Bonnie Giles v. Michael Astrue, Commissioner , 433 F. App'x 241 ( 2011 )

Case: 10-31006 Document: 00511542858 Page: 1 Date Filed: 07/18/2011
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 18, 2011
No. 10-31006 Lyle W. Cayce
Clerk
BONNIE GILES,
Plaintiff – Appellant
v.
MICHAEL J. ASTRUE, Commissioner of Social Security
Defendant – Appellee
Appeal from the United States District Court
for the Western District of Louisiana
USDC No. 5:09-CV-00685
Before JONES, Chief Judge, and HIGGINBOTHAM and SOUTHWICK, Circuit
Judges.
PER CURIAM:*
For well over a decade, Plaintiff Bonnie Giles has been seeking disability
insurance benefits under Title II of the Social Security Act. Giles asserts she
became disabled on February 7, 1992, resulting from the onset of multiple
impairments including scoliosis, temporal lobe epilepsy, headaches, Graves
disease, depression, fibromyalgia, diabetes, and a later onset of cardiac disease.
Giles first filed for disability benefits in 1996 and her claim has since been heard
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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by four administrative law judges (“ALJs”). All four denied benefits. The first
three decisions were remanded by the Social Security Appeals Council or by the
federal district court. The district court affirmed the most recent ALJ decision
and Giles timely appealed. For the reasons stated below, we AFFIRM.
I. Factual Background
Giles was born in 1950 and has a high school education. She worked for
Mobil Oil in Dallas from 1977 until the alleged onset of her disability in
February 1992. During her time at Mobil, she was promoted several times,
eventually becoming a computer analyst, which she did for about a year until
she became sick. Giles claims she was terminated for missing too much work,
a problem caused by her illness. After being terminated, Giles moved to her
hometown in Louisiana to be closer to family.
Although Giles states her disability began in February 1992, the medical
records provide limited insight into the treatment she received before 1996,
showing only that she was seen by a psychiatrist for a few months and an
endocrinologist for a few years. The records also show that Giles has a 43 degree
lumbar curvature, but most doctors agreed that scoliosis is the lesser of her
problems. In October 1996, Giles started seeing Mairus McFarland for family
practice medicine, whose regular notes are throughout the record.
Giles’s medical history is complex, likely in part due to the challenges
inherent in treating Graves disease, an autoimmune disorder that causes
hyperthyroidism. Treatment of Graves disease may lead to hypothyroidism,
which can cause depression, mental and physical sluggishness, and weight
gain—conditions appearing in Giles’s medical history. Giles’s thyroid condition
had been treated successfully with medication in September 1995, but
physicians later altered her medications because of negative side effects. In
April 1996, the endocrinologist noted that Giles’s Graves disease was seemingly
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under control, but he expressed concerns that it may be over-controlled. In
February 1997, the record indicates Giles had normal thyroid function without
medication, but she still relied on medication intermittently during the next
several years.
Throughout Giles’s illness, she has struggled with depression. Some
examining physicians also suggested she be assessed for bipolar disorder.
Several doctors noted that Giles was crying during examinations.
Much of Giles’s physical pain during 1996 and 1997 involved her temporal
lobe seizures which were likely causing severe migraine headaches. However,
medical records suggest that the prescription medication Tegretol was generally
effective in assisting Giles with her seizures, and Giles’s complaints about the
headaches were limited from 1999 to 2006.
In early 1997, Giles was admitted to the hospital and ultimately diagnosed
with diabetes. Her gallbladder was removed and she started insulin therapy.
There is no indication that her diabetes was an impairment until late 2004,
when she was admitted to the hospital with chest pain and the emergency room
physician noted that her diabetes was poorly controlled.
Despite Giles’s numerous health problems, there are very few medical
records from 1998 through 2005, other than regular notes from her primary care
physician. In 2005, Giles’s cardiac issues arose, and she was diagnosed with
mitral valve prolapse and later received a pacemaker.
