Joe Herrera v. Michael Astrue, Commissioner

Filing 920101230

Opinion

Case: 10-50576 Document: 00511336460 Page: 1 Date Filed: 12/30/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
December 30, 2010 N o . 10-50576 S u m m a r y Calendar Lyle W. Cayce Clerk

J O E H. HERRERA, P la in t if f ­ A p p e lla n t v. C O M M IS S I O N E R OF SOCIAL SECURITY, MICHAEL J. ASTRUE, 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 Western District of Texas 1 :0 9 -C V -6 8 3

B e fo r e KING, BENAVIDES, and ELROD, Circuit Judges. P E R CURIAM:* A p p e lla n t Joe H. Herrera appeals from a final judgment of the district c o u r t affirming the decision of the Commissioner of the Social Security A d m in is tr a t io n denying disability benefits. We find that substantial evidence su p p or t e d the Commissioner's decision to deny disability benefits, and affirm the ju d g m e n t of the district court.

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

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No. 10-50576 I . BACKGROUND H e r r e r a , previously employed as a concrete truck driver, filed for D is a b i l i t y Insurance Benefits on November 30, 2006. Herrera alleged an

in a b ilit y to work beginning August 21, 2006, when he slipped from a ladder on h is truck, sustaining a blow to the left side of his chest in the fall. After denial of his application, Herrera requested a hearing before an A d m i n is t r a t iv e Law Judge ("ALJ"), which was held on July 7, 2008. Herrera, r e p r e s e n t e d by counsel, testified that he was unable to work due to constant b a c k pain unresponsive to pain medication or physical therapy, which has r e s t r ic t e d his ability to lift and carry more than five to ten pounds, and sit or s t a n d for extended periods of time. He also testified that the pain limited his a b ility to engage in daily activities such as bathing and dressing without a s s is t a n c e . Evidence in the record shows that Herrera has also been diagnosed w it h diabetes mellitus, acid reflux, pancreatitis, and an adjustment disorder w it h anxiety and depression. After the hearing and upon review of the evidence in the record, the ALJ denied Herrera's application for benefits in a decision is s u e d on September 19, 2008. The Appeals Council denied Herrera's request fo r review of the ALJ's decision on July 30, 2009, rendering it the final decision o f the Commissioner of the Social Security Administration. On September 16, 2009, Herrera filed a complaint seeking judicial review o f the Commissioner's decision pursuant to 42 U.S.C. § 405(g). In a Report and R e c o m m e n d a t io n issued on May 10, 2010, a magistrate judge recommended that t h e Commissioner's decision be affirmed, finding that substantial evidence s u p p o r t e d the Commissioner's determination that Herrera was not entitled to d is a b ilit y benefits. Over Herrera's objections, the district court adopted the

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No. 10-50576 m a g is tr a t e judge's Report and Recommendation and issued a final judgment a ffir m in g the Commissioner's decision on May 25, 2010. Herrera appeals. I I . ANALYSIS " O u r review of the Commissioner's decision is limited to two inquiries: (1) w h e t h e r the decision is supported by substantial evidence on the record as a w h o le , and (2) whether the Commissioner applied the proper legal standard." Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005). "The Court of Appeals c a n n o t reweigh the evidence, but may only scrutinize the record to determine w h e t h e r it contains substantial evidence to support the Commissioner's d e c is io n ." Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995). Substantial e v id e n c e is "more than a mere scintilla. It means such relevant evidence as a r e a s o n a b le mind might accept as adequate to support a conclusion." Richardson v . Perales, 402 U.S. 389, 401 (1971) (citation and internal quotation marks o m it t e d ). "If the Commissioner's fact findings are supported by substantial e v id e n c e , they are conclusive." Perez, 415 F.3d at 461 (citing Richardson, 402 U .S . at 390). A person is "disabled" within the meaning of the Social Security Act if he is unable "to engage in any substantial gainful activity by reason of any m e d ic a lly determinable physical or mental impairment which can be expected t o result in death or which has lasted or can be expected to last for a continuous p e r io d of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). In evaluating a d is a b ilit y claim, the Commissioner conducts a five-step sequential analysis to d e te r m in e (1) whether the claimant is currently engaged in substantial gainful a c t iv it y (whether the claimant is working); (2) whether the claimant

