(7th Cir. 1985))--would in this instance also favor Dr. Katz' opinion.
But Mills' argument still cannot prevail. At the time of the ALJ's decision neither Dr. Dizon nor Dr. Katz had expressed any opinion as to Mills' RFC. Mills disputes that, pointing to Dr. Dizon's statement that Mills "can't perform gainful job because of disability" (R. 197) and Dr. Katz' statement that "because of the pain and poor energy, [Mills] is unable to work effectively and is therefore applying for disability" (R. 216). But neither of those statements, which express legal conclusions rather than medical opinions, provides any relevant information about Mills' RFC. As Reg. § 404.1527 (emphasis in original) explains:
We are responsible for determining whether you are disabled. Therefore, a statement by your physician that you are disabled or unable to work does not mean that we will determine that you are disabled. We have to review the medical findings and other evidence that support a physician's statement that your are disabled.
Even more to the point, Garrison v. Heckler, 765 F.2d 710, 713 (7th Cir. 1985) (citations omitted) states:
The treating physician's further assertion that Garrison is disabled from any employment is not a medical statement at all. It is a proposition about how particular medical impairments produce reductions in physical exertion, and how such reductions in exertion affect the ability to work. The treating physician's views do not answer the question or tell the agency what tasks Garrison can and cannot perform.
Here as in Garrison the treating physicians have not provided any information that contradicts Dr. Patey's determination that Mills' could perform medium work. Dr. Patey's conclusion that Mills could lift up to 25 pounds frequently and up to 50 pounds occasionally, things consistent with the demands of medium work, was the only specific opinion in the record as to Mills' RFC at the time of the ALJ's decision. When a consulting physician's opinion is not contradicted by any record evidence, the ALJ does not err in relying on that opinion, notwithstanding the existence of some factors that might otherwise disfavor it ( Steward, 858 F.2d at 1298-99). ALJ Leahy's finding that Mills could perform medium work was therefore supported by substantial evidence.
Appeals Council's Denial of Review
Secretary's regulations identify conditions under which review by the Appeals Council is appropriate (Reg. § 404.970). Among those reasons is the submission of "new and material evidence" (Reg. § 404.970(b)):
If new and material evidence is submitted, the Appeals Council shall consider the additional evidence only where it relates to the period on or before the date of the administrative law judge hearing decision. The Appeals Council shall evaluate the entire record including the new and material evidence submitted if it relates to the period on or before the date of the administrative law judge hearing decision. It will then review the case if it finds that the administrative law judge's action, findings, or conclusion is contrary to the weight of the evidence currently of record.
As has recently been reconfirmed in Scivally v. Sullivan, 966 F.2d 1070, 1075 (7th Cir. 1992), this Court is entitled to review an Appeals Council decision as to whether additional evidence is "new and material":
When the Appeals Council denies review and concludes that the ALJ's decision is final, the court reviews the ALJ's determination as well as any new evidence which the Appeals Council may have found to be immaterial.
In such a review this Court applies the same standard that it would use in determining materiality under Section 405(g), which empowers the court to remand to the Secretary to consider new evidence that is material ( Nelson v. Bowen, 855 F.2d 503, 506 (7th Cir. 1988)). Under that standard, new evidence is material "if there is a 'reasonable possibility' that it would change the outcome" (id., quoting Godsey v. Bowen, 832 F.2d 443, 444 (7th Cir. 1987)).
In this instance, Dr. Katz' January 5, 1991 reports predated the ALJ's decision by four months. By definition, then, they did relate to Mills' condition before the date of that decision as required by Reg. § 404.970(b).
However, the Appeals Council nonetheless denied review after it concluded that Dr. Katz' reports did not "provide a basis for changing the [ALJ's] decision" (R. 6). But its decision to discount Dr. Katz' reports rested on a patent misreading of what he had said and done (R. 5):
The Appeals Council notes that Dr. Katz indicated you were restricted to a limited range of light work activity,
but his report contained no detailed rationale or medical findings to support his opinions.
That mischaracterization is really unexplainable.
As the medical evidence section of this opinion has said, Mills' July 13 CT scan and EMG exam (both of which had been ordered by Dr. Katz) disclosed several abnormalities: the CT scan revealed numerous spinal abnormalities and changes in Mills' left shoulder indicative of a torn rotator cuff, while the EMG revealed neurological problems consistent with radiculopathy, which was included in Dr. Katz' January 5, 1991 diagnosis. Dr. Katz' January 5 opinion was, as he stated in the medical questionnaire (R. 259), based on those objective findings. Dr. Katz also provided a detailed diagnosis in support of his functional assessment (id.). Dr. Katz' assessment was therefore sufficiently supported to have merited consideration. It was clear error for the Appeals Council to have rejected it out of hand.
In addition, Dr. Katz' assessment was plainly material. As already discussed, Dr. Katz' status as both Mills' treating physician and a rheumatologist entitled his opinion to greater weight than that of Dr. Patey, who is not a specialist and did not examine Mills.
Hence Dr. Katz' opinion regarding Mills' limited functional capacity might well have overridden Dr. Patey's determination that Mills' could perform medium work. There is certainly a "reasonable possibility" that it would have led to a different outcome.
This case must be remanded to secretary so that a proper step 4 determination can be made. secretary must determine (1) the exertional requirements of Mills' former occupation, (2) Mills' RFC (taking into account Dr. Katz' assessment) and (3) whether Mills' RFC is sufficient to meet the demands of his former work. If that analysis yields a negative finding, Secretary must then conduct a step 5 analysis to determine if Mills is disabled.
Milton I. Shadur
Senior United States District Judge
Date: August 31, 1992