Ray v. Barnhart , 163 F. App'x 308 ( 2006 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
January 17, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
____________________ Clerk
No. 05-50163
Summary Calendar
____________________
JOHN T RAY
Plaintiff - Appellant
v.
JO ANNE B BARNHART, COMMISSIONER OF SOCIAL SECURITY
Defendant - Appellee
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas, Austin
No. 1:03-CV-861
_________________________________________________________________
Before KING, BARKSDALE and BENAVIDES, Circuit Judges.
PER CURIAM:*
Plaintiff-appellant John T. Ray (“Ray”) appeals the denial
of his claim for Social Security disability benefits. For the
following reasons, we AFFIRM the judgment of the district court.
I. FACTUAL AND PROCEDURAL BACKGROUND
On July 10, 2000, Ray filed a claim for disability benefits
*
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this opinion should not be published and is not precedent except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-
with the Social Security Administration pursuant to 42 U.S.C.
§ 401, alleging a disability onset date of December 1, 1999.1
After the Commissioner denied his claim, Ray requested and
received a hearing before an Administrative Law Judge (“ALJ”) on
May 13, 2002.
At the hearing, Ray presented the following facts. In 1984,
Ray’s right leg was amputated following a car accident. Ray
asserted that since then, he has had pain in his legs, has had
trouble standing for any length of time, has experienced back
pain, and has suffered from depression. Moreover, his prosthesis
does not fit well, causing pain and bleeding of the stump
whenever he must walk or stand for a long period of time. Ray
also testified that he suffered from drug addiction and was in a
substance abuse program.2 The ALJ also heard testimony from a
1
Ray had previously received disability benefits from 1993
through December 1998, at which time he was informed that his
benefits would be terminated due to medical improvement. Ray
received his last payment of disability benefits in February
1999. Because Ray subsequently filed a new application for
disability benefits with an onset date of July 10, 2000, we note
at the outset that this is not a termination case subject to the
“medical improvement” standard under 42 U.S.C. § 423(f). See
Richardson v. Bowen, 807 F.2d 444, 445 (5th Cir. 1987) (“The
plain language of the statute indicates that the Secretary must
make a finding of medical improvement only in termination
cases.”).
2
According to the record, Ray was diagnosed with a
condition known as “polysubstance abuse disorder,” which more
accurately described his battles with alcohol, marijuana, and
heroin/methadone abuse. 2 R. at 21. Although his testimony
revealed that he still drinks beer and occasionally smokes
marijuana, Ray claimed to have successfully given up heroin and
methadone.
-2-
medical expert (Dr. Barbara Felkins) and a vocational expert
(Diana Moore) to assess Ray’s condition.
At the close of evidence, the ALJ issued an eight-page
opinion denying Ray’s request for Social Security disability
benefits and providing reasons for that denial. The ALJ
indicated that she had “carefully considered all of the medical
opinions in the record regarding the severity of claimant’s
impairments,” and that she found Ray’s “allegations regarding his
limitations . . . not totally credible for the reasons set forth
in the body of the decision.” 2 R. at 21. Specifically, she
found that Ray
has the following residual functioning capacity: lift 20
lbs. occasionally; lift and carry 10 lbs. frequently;
stand and/or walk 2 hours out of 8 hours intermittently,
no more than 15 minutes at one time and then would have
to be seated; sit for 8 hours out of an 8 hours [sic]
with normal breaks; occasionally bend or stoop; unable to
squat or knee [sic]; unable to climb stairs, ladders,
ropes, or scaffolds; unable to or [sic] work at
unprotected heights or around dangerous moving machinery;
and who has a fair ability (somewhat affected or below
average) to maintain attention and concentration for an
extended period[] (more than 2 hours).
Id. Although the ALJ found that Ray could no longer perform the
work he had done in the past, she concluded that, given his age
and educational background,3 he had the residual functional
capacity to perform a range of sedentary and light work jobs that
3
At the time of his hearing before the ALJ, Ray was only
forty-seven years old and had received his GED despite dropping
out of school after the eighth grade, which qualified him as a
“younger person" with the equivalent of a “high school education”
under the regulations. See 20 C.F.R. §§ 416.963-.964.
-3-
existed in sufficient numbers in the national economy, including
such jobs as taxicab dispatcher, toll collector, ticket seller,
and bench assembly. Therefore, the ALJ determined that Ray was
not disabled during the relevant time period.
Ray appealed the ALJ’s decision to the Social Security
Administration Appeals Council, which affirmed the ALJ’s denial
of benefits. Ray then sought review of this determination in the
United States District Court for the Western District of Texas.