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No. 10-50576 h a s a severe impairment;1 (3) whether the claimant's impairment m e e t s or equals the severity of an impairment listed in 20 C.F.R., P a r t 404, Subpart B, Appendix 1; (4) whether the impairment p r e v e n t s the claimant from doing past relevant work (whether the c la im a n t can return to his old job); and (5) whether the impairment p r e v e n t s the claimant from doing any other work. Perez, 415 F.3d at 461; 20 C.F.R. § 404.1520(a)(4). In determining whether an im p a ir m e n t prevents a claimant from doing past work or any other work at steps fo u r and five of the analysis, the Commissioner looks to the claimant's residual fu n c tio n a l capacity, which is the determination of what the claimant can do d e s p it e his mental or physical limitations, based on all the relevant evidence in t h e case record. 20 C.F.R. § 404.1545(a). "The claimant bears the burden of s h o w in g she is disabled through the first four steps of the analysis; on the fifth, t h e Commissioner must show that there is other substantial work in the n a t io n a l economy that the claimant can perform." Audler v. Astrue, 501 F.3d 4 4 6 , 448 (5th Cir. 2007). First, the ALJ found that Herrera had not engaged in substantial gainful a c t iv it y since August 21, 2006, his alleged onset date. At step two, the ALJ d e t e r m in e d , upon review of the evidence, that Hererra suffered from the severe im p a i r m e n t s of back strain, a peripheral neuropathy, depression, diabetes m e llit u s , and pancreatitis. At step three, the ALJ found that Herrera did not h a v e an impairment or combination of impairments that met or equaled one of t h e impairments listed in Appendix 1. The ALJ then determined Herrera's r e s id u a l functional capacity, concluding that Herrera retained the capacity to

An impairment is not severe "only if it is a slight abnormality [having] such minimal effect on the individual that it would not be expected to interfere with the individual's ability to work, irrespective of age, education or work experience." Loza v. Apfel, 219 F.3d 378, 391 (5th Cir. 2000) (citation and internal quotation marks omitted).

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No. 10-50576 lift /c a r r y 10 pounds frequently and 20 pounds occasionally, s t a n d /w a lk 6 hours in an 8-hour workday, and sit 6 hours in an 8h o u r workday. The claimant's ability to push/pull would be limited t o the weights given. The claimant can frequently, but not c o n s t a n t ly , feel with hands and feet; consequently, the claimant m u s t avoid operation of pedal controls. The claimant would also be p reclu d ed from more than occasionally stooping, crouching, kneeling a n d crawling. The claimant would be able to understand, r e m e m b e r , and carry out routine step instructions and respond a p p r o p r ia te ly to supervisors and coworkers in jobs that do not r e q u ir e independent decision making. D e t e r m in in g that Herrera was unable to perform his past work as a truck driver, t h e ALJ nonetheless held that Herrera was not disabled because, considering H e r rera's age, education, work experience, and residual functional capacity, jobs e x is t e d in significant numbers in the national economy that Herrera could p e r fo r m . Based on the testimony of a vocational expert, the ALJ found that a p e r s o n with Herrera's limitations could perform a limited range of light work s u c h as housekeeper/cleaner, cafeteria attendant, or small parts assembler. Herrera contends on appeal that the ALJ's decision is not supported by s u b s t a n t ia l evidence or the proper legal standard because (1) the ALJ failed to d e t e r m in e the severity of his other mental impairments, specifically his anxiety a n d learning disability, at step two of the disability analysis; (2) the ALJ failed t o assess the evidence relating to all of his mental impairments in determining h is residual functional capacity; (3) the ALJ failed to assess the effect of his m e n ta l impairments on his ability to perform unskilled work; and (4) the ALJ im p r o p e r ly assessed the effect of plaintiff's pain in determining his residual f u n c tio n a l capacity. We address these arguments in turn, and find each to be w it h o u t merit.

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No. 10-50576 F ir s t , we reject Herrera's contention that we must remand this case b e c a u s e the ALJ did not explicitly determine the severity of Herrera's anxiety o r alleged learning disability,2 which Herrera contends were identified by Dr. M c M a in s , his evaluating psychologist, and Dr. Boulos, the state agency p s y c h o lo g ic a l consultant who conducted a psychiatric review and mental r e s id u a l functional capacity assessment. Herrera is correct that, at step two of t h e five step analysis, the adjudicator must determine whether any identified im p a ir m e n t s are "severe" or "not severe." See 20 C.F.R. § 404.1520(a)(4)(ii), (c). However, this case did not turn on a finding that Herrera's impairments were n o t severe at step two; rather, the ALJ concluded that Herrera was not disabled b e c a u s e , despite his severe impairments, he retained the residual functional c a p a c it y to do other work. Therefore, the ALJ's failure to assess the severity of H e r r e r a 's anxiety or learning impairments at step two is not a basis for remand. See Adams v. Bowen, 833 F.2d 509, 512 (5th Cir. 1987) (ALJ's failure to make a s e v e r ity finding at step two not a basis for remand where ALJ proceeded to later s t e p s of the analysis); see also Mays v. Bowen, 837 F.2d 1362, 1365 (5th Cir. 1 9 8 8 ) (per curiam) ("[I]f the ALJ proceeds past the impairment step in the

