Circuit-by-circuit cases for arguing that the ALJ or Appeals Council improperly considered functional restrictions.

by Sarah H. Bohr

Excerpted from Social Security Issues Annotated


Almost every circuit has rendered decisions as to the weight to be accorded to non-examining source opinions. The majority of the circuits have held that a non-examining source’s opinion is entitled to some weight, depending on whether it is supported by substantial evidence in the record. Practitioners sometimes assume that the non-examining consultant’s opinion can never be used to the claimant’s advantage. In many cases, the content of the non-examining consultant’s evaluation contains functional restrictions that might not have been considered by the ALJ or the Appeals Council. The cases discussed below can be used to support arguments that the ALJ or the Appeals Council improperly considered the functional restrictions described by the non-examining source or, where appropriate, that the ALJ failed to consider certain limitations set forth by non-examining reviewing consultants.

Applicable Regulations

20 C.F.R. §§ 404.1527, 416.927

The regulations were clarified in 2000 to provide that while ALJs “are not bound by any findings made by State agency medical or psychological consultants, or other program physicians or psychologists,” these consultants and other program physicians and psychologists “are highly qualified physicians and psychologists who are also experts in Social Security disability evaluation.” The regulations further provide that ALJs “must consider findings of State agency medical and psychological consultants or other program physicians or psychologists as opinion evidence, except for the ultimate determination about whether you are disabled.” Id.The regulations now require the ALJ to evaluate the findings of the State agency consultants using the same regulatory factors used in evaluating any medical opinion.

Because non-examining sources do not have an examining or treating relationship with the claimant, the weight accorded to their opinions depends upon the degree to which they provide supporting explanations for their opinions. In addition, the SSA will evaluate the degree to which these opinions consider all of the pertinent evidence in a claim, including opinions of treating and other examining sources.

These regulations also provide that when evaluating the opinions of non-examining sources, the SSA will apply the rules set forth in paragraphs (a) through (e) of §§ 404.1527 and 416.927. ALJs are not bound by any findings made by state agency medical or psychological consultants. Further, “[u]less the treating source’s opinion is given controlling weight, the administrative law judge must explain in the decision the weight given to the opinions of a State agency medical or psychological consultant or other program physician or psychologist, as the administrative law judge must do for any opinions from treating sources, non-treating sources, and other non-examining sources who do not work for us.”See 65 Fed. Reg. 11,866 (Mar. 7, 2000).

Applicable Rulings

Social Security Ruling 96-6p

SSR 96-6p provides that findings of fact made by state agency medical and psychological consultants and other program physicians and psychologists regarding the nature and severity of an individual’s impairment(s) must be treated as expert opinion evidence of non-examining sources at the ALJ and Appeals Council levels of administrative review. ALJs and the Appeals Council may not ignore these opinions and must explain the weight given to these opinions in their decisions.

As explained by SSR 96-6p, the regulations provide “progressively more rigorous tests for weighing opinions as the ties between the source of the opinion and the individual become weaker.” For example, SSR 96-6p states that opinions of physicians or psychologists who do not have a treatment relationship with the individual are weighed by stricter standards, based to a greater degree on medical evidence, qualifications, and explanations for the opinions, than are required of treating sources.

Thus, SSR 96-6p concludes that the opinions of State agency medical and psychological consultants and other program physicians and psychologists can be given weight only insofar as they are supported by evidence in the case record, considering such factors as (1) the supportability of the opinion in light of the evidence in the record; (2) consistency with the record, including other medical opinions; (3) and any explanation for the opinion. Id.

SSR 96-6p further provides that in some cases, opinions from state agency medical and psychological consultants and other program physicians and psychologists may be entitled to greater weight than the opinions of treating or examining sources. For example, the state agency medical or psychological consultant or other program physician or psychologist’s opinion may be accorded greater weight than the treating physician if the state agency consultant’s opinion is based on a review of a complete case record versus the treating physician’s access to his or her own progress notes. Id.

Social Security Ruling 96-7p

SSR 96-7p confirms that ALJs and the Appeals Council are required to consider findings of fact by state agency medical and psychological consultants and other program physicians and psychologists about the existence and severity of an individual’s impairment(s), including the existence and severity of any symptoms. Id. While ALJs and the Appeals Council are not bound by any state agency findings, they may not ignore these opinions and must explain the weight they give to the opinions in their decisions. Id.

Applicable Case Law

First Circuit

RFC assessments prepared by consultative non-examining physicians may constitute substantial evidence, particularly when supported by other evidence in the record.Giancola v. Shalala, 913 F. Supp. 638, 645 (1st Cir. 1996), citing Berrios Lopez v. Secretary of Health & Human Servs., 951 F.2d 427, 431 (1st Cir. 1991) (stating that a non-examining agency physician’s report can sometimes constitute substantial evidence) andGordils v. Secretary of Health & Human Servs., 921 F.2d 327, 329 (1st Cir. 1990).

In 1994, the First Circuit held that the amount of weight accorded to a non-testifying, non-examining physician will vary with the circumstances, including the nature of the illness and the information provided to the expert.Rose v. Shalala, 34 F.3d 13, 18 (1st Cir. 1994), citing Berrios Lopez v. Secretary of HHS, 951 F.2d 427, 431 (1st Cir. 1991) (per curiam) (citation omitted). The court further noted that in some cases, written reports submitted by non-testifying, non-examining physicians cannot alone constitute substantial evidence.Id.

The First Circuit held that an advisory report prepared by a non-examining, non-testifying physician is entitled to some evidentiary weight, which “will vary with the circumstances, including the nature of the illness and the information provided the expert.” Gordils v. Secretary of Health and Human Servs., 921 F.2d 327, 328 (1st Cir. 1990). In Gordils, the court stated that the Secretary is not “precluded from rendering common-sense judgments about functional capacity based on medical findings, as long as the Secretary does not overstep the bounds of a lay person’s competence and render a medical judgment.”Id. at 329. The court provided the following example:

Obviously, speaking hypothetically, if the only medical findings in the record suggested that a claimant exhibited little in the way of physical impairments, but nowhere in the record did any physician state in functional terms that the claimant had the exertional capacity to meet the requirements of sedentary work, the ALJ would be permitted to reach that functional conclusion himself.

Id.

The First Circuit distinguished between a testifying and non-testifying, non-examining medical advisor, noting that the testifying medical examiner is subject to cross-examination. Torres v. Secretary of Health and Human Servs., 870 F.2d 742, 744 (1st Cir. 1989). The court further noted that whether the testimony of a medical advisor who reviews the record and testifies at the hearing can alone constitute substantial evidence varies with the circumstances, including the nature of the illness and the information provided to the advisor. Id.

InMorales Colon v. Comm’r of Soc. Sec., 245 F. Supp.2d 395 (D.P.R. 2003), a Puerto Rican district court noted that both non-examining physicians failed to adequately explain how or why they reached said conclusion, as well as failed to make any reference to evidence in the record which supported their findings:

Said failure to complete such an imperative working document — a recommendation which in many cases entails the direction a claim takes — is inexcusable. Considering said unsubstantiated RFC assessment, plus the fact that the record lacks any other meaningful RFC assessment, the Court is wholly clueless as to how the ALJ determined the claimant’s precise RFC.

