Filed: Aug. 31, 1995
Latest Update: Mar. 02, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 95-50042 (Summary Calendar) ARTURO S. MARTINEZ, Plaintiff-Appellant, versus SHIRLEY S. CHATER, Commissioner of Health and Human Services, Defendant-Appellee. Appeal from the United States District Court for the Western District of Texas (July 10, 1995) Before DUHÉ, WIENER and STEWART, Circuit Judges. PER CURIAM: Plaintiff-Appellant Arturo S. Martinez appeals from the district court's affirmance of the Commissioner's affirmance of de
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 95-50042 (Summary Calendar) ARTURO S. MARTINEZ, Plaintiff-Appellant, versus SHIRLEY S. CHATER, Commissioner of Health and Human Services, Defendant-Appellee. Appeal from the United States District Court for the Western District of Texas (July 10, 1995) Before DUHÉ, WIENER and STEWART, Circuit Judges. PER CURIAM: Plaintiff-Appellant Arturo S. Martinez appeals from the district court's affirmance of the Commissioner's affirmance of den..
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-50042
(Summary Calendar)
ARTURO S. MARTINEZ,
Plaintiff-Appellant,
versus
SHIRLEY S. CHATER,
Commissioner of Health
and Human Services,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Texas
(July 10, 1995)
Before DUHÉ, WIENER and STEWART, Circuit Judges.
PER CURIAM:
Plaintiff-Appellant Arturo S. Martinez appeals from the
district court's affirmance of the Commissioner's affirmance of
denial of Social Security benefits to Martinez pursuant to
42 U.S.C. § 405(g). On appeal Martinez insists that a remand to
the district court for an evidentiary hearing is necessary and that
the Commissioner's determination is not supported by substantial
evidence. Finding frivolous the suggestion that a remand for
adducing additional evidence is necessary, and finding substantial
evidence in the record to support the Commissioner's decision, we
affirm the rulings of the district court.
I
FACTS AND PROCEEDINGS
Martinez applied for disability benefits and Supplemental
Security Income in January 1992, alleging that he had been disabled
since November 7, 1991, due to diabetes, a hernia, and kidney and
stomach problems. The Commissioner concluded that Martinez was not
disabled and denied relief. The Commissioner also denied Martinez'
request for reconsideration.
A hearing was held before an administrative law judge (ALJ) on
March 6, 1993, at which Martinez was represented by counsel, and at
which Martinez, his daughter, a medical expert, and a vocational
expert testified. At the conclusion of the hearing, the ALJ
referred Martinez to an internist for a consultative examination.
After reviewing the additional evidence, the ALJ determined that
Martinez was not disabled within the meaning of the Social Security
Act (the Act). The Appeals Council denied Martinez' request for
review, and the decision of the ALJ became the final decision of
the Commissioner under 42 U.S.C. § 405(g).
Martinez filed suit in the district court seeking judicial
review of the Commissioner's decision. The Commissioner answered
the complaint and both parties filed briefs. The magistrate judge
recommended that the complaint be dismissed, finding substantial
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evidence to support the Commissioner's determination that Martinez
was not disabled. After a de novo review, the district court
adopted the magistrate judge's factual findings and legal
conclusions, overruled Martinez' objections to the recommendation,
and dismissed the complaint. This appeal ensued.
II
ANALYSIS
A. Legal Background
Appellate review of the Commissioner's denial of disability
benefits is limited to determining whether (1) the decision is
supported by substantial evidence and (2) proper legal standards
were used to evaluate the evidence. Villa v. Sullivan, 895 F.2d
1019, 1021 (5th Cir. 1990). If the Commissioner's findings are
supported by substantial evidence, then the findings are conclusive
and the Commissioner's decision must be affirmed. 42 U.S.C.
§ 405(g); Richardson v. Perales,
402 U.S. 389, 390 (1971).
"Substantial evidence is more than a scintilla, less than a
preponderance, and is such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion."
Villa, 895 F.2d
at 1021-22 (internal quotations and citations omitted).
