examining, non-testifying physician is
entitled to some evidentiary weight, which “will vary with the
circumstances, including the nature of the illness and the information
provided the expert.” Gordils v.
Secretary of Health and Human Servs., 921 F.2d 327, 328 (1st
Cir. 1990). In Gordils, the
court stated that the Secretary is not “precluded from rendering
common-sense judgments about functional capacity based on medical
findings, as long as the Secretary does not overstep the bounds of a lay
person’s competence and render a medical judgment.”
Id. at 329. The court
provided the following example:
Id.
The First Circuit distinguished
between a testifying and non-testifying, non-examining medical advisor,
noting that the testifying medical examiner is subject to
cross-examination. Torres v.
Secretary of Health and Human Servs., 870 F.2d 742, 744 (1st
Cir. 1989). The court further noted that whether the testimony of a
medical advisor who reviews the record and testifies at the hearing can
alone constitute substantial evidence varies with the circumstances,
including the nature of the illness and the information provided to the
advisor. Id.
In
Morales Colon v. Comm’r of Soc.
Sec., 245 F. Supp.2d 395 (D.P.R. 2003), a Puerto Rican district
court noted that both non-examining physicians failed to adequately
explain how or why they reached said conclusion, as well as failed to
make any reference to evidence in the record which supported their
findings:
Id.
at 400. The court also noted that in the First Circuit, absent a
residual functional capacity assessment from an examining physician, an
ALJ is not equipped to conclude that a claimant’s condition presents no
significant limitation on the ability to work, and an “ALJ, as a lay
fact finder, lacks the expertise to make a medical conclusion.”
Id. Finally, the court
observed that ALJs “in this district repeatedly fail to obtain RFC
assessments from examining physicians, notwithstanding the First
Circuit’s mandate.” Id. at
401.
A report given by a non-treating
physician is entitled to evidentiary weight, but cannot be the sole
factor of an ALJ’s decision.
Chelte v. Apfel, 76 F. Supp.2d 104, 109 (D. Mass. 1999),
citing Browne v. Richardson,
468 F.2d 1003, 1006 (1st
Cir. 1972); Berrios-Lopez v.
Secretary of Health & Human Servs., 951 F.2d 427, 431 (1st
Cir. 1991). The weight given such a report should vary depending on the
circumstances. Id. Among the
factors to consider is “the availability of most of the medical evidence
to the non-examining physician.”
Id. Where the non-examining physicians only reviewed a partial
record, never seeing vital information contained in the unreviewed
portion, their report, while noteworthy, cannot be the sole factor in
determining disability. Id.
See also
Rosario v. Apfel, 85 F.
Supp.2d 62, 68 (D. Mass. 2000) (holding that the opinions of
non-examining physicians could not be the sole factor in determining
disability since none of the evidence of the claimant’s liver disease
was in the record reviewed by these physicians, and these physicians
only reviewed a partial record and did not see vital information
contained in the unreviewed portion).
A district court remanded a case, in
part, because an ALJ failed to consider the findings of the SSA’s
non-examining consultant made on a psychiatric review form.
Guyton v. Apfel, 20 F.
Supp.2d 156, 164-65 (D. Mass. 1998).
A district court summarized First
Circuit case law as providing that the amount of weight that can
properly be given the conclusions of non-testifying, non-examining
physicians will vary with the circumstances, including the nature of the
illness and the information provided the expert.
Hallgring v. Callahan, 975 F.
Supp. 84, 91-92 (D. Mass. 1997). The court added that in cases involving
chronic fatigue syndrome, the weight to be given a non-testifying,
non-examining physician, when compared to contrary evidence given by a
treating physician, is to be substantially discounted because “[t]he
subjective severity of a claimant’s fatigue associated with CFS is not
something readily evaluated on an algid administrative record.”
Id.
Reports from non-examining advisors
cannot by themselves “trump the findings” from treating physicians.
Weiler v. Shalala, 922 F.
Supp. 689, 697 (D. Mass. 1996).
In
Rosario v. Apfel, 85 F.
Supp.2d 62 (D. Mass. 2000), the court found that the ALJ should have
accorded controlling weight to the opinion of the treating physician,
“in preference to the inconsistent views of the non-treating
physicians.” Id. at 67. The
court also discussed “another reason” for according the non-examining
physicians “minimal, if any, weight”: they relied on a review of only a
partial record. Id. at 68.
While a “report given by a non-treating physician is entitled to
evidentiary weight but cannot be the sole factor of an ALJ’s decision,”
and the weight accorded to such an opinion depends on the circumstances.
Id., citing Browne v. Richardson,
468 F.2d 1003, 1006 (1st
Cir. 1972); Berrios Lopez v.
Sec’y of Health & Human Servs., 951 F.2d 427, 431 (1st
Cir. 1991); DiVirgilio v. Apfel,
21 F. Supp.2d 76, 80-81 (D. Mass. 1998). One of the factors to consider
is whether most of the medical evidence is available to the
non-examining physician. In this case, as none of the claimant’s records
pertaining to his liver disease was included in the records DDS
reviewers used in making their determinations, their report cannot be
the sole factor in determining disability.
Id.
The court noted that the ALJ could not
have discredited the RFC assessment of two treating physicians by virtue
of a conflicting RFC assessment prepared by a non-examining physician.
Martinez v. Comm’r of Soc. Sec.,
306 F. Supp.2d 98, 99 (D.P.R. 2004). “To make matters worse, said RFC
report . . . is extremely general in nature, contains no explanations,
and, erroneously states that there are no treating/examining source
conclusions of record which significantly differ.”
Id. at 100.
Where the ALJ assigned little weight
to the opinion of a treating physician, in part, because his opinion was
“not adequately explained or supported,” the court noted that neither
the doctor’s report nor her opinion differs significantly from the
format of the reports and opinions of the two non-examining agency
physicians to whom the ALJ gave controlling weight.
Arroyo v. Barnhart, 295 F.
Supp.2d 214, 222 (D. Mass. 2003). Moreover, neither report of the two
agency physicians cites anything other than the claimant’s medical
history, which was the same approach taken by the treating physician,
but found lacking by the ALJ. Id.
Where the ALJ failed to comment on a
state agency non-examining physician’s opinion that the claimant should
work in a relatively isolated work station, the court held that the
ALJ’s failure to take medical evidence into account and explain the
weight afforded such evidence was error.
