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Cooper v. Barnhart, 02-30417 (2002)

Court: Court of Appeals for the Fifth Circuit Number: 02-30417 Visitors: 16
Filed: Dec. 20, 2002
Latest Update: Feb. 21, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT No. 02-30417 Summary Calendar SHIRLEY J. COOPER, 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 Louisiana USDC No. 5:00-CV-2550 - December 19, 2002 Before GARWOOD, JOLLY and SMITH, Circuit Judges. PER CURIAM:* Shirley J. Cooper appeals the district court's judgment affirming the Social Security Commissioner’s
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               IN THE UNITED STATES COURT OF APPEALS
                       FOR THE FIFTH CIRCUIT



                           No. 02-30417
                         Summary Calendar



SHIRLEY J. COOPER,

                                         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 Louisiana
                      USDC No. 5:00-CV-2550
                       --------------------
                         December 19, 2002

Before GARWOOD, JOLLY and SMITH, Circuit Judges.

PER CURIAM:*

     Shirley J. Cooper appeals the district court's judgment

affirming the Social Security Commissioner’s (the Commissioner)

decision to deny her disability benefits.   She argues that the

Administrative Law Judge’s (“ALJ”) determination at step 4 of the

disability analysis that she could return to her prior employment

as a security guard and as a Sam’s Wholesale greeter was not




     *
        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that this opinion should not be published and is not precedent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. 02-30417
                                 -2-

supported by substantial evidence.   She further argues that a

finding of disability is directed at step 5.

     Our review of the Commissioner’s decision is limited to

determining whether substantial evidence in the record supports

the decision and whether the Commissioner applied the proper

legal standards.    See Greenspan v. Shalala, 
38 F.3d 232
, 236 (5th

Cir. 1994).   The determination whether a claimant can perform

past relevant work may rest on either (1) descriptions of past

work as actually performed or (2) as generally performed in the

national economy.    Villa v. Sullivan, 
895 F.2d 1019
, 1022 (5th

Cir. 1990).

     We hold that the ALJ’s determination that Cooper’s security

guard job required only a sedentary exertion level is supported

by Cooper’s description in her work history report of that past

work as actually performed, which report was left unchallenged by

counsel at the administrative level.    See, e.g., 
id. Cooper’s arguments
that she is unable to perform her past work as a

greeter and that she should be declared disabled at step 5 are

therefore moot.

     We reject Cooper’s suggestion that it was inappropriate for

the ALJ to consider the opinion of a vocational expert (VE) at

step 4.   We have never held as such and have condoned the use of

a VE to supply information about the claimant’s past work.     See,

e.g., Shave v. Apfel, 
238 F.3d 592
, 594 (5th Cir. 2001); Legget

v. Chater, 
67 F.3d 558
, 563-64 (5th Cir. 1995).   We further
                           No. 02-30417
                                -3-

reject Cooper’s assertion that her security guard job should not

be considered past relevant work because it was performed between

12 and 14 years prior to the ALJ’s decision.   See 20 C.F.R.

§ 404.1565(a) (work experience applies when it was done within

the last 15 years); see also Bowman v. Heckler, 
706 F.2d 564
, 567

(5th Cir. 1983) (Secretary did not improperly rely on claimant’s

employment as a domestic 20 years before in determining that she

could return to former employment).

     We additionally reject Cooper’s argument that her security

guard job did not constitute substantial gainful activity.     Her

earnings between 1984 to 1986 averaged over $300 per month and

are therefore presumptive proof of substantial gainful activity

under the regulations.   See 20 C.F.R. § 404.1574(b)(2)(i) & Table

1; see White v. Heckler, 
740 F.2d 390
, 394 (5th Cir. 1984)

(regulations set forth earnings presumed to be evidence of

substantial gainful activity).

     Cooper’s argument that a finding that sedentary security

work was available in the workforce was a necessary part of the

disability determination is meritless; the issue whether

substantial gainful work is available in the national economy is

relevant only at step 5 of the analysis, and the ALJ ended the

analysis at step 4.

     AFFIRMED.

Source:  CourtListener

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