Johnson v. Bowen, 88-4521

• Decision Date: 06 December 1988
• Docket Number: No. 88-4521,88-4521
• Parties: , Unempl.Ins.Rep. CCH 14488A Kernis J. JOHNSON, Plaintiff-Appellant, v. Otis R. BOWEN, M.D., Secretary of Health and Human Services, Defendant-Appellee. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 340

864 F.2d 340

24 Soc.Sec.Rep.Ser. 214, Unempl.Ins.Rep. CCH 14488A

Kernis J. JOHNSON, Plaintiff-Appellant, v. Otis R. BOWEN, M.D., Secretary of Health and Human Services,

Defendant-Appellee.

No. 88-4521

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Dec. 6, 1988.

John D. Thompson, Jr., Lafayette, La., for plaintiff-appellant.

John Gough, Chief Counsel, HHS, Office of Reg. Counsel, Dallas, Tex., for defendant-appellee.

Appeal from the United States District Court for the Western District of Louisiana.

Before POLITZ, KING and SMITH, Circuit Judges.

PER CURIAM:

Kernis J. Johnson ("Johnson") appeals the district court's judgment affirming the decision of the Secretary of Health and Human Services that Johnson is not "disabled" within the meaning of the Social Security Act ("the Act"), 42 U.S.C. Sec. 301, et seq. (1982), as amended. We find that the Secretary's decision to deny benefits to Johnson is supported by substantial evidence, and consequently, we affirm.

I.

At the time of the administrative hearing, Johnson was 51 years old. He worked most of his life as a tractor operator; plowing, planting, and working in a mill at harvest time. He has a third grade education and is unable to read or write.

Johnson filed applications for disability insurance benefits ("disability") and supplemental security income ("SSI") under the Act alleging disabilities since August 26, 1985, due to a hiatal hernia, depression, nervousness and high blood pressure. Johnson testified at the hearing before the administrative law judge ("ALJ") that he ceased working because of problems with his nerves. He stated that he was nervous, had a loss of appetite, experienced insomnia, and had occasional crying spells. He testified that he had been treated at a mental health center on a bi-monthly basis during the previous year.

The medical evidence indicates that Johnson was hospitalized in August, 1985, for a hiatal hernia. On October 19, 1985, Johnson underwent a consultative examination, performed by Dr. Thomas J. Callender, an internist. Johnson complained of a ventral hernia, nerve problems, mental problems, sleeplessness, anxiety, depression, and low back pain. He also alleged chest pain and shortness of breath. An examination of Johnson's abdomen revealed no guarding and only diffuse tenderness. His mental status examination found Johnson to be alert with good attention and good short and long term memory. Dr. Callender noted that Johnson appeared to have a hiatal hernia which caused intermittent pain. He also had infrequent chest pain which was possibly related to gastrointestinal problems. An electrocardiogram and chest x-ray produced normal results. Dr. Callender also determined that Johnson appeared somewhat depressed. However, he opined that the depression may have been due to Johnson's attitude.

On March 28, 1986, Johnson was examined by Dr. Sam H. Benbow, a psychiatrist. Johnson testified that he had been treated by the Acadiana Mental Health Center for about a year and that his treatment and medication were helpful. Johnson stated that his daily activities included helping his wife with household chores, visiting relatives, spending time at the race track, and watching television. Johnson reported that he was depressed, but did not have crying spells very often. On mental status examination, Johnson was alert and appeared only mildly depressed. His thought processes were logical, although he seemed to be functioning on a somewhat low intellectual and educational level. Dr. Benbow diagnosed Johnson as having an adjustment disorder with mild to occasionally moderate chronic depression.

On May 22, 1986, Anne E. Babineaux, a psychologist at the Acadiana Mental Health Center, reported that Johnson had been admitted to the center on October 30, 1985, complaining of nervous feelings sleeping difficulties, pacing, poor appetite, depressed feelings with crying spells, and continuous worry concerning financial difficulties. Johnson's mental status examination yielded a diagnosis of dysthymic disorder and dependent personality disorder. Johnson was prescribed medication for his symptoms. When he was last seen on May 16, 1986, Johnson reported that his medication was helpful for his depressive symptoms and that he was sleeping well, had a good appetite, and experienced no crying spells.

