Gurgiolo v. Massanari ( 2001 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-51219
Summary Calendar
MARGARET N. GURGIOLO,
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 Texas
(99-CV-1037)
July 31, 2001
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Margaret N. Gurgiolo appeals from the district court’s
judgment affirming the denial of her application for disability
insurance benefits under Title II of the Social Security Act.
Because she failed to object to the magistrate judge’s
*
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should not be published and is not precedent except under the limited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.
recommendation, we review for plain error only.1 We find each of
her arguments unpersuasive and affirm.
First, Gurgiolo argues that, because she presented evidence of
nonexertional impairments, the administrative law judge erred by
not calling the vocational expert to testify at the hearing. The
ALJ did not err in declining to call the vocational expert. The
ALJ, noting contrary evidence, found that the evidence of
Gurgiolo’s nonexertional impairments was not credible to the extent
alleged. This credibility determination is entitled to deference.2
Because Gurgiolo’s characteristics fit the criteria of 20 C.F.R.
section 404.1569 and 20 C.F.R. Part 404, Subpart P, Appendix 2,
Table No. 1, Rule 201.28, the ALJ did not err in relying solely on
the guidelines.3
Second, Gurgiolo contends that the ALJ erred in assessing her
residual functional capacity. The ALJ’s analysis of her RFC was
based on substantial evidence, so we do not disturb his
assessment.4 Also, contrary to Gurgiolo’s assertion, Abshire v.
Bowen5 did not require the ALJ to examine the exertion levels of
1
See Douglass v. United Services Automobile Ass’n, 79 F.3d 1415, 1422-23
(5th Cir. 1996) (en banc).
2
See Jones v. Bowen, 829 F.2d 524, 527 (5th Cir. 1987).
3
See Fraga v. Bowen, 810 F.2d 1296, 1304 (5th Cir. 1987).
4
See Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988) (describing
substantial evidence test).
5
848 F.2d 638 (5th Cir. 1988).
2
her past jobs. An ALJ must examine the exertion levels of an
applicant’s past employment when considering whether the applicant
can return to past employment.6 In this case, however, the ALJ
determined that Gurgiolo could not return to her past employment.
Thus, consideration of the exertion levels of her past employment
would have been pointless.
Third, Gurgiolo argued that the ALJ erred in relying on
objective evidence rather than her subjective complaints of pain.
This argument has no merit. The ALJ is entitled to credit
objective evidence of impairment over a person’s subjective
complaints.7
Finally, Gurgiolo argues that the ALJ’s determination that she
was not disabled as of the last date she was insured is not
supported by substantial evidence. Gurgiolo has not shown that the
ALJ erred.
The judgment of the district court is AFFIRMED.
6
See id. at 641.
7
See Jones, 829 F.2d at 527.
3