Foster v. Astrue , 277 F. App'x 462 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 8, 2008
No. 07-51242 Charles R. Fulbruge III
Summary Calendar Clerk
SHERRI FOSTER
Plaintiff - Appellant
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY
Defendant - Appellee
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:06-CV-852
Before JONES, Chief Judge, and CLEMENT and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Sherri Foster appeals from the district court’s judgment affirming the
denial of her application for disability insurance benefits. She argues that
(1) the Administrative Law Judge (“ALJ”) failed to give proper weight to the
opinions of her treating and examining doctors; (2) there was insufficient
evidence to support the ALJ’s determination that she is able to perform
sedentary work activities; and (3) the ALJ improperly evaluated her credibility.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-51242
Because the ALJ’s determination is based on substantial evidence and applies
the proper legal standards, we affirm.
Foster’s alleged disability stems from a slip-and-fall accident at her place
of employment in February 2002. After her accident, she continued working for
another employer until February 2004, when she claims her pain became
disabling. She filed an application for disability insurance benefits in July 2004,
alleging disability due to low back pain, shoulder pain, and depression. The
application was denied initially and on reconsideration, and Foster requested a
hearing before an ALJ. In May 2006 the ALJ determined that while Foster’s
pain and depression were considered “severe” under the appropriate regulations,
she was nonetheless capable of maintaining sedentary employment with “no
more than superficial contact with others.” Based on the testimony of a
vocational expert, the ALJ determined that Foster was capable of performing
jobs available in the national economy, and accordingly was not disabled. When
the Appeals Council denied Foster’s request for review, the ALJ’s decision
became the Commissioner’s final decision for judicial review. Foster appealed
to the district court. The parties consented to proceed before a magistrate judge,
who affirmed the decision of the ALJ. This appeal followed.
Our review of a denial of disability benefits is limited. “The
Commissioner’s decision is granted great deference,” and we will not disturb that
decision unless it is unsupported by substantial evidence or is based on an error
of law. Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995). Substantial evidence
is “more than a scintilla, less than a preponderance, and is such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion.” Hollis v. Bowen, 837 F.2d 1378, 1383 (5th Cir. 1988) (internal
citation omitted). In applying this standard we may not reweigh the evidence
or substitute our own judgment for that of the Commissioner. Id. After
2
No. 07-51242
reviewing the record and the ALJ’s detailed decision, we affirm the decision of
the district court.
I
Foster first argues that the ALJ did not give proper weight to the opinions
of her treating physicians. Contrary to this assertion, Foster’s medical records
show that the ALJ did not reject her physician’s findings. Most of the lengthy
excerpts Foster includes in her briefing are simply recitations of her subjective
complaints, not medical findings by a physician. See Chambliss v. Massanari,
269 F.3d 520, 522 (5th Cir. 2001) (subjective complaints must be corroborated
by objective medical evidence). What objective evidence she has provided
supports the ALJ’s determination that she is not disabled. Following Foster’s
fall in 2002, Dr. Chimenti opined that Foster was capable of light-duty work.
As discussed below, the ALJ found no credible evidence that Foster’s condition
worsened between that time and February 2004, when she claimed disability.
Further, according to Foster’s MRI, her low back problems ranged only from
“minimal” to “very mild,” and her shoulder arthritis was minimal. Most
importantly, none of Foster’s treating or examining doctors ever opined that
Foster was disabled or lacked the functional capacity to work.
The ALJ thoroughly discussed and properly accounted for the views of
Foster’s treating physicians. The ALJ’s determination of Foster’s residual
functional capacity is consistent with those views and is supported by
substantial evidence in the record. The ALJ found Foster could maintain
sedentary employment while lifting no more than 10 pounds and performing no
overhead work. The ALJ found her able to stand and walk for 2 of 8 hours, and
sit for 6 of 8 hours. The ALJ determined Foster was capable of performing
“simple, repetitive work while having no more than superficial contact with
others.” These findings are well supported by the evidence, and as the ALJ
3
No. 07-51242
noted, “giv[e] the claimant the benefit of the doubt regarding the limitations due
to her medically determinable impairments.”
As to Foster’s depression, she has failed to demonstrate that the ALJ’s
determination was unsupported by the evidence. It is true that Foster’s
psychologist, Dr. Brooks, assigned Foster a subjective GAF score of 48, which
tends to indicate “serious problems.” See Boyd v. Apfel, 239 F.3d 698, 702 (5th
Cir. 2001). This score, however, is greatly undermined by Dr. Brooks’s objective
findings discussed in the body of his report. Dr. Brooks noted that Foster
presented well during her evaluation, was cooperative, made good eye contact,
spoke in an articulate fashion, and exhibited cognitive abilities “in the average
range.” Her memory was intact, and Dr. Brooks reported that she seemed “able
to handle her routine needs and to provide adequate parenting for her children.”
