     Case: 17-10161   Document: 00514516267     Page: 1   Date Filed: 06/18/2018




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT
                                                               United States Court of Appeals
                                                                        Fifth Circuit


                                 No. 17-10161
                                                                      FILED
                                                                  June 18, 2018
                                                                 Lyle W. Cayce
RONALD SALMOND, SR.,                                                  Clerk

             Plaintiff – Appellant,

v.

NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL
SECURITY,

             Defendant – Appellee.




                Appeals from the United States District Court
                     for the Northern District of Texas


Before BARKSDALE, DENNIS, and ELROD, Circuit Judges.
JENNIFER WALKER ELROD, Circuit Judge:
      Ronald Salmond applied for, and was denied, social security benefits.
The district court affirmed the decision of the Commissioner of Social Security.
Because the Administrative Law Judge’s decision is not supported by
substantial evidence, we reverse and remand to the district court with
instructions that this case be sent back to the administrative level for
additional proceedings.
                                       I.
      Ronald Salmond is a former physician and army veteran. He served on
active duty for over ten years until he was honorably discharged. Salmond
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reports that, during his military service, he treated gruesome injuries, such as
missing limbs and severe burns, and retrieved the remains of deceased service
members.
      After his military service, Salmond went into private practice. In both
1995 and 1997, he was diagnosed with post-traumatic stress disorder. Even
so, Salmond maintained his medical practice until 2006 when, he says, his life
took a turn for the worse. His divorce was finalized. His wife obtained a
restraining order against him, so he did not have access to his financial assets.
Because of his mental state, he stopped seeing patients, and hospitals revoked
his medical privileges. His medical license and board certifications were also
suspended.
      In 2006, Salmond entered a Veterans Affairs residential treatment
program until he was involuntarily discharged for failing to report to bed
checks.   He returned to the VA treatment program in 2009.             While on
medication for depression, he worked as an administrator at an assisted living
facility for a few months.    Eventually, Salmond was discharged from the
treatment program when Salmond failed to report for work and bed checks
(and subsequent attempts to contact him were unsuccessful).
      In October 2011, he sought mental health treatment again. He began to
see Dr. Norris Purcell, a psychiatrist employed by the VA. Salmond met with
Dr. Purcell repeatedly over the next two years. In 2013, two VA doctors
examined Salmond to determine his eligibility for VA benefits.           The VA
ultimately determined that Salmond had a 70% disability rating due to his
PTSD, depression, and bipolar disorder with a 100% total disability individual
unemployability rating. This rating signified that he was unable to secure or
follow a substantial gainful occupation as a result of his service-related medical
condition. As a result, the VA granted Salmond benefits.


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                                 No. 17-10161
      Around the same time, the Social Security Administration evaluated
Salmond to determine his eligibility for social security benefits. Its doctors
indicated that his mental health condition limited his ability to work. Salmond
applied for a period of disability and disability insurance benefits under Title
II and supplemental security income under Title XVI of the Social Security Act.
After the Social Security Administration denied his applications, he requested
a hearing before an Administrative Law Judge. The ALJ conducted a video
hearing, and only Salmond testified. At the end of the hearing, the ALJ
ordered Salmond to undergo a psychological evaluation and arranged for a
Social Security Administration psychologist to examine him. The psychologist
determined that Salmond did not have the ability to “[r]espond appropriately
to work pressures in a usual work setting and to changes in a routine work
setting.”
      In January 2015, the ALJ issued an order denying benefits. He found
that Salmond suffered from PTSD, bipolar disorder, depressive disorder, REM
dissociative disorder, type 2 diabetes, hypothyroidism, benign postratic
hypertrophy, hypertension, and obesity. He concluded that while Salmond’s
impairments “continue to cause symptoms,” these symptoms were “mild” and
did not cause “work-related limitations.”     The ALJ relied on Dr. Purcell’s
treatment notes, Salmond’s ability to perform basic daily tasks, and the two-
year gap in treatment and determined that Salmond’s own testimony about his
condition was “not entirely credible.” Recognizing that an impairment is not
severe if it is only “a slight abnormality which has such a minimal effect on the
individual that it would not be expected to interfere with the individual’s
ability to work irrespective of age, education, or work experience,” the ALJ
determined that Salmond did not have a severe impairment or combination of
impairments.


