Harvey v. Astrue , 228 F. App'x 390 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
March 29, 2007
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 06-51071
Summary Calendar
_____________________
HAROLD HARVEY,
Plaintiff - Appellant,
versus
MICHAEL J. ASTRUE, COMMISSIONER
OF SOCIAL SECURITY,
Defendant - Appellee.
Appeal from the United States District Court
for the Western District of Texas, Austin
USDC No. 1:05-CV-905
Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Harold Harvey appeals the district court’s judgment affirming
the Social Security Administration’s determination that he is not
disabled and thus is not entitled to social security disability
benefits and supplemental security income.
The Administrative Law Judge (“ALJ”) found that Harvey suffers
from diabetes mellitus, pancreatitis, hepatitis, and is “status
post-injury to his left forearm with the absence of the ability for
*
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this opinion should not be published and is not precedent except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.
pronation and/or supination at the midpoint.” The AJL found that
Harvey’s allegations regarding his limitations were not “totally
credible” and that Harvey retains the residual functional capacity
to perform work at the sedentary exertional level limited “by the
inability to lift or reach overhead with his left (non-dominant)
upper extremity.” The ALJ also found that Harvey is marginally
illiterate and thus cannot perform work that would require him to
prepare written reports or where the instructions are not given
orally or demonstrated to him.
Harvey argues that the ALJ’s residual functional capacity
determination is not supported by substantial evidence and that the
ALJ did not properly assess his credibility. We review a denial of
social security benefits “only to ascertain whether (1) the final
decision is supported by substantial evidence and (2) whether the
Commissioner used the proper legal standards to evaluate the
evidence.” Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000).
Harvey argues that the ALJ’s determination that he retains the
residual functional capacity to perform work at the sedentary
level, limited by his inability to lift or reach overhead with his
left arm, is not consistent with Dr. Ross’s conclusion that he is
limited in his ability to “lift, reach, handle, and finger” with
his left hand. At the administrative hearing, Harvey testified
that the fingers on his left hand worked and that he could touch
his thumb to his fingers. However, he testified further that the
fingers on his left hand do not work easily or well, making it hard
2
for him to pick up small things and place them in a bag or wrap a
package. Notwithstanding Harvey’s testimony and Dr. Ross’s
evaluation, the record contains substantial evidence to support the
ALJ’s determination. As the magistrate judge noted in rejecting
this contention, the only reference to a fingering limitation in
Dr. Ross’s evaluation is a check-mark in a box on a form, with the
comment, “see report”. Dr. Ross’s report, however, does not
discuss or mention any limitation on “fingering”. In addition, the
ALJ’s determination is supported by the vocational expert’s
testimony that the jobs she found Harvey would be capable of
performing are “jobs that are going to be done on a table or desk
in front of you and the use of the non-dominant hand would be just
to ... put something against it or somehow like that.”
Harvey also contends that the case must be remanded because
the testimony of the vocational expert as to the issue of
illiteracy is unclear. The record does not support this
contention. The vocational expert testified that the jobs she
cited “allow a margin of literacy” and that “many people in these
jobs ... don’t read or write at all.”
Next, Harvey asserts that some of the jobs referred to by the
vocational expert are not sedentary, but instead are described in
the Dictionary of Occupational Titles (“DOT”) as “light” in terms
of exertional requirements. The vocational expert testified,
however, that all of the jobs she cited were at the “sedentary,
unskilled level”. Harvey’s counsel had an opportunity at the
3
hearing to cross-examine the expert regarding her classification of
the jobs she cited, but did not do so. See Carey v. Apfel, 230
F.3d 131, 146-47 (5th Cir. 2000) (the claimant will not be
permitted to scan the record for unexplained conflicts between the
expert’s testimony and the provisions of the DOT when the conflict
was not deemed sufficient to merit adversarial development at the
administrative hearing).
Harvey also asserts that the ALJ’s residual functional
capacity determination is contrary to the report of Dr. Vander-
Molen and ignores the regulations requiring the ALJ to assess his
ability to do sustained work-related physical and mental activities
in a work setting on a regular and continuing basis, eight hours a
day for five days a week or an equivalent work schedule. Dr.
Vander-Molen, a vocational expert, reported that he was concerned
that Harvey’s multiple medical conditions “may cause him to be
unreliable in the competitive work environment”. Dr. Vander-Molen
reviewed Harvey’s records and interviewed him by telephone. We
will not disturb the ALJ’s resolution of the conflicts between Dr.
Vander-Molen’s report and the testimony of the medical expert, Dr.
Welch. Dr. Welch testified that, except for the problems with his
left arm, Harvey had no limitations that would prevent him from
walking, sitting, standing, or lifting ten pounds for eight hours
a day on a regular basis.
Finally, Harvey argues that the ALJ failed to properly
evaluate his credibility because the ALJ’s conclusion that he is
4
not totally credible is not supported by any specific rationale or
specific finding of discrepancies in his testimony. This
contention is without merit. The ALJ summarized Harvey’s testimony
at the hearing and noted that his description of his limitations
was not consistent with the testimony of the medical expert or with
Dr. Ross’s finding that Harvey had no limitations in lifting with
his right arm, standing, walking, or sitting. The ALJ also noted
Harvey’s testimony that he was able to care for his personal needs
and that he had worked preparing apartments for occupancy from 1999
to 2001 (after the claimed onset of disability in 1998).
For the foregoing reasons, and for the reasons given by the
magistrate judge in his thorough opinion, we conclude that the ALJ
applied the appropriate legal standards and that substantial
evidence in the record supports the ALJ’s determination that Harvey
can perform sedentary work, with the limitations recognized by the
ALJ, on a continuing basis. Accordingly, the judgment of the
district court is
AFFIRMED.
5