Roy Garth v. Michael Astrue


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Roy Garth v. Michael Astrue Doc. 0 Case: 09-60916 Document: 00511215703 Page: 1 Date Filed: 08/26/2010 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED N o . 09-60916 S u m m a r y Calendar August 26, 2010 Lyle W. Cayce Clerk R O Y GARTH, P la in t if f -A p p e lla n t , versu s M I C H A E L J. ASTRUE, Commissioner of Social Security, D e fe n d a n t -A p p e lle e . A p p e a l from the United States District Court fo r the Northern District of Mississippi U S D C No. 1:08-CV-280 B e fo r e DAVIS, SMITH, and DENNIS, Circuit Judges. J E R R Y E. SMITH, Circuit Judge:* R o y Garth appeals a judgment upholding the decision of an administrative la w judge ("ALJ") denying his claim for Social Security disability benefits. Findin g no error, 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. * Case: 09-60916 Document: 00511215703 Page: 2 Date Filed: 08/26/2010 No. 09-60916 I. G a r t h was injured in an automobile accident in March 2004 in which he s u s t a in e d , along with temporary spinal trauma, a displaced glanoid and scapular fr a c t u r e of the left shoulder.1 Dr. Kim Stimpson performed surgery on the should e r , and Garth was referred to physical therapy. Throughout 2004, he visited b o th Stimpson and his primary physician, Dr. Ricky Parker. Both doctors told G a r t h his shoulder was healing and that he should "push" his range of motion d u r in g physical therapy.2 I n March 2005, Garth complained of renewed pain and weakness in his le ft arm. After an MRI revealed a spur and bursitis, Stimpson performed arthros c o p ic surgery in early May 2005. In late May, Garth told the doctor he was doin g "quite well," although his shoulder "still gives him some problems." Stimps o n 's report indicated that as of July 2005, Garth was "totally temporarily disa b le d ." I n November 2005, Garth underwent a functional-capabilities evaluation (" F C E " ). A physical therapist, Renee Willis, performed the evaluation and noted t h a t Garth tolerated sitting for just 24 minutes and standing for just 18 minutes a n d that any use of the left arm would result in an increase in blood pressure a n d pain levels. She concluded that he was unable to do even sedentary work. F r o m December 2005 to November 2007, Garth saw doctors for a variety o f reasons, including reflux, occasional gout flares in his left knee, cellulitis in h is toe, and reduced strength and range of motion in his left shoulder. He told The emergency room report indicated Garth sustained the following traumas: cervical spine, dorsal spine, lumbosacral spine, chest, elbow, forearm, and hand. Scans and X-rays came back negative on his spine, pelvis, left hand, and arm. At various times, the doctors told Garth he was "doing better," "coming along nicely," and had an "acceptable" range of motion in his shoulder. 2 1 2 Case: 09-60916 Document: 00511215703 Page: 3 Date Filed: 08/26/2010 No. 09-60916 d o c t o r s he had "mild aching" when moving his shoulder through a limited range o f motion and had trouble sleeping because of pain. He refused both prophylact ic treatment for the gout and a second surgery on his shoulder. In November 2 0 0 7 , he told Parker that his shoulder still hurt but was controlled with Lortab.3 G a r t h applied for disability under Title II of the Social Security Act, 42 U .S .C . 401 et seq., in February 2006. His initial request was denied administ r a t iv e ly and on reconsideration. Before Garth's hearing with the ALJ in January 2008, Willis completed a fo r m indicating Garth could not lift ten pounds, stand for more than about twent y minutes in a day, or sit for more than about an hour and a half and could only o c c a s io n a lly perform reaching, handling, fingering, or feeling. This form was b a s e d on the results of her 2005 FCE. D u r in g the hearing, Garth contradicted the FCE, saying he could comforta b ly lift twenty pounds with his right arm and could use his left arm for assist a n c e . He also contradicted the FCE on the issue of mobility, saying he could s t a n d for an hour and sit for two hours and did not have any problems bending o v e r , stooping, or climbing a flight of stairs. T h e ALJ applied this circuit's five-step test for disability and found that G a r t h had impairments that did not meet or equal any qualifying impairment in 20 C.F.R. pt. 404, subpt. P, app. 1., and that he retained the residual functiona l ability to perform jobs he had held in the past and jobs that do not require h e a v y lifting. Accordingly, the ALJ found that Garth was not disabled. G a r t h requested review by the Appeals Council. After considering a d d i t io n a l evidence Garth had submitted,4 the Appeals Council denied the re Garth states in the record that Lortab, a painkiller, reduced the pain in his shoulder from a "7" to a "3" (on a 1-10 scale) for four to five hours. 4 3 On February 8, 2008, Parker completed the same form Willis earlier had completed. (continued...) 