Friday, May 18, 2012

Indefinite Detention Of Americans Temporarily Halted

US judge blocks indefinite detention of Americans A US federal judge has temporarily blocked a section of the controversial National Defense Authorization Act that allows for the indefinite military detention of US citizens. ­In a 68-page ruling, US District Judge Katherine Forrest agreed on Wednesday that the statute failed to “pass constitutional muster” because its language could be interpreted quite broadly and eventually be used to suppress political dissent. "There is a strong public interest in protecting rights guaranteed by the First Amendment," Forrest wrote, according to CourtHouseNews.Com. "There is also a strong public interest in ensuring that due process rights guaranteed by the Fifth Amendment are protected by ensuring that ordinary citizens are able to understand the scope of conduct that could subject them to indefinite military detention." The Manhattan judge therefore ruled in favor of a group of writers and activists who sued US officials, including President Barack Obama. They claimed that the act, which was signed into law on December 31, makes them fear possible arrest by US armed forces. Among those who filed the complaint, Bloomberg reports, was former New York Times reporter Christopher Hedges. According to the journalist, NDAA would allow federal authorities to hold him in custody just for interviewing individuals who were detained on “suspicion of providing substantial support” to people engaged in hostilities against the US. The order by Judge Forrest prevents the enforcement of the statute provision, pending further order of the court or an amendment to the statute by the US Congress. Congress still okay with indefinite detention and torture of Americans Even after a federal court deemed the NDAA unconstitutional, the US House of Representatives refused to exclude indefinite detention provisions from the infamous defense spending bill during a vote on Friday. An attempt to strike down any provisions allowing for the US military to indefinitely detain American citizens without charge from next year’s National Defense Authorization Act was shot down Friday morning in the House of Representatives. Following discussions on an amendment to the 2013 NDAA that was proposed by Rep. Adam Smith (D-Washington) and Rep. Justin Amash (R-Michigan), House lawmakers opted against passing the law by a vote of 182-238. Had the Smish-Amash amendment passed, military detention for terror suspects captured in the US would have been excluded in the annual defense spending bill. Provisions that allows for that power, Sections 1021 and 1022, were inserted into the NDAA for Fiscal Year 2012. President Barack Obama signed that legislation on New Year’s Eve, essentially authorizing the US Armed Forces to detain Americans indefinitely at military facilities over only allegation of ties with terrorists and subject them to enhanced interrogation tactics on par with torture. On Thursday night, Rep. Amash took to his Facebook page to address the amendment with his followers. “No matter how much I am slandered or my positions are demagogued, I will NEVER stop fighting to defend your liberty and the Constitution,” wrote the congressman. Back on Capitol Hill, Rep. Amash circulated a document to his fellow lawmakers on Thursday outlining his proposed amendment. In urging his colleagues to vote yes on the Smith-Amash amendment, the representative from Michigan explained to Congress that the proposal would offer protection to non-citizens of the United States and is the only amendment up for discussion that would guarantee Americans a charge and trial. Elsewhere in the paper, Rep. Amash harped on a decision out of a federal court earlier this week that ruled that the NDAA violated the US Constitution. “Our constituents demand that we protect their right to a charge and a trial — especially after the NDAA was ruled unconstitutional this week,” wrote Rep. Amash. That decision came Wednesday when United States District Judge Katherine Forrest shunned the NDAA’s indefinite detention provision, saying it had a "chilling impact on First Amendment rights.” "An individual could run the risk of substantially supporting or directly supporting an associated force without even being aware that he or she was doing so,” wrote Judge Forrest, who then cited complaints for American journalists who were concerned that they’d be imprisoned without charge solely for speaking with alleged terrorists. Attorney Carl Mayer represented the plaintiffs in this case and spoke with RT after Judge Forrest’s decision. Mr. Mayer revealed that while the Obama administration can — and most likely will — file an appeal, “we are suggesting that it may not be in their best interest because there are so many people from all sides of the political spectrum opposed to this law.” Although that opposition has indeed been widespread since even before this year’s NDAA was signed by President Obama on December 31, it was absent on Capitol Hill this Friday when the Smith-Amash amendment was shot down. Moments before the amendment went up for vote, Rep. Amash wrote on Facebook, “We know the NDAA's detention provision is unconstitutional. The House will vote on one substantive solution.” RT reported. A US judge ruled on Wednesday that the indefinite military detention of American citizens, as allowed in the National Defense Authorization Act that President Barack Obama signed on December 31, 2011, is unconstitutional. For now, American citizens will be excluded from the NDAA’s nasty laws that allow the government to detain persons with suspected ties to terrorist groups behind bars without ever pressing charges. Civilians the world over still face persecution, however, as the controversial legislation continues to allow for their imprisonment. United States District Judge Katherine Forrest declared this week that the NDAA’s indefinite detention provision has a "chilling impact on First Amendment rights” and formally struck down the section of the legislation that allows for the government to imprison Americans for only supposed terrorist ties. Unless the law is further challenged, though, those outside the US still face the wrath of Uncle Sam for having only suspected links with anti-American forces. Chris Hedges, a reporter with a career that spans stints with outlets such as National Public Radio and The New York Times, added his name to a lawsuit earlier this year challenging the legality of the NDAA. He was among the journalists and civilian activists who were instrumental in challenging the legislation in a court of law. “I have had dinner more times than I can count with people whom this country brands as terrorists,” Hedges wrote earlier this year, “but that does not make me one.” In her ruling this week, Judge Forrest appears to agree, writing, "In the face of what could be indeterminate military detention, due process requires more.” "An individual could run the risk of substantially supporting or directly supporting an associated force without even being aware that he or she was doing so,” she added. Although Judge Forrest’s ruling this week is without a doubt a milestone in terms of revoking the NDAA, her efforts are but only a start in terms of terminating the legislation. It does not rule out the possibility that the Obama administration will appeal her decision, either. Attorney Carl Mayer represented the plaintiffs in this case and tells RT that, although he expects the White House to appeal, "we are suggesting that it may not be in their best interest because there are so many people from all sides of the political spectrum opposed to this law that they ought to just say, 'We're not going to appeal.'" In the meantime, though, Mayer says that Judge Forrest's ruling is a major victory for American civil liberties."The NDAA cannot be used to pick up Americans in a proverbial black van or in any other way that the administration might decide to try to get people into the military justice system. It means that the government is foreclosed now from engaging in this type of action against the civil liberties of Americans." For now, more than 6 billion citizens of foreign nations can still be handcuffed and hauled away to a military prison without ever being brought to trial. This week’s decision may protect Americans from that provision, but unfortunately does nothing to spare both foreign reporters and civilians from a life of imprisonment. Hedges himself applauded the ruling, calling it "a tremendous step forward for the restoration of due process and the rule of law,” reports the Associated Press. "Ever since the law has come out, and because the law is so amorphous, the problem is you're not sure what you can say, what you can do and what context you can have,” added Hedges. The judge’s ruling comes, coincidentally, at the same time that the US House Armed Services Committee has passed next year’s National Defense Authorization Act. Congress is expected to begin voting on amendments for next year’s NDAA as early as this this week, but during Wednesday’s opening debates it was revealed that indefinite detention is already included once again in the bill. Presidential hopeful and congressman, Rep. Ron Paul (R-Texas), has signed his name to an amendment proposed by Rep. Adam Smith (D-Washington) and Rep. Justin Amash (R-Michigan) that will shoot down the indefinite detainment of anyone in the next NDAA. "Hopefully we can be successful this week in clarifying this to make sure once and for all that we as a people don't endorse the whole notion —which contradicts everything we should believe in — that we could be arrested and put in secret prisons," said Rep. Paul. "If we don't change this, believe me, this country is in serious trouble.”

