McCuller v. Barnhart , 72 F. App'x 155 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
August 15, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
____________________ Clerk
No. 02-30771
____________________
BILLY JOE MCCULLER II
Plaintiff - Appellant
v.
JO ANNE BARNHART, Commissioner of Social Security
Defendant - Appellee
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Louisiana
No. CV 01-2050 LC
_________________________________________________________________
Before KING, Chief Judge, DENNIS, Circuit Judge, and LYNN, District
Judge.*
PER CURIAM:**
The plaintiff-appellant appeals the judgment of the district
court affirming the final decision of the commissioner of social
security denying the plaintiff’s application for disability
benefits. Because the record contains substantial evidence in
*
United States District Judge Barbara M.G. Lynn of the
Northern District of Texas, sitting by designation.
**
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that this opinion should not be published and is not precedent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.
1
support of the denial of benefits, we affirm.
I.
PROCEDURAL HISTORY
In September 1998, Billy Joe McCuller, II applied for social
security disability benefits. As alleged, he became disabled on
March 25, 1998, while performing wellhead maintenance during the
course of his employment as an oilfield service technician.1 After
his application was denied at two administrative levels, a hearing
before an administrative law judge (“ALJ”) was held on December 1,
1999. McCuller was twenty-six years old at the time of this
hearing.
On February 23, 2000, the ALJ found that McCuller was capable
of performing work of light exertion and was thus not disabled.
McCuller appealed this decision, and the appeals council considered
additional evidence submitted with McCuller’s request for review –
namely, a letter from his treating physician, Dr. Bernauer.
However, on August 27, 2001, the appeals council denied McCuller’s
request for review; the decision of the ALJ thus became the final
decision of the commissioner of social security (the
“Commissioner”).
On October 9, 2001, McCuller appealed this decision to the
district court. On July 8, 2002, after a de novo review, the
1
McCuller injured his back by falling onto his left side
to avoid a 200-pound falling wellhead.
2
district court accepted the magistrate judge’s report and
recommendation of May 20, 2002, in which the magistrate judge
recommended that the Commissioner’s decision be affirmed. McCuller
appeals from this judgment.
II.
REVIEW OF THE COMMISSIONER’S FINAL DECISION
A. Standard of Review
In cases appealing a district court’s affirmation of the
Commissioner’s decision, we review the final decision of the
Commissioner, not the decision of the district court. See Cieutat
v. Bowen, 824 F.2d 348, 359 (5th Cir. 1987). Our review of the
final decision of the Commissioner denying disability benefits, “is
limited to determining whether the decision is supported by
substantial evidence in the record and whether the proper legal
standards were used in evaluating the evidence.” Villa v.
Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990) (citation omitted).
“Substantial evidence is more than a scintilla and less than a
preponderance.” Muse v. Sullivan, 925 F.2d 785, 789 (5th Cir.
1991). A finding of no substantial evidence is appropriate only if
there is a “conspicuous absence of credible choices” or “no
contrary medical evidence.” Haywood v. Sullivan, 888 F.2d 1463,
1466 (5th Cir. 1989); Richardson v. Perales, 402 U.S. 389, 401
(1971) (stating that “substantial evidence” is evidence consisting
of “such relevant evidence as a reasonable mind might accept as
3
adequate to support a conclusion”). If supported by substantial
evidence, the ALJ’s findings in the Commissioner’s final decision
are conclusive. Id. at 390. We may not reweigh the evidence, try
the issues de novo, or substitute our judgment for that of the ALJ.
Id.B. Framework for Evaluating Whether a Claimant is Disabled
The Social Security Act defines disability as a medically
determinable physical or mental impairment lasting at least twelve
months that prevents the claimant from engaging in substantial
gainful activity. 42 U.S.C. § 423(d)(1)(A) (2000). Title 20 of
the Code of Federal Regulations, part 404, sets forth a five-step
sequential process the ALJ must follow to evaluate whether the
claimant has a disability. 20 C.F.R. § 404.1520(a)-(f) (2003);
Muse, 925 F.2d at 789. The claimant bears the burden as to the
first four steps. Id. First, a claimant must not be presently
working. 20 C.F.R. § 404.1520(b). Second, a claimant must
establish that he has an “impairment or combination of impairments
which significantly limits [his] physical or mental ability to do
basic work activities.” Id. § 404.1520(c). Third, to secure a
finding of disability without consideration of age, education, and
work experience, a claimant must establish that his impairment
meets or equals an impairment enumerated in the listing of
impairments in the appendix to the regulations. Id. § 404.1520(d).
