Filed: Apr. 17, 2006
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 April 17, 2006 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III )))))))))))))))))))))))))) Clerk No. 05-51219 Summary Calendar )))))))))))))))))))))))))) BEVERLY HARPER, 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. 1:04-CV-378 Before SMITH, GARZA, AND PRADO, Circuit
Summary: United States Court of Appeals Fifth Circuit F I L E D IN THE UNITED STATES COURT OF APPEALS April 17, 2006 FOR THE FIFTH CIRCUIT Charles R. Fulbruge III )))))))))))))))))))))))))) Clerk No. 05-51219 Summary Calendar )))))))))))))))))))))))))) BEVERLY HARPER, 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. 1:04-CV-378 Before SMITH, GARZA, AND PRADO, Circuit ..
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United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
April 17, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
)))))))))))))))))))))))))) Clerk
No. 05-51219
Summary Calendar
))))))))))))))))))))))))))
BEVERLY HARPER,
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. 1:04-CV-378
Before SMITH, GARZA, AND PRADO, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Beverly Harper challenges the district
court’s order affirming the Commissioner of Social Security’s
(“Commissioner”) decision to deny her claim for Social Security
disability benefits. Because the Commissioner’s decision is
supported by substantial evidence and comports with the relevant
legal standards, we AFFIRM the judgment of the district court.
*
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this opinion should not be published and is not precedent except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.
I. BACKGROUND
On February 1, 2000, Plaintiff-Appellant applied for Disability
Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”)
payments under the Social Security Act1 (“the Act”). She claimed
that her heart condition, hypothyroidism, goiter, depression, and
cardiac neurosis rendered her disabled. The Commissioner denied
Plaintiff-Appellant’s application on March 17, 2000. On May 1,
2000, the Commissioner denied Plaintiff-Appellant’s request for
reconsideration.
Plaintiff-Appellant then requested a hearing before an
Administrative Law Judge (“ALJ”). At the time of the hearing,
Plaintiff-Appellant was forty years old, and had a high school
education, which she completed by attending special education
classes. Plaintiff-Appellant testified that while she can both
read and write, she is better at writing. She also testified that
her last permanent job was as a home health care attendant, and that
she has also worked as a hotel maid. Plaintiff-Appellant stated
that she stopped working following open heart surgery. At the
hearing, she also complained of chest pain, back pain, pain on her
side, crying spells, and problems sleeping. In addition, Plaintiff-
Appellant explained that she fears dying in her sleep and that she
incessantly worries about whether she has locked her doors.
1
Plaintiff-Appellant’s claims depend on sections 223 and
1614(a)(3)(A) of the Act. Section 223 is codified at 42 U.S.C. §
423. Section 1614(a)(3)(A) is codified at 42 U.S.C. § 1382.
2
Plaintiff-Appellant testified that she lives with her mother.
Although she primarily spends her days watching television and
sleeping, she also does some cooking and cleaning, and accompanies
her mother to the grocery store.
Dr. James Armstrong, a board certified general surgeon, also
testified at the hearing. He explained that Plaintiff-Appellant’s
primary impairment was her heart condition. However, Dr. Armstrong
testified that Plaintiff-Appellant’s heart condition did not impose
any severe limitations. He opined that Plaintiff-Appellant could
still perform light work that entailed lifting twenty pounds
occasionally and 10 pounds frequently, standing for six hours in an
eight-hour workday, and unlimited bending and stooping. Dr.
Armstrong also stated that Plaintiff-Appellant’s goiter was not
limiting in any way. With regard to depression, Dr. Armstrong
testified that the condition was noted only a few times in the
medical record, and when mentioned, there was no elaboration.
Vocational expert Billy Brown also testified at the hearing.
He asserted that an individual of Plaintiff-Appellant’s age and
education could perform the following jobs: companion domestic
service, nursery school attendant, light office cleaner, and food
preparation worker. He also stated that all of these jobs (which
range from light and unskilled to light and semiskilled) existed in
significant numbers in the national and local economy.