Giles has not been employed since 1992, and her insured status expired
on December 31, 1998. Accordingly, she must establish disability on or before
that date.
II. Procedural Background
Four ALJs have denied Giles’s claim. In May 1998, ALJ Morton J. Gold
denied the claim, which was later remanded for failure to consider updated
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medical evidence. ALJ Thomas Bundy was the second to review the case in
November 2001, and his decision was remanded because of an insufficient
examination of the claimant’s mental impairment and credibility. ALJ Nancy
J. Griswold took the case on the next appeal in May 2004, and the district court
remanded her decision because of insufficient consideration of the claimant’s
severe headaches and whether an underlying medical impairment could have led
to Giles’s alleged symptoms. Finally, ALJ Charles R. Lindsay issued a decision
in August 2008, which serves as the basis for this appeal. All ALJs incorporated
the previous ALJ’s opinion in their decision.
ALJ Lindsay found that Giles had severe impairments of thyroid disease,
depression, cardiac disease, epilepsy, diabetes, and a history of migraine
headaches. He found that these conditions and others limited Giles’s residual
functional capacity (RFC) to the performance of light work1 except for no more
than frequent postural activities (and no climbing ladders); an inability to work
at unprotected heights or around dangerous moving machinery; no more than
frequent reaching, handling, and fingering; moderately reduced ability to
understand, remember, and carry out detailed instructions; moderately reduced
ability to maintain attention and concentration, deal with the public, and set
goals independently; the need to sit and stand at will; and an inability to work
in high stress situations. ALJ Lindsay concluded that these limitations did not
preclude Giles from performing her past relevant work as a computer analyst
and that she could also perform three alternative jobs recommended by the
vocational expert: cashier II, telephone information clerk, and document
preparer.
1
Light work is defined as work involving “lifting no more than 20 pounds at a time with
frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted
may be very little, a job is in this category when it requires a good deal of walking or standing,
or when it involves sitting most of the time with some pushing and pulling of arm or leg
controls.” 20 C.F.R. § 404.1567(b).
4
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The Appeals Council rejected the ALJ’s conclusion that Giles could have
performed her prior job. Giles only worked as a computer analyst for one year,
and the vocational expert testified that two years of experience were required to
acquire skills at that level. Moreover, the Appeals Council found that “[i]n light
of the numerous, moderate mental limitations that are contained in the
established residual functional capacity,” Giles was unable to perform her past
work. The Council agreed that the vocational expert’s testimony provided
sufficient support to conclude that Giles could perform the alternate jobs ALJ
Lindsay listed, and the Council affirmed the denial of benefits. The district court
affirmed, and Giles timely appealed.
III. Applicable Laws
This court reviews the Commissioner’s denial of social security benefits
only to ascertain (1) whether the final decision is supported by substantial
evidence and (2) whether the Commissioner used the proper legal standards to
evaluate the evidence.2 Substantial evidence is that which a reasonable mind
might accept to support a conclusion.3 “It is more than a mere scintilla and less
than a preponderance.”4 When we apply the substantial evidence standard, “we
scrutinize the record to determine whether such evidence is present. We may
not reweigh the evidence, try the issues de novo, or substitute our judgment” for
that of the Commissioner.5
2
Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000).
3
Richardson v. Perales, 402 U.S. 389, 401 (1971).
4
Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995) (internal quotation marks omitted).
5
Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994) (citation omitted), cert. denied,
