Atkins v. Barnhart ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT January 18, 2005
Charles R. Fulbruge III
Clerk
No. 04-30447
Summary Calendar
FREDDIE L. ATKINS,
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. 5:02-CV-2133
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Before REAVLEY, JOLLY, and HIGGINBOTHAM, Circuit Judges.
PER CURIAM:*
Freddie L. Atkins appeals the district court’s affirmance of
the Social Security Commissioner’s decision to deny him
disability insurance benefits and supplemental security income
under the Social Security Act. Atkins contends that the
Commissioner’s decision was not supported by “substantial
evidence.” Atkins alleges that the Administrative Law Judge
(ALJ) erred by determining that Atkins’ impairments did not meet
or equal certain Impairment Listings. Atkins, however, has 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this opinion should not be published and is not precedent except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.
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demonstrated that his impairments satisfy or medically equal the
requisite criteria for Impairment Listings 3.10 and 4.03.
Atkins also asserts that the ALJ erred by not adequately
considering Atkins’ impairments in combination when determining
disability status. The ALJ did consider Atkins’ impairments in
combination but determined that they did not constitute a
disabling combination of impairments. Without more, Atkins mere
allegation that the ALJ’s consideration was “inadequate” is
without merit.
Atkins further contends that the ALJ erred by determining
that Atkins’ testimony regarding his impairments was not
credible. The ALJ is entitled to determine credibility and weigh
testimony. Greenspan v. Shalala, 38 F.3d 232, 237 (5th Cir.
1994). The ALJ’s credibility determination is entitled to great
deference. Newton v. Apfel, 209 F.3d 448, 459 (5th Cir. 2000).
The ALJ set forth several facts underlying the determination that
Atkins was not credible, including citations to medical record
evidence. In light of the discretion to which the ALJ is
entitled, this contention has no merit.
Atkins also argues that the ALJ erred by determining that
Atkins retained the residual functional capacity (RFC) to perform
a full range of medium work, except for any work involving
hazardous machinery or unprotected heights. Medium work requires
lifting no more than 50 pounds at a time, with frequent lifting
of objects weighing up to 25 pounds. 20 C.F.R. § 404.1567(c).
No. 04-30447
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The ALJ determined that Atkins’ allegations regarding his
impairments were not credible. The ALJ found that Atkins ability
to perform basic work activities was not significantly limited.
The ALJ set forth several facts underlying the determination that
Atkins was capable of performing a full range of medium work, and
Atkins has failed to show that the ALJ’s determination was not
supported by substantial evidence.
Atkins further contends that the ALJ erred by not requesting
the assistance of a medical expert. Because the regulations do
not mandate that the ALJ ask for and consider opinions from
medical experts, this court will reverse the ALJ’s decision not
to utilize a medical expert “if the claimant shows (1) that the
ALJ failed to fulfill his duty to adequately develop the record,
and (2) that the claimant was prejudiced thereby.” Brock v.
Chater, 84 F.3d 726, 728 (5th Cir. 1996). “To establish
prejudice, a claimant must show that he could and would have
adduced evidence that might have altered the result.” Id.(internal quotation marks and citation omitted).
Although Atkins contends that a medical expert was needed to
interpret medical records and to explain the combination effect
of Atkins’ impairments, Atkins points to no evidence that, had
the ALJ allowed a medical expert to testify, would have been
adduced at the hearing and that could have changed the result of
the proceeding. See id. at 728-29. Accordingly, Atkins fails to
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show that he was prejudiced by the ALJ’s failure to request a
medical expert.
Lastly, Atkins asserts that the ALJ erred by relying on the
Medical-Vocational Guidelines instead of a vocational expert when
determining that Atkins could perform a full range of medium work
in the national economy. “When the claimant suffers only from
exertional impairments or his non-exertional impairments do not
significantly affect his residual functional capacity, the ALJ
may rely exclusively on the Guidelines in determining whether
there is other work available that the claimant can perform.”
Selders v. Sullivan, 914 F.2d 614, 618 (5th Cir. 1990). As
discussed above, the ALJ properly determined that Atkins’
allegations of significant impairment due to his nonexertional
impairments were not credible to the extent alleged and, as such,
did not significantly affect Atkins’ ability to perform medium
work. Thus, the ALJ was entitled to rely exclusively on the
medical vocational guidelines. Selders, 914 F.2d at 618.
As a result of the foregoing, the decision of the district
court affirming the Commissioner’s denial of benefits is
AFFIRMED.