Olivia Kneeland v. Nancy Berryhill, Acting Cmsnr
2017 U.S. App. LEXIS 4123
| 5th Cir. | 2017Background
- Kneeland injured her right foot in a 2006 car accident; surgery and imaging showed comminuted calcaneal fracture with plates/screws and subsequent arthritic changes and chronic foot pain.
- August 25, 2008: examining orthopedist Dr. Dale Bernauer opined Kneeland could not stand longer than 30 minutes or walk farther than 50 yards.
- Two psychological evaluations produced low IQ scores (one reporting full-scale IQ 69; a later one 74); state agency awarded benefits on a later claim under Listing 12.05C, prompting Appeals Council action.
- Appeals Council in 2010 reopened prior favorable determinations based on new and material evidence (Dr. Whiteman’s 2009 evaluation) and remanded for further proceedings; a new hearing occurred in 2011.
- At the 2011 hearing, non‑examining experts testified (orthopedist Dr. Barnes: sit 8 hrs, stand/walk 2 hrs/day), ALJ adopted RFC consistent with those opinions and denied benefits; district court affirmed.
- Fifth Circuit vacated and remanded because the ALJ failed to mention or explain rejection of examining physician Dr. Bernauer’s opinion, rendering the RFC and VE hypothetical unsupported by substantial evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Appeals Council's 2010 reopening/remand was reviewable and timely appealed | Appeals Council erred in reopening and failed to address Bernauer; reopening not properly reviewable now | Reopening was proper based on new/material evidence and ALJ’s 2011 decision is the final decision | Court assumed without deciding appealability but held Kneeland forfeited immediate challenge by not timely appealing; reopening itself was proper if reviewed |
| Whether ALJ properly considered and weighed Dr. Bernauer’s examining opinion | Bernauer’s opinion is a medical opinion that precludes standing >30 minutes; ALJ erred by not mentioning or explaining weight given | Commissioner: Bernauer’s letter is not a medical opinion or is ambiguous; ALJ permissibly relied on non‑examining experts and other evidence; any error harmless | Held ALJ legally erred by rejecting/omitting Bernauer’s examining opinion without explanation; RFC unsupported by substantial evidence |
| Whether ALJ’s RFC is supported by substantial evidence given conflicting medical opinions | RFC ignored examining opinion and thus is unreliable | RFC supported by hearing‑testimony experts, claimant’s activity, and treatment record | Held RFC unsupported because ALJ failed to account for/explain treating/examining opinion; remand required |
| Whether VE testimony based on ALJ’s hypothetical is reliable | VE hypothetical was based on flawed RFC and thus meaningless | VE testimony reflected RFC the ALJ adopted | Held VE testimony was invalid because it relied on defective RFC; remand for proper RFC and vocational analysis |
Key Cases Cited
- Morgan v. Colvin, 803 F.3d 773 (5th Cir. 2015) (standard of review for ALJ decisions)
- Whitehead v. Colvin, 820 F.3d 776 (5th Cir. 2016) (substantial-evidence and legal-standard review)
- Newton v. Apfel, 209 F.3d 448 (5th Cir. 2000) (treating-physician analysis requirements)
- Higginbotham v. Barnhart, 405 F.3d 332 (5th Cir. 2005) (definition of final decision includes Appeals Council denial)
- Cieutat v. Bowen, 824 F.2d 348 (5th Cir. 1987) (reopening based on new and material evidence and reviewability)
- Perez v. Barnhart, 415 F.3d 457 (5th Cir. 2005) (weighing physician testimony where clinical examination lacking)
- Greenspan v. Shalala, 38 F.3d 232 (5th Cir. 1994) (weight to treating physician opinions)
- Strickland v. Harris, 615 F.2d 1103 (5th Cir. 1980) (reports of non‑examining physicians insufficient alone)
- Audler v. Astrue, 501 F.3d 446 (5th Cir. 2007) (prejudice requirement for procedural error)
- Copeland v. Colvin, 771 F.3d 920 (5th Cir. 2014) (ALJ decision is focal point of appellate review)