514 U.S. 1120 (1995); see Newton, 209 F.3d at 452.
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In order to be eligible for disability benefits, the claimant must prove that
she has a medically determinable physical or mental impairment, or
combination of impairments, lasting at least twelve months that prevents her
from engaging in a substantial gainful activity.6 Substantial gainful activity is
defined as work involving significant physical or mental abilities that is usually
done for pay or profit.7 The ALJ engages in a five-step sequential evaluation
process for determining whether an individual is disabled: (1) whether the
claimant is presently engaging in substantial gainful activity; (2) whether the
claimant has a medically determinable severe impairment, as defined by
regulations; (3) whether the claimant’s impairment or combination of
impairments meets the criteria of an impairment listed in Appendix 1 of the
regulations; (4) whether the impairment prevents the claimant from doing her
past relevant work; and (5) whether the impairment prevents the claimant from
doing any other work.8
Before considering the fourth and fifth steps, the Commissioner must
determine the claimant’s residual functional capacity (RFC).9 The RFC is the
individual’s ability to do physical and mental tasks on a sustained basis despite
limitations from her impairments. In determining the RFC, the Commissioner
must consider all of a claimant’s impairments, including those that are not
severe.10
The claimant bears the burden of proof on the first four steps and then the
burden shifts to the Commissioner for the fifth step. If the claimant shows she
6
42 U.S.C. § 423(d)(1)(A).
7
20 C.F.R. § 404.1572(a) and (b).
8
Id. § 404.1520(a).
9
Id. § 404.1520(e).
10
Id. § 404.1545.
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is no longer capable of performing her previous jobs, the Commissioner must
show that the claimant is capable of engaging in some type of alternative work
that exists in the national economy.11 Giles does not challenge the
Commissioner’s conclusions in the first four steps. Rather, the sole basis for this
appeal involves the RFC limitations and Giles’s ability to perform alternative
work.
IV. Discussion
A. Consideration of the Combined Effects of Giles’s Multiple Impairments
Giles argues that the ALJ did not properly consider the combined effects
of her multiple impairments. This claim generally is without merit, as ALJ
Lindsay specifically incorporated “the combination” of Giles’s diabetes, cardiac
disease, and migraine headaches into his RFC. Additionally, he included
limitations resulting from Giles’s epilepsy and depression. However, Giles
contends that neither the ALJ nor the Appeals Council considered the effects of
her scoliosis and fibromyalgia in combination with the other impairments listed.
Neither of these two conditions was listed as a severe impairment or explicitly
included in the RFC. However, the RFC included a specification allowing Giles
to sit or stand at will to assist with back pain.
In challenging ALJ Lindsay’s failure to list scoliosis as a severe
impairment, Giles points to several physician reports that label the scoliosis as
“severe.” However, a conclusion that the degree of curvature is medically
“severe” differs from a finding that the ailment was “severe” for purposes of
disability determination. A non-severe impairment under the Social Security
regulations is one that “does not significantly limit [the claimant’s] physical or
11
Chaparro v. Bowen, 815 F.2d 1008, 1010 (5th Cir. 1987).
7
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mental ability to do basic work activities.”12 The plaintiff has the burden of
proving that her medical condition qualifies as severe.13 Giles points to no
documents in the record to support her assertion that scoliosis significantly
limited her physical work ability.
Further, the medical history does not support including any specific
limitation in Giles’s RFC because of her fibromyalgia. Medical records from
1997 and 1998 indicate that Giles was experiencing joint pain, which may have
been related to fibromyalgia. However, after Giles received a Celestone injection
in December 1998, there are no records to suggest fibromyalgia caused Giles
difficulty. Giles herself did not raise this condition in her most recent ALJ
hearing. ALJ Lindsay did not err when failing to list fibromyalgia as severe nor
does the medical history support an additional RFC limitation to account for the
effects of fibromyalgia.
B. Consideration of Treating and Examining Physicians’ Opinions
Disability cases typically involve three types of physicians: 1) a treating
physician who regularly provides care to the claimant; 2) an examining
physician who conducts a one-time physical exam of the claimant; and 3) a
reviewing or non-examining physician who has never examined the claimant,
but read the claimant’s files to provide guidance to an adjudicator.14 Because the
treating physician is most familiar with the claimant’s impairments, his opinion
should be accorded great weight in determining disability.15 If a treating
physician’s opinion is “well-supported by medically acceptable clinical and
12
20 C.F.R. § 404.1521.
13
See Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005).
14
See generally 20 C.F.R. § 404.1527(d).