At the conclusion of the hearing, Plaintiff-Appellant’s counsel
requested a psychological evaluation with testing to determine
3
Plaintiff-Appellant’s intelligence quotient (“IQ”). After
questioning Brown, however, the ALJ did not order the evaluation.
Brown testified that all of the jobs that Plaintiff-Appellant could
perform required an IQ above 70. Additionally, he stated that the
semiskilled jobs he suggested were comparable to positions
Plaintiff-Appellant held in the past and that none of the unskilled
positions he mentioned required IQs higher than that required by
Plaintiff-Appellant’s previous jobs.
After hearing testimony and reviewing the medical record
evidence, the ALJ denied Plaintiff-Appellant’s application, finding
that Plaintiff-Appellant was not disabled within the meaning of the
Act. The ALJ wrote that although Plaintiff-Appellant had severe
impairments due to pace maker placement, atrial defect repair, and
hypothyroidism, these impairments were not significant enough to
equal one of the impairments listed in 20 C.F.R. Part 404, Subpart
P, Appendix 1. The ALJ also discredited Plaintiff-Appellant’s
allegations concerning the extent of her limitations. Finally,
while finding that Plaintiff-Appellant could not perform her past
relevant work, the ALJ held that she could perform a full range of
light work. Plaintiff-Appellant appealed to the Appeals Council,
which concluded that no basis existed for review of the ALJ’s
decision.
On June 28, 2004, Plaintiff-Appellant filed a complaint in the
district court, seeking review of the Commissioner’s denial of DIB
4
and SSI payments.2 On July 25, 2005, the magistrate judge entered
judgment in favor of the Commissioner. This appeal followed.
II. STANDARD OF REVIEW
Our review of the Commissioner’s denial of SSI benefits is
restricted to considering whether the decision is supported by
substantial evidence in the record and whether the proper legal
standards were applied. See Villa v. Sullivan, 895 F.2d 1019, 1022
(5th Cir. 1990). “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.”
Hames v. Heckler,
707 F.2d 162, 164 (5th Cir. 1983). In applying
this standard, while we must review the entire record to determine
if such evidence is present, “we may neither reweigh the evidence
in the record nor substitute our judgment for the Secretary’s.”
Villa v. Sullivan,
895 F.2d 1019, 1022 (quoting Hollis v. Bowen,
837
F.2d 1378, 1383 (5th Cir. 1988))(citations omitted).
III. DISCUSSION
The Commissioner uses a sequential five-step inquiry3 to
2
The case was referred to a magistrate judge for resolution
upon consent of the parties pursuant to 28 U.S.C. § 636 (c),
Federal Rule of Civil Procedure 73, and Rule 1(i) of Appendix C
of the Local Rules of the United States District Court for the
Western District of Texas.
3
The five-step analysis requires the Commissioner to
consider: 1) whether the claimant is presently engaging in
substantial gainful activity, 2) whether the claimant has a
severe impairment, 3) whether the impairment is listed, or
equivalent to an impairment listed in appendix I of the
5
evaluate disability claims under 42 U.S.C. § 423(d)(1)(A).4 Perez
v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005). The ALJ found that
Plaintiff-Appellant was not disabled because her impairments did not
prevent her from performing substantial gainful activity. On
appeal, Plaintiff-Appellant challenges three aspects of the ALJ’s
decision. First, she argues that the ALJ erred by not ordering a
psychological evaluation that was requested based on evidence of
mental impairment. Next, Plaintiff-Appellant contends that the
ALJ’s finding that she could perform a full range of light work is
not supported by substantial evidence. Finally, Plaintiff-Appellant
asserts that the Commissioner employed incorrect legal standards in
determining her RFC, weighing the evidence supplied by her treating
regulation, 4) whether the impairment prevents the claimant from
doing past relevant work, and 5) whether the impairment prevents
the claimant from performing any other substantial gainful
activity. 20 C.F.R. § 404.1520. Perez v. Barnhart,
415 F.3d 457,
461 (5th Cir. 2005). The claimant bears the burden of proof on
the first four steps of the inquiry.