The case was referred to a magistrate judge, who issued a report
and recommendation to affirm the ALJ’s decision on September 22,
2004. On January 11, 2005, the district court issued a final
judgment adopting the magistrate judge’s recommendation. Ray
filed this timely appeal on January 20, 2005.
Ray raises two claims in this appeal. First, Ray argues
that there is not substantial evidence to support the ALJ’s
assessment of the record, particularly with respect to his
ability to maintain concentration. Specifically, with respect to
his substantial evidence challenge, Ray alleges that the ALJ
failed to adequately consider Ray’s credibility, the testimony of
his treating physician, and the extent to which his residual
functional capacity compromised his ability to secure alternative
employment. Second, Ray asserts that the ALJ applied the
incorrect legal standard with respect to determining the extent
and impact of the pain Ray claimed to suffer as a result of his
physical impairments.
-4-
II. STANDARD OF REVIEW
Our review of the Commissioner’s decision is limited to two
inquiries: (1) whether the decision is supported by substantial
evidence on the record as a whole, and (2) whether the
Commissioner applied the proper legal standard.1 See 42 U.S.C.
§ 405(g); Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005).
“Substantial evidence is ‘such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.’”
Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994) (quoting
Richardson v. Perales, 402 U.S. 389, 401) (1971)); see also
Masterson v. Barnhart, 309 F.3d 267, 272 (5th Cir. 2002)
(describing the substantial evidence review as requiring “more
than a mere scintilla and less than a preponderance” of evidence)
(quoting Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000)).
The Commissioner’s factual findings are conclusive to the extent
they are supported by substantial evidence in the record.
Perales, 402 U.S. at 390. In applying the substantial evidence
standard, we examine the record evidence as a whole, but may not
substitute our judgment for the Commissioner’s or re-weigh the
evidence. Perez, 415 F.3d at 461; Masterson, 309 F.3d at 272.
1
Although Ray’s brief confuses the components of his
substantial evidence and legal standard challenges at times, this
opinion addresses the merits of each argument according to the
applicable statutory and regulatory provisions and case law in
this circuit.
-5-
III. DISCUSSION
A claimant bears the burden of proving that he suffers from
a disability under the Social Security Act (“SSA”). Anthony v.
Sullivan, 954 F.2d 289, 293 (5th Cir. 1992). “Disability” is
defined under the SSA as “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);
Newton, 209 F.3d at 452. In examining a disability claim, the
Commissioner follows the familiar five-step sequential analysis
to determine whether: (1) the claimant is currently engaged in
substantial gainful activity;5 (2) he has a severe impairment;
(3) the impairment meets or equals the severity of a listed
impairment in Appendix 1 of the regulations; (4) the impairment
prevents the claimant from performing past relevant work in light
of his residual functional capacity;6 and (5) the impairment
prevents him from adjusting to other work in light of his
residual functional capacity. 20 C.F.R. §§ 404.1520, 416.920;
see Loza v. Apfel, 219 F.3d 378, 390 (5th Cir. 2000).
5
“Substantial gainful activity” is work activity that
involves doing significant physical or mental activities for pay
or profit. 20 C.F.R. § 404.1572(a)-(b).
6
The term “residual functional capacity” is defined as the
most an individual can still do after considering the physical
and mental limitations that affect the ability to perform work-
related tasks. 20 C.F.R. § 416.945(a)(1).
-6-
If the claimant satisfies the first four steps with
sufficient proof, the burden shifts to the Commissioner to
demonstrate that the claimant can perform other substantial work
in the national economy. Masterson, 309 F.3d at 272; see also
Brown v. Apfel, 192 F.3d 492, 498 (5th Cir. 1999) (“This shifting
of the burden of proof to the Commissioner is neither statutory
nor regulatory, but instead, originates from judicial
practices.”). Once the Commissioner proffers evidence that the
claimant can perform other substantial work, the ultimate burden
of proof “returns to the claimant to rebut the Commissioner’s
showing.” Masterson, 309 F.3d at 272. Consistent with the
sequential nature of the analysis, a finding that the claimant is
not disabled at any step is conclusive and ends the inquiry. Id.Because the parties do not dispute the ALJ’s findings that Ray
satisfied the first four steps of the analysis, we will focus our
attention on the fifth and final step in scrutinizing the merits
of this appeal.
