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Nicholson v. Massanari, 00-31370 (2001)

Court: Court of Appeals for the Fifth Circuit Number: 00-31370 Visitors: 45
Filed: May 18, 2001
Latest Update: Mar. 02, 2020
Summary: UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT _ No. 00-31370 Summary Calendar _ PATRICIA A. NICHOLSON, Plaintiff-Appellant, versus LARRY G. MASSANARI, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee. _ Appeal from the United States District Court for the Western District of Louisiana (99-CV-2074) _ May 18, 2001 Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges. PER CURIAM:* Patricia Nicholson appeals the district court’s judgment affirming the denial of her application
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                       UNITED STATES COURT OF APPEALS
                            FOR THE FIFTH CIRCUIT
                             ____________________

                                    No. 00-31370
                                  Summary Calendar
                             ____________________

                             PATRICIA A. NICHOLSON,

                                                             Plaintiff-Appellant,

                                       versus

                       LARRY G. MASSANARI, ACTING
                    COMMISSIONER OF SOCIAL SECURITY,

                                                             Defendant-Appellee.
____________________________________________________________

             Appeal from the United States District Court
                 for the Western District of Louisiana
                              (99-CV-2074)
____________________________________________________________
                                    May 18, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

     Patricia      Nicholson       appeals    the    district    court’s       judgment

affirming    the   denial     of    her   application     for      Social      Security

disability     benefits      and    supplemental       security     income.         She

contends:      (1) the administrative law judge (“ALJ”) committed

reversible     error    in   failing,     at    step   two    of   the    sequential

evaluation     process,      to    consider    the    severity     of    her   urinary

incontinence and in failing to apply the proper legal standard to



     *
      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.
the implicit conclusion that her incontinence was not a severe

impairment; (2) the ALJ’s refusal to secure a medical-assessment

form from the consulting orthopedist was reversible error; (3) the

orthopedic     consultant’s   report       does   not     support   the    ALJ’s

disability determination; and (4) the ALJ committed reversible

error in refusing to obtain vocational testimony.

     Based upon our review of the record, the district court did

not err in concluding there was substantial evidence to support the

Commissioner’s    decision    that   Nicholson’s        incontinence   did     not

significantly limit her performance of past relevant work.                     Cf.

Crowley v. Apfel, 
197 F.3d 194
, 198-99 (5th Cir. 1999) (substantial

evidence did not support determination that claimant’s incontinence

did not significantly affect his ability to perform sedentary

work).   Moreover, the ALJ did not apply the wrong legal standard,

because the decision to deny Nicholson benefits was not based on a

finding of non-severity.      See Jones v. Bowen, 
829 F.2d 524
, 526 n.1

(5th Cir. 1987); Lopez v. Bowen, 
806 F.2d 632
, 634 n.1 (5th Cir.

1986); cf. Stone v. Heckler, 
752 F.2d 1099
, 1100 (5th Cir. 1985)

(disability    claim   disposition        based   on    non-severity      of   the

impairment).    The district court properly applied the substantial-

evidence standard to affirm the Commissioner’s determination on

this issue.

     Nor did the ALJ commit reversible error in determining that

additional medical information from the consulting orthopedist was

                                      2
not necessary.     The ALJ had adequate facts before her on which to

make an informed decision about Nicholson’s disability status;

therefore, she did not fail to fully develop the record.            See Kane

v. Heckler, 
731 F.2d 1216
, 1219 (5th Cir. 1984).               Furthermore,

Nicholson has not shown that the additional evidence would have

altered    the   disability    determination;    therefore,   she   has   not

demonstrated the requisite prejudice.          
Id. at 1219-20.
       Notwithstanding that Nicholson’s work as a fry cook may have

required “constant” bending, she is not precluded from performing

all past relevant work as a cook, which, by her own admission,

required only “occasional” bending. See 
Jones, 829 F.2d at 527
n.2

(claimant’s previous job as a sitter requiring lifting in excess of

20 pounds did not preclude claimant from other jobs as sitter which

did not impose duties beyond his residual functional capacity).

       Finally, Nicholson’s contention that vocational testimony was

required is without merit.        When, as here, the Commissioner finds

that   a   claimant   can     perform   past   relevant   work,   vocational

testimony is not required.         Williams v. Califano, 
590 F.2d 1332
,

1334 (5th Cir. 1979).

                                                              AFFIRMED




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Source:  CourtListener

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