Id. at 400. The court also noted that in the First Circuit, absent a residual functional capacity assessment from an examining physician, an ALJ is not equipped to conclude that a claimant’s condition presents no significant limitation on the ability to work, and an “ALJ, as a lay fact finder, lacks the expertise to make a medical conclusion.”Id. Finally, the court observed that ALJs “in this district repeatedly fail to obtain RFC assessments from examining physicians, notwithstanding the First Circuit’s mandate.” Id. at 401.

A report given by a non-treating physician is entitled to evidentiary weight, but cannot be the sole factor of an ALJ’s decision. Chelte v. Apfel, 76 F. Supp.2d 104, 109 (D. Mass. 1999),citing Browne v. Richardson, 468 F.2d 1003, 1006 (1st Cir. 1972); Berrios-Lopez v. Secretary of Health & Human Servs., 951 F.2d 427, 431 (1st Cir. 1991). The weight given such a report should vary depending on the circumstances. Id. Among the factors to consider is “the availability of most of the medical evidence to the non-examining physician.” Id. Where the non-examining physicians only reviewed a partial record, never seeing vital information contained in the unreviewed portion, their report, while noteworthy, cannot be the sole factor in determining disability. Id.See alsoRosario v. Apfel, 85 F. Supp.2d 62, 68 (D. Mass. 2000) (holding that the opinions of non-examining physicians could not be the sole factor in determining disability since none of the evidence of the claimant’s liver disease was in the record reviewed by these physicians, and these physicians only reviewed a partial record and did not see vital information contained in the unreviewed portion).

A district court remanded a case, in part, because an ALJ failed to consider the findings of the SSA’s non-examining consultant made on a psychiatric review form.Guyton v. Apfel, 20 F. Supp.2d 156, 164-65 (D. Mass. 1998).

A district court summarized First Circuit case law as providing that the amount of weight that can properly be given the conclusions of non-testifying, non-examining physicians will vary with the circumstances, including the nature of the illness and the information provided the expert.Hallgring v. Callahan, 975 F. Supp. 84, 91-92 (D. Mass. 1997). The court added that in cases involving chronic fatigue syndrome, the weight to be given a non-testifying, non-examining physician, when compared to contrary evidence given by a treating physician, is to be substantially discounted because “[t]he subjective severity of a claimant’s fatigue associated with CFS is not something readily evaluated on an algid administrative record.”Id.

Reports from non-examining advisors cannot by themselves “trump the findings” from treating physicians.Weiler v. Shalala, 922 F. Supp. 689, 697 (D. Mass. 1996).

InRosario v. Apfel, 85 F. Supp.2d 62 (D. Mass. 2000), the court found that the ALJ should have accorded controlling weight to the opinion of the treating physician, “in preference to the inconsistent views of the non-treating physicians.” Id. at 67. The court also discussed “another reason” for according the non-examining physicians “minimal, if any, weight”: they relied on a review of only a partial record. Id. at 68. While a “report given by a non-treating physician is entitled to evidentiary weight but cannot be the sole factor of an ALJ’s decision,” and the weight accorded to such an opinion depends on the circumstances.Id., citing Browne v. Richardson, 468 F.2d 1003, 1006 (1st Cir. 1972); Berrios Lopez v. Sec’y of Health & Human Servs., 951 F.2d 427, 431 (1st Cir. 1991); DiVirgilio v. Apfel, 21 F. Supp.2d 76, 80-81 (D. Mass. 1998). One of the factors to consider is whether most of the medical evidence is available to the non-examining physician. In this case, as none of the claimant’s records pertaining to his liver disease was included in the records DDS reviewers used in making their determinations, their report cannot be the sole factor in determining disability. Id.

The court noted that the ALJ could not have discredited the RFC assessment of two treating physicians by virtue of a conflicting RFC assessment prepared by a non-examining physician.Martinez v. Comm’r of Soc. Sec., 306 F. Supp.2d 98, 99 (D.P.R. 2004). “To make matters worse, said RFC report . . . is extremely general in nature, contains no explanations, and, erroneously states that there are no treating/examining source conclusions of record which significantly differ.”Id. at 100.

Where the ALJ assigned little weight to the opinion of a treating physician, in part, because his opinion was “not adequately explained or supported,” the court noted that neither the doctor’s report nor her opinion differs significantly from the format of the reports and opinions of the two non-examining agency physicians to whom the ALJ gave controlling weight.Arroyo v. Barnhart, 295 F. Supp.2d 214, 222 (D. Mass. 2003). Moreover, neither report of the two agency physicians cites anything other than the claimant’s medical history, which was the same approach taken by the treating physician, but found lacking by the ALJ. Id.

Where the ALJ failed to comment on a state agency non-examining physician’s opinion that the claimant should work in a relatively isolated work station, the court held that the ALJ’s failure to take medical evidence into account and explain the weight afforded such evidence was error.Quigley v. Barnhart, 224 F. Supp.2d 357, 367-68 (D. Mass. 2002).

The weight to be given to a non-examining medical advisor’s opinions depends upon the degree to which the source has provided supporting explanations for those opinions. Oliveras v. Shalala, 870 F. Supp. 411, 415 (D. Mass. 1994).

“While written reports submitted by non-examining physicians who merely reviewed the written medical evidence are not substantial evidence, these may serve as supplementary evidence for the ALJ to consider in conjunction with the examining physicians’ reports.” Irizarry-Sanchez v. Commissioner of Soc. Sec., 253 F. Supp.2d 216, 219 (D.P.R. 2003), citing Rodriguez v. Sec’y of HHS, 647 F.2d 218, 222 (1st Cir. 1981); Browne v. Richardson, 468 F.2d 1003, 1006 (1st Cir. 1972).

A Massachusetts district court held that the ALJ “reasonably relied” upon the opinion of a non-examining physician, among others, in assessing the claimant’s residual functional capacity. Reeves v. Barnhart, 263 F. Supp.2d 154, 161 (D. Mass. 2003). The court noted that this physician’s opinion was supported by the objective medical evidence, including evidence provided by Plaintiff’s treating and examining physicians, and was not inconsistent with other medical evidence of record. Id.See alsoCoggon v. Barnhart, 354 F. Supp.2d 40, 61 (D. Mass. 2005) (holding that in determining the claimant’s residual functional capacity, the ALJ properly relied on the functional assessments of the non-examining physicians and appropriately considered the opinion of the claimant’s treating physician);Sexton v. Barnhart, 247 F. Supp.2d 15, 24-25 (D. Mass. 2003) (holding that the ALJ appropriately considered the opinions and findings of the non-examining physicians, along with all the other available medical opinions, and found them to be accurate descriptions of the claimant’s condition and consistent with the other evidence of record).

Where the limitations placed on the claimant by the treating physician in his residual functional capacity assessment were inconsistent with his own treatment recordsand the entire medical record as a whole, it was entirely permissible for the ALJ to grant greater weight to the non-examining physician’s assessment. Castro v. Barnhart, 198 F. Supp.2d 47, 55-56 (D. Mass. 2002).See alsoRivera De Jesus v. Comm’r of Soc. Sec., 286 F. Supp.2d 103, 107 (D.P.R. 2003) (holding that the opinions two non-examining State agency physicians constituted substantial evidence to support the ALJ’s decision, noting that both physicians independently concurred that the claimant could perform light work).