Ray argues that the ALJ’s final decision at the fifth step
of the analysis is not supported by substantial evidence. See
Ripley v. Chater, 67 F.3d 552, 557 (5th Cir. 1995) (reversing
grant of summary judgment and remanding to ALJ to determine the
extent to which new medical evidence demonstrated the claimant’s
inability to perform sedentary work); Randall v. Sullivan, 956
F.2d 105, 109 (5th Cir. 1992) (finding a lack of substantial
-7-
evidence to support a disability determination where the ALJ
relied on an improper medical report). In particular, he asserts
that the ALJ underestimated the severity and extent of his
physical limitations from his back pain and ill-fitting
prosthesis. He also claims that the ALJ ignored altogether that
he has a personality disorder, which he argues impairs his
ability to concentrate and maintain employment. He then rehashes
each of the ALJ’s findings regarding his condition without
providing specific reasons why the ALJ’s findings are not
supported by substantial evidence or why he claims the ALJ failed
to give certain facts sufficient weight.
In response, the government maintains that the ALJ’s
decision was supported by substantial evidence on each of the
above points. The government argues that the ALJ properly
evaluated Ray’s condition and ability to engage in substantial
gainful employment, pointing out that the ALJ cited extensively
the testimony from the expert medical witness, Ray’s treating
physician, and the vocational expert. Moreover, the government
asserts that the ALJ has the duty to weigh the evidence,
determine witness credibility, and resolve conflicts. Johnson v.
Bowen, 864 F.2d 340, 347 (5th Cir. 1988).
The district court, adopting the report and recommendation
of the magistrate judge, found that the ALJ’s decision did in
fact consider the severity of Ray’s physical and psychological
-8-
limitations before reaching its final determination that he was
still capable of performing light and sedentary work. We agree.
Contrary to Ray’s assertions that the ALJ failed to adequately
consider his back pain and stump irritation, there is substantial
evidence in the record showing otherwise. The ALJ’s opinion
appropriately reviewed Ray’s complaints in light of conflicting
medical evidence in the record. See Moon v. Bowen, 810 F.2d 472,
473 (5th Cir. 1987) (finding substantial evidence to support the
ALJ’s denial of disability benefits despite the applicant’s claim
that he was experiencing back pain). For instance, the ALJ
specifically referred to x-rays of Ray’s lumbar and cervical
spine that were within the normal range and revealed only modest
degenerative changes in discounting Ray’s claims of back pain.
See Brown v. Apfel, 192 F.3d 492, 495 (5th Cir. 1999) (finding
substantial evidence to support the ALJ’s determination that the
claimant did not suffer from a disabling back condition where x-
rays revealed “no physiological abnormalities”). Given the
limited scope of our review, we find that the ALJ’s careful
analysis on this score was amply supported by substantial
evidence.
With respect to his psychological condition, the ALJ did in
fact consider and discuss the depressive disorder that impaired
his concentration abilities before concluding at step five of the
analysis that its effects would not significantly limit his
-9-
ability to perform certain kinds of work available in the
national economy. See Sims v. Apfel, 224 F.3d 380, 381 (5th Cir.
2000) (affirming a denial of disability benefits where the record
reflected only “a mild to moderate difficulty with concentration
and attention due to pain, and moderate difficulty functioning
due to depression”). The medical expert examining the records of
Ray’s psychiatric evaluations also concluded that his depressive
disorder was largely related to his substance abuse problems and
that Ray had shown improvement through treatment. Indeed, Ray’s
global assessment of functioning (“GAF”) score of 70 indicates
only mild symptoms or some difficulty in social or occupational
functioning. See Boyd v. Apfel, 239 F.3d 698, 700 n.2 (5th Cir.
2001) (“GAF is a standard measurement of an individual’s overall
functioning level with ‘respect only to psychological, social,
and occupational functioning.’”) (quoting AMERICAN PSYCHIATRIC ASS’N
DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS at 32 (4th ed.
1994)).
Ray argues that another treating psychiatrist (Dr. Crane)
found him to have a GAF of 45, which Ray contends the ALJ
incorrectly disregarded in its opinion. This is simply not the
case. Although the ALJ never expressly mentioned Dr. Crane by
name or the conflicting GAF scores, she did discuss the
outpatient treatment that Ray received from Dr. Crane in her
written opinion. We are mindful that considerable weight must be
-10-
accorded to the opinion of a treating physician; however, the ALJ
may give “less weight, little weight, or even no weight” to the
opinion of a treating physician upon a showing of good cause.
Myers v. Apfel, 238 F.3d 617, 621 (5th Cir. 2001); see also 20
C.F.R. § 404.1527(d)(2) (giving “controlling weight” to a
treating physician’s opinion only if “well-supported by medically
acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with the other substantial evidence” in the
record).
The record indicates that Dr. Crane’s assessment was
considerably less thorough than the one primarily relied upon in
the ALJ’s opinion and was, as well, somewhat internally
inconsistent. Specifically, Dr. Crane’s evaluation does not
include an explanation for the GAF rating provided and
conspicuously failed to check a box on the evaluation form to
report any occupational problems stemming from Ray’s ailments.
