Palomo v. Barnhart , 154 F. App'x 426 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
November 17, 2005
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 05-50722
Summary Calendar
Christina Palomo
Plaintiff-Appellant,
versus
Jo Anne B. Barnhart,
Commissioner of Social Security Administration
Defendant-Appellee.
Appeal from the United States District Court
For the Western District of Texas
( 5:04-CV-326 )
Before HIGGINBOTHAM, BENAVIDES, and DENNIS, Circuit Judges.
PER CURIAM:*
Plaintiff-appellant Christina Palomo appeals an order of the
United States District Court affirming the final decision of the
Commissioner of the Social Security Administration, Jo Anne B.
Barnhart (“Commissioner”), that Palomo was not entitled to
disability income benefits and supplemental security income
benefits under Titles II and XVI of the Social Security Act, 42
U.S.C. §§ 423, 1382c. We affirm.
*
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should not be published and is not precedent except under the limited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.
I
On June 21, 2001, Christina Palomo, then a 20-year old female
with a ninth grade education and vocational experience as a fast-
food worker, alleged disability beginning on June 21, 1999, due to
high blood pressure, pseudotumor cerebri, asthma, obesity, Bell’s
palsy, and headaches. Following the five-step analysis pursuant to
20 C.F.R. §§ 404.1520(b-f) & 416.920(b-f), the ALJ weighed several
doctors’ diagnoses, assessed Palomo’s work history and residual
functional capacity (“RFC”), and considered testimony from a
vocational expert. The ALJ concluded that Palomo was capable of
performing a significant range of sedentary work. Thus, the ALJ
concluded that Palomo was not “disabled” under the Social Security
Act. The Appeals Council denied Palomo’s request for review,
making the determination of the ALJ the final decision of the
Commissioner.
Pursuant to 42 U.S.C. § 205, Palomo sought review of the
Commissioner’s decision in the United States District Court for the
Western District of Texas. The district court referred the matter
to a magistrate, who recommended that the Commissioner’s decision
be affirmed. After Palomo filed objections, the district court
entered an order adopting the magistrate’s recommendation. Palomo
timely filed a notice of appeal. We have jurisdiction pursuant to
28 U.S.C. § 1291.
II
2
Our review is limited to determining whether the
Commissioner’s decision is supported by substantial evidence and
whether the proper legal standards were applied.1 Substantial
evidence is such relevant evidence as a reasonable mind might
accept to support a conclusion.2 “It must be more than a
scintilla, but it need not be a preponderance.”3 Any findings of
fact by the Commissioner supported by substantial evidence are
conclusive.4 We “cannot reweigh the evidence, but may only
scrutinize the record to determine whether it contains substantial
evidence to support the Commissioner’s decision.”5
Palomo attacks the Commissioner’s decision on a number of
grounds, none of them with merit. First, Palomo argues that the
ALJ erred by failing to give proper consideration to the opinions
of her treating physicians. Second, Palomo argues that the ALJ
erred by failing to consider her mental and educational
limitations, as reported by Lester Harrell, Ph.D. Third, Palomo
argues that the ALJ erred by failing to give a proper rationale for
his credibility evaluation. Fourth, Palomo argues that the ALJ
erred in finding that she had a high school education. Fifth,
1
See Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994).
2
See Richardson v. Perales, 402 U.S. 389, 401 (1979).
3
Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995).
4
42 U.S.C. § 205(g).
5
Leggett, 67 F.3d at 564.
3
Palomo argues that the ALJ incorrectly allocated the burden of
proof. We consider each argument in turn.6
A
Palomo argues that the ALJ failed to give greater weight to
the opinions of her treating physicians. We conclude that the
ALJ’s findings are supported by substantial evidence. The ultimate
determination of disability is reserved for the Commissioner,7 and
an ALJ must take into consideration all of the evidence from the
claimant’s treating physicians.8 In order to discredit evidence
from a treating physician, the ALJ must present good cause.9 An
ALJ may diminish the weight of a treating physician’s opinion when
it is unsupported by the evidence.10
Here, the ALJ properly discounted the opinions of Robert
Shumaker, M.D., and Antonio Guerra, M.D. Although both Dr.
Shumaker and Dr. Guerra initially reported that Palomo was
disabled, each subsequently provided reports contradicting their
6
Palomo presents two additional arguments on appeal. First, Palomo argues
that the severity of her impairment “waxes and wanes,” which renders her unable
to maintain employment. See Frank v. Barnhart, 326 F.3d 618 (5th Cir. 2003).
Second, Palomo argues that the ALJ’s RFC assessment is deficient because it did
not include limitations due to blurred vision and headaches. Since neither
argument was presented to the ALJ or to the district court, we decline to
consider them for the first time on appeal. Greenberg v. Crossroads Systems,
Inc., 364 F.3d 657, 669 (5th Cir. 2004).
7
See Moore v. Sullivan, 919 F.2d 901, 905 (5th Cir. 1990).
8
See Myers v. Apfel, 238 F.3d 617, 621 (5th Cir. 2001).
9
Id.10
Shave v. Apfel, 238 F.3d 592, 595 (5th Cir. 2001); Newton v. Apfel, 209
F.3d 448, 456 (5th Cir. 2000).
4
initial assessment. Dr. Shumaker stated that Palomo could lift and
carry less than ten pounds, and stand and walk for at least two
hours of an eight-hour workday; Dr. Guerra stated that Palomo could
lift and carry six-to-ten pounds, stand and walk two-to-four hours
per workday, and sit four-to-six hours per workday. Moreover, Dr.
