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Garcia v. Apfel, 99-41262 (2000)

Court: Court of Appeals for the Fifth Circuit Number: 99-41262 Visitors: 20
Filed: Jun. 08, 2000
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 99-41262 Summary Calendar IRMA G. GARCIA, Plaintiff-Appellant, versus KENNETH S. APFEL, COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee. _ Appeal from the United States District Court for the Southern District of Texas USDC No. L-98-CV-117 _ June 8, 2000 Before POLITZ, WIENER, and EMILIO M. GARZA, Circuit Judges. PER CURIAM:* Irma G. Garcia appeals the affirmance of the denial of her application for Supplemental Security Income,
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                  IN THE UNITED STATES COURT OF APPEALS
                                FOR THE FIFTH CIRCUIT



                                       No. 99-41262
                                     Summary Calendar



IRMA G. GARCIA,
                                                            Plaintiff-Appellant,
                                             versus

KENNETH S. APFEL,
COMMISSIONER OF SOCIAL
SECURITY,
                                                            Defendant-Appellee.

                _____________________________________________
                     Appeal from the United States District Court
                         for the Southern District of Texas
                              USDC No. L-98-CV-117
                _____________________________________________
                                      June 8, 2000

Before POLITZ, WIENER, and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:*

       Irma G. Garcia appeals the affirmance of the denial of her application for

Supplemental Security Income, contending that the Administrative Law Judge erred in

assessing her credibility regarding her ability to work. She maintains that the ALJ
misstated her daily-living activities and erroneously relied on those activities and on her

       *
        Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
demeanor at the hearing in making the credibility assessment. Although the ALJ did
err in finding that Garcia performed all of her own housework, the record contains

substantial evidence to support the ALJ’s assessment that Garcia’s daily activities belie

an ability to work.1 Further, it was entirely appropriate for the ALJ to consider
Garcia’s daily-living activities and her demeanor at the hearing as factors in assessing

her credibility.2

          Garcia contends that the ALJ’s hypothetical example to the vocational expert

erroneously failed to take into account her persistent dizziness, which limits her
productivity, and her obesity and fatigue, which result in significant limitations in her
ability to lift, sit, stand, and walk. There is substantial evidence to support the ALJ’s
rejection of Garcia’s asserted limitations. The challenged hypothetical example was

not improper.3
          Garcia further attacks as inconsistent the ALJ’s findings that she was restricted

from exposure to hazardous machinery, but that she could return to her job as a
vegetable sorter, which requires working around a moving conveyor belt. In light of
the testimony of the vocational expert that a claimant restricted from working with

hazardous machinery could perform work as a vegetable sorter, the record contains

substantial evidence to support the ALJ’s finding that Garcia was capable of
performing her past relevant work as vegetable sorter.


          1
           See Bowling v. Shalala, 
36 F.3d 431
(5th Cir. 1994).
          2
           Leggett v. Chater, 
67 F.3d 558
(5th Cir. 1995); see also Villa v. Sullivan, 
895 F.2d 1019
(1990).
          3
           
Bowling, 36 F.3d at 434
.
                                                   2
      Garcia next contends that the ALJ should have found her disabled under Grid
Rule 201.17 of the Medical-Vocational Guidelines. As the Medical-Vocational

Guidelines become relevant, however, only upon a finding that the claimant cannot

perform her past relevant work, the ALJ did not err in failing to apply the Medical-
Vocational Guidelines.4

      Finally, there is no merit to Garcia’s contention that the ALJ failed to consider

the report of Dr. Luis M. Benavides. The doctor’s medical report is specifically

addressed in the ALJ’s opinion.
      The judgment appealed is AFFIRMED.




      4
       Fields v. Bowen, 
805 F.2d 1168
(5th Cir. 1986).
                                             3

Source:  CourtListener

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