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      Salmond appealed the ALJ’s decision to the Appeals Council and
supplemented the administrative record with a report written by Dr. Purcell
in February 2015. In his report, Dr. Purcell reported that Salmond had a
substantial or complete loss to perform many activities associated with regular
employment.       On this supplemented record, the Appeals Council denied
Salmond’s request for review, rendering the ALJ’s adverse decision final.
      Salmond then filed a complaint in federal district court, and his case was
referred to a magistrate judge. Salmond filed a brief appealing the denial of
his disability claim, and the Commissioner filed its own brief defending the
ALJ’s decision.     In its “Findings, Conclusions and Recommendation,” the
magistrate judge recommended that the Commissioner’s decision be reversed
and remanded. “After reviewing the parties’ arguments, the ALJ decision, and
the transcript,” it determined that “the ALJ’s decision at Step Two as to
Salmond’s mental impairment is not supported by substantial evidence.” The
magistrate judge reasoned that even given Dr. Purcell’s treatment notes, Dr.
Purcell’s report supported a finding that Salmond’s impairments were severe.
He explained that “every single medical opinion of record discussed by the ALJ
confirmed that Salmond more than satisfied the de minimis standard at Step
Two of having an impairment that at the very least, would be expected to
minimally interfere with his ability to work.”
      The district court did not accept the magistrate judge’s recommendation.
The day after the magistrate judge issued its “Findings, Conclusions and
Recommendation,” the district court sua sponte ordered the Acting
Commissioner of Social Security to file a response to the magistrate judge’s
findings, conclusions, and recommendation.         The Commissioner filed a
response, and Salmond filed a reply in support of the magistrate judge’s
recommendation.       The district court rejected the magistrate judge’s
recommendation and concluded that the ALJ’s finding was supported by
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substantial evidence. It said that “[t]he analysis conducted by the ALJ . . . is
self-explanatory, and nothing would be gained by a detailed review of the
analysis in this memorandum opinion.” It was “satisfied that the record before
the ALJ supports the statements he made in his analysis.”           Therefore, it
affirmed the ALJ’s determination that Salmond did not have a severe
impairment.
      On appeal, Salmond argues that there is not substantial evidence to
support the ALJ’s determination that Salmond’s mental impairments were
non-severe. He insists that all of the medical experts in the record confirm
that Salmond’s mental impairments, either alone or in combination, more than
satisfied the applicable de minimis standard. Salmond also emphasizes that
the VA assigned him a 100% total disability individual unemployability rating,
which is entitled to great weight under our precedent, and criticizes the district
court for failing to address Salmond’s rating in its opinion.
                                       II.
      “We review the Commissioner’s denial of social security benefits ‘only to
ascertain whether (1) the final decision is supported by substantial evidence
and (2) whether the Commissioner used the proper legal standards to evaluate
the evidence.’”   Kneeland v. Berryhill, 850 F.3d 749, 753 (5th Cir. 2017)
(quoting Whitehead v. Colvin, 820 F.3d 776, 779 (5th Cir. 2016)); see also 42
U.S.C. § 405(g). We do not “reweigh the evidence in the record, try the issues
de novo, or substitute [our] judgment for the Commissioner’s, even if the
evidence weighs against the Commissioner’s decision.” Newton v. Apfel, 209
F.3d 448, 452 (5th Cir. 2000) (citing Brown v. Apfel, 192 F.3d 492, 496 (5th Cir.
1999)). A decision is supported by substantial evidence if “credible evidentiary
choices or medical findings support the decision.” Whitehead, 820 F.3d at 779
(quoting Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001)).         “Substantial
evidence is ‘more than a mere scintilla but less than a preponderance.’”
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Williams v. Admin. Review Bd., 376 F.3d 471, 476 (5th Cir. 2004) (quoting
Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995)).
                                       III.
      The Social Security Act provides disability insurance benefits to people
who have contributed to the program and have a physical or mental disability.
See 42 U.S.C. § 423. It defines disability as the “inability to engage in any
substantial gainful activity by reason of any medically determinable physical
or mental impairment . . . which has lasted or can be expected to last for a
continuous period of not less than twelve months.” Id. § 423(d)(1)(A). To
determine if a claimant is disabled,
      the Commissioner uses a sequential, five-step approach [:]
      (1) whether the claimant is presently performing substantial
      gainful activity; (2) whether the claimant has a severe
      impairment; (3) whether the impairment meets or equals a listed
      impairment; (4) whether the impairment prevents the claimant
      from doing past relevant work; and (5) whether the impairment
      prevents the claimant from performing any other substantial
      gainful activity.