15
Newton, 209 F.3d at 455.
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laboratory diagnostic techniques and is not inconsistent with the other
substantial evidence in [the] case record, [the Commissioner] will give it
controlling weight.”16 Likewise, when a treating physician has reasonable
knowledge of the impairment, his opinion is given more weight than an opinion
from a non-treating physician.17 By contrast, the Commissioner may give less
weight to a treating physician’s opinion about a condition outside his area of
expertise.18 Treating physicians’ opinions also receive greater weight “[w]hen
the treating source has seen [the claimant] a number of times and long enough
to have obtained a longitudinal picture of [the claimant’s] impairment.”19 The
weight given to opinions from nonexamining physicians depends on “the degree
to which they provide supporting explanations for their opinions.”20
An ALJ is free to reject a physician’s opinion when good cause exists.21
“Good cause may permit an ALJ to discount the weight of a treating physician
relative to other experts where the treating physician’s evidence is conclusory,
is unsupported by medically acceptable clinical, laboratory, or diagnostic
techniques, or is otherwise unsupported by the evidence.”22
Social Security regulations provide that the Administration “will always
give good reasons in [the] notice of determination or decision for the weight [it]
16
20 C.F.R. § 404.1527(d)(2).
17
Id.18
Id. The regulation provides the example of an ophthalmologist who notes that the
patient complains of neck pain during an eye exam. The ophthalmologist’s assessment of the
neck pain would be given limited weight, even though he is a treating physician, because the
pain is outside his specialty.
19
Id.20
Id. § 404.1527(d)(3).
21
Newton, 209 F.3d at 455.
22
Id. at 456.
9
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give[s the claimant’s] treating source’s opinion.”23 Further, Social Security
Ruling 96-2p instructs that an ALJ should not reject the treating physician’s
opinion simply because it is not well-supported by the record.24 In those
instances, the opinion is not given controlling weight, but the treating source
opinion is “still entitled to deference and must be weighed using all of the factors
provided in [the regulations].”25
Giles alleges that the Commissioner did not adequately weigh the opinions
of treating and examining physicians and over-relied on a reviewing physician’s
report. ALJ Lindsay’s decision included a description of interrogatory responses
by a reviewing physician, neurologist Dr. Woodrow W. Janese. As noted above,
this opinion may only be weighted according to the value of its supporting
explanations. If ALJ Lindsay had heavily relied on Dr. Janese’s testimony, such
reliance would have been in error because Dr. Janese’s responses to the
interrogatories were conclusory and without explanations. However, ALJ
Lindsay did not rely exclusively upon Dr. Janese—the medical record as a whole
supports ALJ Lindsay’s conclusions. Further, ALJ Lindsay’s decision
incorporated the preceding ALJ opinions, which together adequately address
why some physician reports were given greater or lesser consideration.
i. Disability Determinations Reserved for the Commissioner
Although some determinations, such as disability and RFC, are legally
reserved for the Commissioner, Social Security guidelines require adjudicators
making these determinations to consider the opinions of medical sources and
“apply the applicable factors” denoted in the regulations when weighing the
23
20 C.F.R. § 404.1527(d)(2).
24
Social Security Ruling 96-2p, Titles II and XVI: Giving Controlling Weight to
Treating Source Medical Opinions, 61 Fed. Reg. 34,490 (July 2, 1996).
25
Id. at 34,491.