Tuesday, May 15, 2012

Lawyers, Liars and Other Virtual Predators.

(LCDR Shawn Gray, pictured in the center of photo) Authorities say Lieutenant Commander Shawn Gray,U S Coast Guard, an attorney and officer with the U.S. Coast Guard Judge Advocate General Corps, drove from his home in Miami to Sarasota recently to meet an 8-year-old girl he had met in a chat room. But when LCDR Gray arrived in Sarasota County, to a house where he thought the child would be home alone, he was instead greeted by Sarasota County Sheriff’s Office deputies who arrested him. "He had hoped to have sex with an 8-year-old girl," Sarasota County Sheriff Tom Knight said of Gray, who was charged with use of a computer and traveling to seduce, solicit or entice a child to commit sex acts. LCDR Gray is being charged with a second-degree felony, punishable by up to 15 years in prison, said Chief Assistant State Attorney Ed Brodsky. LCDR Gray was one of 31 nabbed in a six-day sting called Operation Intercept, an attempt to protect Manatee and Sarasota counties’ children from online predators, Knight said Monday during a news conference at the sheriff’s office in downtown Sarasota. Two of the 31 arrested were from Miami-Dade County. Besides LCDR Gray, 21-year-old Dalbert Borges of Hialeah was also charged with the same crime. According to a Sarasota County Sheriff's Office probable cause affidavit, between May 7 and May 12, Gray had communicated over the Internet with someone he believed was the parent of an 8-year-old girl. Gray sent numerous emails and chat messages describing sexual acts he wanted to perform on the girl, the affidavit said. On May 12, Gray traveled from Miami to Sarasota to engage in sexual activity with a person he believed to be a minor, the affidavit said. Gray is charged with use of a computer to seduce, solicit or entice a child to commit sexual acts and travel to seduce, solicit or entice a child to commit sexual acts, authorities said. He was released Monday on $100,000 bond and it was unknown whether he has an attorney. All 31 suspects responded to Internet-based ads and engaged in sexually explicit written and verbal conversation, according to a Sarasota Sheriff’s Office press release. What also is disturbing about the sting, in which the sheriff’s office also was able to take the suspect’s vehicles as "tools of their trade," is that this form of predation seems to be able to fool children who are not fooled when someone tries to entice them in person. "This is a different way of doing the stranger danger, and now they are using technology," said Venice Chief of Police Thomas McNulty. "An informed child is a child not likely to be victimized," McNulty added. The suspects all agreed to come to a secret location in Sarasota County with the intent to have sex with a child or children, the sheriff’s office said. "We’re keeping the location secret because we plan to use it again," Knight said. When the suspects arrived, they were met by detectives and placed under arrest. "Predators establish contact with kids through chat rooms, instant messaging and discussion boards," Knight said. "The anonymity of the Internet allows these criminals to seem like caring individuals, but they’re only looking for vulnerable victims. Parents, you have to be your child’s protector and monitor what they are doing online." The Sarasota County Sheriff’s Office conducted the operation with the assistance of the Bradenton Police Department, the Manatee County Sheriff’s Office, Florida Department of Law Enforcement, Homeland Security Investigations, the Sarasota Police Department, Venice Police Department, North Port Police Department, the State Attorney’s Office and other members of the Central Florida Internet Crimes Against Children Task Force.
LT Jason Frank, U S Coast Guard, a Gaithersburg, Maryland man who repeatedly sneaked into a Stafford County, Virginia teenager's room to have sex with her pleaded guilty to six charges in 2008. Jason F. Frank, 37, was convicted in Stafford Circuit Court to three counts of computer solicitation of a minor, two counts of carnal knowledge and attempted carnal knowledge. He faced a maximum penalty of 55 years in prison. According to evidence presented by prosecutor Lori DiGiosia, Frank met the girl on MySpace a few years ago and communicated with her by phone and text-messaging. LT Frank, a member of the Coast Guard was assigned to the Command Center Coast Guard Headquarters, Washington DC. He is married and has a teenage daughter. He told the Stafford girl that his name was "Eric" and that he was 28 years old. He came to see the girl at her home at least three times, according to the evidence. He entered the home in the middle of the night through her bedroom window. In September and December of 2006, LT Frank and the girl had consensual sex. He told her that he loved her and that she was special to him. They were about to have sex again on August 1, 2007 DiGiosia said, but the girl's mother heard a noise and came downstairs and confronted LT Frank. And this just in from Oakridge, TN on 14 June 2012. The 39-year-old head of a Civil Air Patrol program in Oakridge,TN pleaded guilty to sexual abuse charges. (By Karen McCowan of The Register-Guard) The leader of a Civil Air Patrol cadet program in Oakridge was sentenced Wednesday, 13 June to five years in prison for sexually abusing two female high school students. David Sierakowski, 39, pleaded guilty to two counts of third-degree sexual abuse for fondling the breasts of two girls, one 15 and one 17. The truck driver and U.S. Air Force veteran also pleaded guilty to three counts of first-­degree online corruption of a child. Those charges reflect three separate occasions in which Sierakowski used Facebook instant messaging to solicit the girls to engage in sexual conduct and to arrange physical meetings with them. Lane County Circuit Judge Suzanne Chanti ordered Sierakowski to register as a sex offender for the rest of his life. His younger victim, who turned 15 shortly before the April incidents, was a participant in the Civil Air Patrol program and knew him as a family friend and from attending the same church, prosecutor Erik Hasselman told Chanti. The 17-year-old victim did not participate in the program, which Oakridge School District Superintendent Don Kordosky described as a paramilitary extra­curricular activity that focuses on physical fitness as well as on exposing students to aviation, including riding in airplanes, and the Civil Air Patrol’s search and rescue mission. Sierakowski met the older victim when both attended the younger one’s 15th birthday party in March, Hasselman said. The state sought no restitution in the case, in part because Sierakowski has a family, the prosecutor said. “You can imagine, in a small community like this, the emotional impact this has had not only on his wife but also on his children,” Hasselman said. “This has been very tough. The children are not only suffering the absence of their father, but the potential stigma that goes along with the crimes that he committed. This is not a happy day for anybody, by any means, but the victims feel some sense of justice.” Sierakowski told Chanti he was “extremely sorry that I’ve done this.” “I want to get help so that nothing like this happens again and so I can be the husband and father that I should be,” Sierakowski said as his wife sat with their pastor in the courtroom. Chanti urged him to use his prison time to immediately begin working on the underlying issues that led to his crimes. “You’re going to be in the custody of the Department of Corrections for a long time, but the damage you’ve done is lifelong,” the judge said. Not only did he betray his wife, children and the public trust of his Civil Air Patrol position, she said, but he robbed his victims of “their innocence and their right to grow into young women without violation.” Kordosky called Sierakowski’s crimes tragic, and noted that the school district conducted a criminal background check before clearing him to work with students. The superintendent said some parents of the 10 students who took part in the cadet program have expressed interest in “seeing it continue because of its positive impact on many kids despite this disaster.”

Thursday, May 10, 2012

Who Was The Real Sexual Predator In The USCGA Class of 2006?