Kneeland, 850 F.3d at 753 (quoting Morgan v. Colvin, 803 F.3d 773, 776 (5th
Cir. 2015)). “The claimant bears the burden of proof on the first four steps, but
the Commissioner bears the burden on the fifth step.” Myers v. Apfel, 238 F.3d
617, 619 (5th Cir. 2001) (citing Greenspan v. Shalala, 38 F.3d 232, 236 (5th
Cir. 1994)). Here, the ALJ determined that Salmond failed to carry his burden
of demonstrating that his impairments were “severe” and ended his analysis
on the second step.
      Severe impairment has a specific—if somewhat surprising—meaning.
Under our binding precedent, “[a]n impairment can be considered as not severe
only if it is a slight abnormality having such minimal effect on the individual
that it would not be expected to interfere with the individual’s ability to work,
irrespective of age, education or work experience.” Loza v. Apfel, 219 F.3d 378,
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391 (5th Cir. 2000) (emphasis added) (quoting Stone v. Heckler, 752 F.2d 1099,
1101 (5th Cir. 1985)). Re-stated, an impairment is severe if it is anything more
than a “slight abnormality” that “would not be expected to interfere” with a
claimant’s ability to work. Id. This second step requires the claimant to make
a de minimis showing. See Anthony v. Sullivan, 954 F.2d 289, 293 n.5 (5th Cir.
1992).
      All of the medical professionals who evaluated Salmond agreed:
Salmond’s mental impairments would be expected to interfere with Salmond’s
ability to work. Dr. Earl Patterson, Ph.D., a VA psychologist, stated that
Salmond’s symptoms combined would “severely interfere with all gainful
employment,” and Dr. Elias Lara, D.O., a VA psychiatric clinician, determined
that Salmond’s “mental health conditions will prevent all employments.” The
VA assigned Salmond a 100% total disability individual unemployability
rating. As we have held, “[a] VA rating of 100 percent service connected
disability is not legally binding on the Commissioner, but it is evidence that is
entitled to great weight and should not have been disregarded by the ALJ.”
Loza, 219 F.3d at 394–95.       During the Social Security Administration’s
evaluation, Dr. Janice Ritch, Ph.D., and Dr. Susan Thompson, M.D., both
determined that Salmond’s ability “to complete a normal workday and
workweek without interruptions from psychologically based symptoms and to
perform at a consistent pace without an unreasonable number and length of
rest periods” was “moderately limited.” In fact, the ALJ arranged for Dr.
Gerald Stephenson, a psychologist, to examine Salmond, and Dr. Stephenson
determined that Salmond had “major limitations” in the ability to “[r]espond
appropriately to work pressures in a usual work setting and to changes in a
routine work setting.”     Salmond’s own treating physician, Dr. Purcell,
determined that Salmond suffered from a substantial or complete loss of the