Quigley v. Barnhart, 224 F.
Supp.2d 357, 367-68 (D. Mass. 2002).
The weight to be given to a
non-examining medical advisor’s opinions depends upon the degree to
which the source has provided supporting explanations for those
opinions. Oliveras v. Shalala,
870 F. Supp. 411, 415 (D. Mass. 1994).
“While written reports submitted by
non-examining physicians who merely reviewed the written medical
evidence are not substantial evidence, these may serve as supplementary
evidence for the ALJ to consider in conjunction with the examining
physicians’ reports.”
Irizarry-Sanchez v. Commissioner of Soc. Sec., 253 F. Supp.2d 216,
219 (D.P.R. 2003), citing
Rodriguez v. Sec’y of HHS, 647 F.2d 218, 222 (1st
Cir. 1981); Browne v. Richardson,
468 F.2d 1003, 1006 (1st
Cir. 1972).
A Massachusetts district court held
that the ALJ “reasonably relied” upon the opinion of a non-examining
physician, among others, in assessing the claimant’s residual functional
capacity. Reeves v. Barnhart,
263 F. Supp.2d 154, 161 (D. Mass. 2003). The court noted that this
physician’s opinion was supported by the objective medical evidence,
including evidence provided by Plaintiff’s treating and examining
physicians, and was not inconsistent with other medical evidence of
record. Id.
See also
Coggon v. Barnhart, 354 F.
Supp.2d 40, 61 (D. Mass. 2005) (holding that in determining the
claimant’s residual functional capacity, the ALJ properly relied on the
functional assessments of the non-examining physicians and appropriately
considered the opinion of the claimant’s treating physician);
Sexton v. Barnhart, 247 F.
Supp.2d 15, 24-25 (D. Mass. 2003) (holding that the ALJ appropriately
considered the opinions and findings of the non-examining physicians,
along with all the other available medical opinions, and found them to
be accurate descriptions of the claimant’s condition and consistent with
the other evidence of record).
Where the limitations placed on the
claimant by the treating physician in his residual functional capacity
assessment were inconsistent with his own treatment records
and the entire medical record as a whole, it was entirely
permissible for the ALJ to grant greater weight to the non-examining
physician’s assessment. Castro v.
Barnhart, 198 F. Supp.2d 47, 55-56 (D. Mass. 2002).
See also
Rivera De Jesus v. Comm’r of Soc.
Sec., 286 F. Supp.2d 103, 107 (D.P.R. 2003) (holding that the
opinions two non-examining State agency physicians constituted
substantial evidence to support the ALJ’s decision, noting that both
physicians independently concurred that the claimant could perform light
work).
The court held that the ALJ did not
err in affording little evidentiary weight to the residual functioning
capacity assessments and the opinions proffered by the claimant’s
treating physicians, noting that the:
Arruda v. Barnhart,
314 F. Supp.2d 52, 72 (D. Mass. 2004),
citing 20 C.F.R. §§
404.1527(d)(2)-(4) & 416.927(d)(2)-(4).
A Massachusetts district court held
that non-examining physicians’ opinions, taken in context with treating
source reports, physical therapy reports, consultative examinations, and
the claimant’s credible pain complaints, together constituted
substantial evidence to support the ALJ’s decision.
DiVirgilio v. Apfel, 21 F. Supp.2d 76, 82 (D. Mass. 1998).
In DiVirgilio, the court
found that there was “broad agreement” between the two non-examining
physicians’ advisory opinions which provided “a level of agreement
sufficient for their advisory opinions to be considered substantial
evidence.” Id. Further, the
court upheld the “extremely low evidentiary weight” accorded to the
claimant’s treating physician whose conclusions were found to be
“internally inconsistent” and whose records had been reviewed by the
non-examining physicians. Id.
at 81.
The ALJ properly discounted a treating
physician’s opinion in favor of a non-examining, testifying physician’s
opinion, where he specifically considered the opinion and found it to be
internally inconsistent and unsupported by his treatment notes.
Boisvert v. Callahan, 997 F.
Supp. 183, 186 (D. Mass. 1998).
A Rhode Island district court
acknowledged that while in some cases written reports submitted by
non-testifying, non-examining physicians cannot alone constitute
substantial evidence, “this is not an ironclad rule.”
Brown v. Apfel, 71 F. Supp.2d
28, 39 (D.R.I. 1999), citing
Browne v. Richardson, 468 F.2d 1003, 1006 (1st
Cir. 1972); Rose v. Shalala,
34 F.3d 13, 18 (1st
Cir. 1994); Berrios Lopez v.
Secretary of Health & Human Servs., 951 F.2d 427, 431 (1st
Cir. 1991). Whether or not such evidence is considered substantial
varies depending on the
circumstances, including the nature of the illness and the information
provided by the expert. Id.
The court held that these reports
constituted substantial evidence of the ALJ’s conclusion in this case
because, as in Berrios Lopez:
Id.
RFC assessments prepared by consultive
non-examining physicians may constitute substantial evidence,
particularly when supported by other evidence in the record.
Giancola v. Shalala, 913 F. Supp. 638, 645 (D. Mass. 1996),
citing Berrios Lopez v. Sec’y of
Health & Human Servs., 951 F.2d 427, 431 (1st
Cir. 1991); Gordils v. Sec’y of
Health & Human Servs., 921 F.2d 327, 329 (1st
Cir. 1990).
Second Circuit
The Second Circuit held that a
non-examining source’s opinion that was based on incomplete medical
records did not constitute substantial evidence to uphold the ALJ’s
decision. Pratts v. Chater,
94 F.3d 34, 38 (2d Cir. 1996).
Evidence relied upon by the
Commissioner in the form of a non-examining physician’s report did not
constitute substantial evidence to override the treating physician’s
assessment of the claimant’s ability to perform specific types of tasks.
Hidalgo v. Bowen, 822 F.2d
294, 298 (2d Cir. 1987).
In
Rodriguez v. Barnhart, 249 F.
Supp.2d 210 (E.D.N.Y. 2003), the court held that the record did not
contain substantial evidence to support the ALJ’s findings, as all of
the claimant’s treating sources have concluded that he was disabled,
none of the examining physicians made findings that contradicted the
conclusions of the treating sources, and the only doctor who did
conclude that the claimant was not disabled was a non-examining doctor
whose opinion was entitled to little weight.
