Carolyn Thomas v. Carolyn Colvin, Acting Cmsnr

Case: 14-10143 Document: 00512809242 Page: 1 Date Filed: 10/21/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 14-10143 United States Court of Appeals
Summary Calendar Fifth Circuit
FILED
October 21, 2014
CAROLYN S. THOMAS, Lyle W. Cayce
Clerk
Plaintiff - Appellant
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL
SECURITY,
Defendant - Appellee
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 3:12-CV-4415
Before BENAVIDES, SOUTHWICK, and COSTA, Circuit Judges.
PER CURIAM:*
Appellant Carolyn S. Thomas (“Thomas”), a Social Security disability
claimant, appeals pro se the district court’s affirmance of the Commissioner’s
denial of disability insurance benefits under § 205(g) of the Social Security
Act. 1
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.
1 42 U.S.C. § 405(g) (2012).
Case: 14-10143 Document: 00512809242 Page: 2 Date Filed: 10/21/2014
No. 14-10143
In March of 2010, Thomas filed her applications for disability insurance
benefits (“DIB”) and supplemental security income (“SSI”) payments, based on
a disability allegedly beginning on March 1, 2005. 2 After a hearing on Thomas’s
claim, the administrative law judge (“ALJ”) found that Thomas was not
disabled. 3 For purposes of judicial review, Thomas’s administrative remedies
were exhausted when the Appeals Council denied Thomas’s request for review
of the ALJ’s decision; 4 at that point, the ALJ’s decision became the
Commissioner’s “final decision” for purposes of § 405(g). Thomas appealed the
decision to the district court, which affirmed the ALJ’s decision. 5 We find that
there was substantial evidence to support the ALJ’s decision, and that the ALJ
applied proper legal standards when evaluating the evidence. Appellant has
shown no error, and we affirm the decision of the district court.
As an initial matter, in her motion to supplement record excerpts,
Thomas seeks to supplement her record excerpts with documentation that is
either already included in the record or immaterial to our analysis. The motion
is DENIED.
Consistent with the statutory structures of § 405(g), “[o]ur standard of
review of social security disability claims is exceedingly deferential and limited
to two inquiries: whether substantial evidence supports the ALJ’s decision, and
whether the ALJ applied the proper legal standards when evaluating the
evidence.” 6 In that analysis, substantial evidence comprises “more than a
scintilla, less than a preponderance, and . . . such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” 7 In
2 ROA at 125-26, 198-206, 238.
3 Id. at 79-83.
4 Id. at 58-63.
5 See id. at 10-12, 821-37, 849.
6 Taylor v. Astrue, 706 F.3d 600, 602 (5th Cir. 2012).
7 Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983).
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No. 14-10143
evaluating the presence of substantial evidence, we will not reweigh the
evidence nor substitute our judgment, but will instead find evidentiary support
insufficient “only where there is a ‘conspicuous absence of credible choices’ or
‘no contrary medical evidence.’” 8 Lastly, where supported by substantial
evidence, the Commissioner’s factual findings are conclusive. 9 Toward this
end, we review the entire record during the relevant evidentiary period, which
begins with the onset date of the alleged disability, March 1, 2005, and ends
on the date of the ALJ’s decision, July 29, 2011. 10
The Social Security Act entitles individuals to certain benefits so long as
several conditions are met. 11 Among these conditions, an applicant must suffer
from a disability, defined as “the inability to engage in substantial gainful
activity by reason of any medically determinable physical or mental
impairment that can be expected to result in death or last for a continuous
period of 12 months.” 12 The disability determination proceeds through a five-
step sequence, analyzing whether:
(1) the claimant is presently working; (2) the claimant has a severe
impairment; (3) the impairment meets or equals an impairment
listed in appendix 1 of the social security regulations; (4) the
impairment prevents the claimant from doing past relevant work;
and (5) the impairment prevents the claimant from doing any
other substantial gainful activity. 13
A conclusive finding on the presence of disability ends the inquiry at that point
in the analysis. 14
8 Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir. 1988) (quoting Hames, 707 F.2d at
164).
See Richardson v. Perales, 402 U.S. 389, 390 (1971).
9
ROA at 79, 83.
10
11 See 42 U.S.C. § 423(a) (2012).
12 See id. § 423(d)(1)(A).
13 Audler v. Astrue, 501 F.3d 446, 447-48 (5th Cir. 2007); see 20 C.F.R.
§§ 404.1520(a)(4), 416.920(a)(4) (2014).
14 See Bowling v. Shalala, 36 F.3d 431, 435 (5th Cir. 1994).
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The ALJ concluded his analysis at the second step, after finding that
Thomas did not have a severe impairment based on a lack of medical evidence
supporting her application. 15 Specifically, the ALJ noted that very little
treatment substantiated any impairment resulting from Thomas’s complaints
of hand, back, chest, and hip pain, along with her diagnoses of unspecified joint
disorder and hypertension. Ultimately, the ALJ found that Thomas’s
“subjective allegations regarding her impairment-related symptoms and
limitations are at least somewhat exaggerated as they are not wholly
consistent with the clinical findings on examination.” 16 Accordingly, the ALJ
concluded that Thomas was not disabled during the relevant period, and was
therefore not entitled to DIB or SSI benefits. 17
Though the ALJ’s decision substantially described both Thomas’s
allegations and the relevant medical evidence, 18 we must nevertheless
“scrutinize the record in its entirety to determine whether substantial evidence
does indeed support the [ALJ’s] findings.” 19 Having done so, we hold that the
ALJ’s conclusions are supported by substantial evidence.
