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Lopez v. Barnhart, 01-50764 (2002)

Court: Court of Appeals for the Fifth Circuit Number: 01-50764 Visitors: 21
Filed: Mar. 08, 2002
Latest Update: Feb. 21, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 01-50764 Summary Calendar THERESA LOPEZ, Plaintiff-Appellant, versus JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee. - Appeal from the United States District Court for the Western District of Texas USDC No. A-00-CV-61-SC - March 7, 2002 Before DAVIS, BENAVIDES and CLEMENT, Circuit Judges. PER CURIAM:* Theresa Lopez argues that the Administrative Law Judge’s (ALJ’s) determination that she is not disabled is
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                 IN THE UNITED STATES COURT OF APPEALS
                         FOR THE FIFTH CIRCUIT



                             No. 01-50764
                           Summary Calendar



THERESA LOPEZ,

                                           Plaintiff-Appellant,

versus

JO ANNE B. BARNHART,
COMMISSIONER OF SOCIAL
SECURITY,

                                           Defendant-Appellee.

                       --------------------
          Appeal from the United States District Court
                for the Western District of Texas
                      USDC No. A-00-CV-61-SC
                       --------------------
                           March 7, 2002

Before DAVIS, BENAVIDES and CLEMENT, Circuit Judges.

PER CURIAM:*

     Theresa Lopez argues that the Administrative Law Judge’s

(ALJ’s) determination that she is not disabled is not supported

by substantial evidence in the record.    Relying on the general

classification of jobs in the Dictionary of Occupational Titles

(DOT), Lopez contends that the vocational expert’s opinion that

there are jobs existing that she is physically capable of

performing was erroneous.



     *
        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that this opinion should not be published and is not precedent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. 01-50764
                                  -2-

     The vocational expert listed a number of existing jobs that

the expert opined Lopez was physically capable of performing, but

also acknowledged that some of the jobs within those categories

involved physical activities beyond Lopez’s limitations.

However, the vocational expert further testified that there were

a substantial number of jobs within those categories that Lopez

was physically able to perform.    Thus, there was no actual

conflict between the expert’s opinion and the general job

classifications contained in the DOT.       See Carey v. Apfel, 
230 F.3d 131
, 146 (5th Cir. 2000).    Further, Lopez’s counsel did not

raise the DOT issue during the hearing and did not cross-examine

the expert on her opinion regarding Lopez’s residual functional

capacity to perform the listed jobs.    There is an adequate basis

in the record to support the ALJ’s reliance on the vocational

testimony.   
Id. Lopez also
argues that the hypothetical presented to the

vocational expert did not encompass or properly portray all of

her disabilities.    The hypothetical question presented by the ALJ

to the vocational expert reasonably incorporated all of Lopez’s

disabilities supported by the medical evidence and the testimony

in the record.     See Boyd v. Apfel, 
239 F.3d 698
, 707 (5th Cir.

2001).

     Lopez also argues that the ALJ failed to give proper

consideration to her complaints of pain.      It is within the ALJ’s

discretion to discredit complaints of pain based on the

complainant’s testimony of her daily activities in combination

with the medical records.     See Griego v. Sullivan, 
940 F.2d 942
,
                           No. 01-50764
                                -3-

945 (5th Cir. 1991).   The ALJ’s determination that Lopez’s pain

was not debilitating is supported by the objective medical

evidence reflecting that her rheumatoid arthritis condition

remained stable and that her pain was reasonably controlled by

medication.   See Johnson v. Bowen, 
864 F.2d 340
, 348 (5th Cir.

1988).   It was also supported by Lopez’s testimony regarding her

ability to perform daily household chores that would have been

precluded by debilitating pain.

     The decision of the ALJ is supported by substantial evidence

in the record.   The decision of the Commissioner to deny Lopez

disability benefits is AFFIRMED.

Source:  CourtListener

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