Id. at 214. In so holding,
the court noted that the testimony of the non-examining physician did
not constitute substantial evidence to overcome the opinions of the
treating physicians that the claimant was disabled.
Id.
A New York district court held that
the ALJ erred in according controlling weight to the opinion of a
medical advisor “who admitted that he was ‘not quite sure what’s going
on here’” and who also made inaccurate statements regarding the content
of the medical records. Downey v.
Barnhart, 294 F. Supp.2d 495, 501 (S.D.N.Y. 2003). In so holding,
the court first noted that the “regulations do not contemplate that the
opinions of a non-examining physician be treated as substantial
evidence.” Id., citing 20
C.F.R.§ 404.1527(d)(1). Second, the factual errors by the medical
expert, his hesitation about giving an opinion, and his admission that
he was “not quite sure what’s going on here,” constitute grounds for
reversal. Id. at 502.
The court observed that the ALJ’s
decision was “clear” that the ALJ relied primarily on the opinions of
the non-examining, non-treating review physicians in finding that the
claimant’s alcohol abuse was material to the determination of
disability. Frederick v. Barnhart,
317 F. Supp.2d 286, 298 (W.D.N.Y. 2004). The court held that the ALJ’s
reliance on these opinions was legal error because: (1) their opinions
were offered in early 1999, before the claimant began treatment at a
mental health center and none of the reviewing physicians had the
benefit of the medical records from that facility; (2) their findings
are not consistent with the other medical evidence of record and were
not adequately explained; and (3) none of the reviewing physicians had a
treatment relationship with claimant.
Id. at 298-99.
The court held that the ALJ erred in
placing “great weight” on the opinion of a non-examining psychiatrist
regarding the claimant’s ability to work was not appropriate in light of
the nature of the claimant’s alleged impairment of fibromyalgia.
Willoughby v. Comm’r of Soc. Sec.,
332 F. Supp.2d 542, 549-50 (W.D.N.Y. 2004),
citing 20 C.F.R. §
416.927(f).
A district court reaffirmed the case
law that the opinion of a non-examining, consultative physician, without
more, is insufficient to constitute the requisite contrary substantial
evidence to override the diagnosis of a treating physician.
Harnisher v. Apfel, 40 F.
Supp.2d 121, 128 (E.D.N.Y. 1999).
The Commissioner may rely on the
opinions of other physicians, even non-examining ones, but he must weigh
the same regulatory factors as required for evaluating treating
physicians’ opinions and must generally give more weight to a treating
source than a non-treating one and to an examining source than to a
non-examining one. Echevarria v.
Apfel, 46 F. Supp.2d 282, 292 (S.D.N.Y. 1999). Where the ALJ
discounted the claimant’s treating physician’s opinion because he only
saw the claimant a few times, the court observed the following:
Id.
at 296-97.
A medical advisor’s assessment of
“what other doctors find is hardly a basis for competent evaluation
without a personal examination of the claimant.’”
Pagan on Behalf of Pagan v.
Chater, 923 F. Supp. 547, 555 (S.D.N.Y. 1996),
quoting Vargas v. Sullivan,
898 F.2d 293, 295 (2d Cir. 1990).
The general rule is that the written
reports of medical advisors who have not personally examined the
claimant deserve little weight in the overall evaluation of disability.
Minsky v. Apfel, 65 F.
Supp.2d 124, 139 (E.D.N.Y. 1999). The advisers’ assessment of what other
doctors find is hardly a basis for competent evaluation without a
personal examination of the claimant.
Id. In the face of the
overwhelming record evidence of disability, the findings of the
non-examining reviewing doctors “are entitled to relatively little
weight.”
ALJs may not ignore findings of fact
made by State agency medical consultants and “must explain the weight
given to these opinions in their decisions,” in accordance with SSR
96-6p. Batista v. Chater, 972
F. Supp. 211, 219-220 (S.D.N.Y. 1997).
Thus, the court cannot permit the unexplained dismissal of the
medical evidence in a claimant’s favor.
Id., citing Fiorello v.
Heckler, 725 F.2d 174, 176 (2d Cir. 1983).
Where the ALJ’s own non-examining
medical expert was of the opinion that the claimant’s condition met the
criteria for Listing 11.09C for multiple sclerosis, and other records
supported the same opinion, the ALJ was not entitled to substitute his
own medical opinion to find that the claimant did not suffer any
“continuing severe emotional problems that would exacerbate [her]
multiple sclerosis” and therefore did not suffer from a condition that
met the listing requirements.
Mahoney v. Apfel, 48 F. Supp.2d 237, 245 (E.D.N.Y 1999)
A district court found that the
opinions of non-examining sources can override the opinions of treating
sources, only if the opinion of the non-examining source is supported by
substantial evidence in the record.
Fuller v. Shalala, 898 F.
Supp. 212, 217 (S.D.N.Y. 1995).
Third Circuit
The Third Circuit has expressed
skepticism regarding RFC reports completed by “SSA physicians” in which
boxes are checked and blanks completed, noting “[f]orm reports in which
a physician’s obligation is only to check a box or fill in a blank are
weak evidence at best” and when they are not accompanied by “thorough
written reports, their reliability is suspect.”
Claussen v. Chater, 950 F.
Supp. 1287, 1291, 1296, n. 10 (D.N.J. 1996),
citing Mason v. Shalala, 994
F.2d 1058, 1065 (3d Cir. 1993).
A Pennsylvania district court noted
that the only medical opinions of record which support the ALJ’s RFC
finding are those of the non-examining state agency physicians which do
not amount to substantial evidence.
Bennett v. Barnhart, 264 F.
Supp.2d 238, 260 (W.D. Pa. 2003).
A Delaware district court held that
the ALJ properly considered the state agency physician’s opinions that
the claimant was not precluded from all work activity.
Bush v. Barnhart, 279 F.
Supp.2d 512, 520 (D. Del. 2003),
citing Jones v. Sullivan, 954 F.2d 125, 129 (3d Cir. 1991) (stating
that the ALJ may give great weight to the opinion of a non-examining
physician, and such opinion may constitute substantial evidence to
support the ALJ’s decision).
Fourth Circuit
The report of a non-examining,
non-treating physician should be discounted and is not substantial
evidence when contradicted by all other evidence in the record.
