Jаmes Lester challenges the Commissioner’s denial of his application for Social Security disability benefits. He argues that the Commissioner erred in failing to take into account the combined impact of his mental and physical impairments in determining whether his condition “equalled” a listed impairment, in disregarding the opinions of his treating physician and examining psychologist, and in rejecting his hearing testimony. We agree with Lester on each of these points. Because the Commissioner would have been compelled to find him disabled if not for these errors, we reverse and remand for payment of benefits.
I.
Lester injured his back in June 1968 while working as a meateutter and subsequently underwent two laminectomies. He received disability benefits between 1968 and 1974. After 1974, he worked part-time at various jobs, but ceased wоrking altogether in November 1982 due to his worsening back pain..
Lester reapplied for disability benefits in 1984. This claim was denied after an administrative hearing. The Administrative Law Judge (ALJ) concluded that he was not disabled at any time up to June 21, 1985, the date of the decision. Lester did not seek judicial review of the 1985 decision. However, in March 1988, he filed a third application for benefits. Only the 1988 application is before us on appeal. Lester was last insured for disability benefits on December 31, 1987. Thus, to qualify for disability insurance benefits, he must show that he became disabled on or before that date.
Although the medical record contains materials dating back to the 1970’s, our focus is on the period after June 21,1985 (the date of the ALJ’s decision denying Lester’s second application for disability benefits).
Dr. Strunkel referred Lester to Yung K. Kho, M.D., who specializes in the care of patients with chronic pain. Dr. Kho remained the treating physician from October 1986 on. After their initial meeting, Dr. Kho diagnosed Lester’s condition as follows: (1) status post lumbar laminectomy, (2) likely post operative arachnordieulopathy, with (3) chronic myofascial pain syndrome, and (4) suspected pre-existing personality disorder. In subsеquent reports, Dr. Kho noted the existence of both a personality disorder and depression, and prescribed antidepressants. To treat the claimant’s back pain, Dr. Kho instituted a program of lumbar injections and physical therapy, which provided some relief. In June 1987, Dr. Kho expressed his opinion that Lester was capable of “some sedentary type of employment.” By December 1987, however, Lester was again reporting increasing back pain and, in February 1988, Dr. Kho reported that he was “walking as antalgically as ever” and had not benefitted from recent injections. An MRI revealed degenerative changes in the lumbar spine, without bulging or herniation. In May 1988, Dr. Kho noted
On February 1989, Lester was examined by a psychologist, Ron Taylor, Ph.D., who interviewed him and conducted psychological testing. Dr. Taylor diagnosed major depression, recurrent and severe, and a personality disorder, concluding that: “The impression is that this fifty-three-year old man is currently, and probably has been since 1982, possibly medically, and probably psychologically unfit for any kind of suitable and feasible substantial gainful employment.” Dr. Taylor further found that the claimant was markedly limited in his ability: (1) to maintain concentration and attention; (2) to perform activities within a schedule, maintain regular attendance, and be punctual; and (3) to complete a normal workday and workweek without interruption from psychological symptoms and to perform at a consistent pace without unreasonable rest periods. Hе found Lester to be moderately limited in several other work-related areas.
After reviewing Dr. Taylor’s report, Dr. Kho wrote a report expressing his agreement with Dr. Taylor as to the restrictions on Lester’s mental functioning. In addition to the limitations indicated by Dr. Taylor, Dr. Kho determined that Lester was markedly limited in his ability to travel to unfamiliar places or use public transportation and in his ability to set realistic goals or make plans independent of others. Dr. Kho estimated that all Lester’s functional restrictions had existed since 1982.
At the administrative hearing, conducted in April 1989, Lester testified that he was unable to engage in chores such as vacuuming, mopping, mowing, or washing dishes. He also testified that his daily activities were extremely limited, and that he stayed in bed most of the time.
At the request of the ALJ, Michael Sasser, M.D., а nonexamining psychiatrist, appeared at the hearing to testify as to Lester’s mental status. Dr. Sasser first expressed disagreement with Dr. Taylor’s interpretation of the psychological testing results. According to Dr. Sasser, Lester had no medically determinable mental impairment that met or eq-ualled the criteria contained in the listing for “Affective Disorders.” 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.04 (“Listing § 12.04”). On cross-examination, however, Dr. Sasser acknowledged that Lester suffers from “chronic pain syndrome” and that Lester’s testimony, if credited, would demonstrate marked limitations in his activities of daily living.
