Smith v. Barnhart ( 2003 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-50554
Summary Calendar
GARY D. SMITH,
Plaintiff-Appellant,
versus
JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Texas
USDC No. EP-00-CV-197-NG
February 26, 2003
Before GARWOOD, JOLLY and SMITH, Circuit Judges.
PER CURIAM:*
Gary D. Smith appeals the denial of his application for Social
Security disability benefits alleging that he was disabled because
of severe gastroenteritis, hearing loss, impinged shoulders, sinus
bradycardia, hypertension, leukocytoclatic vasculitis, vertigo, bad
back, granuloma, contact dermatitis, degenerative joint disease of
*
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opinion should not be published and is not precedent except under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.
the feet, toes, ankles, knees, hips, lower back, upper back, neck,
shoulders, elbows, wrists, hands and fingers, bad feet, allergic
rhinitis, hay fever, sinusitis, a depressive disorder, obsessive-
compulsive disorder, breathing difficulties, and fibromyalgia.
Smith argues that the “district court” failed to consider what
effect his combined mental and physical impairments had on his
ability to engage in substantial gainful employment. In
particular, he complains that the ALJ did not find that his alleged
fibromyalgia and/or his mental condition were disabling. He also
contends that the district court erred in finding that his
impairments did not meet or equal the listing of impairments and in
finding that the ALJ did not fail to fully develop the medical
evidence.
Although the record contains a diagnosis of fibromyalgia in
June 1982, some nine years before Smith retired from the Army,
there was no evidence that this condition was disabling. After his
retirement (not shown to be for disability), Smith was able to
handle his own affairs and kept busy with various activities
despite being unemployed. The assessment of fibromyalgia presented
to the Appeals Council was made more than two years after the date
Smith was last insured for disability benefits and is therefore
irrelevant. Torres v. Shalala, 48 F.3d 887, 894 n.12 (5th Cir.
1995).
The ALJ noted Smith’s allegation that a mental impairment
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relative to depression and obsessive-compulsive disorder limited
his ability to perform basic work activities. He also noted,
however, that Smith had never sought treatment for complaints of
any emotional or mental symptoms and that he told a psychiatrist
that he was experiencing some psychiatric symptoms but overall had
adapted well to civilian life and was not under any psychiatric
care. He noted that a mental status evaluation described Smith as
within normal limits. The ALJ noted that Dr. Rodriguez-Chevres, a
psychiatrist, had diagnosed the possible presence of obsessive-
compulsive disorder, and cyclothymic disorder or bipolar mood
disorder, but had concluded that any psychiatric condition that
might be present did not significantly limit Smith’s social or
industrial adaptability. Finally, the ALJ noted Dr. Rodriguez-
Chevres’ conclusion that Smith was competent to handle his own
affairs.
The ALL’s reasons for finding lack of disability were
considerable. The greatest evidence of disability came from Smith
himself, whose testimony the ALJ found not entirely credible. The
ALJ noted that there was a significant disparity between Smith’s
reported symptoms and the objective findings regarding his overall
condition. Id. To the extent Smith’s allegations conflicted with
the medical evidence, the resolution of that conflict was within
the province of the ALJ. See Greenspan v. Shalala, 38 F.3d 232,
237 (5th Cir. 1994); Seders v. Sullivan, 914 F.2d 614, 617 (5th
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Cir. 1990). The ALL’s findings regarding impairment severity were
reasonable and supported by substantial evidence. Moreover, there
was sufficient evidence upon which the ALJ could determine
disability such that additional evidence was not necessary.
AFFIRMED.
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