Fourth, a claimant must establish that his impairment prevents him
4
from doing past relevant work. Id. § 404.1520(e). Finally, the
burden shifts to the Commissioner to demonstrate that the claimant
can perform relevant work. If the Commissioner meets this burden,
the claimant must then prove that he cannot in fact perform the
work suggested. Id. § 404.1520(f).
C. Analysis of the Findings of the ALJ
Following this sequential process, the ALJ, whose findings
became the final decision of the Commissioner, found that “the
claimant has a severe impairment but retains the residual
functional capacity to perform work existing in significant numbers
in the national and local economies.” In reaching this conclusion,
the ALJ made several findings related to each step in the five-step
sequential process. McCuller objects to the majority of these
findings as not supported by substantial evidence.
(1) Objections to the Step 3 Findings of the ALJ
The Commissioner found at Step 2 that McCuller had medically
determinable severe impairments consisting of “herniated discs,
status [post] discectomy and fusion at the L3-4 and L4-5 levels and
placement of screw fixation due to lumbar instability.” However,
as to Step 3 of the process, the ALJ determined that the
impairments were not severe enough to meet or medically equal one
of the impairments listed in Appendix 1, Subpart P, of the
5
regulations.2 On appeal, McCuller contends that this finding is
erroneous because medical evidence, including a letter submitted to
the appeals council by Dr. Bernauer, demonstrates that his back
impairments met or equaled the impairments listed in section 1.04B
of the listed impairments.
Section 1.04B, in relevant part, provides:
Disorders of the spine (e.g., herniated nucleus pulposus,
spinal arachnoiditis, spinal stenosis, osteoarthritis,
degenerative disc disease, facet arthritis, vertebral
fracture), resulting in compromise of a nerve root
(including the cauda equina) or the spinal cord. With:
B. Spinal arachnoiditis, confirmed by an
operative note or pathology report of tissue
biopsy, or by appropriate medically acceptable
imaging, manifested by severe burning or
painful dysesthesia, resulting in the need for
changes in position or posture more than once
every 2 hours.
20 C.F.R., Subpt. P., App. 1, § 1.04.
McCuller must provide medical findings that support all of the
criteria for the Step 3 equivalent impairment determination.
Selders v. Sullivan, 914 F.2d 614, 619 (5th Cir. 1990). Here,
McCuller identifies no medical evidence that he suffered from
2
The Code section setting forth Step 3 of the process
provides, in relevant part:
When your impairment(s) meets or equals a listed
impairment in Appendix 1. If you have an impairment(s)
which meets the duration requirement and is listed in
Appendix 1 or is equal to a listed impairment(s), we will
find you disabled without considering your age,
education, and work experience.
20 C.F.R. § 404.1520(d).
6
spinal arachnoiditis, or its equivalent, nor does he cite to any
medical evidence demonstrating that he was required to change his
posture or position more than once every two hours. Thus,
substantial evidence supports the ALJ’s finding that McCuller’s
impairments do not meet or equal this listed impairment.
(2) Objections to the RFC Determination of the ALJ
Because McCuller did not meet his burden of establishing that
his impairment met or equaled an impairment enumerated in the
listing of impairments in the appendix to the regulations, the ALJ
was required to make a determination regarding McCuller’s residual
functional capacity (“RFC”) – that is, a determination regarding
the range of work activities McCuller can perform despite his
impairments when considering objective evidence such as age,
education and work experience.3 As to McCuller’s RFC
determination, the ALJ states:
[McCuller] underwent a course of physical therapy and
received epidural steroid injections with Dr. James
Perry. Although he was referred for another course of
3
The Code section relating to the RFC determination
provides, in relevant part:
Your impairment(s) must prevent you from doing past
relevant work. If we cannot make a decision based on
your current work activity or on medical facts alone, and
you have a severe impairment(s), we then review your
residual functional capacity and the physical and mental
demands of the work you have done in the past. If you
can still do this kind of work, we will find that you are
not disabled.