A vocational expert, Victor P. Mihayl, also testified at the administrative hearing. The ALJ inquired whether a person of Lester’s education and background who was limited to sedentary work with a sit/stand option and whose pain had a “moderate effеct on his concentration and attention and ability to interact with the general public” would be able to perform any type of work. The vocational expert testified that, while such a claimant could not return to Lester’s past work, he could perform the jobs of light vehicle dispatcher, general clerk, or customer service representative.
The ALJ subsequently issued a decision finding that Lester was capable of performing the three types of jobs mentioned by the vocational expert and, therefore, that he was not disabled. The ALJ made a general finding that Lester’s testimony was not credible. Relying on the testimony of Dr. Sasser and Mr. Mihayl, and rejecting the opinion of Dr. Taylor, the ALJ concluded that Lester had no medically determinable mental impairment.
Lester requested rеview of the ALJ’s decision by the Appeals Council, submitting additional evidence regarding his mental impairment. The Appeals Council reversed and remanded for a new administrative hearing, concluding that the ALJ had erred in his consideration of the claimed mental impairment. The ease was assigned to a different
II.
As a threshold matter, we consider whether res judieata precludes Lester from challenging the Commissioner’s decision. We conclude that it does not.
In rejecting Lester’s 1984 claim for disability benefits, the ALJ concluded that he was not disabled at any time up to June 21,1985, the date of his decision. Lester’s 1984 claim did not allege that he was disabled by a mental impairment, and the Commissioner did not consider any evidence pertaining to his mental impairment in denying this claim. However, when Lester reapplied for benefits in 1988, he did allege that he was disabled, at least in part, as a result of depression. In denying his 1988 application, the ALJ concluded that there was no basis for reopening the decision denying Lester’s 1984 claim, and applied res judicata to the period up to June 21,1985.
Lester does not challenge the Commissioner’s application of res judicata up to the date of the earlier decision. The question is whether that doctrine bars his disability claim for any subsequent period. As we have previously stated, the principle of res judicata should not be rigidly applied in administrative proceedings. Gregory v. Bowen,
The Commissioner’s authority to apply res judieata to the period subsequent to a prior determination is much more limited. This court has stated that an ALJ’s finding that a claimant is not disabled “create^] a presumption that [the claimant] continued to be able to work after that date.” Miller v. Heckler,
Here, there are at least two independent factors preventing the Commissioner from applying res judicata to the period after June 21, 1985. First, the 1988 application alleges a mental impairment that was not raised in Lester’s 1984 application or addressed in the Commissioner’s decision denying that аpplication. Second, the claimant turned 50 shortly after the 1985 decision. The second change affects the Commissioner’s application of the Medical-Vocational Guidelines and her consideration of vocational factors. 20 C.F.R. Pt. 404, Subpt. P, App. 2 § 201.00(g) (defining the age category “approaching advanced age” as those individuals aged 50-54). Each of these reasons independently precludes application of res judicata to the period after the June 21,1985 determination.
III.
We now proceed to the merits of the claim. Lester first contends that the ALJ applied an incorrect legal standard in assessing whether his combination of impairments equalled a listed impairment. Specifically, he contends that the Commissioner erred by failing to consider the combinеd effects of his mental and physical impairments in assessing whether his condition was equal to the listing for “Affective Disorders.” 20 C.F.R. Part 404, Subpt. P, App. 1, § 12.04. We agree that the Commissioner is required to take into account the combined effect of a claimant’s physical and mental impairments in determining whether his condition equals this listing.
Conditions contained in the “Listing of Impairments” are considered so severe that they are irrebuttably presumed disabling, without any specific finding as to the claimant’s ability to perform his past relevant work or any other jobs. 20 C.F.R. § 404.1520(d).
In determining whether a claimant with a mental impairment meets a listed impairment, the Commissioner considers: (1) whether specified diagnostic criteria (“paragraph A” criteria) are met; and (2) whether specified junctional restrictions are present (“paragraph B” criteria). 20 C.F.R. § 404.1520a. The claimant’s mental impairment must satisfy both the paragraph A and paragraph B criteria to meet the listings. A claimant who satisfies the diagnostic criteria contained in the listing for “Affective Disorders” must be found disabled, if his condition
1. Marked restriction in activities of daily living.
2. Marked difficulties in maintaining social functioning
3. Deficiencies of concentration, persistence, or pace resulting in frequent failure to complete tasks in a timely manner (in work settings or elsewhere)
4. Repeated episodes of deterioration or decompensation in work or work-like settings which cause the individual to withdraw from that situation or to experience exacerbation of signs and symptoms (which may include deterioration of adaptive behaviors).