In evaluating a disability claim, the Commissioner must follow
a five-step sequential process to determine whether (1) the
claimant is presently working; (2) the claimant's ability to work
is significantly limited by a physical or mental impairment;
(3) the claimant's impairment meets or equals an impairment listed
in the appendix to the regulations; (4) the impairment prevents the
3
claimant from doing past relevant work; and (5) the claimant cannot
presently perform relevant work. See Muse v. Sullivan, 925 F.2d
785, 789 (5th Cir. 1991); 20 C.F.R. § 404.1520. In this case, at
the fourth step of the sequential evaluation process, the ALJ found
that Martinez could perform his past relevant work.
We weigh four elements of proof when determining whether there
is substantial evidence of disability: (1) objective medical
facts; (2) diagnoses and opinions of treating and examining
physicians; (3) the claimant's subjective evidence of pain and
disability; and (4) his age, education, and work history.
Wren v. Sullivan, 925 F.2d 123, 126 (5th Cir. 1991). We may not,
however, reweigh the evidence or try the issues de novo. Cook v.
Heckler,
750 F.2d 391, 392 (5th Cir. 1985). The Commissioner,
rather than the courts, must resolve conflicts in the evidence.
See Patton v. Schweiker,
697 F.2d 590, 592 (5th Cir. 1983).
B. Necessity of Remand
Martinez suggests that a remand is required because the
consultative medical examination ordered by the ALJ failed to
include blood tests and x-rays suggested by the medical expert. At
the hearing, medical expert Dr. William Daily recommended that
Martinez have a follow-up examination which should include a
complete blood count, SMA-20 blood chemistry tests, and chest x-
rays.1 Dr. Gregory Moore's subsequent consultative medical
1
Dr. Daily also recommended follow-up psychological or
psychiatric testing if the medical evaluation revealed no problems.
Although this testing apparently never took place, Martinez does
not suggest that the failure to evaluate his mental condition was
error. Accordingly, this issue is waived. Brinkmann v. Abner,
4
examination included these tests; therefore, Martinez' argument is
frivolous.
Martinez also suggests that the case should be remanded so
that he can have a stress test and arteriogram. The suggestion is
frivolous too. Dr. Daily did not state that these tests were
necessary to evaluate Martinez' condition.
C. Evidence of Disability
Age, Education, and Work History
Martinez was 52 years old when the hearing was held. He has
only a first-grade education and is not fluent in English. His
past employment experience includes work as a machine sander and a
fruit picker. Both occupations are considered medium work.
Subjective Evidence
Martinez testified that he is always very tired and his back
and legs hurt; that his legs are numb when he first wakes in the
morning; that his shoulders hurt; and that he frequently becomes
dizzy and drowsy from his diabetes. According to Martinez, his
doctor has told him that if his "sugar does not go down," he will
have to take insulin shots. He stated that he has to get up to go
to the bathroom approximately eight times a night; that he
sometimes has blurry vision and problems breathing; and that he
takes pills for chest pain and has problems with his bladder
leaking.
Martinez grocery shops while his grandson pushes the cart. It
hurts his back to bend and his hands are stiff, but he can perform
813 F.2d 744, 748 (5th Cir. 1987); see Fed. R. App. P. 28(a)(5).
5
small motor tasks. He stated that he washes dishes, mops and
sweeps, cleans the bathroom, and cooks. He spends most of his days
watching TV and resting.
Martinez' daughter, Rose Mary Pantoja, testified that Martinez
used to be a hard worker who maintained his yard and car, but he
can no longer do this because of his back. Ms. Pantoja and other
members of her family do her parents' heavy housework and yard work
because Mr. and Mrs. Martinez are unable to do it themselves.
Objective Medical Facts
It is undisputed that Martinez suffers from non-insulin
dependent diabetes and arthritis of the spine. The extent of his
impairment from these conditions is disputed.
Physicians' Opinions
At the hearing, Martinez introduced a report dated September
1, 1992, from Dr. Yeung Chan, his treating physician, which stated
that Martinez was unable to perform any type of work because he
suffered from severe arthritis of the spine. Dr. Chan's records
cited a December 9, 1991, x-ray indicating degenerative spinal
arthritis, but the x-ray was not submitted with his report.
Dr. Chan's notes also indicated that Martinez suffered from
diabetes melitis.
Martinez also introduced a report of a consultative
examination performed on March 16, 1992, by Dr. Kenneth L. Long,
which stated that Martinez suffered from:
1. Alleged diabetes without documentation. No
laboratory data requested. The patient is on
no medication for this problem.
6
2. Alleged low back problems without
physical or x-ray findings of
significance.