The court held that the ALJ did not err in affording little evidentiary weight to the residual functioning capacity assessments and the opinions proffered by the claimant’s treating physicians, noting that the:

relevant regulations further permit the ALJ to downplay the weight afforded a treating physician’s assessment of the nature and severity of an impairment where, as here, it is internally inconsistent or inconsistent with other evidence in the record including treatment notes and evaluations by examining and non-examining physicians.

Arruda v. Barnhart, 314 F. Supp.2d 52, 72 (D. Mass. 2004),citing 20 C.F.R. §§ 404.1527(d)(2)-(4) & 416.927(d)(2)-(4).

A Massachusetts district court held that non-examining physicians’ opinions, taken in context with treating source reports, physical therapy reports, consultative examinations, and the claimant’s credible pain complaints, together constituted substantial evidence to support the ALJ’s decision. DiVirgilio v. Apfel, 21 F. Supp.2d 76, 82 (D. Mass. 1998).In DiVirgilio, the court found that there was “broad agreement” between the two non-examining physicians’ advisory opinions which provided “a level of agreement sufficient for their advisory opinions to be considered substantial evidence.” Id. Further, the court upheld the “extremely low evidentiary weight” accorded to the claimant’s treating physician whose conclusions were found to be “internally inconsistent” and whose records had been reviewed by the non-examining physicians. Id. at 81.

The ALJ properly discounted a treating physician’s opinion in favor of a non-examining, testifying physician’s opinion, where he specifically considered the opinion and found it to be internally inconsistent and unsupported by his treatment notes.Boisvert v. Callahan, 997 F. Supp. 183, 186 (D. Mass. 1998).

A Rhode Island district court acknowledged that while in some cases written reports submitted by non-testifying, non-examining physicians cannot alone constitute substantial evidence, “this is not an ironclad rule.”Brown v. Apfel, 71 F. Supp.2d 28, 39 (D.R.I. 1999), citing Browne v. Richardson, 468 F.2d 1003, 1006 (1st Cir. 1972); Rose v. Shalala, 34 F.3d 13, 18 (1st Cir. 1994); Berrios Lopez v. Secretary of Health & Human Servs., 951 F.2d 427, 431 (1st Cir. 1991). Whether or not such evidence is considered substantial varies depending on the circumstances, including the nature of the illness and the information provided by the expert. Id.

The court held that these reports constituted substantial evidence of the ALJ’s conclusion in this case because, as in Berrios Lopez:

1) the reports contained written comments and medical conclusions rather than just “the mere checking of boxes denoting levels of residual functional capacity,” 2) the reports were consistent with each other and 3) the physicians had available to them most, although not all, of the medical evidence for their review.

Id.

RFC assessments prepared by consultive non-examining physicians may constitute substantial evidence, particularly when supported by other evidence in the record. Giancola v. Shalala, 913 F. Supp. 638, 645 (D. Mass. 1996),citing Berrios Lopez v. Sec’y of Health & Human Servs., 951 F.2d 427, 431 (1st Cir. 1991); Gordils v. Sec’y of Health & Human Servs., 921 F.2d 327, 329 (1st Cir. 1990).

Second Circuit

The Second Circuit held that a non-examining source’s opinion that was based on incomplete medical records did not constitute substantial evidence to uphold the ALJ’s decision. Pratts v. Chater, 94 F.3d 34, 38 (2d Cir. 1996).

Evidence relied upon by the Commissioner in the form of a non-examining physician’s report did not constitute substantial evidence to override the treating physician’s assessment of the claimant’s ability to perform specific types of tasks.Hidalgo v. Bowen, 822 F.2d 294, 298 (2d Cir. 1987).

InRodriguez v. Barnhart, 249 F. Supp.2d 210 (E.D.N.Y. 2003), the court held that the record did not contain substantial evidence to support the ALJ’s findings, as all of the claimant’s treating sources have concluded that he was disabled, none of the examining physicians made findings that contradicted the conclusions of the treating sources, and the only doctor who did conclude that the claimant was not disabled was a non-examining doctor whose opinion was entitled to little weight.Id. at 214. In so holding, the court noted that the testimony of the non-examining physician did not constitute substantial evidence to overcome the opinions of the treating physicians that the claimant was disabled.Id.

A New York district court held that the ALJ erred in according controlling weight to the opinion of a medical advisor “who admitted that he was ‘not quite sure what’s going on here’” and who also made inaccurate statements regarding the content of the medical records. Downey v. Barnhart, 294 F. Supp.2d 495, 501 (S.D.N.Y. 2003). In so holding, the court first noted that the “regulations do not contemplate that the opinions of a non-examining physician be treated as substantial evidence.” Id., citing 20 C.F.R.§ 404.1527(d)(1). Second, the factual errors by the medical expert, his hesitation about giving an opinion, and his admission that he was “not quite sure what’s going on here,” constitute grounds for reversal. Id. at 502.

The court observed that the ALJ’s decision was “clear” that the ALJ relied primarily on the opinions of the non-examining, non-treating review physicians in finding that the claimant’s alcohol abuse was material to the determination of disability. Frederick v. Barnhart, 317 F. Supp.2d 286, 298 (W.D.N.Y. 2004). The court held that the ALJ’s reliance on these opinions was legal error because: (1) their opinions were offered in early 1999, before the claimant began treatment at a mental health center and none of the reviewing physicians had the benefit of the medical records from that facility; (2) their findings are not consistent with the other medical evidence of record and were not adequately explained; and (3) none of the reviewing physicians had a treatment relationship with claimant.Id. at 298-99.

The court held that the ALJ erred in placing “great weight” on the opinion of a non-examining psychiatrist regarding the claimant’s ability to work was not appropriate in light of the nature of the claimant’s alleged impairment of fibromyalgia.Willoughby v. Comm’r of Soc. Sec., 332 F. Supp.2d 542, 549-50 (W.D.N.Y. 2004),citing 20 C.F.R. § 416.927(f).

A district court reaffirmed the case law that the opinion of a non-examining, consultative physician, without more, is insufficient to constitute the requisite contrary substantial evidence to override the diagnosis of a treating physician.Harnisher v. Apfel, 40 F. Supp.2d 121, 128 (E.D.N.Y. 1999).

The Commissioner may rely on the opinions of other physicians, even non-examining ones, but he must weigh the same regulatory factors as required for evaluating treating physicians’ opinions and must generally give more weight to a treating source than a non-treating one and to an examining source than to a non-examining one. Echevarria v. Apfel, 46 F. Supp.2d 282, 292 (S.D.N.Y. 1999). Where the ALJ discounted the claimant’s treating physician’s opinion because he only saw the claimant a few times, the court observed the following:

There is an obvious problem in rejecting the opinions of plaintiff’s treating physicians because they had only been seeing plaintiff for a few months and then accepting the opinion of [a non-examining physician] who never saw plaintiff at all.

