Surgi v. Barnhart , 168 F. App'x 555 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS February 9, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
)))))))))))))))))))))))))) Clerk
No. 05-30140
))))))))))))))))))))))))))
MELODY SURGI,
Plaintiff–Appellant,
v.
JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY,
Defendant–Appellee.
Appeal from the United States District Court
for the Eastern District of Louisiana
Before JOLLY, GARZA, and PRADO, Circuit Judges.
EDWARD C. PRADO, Circuit Judge:*
Melody Surgi seeks review of the administrative law judge’s
(“ALJ”) denial of Disability Insurance Benefits (“DIB”). Ms.
Surgi filed her application for DIB on August 14, 2002.
I. Facts and Procedure
Ms. Surgi was 59 years old on July 22, 2003–the date of the
administrative hearing–and she had completed three years of
college. Ms. Surgi claims to have been disabled since March 30,
2002, due to neck, lower back, shoulder, and head pain, leg
*
Pursuant to 5TH CIRCUIT RULE 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that this opinion should not be published and is not precedent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 CIRCUIT
RULE 47.5.4.
cramping, and a “creeking [sic]” sensation in her neck. At the
administrative hearing, Ms. Surgi testified that she was involved
in an accident at work. In that accident, a ladder fell and
struck her in the back of the head, neck and shoulder, knocking
her onto a platter of food.
On September 16, 2003, after considering Ms. Surgi’s
background, work experience and medical history, the ALJ
determined that Ms. Surgi retained the residual functional
capacity to do a full range of light work. A vocational expert
testified that Ms. Surgi’s past relevant work as a food
demonstrator and recreational leader at a summer camp qualified
as light work. Relying on this testimony, the ALJ found that Ms.
Surgi could perform her past work. He also concluded that her
complaints regarding her limitations were not fully credible. As
a result, the ALJ determined that Ms. Surgi was not disabled.
However, while evaluating the evidence, the ALJ misstated
the vocational expert’s testimony in his written decision.
During the administrative hearing, after asking the vocational
expert to characterize Ms. Surgi’s past work experience, the ALJ
noted that Ms. Surgi had a high school degree and skilled work
experience. The ALJ inquired whether “those two assets would put
[Ms. Surgi] in a situation where there might be sedentary work
available that would require very little in the way of any
occupational adjustment.” The vocational expert responded:
If we’re looking at sedentary work with transferable
2
skills my appreciation is that her skills were
primarily in arts and crafts. She’s not skilled as a
teacher, and any instructor positions are generally
going to be light, especially with using transferable
skills. So the answer would be there would be no
skills directly transferable to sedentary work based
on that one job that was skilled of a recreational
leader.
No other questions were asked of the vocational expert. In his
report, the ALJ stated:
[T]he vocational expert testimony establishes that the
claimant has past relevant work as [an] art teacher
and as a food demonstrator which was light
semiskilled; . . . census bureau taker which was light
unskilled; and recreational leader at a summer camp
which was light skilled. . . . The impartial
vocational expert testified that based upon the
claimant’s residual functional capacity, the claimant
could return to her past relevant work as performed by
the claimant as a food demonstrator, and recreational
leader at a summer camp. Both jobs were performed at
the light level.
The Appeals Council denied Ms. Surgi’s request for review,
making the ALJ’s decision the final decision of the Commissioner.
Ms. Surgi then filed a complaint in federal district court,
seeking review of the Commissioner’s final decision pursuant to
42 U.S.C. § 405(g). On December 1, 2004, the magistrate judge
recommended the ALJ’s decision be affirmed. On January 20, 2005,
the district judge issued an order affirming the Commissioner’s
decision. The district judge noted that “[n]otwithstanding the
ALJ’s erroneous recapitulation of the vocational expert’s
testimony, the decision is supported by substantial evidence.”
3
Surgi v. Barnhart, No. 04-176, slip op. at 2 (E.D. La. Jan. 21,
2005). Ms. Surgi then filed this appeal.
II. Standard of Review
Our review is limited to two questions: (1) whether the
Commissioner’s final decision is supported by substantial
evidence, and (2) whether proper legal standards were used to
evaluate the evidence. Watson v. Barnhart, 288 F.3d 212, 215
(5th Cir. 2002)(citing Brown v. Apfel, 192 F.3d 492, 496 (5th
Cir. 1999)); see also 42 U.S.C. § 402(g). Substantial evidence
“is more than a scintilla but less than a preponderance and is
such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Watson, 288 F.3d at 215
(citing Richardson v. Perales, 402 U.S. 389, 401 (1971)).
Although we carefully examine the record, it is the
Commissioner’s role to weigh the evidence. Brown, 192 F.3d at
496. “The court does not reweigh the evidence in the record, try
the issues de novo, or substitute its judgment for the
Commissioner’s.” Newton v. Apfel, 209 F.3d 448, 452 (5th Cir.
2000).
As we noted in Newton v. Apfel, “[t]he ALJ’s decision must
stand or fall with the reasons set forth in the ALJ’s decision,
as adopted by the Appeals Council.” 209 F.3d at 455; see also
Cole v. Barnhart, 288 F.3d 149, 151 (5th Cir. 2002)(“It is well-
established that we may only affirm the Commissioner’s decision
4
on the grounds which he stated for doing so.”). However,
perfection in administrative proceedings is not required. See
Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988).
III. Analysis
Ms. Surgi argues that the district court exceeded its role
in judicial review by stating reasons to support the ALJ’s
decision that were not relied upon by the ALJ. However, despite
his misquotation of the vocational expert’s testimony, the ALJ’s
findings are supported by his evaluation of the evidence.
The ALJ has responsibility for determining an individual’s
residual functional capacity. See 20 C.F.R. 1546. The ALJ noted
that Ms. Surgi had received only conservative care; that
objective tests, including an MRI of her neck, were primarily
negative; that there was no indication that surgery of any kind
had been suggested; and that Ms. Surgi had not been hospitalized
or needed emergency care, other than at the time of her initial
injury.
The ALJ also discussed, and relied upon, the findings of Dr.
Steiner, one of Ms. Surgi’s treating doctors. The ALJ explained
that, “[a]lthough [Dr. Steiner] initially indicated that [Ms.
Surgi] was not able to do more than sedentary work, by his last
letter, he concluded that [she] could do ‘her job duties.’” The
ALJ also noted Dr. Steiner’s observation that Ms. Surgi “self-
limited” herself during testing.
5
The ALJ also addressed Ms. Surgi’s claims regarding her
inability to do work due to pain and limitations. The ALJ
pointed out that on July 26, 2002, only four months after Ms.
Surgi’s injury, Dr. Steiner stated that there was no objective
basis preventing Ms. Surgi to return to work, explaining, “No
objective data has been shown to document any pathology that
would limit her from these job duties.” The ALJ also explained
that Dr. Murphy, another treating doctor, reached similar
conclusions to Dr. Steiner.1
The reasoning set forth in the ALJ’s opinion supports his
determination that Ms. Surgi could perform a full range of light
work and return to her past relevant work. Therefore, a finding
that Ms. Surgi is not disabled is appropriate. See 20 C.F.R.
404.1520 (“[W]e consider our assessment of your residual
functional capacity and your past relevant work. If you can
still do your past relevant work, we will find that you are not
disabled.”).
For the reasons above, we AFFIRM the judgment of the
district court.
AFFIRMED.
1
Dr. Murphy explained that Ms. Surgi’s EMG test results
showed only minimal changes that were nonspecific. He also
refrained from giving Ms. Surgi approval for physical therapy.
6