Leggett v. Chater, 95-50058

• Decision Date: 30 October 1995
• Docket Number: No. 95-50058,95-50058
• Citation: 67 F.3d 558
• Parties: , Unempl.Ins.Rep. (CCH) P 14848B Don E. LEGGETT, Plaintiff-Appellant, v. Shirley E. CHATER, Commissioner of the Social Security Administration, Defendant-Appellee. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 558

67 F.3d 558

49 Soc.Sec.Rep.Ser. 118, Unempl.Ins.Rep. (CCH) P 14848B

Don E. LEGGETT, Plaintiff-Appellant, v. Shirley E. CHATER, Commissioner of the Social Security Administration, Defendant-Appellee.

No. 95-50058

Summary Calendar.

United States Court of Appeals Fifth Circuit.

Oct. 30, 1995.

Bob Richardson, Austin, TX, for Plaintiff-Appellant.

James H. DeAtley, Austin, TX, James William Jennings, Jr., Assistant U.S. Attorney, Office of the United States Attorney, San Antonio, TX, Michael K. Yudin, OGC Social Security Administration, Dallas, TX, for Defendant-Appellee.

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

Before WISDOM, DAVIS and STEWART, Circuit Judges.

WISDOM, Circuit Judge:

The plaintiff/appellant asks this Court to review the decision of the Commissioner of Social Security (Commissioner) denying his application for disability benefits. ¹ Specifically, the plaintiff alleges that the Commissioner's decision is erroneous because it is not supported by substantial evidence and does not properly weigh the opinion of the plaintiff's treating physicians. Additionally, he requests that this Court remand his case to the Commissioner to consider new evidence of his mental disability. We, however, agree with the findings of the earlier proceedings and, accordingly, we AFFIRM.

I.

The claimant, Don Leggett, filed an application for Social Security benefits on August 30, 1991, for alleged disabilities stemming from a July 2, 1991, heart attack. The Social Security Administration timely denied Leggett's application both initially and on reconsideration. Leggett then requested a hearing before an Administrative Law Judge (ALJ), who also denied his disability application. The Appeals Council declined Leggett's request for review, making the ALJ's decision the final decision of the Commissioner. Leggett next sought review in federal district court. The federal magistrate, to whom the case was assigned, denied relief to Leggett, thereby generating one basis for this appeal.

After the ALJ's decision, Leggett refiled for disability benefits, this time basing his application on alleged mental impairments. Unlike his former application, the Commissioner granted his new application for disability benefits. This event serves as another basis for Leggett's appeal.

II.

Leggett, born May 31, 1939, has a high school education. He worked for a chemical company from 1962 to 1985, a restaurant equipment company from 1986 to 1989, and a food vending machine company for the last part of 1989. All of these positions required Leggett regularly to lift items weighing at least 25 pounds. At the time of Leggett's heart attack, which is described below, he was working as a cashier in a convenience store. This position required Leggett to wait on customers, complete a daily report, and stock the shelves. To perform the stocking duties, Leggett carried containers in excess of ten pounds.

On July 2, 1991, while moving some cartons at the convenience store, Leggett suffered an acute myocardial infarction (heart attack). He entered a hospital, which performed a cardiac catheterization on him. This test revealed an 80 percent stenosis (narrowing) in one branch of a bifurcated diagonal vessel and a 50 to 60 percent occlusion (blockage) in the right coronary. Chest X-rays suggested chronic obstructive pulmonary disease (COPD) and diffuse interstitial fibrosis (hardening of the lung tissues). After seven days, Leggett was discharged from the hospital, placed on medication, ordered to stop smoking, and allowed to participate in non-strenuous physical activities.

Experiencing chest discomfort, Leggett returned to the hospital on July 19, 1991. Dr. Salmon took X-rays of Leggett, which revealed a mild cardiomegaly (enlargement of the heart) with mild to moderate vascular congestive change. An echocardiogram taken at this time showed that Leggett's heart is normal, except for posterior and inferior hypokinesis (lack of active muscular contraction) and mild aortic regurgitation (blood flowing backwards into the heart). Dr. Salmon adjusted Leggett's medications and released him.

Leggett took a treadmill stress test on August 21, 1991. The test revealed areas of reversible ischemia (lack of blood supply) in the anterior and lateral wall of the left ventricle and Leggett complained of some pain in his left shoulder. Nevertheless, Dr. Williams found Leggett to have "good exercise tolerance". Following the test, Dr. Williams again adjusted Leggett's medications.