Who Was The Real Sexual Predator In The USCGA Class of 2006? Was it Webster Smith or Shelly Roddenbush? Who fraternized with enlisted members? Who had consensual sex with an enlisted member from another branch of the military and later lied about it? Whose conduct was more to the prejudice of good order and discipline?
1st Lieutenant Kelly Flinn faced a court-martial on May 20, 1997 for military charges of adultery with a civilian soccer coach at Minot Air Force Base who was married to a female enlisted subordinate; conduct unbecoming an officer; disobeying a lawful order (in writing, to stay away from the married man), and for making a false official statement. She attended the Air Force Academy and bomber training, becoming the first woman B-52 pilot in the USAF. Flinn's case, due to her high visibility in Air Force recruitment advertisements, as well as the number of her accomplishments during her four years of active-duty service, drew national attention, eventually creating a media circus culminating when the Chief of Staff of the Air Force General Ronald Fogleman made comments on her case at a congressional hearing. Following General Fogleman's comments, Lieutenant Flinn was allowed to resign from the Air Force by Secretary of the Air Force Dr. Sheila E. Widnall with a general discharge instead of facing a court-martial.
Flinn was the first female B-52 pilot in the USAF.Flinn was discharged from the U.S. Air Force in 1997 after being charged with making a false statement, adultery, and disobeying orders. Flinn's trouble with the Air Force received widespread media attention at the time and was discussed in a U.S. Senate hearing on May 22, 1997.
She later wrote a book recounting her experiences entitled Proud to Be: My Life, The Air Force, The Controversy. It has always been a consistent policy of the Air Force to prohibit and discourage relationships between officers and enlisted. While the media insists that she is being "unfairly singled out for adultery" (which is also prohibited under the UCMJ) in fact, what Lt. Flinn is charged with is disobeying a direct and legal order, and lying. It just happens that what she was lying about was her adultery. She admits guilt to both charges. She was deposed by a properly convened investigative authority and raising her hand, she swore to "facts" which later proved to be knowingly untrue. She got caught (metaphorically and actually) with her pants down. When an officer is involved in a social relationship (sexual or not) with enlisted people, the Air Force (and all the other services ) always considers a breech of discipline and a potential compromise of authority to be highly likely. Lt. Flinn was well educated in this philosophy during her four years at the Air Force Academy. In spite of this, she chose to have sexual relations with an enlisted man stationed at Minot. Then, during the same year, she chose to have an extended sexual relationship with a civilian who was married to an enlisted female stationed at Minot. When ordered to stop living with the married man, she chose to defy that order and continue. Finally, questioned under oath, she lied about the fact that she had continued to see the man she was ordered to stay away from. If the gender roles were reversed, she (he) would have been court marshaled, punished and discharged (just as scores of men in all the services have) without so much as a blurb in the local Minot newspaper. Media pundits expressed pious outrage at the Army drill sergeant affair where senior enlisted men had taken advantage of their authority and had relations with junior recruits. The Air Force considers Lt. Flinn (similarly) to be an officer who potentially and perhaps actually misused her authority. An acknowledged liar and person of low moral turpitude, she disobeyed orders and misled a properly authorized investigative officer. She lied under oath--a military felony---and incidentally, she admittedly engaged in prohibited fraternization which wreaks havoc to good order and discipline in a military unit. Now, as the Black army drill sergeant recently convicted for his misdeeds cried "discrimination," so does Lt. Flinn. That powerful defense always evokes the sympathy of the media, but clearly in her case, it is particularly disingenuous. In the eyes of the Air Force, Lt. Flinn is as bad a character as were the Army drill sergeants. In keeping with the new Army policy for female recruits, perhaps the Air Force should have all male enlisted move about the base in pairs, to avoid the potential of abuse from sexually predatory female officers. There is at least one enlisted married female at Minot who would concur with that. At commissioning, military officers are expected, and agree to observe a higher code of conduct than the general enlisted and civilian population. Certainly that does not always happen, but exemptions from those higher expectations, based on race or gender are not in the interest of anyone but a hypocrite. The media’s failure to acknowledge the parallels between the Army sex scandals and Lt. Flinn puts them squarely in that category. Flinn was the first female B-52 pilot in the USAF.Flinn was discharged from the U.S. Air Force in 1997 after being charged with making a false statement, adultery, and disobeying orders. Flinn's trouble with the Air Force received widespread media attention at the time and was discussed in a U.S. Senate hearing on May 22, 1997.

Sunday, May 6, 2012

Social Security Judges Under Investigation

May 1st, 2012: An independent study of administrative law judges (ALJ) who work for the Social Security Administration is underway, with findings due out next year in 2013. The review is being conducted by the Administrative Conference of the United States. This government-policy think-tank is likely to issue new policy recommendations to judges on how to handle Social Security Disability cases. These policy changes could have an impact on attorneys and para-legals, who practice before the Social Security Bar. The Social Security Administration ordered the study. There have been reports of gross inconsistencies in rulings from judge to judge. Critics have pointed out that over 100 judges approve more than 85% of all cases that come before them, while one judge in Tennessee approves over 99% of the cases that he hears. Conversely, there is a judge in Texas who only approves 13 cases out of every 100. Another factor which has sparked this investigation is the gross disparity in the length of hearings, that is, the time a Social Security claimant actually spends in front of a judge. After waiting for an average of 2 years for their day in court, most claimants spend less than an hour in an actual hearing. Most cases last about an hour. Some judges were found to make snap decisions in just a few minutes. There are reports that some judges simply flip a coin to decide whether a claimant wins or loses. Since the judges do not even write their own decisions, some decision writers have complained that the judges' decision writing instructions consist of nothing more than a "smiley face' or a "frowning face" on a piece of paper. And the worst case of all are the reports of judges who decide over 200 cases a month without even bothering to hold a hearing. They simply "pay the cases" to get rid of them. This is called "paying down the backlog" in the language of the Social Security Office. The backlog of over 770,000 disability claimants could be a factor in the rapid decisions. (Read more at For years attorneys have been known to forum shop. They search for Hearing Offices that have a high degree of reversals of cases on appeal; or, they search for judges known to be more likely to grant benefits.The Social Security Administration has halted the process of informing applicants of which judge will preside over their hearings. This practice will prevent SSD attorneys from “shopping” for a lenient judge. However, if judges become stricter in their approval standards, it could prompt more applicants to seek professional representation to increase their chances of being one of the 10,000,000 Americans who will receive their share of the $130,000,000,000 in SSD claims in 2013. This could help SSD attorneys and representatives increase their number of clients in the long run. The recommendations that result from the study are scheduled for release in November 2012. The new procedures will be non-binding, but are geared toward refining and leveling the approval process.

