Perez v. Barnhart

• Decision Date: 01 July 2005
• Docket Number: No. 04-50200.,04-50200.
• Citation: 415 F.3d 457
• Parties: Daniel PEREZ, Plaintiff-Appellant, v. Jo Anne B. BARNHART, Commissioner of Social Security, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

415 F.3d 457

Daniel PEREZ, Plaintiff-Appellant, v. Jo Anne B. BARNHART, Commissioner of Social Security, Defendant-Appellee.

No. 04-50200.

United States Court of Appeals, Fifth Circuit.

July 1, 2005.

COPYRIGHT MATERIAL OMITTED

Mary Ellen Felps (argued), Austin, TX, for Perez.

James Alfred Garrett (argued), SSA Office of Gen. Counsel, Dallas, TX, Winstanley Fiddian Luke, Asst. U.S. Atty., San Antonio, TX, for Barnhart.

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

Before REAVLEY, DeMOSS and PRADO, Circuit Judges.

PRADO, Circuit Judge:

Daniel Perez challenges his denial of social security disability benefits. Because the Commissioner's decision is supported by substantial evidence, we affirm the judgment of the district court.

I. Background

Plaintiff-Appellant Daniel Perez injured his knee while working as a painter in May 1990. He began receiving treatment for his injury immediately. Between 1990 and 1997, Perez saw at least seven doctors for a variety of conditions, including degenerative disc disease of the spine, degenerative arthritis of the knee, neck pain, back pain, buttock pain, obesity, and diabetes.

Perez filed a disability insurance benefits ("DIB") application in June 1997, alleging disability since May 1990 due to diabetes, left leg pain, and osteoarthritis.¹ The Commissioner contends, and Perez does not dispute, that the relevant time frame for consideration of Perez's status is May 31, 1990, the date that Perez was injured on the job, to December 31, 1995, the date that Perez last met the insured status requirements of the Social Security Act.² The Commissioner denied Perez's application.

The ALJ held a hearing on Perez's application and determined that Perez was not disabled. In addition to considering the objective medical evidence in the record, the ALJ heard testimony from Perez, a medical expert, and a vocational expert ("VE").

First, the ALJ found that the objective medical evidence supported a finding of no disability. Although the record contained a letter from one of Perez's treating physicians Dr. Sullivan, stating that Perez was unable to work, this evidence was contradicted by Dr. Sullivan himself as well as other evidence in Perez's medical records. Specifically, a year before Dr. Sullivan issued the letter stating that Perez was unable to work, he released Perez to sedentary work.³ Moreover, Dr. Sullivan had not performed any X-Rays, MRIs, CT scans, or other medical tests on Perez. In addition, Perez had never used a cane or other device to help him walk, nor had he ever gone to physical therapy, performed strengthening exercises at home, or used a TENS unit to relieve pain.

Second, the ALJ found that Perez's testimony regarding the severity of his pain was not fully credible and thus did not support a finding of disability. Perez testified that he graduated from high school but was in special education from sixth to tenth grade and was in a work program from eleventh through twelfth grade. He also testified to the following: he received Cortisone injections every four weeks, which did not relieve his pain, and took Vicodin three times a day, which helped some; he did not have enough money to pay for his diabetes medication; he walked for exercise when able, but his feet had been too swollen to exercise during the four months prior to the hearing; he was forgetful; and his back and knee pain prevented him from working.

The ALJ noted that the issue to be decided was not whether Perez experienced pain, but rather "the degree of incapacity incurred because of it." And although Perez complained of severe pain, the medical and other evidence contradicted Perez's testimony. As a result, the ALJ "[did] not find [Perez's] statements regarding severe limitations in his activities of daily living or his inability to perform any work activity to be credible."

Third, the ALJ found the testimony of the medical expert and the VE to be credible. The medical expert, a board certified surgeon, reviewed Perez's medical records and concluded that from May 1990 to June 1991, Perez was capable of less than sedentary work, but was capable of sedentary work thereafter.

Additionally, the ALJ asked the VE about the work prospects of a hypothetical person with Perez's age, education, past work history, and work skills and who is limited to sedentary work. The VE testified that there is a significant number of jobs in the national economy that such a person could perform, specifically, assembler of small parts (7,000 jobs in the state and 70,000 nationally), parking lot cashier (2,500 jobs in the state and 25,000 nationally), surveillance system monitor (2,700 jobs in the state and 27,000 nationally), and envelope addresser and stuffer (2,800 jobs in the state and 30,000 nationally).