Millner v. Schweiker, 725
F.2d 243, 245 (4th
Cir. 1984), citing Hall v. Harris,
658 F.2d 260, 265-66 (4th
Cir. 1981) (stating that the physical capacities evaluation prepared by
the state agency’s physician, if accepted at face value, might support a
conclusion that the claimant could do sedentary, light, or even medium
work, but that the physician never saw or examined her and based his
evaluation on medical reports which simply do not furnish this
information) and
Hayes v. Gardner, 376 F.2d
517, 521 (4th
Cir. 1967) (concluding that in view of the opinion evidence as to the
existence of a disability, combined with the overwhelming medical facts,
the uncontradicted subjective evidence, and the claimant’s vocational
background, the opinion of a doctor who never examined or treated the
claimant could not serve as substantial evidence to support the
Commissioner’s finding).
The district court stated that the
opinion of a non-examining, non-treating physician is not substantial
evidence when it is contradicted by all other evidence in the record.
Mathis by Mathis v. Shalala,
890 F. Supp. 461, 463 (E.D.N.C. 1995).
Fifth Circuit
In
Newton, the court held that
the ALJ’s reliance on the conclusory and unsubstantiated opinion of a
non-treating, non-examining medical expert did not constitute
substantial evidence to support a finding that the claimant could
perform sedentary work. Newton v.
Apfel, 209 F.3d 448, 457 (5th
Cir. 2000). See also Myers v.
Apfel, 238 F.3d 617, 621 (5th
Cir. 2001) (holding that the ALJ erred in failing to resolve the
inconsistencies in the evidence in that he relied on the opinion of the
ME, a non-examining, non-treating physician, who “based his conclusion
that she met the requirements for sedentary work on an incomplete
reading of the treating physicians’ reports,” while the medical evidence
indicated that the claimant could not meet these requirements).
The district court held that although
the opinion of an examining physician is generally entitled to more
weight than the opinion of a non-examining physician, the ALJ should
reject the opinion of any
physician when the evidence supports a contrary conclusion.
Fergusen v. Secretary of HHS,
919 F. Supp. 1012, 1020 (E.D. Tex. 1996),
citing Spellman v. Shalala, 1
F.3d 357, 364-65 (5th
Cir. 1993) (finding that the Appeals Council acted within its discretion
in rejecting the treating physician’s opinion that the claimant could
not perform sedentary work, because the treating physician’s opinion was
inconsistent with the other substantial evidence in the record);
Bradley v. Bowen, 809 F.2d
1054, 1057 (5th
Cir. 1987) (reaffirming that although the opinion of an examining
physician is generally entitled to more weight than the opinion of a
non-examining physician, the ALJ is free to reject the opinion of any
physician when the evidence supports a contrary conclusion);
and
Milam v. Bowen, 782 F.2d
1284, 1287 (5th
Cir. 1986).
The ALJ may rely on the determination
of a non-examining physician when those findings are based on a careful
evaluation of the medical evidence and do not contradict those of the
examining physicians. Eaves v.
Secretary of Health and Human Servs., 877 F. Supp. 334, 344 (E.D.
Tex. 1995).
“The ALJ may rely on a non-examining
physician’s assessments where those findings are based upon a careful
examination of the medical evidence and do not contradict those of an
examining physician.” Hector v.
Barnhart, 337 F. Supp.2d 905, 926 (S.D. Tex. 2004),
citing Carrier v. Sullivan,
944 F.2d 243, 246 (5th
Cir. 1991); Villa v. Sullivan,
895 F.2d 1019, 1024 (5th
Cir. 1990); Ransom v. Heckler,
715 F.2d 989, 993-94 (5th
Cir. 1983).
In
Alejandro v. Barnhart, 291 F. Supp.2d 497 (S.D. Tex. 2003), the
court discussed the law pertaining to considering opinions of State
agency non-examining physicians:
Id.
at 515. After surveying the law regarding “harmless error,” the court
held that the ALJ’s failure to consider the findings of the state agency
non-examining physician was harmless error.
Id. at 516-17.
Sixth Circuit
The testimony of the non-examining
advisor could not provide a sufficient basis for rejecting the opinions
of the claimant’s treating physicians since a non-examining physician’s
opinion is entitled to little weight if it is contrary to the claimant’s
treating physician’s opinion.
Shelman v. Heckler, 821 F.2d 316, 321 (6th
Cir. 1987).
An Ohio district court noted that a
treating physician’s opinion is entitled to weight substantially greater
than that of a non-examining medical advisor.
Roush v. Barnhart, 326 F. Supp.2d 858, 865 (S.D. Ohio 2004),
citing Harris v. Heckler, 756
F.2d 431, 435 (6th
Cir. 1985); Lashley v. Secretary
of H.H.S., 708 F.2d 1048, 1054 (6th
Cir. 1983)
Seventh Circuit
The Seventh Circuit held that the ALJ
erred in relying entirely on the testimony of a non-examining,
non-specialist medical consultant hired to review the claimant’s medical
records without fully analyzing the other medical evidence contained in
the record, especially given the evidence by a specialist in the field
of the relevant disease who actually examined the applicant and opined
that the claimant’s condition met the requirements of Listing 1.05(C).
Groves v. Apfel, 148 F.3d
809, 811 (7th
Cir. 1998). In so holding, the court noted that even though the
physician was neither a neurologist nor an orthopedist, these were not
“disqualifications,” but underscored “the importance to a rational
decision of taking account of the other medical evidence in the record,
especially the evidence given by a specialist in the relevant disease
who actually examined the applicant.”
Id., citing 20 C.F.R. §
416.927(d); Books v. Chater,
91 F.3d 972, 979 (7th
Cir. 1996).
“An ALJ can reject an examining
physician’s opinion only for reasons supported by substantial evidence
in the record; a contradictory opinion of a non-examining physician does
not, by itself, suffice.” Gudgel
v. Barnhart, 345 F.3d 467, 470 (7th
Cir. 2003). Followed,
Windus v. Barnhart, 345 F.
Supp.2d 928, 945 (E.D. Wis. 2004) (holding that the ALJ erred in relying
on non-examining State agency physicians);
Mason v. Barnhart, 325 F.