Thursday, May 3, 2012

How To Win Your Disability Case And Make The Government Pay For Your Attorney

THOMAS v. ASTRUE LAURA M. THOMAS, Plaintiff-Appellant, v. MICHAEL J. ASTRUE, Commissioner of Social Security Administration, Defendant-Appellee.United States Court of Appeals, Tenth Circuit. Before TYMKOVICH and BALDOCK, Circuit Judges, and BRORBY, Senior Circuit Judge. ORDER AND JUDGMENT TIMOTHY M. TYMKOVICH, Circuit Judge. This appeal requires us to consider a magistrate judge’s discretion to deny attorney’s fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. After a magistrate judge remanded Laura M. Thomas’s disability claim to the Commissioner of Social Security for further analysis, Ms. Thomas applied for attorney’s fees under the EAJA. The magistrate judge denied her application for fees, Ms. Thomas appealed, and we now affirm. Ms. Thomas originally applied for disability insurance benefits, claiming she was disabled on October 28, 2004, by deep vein thrombosis and obesity. Her case proceeded to a hearing before an administrative law judge (ALJ), at which a medical expert testified that Ms. Thomas became disabled in May 2007. Without discussing this testimony, the ALJ concluded that Ms. Thomas did indeed become disabled on May 1, 2007, but her insured status had already expired on December 31, 2006. Consequently, the ALJ denied benefits, prompting Ms. Thomas to seek judicial review in the district court. Ms. Thomas argued for a remand on the ground (among others) that the ALJ improperly evaluated the medical expert’s opinion. She acknowledged that the expert’s opinion concerning her date of onset was predicated on evidence of neurological damage in her lower extremities discovered in 2007. But she argued that there was other evidence documenting neurological changes as early as February 2005, yet the ALJ did not explain why he credited the expert’s opinion over this other evidence. The magistrate judge agreed that the ALJ failed to properly evaluate the medical expert’s opinion, see 20 C.F.R. § 404.1527(f)(2)(ii) (requiring ALJ to evaluate opinion evidence under relevant factors and explain weight accorded to opinion), and he therefore remanded the case to the agency to allow the ALJ to explain the weight accorded to the expert’s opinion. Having succeeded in obtaining a remand, Ms. Thomas returned to the magistrate judge and requested $5,995.10 in attorney’s fees pursuant to § 2412(d). In her application, she argued that the remand order was a favorable final judgment and the Commissioner’s position was not substantially justified. The Commissioner, for his part, opposed a fee award, asserting that the issues before the magistrate judge “involve[d] a genuine dispute, reasonable people could differ as to the appropriateness of the matter, and the ALJ’s decision was justified `for the most part.’” The Commissioner explained that the ALJ’s decision was affirmed on all grounds except the medical expert’s opinion, which only required further discussion of the weight assigned; otherwise, the ALJ’s finding of May 1, 2007, as the date of onset was consistent with the expert’s opinion. Hence, the Commissioner maintained that his position was substantially justified and fees should therefore be denied. The magistrate judge agreed with the Commissioner and held that “[t]he government’s position . . . was not only substantially justified, any reasonable person would have viewed it as substantively correct, but technically defective.” We review the denial of an EAJA claim for abuse of discretion. The EAJA entitles a prevailing party to recover reasonable attorney fees from the government “`unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.’” “The test for substantial justification in this circuit is one of reasonableness in law and fact.” In other words, “the government’s position must be justified to a degree that could satisfy a reasonable person,” but it need not necessarily be correct. We agree that the government’s position was substantially justified. The dispositive issue for the magistrate judge was whether the ALJ properly evaluated the medical expert’s opinion. The ALJ cited substantial evidence demonstrating that Ms. Thomas’s condition had deteriorated until she was disabled in May 2007, but he did not discuss how (if at all) he weighed the medical expert’s opinion. Although the Commissioner defended the ALJ’s decision, he did so on substantially justifiable grounds, noting that the ALJ was not obligated to find that Ms. Thomas was disabled after her insured status expired. He also emphasized that the ALJ’s finding of disability in May 2007 was consistent with the expert’s opinion, which was itself substantial evidence supporting the ALJ’s decision. These arguments were rejected by the magistrate judge, but that does not render the government’s position unreasonable. Rather, as the magistrate judge observed, “the record clearly supported the ALJ’s decision so long as the ALJ simply stated the weight he assigned to the medical expert’s opinion.” Indeed, the magistrate judge “fully anticipated that on remand the ALJ would promptly revise his decision to identify the weight he gave the medical expert without altering his ultimate conclusion that [Ms. Thomas] was not disabled prior to the onset date found by the ALJ.” These circumstances demonstrate that the magistrate judge acted within his discretion in denying attorney’s fees.Accordingly, the judgment of the district court is AFFIRMED.