Id. Then, the burden
shifts to the Commissioner on the final step to demonstrate that
the impairment does not prevent the claimant from performing
other work.
Id. “Once the Commissioner makes this showing, the
burden shifts back to the claimant to rebut this finding.”
Id.
(quoting Newton v. Apfel,
209 F.3d 448, 453 (5th Cir. 2000)).
4
“Disability” is defined as the “inability to engage in any
substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected
to result in death or which has lasted or can be expected to last
for a continuous period of not less than 12 months. Newton v.
Apfel, 209 F.3d 448, 452 (5th Cir. 2000)(quoting 42 U.S.C. §
423(d)(1)(A)).
6
physician, and assessing her own credibility.5 We will consider
each claim in turn.
A. The ALJ was not required to order a consultative
examination.
Plaintiff-Appellant alleges that because there was sufficient
evidence of mental impairment, the ALJ wrongfully refused to order
a consultative psychological evaluation at the government’s expense.
“The ALJ owes a duty to a claimant to develop the record fully
and fairly to ensure that his decision is an informed decision based
on sufficient facts.” Brock v. Chater, 84 F.3d 726, 728 (5th Cir.
1996). This Court will find that the ALJ’s decision was not
supported by substantial evidence if the claimant demonstrates “(1)
that the ALJ failed to fulfill his duty to adequately develop the
record, and (2) that the claimant was prejudiced thereby.”
Id. A
consultative evaluation, however, is only required “when the
claimant presents evidence sufficient to raise a suspicion
concerning a non-exertional impairment.”
Id. The decision to order
a consultative examination is within the ALJ’s bailiwick. Anderson
5
Before moving from the third step to step four of the five-
step inquiry, the Commissioner assesses the claimant’s residual
functional capacity (“RFC”) to determine the most the claimant
can still do notwithstanding his physical and mental limitations.
20 C.F.R. § 404.1520(a). Perez, 415 F.3d at 461-62. The
claimant’s RFC is used at both the fourth and fifth steps of the
sequential analysis. 20 C.F.R. § 404.1520(a)(4).
Perez, 415
F.3d at 462. At step four, the claimant’s RFC is utilized to
determine if the claimant can still do his past relevant work.
20 C.F.R. § 404.1520(a)(4)(iv). At the fifth step, the
claimant’s RFC is used to determine whether the claimant can
adjust to other types of work. 20 C.F.R. § 404.1520(a)(4)(v).
7
v. Sullivan, 887 F.2d 630, 634 (5th Cir. 1989). Isolated comments
are insufficient, without further support, to raise a suspicion of
non-exertional impairment.
Brock, 84 F.3d at 728.
The evidence demonstrates that Plaintiff-Appellant’s alleged
intellectual limitations had not precluded her from engaging in
substantial gainful activity in the past. As the district court
noted, notwithstanding her allegedly low intellectual capacity,
Plaintiff-Appellant previously worked as a home health care
attendant, an occupation requiring both reading and writing.
Therefore, assuming arguendo that the ALJ failed to fulfill his duty
to adequately develop the record, Plaintiff-Appellant cannot
demonstrate that she was prejudiced by the error.
With regard to cardiac neurosis, Plaintiff-Appellant did not
list that condition in her original application for benefits and
never sought treatment for it. The only reference to cardiac
neurosis in the record is in the medical expert’s description of its
symptoms upon being questioned by Plaintiff-Appellant’s attorney.
Therefore, we find that Plaintiff-Appellant’s allegations of cardiac
neurosis are the kind of isolated comments that are insufficient to
raise a suspicion of non-exertional impairment. See, id.
Consequently, the ALJ was not required to order a consultative
examination in order to fulfill his duty to adequately develop the
8
record.6
B. The ALJ’s assessment of Plaintiff-Appellant’s RFC is
supported by substantial evidence and comports with the
relevant legal standards.
