Filed: Jul. 01, 2008
Latest Update: Feb. 21, 2020
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED July 1, 2008 No. 07-51176 Charles R. Fulbruge III Summary Calendar Clerk LARRY WEIMER, Plaintiff-Appellant, v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant-Appellee. Appeal from the United States District Court for the Western District of Texas USDC No. 1:06-CV-744 Before STEWART, OWEN, and SOUTHWICK, Circuit Judges. PER CURIAM:* Plaintiff-Appellant Larry Weimer appeals
Summary: IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit FILED July 1, 2008 No. 07-51176 Charles R. Fulbruge III Summary Calendar Clerk LARRY WEIMER, Plaintiff-Appellant, v. MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant-Appellee. Appeal from the United States District Court for the Western District of Texas USDC No. 1:06-CV-744 Before STEWART, OWEN, and SOUTHWICK, Circuit Judges. PER CURIAM:* Plaintiff-Appellant Larry Weimer appeals ..
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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 1, 2008
No. 07-51176 Charles R. Fulbruge III
Summary Calendar Clerk
LARRY WEIMER,
Plaintiff-Appellant,
v.
MICHAEL J. ASTRUE, Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:06-CV-744
Before STEWART, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Larry Weimer appeals the district court’s decision
upholding the Commissioner’s denial of his claim for Disability Insurance
Benefits (“DIB”) and Supplemental Security Income (“SSI”) payments under
Titles II and XVI of the Social Security Act (“Act”), 42 U.S.C. §§ 423 and
1382c(a)(3). For the following reasons, we AFFIRM.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-51176
A. Factual and Procedural Background
The record indicates that Weimer is a high school graduate with one year
of post-secondary education. He underwent treatment for a number of ailments
beginning in April 1997, after he was involved in a vehicle collision which
resulted in injuries to his right elbow and his cervical vertabrae. Before the
collision, Weimer was a school and commercial bus driver for a number of years.
Weimer’s treating physician for his elbow injury was Dr. Carolyn M. Hyde,
who treated Weimer from April 9, 1997 until January 27, 1999. On January 28,
1998, Dr. Hyde completed a “Texas Rehabilitation Commission Vocational Rehab
Division assessment of residual functioning capacity.” In the assessment, she
concluded that Weimer: (1) had a grade III open complex interacticular fracture
of the right distal humerus; (2) had the potential for arthritis and permanent
weakness, as well as limited motion of the right elbow; (3) had a cervical spine
fracture, which was treated by Dr. Matthew Hummell; (4) had incomplete
flexion/extension of the right elbow and some limitation in neck motion, which
might effect his ability to drive; (5) could perform standing and sitting up to
seventy-five percent of the time; (6) could walk up to one mile; (7) could climb
two flights of stairs; and (8) could bend limitedly. In March 1998, Dr. Hyde’s
records showed that despite some moderate pain, there was significant
improvement to Weimer’s right elbow, as well as improvements in other areas.
Dr. Hyde indicated that Weimer was “relatively functional” and that he “seemed
to be satisfied with the plan to retrain him for other work.” Dr. Hyde
documented continued improvements in Weimer’s elbow until his last visit in
January 1999. At that time, Dr. Hyde stated that he “is off work for any kind of
manual labor until I see him back in three months. It would be preferable that
he complete his training in school and get a nonphysical and nonmanual job
before I would release him to work.” This record reveals that this was the last
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No. 07-51176
contact that Weimer had with a physician before seeking DIB and SSI on March
4, 2003.
In Weimer’s applications for DIB and SSI, he alleged a disability onset
date of April 1, 2001. He listed a neck injury, a right arm injury, ulcers,
Charcot-Marie-Tooth disease, and a broken right collar bone as the illnesses,
injuries, or conditions limiting his ability to work. According to Weimer, these
impairments prevented him from climbing, riding a bicycle, or using a tractor
trailer. In addition, he stated that his right arm could not lift more than twenty
pounds nor move in a turning motion. He also stated that he could not drive and
that his balance is off when he sits or squats. He indicated that the conditions
first bothered him on April 6, 1997, and that he became unable to work because
of these impairments on April 1, 2001. He noted that he worked intermittently
with a “rehab agency” but completely stopped working due to the listed
impairments on January 1, 2003. Weimer had an in-person interview with a
Social Security representative in March 2003. In the report from this interview,
the representative noted that Weimer stated repeatedly that he had not been to
a doctor since 1999, including the emergency room.
