Domingue v. Barnhart

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS September 23, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 04-30197
Summary Calendar
SHAWANNA DOMINGUE,
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
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Before REAVLEY, BARKSDALE and EMILIO M. GARZA, Circuit Judges.
PER CURIAM:
Shawanna Domingue appeals from the district court’s judgment
affirming the denial of her application for Child Disability
Benefits and Supplemental Security Income. Domingue argues that
the administrative law judge (ALJ) failed to articulate the
proper standard under Loza v. Apfel, 219 F.3d 378, 391-92 (5th
Cir. 2000), when the ALJ determined that Domingue’s alleged
depression was not a severe impairment. Domingue also contends
that the district court erred by not addressing two of her
claims.
The ALJ did not misapply the standard for identifying a non-
severe impairment because the ALJ concluded that the alleged
depression was no impairment at all. The ALJ’s conclusion is
No. 04-30107
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fully supported by substantial evidence in the record. At the
administrative level Domingue did not contend that depression was
an impairment, and, in the courts, she pointed to no evidence
indicating that her alleged depression affected her ability to
work. See Pierre v. Sullivan, 884 F.2d 799, 803 (5th Cir. 1989)
(“isolated comments” about claimant’s intellectual functioning,
viewed within whole record, were insufficient to raise suspicion
of mental retardation); Shave v. Apfel, 238 F.3d 592, 596 (5th
Cir. 2001) (no evidence that an alleged impairment precluded
employment).
Domingue is correct that the district court failed to
address two of her claims. However, remand is unnecessary
because this court reviews the record under the same standard as
the district court, and the record contains substantial evidence
to support the ALJ’s conclusion. See Martinez v. Chater, 64 F.3d
172, 173 (5th Cir. 1995) (avoiding remand and affirming where
there was “substantial evidence in the record to support the
Commissioner’s decision”).
The record reveals substantial evidence that Domingue’s
intellectual functioning was “borderline” and did not fit within
the listed impairment of mental retardation combined with other
impairments as provided by 20 C.F.R. § 404, Subpt. P., App. 1,
§ 12.05(C). In addition, the ALJ posited an adequate
hypothetical question to the vocational expert, taking into
account all the restrictions reasonably warranted by the
evidence, and properly relied on the vocational expert’s
No. 04-30107
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testimony that Domingue is able to perform work in the national
economy. See Morris v. Bowen, 864 F.2d 333, 336 (5th Cir. 1988).
The judgment of the district court is
AFFIRMED.