Bowie v. Astrue , 262 F. App'x 642 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
January 29, 2008
No. 07-50567 Charles R. Fulbruge III
Summary Calendar Clerk
THOMAS BOWIE
Plaintiff-Appellant
v.
MICHAEL J ASTRUE, Commissioner of Social Security
Defendant-Appellee
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:06-CV-00652-AWA
Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
In this appeal, Plaintiff-Appellant Thomas Bowie seeks review of the
denial of his application for disability benefits. For the following reasons, we
affirm.
I. FACTS AND PROCEDURAL BACKGROUND
On March 11, 2004, after he was laid off from his job as a door-to-door
salesman for a construction company, Bowie filed Disability Insurance 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
No. 07-50567
(“DIB”) and Supplemental Security Income (“SSI”) applications with the Social
Security Administration (“SSA”), alleging a disability due to hypertension,
blurred vision, Bell’s palsy, stomach problems, and anxiety. He was fifty-seven
years old at the time. The Commissioner of Social Security (“the Commissioner”)
rejected Bowie’s application. Bowie sought a hearing, and on August 9, 2005, an
administrative law judge (“ALJ”) heard testimony from Bowie and a vocational
expert. The ALJ ruled that Bowie was not disabled and not entitled to any
disability payments. The ALJ found that Bowie retained the following residual
functional capacity:
The claimant can lift and/or carry twenty pounds occasionally and
ten pounds frequently, stand and/or walk about six hours in an
eight hour workday, and sit about six hours in an eight hour
workday. The claimant can occasionally climb ladders, ropes, and
scaffolds, balance, crouch, crawl, and bend. The claimant is limited
to unskilled work in a low stress environment.
The ALJ concluded that Bowie’s past work as a door-to-door salesman did not
require him to perform any activities precluded by his residual functional
capacity. The Appeals Council denied Bowie’s request for administrative review,
and the ALJ’s decision became the final decision of the Commissioner.
On August 22, 2006, Bowie filed this suit in federal district court, seeking
judicial review of the Commissioner’s decision. The magistrate judge1 affirmed
the Commissioner’s decision, rejecting Bowie’s application for disability benefits.
This timely appeal followed.
II. JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction to hear this appeal under 28 U.S.C. § 1291 and 42
U.S.C. § 405(g). We review the Commissioner’s final decision only to determine
“(1) whether the Commissioner applied the proper legal standard; and (2)
whether the Commissioner’s decision is supported by substantial evidence.”
1
The parties consented to a hearing and final judgment by the magistrate.
2
No. 07-50567
Waters v. Barnhart, 276 F.3d 716, 718 (5th Cir. 2002) (citing Estate of Morris v.
Shalala, 207 F.3d 744, 745 (5th Cir. 2000)). “Substantial evidence” is “such
relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal quotation
marks omitted). It is more than a scintilla and less than a preponderance. Id.The appeals court “cannot reweigh the evidence, but may only scrutinize the
record to determine whether it contains substantial evidence to support the
Commissioner’s decision.” Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995).
III. DISCUSSION
For purposes of DIB and SSI eligibility, a person is disabled if he or she is
unable “to engage in any substantial gainful activity by reason of 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), 1382c(a)(1)(A). In
evaluating a claim of disability, the Commissioner follows a five-step sequential
analysis: (1) The claimant must not currently be working in any “substantial
gainful activity.” 20 C.F.R. § 404.1520(b). (2) The claimant must establish that
he has a “severe” impairment—“any impairment or combination of impairments
which significantly limits [his] physical or mental ability to do basic work
activities . . . .” Id. § 404.1520(c). (3) To secure a finding of disability without
consideration of age, education, and work experience, a claimant must establish
that his impairment “meets or equals” an impairment enumerated in the listing
of impairments in the appendix to the regulations.2 Id. § 404.1520(d). (4) If the
impairment does not meet or equal a listed impairment, the claimant must
establish that his “residual functional capacity”3 prevents him from doing “past
2
This listing appears at 20 C.F.R. pt. 404, subpt. P, app. 1.
3
The regulations define “residual functional capacity” as the most the claimant can do
despite an impairment and “related symptoms, such as pain, [which] may cause physical and
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No. 07-50567
relevant work.” Id. § 404.1520(e), (f). (5) If the Commissioner makes a threshold
showing that the claimant can perform some other relevant work, the claimant
must then prove that he cannot in fact perform that work. Id. § 404.1520(g); see
also Muse v. Sullivan, 925 F.2d 785, 789 (5th Cir. 1991) (per curiam) (applying
the five-step process). The claimant has the burden to show the first four
factors; if the analysis continues to the fifth step, the Commissioner must carry
the burden. Muse, 925 F.2d at 789. In this case, the ALJ determined under step
four that Bowie’s residual functional capacity did not prevent him from doing his
past relevant work.
In the instant appeal, Bowie argues that (1) the ALJ’s conclusions
regarding Bowie’s ability to perform his past relevant work are not supported by
substantial evidence, and (2) the ALJ’s findings regarding Bowie’s credibility
were not based on the proper legal standard.4
First, Bowie argues that the ALJ did not properly consider Bowie’s
impairments in determining his ability to do past relevant work. In particular,
Bowie claims the ALJ failed to take into account his claim that fatigue and the
need to take frequent breaks prevent him from doing his previous work. We find
that Bowie’s vague assertions of fatigue are insufficient to show a lack of
sufficient evidence underlying the ALJ’s decision.