On April 26, 2003, Weimer met with Dr. Jerrod Taylor for a consultive
exam. Weimer discussed his medical history with Dr. Taylor, including his
physical limitations as he saw them. Dr. Taylor concluded that Weimer’s
abdomen was normal and with no tenderness. He also noted that he had a
normal gait and station, that he was able to stand on heels and toes and bend
all the way over and return to standing upright without difficulty, that his motor
strength was 5/5, and that his straight-leg raising was negative. On April 27,
2003, Weimer underwent an x-ray of his cervical spine; it revealed no evidence
of fractures or subluxations, though it did show degenerative disc disease at the
C4-C5 and C6-C7 levels. Dr. Taylor concluded that there was “no objective
findings to suggest significant amount of functional impairment.” He also stated
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No. 07-51176
that Weimer could perform employment duties including sitting, standing,
ambulating, and lifting objects less than twenty pounds.
Thereafter, a number of physicians reviewed Dr. Taylor’s report and made
independent findings. Dr. Howard D. Bronstein concluded that Weimer had no
symptoms of an ulcer and noted that he was not on any ulcer medication.1
Similarly, Dr. Richard J. Gross reviewed Dr. Taylor’s report with regard to
Weimer’s complaints of ulcers and found no objective exam, x-ray, or endoscopic
evidence to demonstrate ulcer disease. He noted the abdominal exam Dr. Taylor
performed on Weimer was normal without any tenderness, and that Weimer had
not received any physician treatment for his ulcers since the time period from
1997 to 1999. Dr. Avigdor I. Niv concluded that there was no objective evidence
to support Weimer’s contention of Charcot-Marie-Tooth disease. He also found
no evidence of any musculoskeletal impairment to impact Weimer’s ability to
work. Dr. Reynaldo Salazar agreed that Weimer’s allegation of
Charcot-Marie-Tooth disease was not supported by the medical evidence
available. Dr. Salazar also concluded that Weimer’s allegations of neck and
right arm tenderness were not fully supported by the medical evidence in the
record or by an x-ray of the cervical spine.
Weimer’s applications were denied. On July 9, 2003, he submitted a
“Reconsideration Disability Report,” explaining that his conditions had
worsened. Weimer was denied reconsideration on August 11, 2003. Thereafter,
during the time period of August 2003 through January 2004, he sought medical
treatment at the Austin/Travis County Community Health Centers for his
complaints of peptic ulcer disease, right arm pain, and knee pain. Weimer
requested a hearing before an ALJ, which was conducted on May 12, 2004.
1
The record is unclear as to whether Weimer took ulcer medication at any time from
April 1997 though August 2003.
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No. 07-51176
Before the ALJ, Weimer testified that he had broken his hand several
times, which caused pain in cold weather. He indicated that he had broken his
shoulder in a bicycle accident in 1976. He also stated that everyone in his family
had Charcot-Marie-Tooth disease, and that the disease caused him to have leg
cramps and a chest deformity. He testified that he was developing problems
with his knees which prevented him from squatting; his ankles caused him pain;
and he had gout in his feet. He testified that his neck injuries arose as a result
of the accident in 1997. He stated that his ulcers caused vomiting as well as
sensitivity to certain smells. In addition, Weimer testified that he could walk up
to a half-mile and “sit fine.” However, he stated that Dr. Hyde advised him not
to lift more than twenty pounds, and that he could not do sideways repetitive
motions because of his shoulder.
Donna Yeager, a vocational expert, testified before the ALJ regarding
Weimer’s past work experience and answered hypotheticals presented to her by
the ALJ. Yeager testified that Weimer’s past work as a bus driver would be
classified as semi-skilled and medium in exertional demands. The ALJ then
asked Yeager to consider, hypothetically, whether there is work available for an
individual who possesses the strength to perform a wide range of light work, but
could not perform repetitive reaching or rotation of the right arm, or rotate his
head from right to left more than 1/3 of the work day, and with the ability to
perform only one or two step tasks. Yeager testified that although such an
individual would be precluded from work as a bus driver, he could work as a
counter clerk, a cashier II, or an investigator of dealer accounts. She testified
that a substantial number of jobs in each field existed nationally and in Texas.
The ALJ found that Weimer was not entitled to DIB or SSI, based on her
conclusion that there were significant jobs in the national economy as well as in
Texas that Weimer could perform. The Appeals Council denied Weimer’s
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No. 07-51176
request for review. The district court affirmed the decision of the ALJ. Weimer
timely appeals.