3 Case: 09-60916 Document: 00511215703 Page: 4 Date Filed: 08/26/2010 No. 09-60916 q u e s t for further review. G a r t h sued in federal court pursuant to 42 U.S.C. 405(g). The court s u s t a in e d the ALJ's decision that Garth was not disabled. II. T h e Commissioner's determination that the claimant is not disabled will b e affirmed unless that determination is not supported by substantial evidence o r involved an erroneous application of legal standards. Carey v. Apfel, 230 F.3d 1 3 1 , 135 (5th Cir. 2000). Substantial evidence is something more than a scintilla b u t less than a preponderance and is such relevant evidence as a reasonable m in d might accept as adequate to support a conclusion. Id. "[W]e may not rew e ig h the evidence in the record, nor try the issues de novo, nor substitute our ju d g m e n t for that of the [Commissioner], even if the evidence preponderates a g a in s t the [Commissioner's] decision." Brown v. Apfel, 192 F.3d 492 (5th Cir. 1 9 9 9 ) (quoting Johnson v. Bowen, 864 F.2d 340, 343 (5th Cir.1988)). "The findin g s of the Secretary as to any fact, if supported by substantial evidence, shall b e conclusive . . . ." Richardson v. Perales, 402 U.S. 389, 390 (1971) (quoting 4 2 U.S.C. 405(g)). III. F iv e requirements must be met to support a finding that a Social Security d is a b ilit y benefits claimant is, in fact, "disabled" and entitled to benefits.5 Carey, 4 (...continued) Basing his information on Willis's FCE, which Garth contradicted in the first hearing, Parker wrote that Garth could stand for just 20 minutes and sit for 1.5 hours and was limited to only occasional reaching, handling, and the like. The five steps, in summary, provide that to be disabled, (1) the claimant must not be presently working at any substantial gainful activity; (2) he must have an impairment or combination of impairments that are severe, in the sense that they significantly limit his physical (continued...) 5 4 Case: 09-60916 Document: 00511215703 Page: 5 Date Filed: 08/26/2010 No. 09-60916 2 3 0 F.3d at 131. "The burden of proof is upon the claimant to establish each of t h e first four prerequisites to finding of `disability' under the pertinent five-part t e s t ; if claimant acquits this responsibility, burden then shifts to Commissioner t o show that there is other gainful employment that claimant is capable of perfo r m in g in spite of his existing impairments." Id. If the Commissioner satisfies t h e burden of showing that there is other gainful employment that the claimant is capable of performing in spite of his existing impairments, claimant must then p r o v e he in fact cannot perform that alternate work. Id. G a r t h offers four reasons why we should overturn the decision: (1) The A L J gave too little weight to his primary physician's opinion, (2) the ALJ erred in determining that Garth was not credible and failed to explain why he decided t h a t ; (3) the Commissioner's decision to uphold the ALJ's finding is not supporte d by the evidence, and (4) the ALJ used an improper hypothetical that did not t a k e into account the side effects of drugs that Garth was taking. W e turn first to the issue of Garth's primary physician. Garth claims that t h e ALJ ignored the opinion of Parker, his treating physician. Garth overlooks, h o w e v e r , the fact that Parker's opinion was contained on a form that was not p r e s e n t e d at the initial hearing. Nearly a month had passed between the ALJ's d e c is io n 's being issued and Parker's writing his opinion. Despite Parker's opinion's not being available to the ALJ in the initial h e a r in g , it was available to the Appeals Council. As stated before, this court will r e v ie w the ALJ's and Appeals Council's decisions only for substantial evidence. Parker's February 8 opinion contradicted both his own treatment notes and (...continued) or mental ability to do basic work activities; (3) the impairment must meet or equal an impairment listed in an appendix to the Social Security regulations; (4) the impairment must prevent the claimant from returning to his past relevant work; and (5) the impairment must prevent him from doing any relevant work, in light of his residual functional capacity, age, education, and work experience. 20 C.F.R. 404.1520(a)(4) (2009). 5 5 Case: 09-60916 Document: 00511215703 Page: 6 Date Filed: 08/26/2010 No. 09-60916 G a r t h 's admissions to the ALJ. Those inconsistencies are substantial evidence o n which the ALJ could have based his decision. Second, on the issue of Garth's credibility, Garth's admissions to the ALJ c o n t r a d ic t e d treatment reports from several doctors. Garth could lift more and m o v e better than their reports indicated.6 Although our role on judicial review d o e s not include speculation on how the ALJ weighed the medical-opinion evid e n c e , those admissions, coupled with the vocational expert's opinion, provide s u b s t a n t ia l evidence for the ALJ to rely on. T h ir d , we find no error by the Commissioner in upholding the ALJ's determ in a t io n that Garth is not disabled. Relying on the evidence available to him, t h e ALJ reached a determination that is supported by substantial evidence. F in a lly , Garth asserts that the ALJ's hypothetical question regarding res id u a l functionality was improper, because the ALJ did not take into account the s id e effects of Garth's prescription medication. But the record indicates that G a r t h has never complained to his doctors of drowsiness or any other side effect fr o m the medication before his hearing with the ALJ. The ALJ pointed out to G a r t h that the hypothetical would not include theoretical limitations or side effe c t s , but only those contained in the record. On this basis, there is no error in t h e ALJ's decision. A F F IR M E D . Garth admitted, among other things, that he could climb stairs, stoop, and use his left hand as support while lifting. 6 6

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