Vaughan v. Shalala ( 1995 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_______________________
No. 94-50564
Summary Calendar
_______________________
FREDA R. VAUGHAN,
Plaintiff-Appellant,
versus
DONNA SHALALA,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court
for the Western District of Texas
(A-93-CA-260)
_________________________________________________________________
(May 17, 1995)
Before JONES, BARKSDALE and BENAVIDES, Circuit Judges.
PER CURIAM:*
On September 24, 1991, Freda R. Vaughan applied for
disability insurance benefits, alleging disability since December
31, 1986. Her application was denied initially and on
reconsideration. Vaughan then requested and received a hearing
before an Administrative Law Judge (ALJ). The ALJ determined that
Vaughan was unable to perform her past work but had the residual
*
Local Rule 47.5 provides: "The publication of opinions that have no
precedential value and merely decide particular cases on the basis of well-
settled principles of law imposes needless expense on the public and burdens on
the legal profession." Pursuant to that Rule, the Court has determined that this
opinion should not be published.
functional capacity to perform a wide range of sedentary work.
Thus, the ALJ held that Vaughan was not disabled within the meaning
of the Social Security Act at any time through December 31, 1988,
the date she was last insured for disability benefits. The
decision of the ALJ became the final decision of the Secretary when
the Appeals Council denied Vaughan's request for review.
Vaughan filed suit in the district court seeking review
of the Secretary's decision. Both the magistrate judge and
district court authored opinions rejecting appellant's challenges
to the ALJ's decision. On appeal, Sullivan raises many of the same
objections, and we find them no more persuasive than the other
judges did.
BACKGROUND
The following salient facts were presented for the
Secretary's determination. Vaughan, a high school graduate, was
born on June 1, 1937. Her work experience includes co-owning a
liquor store and a furniture store, and working as a supervisor in
the mail rooms of an oil company and a savings and loan. She last
met the earnings requirements for disability benefits on December
31, 1988.
Between 1985 and 1990, Vaughan was treated conservatively
for a variety of ailments by a family practitioner, Dr. Norman
Moore. She saw him for hip, leg, and chest pain in 1986, and for
back pain, dizzy spells, and pain in her right arm in 1988. On May
6, 1988, her blood pressure was measured at 140/80. On April 3,
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1990, it had risen to 170/90. Dr. Moore's records contain no
specific diagnosis of Vaughan's problems.
In July 1990, after her eligibility expired, Dr. Jorge
Duchicela, also a family practitioner, began treating Vaughan for
headaches and pain in her legs and tailbone, hypertension, and pain
in her back, arms, and legs.
At the July 22, 1992, hearing before the ALJ, Vaughan
testified that she suffered from progressively worsening pain and
"tingling" in her arms and legs, a condition present to some degree
for 20 years. She had recently begun taking "Propox," which
relieved some of the pain. Vaughan also testified that she had
suffered from high blood pressure for 20 to 25 years. Although she
had experienced severe headaches in the past, these were currently
controlled with medication. She also testified that she had
suffered a "mini-stroke" around 1988, resulting in some memory
loss. According to Vaughan, the blood pressure medication that she
had taken that morning caused her to have difficulty thinking. She
also testified that her family performed most of the household
chores.
The vocational expert, Robert Marion, testified that
Vaughan's past relevant work was classified as skilled and that
these skills were transferable to sedentary jobs. Such jobs
included receptionist, interview clerk, and cashier, which existed
in the hundreds of thousands in the national economy. Vaughan's
counsel challenged Marion's figures regarding the number of these
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jobs that were available in the national economy. Marion responded
that his figures were accurate.
In this case, the ALJ determined that although Mrs.
Vaughan cannot perform her past relevant work, she could perform a
wide range of sedentary work1 from December 31, 1986, the alleged
onset date of disability, through December 31, 1988, the date she
was last insured for benefits. Thus, the ALJ concluded that
Vaughan was not disabled within the meaning of the Social Security.
DISCUSSION
Vaughan first argues that the ALJ's determination that
she was not disabled is not supported by substantial evidence. She
states that the ALJ's finding that she could perform the full range
of sedentary work conflicts with Dr. Duchicela's evaluation of her
exertional abilities, the objective medical evidence of high blood
pressure and cholesterol, and her testimony at the hearing
regarding her limitations.
Contrary to Vaughan's allegation, the ALJ did not find
that Vaughan could perform the full range of sedentary work.
Rather, the ALJ found that Vaughan could perform a wide range of
sedentary work. This conclusion is supported by substantial
evidence. First, the record reflects that Vaughan was able to, and
did, work for several years while suffering from ailments she now
asserts are disabling. see Fraga v. Bowen, 810 F.2d 1296, 1305 &
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"Sedentary work involves lifting no more than 10 pounds at a time" and
also "involves sitting," although "a certain amount of walking and standing is often
necessary in carrying out job duties." 20 C.F.R. § 404.1567(a).