Wednesday, May 2, 2012

If your Treating MD Says You Are Disabled, The Judge Must Grant You Benefits

TALLEY v. ASTRUE BRENDA L. TALLEY, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner, Social Security Administration, Defendant. MEMORANDUM OPINION AND ORDER BETH DEERE, Magistrate Judge. Plaintiff Brenda L. Talley appeals the final decision of the Commissioner of the Social Security Administration (the “Commissioner”) denying her claim for Disability Insurance benefits (“DIB”) under Title II of the Social Security Act (the “Act”) and Supplemental Security Income (“SSI”) under Title XVI of the Act. For the following reasons, the decision of the Commissioner must be REVERSED and REMANDED. I. Background: Ms. Talley filed for DIB and SSI on May 15, 2008, claiming disability since June 23, 2007. Ms. Talley alleged that she was disabled as a result of diabetes, arthritis, anxiety, morbid obesity, malabsorption syndrome, agoraphobia, hypertension, supraventricular tachycardia, obsessive compulsive disorder, neuropathy, retinopathy, endometriosis, degenerative joint disease, chronic insomnia, and deep vein thrombosis. After denials initially and upon reconsideration, Ms. Talley requested a hearing before an Administrative Law Judge (“ALJ”). The ALJ held a hearing on July 6, 2009, at which Ms. Talley appeared with her attorney and testified. The ALJ also heard testimony from a vocational expert. The ALJ issued a decision on November 4, 2009, finding that Ms. Talley was not disabled for purposes of the Act. On January 20, 2011, the Appeals Council denied her request for review, making the ALJ’s decision the Commissioner’s final decision. At the time of the hearing before the ALJ, Ms. Talley was 47 years old and was living alone in a house next door to her mother and brother. She had previous work as a registered nurse. II. Decision of the Administrative Law Judge: The ALJ followed the required five-step sequence to determine: (1) whether the claimant was engaged in substantial gainful activity; (2) if not, whether the claimant had a severe impairment; (3) if so, whether the impairment (or combination of impairments) met or equaled a listed impairment; (4) if not, whether the impairment (or combination of impairments) prevented the claimant from performing past relevant work; and (5) if so, whether the impairment (or combination of impairments) prevented the claimant from performing any other jobs available in significant numbers in the national economy. 20 C.F.R. §§ 404.1520(a)-(g); 416.920(a)-(g).The ALJ found that Ms. Talley had not engaged in substantial gainful activity since her alleged disability onset date but noted that she had received unemployment benefits into the first quarter of 2008, indicating she was available and willing to return to work during that period. The ALJ also found that Ms. Talley had the following severe impairments: diabetes mellitus, back disorder (degenerative arthritis), obesity, and mood disorder. According to the ALJ, Ms. Talley did not have an impairment or combination of impairments, however, that met or equaled an impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1526, 416.926). The ALJ determined that Ms. Talley retained the residual functional capacity (“RFC”) to perform sedentary work except as follows: she could occasionally lift/carry ten pounds and frequently lift/carry less, stand/walk for two hours; occasionally climb, balance, crawl, kneel, stoop, and crouch. She had moderate restriction in her ability to maintain the activities of daily living, social functioning, and concentration, persistence, and pace. She was moderately limited in her ability to understand, remember, and carry out detailed instructions; make judgments on simple work related decisions; interact appropriately with the public; and respond appropriately to usual work situation and routine work changes. She could perform work where interpersonal contact was incidental to the work performed, complexity of tasks is learned and performed by rote, with few variables, little judgment was required, and supervision was simple, direct, and concrete. The ALJ concluded that Ms. Talley could not perform her past relevant work as a registered nurse. (Tr. 58) Relying on the vocational expert’s responses to interrogatories, the ALJ concluded Ms. Talley could perform work as a production worker, credit authorizer, or interviewer and that she was not disabled within the meaning of the Act. III. Analysis:A. Standard of Review. In reviewing the Commissioner’s decision, this Court must determine whether there is substantial evidence in the record as a whole to support the decision. Substantial evidence is something less than a preponderance, but it must be, “sufficient for reasonable minds to find it adequate to support the decision.” In reviewing the record as a whole, the Court must consider both evidence that detracts from the Commissioner’s decision and evidence that supports the decision; but, the decision cannot be reversed, “simply because some evidence may support the opposite conclusion.” B. Severe Impairments and Residual Functional CapacityMs. Talley complains that the ALJ erred by failing to find that her diabetic retinopathy, supraventricular tachycardia (SVT), peripheral neuropathy, and hip pain were severe impairments. She also complains that the ALJ’s residual functional capacity assessment is not supported by substantial evidence in the record.Ms. Talley had the burden of showing that her impairments were severe; however, this burden is not a great one. Rather, step two of the sequential evaluation process provides a de minimus screening device to dispose of groundless claims. An impairment is severe if the effect of the impairment on the claimant’s ability to perform basic work is more than slight or minimal. Basic work activities are the abilities and aptitudes necessary to do most jobs, such as hearing, standing, walking, sitting, lifting, handling, remembering simple instructions, using judgment, and dealing with changes in a routine work setting. 20 C.F.R. §404.1521. The Commissioner must resolve any doubt as to whether the required showing of severity has been made in favor of the claimant. SSR 85-28 at *4 (1985).Once it is determined that an individual has a severe impairment for purposes of step two, the combined effect of all impairments are considered in determining an individual’s residual functional capacity, regardless of whether the impairments are labeled severe or non-severe. 20 C.F.R. §§ 404.1545(e) and 416.945(e). In assessing residual functional capacity, the ALJ must give appropriate consideration to all of the claimant’s impairments, and base the assessment on competent medical evidence. Partee v. Astrue, 638 F.3d 860, 865 (8th Cir. 2011) (citations omitted). An ALJ should consider the quality of the claimant’s daily activities and the ability to sustain activities, interests, and relate to others over a period of time. The frequency, appropriateness, and independence of the activities must also be considered. Boettcher, 652 F.3d at 866 (internal quotation marks and citation omitted).1. Diabetic RetinopathyMs. Talley claims that the ALJ erred by failing to find that her diabetic retinopathy was a severe impairment. The ALJ noted that Ms. Talley had been referred for an evaluation of diabetic retinopathy and stated that her diabetes could be expected to cause vision changes. But he did not find her diabetic retinopathy to be a severe impairment; nor did he discuss Ms. Talley’s vision when assessing her residual functional capacity.The Commissioner does not dispute that Ms. Talley was diagnosed with diabetic retinopathy, but argues that the diagnosis, by itself, does not indicate a severe impairment. This statement of the law is true, as far as it goes. However, the ALJ still had a duty to consider Ms. Talley’s diabetic retinopathy when considering her residual functional capacity, and it appears that he failed to do so.In November, 2009, Ms. Talley was referred for an eye examination after complaints that her eyes were hurting. The records from Ms. Talley’s visit to an opthamologist in November, 2008, indicate that she had a history of retinal bleeding and glaucoma. In a narrative report dated November 13, 2009, Gary Russell, M.D., a physician at River Valley Medical Center, wrote that, according to her ophthalmologist, Ms. Talley had diabetic retinopathy with marked decrease in her vision and at least one retinal hemorrhage that was treated with laser therapy. On November 19, 2009, Ms. Talley was seen at River Valley Christian Clinic (“River Valley”) complaining of vision problems. She was referred to an eye doctor.At the hearing, Ms. Talley testified that she had glasses, but that they were for distance vision and not for reading. She stated that she was no longer able to read the newspaper because her vision was impaired. However, she