Fifth Circuit Court Cases - Case Law and Opinions from the 5th Circuit Federal Court - Court of Appeals

	ROMINGER LEGAL
		Fifth Circuit Court of Appeals Opinions - 5th Circuit
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -CLICK HERE

This opinion or court case is from the Fifth Circuit Court or Appeals. Search our site for more cases - CLICK HERE

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

United States Court of Appeals,
Fifth Circuit.
No. 93-5131.
Patricia GREENSPAN, Plaintiff-Appellant,
v.
Donna E. SHALALA, Secretary, Department of Health and Human
Services, Defendant-Appellee.
Nov. 21, 1994.
Appeal from the United States District Court for the Eastern
District of Texas.
Before SMITH and EMILIO M. GARZA, Circuit Judges, and BERRIGAN,
District Judge.*
JERRY E. SMITH, Circuit Judge:
Patricia Greenspan ("Greenspan"), an applicant for Social
Security disability insurance and supplemental security income
benefits ("SSI"), appeals the Secretary's determination that
Greenspan was not disabled within the meaning of the Social
Security Act (the "Act"). Because we find that the Secretary's
decision is based upon substantial evidence and is in accordance
with law, we affirm.
I.
Patricia Greenspan was fifty-two years old when she applied
for disability payments. She has a high school education, one year
of junior college, and one year of vocational school. For most of
her life, she worked primarily as a sales manager, clothing buyer,
and supervisor in the clothing business; she also has held
*District Judge of the Eastern District of Louisiana,
sitting by designation.
1

numerous clerical positions. From 1984 to 1987, she in turn worked
at Lefcourts Imports, a Jordon Marsh department store, and the
Doral Country Club Pro Shop. She was also a part-time bookkeeper
for her landlord and a receptionist and clerk at a hospital. All
these positions were held for only a brief period of time.
Greenspan's relevant medical history began in 1979 with the
diagnoses of her treating physician, Dr. Martin Cohen, a specialist
in endocrinology and metabolism. While Greenspan had alleged
complaints relating to virtually every body system,1 Cohen's
1According to the administrative law judge's (ALJ's)
summation of Greenspan's testimony, her physical and mental
symptoms include:
chest pain, intense fatigue, confusion, unusual
sleepiness, brain swelling, difficulty in recalling
words, memory loss, episodic catatonic state (sitting
and staring straight ahead/stopped movements), swelling
in all veins, blurred vision, feeling of being unreal,
chills, hot flashes, runs a low grade fever most of the
time, red blotches, fear, depression, reactions that
mimic anxiety attacks, blackouts, headaches, swelling
and tenderness in the joints, high blood pressure,
visual motor deficits, disorientation, inability to
concentrate, hearing loss, pressure or pain in left
eye, eyeballs feel swollen, exertional and
non-exertional shortness of breath, lightheadedness,
spacey feelings, rapid heartbeat, slow heartbeat, pale
and clammy skin, flushed and puffy skin, rashes, red
sores on face, numbness, loss of grip strength, motor
loss in knees and legs, stiff knees and legs, blisters
on extremities, lumps, sensitivity to light, difficulty
in swallowing, choking, edema and burning of knuckles
left wrist, frozen wrist, hot and swollen knees,
swelling or lump on left ribs, burning thighs, leg and
feet aches, bones hurt, pain from clothes touching
body, cysts in left breast, swelling and pain in
breast, swelling on top center of head, cerebral
allergy, indigestion, crushing squeezing numbness in
chest and forearm, fluid retention, intolerance to
florescent lights, muscle spasms, nasal congestion and
sneezing, slurred speech, veins in left arm and leg
swell and itch, line of red rash along vein on left
2