Id. at 296-97.

A medical advisor’s assessment of “what other doctors find is hardly a basis for competent evaluation without a personal examination of the claimant.’”Pagan on Behalf of Pagan v. Chater, 923 F. Supp. 547, 555 (S.D.N.Y. 1996),quoting Vargas v. Sullivan, 898 F.2d 293, 295 (2d Cir. 1990).

The general rule is that the written reports of medical advisors who have not personally examined the claimant deserve little weight in the overall evaluation of disability.Minsky v. Apfel, 65 F. Supp.2d 124, 139 (E.D.N.Y. 1999). The advisers’ assessment of what other doctors find is hardly a basis for competent evaluation without a personal examination of the claimant.Id. In the face of the overwhelming record evidence of disability, the findings of the non-examining reviewing doctors “are entitled to relatively little weight.”

ALJs may not ignore findings of fact made by State agency medical consultants and “must explain the weight given to these opinions in their decisions,” in accordance with SSR 96-6p. Batista v. Chater, 972 F. Supp. 211, 219-220 (S.D.N.Y. 1997).Thus, the court cannot permit the unexplained dismissal of the medical evidence in a claimant’s favor. Id., citing Fiorello v. Heckler, 725 F.2d 174, 176 (2d Cir. 1983).

Where the ALJ’s own non-examining medical expert was of the opinion that the claimant’s condition met the criteria for Listing 11.09C for multiple sclerosis, and other records supported the same opinion, the ALJ was not entitled to substitute his own medical opinion to find that the claimant did not suffer any “continuing severe emotional problems that would exacerbate [her] multiple sclerosis” and therefore did not suffer from a condition that met the listing requirements. Mahoney v. Apfel, 48 F. Supp.2d 237, 245 (E.D.N.Y 1999)

A district court found that the opinions of non-examining sources can override the opinions of treating sources, only if the opinion of the non-examining source is supported by substantial evidence in the record.Fuller v. Shalala, 898 F. Supp. 212, 217 (S.D.N.Y. 1995).

Third Circuit

The Third Circuit has expressed skepticism regarding RFC reports completed by “SSA physicians” in which boxes are checked and blanks completed, noting “[f]orm reports in which a physician’s obligation is only to check a box or fill in a blank are weak evidence at best” and when they are not accompanied by “thorough written reports, their reliability is suspect.”Claussen v. Chater, 950 F. Supp. 1287, 1291, 1296, n. 10 (D.N.J. 1996),citing Mason v. Shalala, 994 F.2d 1058, 1065 (3d Cir. 1993).

A Pennsylvania district court noted that the only medical opinions of record which support the ALJ’s RFC finding are those of the non-examining state agency physicians which do not amount to substantial evidence.Bennett v. Barnhart, 264 F. Supp.2d 238, 260 (W.D. Pa. 2003).

A Delaware district court held that the ALJ properly considered the state agency physician’s opinions that the claimant was not precluded from all work activity.Bush v. Barnhart, 279 F. Supp.2d 512, 520 (D. Del. 2003), citing Jones v. Sullivan, 954 F.2d 125, 129 (3d Cir. 1991) (stating that the ALJ may give great weight to the opinion of a non-examining physician, and such opinion may constitute substantial evidence to support the ALJ’s decision).

Fourth Circuit

The report of a non-examining, non-treating physician should be discounted and is not substantial evidence when contradicted by all other evidence in the record.Millner v. Schweiker, 725 F.2d 243, 245 (4th Cir. 1984), citing Hall v. Harris, 658 F.2d 260, 265-66 (4th Cir. 1981) (stating that the physical capacities evaluation prepared by the state agency’s physician, if accepted at face value, might support a conclusion that the claimant could do sedentary, light, or even medium work, but that the physician never saw or examined her and based his evaluation on medical reports which simply do not furnish this information) andHayes v. Gardner, 376 F.2d 517, 521 (4th Cir. 1967) (concluding that in view of the opinion evidence as to the existence of a disability, combined with the overwhelming medical facts, the uncontradicted subjective evidence, and the claimant’s vocational background, the opinion of a doctor who never examined or treated the claimant could not serve as substantial evidence to support the Commissioner’s finding).

The district court stated that the opinion of a non-examining, non-treating physician is not substantial evidence when it is contradicted by all other evidence in the record.Mathis by Mathis v. Shalala, 890 F. Supp. 461, 463 (E.D.N.C. 1995).

Fifth Circuit

InNewton, the court held that the ALJ’s reliance on the conclusory and unsubstantiated opinion of a non-treating, non-examining medical expert did not constitute substantial evidence to support a finding that the claimant could perform sedentary work. Newton v. Apfel, 209 F.3d 448, 457 (5th Cir. 2000). See also Myers v. Apfel, 238 F.3d 617, 621 (5th Cir. 2001) (holding that the ALJ erred in failing to resolve the inconsistencies in the evidence in that he relied on the opinion of the ME, a non-examining, non-treating physician, who “based his conclusion that she met the requirements for sedentary work on an incomplete reading of the treating physicians’ reports,” while the medical evidence indicated that the claimant could not meet these requirements).

The district court held that although the opinion of an examining physician is generally entitled to more weight than the opinion of a non-examining physician, the ALJ should reject the opinion of any physician when the evidence supports a contrary conclusion.Fergusen v. Secretary of HHS, 919 F. Supp. 1012, 1020 (E.D. Tex. 1996),citing Spellman v. Shalala, 1 F.3d 357, 364-65 (5th Cir. 1993) (finding that the Appeals Council acted within its discretion in rejecting the treating physician’s opinion that the claimant could not perform sedentary work, because the treating physician’s opinion was inconsistent with the other substantial evidence in the record);Bradley v. Bowen, 809 F.2d 1054, 1057 (5th Cir. 1987) (reaffirming that although the opinion of an examining physician is generally entitled to more weight than the opinion of a non-examining physician, the ALJ is free to reject the opinion of any physician when the evidence supports a contrary conclusion);andMilam v. Bowen, 782 F.2d 1284, 1287 (5th Cir. 1986).

The ALJ may rely on the determination of a non-examining physician when those findings are based on a careful evaluation of the medical evidence and do not contradict those of the examining physicians. Eaves v. Secretary of Health and Human Servs., 877 F. Supp. 334, 344 (E.D. Tex. 1995).

“The ALJ may rely on a non-examining physician’s assessments where those findings are based upon a careful examination of the medical evidence and do not contradict those of an examining physician.” Hector v. Barnhart, 337 F. Supp.2d 905, 926 (S.D. Tex. 2004),citing Carrier v. Sullivan, 944 F.2d 243, 246 (5th Cir. 1991); Villa v. Sullivan, 895 F.2d 1019, 1024 (5th Cir. 1990); Ransom v. Heckler, 715 F.2d 989, 993-94 (5th Cir. 1983).

