Rodriguez v. Barnhart ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
July 2, 2003
Charles R. Fulbruge III
FOR THE FIFTH CIRCUIT Clerk
No. 02-51211
Summary Calendar
YOLANDA R. RODRIGUEZ,
Plaintiff-Appellant,
versus
JO ANNE B. BARNHART, COMMISSIONER
OF SOCIAL SECURITY,
Defendant-Appellee.
Appeal from the United States District Court for
the Western District of Texas
(USDC No. P-01-CV-67-F)
_______________________________________________________
Before REAVLEY, BARKSDALE and CLEMENT, Circuit Judges.
PER CURIAM:*
We affirm for the following reasons:
1. We essentially agree with the analysis offered in the magistrate judge’s report
*
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 R. 47.5, the Court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
and recommendation and the district court’s order adopting the recommendation and
granting summary judgment. The Commissioner’s decision that appellant Rodriguez was
not disabled is supported by substantial evidence.
2. The vocational expert (VE) testified that Rodriguez, a former Dairy Queen
waitress and assistant manager, could perform the job of food and beverage order clerk.
Rodriguez complains that the expert mistakenly described this job as semiskilled. She
also complains that under Social Security Policy Interpretation Ruling 00-4p, “an
individual cannot transfer skills to unskilled work,” and the VE testified about the order
clerk position in response to a question from the administrative law judge (ALJ) as to
whether Rodriguez “has any skills that are transferable to lighter work.” These errors if
any are harmless. Whether the order clerk position is semiskilled or unskilled, and
whether Rodriguez retained skills from her prior employment that were transferable to
skilled or semiskilled work, are irrelevant to whether under the fifth step of the sequential
analysis Rodriguez could perform a job that exists in significant numbers in the national
economy. The VE’s testimony supports the ALJ’s conclusion that Rodriguez was not
disabled under the five-step analysis. We also note that the hypothetical posed to the VE
included a sit/stand at will option, and we do not read the hypothetical or the VE’s
opinion to turn on whether the order clerk position was characterized as semiskilled. If
anything, the record indicates that the VE may have overestimated the skill level required
for the job that he believed Rodriguez could perform.
3. Insofar as Rodriguez complains that the VE did not know whether the order
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clerk position existed in significant numbers in the national economy, he did testify that
1180 such jobs were available annually in the twelve-county area. This testimony was
sufficient to establish that work exists in the national economy in significant numbers.
See 20 C.F.R. § 416.966(a) (2002). Given the complete absence of any evidence to the
contrary in the record, we assume that the VE selected the region in which Rodriguez
lives, and decline Rodriguez’s invitation that we speculate otherwise.
4. The ALJ did not fail to give proper regard to a treating physician’s opinions.
While entitled to considerable weight, a treating physician’s opinion is far from
conclusive and may be given little or no weight when good cause is shown. Greenspan v.
Shalala, 38 F.3d 232, 237 (5th Cir. 1994). The ALJ was not required to accept the
opinion of Dr. Gallegos-Rosales that Rodriguez was disabled. He was only one of
several doctors whose reports and opinions are in the record. Substantial evidence
including other medical evidence supports the conclusion that Rodriguez was not
disabled. Furthermore, “[a]mong the opinions by treating doctors that have no special
significance are determinations that an applicant is ‘disabled’ or ‘unable to work.’ These
determinations are legal conclusions . . . .” Frank v. Barnhart, 326 F.3d 618, 620 (5th
Cir. 2003) (citation omitted).
4. The ALJ did not err in discounting Rodriguez’s subjective complaints of pain
as inconsistent with other evidence in the record, including evidence of her daily routine
and medical evidence. “The ALJ must consider subjective evidence of pain, but it is
within his discretion to determine the pain’s disabling nature.” Wren v. Sullivan, 925
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F.2d 123, 128 (5th Cir. 1991) (citation omitted). The ALJ was not required to accept
without qualification the claimant’s subjective testimony regarding pain.
5. Watson v. Barnhart, 288 F.3d 212 (5th Cir. 2002), does not require an explicit
finding in every case that the claimant can not only engage in substantial gainful activity
but maintain that employment as well. We have since held that “Watson requires a
situation in which, by its nature, the claimant’s physical ailment waxes and wanes in its
manifestation of disabling symptoms,” Frank, 326 F.3d at 619, a situation we do not find
applicable to the pending case. In this case, the ALJ considered but rejected Rodriguez’s
testimony that she must lie down for three days out of the week due to pain. Again, a
determination of the disabling nature of the claimant’s pain is a matter within the
discretion of the ALJ.
AFFIRMED.
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