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                                 No. 17-10161
ability to perform seventeen out of twenty named activities associated with
regular employment.
      Indeed, the Commissioner admits that every doctor in this record
determined that Salmond had a severe impairment. At oral argument, her
counsel declared, “we concede that all the medical opinions stated that
Salmond had a severe impairment.” According to the Commissioner, “ALJs
determine disability and they are not bound by any medical opinions.” Even
though Dr. Purcell’s report indicates that Salmond’s impairments are severe,
the Commissioner argues that Dr. Purcell’s treatment notes, which state that
Salmond’s mental impairments were being treated by medication, constitute
substantial evidence in support of the ALJ’s determination.        Some of Dr.
Purcell’s notes suggest that Salmond’s symptoms were controlled with
medication, but Dr. Purcell himself determined that Salmond suffered from a
substantial or complete loss of the ability to perform seventeen out of twenty
named activities associated with regular employment. For example, according
to Dr. Purcell, Salmond did not have the ability “to finish a normal work week
without interruption from psychologically based symptoms,” “to cope with
normal work stresses (even those inherit in low stress jobs) without
exacerbating pathologically based symptoms,” or “to get along with co-workers
or peers without unduly distracting them or exhibiting behavioral extremes.”
Dr. Purcell made these medical determinations based on his personal
observations, medical expertise, and years of treating Salmond. His medical
opinion was supported by the conclusions reached by Dr. Patterson, Dr. Lara,
Dr. Ritch, Dr. Thompson, and Dr. Stephenson.        As the Third Circuit has
observed, “[t]he principle that an ALJ should not substitute his lay opinion for
the medical opinion of experts is especially profound in a case involving a
mental disability.” Morales v. Apfel, 225 F.3d 310, 319 (3d Cir. 2000).


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                                 No. 17-10161
      This is not a case in which the treater disagrees with the examiner. All
of the medical professionals in this record agree that Salmond’s symptoms
would be expected to interfere with his ability to work. Nor is this a case in
which a doctor’s treatment notes conflict with his own medical opinion. In such
a case, it may be reasonable for the ALJ to weigh a doctor’s treatment notes
against the doctor’s ultimate determination. Here, Dr. Purcell’s treatment
notes do not conflict with his medical opinion. For example, Dr. Purcell’s
treatment notes, particularly their consistent reports of Salmond’s difficulty
interacting with others, seem to illustrate impairments that may have a more
than minimal effect on employment.
      In Newton, we faulted the ALJ for “improperly” rejecting the treating
physician’s medical opinions “without contradictory evidence from physicians
who had examined or treated” the claimant and “without requesting additional
information from the treating physician.” 209 F.3d at 460. In reaching her
findings, the ALJ in Newton expressly relied on her own disbelief of the
claimant’s testimony and on the testimony of a medical expert who did not
treat or examine the claimant. Id. at 456–57. Here, the ALJ rejected the
medical opinions of treating and examining doctors alike, without
contradictory evidence from a medical expert of any kind.
      We are careful not to “reweigh the evidence or substitute our judgment”
for that of the ALJ. Whitehead, 820 F.3d at 782. However, an ALJ’s decision
is subject to judicial review.    “A finding of no substantial evidence is
appropriate only if no credible evidentiary choices or medical findings support
the decision.” Id. at 779 (quoting Boyd, 239 F.3d at 704). Here, the record
cannot support the ALJ’s decision. Even though the “ALJ is free to reject the
opinion of any physician when the evidence supports a contrary conclusion,”
the issue here is that there is insufficient evidence to support the ALJ’s
conclusion. See Garcia v. Berryhill, 880 F.3d 700, 705 n.7 (5th Cir. 2018)
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(quoting Newton, 209 F.3d at 455).       Accordingly, we hold that the ALJ’s
decision is not supported by substantial evidence.
                                      IV.
      We do not hold that Salmond is entitled to relief but only that the ALJ
erred in finding for step two of the five-step approach that Salmond’s
impairments were not severe. For this reason, we REVERSE and REMAND
this case to the district court with instructions to remand to the administrative
level for further consideration consistent with this opinion.




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