Escalante v. Astrue

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
July 15, 2008
No. 07-51027
Summary Calendar Charles R. Fulbruge III
Clerk
ROBERT ESCALANTE
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-244
Before JONES, Chief Judge, and CLEMENT, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Appellant Robert Escalante challenges the decision of the district court,
which adopted the magistrate judge’s report and recommendation and affirmed
the denial of disability benefits for Escalante’s back problems and non-exertional
impairments. We affirm for essentially the reasons stated in the magistrate
judge’s report and add the following observations.
1. Although the ALJ did not specifically analyze the impact of
appellant’s “severe depression” and academic limitations, it is clear from the
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-51027
hearing record and the ALJ decision that these conditions factored in the overall
RFC determination. The magistrate judge’s report explains how this occurred
at page 12 of his decision. R.O.A. 57. It is also noteworthy that the depression
was listed by the ALJ as one among all of the appellant’s health problems; the
Appellant acknowledged in the hearing that he is taking no medication other
than to help him sleep; and Dr. Benbow, who evaluated him in January 2004,
found no clinically depressive symptomatology. We conclude from the record
that substantial evidence supports the ALJ’s evaluation of the work-related
consequences of appellant’s depressed mood.
2. The ALJ properly explained his weighing of the opinions of the
examining orthopedist Dr. Beal and the treating physician Dr. Vo. He was not
required to attribute greater credibility to Dr. Vo. Griego v. Sullivan, 940 F.2d
942,945 (5th Cir. 1991) (recent medical evidence more probative); Moore v.
Sullivan, 919 F.2d 901, 905 (5th Cir. 1990) (ALJ must decide between conflicting
medical reports).
3. The ALJ’s determination of residual functional capacity is
adequately supported in law and fact because it specifically takes into account
appellant’s mental inability to perform more than “simple unskilled work” and
uses a physical subset of light duty work based on his back problems and mental
condition. Appellant has waived the arguments he now makes, but failed to
raise in the district court, to challenge the jobs that the vocational expert found
he could perform. Chaparro v. Bowen, 815 F.2d 1008, 1011 (5th Cir. 1987).
4. Appellant’s assertions of illiteracy considerably exaggerate the
evidence in the record. Further, the ALJ found appellant’s subjective complaints
“not totally credible.” These circumstances additionally support our determina-
tion to AFFIRM the judgment of the district court.
AFFIRMED.
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