                                                                United States Court of Appeals
                                                                         Fifth Circuit
                                                                      F I L E D
                     UNITED STATES COURT OF APPEALS
                              FIFTH CIRCUIT                             July 25, 2006

                                                                  Charles R. Fulbruge III
                                                                          Clerk
                                No. 04-10890


                            SANDRA J. BEASLEY,

                                                     Plaintiff-Appellant,

                                   versus

         JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY
                            ADMINISTRATION,

                                                      Defendant-Appellee.


             Appeal from the United States District Court
                  for the Northern District of Texas
                            (3:03-CV-1430-G)


Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.

PER CURIAM:*

     Sandra Beasley appeals the district court’s affirmance of a

benefits-denial      by   the   Commissioner   of   the    Social      Security

Administration (SSA).      In rejecting Beasley’s treating physician’s

opinion, the administrative law judge (ALJ) apparently failed to

apply 20    C.F.R.    §   404.1527(d)(2)    (requiring    the   SSA    to   give

substantial weight to treating physician’s opinion or, in the

alternative, apply the factors listed in other subparts).               VACATED

and REMANDED.



     *
       Pursuant to 5TH CIR. R. 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this opinion should not be published and is not precedent except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 5TH CIR. R. 47.5.4.
                                   I.

     In April 1997, Beasley filed for benefits under Titles II and

XVI of the Social Security Act as a result             of, inter alia,

depression, fibromyalgia, bipolar disorder, and hypertension, with

a 1 March 1996 disability onset date.           (In February 2000, she

amended that date to 1 April 1999, as discussed infra.)        After the

SSA in April 1999 denied her claims, Beasley requested de novo

review by an ALJ.

     In February 2000, after conducting the five-step analysis for

determining whether a claimant has a disability, pursuant to 20

C.F.R. § 404.1520, the ALJ found:       (1) Beasley continued to work as

a child-care provider through August 1998, but did not meet the

criteria for substantial gainful activity; (2) she had severe

impairments of arthritis, fibromyalgia, and hypertension (did not

include depression); (3) these impairments did not meet or equal

listed impairments; (4) she retained “the residual functional

capacity to perform a light level of work” but could not perform

her past relevant work; and (5) she had the “capacity to perform a

significant number of ... jobs existing in the national and local

economies”.   As a result, the ALJ denied benefits.

     The   Appeals   Council   denied   Beasley’s   timely   request   for

review.    Therefore, the ALJ’s decision became the Commissioner’s

final decision.      E.g., Crowley v. Apfel, 197 F.3d 194, 195 (5th

Cir. 1999).


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       Beasley filed this action pursuant to 42 U.S.C. § 405(g),

claiming:    (1) the ALJ’s finding that her mental impairments were

not severe was not supported by substantial evidence; and (2) the

ALJ failed to apply the appropriate legal standard under 20 C.F.R.

§ 404.1527(d)(2) to weigh the opinion of her treating psychiatrist,

Dr. Graves. In recommending that the ALJ applied the correct legal

standard to give little or no weight to Dr. Graves as Beasley’s

treating physician, the magistrate judge noted:                 the ALJ was

required to consider six factors provided in § 404.1527(d)(2); and

failure to consider them is grounds for reversal.               But, because

“the   ALJ   understood    the    nature   and   extent   of    the   treating

relationship” and “explicitly determined that Dr. Graves’s opinion

was not adequately supported by the medical record”, the magistrate

judge recommended:        the ALJ gave proper weight to Dr. Graves’

opinion; and substantial evidence supported the ALJ’s determination

that Beasley’s mental impairment was not severe.

       Beasley timely filed objections to the magistrate judge’s

report and recommendation.         The district court overruled those

objections and adopted it.

                                     II.

       Like the district court, our court reviews the Commissioner’s

benefits-denial    only    to    determine   whether:     (1)    substantial

evidence supports the final decision; and (2) the proper legal




                                      3
standards were used to evaluate the evidence.           E.g., Newton v.

Apfel, 209 F.3d 448, 452 (5th Cir. 2000).