was able to read a large-print Bible. She also testified that one reason she used a cane was to help her deal with her visual impairment because she had difficulty detecting depth and color change.In spite of considerable evidence in the record indicating that Ms. Talley’s diabetic retinopathy has more than a minimal effect on her ability to work, it does not appear that the ALJ considered it when assessing her residual functional capacity. The ALJ found that Ms. Talley was capable of working as a production worker which, according to the Dictionary of Occupational Titles, would require her to frequently use near acuity and depth perception, and to occasionally use color vision. Employment and Training Admin., U.S. Dep’t of Labor, Dictionary of Occupational Titles (4th ed. rev. 1991). Further, it does not appear that any consulting or examining source offered an opinion about the extent of visual limitation caused by Ms. Talley’s retinopathy. Remand is necessary for the ALJ to more fully and fairly develop the record regarding the extent of Ms. Talley’s visual impairment, if any.2. Peripheral NeuropathyOn November 7, 2007, Kenneth Turner, M.D., diagnosed Ms. Talley with diabetic peripheral neuropathy. On September 18, 2008, Ms. Talley complained of numbness and tingling during her visit to River Valley.At the hearing, Ms. Talley testified that her feet and legs were cold and numb bilaterally. She stated that she had problems with strength and grip, could not open jars, and dropped things. She had difficulty holding a glass of milk because of problems with her grip. She also stated that her peripheral neuropathy caused her knees to buckle, leading her to use a cane. She had difficulty getting up and down the three steps leading to her house.In his opinion, the ALJ acknowledged Ms. Talley’s diabetic neuropathy and considered whether there was documentation of neuropathy in two extremities significant enough to meet a Listing. He also noted that her diabetes could cause “tingling and numbness” in the hands or feet. When assessing Ms. Talley’s residual functional capacity, however, the ALJ focused his assessment only on the neuropathy in her feet. He noted that she had reported numbness, tingling, and pain in her feet. The ALJ stressed, however, that the orthopedic specialist had found that she had normal gait, that her neurovascular status was intact, and that she had positive straight leg tests. The ALJ concluded that Ms. Talley could sit for six hours; stand/walk for two hours; and could occasionally climb, balance, crawl, kneel, stoop, or crouch. The ALJ did not address the evidence in the record indicating that Ms. Talley’s peripheral neuropathy also affected her hands. He did not limit her residual functional capacity in any way related to her hands and concluded she could perform work as a credit authorizer and interviewer — jobs that require frequent handling. The ALJ’s failure to fully account for Ms. Talley’s peripheral neuropathy in assessing residual functional capacity is error. Again, it does not appear that any examining medical professional had ordered a nerve conduction study of Ms. Talley or had offered an opinion as to the extent of the limitation caused by her peripheral neuropathy. On remand, the Commissioner should consider the effect, if any, that Ms. Talley’s peripheral neuropathy in her legs, hands, and feet has on her residual functional capacity.3. Hip PainMs. Talley alleges that it was error for the ALJ not to conclude that her hip pain was a severe impairment. The ALJ acknowledged Ms. Talley’s complaints of hip pain at various points in his opinion. He noted that Ms. Talley complained of hip pain to Dr. Turner, who recorded in treatment notes that Ms. Talley had a right hip that “pops out at times.” The ALJ also acknowledged that Ms. Talley was examined by Owen Kelly, M.D., at Arkansas Orthopaedic Institute in November, 2007. Dr. Kelly took x-rays of Ms. Talley that revealed some degenerative disc disease. On examination, he noted that she had normal gait, but tenderness of the greater trochanter bursa and around the lumbosacral area. He diagnosed low back pain, degenerative disc disease, and right leg radiculopathy. He ordered an MRI of Ms. Talley’s lumbar spine, but she reported to Dr. Turner that she was unable to have the test because of her financial situation. On October 2, 2008, Ms. Talley complained of hip pain during a visit to Stanley Teeter, M.D., at River Valley. She was diagnosed with degenerative arthritis in her hip. Dr. Teeter prescribed Etodolac but, as the ALJ noted, that medication was discontinued due to gastritis. At her hearing, Ms. Talley testified that Dr. Teeter had told her she had “bone against bone” on her right hip, and that her hip socket was degenerated. She stated that he had advised her to keep as much weight as possible off of it, so she used a cane. Additionally, Ms. Talley testified that she was not able to bend down to pick up objects that dropped on the floor. She relied on her brother or mother to come to her house and do that for her. The ALJ discounted the effects of Ms. Talley’s hip pain, noting that no surgical treatment was recommended. However, Dr. Kelly, the orthopedic specialist, had ordered an MRI in order to have a complete work-up on Ms. Talley, but she was not able to have the test because of her limited financial resources. She never returned to Dr. Kelly, but instead continued to seek treatment for hip pain from her general practitioners at the free clinic.Further, the ALJ noted that none of Ms. Talley’s doctors had restricted her activities. However, Ms. Talley’s testimony contradicts this assertion. She testified that Dr. Teeter had advised her to keep as much weight off of her hip as possible. The ALJ’s opinion does not offer any explanation for discrediting this testimony. Further, Dr. Russell, one of Ms. Talley’s treating physicians, stated that Ms. Talley was unable to sit or stay in one position for an extended period of time. While the ALJ did not have Dr. Russell’s assessment at the time he wrote his opinion, the Court may consider that opinion, which was available to, and considered by, the Appeals Council. The court’s role is to determine whether the ALJ’s decision is supported by substantial evidence including the evidence submitted after the determination was made.The ALJ’s conclusion that Ms. Talley could perform sedentary work and could occasionally climb, balance, crawl, kneel, stoop, and couch is not supported by substantial evidence in the record. Mental ImpairmentsMs. Talley also claims that the ALJ erred in assessing her mental impairments. The ALJ concluded Ms. Talley had moderate restriction in activities of daily living; in her social functioning; and in concentration, persistence, and pace. He noted that she was hospitalized in 2001 following a suicide attempt. The ALJ found that Ms. Talley’s mood disorder was a severe impairment, but he concluded that she maintained the residual functional capacity for unskilled work. Ms. Talley points out that the ALJ declined to discuss the mental consultative examination performed by Don Ott, Psy.D., on September 17, 2008. Dr. Ott observed that, during the examination, Ms. Talley’s affect was rigid and flat. He stated that she made very little eye contact, and that her voice was tired and resigned. She seemed distracted and talked excessively during the evaluation. Dr. Ott concluded that Ms. Talley’s social interaction was “fairly limited.” Her concentration was impaired, and her capacity to cope with the mental demands of work was deficient. Dr. Ott diagnosed Ms. Talley with major depressive disorder, recurrent, moderate and assigned a GAF score of 50-60. The Commissioner points out that the ALJ addressed Dr. Ott’s opinion by stating, “the opinions of the claimant’s examining and treating physicians are given substantial weight consistent with 20 C.F.R. 404.1527.” Further, he argues that Dr. Ott’s opinion is not contradictory to the ALJ’s assessment of Ms. Talley’s residual functional capacity, pointing out that Dr. Ott “never opined as to Plaintiff’s actual limitations in concentration or any work-related domain.” The ALJ’s handling of Dr. Ott’s opinion was inadequate. As explained in Social Security Ruling 96-6p, administrative law judges and the Appeals Council are not bound by findings made by State agency or other program physicians and psychologists, but they cannot ignore these opinions and must explain the weight given to the opinions in their decisions. SSR 96-6p (1996). Dr. Ott’s opinion that Ms. Talley’s concentration was impaired and that her ability to cope with the mental demands of work was deficient should have at least been addressed by the ALJ in his opinion. he ALJ’s assessment of Ms. Talley’s treatment records was also deficient. In his opinion, the ALJ based his residual functional capacity assessment