Tim Barlow v. Nancy Berryhill, Acting Cmsnr
700 F. App'x 375
| 5th Cir. | 2017Background
- Plaintiff Timothy Barlow applied for Social Security disability benefits; an ALJ found him not disabled and the district court affirmed.
- ALJ held Barlow could perform simple, repetitive jobs with limited interpersonal contact.
- Barlow’s counsel cross‑examined the vocational expert (VE) but the ALJ curtailed one line of questioning as cumulative; counsel declined an offer to submit further briefing.
- Two treating physicians diagnosed depression and borderline personality disorder in April 2014; six non‑examining consultants concluded Barlow retained capacity for simple work.
- ALJ explicitly considered the April 2014 diagnoses and found them consistent with other medical evidence; relied in part on non‑examining physicians’ assessments.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ALJ denied meaningful cross‑examination of the VE | ALJ cut off cross‑examination, preventing elicitation of material evidence | Counsel did cross‑examine extensively; curtailed questioning was cumulative/immaterial and ALJ offered further briefing | No reversible error; no prejudice shown |
| Whether ALJ improperly ignored treating physicians’ April 2014 diagnoses | April 2014 diagnoses of depression and borderline personality disorder conflict with findings and should control | ALJ considered diagnoses and found no conflict with other medical evidence showing ability to do simple tasks | No error; ALJ’s consistency finding supported by record |
| Whether ALJ improperly relied on non‑examining physicians | Reliance on non‑examining opinions undermines decision absent treating/examining support | Non‑examining opinions were based on careful review and did not contradict examining evidence | Proper to rely on them where they align with the record |
| Whether any procedural error prejudiced the claimant | Truncated VE questioning prejudiced step‑five analysis | ALJ also relied on an independent step‑four finding, and claimant failed to identify withheld evidence | No prejudice; independent step‑four dispositive |
Key Cases Cited
- Graves v. Colvin, 837 F.3d 589 (5th Cir. 2016) (standard of review: substantial evidence and proper legal standards)
- Carey v. Apfel, 230 F.3d 131 (5th Cir. 2000) (duty to fully and fairly develop the record; prejudice requirement)
- Tanner v. Secretary of Health & Human Services, 932 F.2d 1110 (5th Cir. 1991) (cross‑examination rights re: vocational experts)
- Lidy v. Sullivan, 911 F.2d 1075 (5th Cir. 1990) (VE cross‑examination error)
- Leggett v. Chater, 67 F.3d 558 (5th Cir. 1995) (five‑step sequential evaluation; adverse step‑four finding moots step‑five)
- Newton v. Apfel, 209 F.3d 448 (5th Cir. 2000) (treating physician rule and controlling weight)
- Villa v. Sullivan, 895 F.2d 1019 (5th Cir. 1990) (permissible reliance on non‑examining physicians when consistent with record)
- Hollis v. Mathews, 520 F.2d 338 (5th Cir. 1975) (claimant must show prejudice from procedural error)