Taking into account the medical evidence as well as the testimony of Perez, the medical expert, and the VE, the ALJ found that Perez had the residual functional capacity ("RFC") to perform sedentary work. As such, he was not disabled within the meaning of the Act prior to December 31, 1995, the date on which he last met the insured status requirements.

Perez appealed to the Appeals Council, which concluded that no basis existed for review of the ALJ's decision. The ALJ's decision therefore became the final decision of the Commissioner of the Social Security Administration. See Masterson v. Barnhart, 309 F.3d 267, 271 (5th Cir.2002). Having exhausted his administrative remedies, Perez filed suit in the U.S. District Court for the Western District of Texas. The case was referred to a U.S. magistrate judge, who issued a Report and Recommendation that Perez's claims be denied. The district court accepted the magistrate judge's recommendation and affirmed the administrative decision denying Perez's application for benefits. Perez timely appealed to this court.

II. Standard of Review

Our review of the Commissioner's decision is limited to two inquiries: (1) whether the decision is supported by substantial evidence on the record as a whole, and (2) whether the Commissioner applied the proper legal standard. Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir.1994). "Substantial evidence is `such relevant-evidence as a reasonable mind might accept as adequate to support a conclusion.'" Id. It is "more than a mere scintilla and less than a preponderance." Masterson, 309 F.3d at 272 (quoting Newton v. Apfel, 209 F.3d 448, 452 (5th Cir.2000)). In applying the substantial evidence standard, the court scrutinizes the record to determine whether such evidence is present, but may not reweigh the evidence or substitute its judgment for the Commissioner's. Greenspan, 38 F.3d at 236; Masterson, 309 F.3d at 272. Conflicts of evidence are for the Commissioner, not the courts, to resolve. Masterson, 309 F.3d at 272. If the Commissioner's fact findings are supported by substantial evidence, they are conclusive. Richardson v. Perales, 402 U.S. 389, 390, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971).

III. Discussion

A claimant bears the burden of proving that he or she suffers from a disability, defined as the "inability 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." Newton, 209 F.3d at 452 (quoting 42 U.S.C. § 423(d)(1)(A) (2003)). "Substantial gainful activity is defined as work activity involving significant physical or mental abilities for pay or profit." Id. at 452-53 (citing 20 C.F.R. § 404.1572(a)(b)). The ALJ uses a five-step sequential analysis to evaluate claims of disability: (1) whether the claimant is currently engaged in substantial gainful activity (whether the claimant is working); (2) whether the claimant has a severe impairment; (3) whether the claimant's impairment meets or equals the severity of an impairment listed in 20 C.F.R., Part 404, Subpart B, Appendix 1; (4) whether the impairment prevents the claimant from doing past relevant work (whether the claimant can return to his old job); and (5) whether the impairment prevents the claimant from doing any other work. Masterson, 309 F.3d at 271-72; Newton, 209 F.3d at 453 (both citing 20 C.F.R. § 404.1520). The claimant bears the burden of proof on the first four steps, and then the burden shifts to the Commissioner on the fifth'step to show that the claimant can perform other substantial work in the national economy. Masterson, 309 F.3d at 272; Newton, 209 F.3d at 453. "Once the Commissioner makes this showing, the burden shifts back to the claimant to rebut this finding." Newton, 209 F.3d at 453.

If the Commissioner can determine whether the claimant is disabled at any step, that ends the analysis. 20 C.F.R. § 404.1520(a). If the Commissioner cannot make a determination, he goes on to the next step. Id. Before going from step three to step four, the Commissioner assesses the claimant's RFC. Id. The claimant's RFC assessment is a determination of the most the claimant can still do despite his physical and mental limitations and is based on all relevant evidence in the claimant's record. 20 C.F.R. § 404.1545(a)(1). The claimant's RFC is used at both steps four and five of the sequential analysis: at the fourth step to determine if the claimant can still do his past relevant work, and at the fifth step to determine whether the claimant can adjust to any other type of work. 20 C.F.R. § 404.1520(e).

Here, the ALJ found that Perez was not disabled at step five of the sequential analysis, where the Commissioner has the burden to show that the claimant is not disabled, Wren v. Sullivan, 925 F.2d 123, 125 (5th Cir.1991). In determining whether substantial evidence of disability exists, this court weighs four factors: (1) objective medical evidence; (2) diagnoses and opinions; (3) the claimant's subjective evidence of pain and...