In an attempt to alleviate Leggett's persistent shoulder pain, on September 6, 1991, Dr. Williams performed balloon coronary angioplasty on Leggett to try to open a vessel that had an 80 percent stenosis. The procedure, however, was not successful in restoring the blood flow. Dr. Williams then instructed Leggett that he would have to learn to live with some of the pain and that he was not to restrict physical activity, even permitting Leggett to return to work the following day.

During a November 18, 1991, office visit, Dr. Williams noted that Leggett had several instances of heart racing and that Leggett was anxious about his condition. Dr. Williams concluded, however, that Leggett's "symptoms [are] disproportionate to the objective degree of coronary disease".

Leggett complained to Dr. Williams of headaches, depression, and anxiety during a March 11, 1992, office visit. Leggett also said that he was experiencing pain when he walked and some pain in his left arm. Dr. Williams determined that the arm pain was not cardiac related. Leggett then complained to Dr. Williams of the same problems on April 6, 1992. A physical examination revealed that Leggett's symptoms were normal, but at this point, Dr. Williams characterized his symptoms as "basically chronic, refractory, and debilitating".

Dr. Williams examined Leggett again on September 8, 1992, and on March 29, 1993. On both occasions, Leggett repeated his earlier complaints. Additionally, during the March examination, Leggett complained that his ankles swell when he walks, but Dr. Williams found no swelling during the examination.

Finally, a pulmonary function study conducted on June 28, 1993, revealed moderate signs of shortness of breath, the severity of which was not disabling on its own.

III.

In addition to the above facts, the ALJ also relied on testimony from a medical expert, a vocational expert, and Leggett himself. After reviewing Leggett's medical history, the medical expert concluded that Leggett has coronary artery disease. He found no evidence, however, to link Leggett's headaches to this disease. The medical expert further noted that Leggett's alleged COPD could aggravate the coronary artery disease, but that more tests were needed. In closing, the medical expert stated that Leggett is capable of performing sedentary work in an environment devoid of dust and extreme temperatures and that he should be capable of ordinary physical activities.

Furthering the testimony of the medical expert, the vocational expert testified that Leggett is not capable of performing any of his past jobs as they were actually performed because those positions required physical exertion in excess of a sedentary level. The vocational expert added, however, that generally in the national economy, cashier positions range from medium-level work to sedentary.

With respect to his post-heart attack activities and condition, Leggett testified that he takes care of his three daughters, aged 9, 11, and 13. In a typical day, he stated that he prepares their breakfast, gets them ready for school, and cleans the house. After these chores, he said that he rests for an hour. In the afternoon, Leggett again cares for his daughters, but this time he does not rest. Leggett also stated that he is able to cut the grass in small increments and to walk six blocks at a time before having to rest. Finally, Leggett complained of swelling in his legs, ankles, and hands if he sits or stands too long; headaches; and difficulty breathing.

IV.

To determine whether a claimant qualifies as "disabled" under 42 U.S.C.A. Sec. 423(d)(1)(A) (West Supp.1995), the Commissioner uses a sequential five-part inquiry. ² The burden of proof lies with the claimant to prove disability under the first four parts of the inquiry. ³ This inquiry terminates if the Commissioner finds at any step that the claimant is or is not disabled. ⁴ The Commissioner's decision is granted great deference ⁵ and will not be disturbed unless the reviewing court cannot find substantial evidence in the record to support the Commissioner's decision or finds that the Commissioner made an error of law. ⁶

A review of the record reveals that the Commissioner's determination that Leggett is not disabled, as rendered by the ALJ, is supported by substantial evidence. "Substantial evidence is that which is relevant and sufficient for a reasonable mind to accept as adequate to support a conclusion; it must be more than a scintilla, but it need not be a preponderance." ⁷ The Court of Appeals cannot reweigh the evidence, but may only scrutinize the record to determine whether it contains substantial evidence to support the Commissioner's decision. ⁸ Here, the Commissioner found that Leggett was not disabled under Step IV of the test, which directs a finding that the claimant is not disabled if the claimant's impairments do not "prevent [the claimant] from doing past relevant work". ⁹ Contesting this finding, Leggett points to the testimony of the vocational expert, who stated that none of Leggett's past jobs fall within the category of sedentary jobs; thus, Leggett argues that he cannot return to any of his past relevant work.

The mere inability of a claimant to perform certain "requirements of his past job does not mean that he is unable to perform 'past relevant work' as that phrase is used in the regulations"; ¹⁰ rather, the Commissioner may also consider the...