As an initial matter, the ALJ did consider Bowie’s fatigue and need to take
frequent breaks. In the ALJ’s hypothetical question to the vocational expert,
and in his findings, the ALJ took into account that Bowie only could work six
hours in an eight-hour work day. In addition, the medical evidence in the record
mental limitations that affect what [the claimant] can do in a work setting.” 20 C.F.R.
§§ 404.1545(a)(1), 416.945(a)(1).
4
Bowie also claims that the Commissioner did not carry the burden of showing that
Bowie could perform some work other than his previous work. However, the Commissioner
need not prove step five, because Bowie fails to carry his burden on step four.
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No. 07-50567
and Bowie’s own testimony support the ALJ’s finding of residual functional
capacity. The ALJ considered Bowie’s medical symptoms and determined that
his anxiety, stomach problems, Bell’s palsy, blurred vision, dizziness, and
headaches were not “severe.” Bowie testified before the ALJ that he wears
glasses for his blurred vision, he no longer has problems with anxiety, he could
not remember which side of his face was affected by Bell’s palsy, and he claimed
no stomach pain since December 2000. The ALJ found Bowie’s claims of
dizziness and headaches inconsistent with his medical record. Although Bowie’s
hypertension was a potentially severe condition, the ALJ found that it was
controlled adequately by medication and therefore not “severe” under the
regulations. See Johnson v. Bowen, 864 F.2d 340, 348 (5th Cir. 1988) (holding
that a condition controlled by medication was not a basis for a finding of
disability). Moreover, the record shows that Bowie performed his previous work
despite his hypertension. See Fraga v. Bowen, 810 F.2d 1296, 1305 & n.11 (5th
Cir. 1987) (reasoning that a claimant’s previous ability to work despite
hypertension supported the ALJ’s finding of no disability). Therefore, we
conclude that the ALJ’s finding of residual functional capacity was supported by
substantial evidence.5
Regarding the ALJ’s determination of the credibility of Bowie’s testimony,
Bowie argues that the ALJ failed to consider the “location, duration, frequency,
and intensity” of his medical symptoms and therefore failed to apply the proper
legal standard. Specifically, Bowie claims that the ALJ failed to take proper
account of the side effects from his medication. However, the only evidence of
5
Bowie also claims that “door-to-door salesman” is not the proper description of his prior
work, arguing that the job description cited by the vocational expert “exceeds the tasks Mr.
Bowie described performing.” However, the ALJ properly relied on the vocational expert’s
unchallenged testimony that this was the appropriate job description. Furthermore, Bowie’s
own counsel referred to his past work as a “door-to-door salesperson.” In addition, Bowie’s
description of his job as “walk[ing] around try[ing] to get lead[s] for remodeling” is consistent
with the job description of door-to-door salesman.
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No. 07-50567
side effects appears in vague statements on forms Bowie submitted to the SSA.
Bowie did not mention side effects during his hearing, nor is there a record that
he complained of side effects to his doctors. We find that Bowie’s claim of side
effects does not undermine the ALJ’s finding of no disability.
More broadly, the ALJ found Bowie’s claims of disability inconsistent with
the evidence as a whole. In evaluating the credibility of Bowie’s subjective
claims of disability, the ALJ cited the proper legal standard and recognized his
duty to consider all medical symptoms, including medical records and the
plaintiff’s testimony. See 20 C.F.R. §§ 404.1527, 404.1529, 416.927, 416.929. In
this case, the ALJ concluded that Bowie’s claims of pain were not supported by
the record: “The claimant presents himself as being much worse than that which
is contained in the record.” In drawing this conclusion, the ALJ properly took
into account Bowie’s testimony about his ability to engage in normal daily
activities. See 20 C.F.R. §§ 404.1529(c)(3), 416.929(c)(3) (listing “daily activities”
as a factor the Commissioner may consider in evaluating a claimant’s
symptoms). For example, the ALJ considered that Bowie lived alone, walked one
to one-and-a-half miles daily for exercise, did yard work, washed dishes, did
laundry, cooked his own meals, drove, shopped, and visited with his family. See
Kraemer v. Sullivan, 885 F.2d 206, 208-09 (5th Cir. 1989) (finding that a
claimant’s ability to do daily tasks undermined his claim that his hypertension
was disabling). The ALJ also observed that Bowie previously performed his
work with the same medical conditions he currently has and that he lost his job
due to a layoff unrelated to his medical condition. Therefore, we conclude that
by fully considering Bowie’s testimony and medical history, the ALJ applied the
proper legal standard in evaluating the credibility of Bowie’s disability claim.
IV. CONCLUSION
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No. 07-50567
We conclude that the Commissioner’s final decision denying Bowie’s
request for disability benefits was supported by substantial evidence and was
based on the proper legal standard. Therefore, we affirm the district court’s
judgment in favor of the Commissioner.
AFFIRMED.
7