Supp.2d 885, 901 (E.D. Wis. 2004) (determining that the ALJ erred in
failing to support his conclusion with the opinion of any examining
source); Samuel v. Barnhart,
316 F. Supp.2d 768, 776 (E.D. Wis. 2004) (holding that the ALJ erred in
relying on the report of a non-examining, State agency consultant, who
found that the claimant did not have a severe impairment as the reports
of the examining physicians revealed that the claimant had a severe
impairment); Wates v. Barnhart,
288 F. Supp.2d 947, 951-52 (E.D. Wis. 2003) (holding that the
contradictory opinion of a non-examining physician is not, by itself,
sufficient to justify rejection of a treating source opinion and it was
not reasonable for the ALJ to adopt the contrary opinions of the agency
physicians given his finding that the treating physician opinions were
“consistent” with the record).
The Seventh Circuit generally
discussed the various cases addressing the weight to be accorded a
non-examining physician’s opinion, without providing final direction as
to the appropriate weight. See
DeFrancesco v. Bowen, 867 F.2d 1040, 1043 (7th
Cir. 1989) (setting out the comparative strengths and weaknesses of each
side of the issue).
In a case where none of the medical
experts were treating physicians, and where the ALJ did not improperly
reject an examining physician’s opinion in favor of a non-examining
physician’s opinion, but where one examining physician’s opinion was
contradicted by several other examining and non-examining physicians’
opinions, the Seventh Circuit held that the ALJ properly weighed the
evidence and the decision was supported by substantial evidence.
Young v. Barnhart, 362 F.3d
995, 1001-02 (7th
Cir. 2004), citing Gudgel v.
Barnhart, 345 F.3d 467, 470 (7th
Cir. 2003)
In
Johnson v. Apfel, 189 F.3d 561 (7th
Cir. 1999), the Seventh Circuit held that the ALJ’s opinion as to the
claimant’s RFC was based on substantial evidence and that he properly
relied on the opinions of the non-examining state agency physicians even
though the ALJ failed to point out that on their RFC forms, under
“manipulative limitations,” these physicians had checked the box for
“limited” in the ability to reach in all directions, including overhead.
Id. at 564. As noted by the
court:
Id.
In
Flener ex rel. Flener v. Barnhart,
361 F.3d 442 (7th
Cir. 2004), a children’s SSI case, the Seventh Circuit rejected the
child claimant’s argument that he had an extreme limitation in social
functioning in light of the fact that three non-examining state agency
sources did not find such a limitation.
Id. at 448. The child argued
that raw test data showed such an extreme limitation and, therefore,
that the ALJ should have obtained medical-expert testimony to ascertain
whether the data showed an extreme limitation.
Id. The Seventh Circuit
differed, stating that a court should “generally” respect the ALJ’s
“reasoned judgment” on the development of the record.
Id. at 448. Further, the
claimant had primary responsibility for providing evidence, and several
non-examining state-agency sources reviewed the raw test data without
noting an extreme limitation. Id.
Some courts have upheld reliance on
non-examining physicians’ opinion.
See, e.g, Scott v. Callahan, 977 F. Supp. 856, 869 (N.D. Ill. 1997)
(finding that the ALJ was permitted to rely on the opinion of the
agency-retained medical consultant in finding that the claimant could
perform the full range of sedentary work since the consultant’s RFC
assessment was compatible with the demands of sedentary work);
Sedrak v. Callahan, 987 F.
Supp. 1063, 1068 (N.D. Ill. 1997) (stating that the opinions of
reviewing doctors may constitute substantial evidence);
Townsend v. Apfel, 47 F.
Supp.2d 958, 964 (N.D. Ill. 1999) (rejecting the claimant’s argument
that the ALJ improperly discredited her treating physician’s opinion in
favor of a non-examining physician, reasoning that neither opinion was
that favorable nor differed significantly from one another).
Eighth Circuit
In
Nevland v. Apfel, 204 F.3d
853 (8th
Cir. 2000), the Eighth Circuit stated that the “opinions of doctors who
have not examined the claimant ordinarily do not constitute substantial
evidence on the record as a whole.”
Id. at 858. The court held where there was no medical evidence about
how the claimant’s impairments affected his present ability to function,
and where the ALJ relied on the opinions of non-treating, non-examining
physicians who reviewed the reports of the treating physicians to form
an opinion of the claimant’s RFC, the ALJ did not satisfy his duty to
fully and fairly develop the record.
Id.
In
Shontos v. Barnhart, 328 F.3d 418 (8th
Cir. 2003), the Eighth Circuit reiterated that the “opinions of
non-treating practitioners who have attempted to evaluate the claimant
without examination do not normally constitute substantial evidence on
the record as a whole.” Id.
at 427, citing Jenkins v. Apfel,
196 F.3d 922, 925 (8th
Cir. 1999). The court held that the ALJ improperly discounted the
opinion of a clinical psychologist as a treating source because he had
not treated the claimant for half a year at the time he completed an
assessment. Id. at 425.
However, the regulations do not require that a treating source be
currently treating the claimant and since the psychologist had, at the
very least, an examining relationship, his opinion was entitled to more
weight than the opinion of a non-examining source.
Id. See also Jenkins v. Apfel, 196 F.3d 922, 924-25 (8th
Cir. 1999) (holding that newly submitted evidence to the Appeals Council
undermined the ALJ’s assessment of the claimant’s RFC which was solely
based on the opinion of a non-treating, non-examining physician).
In
Dixon v. Barnhart, 324 F.3d
997 (8th
Cir. 2003), the Eighth Circuit held that the ALJ relied too heavily on
the opinions of a State agency reviewing physician, which was the only
evidence supporting the ALJ’s determination that the claimant could
perform medium work. Id. at
1002, citing
Nevland v. Apfel, 204 F.3d
853, 858 (8th
Cir. 2000). Given the contradicting recommendations from the claimant’s
treating physician and the examining physician and the insufficiently
developed record surrounding the claimant’s cardiac problems, the Eighth
Circuit held that the State agency opinion did not constitute
substantial record evidence that the claimant could perform medium work.
Id. at 1002-03.
See also Goose v. Apfel, 238
F.3d 981, 984 (8th
Cir. 2001) (holding that one non-testifying, non-examining expert’s
opinion cannot be considered substantial evidence to defeat the decision
of the ALJ which is supported by substantial evidence”).