on the July, 2008 assessment of Richard H. Sundermann, Jr., M.D. (Tr. 443-44) Dr. Sundermann recounted Ms. Talley’s history of depression and anxiety. He noted that she had been unable to afford Effexor and had switched to a generic, but had been unable to afford even an adequate dose of the generic drug. He diagnosed Ms. Talley with moderate, recurrent major depressive disorder and prescribed Effexor, which he could supply to her through a patient assistance program. The ALJ states the Effexor resulted in fewer suicidal thoughts and an improved mood. He summarized the remaining treatment notes by stating that Ms. Talley continued to attend therapy sessions and medication management, “with a few more changes in the medications and improvement of her mood.” Based on this analysis of Ms. Talley’s treatment records, the ALJ concluded that she could perform unskilled work. The ALJ’s assessment that Ms. Talley’s depression and anxiety were controlled with medication and therapy is not supported by substantial evidence in the record. In April, 2008, Ms. Talley complained of increased anxiety and depression to Dr. Turner. He referred her to Counseling Associates noting that, “[s]he is not actually suicidal but needs more intensive care for depression than I can provide alone.” In May of 2008, Ms. Talley called Dr. Turner’s office seeking samples of Effexor because she could not purchase her medication. He was unable to provide samples of Effexor and changed her medication to Cymbalta. On June 4, 2008, Ms. Talley presented to Counseling Associates complaining of anxiety and depression since she was a child. She reported daily symptoms of depression and anxiety, stating that her social anxiety was so severe that she remained isolated and felt like a failure. She was initially diagnosed with major depressive disorder, recurrent, moderate, without psychotic features, and anxiety disorder with agoraphobia. She was assigned a GAF score of 50. (Tr. 331-336)On July 9, 2008, Dr. Sundermann evaluated Ms. Talley. He noted that she had a difficult time digesting her food and medicine because she had undergone gastric bypass surgery in 2001. He stated that Prozac, which Ms. Talley had previously taken with good result, had stopped working. She reported a failed suicide attempt years earlier, which had resulted in her being psychiatrically hospitalized for seven days. Dr. Sundermann prescribed Effexor XR and therapy. On August 26, 2008, Ms. Talley began therapy with Erin Willcutt, LAC. On September 8, 2008, Ms. Talley was evaluated by Sam Hernandez, APN. Progress notes from the visit indicate that Ms. Talley reported that her depression seemed worse and that she wanted to stay in bed most of the time. She was observed to have a flat affect and admitted to having fleeting suicidal thoughts with a plan at times. Nurse Hernandez increased her Effexor, and Ms. Talley agreed to allow her brother to help her manage her medications.During a therapy session on September 12, 2008, Ms. Talley seemed to be doing better. But on October 1, 2008, her therapist noted that her response to treatment has been “marginal,” and her anxiety level was very high. On October 6, 2008, Ms. Talley returned to Nurse Hernandez, who noted that she seemed to be doing quite a bit better. Ms. Talley returned to see Ms. Willcutt on October 14, 2008. Ms. Willcutt noted that Ms. Talley seemed to be doing a little better, but still has difficulty getting motivated to do things to improve her situation. During visits on November 12, 2008, and December 9, 2008, Ms. Talley reported doing better. On December 11, 2008, Nurse Hernandez diagnosed major depressive disorder, recurrent, moderate and continued her on Effexor and individual therapy. On January 15, 2009, Ms. Talley reported feeling a little more depressed, but she returned on February 4, 3009, to report feeling better. Ms. Willcutt noted that at her session on March 6, 2009, Ms. Talley had a depressed mood. She noted that Ms. Talley was not doing as well as she had been at her last visit and reported feeling very depressed after her mother had yelled at her.Ms. Talley was examined by Roy Ragsdill, M.D., on April 7, 2009. Ms. Talley complained to Dr. Ragsdill of problems with her mother and social anxiety. He suggested adding dependent personality traits to her diagnosis and noted that Ms. Talley had only a “partial response to Effexor” but that he was “reluctant” to change her medications. He continued her medications and suggested an increase in therapy to weekly. Ms. Willcutt reported that on April 21, 2009, Ms. Talley’s response to therapy was “minimal” and her thought patterns were “very negative.” Ms. Willcutt suggested that they increase their sessions. On May 5, 2009, Ms. Talley was noted to have a very depressed mood, negative thought process, and very tearful behavior. Ms. Talley admitted to thoughts of wanting to die and not wanting to go on, but denied any plan or intent to harm herself. Ms. Willcutt discussed possible acute care with Ms. Talley, but she rejected the idea because she had formerly worked at the acute unit and felt this would make her feel like more of a failure. Ms. Willcutt noted that cognitive therapy was minimally successful and noted her intention to meet with her case manager and discuss the case with Ms. Talley’s psychiatrist. Ms. Willcutt recommended an increased level of care for Ms. Talley with weekly therapy and meetings twice per month with her case manager. Notes from Ms. Talley’s May 20, 2009 therapy session indicate that she exhibited depressed mood, negative thought process, and no change in behavior of functioning. On June 16, 2009, Dr. Ragsdill examined Ms. Talley. He noted that her mood was somewhat better, but discussed with her the possibility of adding lithium as an augmentation to her treatment. Ms. Talley rejected the idea. Notes from Ms. Talley’s therapy session with Ms. Willcutt on November 18, 2009, indicate that Ms. Talley’s response to therapy was not positive. She stated, “Brenda is very depressed and apathetic about her current living situation. She was very negative in session and reports having no energy to do or work on current situation. She reports feeling like `Brenda’ is slipping away.” Ms. Willcutt noted that “Brenda is isolating and avoiding friends, family, and appointments when possible.” She recommended that Ms. Talley increase the frequency of her therapy sessions and case management appointments. Ms. Willcutt met with Ms. Talley again on December 9, 2009. She noted that Ms. Talley’s mood was depressed and overwhelmed; her thoughts were negative; and her behavior was anxious. Ms. Talley reported difficulties living with her mentally ill mother and brother. Ms. Willcutt noted that Ms. Talley’s activity level was “significantly reduced.” On December 9, 2009, Ms. Talley was also seen by her psychiatrist, Dr. Ragsdill. He noted that Ms. Talley was walking with a cane, was anxious, and did not want to go out much. He assessed that she was having an “incomplete response” to her antidepressant regimen. He increased her Effexor to the maximum dose and added lithium. In a treatment and prognosis summary dated December 13, 2009, Ms. Willcutt noted that Ms. Talley’s depression and anxiety had increased over the past several months. She pointed out that Ms. Talley’s thought patterns were increasingly negative and her anxiety was more apparent. She stated that she had agreed with her current diagnosis of major depressive disorder, recurrent, moderate to severe and anxiety disorder NOS and stated that, in her opinion, Ms. Talley’s prognosis was guarded, due to the recurrent nature of her mental disorder and severe stressors. Evidence from treating sources are generally accorded great weight because they are most able to provide a longitudinal picture of a claimant’s impairments. 20 C.F.R. § 416.927. The ALJ had access to Ms. Talley’s treatment records from Counseling Associates through June, 2009, but opted to focus on the first few months of her treatment, when she showed some signs of improvement. The Appeals Council had access to Ms. Talley’s records through December, 2009, but concluded that the information did not provide a basis for changing the ALJ’s decision. The Court disagrees. The treating source records, taken as a whole, indicate that Ms. Talley’s depression and anxiety had not improved on medication but, in fact, steadily declined after March of 2009. The ALJ erred by failing to address Dr. Ott’s opinion and by relying on a six-month snapshot of Ms. Talley’s treatment records when assessing her mental residual functional capacity. IV. Conclusion After consideration of the record as a whole, the Court concludes that the decision of the Commissioner is not supported by substantial evidence. The Commissioner’s decision is reversed and remanded for action consistent with this opinion. IT IS SO ORDERED.

