Rivera v. Barnhart ( 2003 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 02-10527
_____________________
ANNA A. RIVERA,
Plaintiff-Appellant,
versus
JO ANNE B. BARNHART, Commissioner of Social Security
Defendant-Appellee.
__________________________________________________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:01-CV-171-C
_________________________________________________________________
March 12, 2003
Before REAVLEY, JOLLY and JONES, Circuit Judges.
PER CURIAM:*
Anna Rivera appeals the district court’s affirmance of the
Commissioner’s determination that she is not entitled to disability
insurance benefits. Rivera’s hypertension, hip and leg pain, and
glaucoma did not meet the requirements of any listed impairment.
A vocational expert testified and the administrative law judge
(ALJ) found that while Rivera could not perform her past work, she
retained the functional capacity to perform light work available in
the national economy, specifically work as a silver wrapper, cloth
*
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this opinion should not be published and is not precedent except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.
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folder and folding machine operator. Rivera argues the
determination that she had the residual functional capacity to do
other work is not supported by substantial evidence because the
hypothetical question posed to the vocational expert did not
include the glaucoma which she alleged in her written submissions.
She argues that because the ALJ explicitly found that her glaucoma
was a severe impairment, he was required to include a visual
limitation description in his hypothetical. We affirm.
Judicial review of the Commissioner’s decision to deny
benefits is limited to determining whether that decision is
supported by substantial evidence and whether the proper legal
standards were applied. Harris v. Apfel, 209 F.3d 413, 417 (5th
Cir. 2000). A finding of no substantial evidence is appropriate
only where no credible evidence or medical findings support the
decision. Id. This court will not re-weigh the evidence or
substitute its judgment for that of the Commissioner. Id.An ALJ may properly rely on the testimony of a vocational
expert in determining that a claimant can perform other work if the
hypothetical posed to the vocational expert incorporates reasonably
all disabilities recognized by the ALJ, and the claimant or his
representative is afforded the opportunity to correct deficiencies
in the ALJ’s question by mentioning or suggesting to the vocational
expert any purported defects in the hypothetical. Boyd v. Apfel,
239 F.3d 698, 706-07 (5th Cir. 2001). Rivera argues that the
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vocational expert’s testimony was not reliable because it did not
include any limitations caused by her glaucoma. Although Rivera
has a slight impairment in far acuity and an unspecified field loss
due to glaucoma, which the ALJ acknowledged, there is no testimony
or medical evidence that the glaucoma caused limitations on her
ability to work. When questioned as to what caused her to be
unable to work, Rivera did not mention her glaucoma. Rivera was
given an opportunity to cross-examine the vocational expert and
introduce visual limitations into the hypothetical. Her cross-
examination did not include any references to her glaucoma or to
the fact that the hypothetical should have contained a visual
limitation.
Rivera argues that despite her failure to set forth testimony
concerning her glaucoma at the hearing, the ALJ bore a
responsibility to fully and fairly develop the record concerning
the glaucoma. She argues that because the ALJ found her glaucoma
to be a severe impairment, a residual functional capacity finding
which included no visual limitations was “patently self-
contradictory.” Rivera’s argument fails, however, because “not all
‘severe’ impairments are disabling.” Harrell v. Bowen, 862 F.2d
471, 479 (5th Cir. 1988); Shipley v. Secretary, 812 F.2d 934, 935
(5th Cir. 1987). Moreover, although the ALJ has a duty to fully
develop the facts, the claimant has the burden of proving his
disability. Leggett v. Chater, 67 F.3d 558, 566 (5th Cir. 1995).
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Rivera did not meet that burden. The determination that Rivera
retains the ability to do light work is supported by the credible
testimony of the vocational expert and the medical evidence.
Even if the ALJ had erred in not including a visual limitation
in the hypothetical, this court will not reverse the ALJ’s decision
for failure to fully and fairly develop the record unless Rivera
can show that she was prejudiced by such error. See Carey v.
Apfel, 230 F.3d 131, 142 (5th Cir. 2000). To establish prejudice,
Rivera must demonstrate that she could and would have adduced
evidence that might have altered the result. Id. The vocational
expert testified that Rivera could perform work as a silver wrapper
or folding machine operator. Neither of these jobs requires far
acuity, depth perception, color vision, or field of vision. There
is no evidence in the record that Rivera’s glaucoma would affect
her ability to perform these jobs. Given the record before the
court, Rivera has not shown that she was prejudiced by the ALJ’s
failure to include a visual limitation in his hypothetical.
For the foregoing reasons the judgment below is
AFFIRMED.
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