In
Lauer v. Apfel, 245 F.3d 700
(8th
Cir. 2001), the Eighth Circuit rejected the Commissioner’s argument that
the ALJ’s mental RFC was supported by the opinion of the “non-examining”
consultant. Id. at 705. The
court noted that this doctor did not have the benefit of a review of the
treating psychiatrist’s assessment or the report of the consulting
psychologist selected by SSA. Id.
The weight to accord the opinion of “non-examining sources” depends on
the “degree to which they provide supporting explanations,” and the
consultant did not provide any “specific medical findings” to support
his mental RFC assessment. Id.,
citing 20 C.F.R. §
404.1527(d)(3). Furthermore, since the consultant did not find that the
claimant suffered from somatoform impairment (which the ALJ found to be
a severe impairment), the court rejected the Commissioner’s contention
that the ALJ relied on the consultant’s opinion as he “did not even
agree with the ALJ as to the existence vel non of those impairments.”
Id.
See also
Nevland v. Apfel,
204 F.3d 853, 858 (8th
Cir. 2000) (noting that the opinions of
non-examining physicians ordinarily do not constitute substantial
evidence on the record as a whole).
In
Cruze v. Chater, 85 F.3d
1320, 1325 (8th
Cir. 1996), the Eighth Circuit upheld an ALJ’s conclusion as to a
claimant’s RFC that conflicted with the opinion of a treating physician
because it was supported by the medical opinions of two non-examining
consulting physicians and by evidence of the claimant’s daily
activities. Id.
See also Pierce v. Apfel, 173
F.3d 704 707 (8th
Cir. 1999) (holding that the ALJ properly rejected the conclusion of the
SSA examining consultant that the claimant had only “fair” abilities to
perform certain work-related functions because it conflicted with the
evidence of record, including the claimant’s testimony which indicated
that he could perform responsibly in the workplace).
The Eighth Circuit reiterated in
Harvey v. Barnhart, 368 F.3d
1013, 1016 (8th
Cir. 2004) that it does not consider the opinions of non-examining,
consulting physicians standing alone to be “substantial evidence.”
Id. at 1016,
citing Jenkins v. Apfel, 196
F.3d 922, 925 (8th
Cir. 1999) (finding that, where no other evidence supported an ALJ’s
residual functional capacity determination, the opinion of a
non-examining consulting physician was not “considered substantial
evidence in the face of the conflicting assessment of a treating
physician”). However, in this case, the ALJ did not rely on the opinion
of a non-examining physician to reach his conclusions but, instead, the
ALJ relied on this opinion “as one part of the record, which, as a whole
. . . clearly provides substantial support for his findings.”
Id.
The Eighth Circuit has held that
reports of non-examining physicians are entitled to little weight.
Miller v. Heckler, 756 F.2d
679, 681 n.2 (8th
Cir. 1985).
The court held that the ALJ acted
improperly by relying on testimony of physicians who did not examine the
claimant for disability benefits over the medical opinions of those who
did, based on the claimant’s perceived lack of credibility.
Estabrook v. Apfel,
14 F. Supp.2d 1115 (S.D. Iowa 1998).
See also
Fiala v. Barnhart, 233 F.
Supp.2d 1167 (S.D. Iowa 2002) holding that the ALJ erred in relying on
residual functional capacity forms completed by doctors at the
Disability Determination Services who had never examined the claimant to
find that she was able to perform light work).
The opinion of a doctor who did not
personally examine the claimant or rely on the statement of the
examining physician in conducting his assessment was not entitled to
significant weight. Luther v.
Chater, 938 F. Supp. 538, 539, 541 (S.D. Iowa 1996).
In
McJames v. Barnhart, 365 F.
Supp.2d 1018, 1032 (E.D. Mo. 2005), the court held that the ALJ failed
to acknowledge or evaluate the opinion of non-examining, non-consulting
psychologist who engaged in an extensive review of the claimant’s
relevant medical records, and provided a specific assessment and
narrative of her medical condition and her ability to engage in
employment. Id. at 1032,
citing Anderson v. Barnhart,
344 F.3d 809, 813 (8th
Cir. 2003); Ward v. Heckler,
786 F.2d 844, 846-47 (8th
Cir. 1986). “Taken together with the record as a whole, a non-examining
provider’s medical opinion can be considered when forming the basis of
an ALJ’s opinion.” Id. While
the opinions of neither non-examining physicians are entitled to
controlling weight, “when viewed in light of each other and additional
evidence of record, they are consistent with other provider
observations.” Id., citing
SSR 96-6p.
“[T]he opinions of non-examining
physicians ordinarily do not constitute substantial evidence on the
record as a whole.” Gillette v.
Barnhart, 291 F. Supp.2d 1071, 1077 (D.N.D. 2003),
citing Bowman v. Barnhart,
310 F.3d 1080, 1085 (8th
Cir. 2002). The court observed that the brief, conclusory opinions of
the non-examining physicians provided little substance and did not
“equate with ‘better or more thorough medical evidence,’” noting that an
“ALJ may credit other medical evaluations over that of a treating
physician when such other assessments ‘are supported by better or more
thorough medical evidence.’” Id.,
citing Rogers v. Chater, 118 F.3d 600, 602 (8th Cir. 1997). The
court concluded that no such evidence existed in this case.
Id.
In
Boyd v. Barnhart, 258 F.
Supp.2d 1013, 1020 (E.D. Mo. 2003), the court held that the opinions of
the non-examining consultative physicians “probably are not substantial
evidence per se.” Id. at
1020, citing Kelley v. Callahan,
133 F.3d 583, 589 (8th
Cir. 1998). However, these opinions “still constitute evidence that the
ALJ needed to consider, along with the rest of the file.”
Id.,
citing 20 C.F.R. § 416.927(d). The court held that the ALJ failed to
comply with § 416.927(f)(2)(ii) by considering the regulatory factors
and failed to follow SSR 96-8p. The court explained:
The ALJ’s statement — that ‘the state
agency physician opinion after their review of the record that the
claimant was not so limited as to preclude all activity, even sedentary’
— falls short of satisfying the requirements of § 416.927(f)(2)(ii) and
SSR 96-8p.
Id.
The fact the ALJ may have given
greater weight to the opinions of non-examining consultants than to
other medical sources was not reversible error provided the ALJ
explained his reasons for doing so.
Shimkus v. Apfel, 72 F.