examination found no physical basis for Greenspan's problems. He
opined that "there is an enormous amount of emotional overlay
contributing to her illness."
From March 1983 to May 1985, Greenspan saw Dr. Hobart Feldman,
a specialist in allergy and immunology. He is also a "clinical
ecologist." Feldman concluded, in contrast to Cohen's diagnoses,
that Greenspan was "severely affected with ecological illness, and
multiple allergies." According to Feldman, Greenspan's condition
prevented her from being able to perform any type of work.
Greenspan's condition did not prevent her from consulting
medical professionals, however. During this approximate period,
she was counseled for emotional problems by a psychology intern of
the Department of Youth and Family Development. At separate times,
Greenspan also was examined by Dr. Norman Gaylis, Dr. Norman Azen,
Dr. Robert Fox, and numerous physicians and interns at the Jackson
Memorial Hospital and the North Miami Hospital. The blanket
findings of these examinations was that no physical explanation
could be found for Greenspan's numerous complaints, test results
were within normal limits, and she suffered from emotional or
psychosomatic aliments. Significantly, Azen did observe
"dermographism," the raising of whelps resulting from moderately
firm stroking or scratching of the skin.
In September 1985, Greenspan applied for disability insurance
and SSI benefits under titles II and XVI of the Act, 42 U.S.C. ��
inner forearm and along side ribs and stomach,
excessive salivation, emotional liability, fungus on
toenails.
3

423 and 1381a (1991), claiming she suffered from ecological illness
and chronic anxiety reaction. She contended that she had multiple
allergies to almost everything in the work environment that caused
respiratory, arthritic, neurological, cerebral, and other symptoms.
She later amended her application to reflect a March 1983 onset
date.
Meanwhile, upon Feldman's recommendation, Greenspan began
seeing Drs. William Rhea and Ralph Smiley, specialists in clinical
ecology and "environmental medicine." Rhea placed Greenspan in a
"safe-house," a chemically free environment, where she was
instructed to consume only organic foods and bottled water. Rhea
also made a list of Greenspan's subjective responses to various
molds, plants, animals, and chemicals. Some medical testing was
done, and Rhea found evidence of Epstein-Barr virus. Greenspan,
however, did not follow up on this testing, and no conclusive
result was reached. Based upon their observations, Rhea and his
associates concluded that Greenspan would not be able to perform
any occupation because of her immune system dysfunction.
A hearing was held before an ALJ, who rendered a decision
partially favorable to Greenspan, whom he found to be disabled
after June 19, 1987.
Greenspan requested reconsideration. Additional evidence was
entered into the record. Russell Mitchell, a clinical
psychologist, conducted a psychological evaluation and diagnosed
atypical somatoform disorder and histrionic personality. Dr. Joel
Mulhauser, a specialist in internal medicine, submitted a report
4

questioning the validity of "ecological medicine." His review of
Greenspan's medical records showed no objective medical findings of
immune deficiency or other physical explanation for her alleged
symptoms. The Appeals Council vacated the ALJ's decision and
remanded for additional medical evidence.
A second hearing was convened, and the ALJ considered evidence
derived from three consultive examinations. Dr. Lawrence Muirhead,
a clinical psychologist, concluded that Greenspan was not impaired
by any psychological dysfunction. Another consultative psychiatric
evaluation was performed by Dr. Henry Gardiner, whose findings were
consistent with Muirhead's.
Dr. John Pippin performed a consultative internal medicine
examination and found no objective evidence of any major illness
and no physical limitations except for avoiding dust, fumes, and
chemicals. This time, the ALJ determined that Greenspan's
impairments did not preclude her from performing her past relevant
work, and, therefore, she was not disabled within the meaning of
the Act.
Again Greenspan appealed, and the Appeals Council determined
that further evaluation of the record was necessary, this time on
the question of her subjective complaints. The decision was
vacated and remanded, and a third hearing was held.
Further medical evidence was gathered. Dr. William Lumry, an
allergist, was unable to make a diagnosis that would explain
Greenspan's
reported
symptoms. Because of Greenspan's
dermographia, he was unable to perform skin testing for allergies.
5