See Leggett v. Chater, 67 F.3d 558, 566 (5th Cir. 1995)
(affirming a denial of disability benefits where the ALJ placed
little emphasis on an “isolated, conclusory statement” about the
applicant’s condition that conflicted with the rest of the
evidentiary record); Greenspan, 38 F.3d at 238 (affirming ALJ’s
decision to disregard the opinion of a treating physician that
was “conclusory” and “contradicted by both itself and outside
medical evidence”). Given the limited scope of our review and
-11-
presence of conflicting accounts of Ray’s mental condition in the
record, we find substantial evidence to support the ALJ’s
conclusion. See Sims, 224 F.3d at 381 (affirming ALJ’s denial of
disability benefits for “a person capable of performing light
work who had a mild to moderate difficulty with concentration and
attention due to pain, and moderate difficulty functioning due to
depression”).
As the district court correctly found in adopting the
magistrate judge’s report, the ALJ’s decision bespeaks a careful
analysis of the medical evidence available in the record before
reaching its conclusion to deny disability benefits to Ray.
First, the ALJ noted that Ray’s mental status evaluations
characterized him as having a euthymic mood, stable affect, and
thought processes that were logical, coherent, and goal oriented.
Second, upon his release from inpatient psychiatric treatment for
severe depression and suicidal ideation, Ray’s mental condition
showed marked improvement, including goal-directed speech, intact
insight and judgment, and no further evidence of suicidal or
delusional ideations.7 Third, with respect to his physical
7
These improvements are also consistent with the testimony
of Dr. Felkins at the hearing, who concluded that Ray’s substance
abuse problems were closely associated with his mental condition.
In fact, Ray testified at the hearing that he had successfully
given up his previous addictions to methadone and heroin,
although he admitted that he continued to drink beer and smoke
marijuana on occasion.
-12-
limitations, our review of the record indicates that the ALJ
actually adopted the most conservative assessment of Ray’s
functional limitations. When viewed in this light, Ray’s
arguments that the ALJ failed to adequately consider his
disabling condition certainly lack merit under our substantial
evidence standard of review. Finally, the ALJ’s opinion rightly
and expressly used the live testimony from the medical and
vocational experts to balance the conflicting evidence in the
record. See Masterson, 309 F.3d at 273; see also Vaughan v.
Shalala, 58 F.3d 129, 132 (5th Cir. 1995) (approving of the ALJ’s
use of a vocational expert). Thus, we find that substantial
evidence supports the ALJ’s conclusion that Ray retained the
requisite capacity to perform light and sedentary work activities
despite his depressive disorder.
Finally, Ray argues that the ALJ ignored the requirements of
20 C.F.R. § 416.929 in assessing the extent and impact of the
pain Ray suffered. Specifically, Ray alleges that the ALJ failed
to consider whether his symptoms of pain were consistent with the
objective medical evidence. The government responds that the ALJ
properly evaluated Ray’s subjective claims of pain under the
appropriate legal standards. In particular, the government
argues that the ALJ correctly examined his claims in light of the
countervailing medical testimony. Moreover, the government
maintains that a reviewing court should give deference to the
-13-
ALJ’s credibility determinations. Selders v. Sullivan, 914 F.2d
614, 617 (5th Cir. 1990).
We agree with the government and find no merit in this
aspect of Ray’s appeal. Under 20 C.F.R. § 416.929(a), the ALJ is
directed to “consider all [an individual’s] symptoms, including
pain, and the extent to which [an individual’s] symptoms can
reasonably be accepted as consistent with the objective medical
evidence, and other evidence.” As stated in the magistrate
judge’s report and recommendation to the district court, the ALJ
was “clearly aware” of her need to assess Ray’s pain symptoms and
the extent to which those symptoms were consistent with the
record evidence. Accordingly, the ALJ contrasted Ray’s testimony
that he experienced back pain with the x-ray evidence showing
normal lumbar conditions and only minor degenerative changes in
the cervical vertebrae. See Brown, 192 F.3d at 500 (finding no
abuse of discretion under the relevant regulations where the ALJ
discounted the individual’s pain symptoms because “every
objective medical assessment revealed no physiological basis for
[the individual’s] pain”). Further, the objective medical
evidence in the record demonstrated that Ray could perform a full
range of daily activities, and the ALJ correctly took this into
account in reaching her final determination. Id. Thus, we find
absolutely no merit in Ray’s argument that the ALJ failed to
apply the correct legal standard to assess his subjective claims
-14-
of pain.
IV. CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the
district court.
-15-