Supp.2d 1056, 1059 (S.D. Iowa 1999),
citing
Davis v. Schweiker, 671 F.2d
1187, 1189 (8th
Cir. 1982) (holding that it was appropriate to rely on non-examining
physician when his opinion was compatible with other evidence in the
record, and the treating physician’s opinion was conclusory and
conflicting).
Ninth Circuit
Opinions of a non-examining,
testifying medical advisor may serve as substantial evidence when they
are supported by other evidence in the record and are consistent with
it. Morgan v. Commissioner of
Soc. Sec. Admin., 169 F.3d 595, 600 (9th
Cir. 1999). “The ALJ can meet this burden by setting out a detailed and
thorough summary of the facts and conflicting clinical evidence, stating
his interpretation thereof, and making findings.”
Id. at 600-601. However, the
opinion of a non-examining medical advisor cannot by itself constitute
substantial evidence that justifies the rejection of the opinion of an
examining or treating physician.
Id. at 602. In Morgan,
the ALJ properly pointed to specific evidence in addition to his
personal observations, as well as the opinion of the non-treating,
non-examining medical advisor.
Id. at 602-03.
In 1997, the Ninth Circuit held that
in cases where a non-treating, non-examining physician’s opinion
contradicts the treating physician’s opinion, the ALJ may only reject
the treating physician’s opinion if the ALJ gives specific, legitimate
reasons for doing so that are based on substantial evidence in the
record. Jamerson v. Chater,
112 F.3d 1064, 1066 (9th
Cir. 1997). The court also noted that “reports of the non-examining
advisor need not be discounted and may serve as substantial evidence
when they are supported by other evidence in the record and are
consistent with it.” Id. at
1067.
The Ninth Circuit held that treating
physicians’ opinions were entitled to greater weight than the opinions
of a non-treating, non-examining internist called by the ALJ.
Smolen v. Chater, 80 F.3d
1273, 1285 (9th
Cir. 1996). But see Saelee v.
Chater, 94 F.3d 520, 522 (9th
Cir. 1996), cert. denied 117
S.Ct. 953 (1997) (noting that the findings of a non-treating,
non-examining physician can amount to substantial evidence, so long as
other evidence in the record supports those findings).
An examining physician’s opinion is
entitled to greater weight than a non-examining physician’s opinion.
Lester v. Chater, 81 F.3d
821, 830 (9th
Cir. 1995), citing Pitzer v.
Sullivan, 908 F.2d 502, 506 (9th
Cir. 1990) and
Gallant v. Heckler, 753 F.2d
1450 (9th
Cir. 1984). A non-examining physician’s opinion cannot by itself
constitute substantial evidence that justifies the rejection of the
opinion of either an examining physician or a treating physician.
Id.
The Ninth Circuit held that when the
ALJ rejects an examining physician’s opinion in favor of a non-examining
advisor’s testimony, the non-examining advisor’s reports need not be
discounted and may serve as substantial evidence when they are supported
by other evidence in the record and are consistent with it.
Andrews v. Shalala, 53 F.3d
1035, 1041 (9th
Cir. 1995). The court specifically rejected the claimant’s argument that
a non-examining advisor’s opinion was entitled to “no weight.”
Id.
A non-examining physician’s conclusion
alone does not constitute substantial evidence, especially if surrounded
by the conflicting observations, opinions, and conclusions of an
examining physician. Pitzer v.
Sullivan, 908 F.2d 502, 506 (9th
Cir. 1990). The Commissioner may discount the opinion of a non-examining
physician by reference to particular evidence in the medical record.
Sousa v. Callahan, 143 F.3d 1240, 1244 (9th
Cir. 1998).
“Generally, an ALJ should give
greatest weight to a treating physician’s opinion and more weight to the
opinion of an examining physician than to one of a non-examining
physician.” Bergfeld v. Barnhart,
361 F. Supp.2d 1102, 1111 (D. Ariz. 2005),
citing Andrews v. Shalala,
53 F.3d 1035, 1040-41 (9th
Cir. 1995).
The ALJ erred in discrediting the
opinions of two treating physicians that the claimant was disabled and
in accepting the opinions of two non-examining physicians.
Willis v. Callahan, 979 F.
Supp. 1299 (D. Or. 1997). The opinion of a non-examining physician, by
itself, is insufficient to constitute substantial evidence to reject the
opinion of a treating or examining physician.
Id.
A Washington district court held that
an ALJ did not sufficiently consider evidence in the claimant’s favor
and placed undue weight on the opinion of the non-examining physician.
LaPierre v. Callahan, 982 F.
Supp. 789, 794 (W.D. Wash. 1997).
Tenth Circuit
The Tenth Circuit held that the ALJ
improperly discounted the treating physician’s opinion about the
claimant’s nonexertional limitations in favor of the opinion of a
non-examining psychiatrist “absent a legally sufficient explanation for
doing so.” Robinson v. Barnhart,
366 F.3d 1078, 1084 (10th
Cir. 2004), citing Williams v.
Bowen, 844 F.2d 748, 757 (10th
Cir. 1988) (holding that the “the opinions of physicians who have seen a
claimant over a period of time for purposes of treatment are given more
weight over the views of consulting physicians or those who only review
the medical records and never examine the claimant”); 20 C.F.R. §§
404.1527(d)(1), (2) and 416.927(d)(1), (2); SSR 96-6p. “The opinion of
an examining physician is generally entitled to less weight than that of
a treating physician, and the opinion of an agency physician who has
never seen the claimant is entitled to the least weight of all.”
Id., citing 20 C.F.R. §§
404.1527(d)(1), (2) and 416.927(1), (2); SSR 96-6p.
In
Drapeau v. Massanari, 255
F.3d 1211 (10th
Cir. 2001), the Tenth Circuit rejected the government’s argument that
the opinion of the claimant’s treating physician was contradicted by the
testimony of the non-examining, non-treating physicians who opined that
the claimant’s impairments did not meet any listing.
Id. at 1213-14. The court
reiterated that, “‘findings of a non-treating physician based upon
limited contact and examination are of suspect reliability’” and “[s]uch
evaluation forms, standing alone, unaccompanied by thorough written
reports or persuasive testimony, are not substantial evidence.”
Id. at 1214, quoting Frey v.
Bowen, 816 F.2d 508, 515 (10th
Cir. 1987). See also McGoffin v.