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opinions.26 These factors are: 1) the physician’s length of treatment of the
claimant; 2) the frequency of examination; 3) the nature and extent of the
treatment relationship; 4) the extent to which the physician’s opinion is
supported by the medical record; 5) the consistency of the opinion with the
record as a whole; and 6) the specialization of the treating physician.27 With
regards to a disability determination, the guidelines note that medical opinions
“must not be disregarded. However, even when offered by a treating source,
they can never be entitled to controlling weight or special significance.”28
Several physicians—Dr. McFarland, Dr. Rogers, and Dr. Russell—
indicated at various points in time that they considered Giles to be disabled. In
the second administrative review of this case, ALJ Bundy specifically addressed
these statements and found that they need not be attributed great weight based
on the above-listed factors. His conclusions are supported by the record as a
whole.
ii. Mental Health Conditions
The district court remanded ALJ Bundy’s decision back to the
administration for his failure to address the severity of Giles’s mental
impairment. Thus, ALJ Griswold, the third administrative reviewer, focused on
Giles’s mental health claims, and ALJ Lindsay incorporated Griswold’s findings
into his decision. Both ALJs noted that Giles’s mental health treatment had
been sporadic over the years. One mental health specialist opined that Giles
was mentally impaired to the point that she was not functional at work, but ALJ
Griswold adequately explained why this opinion was given limited weight. The
26
Social Security Ruling (SSR) 96–5p, Titles II and XVI: Medical Source Opinions on
Issues Reserved to the Commissioner, 61 Fed. Reg. 34,471, 34,473 (July 2, 1996).
27
20 C.F.R. § 404.1527(d).
28
61 Fed. Reg. at 34,474.
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physician had only treated Giles for five months and a subsequent examining
physician’s report found fewer impairments. More importantly, there is no
evidence that Giles sought mental health treatment after November 1996.
Although Giles did not seek professional psychological help, she did follow
up with her family practice physician, Dr. McFarland, who continues to
prescribe anti-anxiety medication. Giles asserts that the Commissioner’s
decision did not properly weigh Dr. McFarland’s assessment of Giles’s mental
limitations. However, ALJ Griswold adequately explained why she gave limited
weight to Dr. McFarland’s assessment. For example, Dr. McFarland said that
Giles had a poor ability to maintain concentration, but his opinion was not
consistent with the record as a whole; several other physicians denoted that
Giles’s memory and concentration were intact. Moreover, Dr. McFarland is not
a mental health specialist, so his opinions regarding the claimant’s mental
impairments are entitled to lesser weight.29
To the degree Dr. McFarland’s opinion was consistent with the record, the
Commissioner’s decision adequately takes it into consideration. For example,
Dr. McFarland opined that Giles has a poor ability to deal with work stress, and
the vocational expert testified that the recommended alternate jobs were
appropriate for an employee who could not handle high stress job environments.
Although ALJ Lindsay concluded that Giles’s mental health limitations
would not impair her from performing her prior work, the Appeals Council
reversed that portion of his decision. The Council’s conclusion that Giles could
perform the alternative jobs listed by ALJ Lindsay, even with her mental
limitations, is supported by substantial evidence in the record. The
Commissioner’s final decision adequately considered the testimony of treating
and examining physicians in determining Giles’s mental health limitations.
29
See 20 C.F.R. § 404.1527(d).
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iii. Physical Limitations
Giles further claims that ALJ Lindsay’s RFC assessment failed to
acknowledge the full extent of her reduced physical capacity. Specifically, Giles
cites to Dr. McFarland’s finding that Giles could only occasionally lift up to 10
pounds. Dr. McFarland also found that Giles’s condition prohibited her from
sitting for more than an hour or standing for more than an hour during an eight
hour work day. ALJ Lindsay, however, concluded that Giles could sit or stand
for a full eight hours as long as she had the option to alternate between the two
postures at will. Giles contends that this RFC determination improperly ignored
Dr. McFarland’s expert opinion.
While Dr. McFarland’s conclusions are relevant, they are not controlling.
The record does not reflect why Giles would be limited to the degree asserted by
Dr. McFarland. Moreover, even if Giles could only occasionally lift up to 10
pounds, as Dr. McFarland concluded, Giles would still be capable of performing
two of ALJ Lindsay’s alternative jobs—the telephone information clerk and the
document preparer—both of which are sedentary positions, requiring lifting of
no more than ten pounds. Likewise, Dr. McFarland limited Giles to only
occasional postural maneuvers, and while ALJ Lindsay did not incorporate that
into his RFC, the vocational expert testified that none of the three recommended
jobs would be affected if the claimant was limited in that manner. Therefore,
ALJ Lindsay adequately considered Dr. McFarland’s overall diagnosis, even if
the ALJ did not follow the precise guidance Dr. McFarland suggested with
respect to Giles’s RFC limitations.