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n.11 (5th Cir. 1987) (ability to work despite pre-existing
condition supports ALJ's finding of not disabled). Second, no
physician who examined Vaughan pronounced her disabled. See Harper
v. Sullivan, 887 F.2d 92, 97 (5th Cir. 1989) (substantial evidence
supported ALJ's finding that claimant's subjective symptomology not
credible when no physician on record stated that claimant was
physically disabled). In her "Disability Report," submitted nearly
three years after the date she last met insured status, Vaughan
acknowledged that no physician had advised her to limit her
activities in any way. Accordingly, Dr. Duchicela's November 1991
assessment that Vaughan could lift only five pounds does not alter
the validity of the ALJ's decision.
Third, although Vaughan alleged a very limited activity
level at the hearing, she stated in the "Disability Report" that
her social contacts and driving were not restricted and that she
could perform household chores like cooking, making the bed, and
washing. The ALJ concluded that several of the symptoms allegedly
plaguing Vaughan were not consistent with the objective medical
evidence. See Anthony v. Sullivan, 954 F.2d 289, 296 (5th Cir.
1992). Thus, the ALJ's finding that Vaughan's complaints were not
debilitating is supported by substantial evidence.
Vaughan next asserts that the ALJ failed to use proper
legal standards in denying benefits. First, she argues that the
ALJ improperly relied on the "grids" contained in Subpart P
Appendix of the Medical-Vocational Guidelines, which presume that
jobs are available in the national economy for claimants meeting
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certain criteria, to direct a decision of not disabled. See 20
C.F.R. §§ 404.1569 Subpt. P, App. 2. This contention misconstrues
the record. The ALJ found that Vaughan's nonexertional limitations
prevented her from performing the full range of sedentary work
activity, but that she was not disabled within the framework of
Rule 210.07, considered in light of the vocational expert's
identification of jobs available in the national economy that she
could perform.
Vaughan's contention that the ALJ "applied improper legal
standards in failing to make a finding on [her] credibility
regarding statements of disabling pain, dizziness and confusion
prior to December 31, 1988[,]" is also contradicted by the record.
The ALJ made specific credibility determinations regarding
Vaughan's allegations of pain and discomfort.
Vaughan also contends that there was not substantial
evidence that there were jobs available in the national economy
that she was capable of performing. We disagree. A vocational
expert is called to testify because of his familiarity with job
requirements and working conditions. Fields v. Bowen, 805 F.2d
1168, 1170 (5th Cir. 1986). "The value of a vocational expert is
that he is familiar with the specific requirements of a particular
occupation, including working conditions and the attributes and
skills needed." Id. At Vaughan's hearing, the vocational expert
explained that he determined the availability of the receptionist,
interview clerk, and cashier jobs in the national economy by
referring to the Dictionary of Occupational Titles (DOT), in
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conjunction with additional sources. The expert also found that
Mrs. Vaughan possesses considerable transferable work skills.
Thus, the vocational expert relied on his expertise to arrive at
the conclusions that he gave to the ALJ, and he explained how he
arrived at his conclusions. See Fields, 805 F.2d at 1170. To
insist, as Vaughan now does, that the ALJ must consider not simply
the existence of generic jobs such as cashier but their specific
working conditions is incorrect. The contention comes close to
arguing that the vocational expert must identify specific jobs open
to a particular claimant, an exercise both futile, overwhelming,
and unnecessary.
Vaughan finally contends that she was denied a full and
fair hearing because the ALJ asked leading questions of the
vocational expert, misstated her disabling conditions in a
hypothetical question, refused to let counsel fully cross-examine
the vocational expert, and refused to give counsel access to the
vocational expert's notes. These arguments have been addressed
fully in district court. We add only a few observations. First,
the regulations do not require the use of the formal rules of
evidence at an administrative hearing. See 20 C.F.R. § 404.950(c).
Second, the ALJ's duty is to develop the facts relative to a claim
for benefits fairly and fully, not merely to sit and listen. Kane
v. Heckler, 731 F.2d 1216, 1219 (5th Cir. 1984). Third, unlike the
two cases cited by Vaughan, Lidy v. Sullivan, 911 F.2d 1075 (5th
Cir. 1990), cert. denied, 500 U.S. 959 (1991), and Tanner v.
Secretary, 932 F.2d 1110 (5th Cir. 1991), the ALJ in this case
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allowed counsel to cross-examine the vocational expert extensively,
including the subject matter of the challenged hypothetical.
Accordingly, no reversible error has been shown.
Finally, Vaughan's reliance on Scott v. Shalala, 30 F.3d
33 (5th Cir. 1994), to show that the ALJ did not properly consider
the vocational expert's testimony is misplaced. Blue brief, 18-19.
In that case, the ALJ made only a "passing reference" to the
vocational expert's testimony in finding that the claimant had the
residual capacity to perform sedentary work. Scott, 30 F.3d at 35.
By contrast, the ALJ in this case found that Vaughan could not
perform the full range of sedentary work activity and expressly
relied upon the vocational expert's identification of jobs as
evidence of Vaughan's ability to perform work in the national
economy, despite her nonexertional limitations.
Since Vaughan offered no evidence that she was incapable
of performing the types of work that the ALJ determined were
available and that she was capable of performing, Vaughan failed to
meet her burden of proof under the disability test. Selders v.
Sullivan, 914 F.2d 614, 618 (5th Cir. 1990).
For these reasons, the judgment of the district court is
AFFIRMED.
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