He instead ordered a "RAST" screen, which was completely negative
and ruled out a significant number of possible allergies. Lumry
also noted that dermographia would cause falsely positive results
from skin tests such as those performed by Smiley and Feldman.
Another consultative psychiatric examination was performed by
Dr. William Skinner. The ALJ heard testimony from a vocational
expert, who testified that a person with Greenspan's background and
impairments of moderate depression and severe allergies would be
capable of doing light work.
The ALJ again denied benefits. An appeal was taken, and more
extensive medical testing was done, this time diagnosing mitral
valve prolapse and chronic fatigue syndrome. This time, however,
the Appeals Council denied Greenspan's requests for review and
reopening, and the Secretary's decision became final. Greenspan
sought review in the district court, which approved of the report
and recommendation of the magistrate judge and, over Greenspan's
objections, dismissed the suit.
II.
We review the Secretary's decision only to determine whether
it is supported by substantial evidence on the record as a whole
and whether the Secretary applied the proper legal standard. 42
U.S.C. �� 405(g), 1383(c)(3); see also Richardson v. Perales, 402
U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971); Haywood
v. Sullivan, 888 F.2d 1463, 1466 (5th Cir.1989). Substantial
evidence is "such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion." Richardson, 402 U.S.
6

at 401, 91 S.Ct. at 1427 (quoting Consolidated Edison Co. v. NLRB,
305 U.S. 197, 229, 59 S.Ct. 206, 217, 83 L.Ed. 126 (1938)). In
applying the substantial evidence standard, we scrutinize the
record to determine whether such evidence is present. Haywood, 888
F.2d at 1466. We may not reweigh the evidence, try the issues de
novo, or substitute our judgment for that of the Secretary. Id.
The law and regulations governing the determination of
disability are the same for both disability insurance benefits and
SSI. Id. at 1467. Disability under the Act is defined as the
"inability to engage in any substantial gainful activity by reason
of any medically determinable physical or mental impairment which
can be expected to ... last for a continuous period of not less
than twelve months...." 42 U.S.C. � 423(d)(1)(A). Under this
provision, a "physical or mental impairment" is defined as "an
impairment that results from anatomical, physiological, or
psychological abnormalities which are demonstrable by medically
acceptable clinical and laboratory diagnostic techniques." Id. �
423(d)(3). Furthermore, an individual is "under a disability, only
if his impairments are of such severity that he is not only unable
to do his previous work but cannot, considering his age, education,
and work experience, engage in any other kind of substantial
gainful work which exists in the national economy...." Id. �
423(d)(2)(A).
In determining whether a claimant is disabled, the Secretary
utilizes a five-step sequential evaluation:
(1) An individual who is working and engaging in substantial
gainful activity will not be found disabled regardless of
7

medical findings.
(2) An individual who does not have a "severe impairment" will
not be found to be disabled.
(3) An individual who meets or equals a listed impairment in
Appendix 1 of the regulations will be considered disabled
without the consideration of vocational factors.
(4) If an individual is capable of performing the work he has
done in the past, a finding of "not disabled" will be made.
(5) If an individual's impairment precludes him from
performing his past work, other factors including age,
education, past work experience, and residual functional
capacity must be considered to determine if other work can be
performed.
Villa v. Sullivan, 895 F.2d 1019, 1022 (5th Cir.1990) (paraphrasing
20 C.F.R. � 404.1520(b)-(f)). "A finding that a claimant is
disabled or is not disabled at any point in the five-step review is
conclusive and terminates the analysis." Lovelace v. Bowen, 813
F.2d 55, 58 (5th Cir.1987).
To be entitled to benefits, an applicant bears the initial
burden of showing that he is disabled. Abshire v. Bowen, 848 F.2d
638, 640 (5th Cir.1988) (per curiam). Under the regulations, this
means that the claimant bears the burden of proof on the first four
steps of the sequential analysis. Bowen v. Yuckert, 482 U.S. 137,
146 n. 5, 107 S.Ct. 2287, 2294 n. 5, 96 L.Ed.2d 119 (1987). Once
this initial burden is satisfied, the Secretary bears the burden of
establishing that the claimant is capable of performing work in the
national economy. Id.
Following the sequential steps, the ALJ found that while
Greenspan had not engaged in substantial gainful activity since
June 1987 and suffered from severe allergies and somatoform, she
8