In Alejandro v. Barnhart, 291 F. Supp.2d 497 (S.D. Tex. 2003), the court discussed the law pertaining to considering opinions of State agency non-examining physicians:

Although ALJs ‘are not bound by any findings made by State agency medical or psychological consultants,’ they must consider such findings as opinion evidence. 20 C.F.R. §§ 404.1527(f)(2)(i), 416.927(f)(2)(i). In instances in which the treating physician’s opinion is not accorded controlling weight, an ALJ ‘must explain in the decision the weight given to the opinions of a State agency medical or psychological consultant . . . as the administrative law judge must do for any opinions from treating sources.’ 20 C.F.R. §§ 404.1527(f)(2)(ii), 416.927(f)(2)(ii). An ALJ’s assessment of non-examining source opinions are otherwise subject to the same basic rules of evaluation as those imposed on treating sources. 20 C.F.R. §§ 404.1527(f), 416.927(f). The failure to discuss a particular aspect of [the non-examining physician’s] findings may also run afoul of the Social Security regulations due to the requirement to evaluate all medical opinions with reference to the factors enumerated in 20 C.F.R. §§ 404.1527(d), 416.927(d) whenever a treating source’s opinion does not receive controlling weight.

Id. at 515. After surveying the law regarding “harmless error,” the court held that the ALJ’s failure to consider the findings of the state agency non-examining physician was harmless error.Id. at 516-17.

Sixth Circuit

The testimony of the non-examining advisor could not provide a sufficient basis for rejecting the opinions of the claimant’s treating physicians since a non-examining physician’s opinion is entitled to little weight if it is contrary to the claimant’s treating physician’s opinion. Shelman v. Heckler, 821 F.2d 316, 321 (6th Cir. 1987).

An Ohio district court noted that a treating physician’s opinion is entitled to weight substantially greater than that of a non-examining medical advisor. Roush v. Barnhart, 326 F. Supp.2d 858, 865 (S.D. Ohio 2004),citing Harris v. Heckler, 756 F.2d 431, 435 (6th Cir. 1985); Lashley v. Secretary of H.H.S., 708 F.2d 1048, 1054 (6th Cir. 1983)

Seventh Circuit

The Seventh Circuit held that the ALJ erred in relying entirely on the testimony of a non-examining, non-specialist medical consultant hired to review the claimant’s medical records without fully analyzing the other medical evidence contained in the record, especially given the evidence by a specialist in the field of the relevant disease who actually examined the applicant and opined that the claimant’s condition met the requirements of Listing 1.05(C).Groves v. Apfel, 148 F.3d 809, 811 (7th Cir. 1998). In so holding, the court noted that even though the physician was neither a neurologist nor an orthopedist, these were not “disqualifications,” but underscored “the importance to a rational decision of taking account of the other medical evidence in the record, especially the evidence given by a specialist in the relevant disease who actually examined the applicant.” Id., citing 20 C.F.R. § 416.927(d); Books v. Chater, 91 F.3d 972, 979 (7th Cir. 1996).

“An ALJ can reject an examining physician’s opinion only for reasons supported by substantial evidence in the record; a contradictory opinion of a non-examining physician does not, by itself, suffice.” Gudgel v. Barnhart, 345 F.3d 467, 470 (7th Cir. 2003). Followed,Windus v. Barnhart, 345 F. Supp.2d 928, 945 (E.D. Wis. 2004) (holding that the ALJ erred in relying on non-examining State agency physicians);Mason v. Barnhart, 325 F. Supp.2d 885, 901 (E.D. Wis. 2004) (determining that the ALJ erred in failing to support his conclusion with the opinion of any examining source); Samuel v. Barnhart, 316 F. Supp.2d 768, 776 (E.D. Wis. 2004) (holding that the ALJ erred in relying on the report of a non-examining, State agency consultant, who found that the claimant did not have a severe impairment as the reports of the examining physicians revealed that the claimant had a severe impairment); Wates v. Barnhart, 288 F. Supp.2d 947, 951-52 (E.D. Wis. 2003) (holding that the contradictory opinion of a non-examining physician is not, by itself, sufficient to justify rejection of a treating source opinion and it was not reasonable for the ALJ to adopt the contrary opinions of the agency physicians given his finding that the treating physician opinions were “consistent” with the record).

The Seventh Circuit generally discussed the various cases addressing the weight to be accorded a non-examining physician’s opinion, without providing final direction as to the appropriate weight. See DeFrancesco v. Bowen, 867 F.2d 1040, 1043 (7th Cir. 1989) (setting out the comparative strengths and weaknesses of each side of the issue).

In a case where none of the medical experts were treating physicians, and where the ALJ did not improperly reject an examining physician’s opinion in favor of a non-examining physician’s opinion, but where one examining physician’s opinion was contradicted by several other examining and non-examining physicians’ opinions, the Seventh Circuit held that the ALJ properly weighed the evidence and the decision was supported by substantial evidence.Young v. Barnhart, 362 F.3d 995, 1001-02 (7th Cir. 2004), citing Gudgel v. Barnhart, 345 F.3d 467, 470 (7th Cir. 2003)

In Johnson v. Apfel, 189 F.3d 561 (7th Cir. 1999), the Seventh Circuit held that the ALJ’s opinion as to the claimant’s RFC was based on substantial evidence and that he properly relied on the opinions of the non-examining state agency physicians even though the ALJ failed to point out that on their RFC forms, under “manipulative limitations,” these physicians had checked the box for “limited” in the ability to reach in all directions, including overhead.Id. at 564. As noted by the court:

[s]ince elsewhere in the report the physicians had indicated in detail an absence of any relevant exertional limitations, the administrative law judge was entitled to conclude that the fact that Johnson cannot reach in all directions without some unspecified limitations was insufficient to establish that he can’t perform his past work as a carpenter. That the administrative law judge did conclude this rather than overlook the check mark in the ‘limited’ box seems to us the most plausible interpretation of the opinion, and no more is required to uphold it.

Id.

InFlener ex rel. Flener v. Barnhart, 361 F.3d 442 (7th Cir. 2004), a children’s SSI case, the Seventh Circuit rejected the child claimant’s argument that he had an extreme limitation in social functioning in light of the fact that three non-examining state agency sources did not find such a limitation.Id. at 448. The child argued that raw test data showed such an extreme limitation and, therefore, that the ALJ should have obtained medical-expert testimony to ascertain whether the data showed an extreme limitation.Id. The Seventh Circuit differed, stating that a court should “generally” respect the ALJ’s “reasoned judgment” on the development of the record.Id. at 448. Further, the claimant had primary responsibility for providing evidence, and several non-examining state-agency sources reviewed the raw test data without noting an extreme limitation. Id.

Some courts have upheld reliance on non-examining physicians’ opinion. See, e.g, Scott v. Callahan, 977 F. Supp. 856, 869 (N.D. Ill. 1997) (finding that the ALJ was permitted to rely on the opinion of the agency-retained medical consultant in finding that the claimant could perform the full range of sedentary work since the consultant’s RFC assessment was compatible with the demands of sedentary work);Sedrak v. Callahan, 987 F. Supp. 1063, 1068 (N.D. Ill. 1997) (stating that the opinions of reviewing doctors may constitute substantial evidence);Townsend v. Apfel, 47 F. Supp.2d 958, 964 (N.D. Ill. 1999) (rejecting the claimant’s argument that the ALJ improperly discredited her treating physician’s opinion in favor of a non-examining physician, reasoning that neither opinion was that favorable nor differed significantly from one another).