B. Discussion
On appeal, Weimer argues the following: (1) the ALJ failed to properly
consider the opinion of his treating physicians; (2) the ALJ failed to take into
account certain impairments in determining his residual functioning capacity;
and (3) the ALJ failed to make a determination regarding whether he could
sustain employment.
Under the Social Security Act, 42 U.S.C. § 405(g), this Court’s review of
the Commissioner’s final decision is limited to determining whether substantial
evidence supports the final decision, and whether the proper legal standards
were used to evaluate the evidence. Waters v. Barnhart, 276 F.3d 716, 718 (5th
Cir. 2002). Where the Commissioner’s findings are supported by substantial
evidence, they are conclusive and must be affirmed. Newton v. Apfel,
209 F.3d
448, 452 (5th Cir. 2000). “Substantial evidence is more than a scintilla, less than
a preponderance, and is such that a reasonable mind might accept it as adequate
to support a conclusion.” Randall v. Sullivan,
956 F.2d 105, 109 (5th Cir. 1992).
While we must scrutinize the record to determine the reasonableness of the
decision reached by the ALJ, we must not reweigh the evidence, try the issues
de novo, or substitute our judgment for that of the ALJ’s.
Id.
To evaluate a claim of disability, the ALJ conducts the following five-step
sequential inquiry: (1) if a claimant is engaged in substantial gainful activity, he
will not be found disabled regardless of the medical findings, 20 C.F.R §
404.1520(b); (2) a claimant who does not have a “severe impairment” will not be
found to be disabled, 20 C.F.R § 404.1520(c); (3) a claimant who meets the
criteria in the list of impairments in Appendix 1 of the regulations will be
considered disabled without consideration of vocational factors, 20 C.F.R §
404.1520(d); (4) if a claimant can still perform his past work, he is not disabled,
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No. 07-51176
20 C.F.R § 404.1520(e); and (5) if a claimant’s impairment prevents him from
performing his past work, other factors including age, education, past work
experience, and residual functional capacity must be considered to determine if
other work can be performed, 20 C.F.R. § 404.1520(f). In evaluating Weimer’s
claim under this five-step inquiry the ALJ determined that steps one through
four were met. However, the ALJ determined that based on a review of “all of
the medical opinions in the record regarding the severity of claimant’s
impairment,” Weimer had residual functional capacity sufficient “to perform a
wide range of light work.”
Weimer first contends that the ALJ failed to properly consider the opinion
of his treating physician. We disagree. This Court has consistently
acknowledged that the opinion of the treating physician is entitled to great
weight. See 20 C.F.R. § 404.1527(d)(2); Greenspan v. Shalala, 38 F.3d 232, 237
(5th Cir. 1994). Here, the ALJ not only summarized the medical evidence
contained in Dr. Hyde’s reports, but she also specifically indicated that her
residual functional capacity assessment was based on the opinion of Dr. Hyde.
In particular, the ALJ determined that:
[Weimer can] occasionally lift 20 pounds, frequently lift
10 pounds, stand/walk 6 hours in an 8-hour workday,
and sit 6 hours in an 8-hour workday. The claimant
should avoid repetitive reaching and rotation of right
arm with limited rotation of the head. The claimant
has the ability to perform simple, unskilled 1-2 step
repetitive tasks. This opinion is based on the opinion of
Dr. Hyde.
This finding is consistent with Dr. Hyde’s January 1999 assessment, which was
the last time Dr. Hyde met with Weimer regarding his ability to work. Because
the ALJ’s determination of Weimer’s residual functioning capacity relied heavily
on the opinion of his treating physician, Weimer’s contention that the ALJ failed
to accord proper weight to Dr. Hyde’s opinion is without merit.
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No. 07-51176
Second, Weimer asserts that the ALJ failed to consider certain
impairments identified by his treating physicians, specifically Dr. Hyde.
Contrary to Weimer’s assertion, the ALJ’s decision specifically discussed Dr.
Hyde’s reports and, as noted above, the ALJ stated that her determination of
Weimer’s residual functional capacity was based on the opinion of Dr. Hyde. In
support of his position, Weimer also directs this Court’s attention to a few brief,
generally illegible notations in the hundreds of pages of medical documentation
contained in the record. This evidence shows that Weimer sought treatment
from the Austin/Travis County Community Health Center for complaints of
peptic ulcers, right arm pain, and knee pain during the period from August 2003
to January 2004. According to Weimer, these notations support his contention
that he suffers from ulcers, arthritis, and knee and hand impairments.