Next, Plaintiff-Appellant contends that the ALJ’s finding that
she could perform a full range of light work is not supported by
substantial evidence. Specifically, Plaintiff-Appellant argues that
the ALJ: (1) failed to address the fact that she obtained a high
school education through special education courses; (2) wrongfully
rejected evidence suggesting that she was not able to work for a
6
We will not address Plaintiff-Appellant’s argument that
the ALJ erred by discrediting her testimony concerning the extent
of her limitations because it is raised for the first time on
appeal. See Greenberg v. Crossroads Sys., Inc., 364 F.3d 657,
669 (5th Cir. 2004)(“Arguments not raised in the district court
cannot be asserted for the first time on appeal.”).
We also note that the district court acknowledged that
Plaintiff-Appellant did not take exception to the ALJ’s findings
regarding depression. However, out of an abundance of caution,
we will briefly address this argument because the district court
discussed the ALJ’s findings regarding Plaintiff-Appellant’s
depression. The ALJ considered Plaintiff-Appellant’s depression
but declined to give much weight to the condition because there
was no longitudinal history of depression and Plaintiff-
Appellant’s physicians never referred her to a specialist.
Hence, the ALJ reasoned that Plaintiff-Appellant’s medical
sources did not think that the problem was significant.
Moreover, the ALJ noted that depression was only mentioned three
times in the medical record. Given the ALJ’s express
consideration of the Plaintiff-Appellant’s depression, the tenet
that the determination of whether or not to order a consultative
examination is within the ALJ’s discretion, and the fact that
depression was sparsely mentioned, we conclude that the ALJ was
not required to order a consultative examination. Furthermore,
there is no indication that Plaintiff-Appellant’s depression
inhibited substantial gainful activity.
9
year; and (3) failed to properly evaluate her mental limitations.7
We find that the ALJ’s assessment of Plaintiff-Appellant’s RFC is
supported by substantial evidence.
First, Plaintiff-Appellant argues that the ALJ failed to
address the limitations arising from her special education. Despite
her educational limitations, Plaintiff-Appellant worked as a home
health care attendant and a hotel maid before the onset of
disability. Plaintiff-Appellant has not provided any impact
evidence; that is, she has not shown how her ‘less-than-high-school’
education affects her ability to perform the jobs suggested by the
vocational expert, or how these jobs require more intellectual
ability than did her past relevant work as a home health care
attendant and a hotel maid. See Perez v. Barnhart, 415 F.3d at 464
(requiring appellant to demonstrate how his less-than-high-school
education affected his ability to perform the jobs suggested by the
vocational expert, or how those suggested jobs required more
intellectual ability than did his past relevant work).
Next, Plaintiff-Appellant suggests that the ALJ erred by
disregarding a January 2000, fill-in-the-blank note stating that she
was disabled and unable to return to work for one year. An ALJ may
ignore or give reduced weight to a physician’s opinions that are
brief and conclusory, not supported by medically acceptable clinical
7
In light of the discussion above regarding cardiac
neurosis and depression, we will not address Plaintiff-
Appellant’s claim regarding the ALJ’s failure to properly
evaluate those two mental limitations in determining her RFC.
10
laboratory diagnostic techniques, or otherwise unsupported by the
evidence. See id. at 466.
Considering the ALJ’s dependence on Dr. Armstrong’s testimony
that Plaintiff-Appellant’s heart condition did not impose any severe
limitations and the vocational expert’s testimony regarding the jobs
available to an individual of Plaintiff-Appellant’s age and
education, the ALJ’s assessment of Plaintiff-Appellant’s RFC is
supported by substantial evidence.
IV. CONCLUSION
Because we conclude that the Commissioner’s decision denying
Plaintiff-Appellant benefits is supported by substantial evidence
and comports with the relevant legal standards, we AFFIRM the
district court’s decision.
11