While Foster did exhibit “some flattening of affect,” Dr. Brooks went on to note
that “she also seemed capable of spontaneity and emotional reactions.” Dr.
Brooks concluded his report with the statement that “[Foster’s] depression alone
does not appear to be so severe that she would be unable to function. She is
competent.” Consistent with these observations, a physician who reviewed
Foster’s mental health records found that Foster was only “moderately limited”
in 3 of 20 categories, and “not significantly limited” in the other 17.
Foster has failed to demonstrate that the ALJ’s assessment of her mental
capacity lacked adequate support. To the contrary, the ALJ’s findings are well-
reasoned and are appropriately based on the evidence in the record. The ALJ
recognized that Foster had some difficulty with concentration and with
performing complicated tasks, but nonetheless found her able to “perform simple
work with understanding and carrying out simple one- or two- step instructions,
dealing with standardized situations with occasional or no variables in
situations on the job . . . and reading, writing, and speaking in simple sentences
using normal work order.” Foster demonstrated mild impairment in “social
4
No. 07-51242
functioning,” and the ALJ appropriately found that she was able to perform work
with “only superficial contact” with others. These determinations are consistent
with the record and are not reversible error.
II
Foster’s next argument is that she lacks the residual functional capacity
to perform the jobs identified by the ALJ. Based on the vocational expert’s
testimony, the ALJ determined that Foster could perform the jobs of compact
assembler, fabricator/assembler, and semi-conductor wafer breaker, all positions
existing in substantial numbers in the national economy. Foster argues, in a
conclusory fashion, that these jobs exceed the scope of her limitations, citing to
descriptions of these tasks in the Dictionary of Occupational Titles (“DOT”).
Foster has not, however, explained how these job descriptions exceed her
functional capacity as determined by the ALJ. Foster claims the position of
compact assembler “requires more reaching than anticipated” by the ALJ. This
assertion is inconsistent with the ALJ’s findings. The only “reaching” restriction
the ALJ found credible was that Foster could do no overhead work, and Foster
fails to show that the position of compact assembler requires any overhead work.
Her other arguments are conclusory and unpersuasive. The DOT job
descriptions are consistent with the ALJ’s determination that Foster could
perform sedentary work with no overhead reaching and only superficial contact
with others. As above, those findings are based on substantial evidence, and the
vocational expert’s testimony was properly based on the ALJ’s hypothetical
incorporating these limitations. Masterson v. Barnhart, 309 F.3d 267, 273 (5th
Cir. 2002) (hypothetical question to vocational expert properly posed where it
5
No. 07-51242
incorporated the limitations recognized by ALJ).1 The ALJ’s determination on
this point was not in error.
III
Finally, Foster challenges the ALJ’s determination that her allegations
were “not totally credible.” An ALJ has discretion to judge a claimant’s
credibility and must evaluate subjective complaints in light of the objective
medical evidence on record. Johnson v. Heckler, 767 F.2d 180, 182 (5th Cir.
1985). Here, the ALJ gave several reasons for finding Foster not totally credible.
At the beginning of the hearing, Foster indicated she had great difficulty raising
her right hand for the oath, but later during testimony she spontaneously raised
her right hand while gesturing with no apparent pain or difficulty. Further, the
ALJ found “no credible evidence” to indicate that Foster’s discomfort became
significantly worse after her initial injury in 2002. Foster testified that after her
fall she worked at RV Outlet Mall for 18 months, but quit in February 2004
when her employer refused to transfer her to an accounting position. The ALJ
viewed this as evidence that Foster believed herself able to maintain a sedentary
accounting position in February 2004, which was inconsistent with her
allegation of disability beginning at that time. The record also indicated that
after her fall in 2002, while Foster claimed to be unable to work her first job and
was drawing workers’ compensation benefits, she was continuing to work full-
duty at her second job delivering flowers. The ALJ viewed this as showing a
willingness to provide false information for secondary gain. On the whole, the
ALJ’s conclusion that Foster’s allegations were “not credible and appear
1
Foster makes an additional argument, not raised below, that her excessive
absenteeism would prevent her from maintaining any of these jobs. Even if she had preserved
this argument, it is without merit. The vocational expert testified that three absences a month
would prevent a person from pursuing any of the jobs he identified. Foster’s evidence does not
support her claim that she would miss this much work due to her “monthly doctor visits.”
Rather, the documentation she cites shows only that in some, scattered months she has been
to the doctor once or twice.
6
No. 07-51242
exaggerated for secondary gain on occasion” is well-reasoned and supported by
substantial evidence.
Foster has not shown any reversible error. Because the ALJ’s decision was
based on substantial evidence in accordance with the correct legal standards, the
judgment of the district court is AFFIRMED.
7