20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.04.B. The purpose of the functional criteria contained in paragraph B is to measure the severity of the claimant’s impairment. Id. § 12.00.C. These criteria “represent functional areas deemed essential to work.” Id. § 12.00.A For this reason, a claimant whose mental impairment results in the requisite functional restrictions meets the listing and, accordingly, “is presumed to be unable to work.” Id.
Even if a claimant’s mental impairment does not meet the criteria specified in the listings, he must be found disabled if his condition “is equal to” a listed impairment. 20 C.F.R. § 404.1520(d). In evaluating a claimant with more than one impairment, the Commissioner must consider “whether the combination of your impairments is medically equal to any listed impairment.” 20 C.F.R. § 404.1526(a); see also Sprague v. Bowen,
In this case, the ALJ determined that Lester had both an affective disorder and a personality disorder, but that his mental impairments caused only “moderate” limitations on his functional capacity — not the “marked” restrictions that are required by the listings. In the ALJ’s view, any greater limitations in the areas specified by paragraph B were attributable to pain caused by the physical impairments. Therefore, the ALJ concluded, Lester’s condition did not meet or equal any listing. The Commissioner reiterated the ALJ’s reasoning on appeal: “Because the ALJ correctly found that Lester’s pain and depression were ‘symptoms and signs’ of Lester’s back impairment and were not symptoms and signs of any alleged mental impairment, the ALJ properly concluded that Lester did not have a combination of impairments that met or equalled the Listings under Appendix 1.”
From the ALJ’s decision and the Commissioner’s argument on appeal, it is evident that an error of law was committed in determining that Lester’s impairments were not equal to Listing § 12.04. For purposes of determining whether this listing is equalled, it is irrelevant whether Lester’s symptoms resulted solely from his mental impairments or from a combination of his mental and physical impairments. There is no dispute that Lester had significant mental and physical impairments, each of which resulted in some restrictions on his ability to function in the areas specified by paragraph B. Indeed, the medical experts appear to agree that the part of his limitations arising from his physical impairment — acute pain — cannot eаsily be segregated from the part arising from his mental impairments. Lester’s condition, which the medical advisor referred to as “chronic pain syndrome,” has both a physical and psychological component. See Bunnell v. Sullivan,
The Commissioner erred as a matter of law in isolating the effects of Lester’s physical impairment from the effects of his mental impairment. Instead, she should have considered the combined effect of the claimant’s physical and mental impairments in determining whether the functional criteria listed in paragraph B were satisfied.
IV.
If this were the only error committed by the Commissioner, we would be required to remand for consideration of whether the claimant’s physical and mental impairments in combination satisfy the paragraph B criteria. However, Lester also challenges the Commissioner’s decision to reject the opinions of his treating physician Dr. Kho and his examining psychologist Dr. Taylor. Both doctors provided written reports stating that the claimant is markedly limited in several areas of functioning and has been since 1982. The ALJ’s primary reason for rejecting their opinions was that they conflicted with the testimony of a nonexamining medical advisor. In so doing, the ALJ committed an error of law.
A.
Cases in this circuit distinguish among the opinions of three types of physicians: (1) those who treat the claimant (treating physicians); (2) those who examine but do not treat the claimant (examining physicians); and (3) those who neither examine nor treat the claimant (nonexamining physicians).
The opinion of an examining physician is, in turn, entitled to greater weight than the opinion of a nonexamining physician. Pitzer v. Sullivan,
The opinion of a nonexamining physician cannot by itself constitute substantial evidence that justifies the rejection of the opinion of either an examining physician or a treating physician. Pitzer,
We have, in some cases, upheld the Commissioner’s decision to reject the opinion of a treating or examining physician, based in part on the testimony of a nonexamining medical advisor. E.g., Magallanes v. Bowen,
In Andrews, there was again an abundance of evidence that supported rejection of the opinion, this time that of the examining psychologist: the opinion not only conflicted with the opinions of five nonexamining mental health professionals, but was in conflict with testimony from the claimant himself and with medical reports contained in the record.
B.
