Filed: May 15, 2007
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT May 15, 2007 Charles R. Fulbruge III Clerk No. 06-51456 Summary Calendar JOHN GONZALES, Plaintiff-Appellant, versus MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee. - Appeal From the United States District Court For the Western District of Texas Civil Docket No. A-05-CA-977-AWA - Before JOLLY, DENNIS, and CLEMENT, Circuit Judges. PER CURIAM:* Plaintiff-appella
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT May 15, 2007 Charles R. Fulbruge III Clerk No. 06-51456 Summary Calendar JOHN GONZALES, Plaintiff-Appellant, versus MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee. - Appeal From the United States District Court For the Western District of Texas Civil Docket No. A-05-CA-977-AWA - Before JOLLY, DENNIS, and CLEMENT, Circuit Judges. PER CURIAM:* Plaintiff-appellan..
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT May 15, 2007
Charles R. Fulbruge III
Clerk
No. 06-51456
Summary Calendar
JOHN GONZALES,
Plaintiff-Appellant,
versus
MICHAEL J. ASTRUE,
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
--------------------
Appeal From the United States District Court
For the Western District of Texas
Civil Docket No. A-05-CA-977-AWA
--------------------
Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Plaintiff-appellant challenges the decision of the district
court that affirmed the Commissioner’s final decision to deny his
claim for disability insurance benefits. We affirm.
Gonzalez applied for benefits on May 19, 2003, alleging
disability due to a previous back injury. The Social Security
Administration denied benefits initially and on reconsideration.
He requested an hearing before an Administrative Law Judge (“ALJ”);
the ALJ denied Gonzalez’s benefits on July 27, 2005, finding that
*
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this opinion should not be published and is not precedent except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.
No. 06-51456
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Gonzalez was not disabled within the meaning of the Social Security
Act. The Appeals Council denied his request for review, making the
ALJ’s decision the final decision of the Commissioner. Gonzalez
now seeks judicial review, alleging four errors: (1) the ALJ did
not address his request for medical evaluations regarding an
asserted learning disability; (2) no substantial evidence supported
the ALJ finding that he retained the residual functional capacity
to perform his past relevant work; (3) the ALJ failed to properly
evaluate the treating physicians’ opinions; and (4) the ALJ failed
to properly evaluate his credibility.
We review the Commissioner’s final decision in a limited
fashion, as dictated by 42 U.S.C. § 405(g), determining only
whether: (1) substantial evidence of record supports the decision;
and (2) whether the decision comports with proper legal standards.
Carey v. Apfel, 230 F.3d 131, 135 (5th Cir. 2000). For the
evidence to be substantial, it must be relevant and sufficient for
a reasonable mind to support a conclusion; it must be more than a
scintilla but need not be a preponderance. Falco v. Shalala,
27
F.3d 160, 162 (5th Cir. 1994)(citing Richardson v. Perales,
402
U.S. 389, 401 (1971)).
The decision in the instant case comports with proper legal
standards. The ALJ implemented the five-step evaluation to
determine disability, as mandated by 20 C.F.R. § 416.920.1
1
At the first step, the claimant’s work activity, if any,
is considered. If he is doing substantial gainful activity, he
will not be found disabled. At the second step, the medical
severity of the claimant’s impairment(s) is considered. If he
No. 06-51456
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Additionally, there is substantial evidence in the record to
support the decision.
We agree with the district court that the ALJ was not
required to send Gonzalez for an evaluation of his learning
impairments. An ALJ can, in his discretion, order a consultative
examination but is not required to do so unless the medical record
reveals that such an exam is necessary for the ALJ to reach a
termination regarding disability. Anderson v. Sullivan, 887 F.2d
630, 634 (5th Cir. 1989). There is no evidence in the medical
record indicating Gonzalez suffered from a learning disability.
Although his attorney mentioned Gonzalez’s lack of reading
comprehension and focus, inability to write well and pay attention,
and limited ability to speak English, Gonzalez himself testified
does not have a severe medically determinable physical or mental
impairment that meets the duration requirement in § 416.909, or a
combination of impairments that is severe and meets the duration
requirement, he will not be found disabled. At the third step,
the medical severity of the claimant’s impairment(s) is also
considered. If he has an impairment(s) that meets or equals one
of the listings in appendix 1 to subpart P of part 404 of this
chapter and meets the duration requirement, he will be found
disabled. At the fourth step, the Commissioner’s assessment of
the claimant’s residual functional capacity and past relevant
work is considered. If the claimant can still do his past
relevant work, he will not be found disabled. At the fifth and
last step, the Commissioner’s assessment of the claimant’s
residual functional capacity and his age, education, and work
experience is considered to see if he can make an adjustment to
other work. If he can make an adjustment to other work, he will
not be found disabled. If he cannot make an adjustment to other
work, he will be found disabled. See 20 C.F.R. § 416.920. The
claimant bears the burden of proof at the first four steps. Muse
v. Sullivan,
925 F.2d 785, 789 (5th Cir. 1991). Because the ALJ
found that Gonzalez was able to perform his past relevant work,
it ruled that he was not disabled.
No. 06-51456
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that he could read, write, add, and subtract. He had no difficulty
in answering the ALJ’s questions. And his attorney asked him no
questions regarding this disability at the ALJ hearing. Further,
there is no evidence that any of Gonzalez’s physicians ever
reported a learning disability.
We also agree that substantial evidence supports the ALJ’s
finding that Gonzalez retained the residual functional capacity to
perform his past relevant work. Determining a claimant’s residual
functioning capacity is the ALJ’s responsibility, Ripley v.
Chater, 67 F.3d 552, 557 (5th Cir. 1994), and he has the authority
and duty to weigh the evidence and reach any conclusion supported
by substantial evidence. Holman v. Massanari,
275 F.3d 43 (5th
Cir. 2001). The ALJ performed a thorough review of Gonzalez’s
complaints and arguments, as well as of the medical record;
substantial evidence supports his conclusion on this issue.
The ALJ properly evaluated the opinion of Gonzalez’s treating
physicians. The Regulations provide that all medical opinions are
to be considered in determining a claimant’s disability status. 20
C.F.R. §§ 404.1527(b), 416.927(b); yet the ALJ is reserved the
opinion on ultimate issues, such as disability status. 20 C.F.R.
§§ 404.1527(e), 416.927(e)(1). The ALJ must consider all medical
findings and evidence that support a medical source’s assertion
that a claimant is disabled. Id. The ALJ in the case at bar
considered the information provided by all the doctors who opined
No. 06-51456
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on Gonzalez’s condition, and his determination was consistent with
their opinions.
Finally, we find no error in the ALJ’s findings regarding
Gonzalez’s credibility. Gonzalez’s testimony was very
inconsistent. For example, he alleged that his disability began in
2001, yet there was no evidence of medical treatment during that
year. Gonzalez’s testimony that he felt better when laying down
with his feet elevated contradicted his statement to his treating
doctor that he felt better when he was active. Additionally,
despite Gonzalez’s report of increased back pain in 2004, his
examining doctor recommended only over-the-counter pain relievers.
