Tammy Lafleur v. Carolyn Colvin , 540 F. App'x 263 ( 2013 )

Case: 13-30212 Document: 00512353383 Page: 1 Date Filed: 08/26/2013
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
August 26, 2013
No. 13-30212 Lyle W. Cayce
Summary Calendar Clerk
TAMMY LAFLEUR,
Plaintiff-Appellant
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL
SECURITY,
Defendant-Appellee
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 6:11-CV-01620-TLM
Before DAVIS, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Tammy Lafleur filed a claim for Title XVI Supplemental Social Security
disability benefits. Benefits were denied both in the administrative process at
the Social Security Administration and after first-level judicial review by the
United States District Court for the Western District of Louisiana.
We AFFIRM.
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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On February 7, 2011, an Administrative Law Judge (“ALJ”) conducted a
hearing on Lafleur’s claim and then denied benefits. The Social Security
Administration’s Appeals Council affirmed. The Council’s decision constitutes
the Commissioner of the Social Security Administration’s final decision. Lafleur
appeals from the district court’s affirmance of the Commissioner’s decision.
Lafleur seeks reversal based on the argument that the ALJ’s residual
functional capacity (“RFC”) finding was not supported by substantial evidence.
Lafleur’s argument is based on three claimed errors, and we will discuss each.
The parties agree that Lafleur has “degenerative disc disease” and “carpal
tunnel syndrome” and was previously employed as a hotel front desk clerk. The
question is whether Lafleur’s conditions are sufficiently debilitating as to entitle
her to an award of benefits.
Judicial review of a denial of Social Security benefits “is limited to whether
the decision was supported by substantial evidence.” Fields v. Bowen, 805 F.2d
1168, 1169 (5th Cir. 1986). Substantial evidence “is more than a mere scintilla
and less than a preponderance. A finding of no substantial evidence is
appropriate only if no credible evidentiary choices or medical findings support
the decision.” Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001). In making this
determination we “scrutinize the record in its entirety.” Fields, 805 F.2d at
1169. Eligibility for benefits is evaluated under a five-step process:
(1) Is the claimant currently working? (2) Can the impairment be
classified as “non-severe”? (3) Does the impairment meet the
duration requirement of 42 U.S.C. § 423(d)(1)(A) and is it listed, or
medically equivalent to, an impairment in Appendix 1? (4) Can the
claimant perform her past relevant work? and (5) Can the claimant
perform any other gainful job?
Id. at 1170.
The ALJ denied benefits at step four, which concerns whether Lafleur
could still perform past relevant work. The ALJ found that Lafleur could return
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to her previous work as a hotel front desk clerk. Lafleur has the initial burden
of demonstrating her inability to perform her prior work. See id. at 1169-70.
Lafleur seeks to show she carried her evidentiary burden both by contending
there were errors in the RFC finding and by emphasizing the importance of
certain limitations that were found to exist.
One complained-of omission was that she should have been given an RFC
limitation on looking down. Dr. George Smith testified at the administrative
hearing that Lafleur “would have difficulty looking down on a persistent basis
without the ability to change positions.” Smith also testified Lafleur would
“[p]robably do better . . . not having to change the position of her head and neck”
in doing computer work.
There is contrary evidence in the record that supports the absence of this
limitation. The state’s medical consultant, Dr. Charles Lee, did not indicate any
restrictions with respect to looking down. Also, Lafleur’s treating physician, Dr.
Vikram Parmar, found after two examinations that although Lafleur had “severe
neck tenderness . . . . [s]he can touch her chin to her chest. She can hyperextend
her neck . . . .” For these determinations, the most weight is given to treating
physicians such as Dr. Parmar, who have the greatest degree of familiarity with
a patient’s medical conditions. 20 C.F.R. § 416.927(c)(2). Less weight is given
to the testimony of physicians who perform consultative examinations, such as
Dr. Lee, and still less weight to testimony based on a review of medical records,
such as the testimony of Dr. Smith. Id.The ALJ indicated she considered the opinion evidence “in accordance with
the requirements of” this and companion Social Security regulations. The ALJ
also indicated she considered other medical evidence “based on the requirements
of” 20 C.F.R. § 416.929 and made a credibility finding that Lafleur’s statements
regarding “the intensity, persistence, and limiting effects” of her symptoms were
not credible insofar as they went beyond the RFC finding.
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ALJs are required to “take into consideration all of the evidence from the
treating doctors.” Myers v. Apfel, 238 F.3d 617, 621 (5th Cir. 2001). The ALJ did
so, and the record contains credible medical evidence upon which the ALJ could
have relied to omit a finding as to limitations on looking down.