C. Claimant’s Credibility
Giles’s third claim is that ALJ Lindsay’s credibility finding is not based
upon substantial evidence. She asserts that ALJ Griswold’s decision was
remanded in part to address the credibility issue and that ALJ Lindsay failed to
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follow the Appeals Council instructions. The Appeals Council had remanded so
the ALJ would “consider the following factors in evaluating the intensity,
persistence and limiting effects of the alleged symptoms: objective medical
evidence; medical opinions; prior work record; daily activities; the location,
duration, frequency and intensity of pain or other symptoms; precipitating and
aggravating factors; the type, dosage, effectiveness and side effects of
medication, including headaches and drowsiness; treatment other than
medication and other measures used to relieve symptoms.”
ALJ Lindsay noted that he was evaluating the intensity and persistence
of Giles’s pain based on the medical record. He summarized her full medical
record and concluded that her statements were not entirely reliable. He did not
discuss each factor listed by the Appeals Council, but his decision need not do so.
The Social Security Ruling on credibility determinations denotes the “kinds of
evidence,” including the above factors, that must be considered, but there is no
instruction that every factor must be discussed in detail in the determination.30
Of course the ALJ’s determination decision cannot simply make conclusory
statements regarding credibility and “must contain specific reasons for the
finding on credibility, supported by the evidence in the case record,”31 but ALJ
Lindsay satisfied this burden by discussing the medical record and opinions.
While the record supports Giles’s assertions regarding her diagnoses, the
extent of the symptoms she described in the hearing exceed what the record
supports. For example, Giles testified she has severe migraine headaches two
to three times a week, while the record only supports that Giles experienced
30
Social Security Ruling 96-7p, Titles II and XVI: Evaluation of Symptoms in Disability
Claims: Assessing the Credibility of an Individual’s Statements, 61 Fed. Reg. 34,483, 34,485
(July 2, 1996); see also Clary v. Barnhart, 214 Fed. App’x 479 (5th Cir. 2007) (“The ALJ is not
required to mechanically follow every guiding regulatory factor in articulating reasons for
denying claims or weighing credibility.”).
31
61 Fed. Reg. at 34,486.
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intermittent headaches, which diminished in frequency with her seizure
medication. In short, there is sufficient evidence in the record to support ALJ
Lindsay’s determination to give the claimant limited credibility.
Finally, ALJ Lindsay did not ignore Giles’s testimony entirely. He found
that Giles “has established a lengthy history of complaints of headaches, and it
is reasonable to conclude that she did experience occasional headaches that,
alone or in combination with her seizure disorder, depression, and other
impairments, could have resulted in moderate limitations.” He included these
limitations in his RFC.
D. Burden of Proving the Availability of Alternative Work
At step five in the disability benefits determination, the Commissioner has
the burden of proof to show that there is other gainful employment the claimant
is capable of performing in spite of her limitations. Giles first argues that she
is not capable of performing the cashier II or telephone information clerk jobs
because she has a moderate limitation in dealing with the public. The
Dictionary of Occupational Titles does not explicitly state that persons with such
moderate limitations are incapable of performing these jobs.32 Although the
record suggests that Giles has some limitations in social contexts, there is an
adequate basis for the ALJ to conclude that Giles could sustain some social
32
See D.O.T. 211.462-010 Cashier II (“Receives cash from customers or employees in
payment for goods or services . . . .”); D.O.T. 237.367-046 Telephone Quotation Clerk (“Answers
telephone calls from customers requesting current stock quotations . . . .”). The Appellant
notes that the vocational expert’s citation to D.O.T. 237.367-046 was in error because the
formal name is Telephone Quotation Clerk, rather than Telephone Information Clerk as stated
by the vocational expert. Appellant suggests that the vocational expert intended to refer to
D.O.T. 237.367-022, the listing for information clerk. However, the D.O.T. number originally
cited by the vocational expert is the proper listing—the alternative name for Telephone
Quotation Clerk is listed as “Telephone-Information Clerk,” which is distinct from the regular
information clerk listing.