3. Alleged stomach problems (mainly
abdominal bloating and bowel gas)
without documentation.
Dr. Long noted that x-rays revealed "normal (spinal) alignment,
normal disc spaces, and . . . joints . . . within normal limits.
Processes are intact. There are . . . small anterior marginal
osteophytes at L3 and L4 but the lumbar spine is otherwise within
normal limits."
Before Martinez testified, the medical expert, Dr. Daily,
expressed his opinion that, although there was "some conflict in
the medical evidence," Martinez' medical records indicated that he
could perform medium work. After Martinez testified, Dr. Daily
qualified his opinion by stating that, considering Martinez'
testimony as credible, additional medical tests would be required
to determine whether Martinez was capable of medium work.
Dr. Daily stated that Martinez' medical records were
sufficient for him to express a confident opinion as to all of
Martinez' claimed impairments except his complaints of fatigue.
Dr. Daily opined that Martinez' diabetes could not cause the
extreme symptoms of chronic fatigue that Martinez described.
Dr. Daily suggested that Martinez be referred for a consultative
examination to determine whether he suffered from chronic fatigue
syndrome. Dr. Daily found no musculoskeletal disability or
indication of a coronary problem. In response to questions by
Martinez' attorney, Dr. Daily qualified his prior testimony by
7
agreeing that Martinez' diabetes could be partially responsible for
his complaints of fatigue and poor bladder control; however,
Dr. Daily indicated that further testing would be required to
resolve the issue.
Dr. Moore performed a consultative medical exam which included
the tests recommended by Dr. Daily. Dr. Moore reported that
Martinez suffered from arthritis of the spine but that he had
"no significant physical abnormalities nor evidence of functional
limitations . . . ." He further reported that, although Martinez
had a history of non-insulin dependent diabetes with a history of
poor control, Dr. Moore found no evidence of end organ damage due
to the diabetes.
Based on his examination, Dr. Moore determined that Martinez
had no impediments to his ability to lift, carry, stand, walk, or
sit; that he could climb, crouch, kneel, and crawl occasionally;
and that he had no other limitations on his work-related
activities. This determination supports the ALJ's finding that
Martinez could perform his past relevant work as a sander or fruit
picker.
Without discussing the results of the follow-up consultative
medical examination, Martinez cites Dr. Daily's statement at the
hearing that he would not "send [Martinez] out today to do medium
work," arguing that there is "no evidence" to show that Martinez
can perform medium work. Martinez misses the point and
misconstrues Dr. Daily's statement. Dr. Daily did not state that
Martinez was incapable of medium work; he stated that without
8
further testing he could not determine whether Martinez was capable
of medium work. Thus, Martinez' argument that there is no evidence
to support the finding of no disability is incorrect.
Martinez also insists that the district court erred by
disregarding the evidence of his treating physician, Dr. Yeung
Chan. Although not conclusive, an evaluation by the claimant's
treating physician should be accorded great weight. Greenspan v.
Shalala, 38 F.3d 232, 237 (5th Cir. 1994), cert. denied, No. 94-
8717,
1995 WL 156211 (U.S. May 15, 1995). A treating physician's
opinion on the nature and severity of a patient's impairment will
be given controlling weight if it is "well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is not
inconsistent with . . . other substantial evidence." 20 C.F.R.
§ 404.1527(d)(2). Even though the opinion and diagnosis of a
treating physician should be afforded considerable weight in
determining disability, "the ALJ has sole responsibility for
determining a claimant's disability status." Moore v. Sullivan,
919 F.2d 901, 905 (5th Cir. 1990). "`[T]he ALJ is free to reject
the opinion of any physician when the evidence supports a contrary
conclusion.'" Bradley v. Bowen,
809 F.2d 1054, 1057 (5th Cir.
1987) (citation omitted).
Dr. Chan's opinion that Martinez is totally disabled is not
entitled to controlling weight because Dr. Chan failed to provide
a medical explanation for his opinion, and because Dr. Chan's
opinion is inconsistent with the opinions of Drs. Long and Moore,
which were based on clinical test results.
9
As substantial evidence supports the determination that
Martinez is not disabled, the Commissioner's decision must stand.
42 U.S.C. § 405(g); Richardson, 402 U.S. at 390;
Villa, 895 F.2d at
1021-22.
AFFIRMED.
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