nevertheless could perform her past relevant work as per step four
of the analysis. The ALJ determined that Greenspan had the
residual functional capacity to work in jobs that did not require
lifting more than twenty pounds occasionally and carrying ten
pounds frequently. Greenspan also was restricted from work
environments that were highly stressful or contained the extremes
of dust, fumes, or poor ventilation. The ALJ found that
Greenspan's work in the clothing field and as a receptionist was
not precluded by these requirements, and, therefore, she was not
disabled within the meaning of the Act.
III.
Greenspan argues that the ALJ erred by given no or little
weight to the opinion of her treating physicians. The ALJ accepted
the opinion of Mulhauser, who stated that "[t]here is no such thing
as Ecologic Illness," and rejected the reports and opinions of her
treating physicians, Rhea and his associates. Furthermore,
Greenspan believes the ALJ erred by rejecting
Ecological/Environmental Illness ("EI") as a recognized disease.
She points out that the Program Operation Manual System ("POMS") of
the Social Security Administration lists EI as a potential
disability. We read these arguments to mean either that the ALJ
applied the wrong legal standard in evaluating the weight of the
physician's testimony or erred because his conclusion were not
based upon substantial evidence.
A.
We have long held that "ordinarily the opinions, diagnoses,
9

and medical evidence of a treating physician who is familiar with
the claimant's injuries, treatments, and responses should be
accorded considerable weight in determining disability." Scott v.
Heckler, 770 F.2d 482, 485 (5th Cir.1985). The treating
physician's opinions, however, are far from conclusive. "[T]he ALJ
has the sole responsibility for determining the claimant's
disability status." Moore v. Sullivan, 919 F.2d 901, 905 (5th
Cir.1990).
Accordingly, when good cause is shown, less weight, little
weight, or even no weight may be given to the physician's
testimony. The good cause exceptions we have recognized include
disregarding statements that are brief and conclusory, not
supported by medically acceptable clinical laboratory diagnostic
techniques, or otherwise unsupported by the evidence. Scott, 770
F.2d at 485. In sum, the ALJ "is entitled to determine the
credibility of medical experts as well as lay witnesses and weigh
their opinions accordingly." Id.; see also 20 C.F.R. �
404.1527(c)(2) ("If any of the evidence in your case record,
including any medical opinion(s), is inconsistent with other
evidence or is internally inconsistent, we will weigh all the other
evidence and see whether we can decide whether you are disabled
based on the evidence we have.").
A reading of the ALJ's decision shows that he carefully
considered, but ultimately rejected, the treating physicians'
conclusions that Greenspan was disabled. While we might not have
accorded "no weight" to the opinions of the treating physicians,
10

the Act empowers the ALJ to analyze the physicians' testimony.
Substantial evidence supports the ALJ's decision to disregard
the physicians' conclusions. That basis is enough to survive our
review. The record supports the ALJ's determination that the
treating physicians' diagnoses were based upon dubious medical
techniques and were conclusory. The doctors' evidence also was
contradicted by both itself and outside medical evidence.
Few recognized medical techniques were used by the doctors.
Feldman's treatment notes spanning a period of three years reveal
that he performed no clinical testing other than taking Greenspan's
b l o o d p r e s s u r e a n d p e r f o r m i n g c o n t r o v e r s i a l
"provocative-neutralization tests."2 Feldman also did not observe
any of the numerous symptoms with which Greenspan claimed to be
plagued; all "evidence" of these complaints was by history.
Rhea's records consist mainly of handwritten lists of
Greenspan's subjective responses to various substances. Testing
was also done by "Iriscorder," a machine that allegedly measures
changes in the pupils of the eye in response to the body's exposure
to substances. Like Feldman, he performed
"provocative-neutralization tests." Rhea and Smiley, however,
admitted that this testing had not produced reliable results.
2This controversial technique consists of exposing a patient
to a dose of a chemical, food extract, or allergen either by
sublingual drop or subcutaneous or intercutaneous injection. Any
"symptoms" are then "neutralized" by applying a lower dose of the
same substance. POMS � 24515.065. The POMS states that "[t]he
results are based solely on the subjected report of symptoms by
the patient." Id. Greenspan disputes this, arguing that
measurement may also be made by the "wheals" caused by the
injection.
11