Guerra stated that Palomo was able to perform her past relevant
work as a drive-through cashier at a fast-food restaurant. The
inconsistency in the treating physicians’ reports provides good
cause for not giving their testimony greater weight.
These findings are consistent with the evidence presented at
the hearing before the ALJ by Michael Perkins, M.D. Specifically,
Dr. Perkins testified that Palomo retained the functional capacity
to occasionally lift twenty pounds, frequently lift ten pounds,
stand and walk at least two hours per workday, and sit six hours
per workday. Dr. Perkins’s testimony provides substantial evidence
to support the ALJ’s determination that Palomo retained the
residual functional capacity for a wide range of sedentary work.
We find no error in the ALJ’s analysis.
B
Second, Palomo argues that the ALJ failed to consider the
mental and educational limitations reported by Lester Harrell,
Ph.D. Specifically, Dr. Harrell found that Palomo was functioning
in the borderline range of intellectual functioning and that she
had a sixth-grade spelling level and fifth-grade reading level.
5
We conclude that the ALJ properly considered this evidence.
The ALJ specifically noted that Palomo’s intellectual functioning
was in the borderline range. Furthermore, the ALJ stated that this
level of functioning would not preclude Palomo from performing
unskilled work activity, which requires little or no judgment and
involves simple tasks that can be learned on the job in a short
period of time. Moreover, Dr. Harrell never testified that Palomo
was unable to perform unskilled work, which does not require
academic skills or vocational preparation. We find no error in the
ALJ’s analysis.
C
Third, Palomo argues that the ALJ failed to provide a proper
rationale for its finding that her subjective complaints were not
entirely credible. We defer to the ALJ’s findings, as it has the
responsibility to resolve questions of credibility.11 A claimant’s
subjective complaints must be corroborated, at least in part, by
objective medical evidence.12
As the magistrate reported, the ALJ thoroughly discussed the
medical records which included extensive information on Palomo’s
complaints, impairments, aggravating factors, and treatment. Here,
11
See Dunbar v. Barnhart, 330 F.3d 670, 671 (5th Cir. 2003); Masterson v.
Barnhart, 309 F.3d 267, 272 (5th Cir. 2002). In assessing credibility, we have
stated that “[s]ubjective evidence need not take precedence over objective
evidence.” Villa v. Sullivan, 895 F.2d 1019, 1024 (5th Cir. 1994).
12
See Wren v. Sullivan, 925 F.2d 123, 128-29 (5th Cir. 19991); see also 20
C.F.R. § 404.1508 (“A physical or mental impairment must be established by
medical evidence consisting of signs, symptoms, and laboratory findings, not only
by your statement of symptoms.”); 20 C.F.R. § 416.908 (same).
6
the ALJ found that Palomo’s physical examinations were essentially
normal and that Palomo’s symptoms were reasonably well-controlled
with medication, even during two pregnancies. Moreover, the ALJ
noted gaps in Palomo’s medical treatment from March 2000 to
September 2000 and from December 2001 to January 2003. On this
evidence, we find that the ALJ could have reasonably concluded that
Palomo’s symptoms were not as severe as she alleged. Thus, the
ALJ’s findings are supported by substantial evidence.
D
Fourth, Palomo asserts that the ALJ erred in finding that she
had a high school education when, in fact, she had only completed
the ninth grade. At most, this error is harmless.13 The social
security regulations consider a ninth-grade education to be a
“limited education,” which allows the person to perform unskilled
work.14 Here, the ALJ considered evidence from a vocational expert
that identified unskilled jobs that were within Palomo’s residual
functional capacity. Moreover, Palomo has failed to show that her
ninth grade education would prevent her from performing the
unskilled work identified by the vocational expert and adopted by
13
See Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988) (“Procedural
perfection in administrative proceedings is not required.”); see also Morris v.
Bowen, 864 F.2d 333, 335-36 (5th Cir. 1988) (applying harmless error standard in
social security case).
14
See 20 C.F.R. § 404.1564(b)(3) (“We generally consider that a 7th grade
through the 11th grade level of formal education is a limited education.”); see
also 20 C.F.R. § 416.964(b)(3) (same).
7
the ALJ. Thus, Palomo cannot show that the ALJ’s error affected
her substantial rights.
E
Fifth, Palomo contends that the ALJ and the district court
erroneously placed the burden of proof on Palomo to show that she
was not able to perform the work identified by the vocational
expert. Palomo asserts that she is only required to show that she
cannot perform her past relevant work. We disagree. Under the
fifth-step of the evaluation process, the Commission bears the
burden of showing that there exists work in significant numbers in
the national economy that the claimant can perform.15 Once such
jobs are identified, the burden shifts back to the claimant to
rebut this finding.16 The ALJ followed this burden-shifting
approach, and we reject Palomo’s contention to the contrary.
III
For the foregoing reasons, the Commissioner’s final decision
denying Palomo’s claim for benefits under the Social Security Act
is AFFIRMED.
15
See Crowley v. Apfel, 197 F.3d 194, 197-98 (5th Cir. 1999).
16
See id.; Carey v. Apfel, 230 F.3d 131, 135 (5th Cir. 2000); Vaughan v.
Shalala, 58 F.3d 129, 132 (5th Cir. 1995) (holding that claimant failed to meet
her burden of proof under disability test where she offered no evidence that she
was incapable of performing the type of work that the ALJ determined was
available).
8