     Unlike in district court, Beasley does not claim the ALJ’s

decision is not supported by substantial evidence. Instead, as she

did in district court, Beasley claims the ALJ failed to apply the

required § 404.1527(d)(2) standards, resulting in the rejection of

the opinion of her treating specialist, Dr. Graves.                 Beasley

maintains:     the ALJ relied exclusively on a state agency’s non-

examining medical consultant, who evaluated her medical records;

and this reliance was in error because that expert’s review was in

November 1998 — several months before April 1999, when Beasley

claimed she became disabled and had stopped working (the amended

disability onset date).       (In November 1998, the SSA initially

denied her claims; in April 1999, it denied her request for

reconsideration.)    Accordingly, Beasley contends:         had the ALJ, in

2000, analyzed the § 404.1527(d)(2) factors, Dr. Graves’ opinion

would be entitled to more weight than the non-examining medical

consultant’s    opinion;   therefore,   the   ALJ   would    have   to   find

Beasley’s mental impairments were severe; and it is less likely

benefits could have been denied.

     As noted, a claimant seeking Social Security benefits must

show: (1) she is not engaged in substantial gainful work activity;

(2) she suffers a severe impairment; (3) that impairment meets or

equals one listed in Appendix 1 of the Regulations; and (4) it


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prevents the    claimant’s   performing     her   past   work.       Upon    the

claimant’s doing so, the burden shifts to the Commissioner to show

the impairment does not prevent the claimant from doing other work

available in the national and local economies.                  20 C.F.R. §

404.1520(a)(4); see also Newton, 209 F.3d at 453.

     In   making   these   findings,   an   ALJ   must   give    a   treating

physician’s opinion “controlling weight if it is ‘well-supported by

medically acceptable clinical and laboratory diagnostic techniques

and is not inconsistent with ... other substantial evidence’”.

Martinez v. Chater, 64 F.3d 172, 176 (5th Cir. 1995) (quoting 20

C.F.R. § 404.1527(d)(2) (alteration in original)).          Furthermore, a

specialist’s    opinion    is   afforded     greater     weight       than    a

generalist’s.      See Paul v. Shalala, 29 F.3d 208, 211 (5th Cir.

1994), overruled on other grounds by Sims v. Apfel, 530 U.S. 103

(2000).   As reflected above, a treating physician’s opinion may be

given little or no weight “when the evidence supports a contrary

conclusion”.    Newton, 209 F.3d at 455 (internal quotation marks

omitted).   The ALJ must “always give good reasons ... for the

weight [it affords the opinion]”, 20 C.F.R. § 404.1527(d)(2), and

must show good cause when giving that opinion little or no weight,

Newton, 209 F.3d at 455.

     Pursuant to § 404.1527(d)(2), to determine how much weight to

afford such an opinion, the ALJ must consider: (1) the physician’s

length of treatment of the claimant; (2) the physician’s frequency


                                   5
of   examination;   (3)   the   nature   and   extent    of   the   treatment

relationship; (4) the support of the physician’s opinion afforded

by the medical evidence of record; (5) the consistency of the

opinion with the record as a whole; and (6) the specialization of

the treating physician.     See also id. at 456.        Furthermore, Social

Security Ruling (SSR) 96-2p provides:

           [A] finding that a treating source medical
           opinion is not well-supported by medically
           acceptable clinical and laboratory diagnostic
           techniques or is inconsistent with the other
           substantial evidence in the case record means
           only that the opinion is not entitled to
           “controlling weight,” not that the opinion
           should be rejected. Treating source medical
           opinions are still entitled to deference and
           must be weighed using all of the factors
           provided in 20 C.F.R. 404.1527.

(Emphasis added.)

      The ALJ properly placed the burden on Beasley to show:             (1)

she was not working enough to meet the substantial-gainful-activity

standard; (2) she suffers a severe impairment; (3) it meets or

equals a recognized impairment, and (4) it prevents her from doing

her past work.      In making these findings, the ALJ completed a

residual functional capacity analysis to determine whether Beasley

could perform her past relevant and/or some lesser level of work.