Barnhart, 288 F.3d 1248, 1254 (10th
Cir. 2002) (holding that when the record was viewed as a whole, it was
not persuaded that the assessment of a non-treating physician
constituted substantial evidence that the claimant’s mental disorders
were not disabling absent her substance dependence).
A Kansas district court noted that the
ALJ is required to evaluate, discuss and explain the weight assigned to
a State agency reviewing physician.
Higgins v. Barnhart, 294 F.
Supp.2d 1206, 1212 (D. Kan. 2003),
citing Johnson-Winborn v. Apfel,
106 F. Supp.2d 1144, 1147 (D. Kan. 2000);
Ridge v. Apfel, 15 F. Supp.2d 1086, 1089 (D. Kan. 1998); SSR 96-6p.
Furthermore, the opinion of a medical advisor “is only substantial
evidence if it is supported by other evidence in the record or when it
is consistent with the other evidence” and in evaluating the weight to
be given to a non-examining source, the ALJ should evaluate the degree
to which these opinions consider all of the pertinent evidence in a
claim, including opinions of treating and other examining sources.”
Id., citing Andrews v. Shalala,
53 F.3d 1035, 1041 (9th
Cir. 1995). In Higgins, the
court held that the medical expert’s opinion about the claimant’s
fatigue and shortness of breath was not supported by substantial
evidence, as there is another medical opinion that contradicts this
opinion as well as other evidence in the record that supports the
claimant’s claims of fatigue and shortness of breath.
Id.
Contrary to the requirements of SSR
96-8p, the ALJ ignored psychiatric review technique assessments prepared
by the non-examining state agency consultant that conflicted with the
ALJ’s assessment. Ridge v. Apfel,
15 F. Supp.2d 1086, 1089 (D. Kan. 1998).
A Kansas district court held that the
ALJ erred by rendering a decision which conflicted with that of a
non-examining state agency consultant’s PRT assessment, without
discussing the consultant’s findings, in violation of SSR 96-6p.
Ridge v. Apfel, 15 F. Supp.2d 1086, 1089 (D. Kan. 1998).
The court noted that SSR 96-6p requires that the ALJ
consider such findings as non-examining expert opinion evidence and
explain in his or her decision the weight given to these findings.
In Ridge, the court
pointed out that the consultant’s PRT assessment contained a discussion
of the basis for his findings.
Id.
The court noted that two state agency
reviewing physicians opined that the claimant’s drug addiction was a
material factor, and SSR 96-6p requires an ALJ to treat the fact
findings of a state agency reviewing physician as non-examining expert
opinion. Johnson-Winborn v. Apfel,
106 F. Supp.2d 1144, 1147 (D. Kan. 2000). “Although the opinions do not
have to be accepted by the ALJ, the ALJ cannot simply ignore them.” SSR
96-8p also requires the ALJ to consider the opinions of the reviewing
physicians and explain the weight given to these opinions. Since the ALJ
in this case neglected to discuss the reviewing physicians’ opinions,
the court found that remand was appropriate.
Id.
Eleventh Circuit
“The opinions of non-examining,
reviewing physicians, . . . when contrary to those of examining
physicians are entitled to little weight in a disability case, and
standing alone do not constitute substantial evidence.”
Lamb v. Bowen, 847 F.2d 698,
703 (11th
Cir. 1988). See also Spencer on
behalf of Spencer v. Heckler, 765 F.2d 1090, 1094 (11th
Cir. 1985) (placing no weight on the report of a doctor who merely
checked boxes on a form with no elaboration, noting that “without
personal examination of the individual and without evaluation of the
disability as it relates to the particular person [this] is medical
sophistry at best”).
The requisite “good cause” for not
according controlling weight to a treating physician’s opinion is not
provided by the report of a non-examining physician because the opinion
of such a person is entitled to little weight if it contradicts the
opinion of the claimant’s physician.
Johns v. Bowen, 821 F.2d 551,
554 (11th
Cir. 1987).
An Alabama district court noted that
it “has held on a number of occasions that the Commissioner’s fifth-step
burden cannot be met by a lack of evidence, or by the residual
functional capacity assessment of a non-examining, reviewing physician,
but instead must be supported by the residual functional capacity
assessment of a treating or examining physician.”
Coleman v. Barnhart, 264 F.
Supp.2d 1007, 1010 (S.D. Ala. 2003). Thus, the court found it “unclear
how the ALJ found plaintiff could meet the threshold physical
requirements of medium work, in absence of a physical capacities
evaluation (“PCE”) completed by a treating or examining physician,
particularly in light of plaintiff’s numerous severe impairments.”
Id.
The opinion of a non-examining
physician is entitled to little weight, and, if contrary to the opinion
of a treating physician, is not good cause for disregarding the opinion
of the treating physician. Wood
v. Callahan, 977 F. Supp. 1447, 1453 (N.D. Fla. 1997).
The opinions of reviewing,
non-examining physicians, when contrary to those of examining
physicians, are entitled to little weight.
Ortega v. Chater, 933 F. Supp. 1071, 1074 (S.D. Fla. 1996),
citing Lamb v. Bowen, 847
F.2d 698 (11th
Cir. 1988) and
Sharfarz v. Bowen, 825 F.2d
278 (11th
Cir. 1987) (reaffirming that the opinions of non-examining, reviewing
physicians, when contrary to those of the examining physicians, are
entitled to little weight, and standing alone do not constitute
substantial evidence).
Practical Pointer
Always review all residual functional
capacity assessments contained in the record, including those prepared
by any non-examining sources. If the evaluations from non-examining
sources are not favorable to the claimant, be sure to evaluate their
consistency with substantial evidence in the record and, if
inconsistent, argue that they should not be accorded any weight in
determining the claimant’s disability. If they are helpful to the
claimant, but ignored by the ALJ, you can argue on appeal that the ALJ
failed to properly address these opinions in the decision as required.
Sarah H. Bohr
is an appellate attorney who has specialized in Social Security law for
over twenty-five years. She is a partner in Bohr & Harrington, a
Jacksonville, Florida law firm offering a national Social Security brief
writing service. She is past
president of NOSSCR, past Chair of The Florida Bar Council of Sections,
past Chair of the Public Interest Law Section, and past Chair of the
Juvenile Court Rules Committee.
Ms. Bohr is the author of
Social Security
Issues Annotated, from
which this article is excerpted.
