Nicholson v. Massanari ( 2001 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 00-31370
Summary Calendar
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PATRICIA A. NICHOLSON,
Plaintiff-Appellant,
versus
LARRY G. MASSANARI, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
____________________________________________________________
Appeal from the United States District Court
for the Western District of Louisiana
(99-CV-2074)
____________________________________________________________
May 18, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Patricia Nicholson appeals the district court’s judgment
affirming the denial of her application for Social Security
disability benefits and supplemental security income. She
contends: (1) the administrative law judge (“ALJ”) committed
reversible error in failing, at step two of the sequential
evaluation process, to consider the severity of her urinary
incontinence and in failing to apply the proper legal standard to
*
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this opinion should not be published and is not precedent except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.
the implicit conclusion that her incontinence was not a severe
impairment; (2) the ALJ’s refusal to secure a medical-assessment
form from the consulting orthopedist was reversible error; (3) the
orthopedic consultant’s report does not support the ALJ’s
disability determination; and (4) the ALJ committed reversible
error in refusing to obtain vocational testimony.
Based upon our review of the record, the district court did
not err in concluding there was substantial evidence to support the
Commissioner’s decision that Nicholson’s incontinence did not
significantly limit her performance of past relevant work. Cf.
Crowley v. Apfel, 197 F.3d 194, 198-99 (5th Cir. 1999) (substantial
evidence did not support determination that claimant’s incontinence
did not significantly affect his ability to perform sedentary
work). Moreover, the ALJ did not apply the wrong legal standard,
because the decision to deny Nicholson benefits was not based on a
finding of non-severity. See Jones v. Bowen, 829 F.2d 524, 526 n.1
(5th Cir. 1987); Lopez v. Bowen, 806 F.2d 632, 634 n.1 (5th Cir.
1986); cf. Stone v. Heckler, 752 F.2d 1099, 1100 (5th Cir. 1985)
(disability claim disposition based on non-severity of the
impairment). The district court properly applied the substantial-
evidence standard to affirm the Commissioner’s determination on
this issue.
Nor did the ALJ commit reversible error in determining that
additional medical information from the consulting orthopedist was
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not necessary. The ALJ had adequate facts before her on which to
make an informed decision about Nicholson’s disability status;
therefore, she did not fail to fully develop the record. See Kane
v. Heckler, 731 F.2d 1216, 1219 (5th Cir. 1984). Furthermore,
Nicholson has not shown that the additional evidence would have
altered the disability determination; therefore, she has not
demonstrated the requisite prejudice. Id. at 1219-20.
Notwithstanding that Nicholson’s work as a fry cook may have
required “constant” bending, she is not precluded from performing
all past relevant work as a cook, which, by her own admission,
required only “occasional” bending. See Jones, 829 F.2d at 527 n.2
(claimant’s previous job as a sitter requiring lifting in excess of
20 pounds did not preclude claimant from other jobs as sitter which
did not impose duties beyond his residual functional capacity).
Finally, Nicholson’s contention that vocational testimony was
required is without merit. When, as here, the Commissioner finds
that a claimant can perform past relevant work, vocational
testimony is not required. Williams v. Califano, 590 F.2d 1332,
1334 (5th Cir. 1979).
AFFIRMED
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