Eighth Circuit

InNevland v. Apfel, 204 F.3d 853 (8th Cir. 2000), the Eighth Circuit stated that the “opinions of doctors who have not examined the claimant ordinarily do not constitute substantial evidence on the record as a whole.” Id. at 858. The court held where there was no medical evidence about how the claimant’s impairments affected his present ability to function, and where the ALJ relied on the opinions of non-treating, non-examining physicians who reviewed the reports of the treating physicians to form an opinion of the claimant’s RFC, the ALJ did not satisfy his duty to fully and fairly develop the record.Id.

In Shontos v. Barnhart, 328 F.3d 418 (8th Cir. 2003), the Eighth Circuit reiterated that the “opinions of non-treating practitioners who have attempted to evaluate the claimant without examination do not normally constitute substantial evidence on the record as a whole.” Id. at 427, citing Jenkins v. Apfel, 196 F.3d 922, 925 (8th Cir. 1999). The court held that the ALJ improperly discounted the opinion of a clinical psychologist as a treating source because he had not treated the claimant for half a year at the time he completed an assessment. Id. at 425. However, the regulations do not require that a treating source be currently treating the claimant and since the psychologist had, at the very least, an examining relationship, his opinion was entitled to more weight than the opinion of a non-examining source. Id. See also Jenkins v. Apfel, 196 F.3d 922, 924-25 (8th Cir. 1999) (holding that newly submitted evidence to the Appeals Council undermined the ALJ’s assessment of the claimant’s RFC which was solely based on the opinion of a non-treating, non-examining physician).

InDixon v. Barnhart, 324 F.3d 997 (8th Cir. 2003), the Eighth Circuit held that the ALJ relied too heavily on the opinions of a State agency reviewing physician, which was the only evidence supporting the ALJ’s determination that the claimant could perform medium work. Id. at 1002, citingNevland v. Apfel, 204 F.3d 853, 858 (8th Cir. 2000). Given the contradicting recommendations from the claimant’s treating physician and the examining physician and the insufficiently developed record surrounding the claimant’s cardiac problems, the Eighth Circuit held that the State agency opinion did not constitute substantial record evidence that the claimant could perform medium work.Id. at 1002-03.See also Goose v. Apfel, 238 F.3d 981, 984 (8th Cir. 2001) (holding that one non-testifying, non-examining expert’s opinion cannot be considered substantial evidence to defeat the decision of the ALJ which is supported by substantial evidence”).

InLauer v. Apfel, 245 F.3d 700 (8th Cir. 2001), the Eighth Circuit rejected the Commissioner’s argument that the ALJ’s mental RFC was supported by the opinion of the “non-examining” consultant. Id. at 705. The court noted that this doctor did not have the benefit of a review of the treating psychiatrist’s assessment or the report of the consulting psychologist selected by SSA. Id. The weight to accord the opinion of “non-examining sources” depends on the “degree to which they provide supporting explanations,” and the consultant did not provide any “specific medical findings” to support his mental RFC assessment. Id.,citing 20 C.F.R. § 404.1527(d)(3). Furthermore, since the consultant did not find that the claimant suffered from somatoform impairment (which the ALJ found to be a severe impairment), the court rejected the Commissioner’s contention that the ALJ relied on the consultant’s opinion as he “did not even agree with the ALJ as to the existence vel non of those impairments.”Id.See alsoNevland v. Apfel,204 F.3d 853, 858 (8th Cir. 2000) (noting that the opinions ofnon-examining physicians ordinarily do not constitute substantial evidence on the record as a whole).

InCruze v. Chater, 85 F.3d 1320, 1325 (8th Cir. 1996), the Eighth Circuit upheld an ALJ’s conclusion as to a claimant’s RFC that conflicted with the opinion of a treating physician because it was supported by the medical opinions of two non-examining consulting physicians and by evidence of the claimant’s daily activities. Id.See also Pierce v. Apfel, 173 F.3d 704 707 (8th Cir. 1999) (holding that the ALJ properly rejected the conclusion of the SSA examining consultant that the claimant had only “fair” abilities to perform certain work-related functions because it conflicted with the evidence of record, including the claimant’s testimony which indicated that he could perform responsibly in the workplace).

The Eighth Circuit reiterated inHarvey v. Barnhart, 368 F.3d 1013, 1016 (8th Cir. 2004) that it does not consider the opinions of non-examining, consulting physicians standing alone to be “substantial evidence.”Id. at 1016,citing Jenkins v. Apfel, 196 F.3d 922, 925 (8th Cir. 1999) (finding that, where no other evidence supported an ALJ’s residual functional capacity determination, the opinion of a non-examining consulting physician was not “considered substantial evidence in the face of the conflicting assessment of a treating physician”). However, in this case, the ALJ did not rely on the opinion of a non-examining physician to reach his conclusions but, instead, the ALJ relied on this opinion “as one part of the record, which, as a whole . . . clearly provides substantial support for his findings.”Id.

The Eighth Circuit has held that reports of non-examining physicians are entitled to little weight.Miller v. Heckler, 756 F.2d 679, 681 n.2 (8th Cir. 1985).

The court held that the ALJ acted improperly by relying on testimony of physicians who did not examine the claimant for disability benefits over the medical opinions of those who did, based on the claimant’s perceived lack of credibility.Estabrook v. Apfel,14 F. Supp.2d 1115 (S.D. Iowa 1998).See alsoFiala v. Barnhart, 233 F. Supp.2d 1167 (S.D. Iowa 2002) holding that the ALJ erred in relying on residual functional capacity forms completed by doctors at the Disability Determination Services who had never examined the claimant to find that she was able to perform light work).

The opinion of a doctor who did not personally examine the claimant or rely on the statement of the examining physician in conducting his assessment was not entitled to significant weight. Luther v. Chater, 938 F. Supp. 538, 539, 541 (S.D. Iowa 1996).

InMcJames v. Barnhart, 365 F. Supp.2d 1018, 1032 (E.D. Mo. 2005), the court held that the ALJ failed to acknowledge or evaluate the opinion of non-examining, non-consulting psychologist who engaged in an extensive review of the claimant’s relevant medical records, and provided a specific assessment and narrative of her medical condition and her ability to engage in employment. Id. at 1032,citing Anderson v. Barnhart, 344 F.3d 809, 813 (8th Cir. 2003); Ward v. Heckler, 786 F.2d 844, 846-47 (8th Cir. 1986). “Taken together with the record as a whole, a non-examining provider’s medical opinion can be considered when forming the basis of an ALJ’s opinion.” Id. While the opinions of neither non-examining physicians are entitled to controlling weight, “when viewed in light of each other and additional evidence of record, they are consistent with other provider observations.” Id., citing SSR 96-6p.