On appeal, the Commissioner on appeal contends that the ALJ did not err in failing to determine the severity of Herrera's alleged learning disability because Herrera had not put forth any objective medical evidence to establish the existence of such an impairment, much less that it was severe. The magistrate judge agreed with the Commissioner that "the only evidence in the record of [Herrera's] learning impairments is his statement that he attended special education classes beginning in sixth grade." Herrera apparently argues that findings by Dr. McMains in his mental status examination establish the existence of a learning disability. We need not decide the issue because, as explained below, assuming that the evidence sufficed to establish a learning disability, the ALJ's failure to determine whether it was severe at step two was essentially harmless error. Moreover, to the extent that Dr. McMains found that Herrera had moderate impairments in certain areas of mental functioning, the ALJ incorporated these findings into his assessment of Herrera's residual functional capacity.

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No. 10-50576 s e q u e n t ia l evaluation process the court must infer that a severe impairment was fo u n d ." ). M o r e o v e r , we also reject Herrera's contention that these impairments meet t h e criteria of any listed impairment. At step three of the analysis, "the medical e v id e n c e of the claimant's impairment(s) is compared to a list of impairments p r e s u m e d severe enough to preclude any gainful activity." Loza, 219 F.3d at 3 9 0 . "If the impairment meets or equals one of the listed impairments, the c la im a n t is conclusively presumed to be disabled. If the impairment is not one t h a t is conclusively presumed to be disabling, the evaluation proceeds to the f o u r t h step . . . ." Bowen v. Yuckert, 482 U.S. 137, 141 (1987) (citing 20 C.F.R. § 404.1520(e)). Contrary to Herrera's characterization of the record, neither Dr. M c M a in s nor Dr. Boulos found that any of Herrera's mental impairments meet o r equal the criteria for a listed impairment. Dr. McMains concluded that H e r r e r a has "average intelligence" and social functioning within normal limits, a n d only moderate impairments in memory, concentration, abstract thinking, ju d g m e n t and insight. Dr. Boulos expressly found that Herrera's impairments " d o [] not precisely satisfy the diagnostic criteria" of any listed impairment. Accordingly, we find no reversible error on this basis. Second, contrary to Herrera's assertions on appeal, we find that the ALJ p r o p e r ly considered his mental impairments in determining Herrera's residual fu n c tio n a l capacity to do past work and other work. In his opinion, the ALJ s p e c ific a lly referenced findings from Herrera's mental status evaluation, H e r r e r a 's global assessment of functioning ("GAF") score,3 as well as Herrera's
"GAF is a standard measurement of an individual's overall functioning level `with respect only to psychological, social, and occupational functioning.' " Boyd v. Apfel, 239 F.3d 698, 700 n.2 (5th Cir. 2001) (quoting AMERICAN PSYCHIATRIC ASS'N DIAGNOSTIC AND
3

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No. 10-50576 t r e a t m e n t records and hearing testimony. Based on the evidence as a whole, the A L J concluded that Herrera has mild restrictions in the activities of daily living, m i l d difficulties in social functioning, moderate difficulties with regard to c o n c e n t r a t io n , persistence or pace. He concluded that "[t]his determination is c o n s is t e n t with the claimant's demonstrated abilities on mental status e v a lu a tio n , which included moderately impaired concentration and social fu n c tio n in g within normal limits . . . ." The ALJ incorporated these limitations in t o his determination of Herrera's residual functional capacity, finding that H e r r e r a "would be able to understand, remember, and carry out routine step in stru ct io n s and respond appropriately to supervisors and coworkers in jobs that d o not require independent decision making." We find that the ALJ considered t h e relevant evidence regarding Herrera's mental impairments, and that s u b s t a n t ia l evidence supports his conclusions. Third, Herrera contends that the evidence does not support a finding that h e is capable of performing unskilled work, and that the ALJ failed to properly a s s e s s his mental impairments in determining otherwise. Herrera correctly n o te s that "[t]he decisionmaker must not assume that failure to meet or equal a listed mental impairment equates with capacity to do at least unskilled work. T h e decision requires careful consideration of the assessment of [residual fu n c tio n a l capacity]." SSR 85-15 (1985). Social Security Ruling 85-15, upon w h ic h Herrera relies, states that "[t]he basic mental demands of competitive, r e m u n e r a t iv e , unskilled work include the abilities . . . to understand, carry out, a n d remember simple instructions; to respond appropriately to supervision,

ST A T I S T I C A L MANUAL OF MENTAL DISORDERS at 32 (4th ed. 1994) (DSM-IV)).