He found Beasley

           retains the residual functional capacity to
           perform a light level of work restricting her
           to lifting and/or carrying no more than 20
           pounds occasionally, 10 pounds frequently;
           standing and/or walking no more than 6 hours
           in an 8 hour day; sitting no more than 6 hours

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            in an 8 hour day; no limitations on pushing or
            pulling ... ; and the non-exertional abilities
            of understanding, remembering, and carrying
            out simple instructions; making judgments that
            are commensurate with the functions of
            unskilled work — i.e., simple work-related
            decisions;    responding    appropriately   to
            supervision,   co-workers    and   usual  work
            situations; and dealing with changes in a
            routine work setting.

The ALJ based his analysis on Beasley’s medical evaluations by her

treating physicians, Dr. Pearson (October 1998) and Dr. Graves

(December 1998 - March 2000; the ALJ erroneously stated the first

treatment date as August 1999, instead of December 1998), the

evaluation of Dr. Pearson’s examination notes by the state agency’s

non-examining medical consultant, and Beasley’s testimony before

the ALJ.

     With respect to Beasley’s mental impairments, the ALJ found

she had “reported to [Dr. Pearson], that she could not work due to

mood swings ... and a long history of ‘bad nerves’ and anxiety”.

Additionally, Dr. Pearson’s November 1998 records reflect Beasley

reported she had suffered auditory hallucinations, but was able to

live alone and care for herself independently with minimal help.

On the other hand, the ALJ found Beasley had reported to Dr. Graves

in 1999 and 2000 that she had suffered no such hallucinations.

     The ALJ rejected Beasley’s testimony that she has significant

daily   pain    and   symptoms   of   depression,   finding    “the   medical

evidence ... reflects a much higher level of daily functioning”.

Likewise,      the    ALJ   disregarded    Dr.   Pearson’s    February   2000


                                       7
supplemental letter opinion, based on his October 1998 examination

of Beasley, that her mental impairment created a “moderate to

marked   restriction    of   activities   of   daily    living,   ...   [and]

moderate limitations and a few marked limitations in certain

specific areas related to understanding and memory, sustained

concentration and persistence, social interaction and adaptation”.

Finally, the ALJ rejected Dr. Graves’ opinion that Beasley’s

depression prevented her from working, finding it was “inconsistent

with and unsupported by both [Dr. Graves’] own medical evidence and

the balance of the record”.

     The ALJ adopted the evaluation of the state agency’s non-

examining medical consultant that Beasley’s mental impairments were

not severe and “caused only a slight restriction of activities of

daily living, ... and never caused episodes of deterioration or

decompensation in work or a work-like setting”.            Furthermore, the

ALJ concluded Beasley’s claims about her functional limitations and

restrictions   on      her   daily   life      were    “exaggerated,     lack

corroboration or substantiation ... and, as such, [were] not

credible”.

     The ALJ cited SSR 96-2p for the requirement that Dr. Graves’

opinion must be given full consideration.             But, in his decision,

the ALJ did not mention the § 404.1527(d) factors.            Nor, based on

our review of that decision, do we share the confidence of the




                                     8
district court that the ALJ included all of those required factors

in his analysis.

     “[A]bsent   reliable     medical    evidence   from   a    treating   or

examining physician controverting [Dr. Graves’ opinion], an ALJ may

reject the opinion of the treating physician only if the ALJ

performs a detailed analysis of the treating physician’s views

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

Newton, 209 F.3d at 453 (second emphasis added).               Dr. Pearson’s

opinion of Beasley’s depression does not controvert Dr. Graves’

opinion — indeed, it provides support that Beasley’s depression

impairs her ability to work.         And, although the state agency’s

medical consultant’s opinion controverts Dr. Graves’ opinion, that

consultant never examined or treated Beasley.

     In sum, the above requisite “detailed analysis” for the §

404.1527(d)(2)     factors    is   lacking.     Accordingly,       Beasley’s

substantial rights were affected by the ALJ’s apparent failure to

perform that analysis.       Id.

                                    III.

     For the foregoing reasons, the judgment is VACATED and this

matter is REMANDED to district court for remand to the Commissioner

for further proceedings consistent with this opinion.

                                                VACATED AND REMANDED




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