Dominguez-Herrera v. Astrue

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
June 22, 2009
No. 08-51052 Charles R. Fulbruge III
Summary Calendar Clerk
ALICE DOMINGUEZ-HERRERA
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-996
Before WIENER, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
Alice Dominguez-Herrera (“Herrera”) appeals the district court’s order
affirming a decision of the Commissioner of Social Security (the “Commissioner”)
that denied her application for disability insurance benefits. For the following
reasons, 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
No. 08-51052
FACTS AND PROCEEDINGS
Herrera is a fifty-seven year old woman who did not complete high school
and has no special job or vocational training. Her past work experience includes
employment as a receptionist for eighteen years, as well as shorter periods of
employment as a file clerk and a housekeeper. Herrera applied for disability
insurance benefits on July 17, 2003; she alleged that she became disabled on
April 16, 2001 due to chronic back disorders.
An administrative law judge (the “ALJ”) initially determined that Herrera
was not disabled on October 5, 2004. The Appeals Council remanded the case
to the ALJ, instructing the ALJ, among other matters, to give further
consideration to certain treating physician opinions and to Herrera’s maximum
“residual functional capacity.” The ALJ held a second hearing, and again found
that Herrera was not disabled on July 24, 2006. The Appeals Council denied
Herrera’s request for review, making the ALJ’s decision the final decision of the
Commissioner. Herrera then filed this action in federal court on December 21,
2006, seeking judicial review of the Commissioner’s decision. A magistrate judge
recommended that the Commissioner’s decision be affirmed, and the district
court adopted that recommendation on August 4, 2008. Herrera appeals.
STANDARD OF REVIEW
Our review of the Commissioner’s decision is limited to two inquiries:
“(1) whether the Commissioner applied the proper legal standard; and
(2) whether the Commissioner’s decision is supported by substantial evidence.”
Waters v. Barnhart, 276 F.3d 716, 718 (5th Cir. 2002); see also 42 U.S.C.
§ 405(g). The reviewing court may not “reweigh the evidence, but may only
scrutinize the record to determine whether it contains substantial evidence to
support the Commissioner’s decision.” Leggett v. Chater, 67 F.3d 558, 564 (5th
Cir. 1995). “Substantial evidence is more than a scintilla, less than a
preponderance, and is such relevant evidence as a reasonable mind might accept
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as adequate to support a conclusion.” Villa v. Sullivan, 895 F.2d 1019, 1021–22
(5th Cir. 1990).
DISCUSSION
A claimant is “disabled” under the Social Security Act (the “Act”) if she is
unable “to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in
death or which has lasted or can be expected to last for a continuous period of
not less than 12 months.” 42 U.S.C. § 423(d)(1)(A). The Commissioner uses a
sequential, five-step approach to determine disability.1 The claimant bears the
burden of proof under the first four steps of the inquiry. Leggett, 67 F.3d at 564.
The burden of proof shifts to the Commissioner at the fifth step to establish the
existence of other available substantial gainful employment that a claimant can
perform. Fraga v. Bowen, 810 F.2d 1296, 1301–02 (5th Cir. 1987). If the
Commissioner identifies such employment, the burden then shifts back to the
claimant to prove that she could not perform the alternative work identified. Id.
at 1302.
First, Herrera argues that, in conducting the disability determination, the
ALJ did not give proper weight to the opinions provided by the various
physicians who examined and treated her. In this circuit, “ordinarily the
opinions, diagnoses, and medical evidence of a treating physician who is familiar
with the claimant’s injuries, treatments, and responses should be accorded
considerable weight in determining disability.” Scott v. Heckler, 770 F.2d 482,
485 (5th Cir. 1985). If an ALJ declines to give a treating physician’s opinion
1
The steps include: (1) whether the claimant is presently performing substantial
gainful activity; (2) whether the claimant has a severe impairment; (3) whether the
impairment meets or equals a listed impairment; (4) whether the impairment prevents the
claimant from doing past relevant work; and (5) whether the impairment prevents the
claimant from performing any other substantial gainful activity. 20 C.F.R. §§ 404.1520(a),
416.920(a).
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controlling weight, he must explicitly consider the factors set forth in 20 C.F.R.
§ 404.1527(d) to justify his decision. See 20 C.F.R. § 404.1527(d); see also Newton
v. Apfel, 209 F.3d 448, 456 (5th Cir. 2000).
Herrera’s contention ignores the ALJ’s detailed discussion of the medical
opinions provided by the various physicians who examined and treated Herrera.