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No. 10-50576 c o w o r k e r s , and usual work situations; and to deal with changes in a routine w o r k setting." See also 20 C.F.R. § 404.1521(B). The ALJ in this case considered Herrera's mental impairments, and c o n c lu d e d that Herrera retained the capacity "to understand, remember, and c a r r y out routine step instructions and respond appropriately to supervisors and c o w o r k e r s in jobs that do not require independent decision making." This

fin d in g is consistent with the ALJ's holding that Herrera retained the residual fu n c tio n a l capacity to perform unskilled work, and is supported by substantial e v id e n c e . For instance, Dr. Boulos concluded that Herrera retained the

fu n c tio n a l capacity to "understand, remember, and carry out detailed and c o m p le x instructions, make decisions, attend and concentrate for extended p e r io d s , accept instructions, and respond appropriately to changes in the routine w o r k setting," finding Herrera to be only "moderately limited" in these areas. Furthermore, Dr. Boulos also found that Herrera was "not significantly limited" in his ability to get along with coworkers or peers, and Dr. McMains found social fu n c tio n in g within normal limits. F in a lly , Herrera contends that the ALJ failed to consider the effect of his p h y s ic a l impairments and pain in his assessment of Herrera's residual fu n c tio n a l capacity to work a 40 hour work week, as required by 20 C.F.R. § 404.1529 and Social Security Ruling 96-7p. Pursuant to § 404.1529(c)(1), the a d ju d ic a t o r must find whether the objective medical evidence shows that the c la im a n t has a medically determinable impairment that could reasonably be e x p e c t e d to produce the claimant's complained-of symptoms, such as pain. If so, the adjudicator must then evaluate the intensity and persistence of the s y m p t o m s in order to determine how the symptoms limit the claimant's capacity

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No. 10-50576 f o r work. Id. If the claimant's symptoms are not substantiated by objective m e d ic a l evidence, "the adjudicator must consider all of the evidence in the case r e c o r d , including any statements by the individual . . . concerning the i n d i v i d u a l's symptoms" and then "make a finding on the credibility of the in d iv id u a l's statements about symptoms and their functional effects." SSR 96-7p (J u ly 3, 1996). "The ALJ must consider subjective evidence of pain, . . . but it is w i t h i n his discretion to determine the pain's disabling nature." Wren v.

S u lliv a n , 925 F.2d 123, 128 (5th Cir. 1991) (per curiam) (internal citations o m it t e d ). Although an ALJ "is bound . . . to explain his reasons for rejecting a c la im a n t 's complaints of pain," he is not required to "follow formalistic rules in h is articulation." Falco v. Shalala, 27 F.3d 160, 164 (5th Cir. 1994). In accordance with § 404.1529, the ALJ first determined that Herrera's m e d ic a lly -d e t e r m in a b le impairments could reasonably be expected to produce t h e symptoms that Herrera alleged. However, the ALJ concluded that Herrera's " s t a t e m e n t s concerning the intensity, persistence and limiting effects of these s y m p t o m s are not credible to the extent they are inconsistent with the residual fu n c tio n a l capacity assessment . . . ." Based on the evidence in the record, the A L J was "not convinced the claimant has been precluded from meeting the d e m a n d s of competitive work since August 21, 2006," and that " the degree of p a in alleged exceeds objective medical findings." He found that "the evidence . . . does not reflect symptomatology that would cause more than 1 to 2 absences a month," and therefore would not preclude competitive work. Contrary to Herrera's assertions, the ALJ came to this conclusion after th orou g h consideration and discussion of the relevant medical evidence on record r e g a r d in g Herrera's physical impairments. This evidence included reports from

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No. 10-50576 h is treating physician following the August 21, 2006 accident and from a number o f consultative physical examinations, and Herrera's and his wife's accounts of h is pain and the effect of his symptoms on his daily activities. The ALJ found t h a t Herrera's physical impairments limited his abilities, but concluded that the e v id e n c e "suggests at most symptomatology that would preclude lifting/carrying in excess of 20 pounds occasionally and 10 pounds frequently and more than o c c a s io n a lly stooping, crouching, kneeling, and crawling." The ALJ also found t h a t Herrera's medical conditions would "preclude the claimant from constantly fe e l i n g with his hands and feet and operating foot controls." in c o r p o ra te d these limitations into his residual functional The ALJ capacity

d e t e r m in a t io n . It appears that the ALJ fully considered the evidence in the r e c o r d in making his determination, and on review of the record we find that s u b s t a n t ia l evidence supports the ALJ's conclusions. I I I . CONCLUSION F o r the foregoing reasons, we AFFIRM the judgment of the district court.

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