On August 22, 1986, Johnson underwent IQ testing by Dr. Henry J. Lagarde, a clinical psychologist. Results of the Wechsler Adult Intelligence Scale--Revised (WAIS-R) revealed a verbal IQ of 68, performance score of 70, and full-scale IQ of 68. Dr. Lagarde determined that these scores were consistent with intellectual functioning in the upper ranges of mild mental retardation. Dr. Lagarde further noted that Johnson's real intellectual capability might be even higher than the measured score because the score might be affected by depression, low self esteem, and a readiness to internally negate his capabilities. Dr. Lagarde concluded that Johnson's vocational impairment was in a mild range, considering the fact that Johnson had been able to maintain gainful employment for a period of years and was able to manage his own funds.

The ALJ issued a decision on October 22, 1986, finding that Johnson was not entitled to disability insurance benefits or supplemental security income under the Act. The ALJ found that Johnson's mental retardation did not meet the requirements of the Listing of Impairments. The ALJ further determined that Johnson's mental retardation did not prevent him from performing his past work. Subsequently, Johnson submitted results of another IQ test to the Social Security Appeals Council. These results showed IQ scores ranging from 68 to 64. The testing psychologist, Dr. Hunter B. Shirley, expressed the opinion that Johnson was disabled pursuant to the Listing of Impairments. The appeals council found that this report did not provide a basis for changing the decision of the ALJ and thus denied Johnson's request for review of the hearing decision. Johnson filed a timely complaint in the district court seeking judicial review of the Secretary's final decision pursuant to 42 U.S.C. Sec. 405(g). The case was referred to a United States Magistrate who recommended that the Secretary's decision be affirmed. The district court adopted the magistrate's report and recommendation and affirmed the Secretary's decision in an order dated June 17, 1988. This appeal followed.

II.

In reviewing the Secretary's decision to deny disability and SSI benefits, ¹ this court is "limited to a determination that the Secretary's decision was supported by substantial evidence existing in the record as a whole and that no errors of law were made." Neal v. Bowen, 829 F.2d 528, 530 (5th Cir.1987). In applying the "substantial evidence" test, we must carefully scrutinize the record to determine if, in fact, such evidence is present. However, we may not reweigh the evidence in the record, nor try the issues de novo, nor substitute our judgment for that of the Secretary, even if the evidence preponderates against the Secretary's decision. ² Id.; Fields v. Bowen, 805 F.2d 1168, 1169 (5th Cir.1986). Substantial evidence means more than a scintilla, but less than a preponderance and is:

[S]uch relevant evidence as a reasonable mind might accept to support a conclusion. It must do more than create a suspicion of the existence of the fact to be established, but "no substantial evidence" will be found only where there is a "conspicuous absence of credible choices" or "no contrary medical evidence."

Hames v. Heckler, 707 F.2d 162, 164 (5th Cir.1983) (citations omitted).

An individual applying for disability and SSI benefits bears the initial burden of proving that he is disabled for purposes of the Act. ³ Neal, 829 F.2d at 530; Fields, 805 F.2d at 1169. Once the claimant satisfies his initial burden, the Secretary then bears the burden of establishing that the claimant is capable of performing substantial gainful activity and therefore, not disabled. Neal, 829 F.2d at 530. In determining whether or not a claimant is capable of performing substantial gainful activity, the Secretary utilizes a five-step sequential procedure set forth in 20 C.F.R. Sec. 404.1520(b)-(f) (1988):

1. An individual who is working and engaging in substantial gainful activity will not be found disabled regardless of the medical findings.

2. An individual who does not have a "severe impairment" will not be found to be disabled.

3. An individual who meets or equals a listed impairment in appendix 1 of the regulations will be considered disabled without consideration of vocational factors.

4. If an individual is capable of performing the work he has done in the past, a finding of "not disabled" must be made.

5. If an individual's impairment precludes him from performing his past work, other factors including age, education, past work experience, and residual functional capacity must be considered to determine if other work can be performed.

A finding that the claimant is disabled or not disabled at any point in the five-step process is conclusive and terminates the Secretary's analysis. Lovelace v. Bowen, 813 F.2d 55, 58 n. 15 (5th Cir.1987); Barajas v. Heckler, 738 F.2d 641, 643 (5th Cir.1984).

III.

Relying on the results of Johnson's second submitted IQ test, the testing psychologist, Dr. Shirley, opined that Johnson was disabled pursuant to the Listing of Impairments at Secs. 12.04 and 12.05. In order to meet the applicable level of severity for the listing at Sec. 12.04 in Appendix 1, a claimant must meet the requirements in both subsections A and B, which are:

A. Medically documented persistence, either continuous or intermittent, of one of the following:

1. Depressive syndrome characterized by at least four of the following:

a. Anahedonia or pervasive loss of interest in almost all activities; or

b. Appetite disturbance with change in weight; or

c. Sleep...