“[T]he opinions of non-examining physicians ordinarily do not constitute substantial evidence on the record as a whole.” Gillette v. Barnhart, 291 F. Supp.2d 1071, 1077 (D.N.D. 2003),citing Bowman v. Barnhart, 310 F.3d 1080, 1085 (8th Cir. 2002). The court observed that the brief, conclusory opinions of the non-examining physicians provided little substance and did not “equate with ‘better or more thorough medical evidence,’” noting that an “ALJ may credit other medical evaluations over that of a treating physician when such other assessments ‘are supported by better or more thorough medical evidence.’” Id., citing Rogers v. Chater, 118 F.3d 600, 602 (8th Cir. 1997). The court concluded that no such evidence existed in this case.Id.

InBoyd v. Barnhart, 258 F. Supp.2d 1013, 1020 (E.D. Mo. 2003), the court held that the opinions of the non-examining consultative physicians “probably are not substantial evidence per se.” Id. at 1020, citing Kelley v. Callahan, 133 F.3d 583, 589 (8th Cir. 1998). However, these opinions “still constitute evidence that the ALJ needed to consider, along with the rest of the file.”Id., citing 20 C.F.R. § 416.927(d). The court held that the ALJ failed to comply with § 416.927(f)(2)(ii) by considering the regulatory factors and failed to follow SSR 96-8p. The court explained:

When, as in this case, an ALJ considers findings of a state agency medical consultant or other program physician, the ALJ ‘will evaluate the findings using relevant factors’ in 20 C.F.R. § 416.927(a) — (e), ‘such as the physician’s or psychologist’s medical specialty and expertise in our rules, the supporting evidence in the case record, supporting explanations provided by the physician or psychologist, and any other factors relevant to the weighing of the opinions.’ See 20 C.F.R. § 416.927(f)(2)(ii). Unless a treating source’s opinion is given controlling weight, the ALJ decision ‘must explain’ the weight given to the opinions of a state agency medical consultant or other program physician. See Id. In the decision’s narrative discussion section, the ALJ ‘must . . . explain how any material inconsistencies or ambiguities in the evidence in the case record were considered and resolved.’ SSR 96-8p, 1996 WL 374184, at *7.

The ALJ’s statement — that ‘the state agency physician opinion after their review of the record that the claimant was not so limited as to preclude all activity, even sedentary’ — falls short of satisfying the requirements of § 416.927(f)(2)(ii) and SSR 96-8p.

Id.

The fact the ALJ may have given greater weight to the opinions of non-examining consultants than to other medical sources was not reversible error provided the ALJ explained his reasons for doing so.Shimkus v. Apfel, 72 F. Supp.2d 1056, 1059 (S.D. Iowa 1999),citingDavis v. Schweiker, 671 F.2d 1187, 1189 (8th Cir. 1982) (holding that it was appropriate to rely on non-examining physician when his opinion was compatible with other evidence in the record, and the treating physician’s opinion was conclusory and conflicting).

Ninth Circuit

Opinions of a non-examining, testifying medical advisor may serve as substantial evidence when they are supported by other evidence in the record and are consistent with it. Morgan v. Commissioner of Soc. Sec. Admin., 169 F.3d 595, 600 (9th Cir. 1999). “The ALJ can meet this burden by setting out a detailed and thorough summary of the facts and conflicting clinical evidence, stating his interpretation thereof, and making findings.”Id. at 600-601. However, the opinion of a non-examining medical advisor cannot by itself constitute substantial evidence that justifies the rejection of the opinion of an examining or treating physician. Id. at 602. In Morgan, the ALJ properly pointed to specific evidence in addition to his personal observations, as well as the opinion of the non-treating, non-examining medical advisor. Id. at 602-03.

In 1997, the Ninth Circuit held that in cases where a non-treating, non-examining physician’s opinion contradicts the treating physician’s opinion, the ALJ may only reject the treating physician’s opinion if the ALJ gives specific, legitimate reasons for doing so that are based on substantial evidence in the record. Jamerson v. Chater, 112 F.3d 1064, 1066 (9th Cir. 1997). The court also noted that “reports of the non-examining advisor need not be discounted and may serve as substantial evidence when they are supported by other evidence in the record and are consistent with it.” Id. at 1067.

The Ninth Circuit held that treating physicians’ opinions were entitled to greater weight than the opinions of a non-treating, non-examining internist called by the ALJ.Smolen v. Chater, 80 F.3d 1273, 1285 (9th Cir. 1996). But see Saelee v. Chater, 94 F.3d 520, 522 (9th Cir. 1996), cert. denied 117 S.Ct. 953 (1997) (noting that the findings of a non-treating, non-examining physician can amount to substantial evidence, so long as other evidence in the record supports those findings).

An examining physician’s opinion is entitled to greater weight than a non-examining physician’s opinion.Lester v. Chater, 81 F.3d 821, 830 (9th Cir. 1995), citing Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 1990) andGallant v. Heckler, 753 F.2d 1450 (9th Cir. 1984). A non-examining physician’s opinion cannot by itself constitute substantial evidence that justifies the rejection of the opinion of either an examining physician or a treating physician. Id.

The Ninth Circuit held that when the ALJ rejects an examining physician’s opinion in favor of a non-examining advisor’s testimony, the non-examining advisor’s reports need not be discounted and may serve as substantial evidence when they are supported by other evidence in the record and are consistent with it.Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). The court specifically rejected the claimant’s argument that a non-examining advisor’s opinion was entitled to “no weight.” Id.

A non-examining physician’s conclusion alone does not constitute substantial evidence, especially if surrounded by the conflicting observations, opinions, and conclusions of an examining physician. Pitzer v. Sullivan, 908 F.2d 502, 506 (9th Cir. 1990). The Commissioner may discount the opinion of a non-examining physician by reference to particular evidence in the medical record. Sousa v. Callahan, 143 F.3d 1240, 1244 (9th Cir. 1998).

“Generally, an ALJ should give greatest weight to a treating physician’s opinion and more weight to the opinion of an examining physician than to one of a non-examining physician.” Bergfeld v. Barnhart, 361 F. Supp.2d 1102, 1111 (D. Ariz. 2005), citing Andrews v. Shalala, 53 F.3d 1035, 1040-41 (9th Cir. 1995).

The ALJ erred in discrediting the opinions of two treating physicians that the claimant was disabled and in accepting the opinions of two non-examining physicians.Willis v. Callahan, 979 F. Supp. 1299 (D. Or. 1997). The opinion of a non-examining physician, by itself, is insufficient to constitute substantial evidence to reject the opinion of a treating or examining physician.Id.

A Washington district court held that an ALJ did not sufficiently consider evidence in the claimant’s favor and placed undue weight on the opinion of the non-examining physician.LaPierre v. Callahan, 982 F. Supp. 789, 794 (W.D. Wash. 1997).

Tenth Circuit

The Tenth Circuit held that the ALJ improperly discounted the treating physician’s opinion about the claimant’s nonexertional limitations in favor of the opinion of a non-examining psychiatrist “absent a legally sufficient explanation for doing so.” Robinson v. Barnhart, 366 F.3d 1078, 1084 (10th Cir. 2004), citing Williams v. Bowen, 844 F.2d 748, 757 (10th Cir. 1988) (holding that the “the opinions of physicians who have seen a claimant over a period of time for purposes of treatment are given more weight over the views of consulting physicians or those who only review the medical records and never examine the claimant”); 20 C.F.R. §§ 404.1527(d)(1), (2) and 416.927(d)(1), (2); SSR 96-6p. “The opinion of an examining physician is generally entitled to less weight than that of a treating physician, and the opinion of an agency physician who has never seen the claimant is entitled to the least weight of all.”Id., citing 20 C.F.R. §§ 404.1527(d)(1), (2) and 416.927(1), (2); SSR 96-6p.