In this case the ALJ’s decision to reject the opinion of the treating physician (Dr. Kho) and that of the examining psychologist
In rejecting the examining psychologist’s opinion, the ALJ considered it to be significant that his reports “were clearly obtained by the claimant’s attorney for the purpose of litigation.” The purpose for which medical reports are obtained does not provide a legitimate basis for rejecting them. An examining doctor’s findings are entitled to no less weight when the examination is procured by the claimant than when it is obtained by the Commissioner. Ratto v. Secretary,
The ALJ’s decision also notes that Dr. Taylor’s report was completed several months after Lester’s last insured date. This court has specifically hеld that “medical evaluations made after the expiration of a claimant’s insured status are relevant to an evaluation of the preexpiration condition.” Smith v. Bowen,
The Commissioner also erred in rejecting the opinion of Dr. Kho, the claimant’s treating physician. The ALJ’s primary reason for rejecting his opinion was that it “was based not on an independent conclusion, but primarily on the prompting of the [claimant’s] attorney and Dr. Taylor.” The fact that Dr. Kho agreed with the findings of Dr. Taylor provides nо basis for rejecting his opinion. If anything, the similarity of their conclusions provides reason to credit the opinions of both. Moreover, the ALJ’s statement overlooks the fact that Dr. Kho expressed his opinion that Lester suffered from a personality disorder after his initial examination of the claimant in October 1986 (well before the claimant’s last insured date), and the fact that doctors who had examined the claimant even before then had suspected a psychological disorder. The Commissioner is required to give weight not only to the treat
The Commissioner also emphasizes that, according to Dr. Kho’s progress notes from the summer of 1987, Lester’s bаck pain responded to treatment. However, by February 1988, Dr. Kho reported that Lester was walking with difficulty and that recent treatments had not helped. At most, this evidence demonstrates that, for a brief period of time, Lester experienced some relief from his back pain. In evaluating whether the claimant satisfies the disability criteria, the Commissioner must evaluate the claimant’s “ability to work on a sustained basis.” 20 C.F.R. § 404.1512(a) (emphasis added). Occasional symptom-free periods— and even the sporadic ability to work — are not inconsistent with disability. See Leidler v. Sullivan,
Finally, the ALJ argues that Dr. Kho’s opinion as to Lester’s mental functioning may be disregarded because he is not a mental health specialist. This argument directly conflicts with this court’s decision in Sprague,
The ALJ’s rejection of the treating and examining sources’ opinions in favor of the medical advisor’s was unsupported by other evidence in the record. The nonexamining medical advisor’s testimony does not by itself constitute substantial evidence that warrants a rejection of either the treating doctor’s or the examining psychologist’s opinion.
V.
Lester also alleges that the ALJ erred in rejecting the testimony that he himself offered at the hearing. Lester testified to severe pain in his lower back and to marked restrictions in his activities of daily living. In her written decision, the ALJ stated: “I find the claimant’s testimony regarding his current pain to be exaggerated, not credible, and not supported by credible medical evidence.”
In this case, the ALJ acknowledged that there were two medically determinable mental impairments (depression and a personality disorder) and a medically determinable physical impairment (“severe degenerative disc disease of the lumbar sacral spine”). Although the ALJ offered her conclusion that the claimant’s complaints were “not credible” and “exaggerated,” she did not provide any specific reasons for her disbelief other than a lack of objective evidence. In particular, no reasons were given for rejecting Lester’s testimony as to the “marked” limitations on his activities of daily living. The ALJ’s general statement that the claimant’s testimony was unbelievable is, under Dodrill and Var-ney I, insufficient to support the rejection of his complaints.
VI.
The remaining question is whether to remand for further administrative рroceedings or simply for payment of benefits. Where the Commissioner fails to provide adequate reasons for rejecting the opinion of a treating or examining physician, we credit that opinion “as a matter of law.” Hammock v. Bowen,
Because the evidence, when it is given the effect required by law, demonstrates that Lester meets or equals Listing § 12.04, we remand for payment of benefits. See Ramirez v. Shalala,
Under Hammock and Varney II, we accept the doctors’ opinions and the claimant’s testimony as a matter of law and, accordingly, remand for payment of benefits. Whether his limitations arise solely from his mental impairment or from some combination of his mental and physical impairments, Lester meets or equals Listing § 12.04 and is entitled to a conclusivе presumption of disability.
Notes
. For the reasons explained infra part II, the June 21, 1985 decision has res judicata effect with respect to the question whether Lester was disabled up to that date.