These opinions support the ALJ’s conclusion that Herrera was disabled from
April 2001 to January 2002—a disability period insufficient to meet the twelve-
month requirement under the Act. The record concerning Herrera’s
post-January 2002 condition, on the other hand, does not contain any medical
opinions indicating that Herrera had limitations greater than those determined
by the ALJ. Thus, on January 17, 2002, Dr. Cantu—Herrera’s principal treating
physician—assessed Herrera’s “whole person impairment” at only 6% and on
August 8, 2002, he noted that Herrera was capable of performing “light duty”
work. Similarly, Dr. Thorne, who examined Herrera on July 1, 2002, concluded
that Herrera was able to perform all of her daily activities, and found little
objective evidence of her alleged disorders—he assigned Herrera a “whole-person
impairment” of 5%. Further, the medical evidence concerning Herrera’s mental
impairments does not point to any disabling limitations. Accordingly, the ALJ’s
finding of “no disability” was supported by substantial evidence, including the
medical opinions of Herrera’s treating physicians. Moreover, because these
treating physicians’ opinions were given controlling weight, the ALJ was not
required to perform a detailed analysis of their views under the criteria set forth
in 20 C.F.R. § 404.1527(d).
Next, Herrera maintains that the ALJ erred in finding that Herrera had
the “residual functional capacity” to perform certain light, unskilled jobs that
exist in significant number in the national economy. Both the fourth and the
fifth step of the disability inquiry require the ALJ to assess a claimant’s
“residual functional capacity”—i.e., her ability to work despite physical and
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No. 08-51052
mental impairments—in order to determine if she is prevented from performing
past relevant work or other substantial gainful activity. See 20 C.F.R. §
404.1520(a)(4). The ALJ considered all the relevant evidence, including the
opinions of examining and non-examining physicians and the objective medical
evidence, and concluded that Herrera retained the residual functional capacity
to lift and carry twenty pounds occasionally and ten pounds frequently, sit for
six hours in an eight-hour workday, stand and/or walk for six hours in an eight-
hour workday, carry out routine instructions, and interact appropriately with
supervisors and coworkers.
Contrary to Herrera’s contention, this finding is supported by substantial
evidence—including, as indicated above, Dr. Cantu’s determination that Herrera
was capable of “light duty” work, as well as Dr. Thorne’s conclusion that Herrera
was able to perform all of her daily activities. We also reject Herrera’s argument
that the Commissioner failed to demonstrate that there are jobs in significant
numbers in the national economy that Herrera can perform gainfully. A
vocational expert testified at Herrera’s disability hearing that a hypothetical
individual of Herrera’s age, education, past work experience, and residual
functional capacity was capable of light, unskilled work, in such occupational
categories as “information clerk,” “office helper,” and “fund raiser II.” With
respect to these three representative occupations, the vocational expert noted
that there were 87,000 information clerks employed in Texas (and 1.1 million
nationally); 7,600 office helpers employed in Texas (and 135,000 nationally), and
8,300 fund raiser IIs employed in Texas (and over 200,000 nationally). The ALJ
properly relied on this testimony in concluding that Herrera was capable of
performing other substantial gainful activity than her past relevant work and
thus did not satisfy the fifth step of the disability inquiry. See Vaughan v.
Shalala, 58 F.3d 129, 132 (5th Cir. 1995) (noting that “[t]he value of a vocational
expert is that he is familiar with the specific requirements of a particular
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No. 08-51052
occupation, including working conditions and the attributes and skills needed”
(quotation omitted)).
Finally, Herrera contends that the ALJ failed to properly evaluate the
credibility of her testimony with respect to her pain and other symptoms.
Herrera correctly notes that the ALJ must consider a claimant’s stated
symptoms, including her pain, and will take into account their “location,
duration, frequency, and intensity,” “[p]recipitating and aggravating factors,”
and medications and other treatments received to alleviate those symptoms. 20
C.F.R. § 404.1529. However, the regulation also makes clear that:
[s]tatements about [a claimant’s] pain or other symptoms will not
alone establish that [she is] disabled; there must be medical signs
and laboratory findings which show that [she has] a medical
impairment(s) which could reasonably be expected to produce the
pain or other symptoms alleged and which, when considered with all
of the other evidence (including statements about the intensity and
persistence of [her] pain or other symptoms which may reasonably
be accepted as consistent with the medical signs and laboratory
findings), would lead to a conclusion that [she is] disabled.
Id.The ALJ considered and discussed Herrera’s testimony concerning her
pain and other symptoms, found Herrera’s allegations credible only to the extent
that they were consistent with the ALJ’s opinion, and stated specific reasons for
discounting Herrera’s credibility. In particular, the ALJ noted that Herrera’s
testimony that she was virtually bedridden and needed a cane to support herself
because of the intensity of her symptoms was at odds with the record as a
whole—including her inconsistent use of pain medication, her failure to pursue
ongoing medical care, and the medical opinions of the various physicians who
examined and treated her. Accordingly, the ALJ applied the proper legal
standard in assessing Herrera’s credibility, and his conclusion is supported by
substantial evidence.
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CONCLUSION
For the foregoing reasons, the judgment of the district court is
AFFIRMED.
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