20 C.F.R. § 404.1520(e).
7
physical therapy, Dr. Perry noted in August 1998 that he
had not attended same and was visiting another physician,
apparently on the recommendation of his attorney. Dr.
Perry noted that the new physician had recommended a
myelogram, but opined that based on the claimant’s MRI
and physical examination, neither a myelogram nor
surgical treatment was recommended. He further noted
that the claimant had been resistant throughout his
treatment program and apparently unhappy and, thus, he
recommended that he follow-up elsewhere. Also in August
1998, Dr. Dale Bernauer noted that the claimant had a
decreased range of motion, but with negative straight leg
raises, strong muscles, intact nerve signs and reflexes,
and negative x-rays. Nevertheless, after the myelogram
was performed, reflecting finding similar to the prior
MRI, the claimant underwent a lumbar fusion and
discectomy at the L3-4 and L4-5 levels on November 24,
1998.
In March 1999, Dr. Bernauer noted that the claimant was
improving, but continued to complain of bilateral leg and
low back pain. With only those notations for support, he
then opined that the claimant would be unable to work for
approximately one year[] from surgery. In May 1999, a CT
scan revealed that the view of the L3-4 and L4-5 levels
were obscured due to surgical changes, but with an
otherwise normal lumbar spine. The following month, an
MRI revealed an unremarkable cervical spine. No other
significant medical documentation was provide until
September 16, 1999, wherein the claimant was diagnosed
with lumbar instability and underwent surgery for
placement of a pedicle screw fixation with spinal link
systems from L3 through L5 levels.
. . .
After carefully considering the entire record in this
matter, including the testimony of the claimant . . . I
agree with the non-examining state consultant [who found
in a RFC assessment form that the claimant was capable of
performing a light level of work, with occasional
postural limitations] and find the claimant not disabled.
McCuller maintains that the RFC determination by the ALJ that
McCuller retained the ability to perform light work with occasional
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postural limitations is not supported by substantial evidence.4 We
disagree.
As stated, on review, we do not inquire as to whether
conflicting evidence exists in the record; rather, we probe the
record to ensure only that the ALJ’s findings are supported by
substantial evidence. See Muse, 925 F.2d at 790 (“The ALJ as
factfinder has the sole responsibility for weighing the evidence
and may choose whichever physician’s diagnosis is most supported by
the record.”)(quoting Pierre v. Sullivan, 884 F.2d 799, 803 (5th
Cir. 1989)).
Here, the ALJ carefully considered all of the evidence before
him and found McCuller’s testimony and the conclusory opinion of
Dr. Bernhauer that McCuller could not work for one year from the
date of his surgery to be less than credible in the face of
conflicting medical evidence from Dr. Perry. In these
4
Light work is defined by the regulations as:
[L]ifting no more than 20 pounds at a time with
frequent lifting or carrying of objects weighing up to
10 pounds. Even though the weight lifted may be very
little, a job is in this category when it requires a
good deal of walking or standing, or when it involves
sitting most of the time with some pushing and pulling
of arm or leg controls. To be considered capable of
performing a full or wide range of light work, you must
have the ability to do substantially all of these
activities. If someone can do light work, we determine
that he or she can also do sedentary work, unless there
are additional limiting factors such as loss of fine
dexterity or inability to sit for long periods of time.