. In a subsequent report, Dr. Taylor acknowledged two errors in his interpretation of the results of MMPI psychological testing. Specifically, Dr. Taylor noted that he had made a plotting error in interpreting the "F” Scale and a typographical error in reporting the Clinical Scale Elevations. According to Dr. Taylor, the correction of these errors ”do[es] not, in any significant way, change the clinical picture.”
. There is an exception to the general rule that courts may not review the Commissioner's decision not to reopen, where the Commissioner considers “on the merits” the issue of the claimant’s disability during the already-adjudicated period. Gregory,
. Gregory greatly limits the Commissioner's ability to apply res judicata to the period after a prior determination. In Gregory, the Social Security Administration had issued a decision on September 24, 1981 finding that the claimant was not disabled. Her date last insured was September 30, 1981. Despite the short period between the date of the prior decision and the date last insured, this court held that res judicata could not be applied to bar her claim, since she raised a psychological impairment not previously considered.
. The Commissioner follows a five-step sequential evaluation process in assessing whether a claimant is disabled:
Step one: Is the claimant engaging in substantial gainful activity? If so, the claimant is found not disabled. If not, proceed to step two.
Step two: Does the claimant have a "severe” impairment? If so, proceed to step three. If not, then a finding of not disabled is appropriate.
Step three: Does the claimant's impairment or combination of impairments meet or equal an impairment listed in 20 C.F.R., Pt. 404, Subpt. P, App.l? If so, the claimant is automatically determined disabled. If not, proceed to step four.
Step four: Is the сlaimant capable of performing his past work? If so, the claimant is not disabled. If not, proceed to step five.
Step five: Does the claimant have the residual functional capacity to perform any other work? If so, the claimant is not disabled. If not, the claimant is disabled.
20 C.F.R. § 404.1520. It is undisputed that Lester has performed no substantial gainful activity since 1982 and that his impairment is "severe.” His claim therefore survives steps one and two. Because we conclude that the claimant’s condition equals a listed impairment, Lester qualifies for benefits at step three, and it is unnecessary for us to address the Commissioner’s application of steps four and five.
. Because in this case the effects of the physical and mental limitations are inseparable from a medical standpoint, and thus arе inextricably linked, we need not consider whether or under what circumstances such linkage is necessary in order to find that a combination of two different impairments equals a listing. We reiterate, however, that the applicable regulations direct the Commissioner to “review the symptoms, signs, and laboratory findings about your impairments to determine whether the combination of your impairments is medically equal to any listed impairment." 20 C.F.R. § 404.1526(a) (emphasis added).
. For purposes of this opinion, the term "physician” or "doctor” includes psychologists and other health professionals who do not have M.D.’s. See 20 C.F.R. § 404.1527 (defining “medical opinions” as "statements from physicians and psychologists and other acceptable medical sources,” and prescribing the respective weight to be given the opinions of treating sources and examining sources).
. Of course, the type of evidence and reasons that would justify rejection of an examining physician's opinion might not justify rejection of a treating physician’s opinion. While our cases apply the same legal standard in determining whether the Commissioner properly rejected the opinion of examining and treating doctors — neither may be rejected without "specific and legitimate” reasons supported by substantial evidence in the record, and the uncontradicted opinion of either may only be rejected for “clear and convincing” reasons — we have also recognized that the opinions of treating physicians are entitled to greater deference than those of examining physicians. Andrews,
. Indeed, there is some question as to whether there is a genuine conflict between the medical advisor’s opinion and the opinions of the treating physician and examining physician, on any material issue. The primary area of disagreement between Dr. Sasser and Drs. Taylor and Kho was not over whether Mr. Lester was severely restricted; the dispute was over the question whether these restrictions resulted from "chronic pain syndrome,” from a mental impairment or from both.
. In arguing that the date of Dr. Taylor’s examination provides a reason for rejecting his conclusions, the Commissioner relies on Vincent v. Heckler,
. In the "Findings" section of her opinion, the AU states: "The claimant’s testimony on his pain limitations was not fully credible and not fully supported by the objective medical findings, as explained in detail in the analysis section of the decision." Although the “Analysis” section discusses why the ALJ believed that the opinions of the treating and examining physicians should be rejected, it does not (contrary to the ALJ's statement) provide any specific reasons for discrediting Lester's testimony.
. To be precise, Lester's condition would meet this listing if the paragraph B restrictions result