Based upon the minimal nature of testing done by these physicians,
the ALJ's determination that their opinion on Greenspan's
disability was conclusory is supported by the record. Cf. 20
C.F.R. � 1527(d)(3) ("The more a medical source presents relevant
evidence to support an opinion, particularly signs and laboratory
findings, the more weight we will give that opinion.").
The record supports the ALJ's finding that the doctors'
records and recommendations were contradictory. While Feldman
diagnosed "ecological illness and multiple allergies," which
allegedly could result in a host of severe physical problems, his
only prescriptions were organic foods, bottled water, filtered air
conditioning, and the shots from the "provocative-neutralization
tests." Rhea admitted that Greenspan could commute up to an hour
to work, but there was no safe work environment to which she could
commute. Most damning was Rhea's testimony that "there was no
occupation safe enough for the claimant to work in," while, at that
time, Greenspan was employed, working at a hospital on a full-time
basis.3
Numerous outside opinions and testing contradicted the
opinions of the treating physicians. The other physicians and
medical experts who examined Greenspan or her records found little
or no physical evidence of her many complaints; most subscribed to
3Greenspan's behavior and testimony also contradicted the
doctor's conclusions. The most obvious contradiction occurred at
a hearing before the ALJ, where Greenspan appeared wearing
make-up and heavy perfume. The ALJ also noted that Greenspan
testified that she is still able to perform the routine tasks
necessary to maintain her household, and she was researching and
writing a handbook on "environmental illness."
12

the theory that mental rather than physical aliments were at the
bottom of her problems.
Greenspan's original treating physician, Cohen, noted that her
physical condition was normal, and emotional factors contributed to
her complaints. Elizabeth Blake, Greenspan's treating psychology
counselor from 1984 to 1986, reported that Greenspan suffered from
somatization, dysthymic disorder, histrionic personality, and
multiple allergies. Dr. Norman Gaylis found no physical
explanation for the complaints but suspected the cause was
psychosomatic.
Azen found no objective evidence of the many symptoms of which
Greenspan complained but did observe Greenspan's dermographism.
This finding, which Lumry later seconded, cast in doubt the
accuracy of any "provocative-neutralization tests."
Hospital records from 1985 through 1987 do not reveal any
abnormal test results, and Greenspan was discharged from Jackson
Memorial Hospital with a diagnosis of histrionic personality and
mildly elevated blood pressure. Russel Mitchell, a clinical
psychologist, diagnosed atypical somatoform disorder and histrionic
personality. Many other medical professions testified in a like
fashion.
In sum, a substantial medical record has been created in this
application, and it supports the ALJ's decision to disregard the
opinions of Feldman, Rhea, and Smiley. The power to judge and
weigh evidence includes the power to disregard, and we must uphold
that determination if supported by substantial evidence.
13