InDrapeau v. Massanari, 255 F.3d 1211 (10th Cir. 2001), the Tenth Circuit rejected the government’s argument that the opinion of the claimant’s treating physician was contradicted by the testimony of the non-examining, non-treating physicians who opined that the claimant’s impairments did not meet any listing.Id. at 1213-14. The court reiterated that, “‘findings of a non-treating physician based upon limited contact and examination are of suspect reliability’” and “[s]uch evaluation forms, standing alone, unaccompanied by thorough written reports or persuasive testimony, are not substantial evidence.” Id. at 1214, quoting Frey v. Bowen, 816 F.2d 508, 515 (10th Cir. 1987). See also McGoffin v. Barnhart, 288 F.3d 1248, 1254 (10th Cir. 2002) (holding that when the record was viewed as a whole, it was not persuaded that the assessment of a non-treating physician constituted substantial evidence that the claimant’s mental disorders were not disabling absent her substance dependence).

A Kansas district court noted that the ALJ is required to evaluate, discuss and explain the weight assigned to a State agency reviewing physician.Higgins v. Barnhart, 294 F. Supp.2d 1206, 1212 (D. Kan. 2003),citing Johnson-Winborn v. Apfel, 106 F. Supp.2d 1144, 1147 (D. Kan. 2000); Ridge v. Apfel, 15 F. Supp.2d 1086, 1089 (D. Kan. 1998); SSR 96-6p. Furthermore, the opinion of a medical advisor “is only substantial evidence if it is supported by other evidence in the record or when it is consistent with the other evidence” and in evaluating the weight to be given to a non-examining source, the ALJ should evaluate the degree to which these opinions consider all of the pertinent evidence in a claim, including opinions of treating and other examining sources.”Id., citing Andrews v. Shalala, 53 F.3d 1035, 1041 (9th Cir. 1995). In Higgins, the court held that the medical expert’s opinion about the claimant’s fatigue and shortness of breath was not supported by substantial evidence, as there is another medical opinion that contradicts this opinion as well as other evidence in the record that supports the claimant’s claims of fatigue and shortness of breath.Id.

Contrary to the requirements of SSR 96-8p, the ALJ ignored psychiatric review technique assessments prepared by the non-examining state agency consultant that conflicted with the ALJ’s assessment. Ridge v. Apfel,15 F. Supp.2d 1086, 1089 (D. Kan. 1998).

A Kansas district court held that the ALJ erred by rendering a decision which conflicted with that of a non-examining state agency consultant’s PRT assessment, without discussing the consultant’s findings, in violation of SSR 96-6p. Ridge v. Apfel, 15 F. Supp.2d 1086, 1089 (D. Kan. 1998).The court noted that SSR 96-6p requires that the ALJconsider such findings as non-examining expert opinion evidence and explain in his or her decision the weight given to these findings.In Ridge, the court pointed out that the consultant’s PRT assessment contained a discussion of the basis for his findings. Id.

The court noted that two state agency reviewing physicians opined that the claimant’s drug addiction was a material factor, and SSR 96-6p requires an ALJ to treat the fact findings of a state agency reviewing physician as non-examining expert opinion. Johnson-Winborn v. Apfel, 106 F. Supp.2d 1144, 1147 (D. Kan. 2000). “Although the opinions do not have to be accepted by the ALJ, the ALJ cannot simply ignore them.” SSR 96-8p also requires the ALJ to consider the opinions of the reviewing physicians and explain the weight given to these opinions. Since the ALJ in this case neglected to discuss the reviewing physicians’ opinions, the court found that remand was appropriate.Id.

Eleventh Circuit

“The opinions of non-examining, reviewing physicians, . . . when contrary to those of examining physicians are entitled to little weight in a disability case, and standing alone do not constitute substantial evidence.”Lamb v. Bowen, 847 F.2d 698, 703 (11th Cir. 1988). See also Spencer on behalf of Spencer v. Heckler, 765 F.2d 1090, 1094 (11th Cir. 1985) (placing no weight on the report of a doctor who merely checked boxes on a form with no elaboration, noting that “without personal examination of the individual and without evaluation of the disability as it relates to the particular person [this] is medical sophistry at best”).

The requisite “good cause” for not according controlling weight to a treating physician’s opinion is not provided by the report of a non-examining physician because the opinion of such a person is entitled to little weight if it contradicts the opinion of the claimant’s physician.Johns v. Bowen, 821 F.2d 551, 554 (11th Cir. 1987).

An Alabama district court noted that it “has held on a number of occasions that the Commissioner’s fifth-step burden cannot be met by a lack of evidence, or by the residual functional capacity assessment of a non-examining, reviewing physician, but instead must be supported by the residual functional capacity assessment of a treating or examining physician.”Coleman v. Barnhart, 264 F. Supp.2d 1007, 1010 (S.D. Ala. 2003). Thus, the court found it “unclear how the ALJ found plaintiff could meet the threshold physical requirements of medium work, in absence of a physical capacities evaluation (“PCE”) completed by a treating or examining physician, particularly in light of plaintiff’s numerous severe impairments.”Id.

The opinion of a non-examining physician is entitled to little weight, and, if contrary to the opinion of a treating physician, is not good cause for disregarding the opinion of the treating physician. Wood v. Callahan, 977 F. Supp. 1447, 1453 (N.D. Fla. 1997).

The opinions of reviewing, non-examining physicians, when contrary to those of examining physicians, are entitled to little weight. Ortega v. Chater, 933 F. Supp. 1071, 1074 (S.D. Fla. 1996),citing Lamb v. Bowen, 847 F.2d 698 (11th Cir. 1988) andSharfarz v. Bowen, 825 F.2d 278 (11th Cir. 1987) (reaffirming that the opinions of non-examining, reviewing physicians, when contrary to those of the examining physicians, are entitled to little weight, and standing alone do not constitute substantial evidence).

Practical Pointer

Always review all residual functional capacity assessments contained in the record, including those prepared by any non-examining sources. If the evaluations from non-examining sources are not favorable to the claimant, be sure to evaluate their consistency with substantial evidence in the record and, if inconsistent, argue that they should not be accorded any weight in determining the claimant’s disability. If they are helpful to the claimant, but ignored by the ALJ, you can argue on appeal that the ALJ failed to properly address these opinions in the decision as required.


Sarah H. Bohr is an appellate attorney who has specialized in Social Security law for over twenty-five years. She is a partner in Bohr & Harrington, a Jacksonville, Florida law firm offering a national Social Security brief writing service.  She is past president of NOSSCR, past Chair of The Florida Bar Council of Sections, past Chair of the Public Interest Law Section, and past Chair of the Juvenile Court Rules Committee. Ms. Bohr is the author of Social Security Issues Annotated, from which this article is excerpted.