The ALJ acknowledged that Weimer may experience some pain, but
concluded that the severity was not as great as Weimer had testified and that
his allegations of Charcot-Marie-Tooth disease and ulcers were not supported by
the totality of the medical evidence. See Chambliss v. Massanari, 269 F.3d 520,
522 (5th Cir. 2001) (noting that “[s]ubjective complaints of pain must also be
corroborated by objective medical evidence”). Our review of the record reveals
that substantial evidence supports the ALJ’s decision. Weimer did not present
any evidence to substantiate his claim that he has Charcot-Marie-Tooth disease.
Dr. Taylor’s findings do not support Weimer’s allegations of ulcers, and after a
physical examination of Weimer, he also concluded that there were“no objective
findings to suggest a significant amount of functional impairment. His ability
to perform employment duties that would include sitting, standing, ambulating,
and the lifting of objects less than twenty pounds appears to be grossly intact.
His cognition and motor skills are also normal.” These conclusions are also
consistent with Dr. Hyde’s opinion. Accordingly, based on this record, we cannot
conclude that the ALJ’s determination was unreasonable.
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No. 07-51176
Weimer next contends that because the ALJ erred in determining his
residual functional capacity, the ALJ’s finding that there are jobs in the national
economy that he could perform is also improper. Because we have already
determined that the ALJ’s finding regarding Weimer’s residual functional
capacity is supported by substantial evidence, this Court need only determine
whether the ALJ properly determined that there are jobs in the national
economy that Weimer can perform. We conclude that she did. In the present
case, the ALJ’s finding that Weimer could perform jobs in the national economy
was based on a hypothetical question presented to a vocational expert. This
Court has created a two-part test for determining whether an ALJ’s hypothetical
question constitutes reversible error: first, the question must include all
disabilities of the claimant recognized by the ALJ; and second, the claimant or
his representative should be allowed to correct deficiencies in the ALJ’s question.
Bowling v. Shalala, 36 F.3d 431, 435 (5th Cir. 1994). Here, we need not reach
the second prong of this test because we find that the hypothetical question
posed by the ALJ reasonably incorporates the disabilities recognized by the
ALJ.2 Specifically, the ALJ determined that Weimer could perform light work,
which involves lifting no more than 20 pounds at a time and frequent carrying
of objects weighing up to 10 pounds; he should avoid repetitive reaching and
rotation of the right arm with limited rotation of the head; and he has the ability
to perform simple, unskilled, one or two step repetitive acts. The hypothetical
questions included each of these factors.3 Cf. Morris v. Bowen,
864 F.2d 333, 336
2
However, it should be noted that Weimer’s representative was present when the ALJ
questioned Yeager, but did not attempt to correct any perceived deficiencies in the ALJ’s
hypothetical questions. Weimer himself was also present.
3
Specifically, the ALJ asked Yeager the following question:
The first hypothetical I want you to consider assumes the
strength to perform a wide range of light work. However, there
would be, with respect to the right arm, no repetitive reaching
or rotation of the right arm. In addition, the hypothetical
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No. 07-51176
(5th Cir. 1988) (holding that hypothetical question was “too abstract to reflect
[the claimant’s] particular disabilities”). Accordingly, the ALJ properly
concluded that there are jobs in the national economy that Weimer can perform.
Finally, Weimer asserts that the ALJ erred by failing to address whether
he is capable of sustained employment. This Court has previously acknowledged
that “in order to support a finding of disability, the claimant’s intermittently
recurring symptoms must be of a sufficient frequency or severity to prevent the
claimant from holding a job for a significant period of time.” Frank v. Barnhart,
326 F.3d 618, 619 (5th Cir. 2003). The Court has also noted that “[u]sually the
issue of whether the claimant can maintain employment for a significant period
of time will be subsumed in the analysis regarding the claimant’s ability to
obtain employment.”
Id. Only in rare circumstances is an ALJ required to make
a separate determination regarding whether a claimant is able to maintain
employment. See
id. (citing Watson v. Barnhart,
288 F.3d 212 (5th Cir.2002)).
This is not such a case. Accordingly, we hold that the ALJ’s finding regarding
Weimer’s residual functional capacity also included a determination that he
could in fact maintain employment.
C. CONCLUSION
For the foregoing reasons, we AFFIRM the ruling of the district court.
individual would, with respect to rotation of the head, would
perform no, no more than occasional or up to 1/3 of the day of
rotating the head to the right and the left. In other words, the
plaintiff would visually affix on a, an object in front of the
workstation and not laterally. . . . And finally the hypothetical
individual would perform one or two step repetitive tasks to
address a possible non-exertional impairment that we might find
out about later. Given these limitations, would any past work
be available.
10