B.
Greenspan's argument that the ALJ erred in not recognizing
"ecological illness" is misplaced. The relevant medical and
scientific communities eventually will determine whether and how to
recognize "ecological illness." Greenspan's burden here, however,
was to prove that she was disabled within the meaning of the Act.
That requirement means that she must show a "medically
determinable" impairment. 42 U.S.C. � 423(d)(1)(A). Such an
impairment must be demonstrated by "medically acceptable clinical
and laboratory diagnostic techniques." Id. � 423(d)(3); see also
20 C.F.R. � 404.1508 ("A physical or mental impairment must be
established by medical evidence consisting of signs, symptoms, and
laboratory findings, not only by your statement of symptoms.").
Finally, the law requires a showing that the claimant is unable "to
engage in any substantial gainful activity." 42 U.S.C. �
423(d)(1)(A).
We recognize that because "ecological illness" is not
accepted widely, and no "yes or no" test apparently exists, direct
proof of illness and, hence, disability is hard to produce. Proper
circumstantial evidence, however, would be enough to prove
disability. Such evidence, under the regulations, includes
"signs," anatomical, physiological, or psychological abnormalities
that can be observed, 20 C.F.R. � 404.1528(b), and "laboratory
findings," anatomical, physiological, or psychological phenomena
that can be shown by use of medically acceptable laboratory
diagnostic techniques, id. � 404.1528(c).
14

Indeed, POMS states that
in evaluating claims based on environmental illness, all the
claimant's symptoms, signs, and laboratory findings must be
considered to determine if there is a medically determinable
impairment and the impact of any impairment on the claimant's
ability to work. This evaluation should be made on an
individual case-by-case basis to determine if the impairment
prevents substantial gainful activity.
POMS � 24515.065. While we agree with the Secretary that the POMS
is not binding law, because it is an unpublished policy statement,
cf. Schweiker v. Hansen, 450 U.S. 785, 789-90, 101 S.Ct. 1468,
1471-72, 67 L.Ed.2d 685 (1981), we would read nothing more into
this statement than that already required by law. A case-by-case,
factual inquiry will consider proper circumstantial evidence of
disability.
Here, Greenspan has provided little direct or indirect proof
of EI beyond her subjective complaints. This task should not have
been impossible, as Greenspan alleged numerous symptoms that are
observable and testable. The record supports the ALJ's conclusion
that Greenspan's testimony was exaggerated.
IV.
Finally, we must reject Greenspan's appeal, because she has
not verified these symptoms and their severity in a way the law
recognizes. Contrary to the tenor of Greenspan's arguments on
appeal, the ALJ did find that she was impaired. He did not
conclude, however, that her impairment precluded her from
continuing to work successfully in the occupations she had held
previously.
The ALJ considered the credible testimony of the consulting
15

physicians on Greenspan's physical and mental condition. He heard
testimony from Greenspan on her daily activities. He had heard the
testimony of a vocational expert. Greenspan, moreover, bore the
burden of showing that she could not do her past relevant work.
Here, substantial evidence supports the ALJ's conclusion that
Greenspan successfully could perform her past relevant work.
Greenspan's last minute showing that she might suffer from
nitral valve prolapse or chronic fatigue syndrome does not overcome
this finding. The record shows the ALJ considered and weighed the
extent of Greenspan's disability. This new evidence on the
potential cause of Greenspan's disability does not mandate a
finding of further functional limitations beyond those considered
by the ALJ.
We do note that Greenspan's recent unsuccessful efforts to
hold jobs for extended periods cast some doubt on her fitness to
work. See Singletary v. Bowen, 798 F.2d 818, 822 (5th Cir.1986)
(holding the record did not support finding that mentally impaired
claimant was capable of holding a job). This doubt, however, does
not create a basis to overturn the ALJ's determination.
The evidence on Greenspan's past work experience cuts both
ways. It shows she was able to work when her treating physicians
claimed no job existed that she could do. Her progression through
the jobs suggests that her mental and physical impairments did
limit her ability to be a successful wage earner. Our job here is
not to weigh this evidence; that task is for the ALJ. As long as
there is substantial evidence in the record as a whole supporting
16

the ALJ's determination, as there is here, we must uphold that
decision.
AFFIRMED.

17