20 C.F.R. § 404.1567(b).
9
circumstances, we hold that substantial evidence supports the RFC
determination by the ALJ. Masterson v. Barnhart, 309 F.3d 267, 272
(5th Cir. 2002) (stating that the ALJ has the responsibility to
resolve questions of credibility and questions arising from
conflicting medical opinions).5
(3) Objections to the Step 5 Findings of the ALJ
Regarding Step 4 in the sequential process, the ALJ agreed
with McCuller that McCuller’s impairments rendered him unable to
perform his past relevant work as an oilfield service technician
and oilfield service supervisor. However, regarding the Step 5
determination, the ALJ found that the Commissioner met her burden
of demonstrating that McCuller is able to perform a significant
number of other jobs existing in the national and local economy
pursuant to Rule 202.21 of the Medical-Vocational Guidelines (the
5
McCuller further contends that in making his RFC
determination, the ALJ erred in relying on the state consultant’s
RFC conclusions. In so contending, McCuller maintains that the
state consultant’s RFC conclusions were made prior to McCuller’s
second surgery and are thus not reliable. We find this argument
unpersuasive. The responsibility for determining a claimant’s
RFC rests soundly with the ALJ, not the state agency medical
consultant. Here, the ALJ considered evidence regarding the
alleged condition of McCuller both before and after the second
surgery and then made an independent RFC determination based on
his observations. McCuller also contends that the ALJ was
required to order the government to produce testimony from a
medical consultant or expert who had examined McCuller after his
second back surgery. However, the ALJ’s duty to undertake a full
inquiry “‘does not require a consultative examination at
government expense unless the record establishes that such an
examination is necessary to enable the [ALJ] to make the
disability decision.’” Pierre, 884 F.2d at 802. On this record,
the ALJ did not abuse his discretion in concluding that such an
examination was not “necessary.”
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“Guidelines”).6 Specifically, the ALJ stated:
The claimant is presently twenty-six years of age,
defined as a younger individual, with a high school
education, plus one semester of vocational training in
air conditioning and refrigeration. He testified at the
hearing that he spends part of his day playing on the
computer and the internet. Thus, he has at least some
computer skills. Based on the favorable vocational
factors of the claimant’s young age, education, and work
history, the [Guidelines] were consulted. In
promulgating the [Guidelines], administrative notice has
been taken of the numbers of unskilled jobs that exist
throughout the national economy at various functional
levels, with approximately 1,600 unskilled sedentary and
light occupations recognized. Based on the evidence, the
aforementioned residual functional capacity and the
favorable vocational factor of his age, Rule 202.21 of
the Medical-Vocational Guidelines, 20 CFR, Part 404,
Subpart P, Appendix 2, would direct a conclusion of “Not
disabled.” However, because the record reflects that the
claimant may also suffer[] from certain non-exertional
limitations, such as the ability to only occasionally
perform postural activities, such as kneeling, crouching,
crawling or climbing, Rule 202.21 would also need to be
6
The Code section setting forth Step 5 of the process
provides, in relevant part:
Your impairment(s) must prevent you from doing any other
work.
(1) If you cannot do any work you have done in the
past because you have a severe impairment(s),
we will consider your residual functional
capacity and your age, education, and past
work experience to see if you can do other
work. If you cannot, we will find you
disabled.
(2) If you have only a marginal education, and
long work experience (i.e., 35 years or more)
where you only did arduous unskilled physical
labor, and you can no longer do this kind of
work, we use a different rule (see
§ 404.1562).
20 C.F.R. § 404.1520(f)(1)-(2).
11
applied as a framework. Based on the entire record,
including the claimant’s educational background, his
apparent computer skills, and his testimony that he had
not taken any pain medication in the three weeks prior to
the hearing, I find that even when Rule 202.21 is applied
as a framework, these non-exertional limitations do not
significantly erode the occupational base recognized by
the [Guidelines].
McCuller argues that the ALJ erred in making these Step 5 findings
based solely on the Guidelines without the benefit of vocational
expert testimony.
“Nonexertional limitations” are work limitations, other than
strength demands, that affect a claimant’s ability to meet the
demands of jobs, such as reaching, handling, stooping, crawling, or
crouching. 20 C.F.R. § 404.1569a(c)(iv). Here, the ALJ concluded
that McCuller suffered from “certain non-exertional limitations,”
but determined that “these non-exertional limitations do not
significantly erode the occupational base recognized by the
[Guidelines].” Where, as here, the claimant suffers from “non-
exertional impairments [that] do not significantly affect [the
claimant’s] residual functional capacity, the ALJ may rely
exclusively on the Guidelines in determining whether there is other
work available that the claimant can perform.” Selders, 914 F.2d
at 618 (emphasis added). The ALJ did not err in relying
exclusively on the Guidelines.
III.
CONCLUSION
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The judgment of the district court upholding the final
decision of the Commissioner is AFFIRMED.
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