Thomas variously challenges the ALJ’s decision based on evidentiary
weight and credibility, but these challenges do not vitiate the evidentiary
sufficiency of the ALJ’s conclusion. While an ALJ must consider evidence of
pain, it is within the ALJ’s discretion to resolve discrepancies between
subjective complaints of pain and competing medical evidence. 20 Though
15 ROA at 83.
16 Id.
17 Id.
18 Id. at 81-83.
19 Fields v. Bowen, 805 F.2d 1168, 1169 (5th Cir. 1986) (quoting Ransom v. Heckler,
715 F.2d 989, 992 (5th Cir. 1983)).
20 See Dunbar v. Barnhart, 330 F.3d 670, 672 (5th Cir. 2003) (per curiam) (holding
that ALJ did not err in considering cardiac condition as non-disabling, “discounting Dunbar’s
subjective complaints of pain as inconsistent with other evidence in the record, including the
findings of physicians”).
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Thomas challenges the ALJ’s decision as ignoring a September 2010
assessment of lumbago (or back pain), 21 the ALJ expressly acknowledged the
lumbago assessment, but did not find that the lumbago resulted in a “severe
impairment” due to other evidence from the same assessment, i.e., Thomas’s
full range of motion in her back and extremities, her ability to walk and move
without difficulty, and her back x-ray which was negative for abnormalities. 22
Likewise, Thomas notes that the ALJ did not mention a November 2010
assessment of lumbago, described in that instance as a “medically
determinable impairment.” 23 At the same time, as the ALJ described and the
record reveals, “contrary medical evidence” from the same time period
supported the ALJ’s finding that the lumbago did not create severe
impairment. 24 As a result, the Commissioner’s decision was supported by
substantial evidence and, insofar as Thomas requests that we reweigh
evidence, we decline to do so.
As part of her challenge to the ALJ’s severe-impairment finding, Thomas
also asserts error in the ALJ’s failure to consider her age, education, past work
experience, and residual functioning capacity. 25 Additionally, Thomas asserts
that her lumbago, as a condition allegedly listed in appendix 1 of the social
security regulations, warrants a different finding. 26 However, the ALJ’s five-
step analysis only incorporates such considerations during steps three through
five; since we have concluded that the ALJ’s decision was sufficiently
supported at step two, these issues are not grounds for remand. 27
21 See MEDLINEPLUS, Back Pain, http://www.nlm.nih.gov/medlineplus/backpain.html.
22 ROA at 82, 383-85.
23 Id. at 395.
24 See Johnson, 864 F.2d at 343-44 (quoting Hames, 707 F.2d at 164).
25 Blue Br. at 8-9.
26 Id. at 12.
27 Compare 20 C.F.R. § 404.1520(a)(4)(iv)-(v), and 20 C.F.R. § 416.920(a)(4)(iv)-(v),
with 20 C.F.R. § 404.1520(c), and 20 C.F.R. § 416.920(c); see also Bowling, 36 F.3d at 435.
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Furthermore, we hold that there was no error by the Appeals Council
and district court regarding evidence that Thomas submitted after the ALJ’s
determination on July 29, 2011. The standards governing consideration of
additional evidence by the Appeals Council and district court are similar in
requiring that the evidence be both new and material. 28 In this context,
material evidence creates “a reasonable possibility that it would have changed
the outcome of the [Commissioner’s] decision.” 29 Therefore, materiality
impliedly requires evidence to “relate to the time period for which benefits were
denied, and that it not concern evidence of a later-acquired disability or of the
subsequent deterioration of the previously non-disabling condition.” 30 The
additional evidence to which Thomas alludes is either not new, because it was
included in the record considered by the ALJ, or not material, falling outside
the relevant time period or not supporting an impairment, and therefore does
not create a reasonable possibility of changing the outcome.
For the foregoing reasons, the decision of the district court is
AFFIRMED; motion to supplement is DENIED.
28 See 20 C.F.R. §§ 404.970(b), 404.976(b)(1), 416.1470(b), 416.1476(b); Bradley v.
Bowen, 809 F.2d 1054, 1058 (5th Cir. 1987).
29 Bradley, 809 F.2d at 1058 (quoting Chaney v. Schweiker, 659 F.2d 676, 679 (5th
Cir. 1981)).
30 Id. (quoting Johnson v. Heckler, 767 F.2d 180, 183 (5th Cir. 1985)). In this respect,
materiality encompasses the third requirement for consideration of additional evidence by
the Appeals Council, i.e., that the evidence relates to the period before the ALJ’s decision,
since only such evidence which relates to the time period for which benefits were denied can
affect the outcome of the Commissioner’s decision. See 20 C.F.R. §§ 404.976(b)(1),
416.1476(b)(1).
6