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interaction in a work environment.33 The vocational expert testified that Giles
could perform these tasks, even if she had a moderate limitation in her ability
to interact with the general public and a marked limitation in dealing with
detailed instructions.
To overcome the vocational expert’s testimony, Giles argues that the
expert did not properly understand the term “moderate.” The ALJ defined
moderate to mean “that there are more than slight limitations but the person
can still perform the task satisfactorily.”34 The vocational expert testified that
a person with moderate limitations in maintaining concentration, carrying out
detailed instructions, and setting goals independently could perform Giles’s past
skilled work as well as the recommended unskilled alternate jobs. However, the
Appeals Council disagreed and found that Giles’s multiple moderate
impairments prohibited her from performing her prior skilled work.
Giles asserts that the Appeals Council decision undermines the vocational
expert’s conclusion because, in order to reach opposing positions about Giles’s
capacity to perform her prior skilled work, the vocational expert must have
relied on a different interpretation of multiple “moderate” impairments than the
Appeals Council endorsed. Given the facts of this case, we do not find this
argument persuasive. First, the Appeals Council based part of its decision on
the fact that Giles had not performed her prior job as a computer analyst for long
enough to retain transferable skills. Second, the vocational expert also testified
33
See Carey v. Apfel, 230 F.3d 131, 146 (5th Cir. 2000) (finding that the ALJ may rely
on the vocational expert’s testimony if the record reflects an adequate basis for doing so even
if the vocation expert’s testimony conflicts with the DOT). Further, Giles admits that the third
alternate job identified by the vocational expert, document preparer, does not require
significant interaction with the general public.
34
In an unpublished opinion, this court affirmed the use of a similar definition for
“moderate,” which is not defined by the regulations. Cantrell v. McMahon, 227 Fed. App’x 321,
322 (5th Cir. 2007) (finding the vocational expert understood the degree of limitation at issue
when the ALJ defined “moderate” to mean “there are some limitations, but the person can still
perform the task satisfactorily”).
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that a prohibition on high stress environments would prevent the claimant from
performing the computer analyst position. The ALJ’s RFC denoted that Giles
could not work in high-stress environments, yet he still included her past prior
work in his recommendation. The Appeals Council properly reversed this
portion of his decision. Yet this reversal does not mean that the remainder of
the vocational expert’s testimony was irrelevant or unpersuasive. The vocational
expert had a satisfactory understanding of the multiple moderate limitations in
Giles’s RFC, and both she and the Appeals Council found that Giles could
adequately perform the alternate unskilled jobs, even with her multiple
limitations. The Commissioner may rely upon the vocational expert’s testimony
to satisfy his burden of proof that the claimant is capable of performing alternate
jobs in the national economy.35
V. Conclusion
“Procedural perfection in administrative proceedings is not required. This
court will not vacate a judgment unless the substantial rights of a party have
been affected.”36 Giles has noted several occasions where the ALJ did not
thoroughly address each aspect of the record. Yet when dealing with such an
extensive and multi-faceted record, there will always be some evidence that is
not specifically discussed in the Commissioner’s decision. Our review is limited
to examining whether the decision to deny benefits is supported by substantial
evidence in the record, and it is here. Likewise, the Commissioner used the
proper legal standards to evaluate the evidence, and the ALJ adequately
resolved inconsistencies in the record. The decision below is AFFIRMED.
35
See, e.g., Carey, 230 F.3d at 145.
36
Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988) (per curiam); see Anderson v.
Sullivan, 887 F.2d 630, 634 (5th Cir. 1989) (quoting Mays).
17