Filed: Jan. 24, 2007
Latest Update: Feb. 21, 2020
Summary: United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS FIFTH CIRCUIT January 24, 2007 Charles R. Fulbruge III Clerk No. 06-30615 Summary Calendar GINA MARIE CLARY, 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 (5:05-CV-324) Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges. PER CURIAM:* Gina Marie Clary contests a district
Summary: United States Court of Appeals Fifth Circuit F I L E D UNITED STATES COURT OF APPEALS FIFTH CIRCUIT January 24, 2007 Charles R. Fulbruge III Clerk No. 06-30615 Summary Calendar GINA MARIE CLARY, 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 (5:05-CV-324) Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges. PER CURIAM:* Gina Marie Clary contests a district c..
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United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT January 24, 2007
Charles R. Fulbruge III
Clerk
No. 06-30615
Summary Calendar
GINA MARIE CLARY,
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
(5:05-CV-324)
Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Gina Marie Clary contests a district court decision affirming
the Social Security Administration’s (SSA) determination that she
is not disabled. Our review is limited to: whether the
administrative law judge (ALJ) used the proper legal standard to
evaluate the evidence; and whether the decision is supported by
substantial evidence in the record. E.g., Greenspan v. Shalala, 38
F.3d 232, 236 (5th Cir. 1994). A finding of insubstantial evidence
* 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opinion should not be published and is not precedent except under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.
is proper only if no credible evidence or medical findings exist to
support the decision. Johnson v. Bowen,
864 F.2d 340, 343-44 (5th
Cir. 1988).
Clary asserts the ALJ erred in: concluding her knee injuries
were not “major dysfunction of a joint”; determining she can
perform the full range of sedentary work; and rejecting her
testimony as not credible.
Clary’s impairments include a torn meniscus in her left knee,
severe osteoarthritis in both knees, and morbid obesity. She filed
applications for disability insurance benefits and supplemental
social security income, pursuant to Titles II and XVI of the Social
Security Act, respectively. The ALJ applied the requisite five-
step disability evaluation, 20 C.F.R. §§ 404.1567(a) and
416.927(a), to find Clary: (1) has not engaged in gainful activity
since the alleged onset of disability; (2) has bilateral
osteoarthritis and morbid obesity; (3) does not have an impairment
presumed to create disability; (4) has been unable to perform her
past work as a waitress; and (5) retains “the residual functional
capacity to perform the full range of sedentary work”. Because she
is capable of performing sedentary work, the ALJ concluded Clary
was not disabled and denied benefits. The district court affirmed.
In maintaining the ALJ erred in not finding her knee injuries
constituted “major dysfunction of a joint” for purposes of step
three in the five-step evaluation process (impairment presumed to
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create disability), Clary relies on 20 C.F.R. Pt. 404, Subpt. P,
App. 1, § 1.02 to assert her injuries “meet or equal” the
requirements therein. Listing 1.02 (major dysfunction of a joint)
states, inter alia: a dysfunction is “characterized by gross
anatomical deformity (e.g., subluxation, contracture, bony or
fibrous ankylosis, instability) and chronic joint pain and
stiffness with signs of limitation of motion”. 20 C.F.R. Pt. 404,
Subpt. P, App. 1, § 1.02.
Nothing in Clary’s medical reports supports a finding that her
knee injuries constitute a gross anatomical deformity. Although
evidence in the record may satisfy the limitation-of-motion
criteria, Clary has failed to meet her burden of furnishing
specific medical evidence showing gross anatomical deformity.
Sullivan v. Zebley, 493 U.S. 521, 530 (1990) (claimant has burden
of showing she manifests all Listing 1.02 criteria).
In contending the ALJ’s full-range-of-sedentary-work
determination is not supported by substantial evidence,
specifically, she challenges the ALJ’s concluding she “has no
nonexertional limitations which impact her ability to perform
work”. Pointing to lumbar flexion and extension ranges provided in
one of her medical reports, Clary claims her inability to stoop is
a non-exertional limitation impacting her work ability. The
medical report Clary cites makes no mention, however, of stooping;
and, as the district court made clear, no record evidence indicates
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Clary has, or ever complained to a physician of, a stooping
problem.
Along this line, Clary maintains: because she was not
represented by counsel before the SSA, the ALJ had a heightened
duty to develop the record by exploring all relevant facts; and,
had the ALJ fulfilled this duty, he would have discovered Clary’s
lumbar restrictions were abnormal, possibly preventing her from
being able to stoop.
This contention is unavailing. Even assuming, arguendo, the
claimed ALJ’s heightened duty extended to making such contingent
diagnostic inferences, Clary concedes the ALJ could not have known
whether she could never, or only occasionally, stoop. The ALJ
would need a consultative medical evaluation to determine this.
Our precedent, however, requires such further development of the
record “only when the claimant presents evidence sufficient to
raise a suspicion concerning a non-exertional impairment”. Brock
v. Chater, 84 F.3d 726, 728 (5th Cir. 1996). Isolated comments in
the record are insufficient, without further support, to raise a
suspicion of non-exertional impairment. Pierre v. Sullivan,
884
F.2d 799, 802-03 (5th Cir. 1989).
Considering the absence of any medical finding that Clary is
incapable of stooping, Clary’s failure to ever mention her alleged
stooping restrictions to the ALJ or any physician who made a record
report, and the SSA finding that stooping is only occasionally
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necessary for sedentary work, we conclude the ALJ’s decision was
supported by substantial evidence.
Next, in contending the ALJ erroneously rejected her testimony
as not credible, Clary assigns error to the ALJ’s not expressly
considering each of the seven factors discussed in 20 C.F.R. §
404.1529(c)(3) (providing a non-exhaustive list of relevant factors
to consider in determining whether an individual is disabled). As
the district court stated, however, Clary does not specify any
testimony the ALJ discredited, nor does she articulate any
prejudice stemming from the ALJ’s not addressing each regulatory
factor. Hillman v. Barnhart, 170 Fed.Appx. 909, 913 (5th Cir.
2006) (upholding ALJ ruling, even though ALJ did not address each
regulatory factor for claimant’s alleged disabling pain).
In denying benefits, the ALJ considered, inter alia, numerous
medical reports, medical evidence, Clary’s testimony, and the
testimony of her sister. Obviously, the evaluation of a claimant’s
subjective symptoms “is a task particularly within the province of
the ALJ”. Harrell v. Bowen, 862 F.2d 471, 480 (5th Cir. 1988)
(internal quotations omitted). The ALJ is not required to
mechanically follow every guiding regulatory factor in articulating
reasons for denying claims or weighing credibility. Falco v.
Shalala,
27 F.3d 160, 163 (5th Cir. 1994). Accordingly, we cannot
say the ALJ improperly evaluated Clary’s credibility.
AFFIRMED
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