Social Security Benefits Can Be Terminated If a Judge Determines There Has Been Medical Improvement

SIMONE v. COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION BARBARA A. SIMONE, Plaintiff-Appellant, v. COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant-Appellee.United States Court of Appeals, Eleventh Circuit. Before HULL, MARCUS and BLACK, Circuit Judges. PER CURIAM. Barbara Simone appeals from the district court’s order which affirmed the Administrative Law Judge‘s (“ALJ”) termination of her disability insurance benefits pursuant to 42 U.S.C. § 405(g). On appeal, Simone argues that: (1) substantial evidence did not support the ALJ’s determination that Simone’s medical condition had substantially improved as of May 1, 2005; (2) substantial evidence did not support the ALJ’s determination that the improvement in Simone’s medical condition was related to her ability to do work; and (3) the ALJ erred by failing to give greater weight to the opinion of Simone’s treating physician, Dr. Robert Bianco, regarding her ability to work. After thorough review, we affirm. We review a Social Security decision “to determine if it is supported by substantial evidence and based on proper legal standards.” Substantial evidence consists of “such relevant evidence as a reasonable person would accept as adequate to support a conclusion.” The burden rests with the claimant to prove that she is disabled and entitled to Social Security benefits. See 20 C.F.R. § 404.1512(a). An ALJ may terminate a claimant’s benefits upon finding that there has been medical improvement in the claimant’s impairment or combination of impairments related to the claimant’s ability to work and the claimant is now able to engage in substantial gainful activity. 42 U.S.C. § 423(f)(1). To determine whether disability benefits should be terminated, the ALJ must conduct a multi-step evaluation process and determine: (1) Whether the claimant is engaging in substantial gainful activity; (2) If not gainfully employed, whether the claimant has an impairment or combination of impairments which meets or equals a listing; (3) If impairments do not meet a listing, whether there has been medical improvement; (4) If there has been improvement, whether the improvement is related to the claimant’s ability to do work; (5) If there is improvement related to claimant’s ability to do work, whether an exception to medical improvement applies; (6) If medical improvement is related to the claimant’s ability to do work or if one of the first groups of exceptions to medical improvement applies, whether the claimant has a severe impairment; (7) If the claimant has a severe impairment, whether the claimant can perform past relevant work; (8) If the claimant cannot perform past relevant work, whether the claimant can perform other work.See 20 C.F.R. § 404.1594(f). First, we reject Simone’s claim that substantial evidence does not support the ALJ’s determination that Simone’s medical condition had substantially improved because the ALJ ignored evidence that she also continuously suffered from other severe cardiovascular conditions, specifically carotid artery disease. To determine if there has been medical improvement, the ALJ must compare the medical evidence supporting the most recent final decision holding that the claimant is disabled with new medical evidence. “Medical improvement” is defined as “any decrease in the medical severity of [the] impairment(s) which was present at the time of the most recent favorable medical decision that [the claimant was] disabled . . . .” 20 C.F.R. § 404.1594(b)(1); see also 20 C.F.R. § 404.1594(c)(1). Here, substantial evidence supports the ALJ’s finding that there had been substantial improvement in Simone’s medical condition as of May 1, 2005. As Simone’s medical records demonstrate, a February 23, 2005, echocardiogram showed that her cardiomyopathy had improved — showing an improved ejection fraction of approximately 50 percent, on the lower limit of normal — so that it no longer met the Medical Listing. Moreover, Simone’s treating cardiologist, Dr. Bianco, said in letters and treatment notes on several occasions between February 2002 and April 2005 that Simone’s cardiomyopathy was stable, she was doing well, and she was able to exercise, at one point walking up to one mile each day. Dr. John Bolla’s March and April 2005 notes and communications also support the ALJ’s finding of substantial medical improvement, as he reported that Simone exercised 30 minutes a day, 3 times a week; carotid artery sonography revealed mild stenosis of 30 percent bilateral internal carotid arteries, resulting in a diagnosis of “minor carotid artery disease”; she was doing very well, with no clinical signs of congestive heart failure; the most recent echocardiogram had demonstrated a normal ejection fraction of 50 percent; and the holter monitor had not demonstrated any significant abnormalities. Although March 13, 2000, arteriograms showed mild to moderate (less than 50 percent) narrowing of the internal carotid arteries, high grade stenosis (greater than 90 percent) at the origin of the external carotid arteries, and moderate stenosis (50 to 60 percent) at the origin of the left vertebral artery, other medical records between 2000 and May 1, 2005, demonstrated that Simone’s carotid artery disease was not a major focus of her medical treatment and that it perhaps even improved during this time period. Dr. Bianco’s medical notes included carotid artery disease in his assessment on April 25, 2001, but most of his later assessments did not include that diagnosis. Dr. Bianco also noted no symptoms of carotid artery disease, such as a carotid bruit, between April 25, 2001, and April 2005. Furthermore, as the ALJ noted, Simone’s February 25, 2005, Doppler sonography tests revealed mild (30 percent) bilateral internal carotid artery stenosis — which is a significant improvement over the March 2000 test results. And finally, the fact that, in 2008, Simone underwent two surgeries to treat her carotid artery disease is not relevant to whether her medical impairment had medically improved as of May 1, 2005, the date on which her disability ended.We are also unpersuaded by Simone’s claim that substantial evidence did not support the ALJ’s determination that the improvement in Simone’s medical condition was related to her ability to do work. If the ALJ determines that there has been medical improvement, then he must determine whether that improvement is related to the claimant’s ability to do work. See 20 C.F.R. § 404.1594(f)(4). The regulations provide that “[m]edical improvement is related to [the claimant's] ability to work if there has been a decrease in the severity . . . of the impairment(s) present at the time of the most recent favorable medical decision and an increase in [the claimant's] capacity to do basic work activities . . . .” 20 C.F.R. § 404.1594(b)(3). The regulations provide specific instructions for how this determination will be made if the claimant’s previous disability determination was based on the fact that her impairment met or equaled the severity contemplating by the Listing of Impairments:If [the Social Security Administration's] most recent favorable decision was based on the fact that [the claimant's] impairment(s) at the time met or equaled the severity contemplated by the Listing of Impairments in appendix 1 of this subpart, an assessment of [the claimant's] residual functional capacity would not have been made. If medical improvement has occurred and the severity of the prior impairment(s) no longer meets or equals the same listing section used to make [the] most recent favorable decision, [the Social Security Administration] will find that the medical improvement was related to [the claimant's] ability to work.. . . If there has been medical improvement to the degree that the requirement of the listing section is no longer met or equaled, then the medical improvement is related to [the claimant's] ability to work.20 C.F.R. § 404.1594(c)(3)(i). In this case, the ALJ properly determined that, because the February 2005 echocardiogram showed an improved ejection fraction of 50 percent, in combination with evidence from her other medical records, Simone no longer had an impairment or combination of impairments equal to the same listing that was met at the time of her last disability determination. Simone’s initial disability determination was based on her diagnosis for cardiomyopathy and the fact that the results of the November 2001 echocardiogram showed an ejection fraction of 15 percent. This diagnosis met the requirements for Medical Listing 4.02(B), which, among other factors, required a documented ejection fraction of 30 percent or less. See 20 C.F.R. Pt. 404, Subpt. P, App. 1, Medical Listing 4.02(B) (2002). Thus, no assessment of Simone’s residual functional capacity was made at the time of her initial disability determination. See 20 C.F.R. § 404.1594(c)(3)(i). Because Simone no longer met or equaled the same listing that she met when she was previously found disabled, substantial evidence necessarily supports the ALJ’s finding that her medical improvement was related to her ability to do work. See id.Finally, we find no merit to Simone’s argument that the ALJ erred by failing to give greater weight to the opinion of Simone’s treating physician, Dr. Bianco, regarding her ability to work. “[T]he opinion of a treating physician is entitled to substantial weight unless good cause exists for not heeding the treating physician’s diagnosis.” see 20 C.F.R. § 404.1527(d)(2) (providing that, generally, more weight is given to opinions from treating sources). However, we have found “good cause” to afford less weight to a treating physician’s opinion where the opinion is conclusory or inconsistent with the physician’s own medical records or where the evidence supports a contrary finding. Furthermore, the ALJ “is free to reject the opinion of any physician when the evidence supports a contrary conclusion.” On this record, the ALJ did not err by discounting the Dr. Bianco’s opinions regarding Simone’s ability to work. As for Dr. Bianco’s residual functional capacity evaluation, Dr. Bianco provided no information about any clinical data or other objective medical evidence on which he based his opinion, only signing the form in the space provided for that information. Dr. Bianco’s response to Simone’s counsel’s letter requesting confirmation that the residual functional capacity evaluation was not contradicted by his treatment notes provided no additional support for his opinion. And, the December 29, 2005, and April 4, 2007, letters Dr. Bianco wrote “[t]o whom it may concern,” expressing his opinion that Simone was still disabled and unable to work, were also not supported by any medical evidence.Moreover, substantial evidence supports the ALJ’s determination that Dr. Bianco’s opinions regarding Simone’s ability to work were contradicted by his treatment notes and other medical evidence. As discussed previously, the February 2005 echocardiogram demonstrated an improved ejection fraction of approximately 50 percent, on the lower limit of normal. In addition, Dr. Bianco’s own letters and treatment notes reported on several occasions between February 2002 and April 2005 that Simone’s cardiomyopathy was stable, she was doing well, she was able to walk up to one mile each day, and she stayed active caring for her mother. Further, Dr. Bolla’s notes and communications demonstrated that Simone exercised 30 minutes a day, 3 times a week, she was doing very well, with no clinical signs of congestive heart failure; the 2005 echocardiogram demonstrated a normal ejection fraction of 50 percent; and the holter monitor had not demonstrated any significant abnormalities. Lastly, the ALJ adequately set forth his reasons for discounting Dr. Bianco’s opinions regarding Simone’s ability to work, as he explained that he gave no weight to Dr. Bianco’s opinions because they were inconsistent with Bianco’s treatment notes and objective medical evidence. Accordingly, we affirm. AFFIRMED.