Lafleur also complains that the RFC found a limitation for overhead lifting
but no limitation on overhead reaching. The RFC stated that Lafleur could
perform “light work . . . except no overhead lifting and standing and walking for
thirty minutes.”
After a review of medical records and consultative examination, Dr. Lee
concluded that Lafleur did have a limitation in “[r]eaching in all directions
(including overhead).” On the other hand, Dr. Parmar, Lafleur’s treating
physician, indicated in treatment notes after two separate examinations, that
Lafleur “has 5/5 [normal] strength in the bilateral upper extremities” and
“normal light touch” in those extremities. Earlier treatment notes state that
Lafleur had “full range of motion and no restriction [in] movement.”
Dr. Smith testified at the hearing that Lafleur “would have difficulty in
working overhead,” but did not expound upon the nature or extent of this
difficulty. Among the items of evidence on which Dr. Smith relied was Dr.
Parmar’s notes indicating “a good range of motion of her cervical spine, really at
that time was not having much [pain] in either extremity” and evidence that
Lafleur was “improving with [physical therapy] treatments.”
The ALJ opinion reveals that the opinions of Drs. Smith, Parmar, and Lee
were considered, and noted “consideration of the entire case record” and “careful
consideration of the evidence.” We have already quoted the ALJ as stating she
weighed opinion evidence in accordance with 20 C.F.R. § 416.927(c)(1)-(2), which
would give more weight to the opinions of Dr. Parmar, a treating physician.
Considering this testimony and other medical evidence in the record, there was
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substantial evidence to support the omission of an overhead reaching limitation
in Lafleur’s RFC. See Myers, 238 F.3d at 621.
Based on an RFC finding that omitted any looking-down or reaching-up
limitation but included one for overhead lifting, the ALJ found that Lafleur could
return to her past work as a hotel clerk. Lafleur argues that this finding is not
supported by substantial evidence.
At the hearing, the ALJ asked vocational expert Beverly Majors1 to
assume a hypothetical individual who “has no overhead lifting or downward
looking [ability] and must alternate sit, stand and walk 30 minutes.” The expert
was asked to state an opinion about that individual’s ability to work as a hotel
desk clerk. This hypothetical “reasonably incorporated the disabilities
recognized by the ALJ.” See Morris v. Bowen, 864 F.2d 333, 336 (5th Cir. 1988).
The hypothetical even gave Lafleur the benefit of the doubt, assuming a
limitation for looking down although the ALJ did not find Lafleur was limited
in this respect. The question was not “too abstract to reflect [Lafleur]’s
particular disabilities” and, prior to answering, Majors clarified an aspect of the
question with the ALJ. See id. Further, Lafleur “had an opportunity to correct
any defect in the hypothetical by mentioning additional limitations to the
vocational expert.” See id. Majors and Lafleur engaged in a short colloquy
during which time Lafleur had the opportunity to speak.
Lafleur argues that because the RFC findings underlying the hypothetical
were in error, the finding of ability to return to past work which relied on the
vocational expert’s answer to the hypothetical, was also in error, or not
supported by substantial evidence. Yet, Lafleur’s premise – that the
1
The ALJ’s opinion refers to the vocational expert as “Lionel Bordelon,” but the hearing
transcript lists the expert as “Barilyn Mangers.” Lafleur’s brief states that the vocational
expert was named “Beverly Majors.” Regardless of the vocational expert’s name, the content
of the vocational expert’s testimony is not contested.
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hypothetical question was flawed – incorrectly assumes the ALJ was obligated
to find Lafleur was limited in her ability to reach overhead. As we have
discussed above, substantial evidence supports the omission of such a limitation.
In addition, we have not been pointed to any record evidence that Lafleur’s prior
work involved overhead work of any kind.
The description of the hotel clerk job in section 238.367-038 of the
Dictionary of Occupational Titles includes telephone, computer, and other
clerical work, but does not indicate that any overhead work is a component of the
job. The descriptions of Lafleur’s past work in the record, including the
descriptions provided by Lafleur at the hearing, similarly do not evidence an
overhead work component to the job. Majors testified that Lafleur’s position was
largely “sedentary,” with Lafleur “sitting six hours” and “[t]he heaviest weight
lifted was two pounds.” Lafleur’s description of the job included standing up to
answer the phone or greet customers, using a cash register, writing, retrieving
files from other offices, and lifting paper into computers.
The ALJ’s finding that Lafleur could return to her past work as a hotel
clerk was supported by substantial evidence.
AFFIRMED.
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