Cooper v. Barnhart ( 2002 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-30417
Summary Calendar
SHIRLEY J. COOPER,
Plaintiff-Appellant,
versus
JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
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Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:00-CV-2550
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December 19, 2002
Before GARWOOD, JOLLY and SMITH, Circuit Judges.
PER CURIAM:*
Shirley J. Cooper appeals the district court's judgment
affirming the Social Security Commissioner’s (the Commissioner)
decision to deny her disability benefits. She argues that the
Administrative Law Judge’s (“ALJ”) determination at step 4 of the
disability analysis that she could return to her prior employment
as a security guard and as a Sam’s Wholesale greeter was not
*
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that this opinion should not be published and is not precedent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. 02-30417
-2-
supported by substantial evidence. She further argues that a
finding of disability is directed at step 5.
Our review of the Commissioner’s decision is limited to
determining whether substantial evidence in the record supports
the decision and whether the Commissioner applied the proper
legal standards. See Greenspan v. Shalala, 38 F.3d 232, 236 (5th
Cir. 1994). The determination whether a claimant can perform
past relevant work may rest on either (1) descriptions of past
work as actually performed or (2) as generally performed in the
national economy. Villa v. Sullivan, 895 F.2d 1019, 1022 (5th
Cir. 1990).
We hold that the ALJ’s determination that Cooper’s security
guard job required only a sedentary exertion level is supported
by Cooper’s description in her work history report of that past
work as actually performed, which report was left unchallenged by
counsel at the administrative level. See, e.g., id. Cooper’s
arguments that she is unable to perform her past work as a
greeter and that she should be declared disabled at step 5 are
therefore moot.
We reject Cooper’s suggestion that it was inappropriate for
the ALJ to consider the opinion of a vocational expert (VE) at
step 4. We have never held as such and have condoned the use of
a VE to supply information about the claimant’s past work. See,
e.g., Shave v. Apfel, 238 F.3d 592, 594 (5th Cir. 2001); Legget
v. Chater, 67 F.3d 558, 563-64 (5th Cir. 1995). We further
No. 02-30417
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reject Cooper’s assertion that her security guard job should not
be considered past relevant work because it was performed between
12 and 14 years prior to the ALJ’s decision. See 20 C.F.R.
§ 404.1565(a) (work experience applies when it was done within
the last 15 years); see also Bowman v. Heckler, 706 F.2d 564, 567
(5th Cir. 1983) (Secretary did not improperly rely on claimant’s
employment as a domestic 20 years before in determining that she
could return to former employment).
We additionally reject Cooper’s argument that her security
guard job did not constitute substantial gainful activity. Her
earnings between 1984 to 1986 averaged over $300 per month and
are therefore presumptive proof of substantial gainful activity
under the regulations. See 20 C.F.R. § 404.1574(b)(2)(i) & Table
1; see White v. Heckler, 740 F.2d 390, 394 (5th Cir. 1984)
(regulations set forth earnings presumed to be evidence of
substantial gainful activity).
Cooper’s argument that a finding that sedentary security
work was available in the workforce was a necessary part of the
disability determination is meritless; the issue whether
substantial gainful work is available in the national economy is
relevant only at step 5 of the analysis, and the ALJ ended the
analysis at step 4.
AFFIRMED.