Selders v. Sullivan, 90-4207

• Citation: 914 F.2d 614
• Decision Date: 07 September 1990
• Docket Number: No. 90-4207,90-4207
• Parties: , Unempl.Ins.Rep. CCH 15698A Curtis SELDERS, Plaintiff-Appellant, v. Louis W. SULLIVAN, M.D., Secretary of Health and Human Services, Defendant-Appellee. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 614

914 F.2d 614

31 Soc.Sec.Rep.Ser. 170, Unempl.Ins.Rep. CCH 15698A

Curtis SELDERS, Plaintiff-Appellant, v. Louis W. SULLIVAN, M.D., Secretary of Health and Human Services, Defendant-Appellee.

No. 90-4207

Summary Calendar.

United States Court of Appeals, Fifth Circuit.

Sept. 7, 1990.

Doris Falkenheiner, Baton Rouge, La., for plaintiff-appellant.

Christopher J. Carillo, Dallas, Tex., Karen J. Sharp, Principal Reg. Counsel, HHS, for defendant-appellee.

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

Before CLARK, Chief Judge, JOLLY and JONES, Circuit Judges.

PER CURIAM:

I.

Curtis Selders appeals the district court's judgment in favor of the Secretary of Health and Human Services that resulted in the denial of disability benefits under 42 U.S.C. Sec. 423. We affirm.

II.

Curtis Selders was 36 years old at the time he filed his application for Supplemental Security Income benefits. He had worked as a construction laborer and carpenter for 16 years. Selders alleged that he became disabled and unable to work due to injuries sustained to his back and knee when he fell five feet and landed in a sitting position on a concrete slab. Selders submitted statements with his application for benefits indicating that he could still occasionally lift up to 10 to 15 pounds, but no more than 25 pounds. He stated that he could walk three blocks and sit for three hours at a time.

After his accident, Selders was examined by six different doctors as well as a number of specialists at the University Medical Center. The results of the tests, x-rays, and diagnoses repeatedly indicated that Selders had no significant orthopedic or neurological problems. He has a normal range of motion, normal gait, normal reflexes, and normal sensory responses. Selders, however, continues to have subjective complaints of pain.

A rehabilitation consultant conducted a vocational evaluation of Selders. Selders' I.Q. test results indicated a verbal score of 70, a performance score of 76, and a full scale score of 72. He was assessed to be at a third grade level in both reading and mathematical abilities. The consultant maintained that the vocational tests indicated non-marketable skill levels, and he surmised that Selders was left with no marketable skills because of his injury.

Based on all of the record evidence, the ALJ determined that Selders did not have an impairment or combination of impairments listed in, or medically equal to one listed in the regulations. He also determined that Selders' impairments did not preclude him from performing a full range of light or sedentary work. The ALJ relied on the Medical-Vocational Guidelines to direct a finding that Selders was not disabled within the meaning of the Social Security Act. The Appeals Council denied Selders' request for review of the hearing decision. The decision of the ALJ therefore became the final decision of the Secretary. Selders sought judicial review in the district court pursuant to 42 U.S.C. Sec. 405(g).

The magistrate to whom the case was referred recommended granting the Secretary's motion for summary judgment, concluding that there was substantial evidence to support the Secretary's conclusion that Selders was capable of performing light or sedentary work. After Selders filed objections to the magistrate's report, the district court adopted the magistrate's recommendation thereby granting the Secretary's motion for summary judgment and dismissing the suit. Selders appeals.

III.

Selders raises three issues on appeal. First, he claims that decision of the Secretary of Health and Human Services is not supported by substantial evidence. Second, he claims the Secretary did not properly apply the Medical-Vocational Guidelines when determining that Selders was not disabled. Third, Selders claims that the Secretary should have found him to have an impairment substantially equivalent to one in the Listing of Impairments.

Substantial Evidence

On review, this court's function is to determine whether substantial evidence exists in the record as a whole to support the Secretary's factual findings. Fraga v. Bowen, 810 F.2d 1296, 1302 (5th Cir.1987). If the Secretary's findings are supported by substantial evidence, they are conclusive and must be affirmed. 42 U.S.C. Sec. 405(g); See Richardson v. Perales, 402 U.S. 389, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971). Substantial evidence means that evidence which is relevant and sufficient for "reasonable mind [to] accept as adequate to support a conclusion." Jones v. Heckler, 702 F.2d 616, 620 (5th Cir.1983) (citations omitted). This court may not reweigh the evidence or try the issues de novo. Cook v. Heckler, 750 F.2d 391, 392 (5th Cir.1985). Conflicts in the evidence are for the Secretary and not the courts to resolve. Patton v. Schweiker, 697 F.2d 590, 592 (5th Cir.1983).

As claimant, Selders had the burden of proving that he is disabled within the meaning of the Social Security Act. Fraga v. Bowen, 810 F.2d at 1301. The statute defines disability as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which ... has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. Sec. 423(d)(1)(A). Once the claimant establishes disability, the burden shifts to the Secretary to show that there is other substantial gainful employment available that the claimant is able to perform. Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir.1988). If the Secretary fulfills his burden of pointing out potential alternative employment, "the burden then shifts back to the claimant to prove that he is unable to perform the alternate work." Fraga, 810 F.2d at 1302.

In evaluating a claim of disability, the Secretary conducts a five-step sequential analysis: (1) the claimant is not presently working, 20 C.F.R. Sec. 404.1520(b); (2) the claimant has a severe impairment, 20 C.F.R. Sec. 404.1520(c); (3) the impairment is not listed in, or equivalent to, an impairment listed in Appendix 1 of the Regulations, 20 C.F.R. Sec. 404.1520(d); (4) the impairment prevents the claimant from doing past relevant work, 20 C.F.R. Sec. 404.1520(e); and (5) the impairment prevents the claimant from doing any other substantial gainful activity. 20 C.F.R. Sec. 1520(f); See Hampton v. Bowen, 785 F.2d 1308, 1311 (5th Cir.1986). In determining whether the claimant can do any other work, the Secretary considers the claimant's residual functional capacity, together with age, education, and work experience, according to the Medical-Vocational Guidelines set forth by the Secretary. See 20 C.F.R. Sec. 404.1561.

The ALJ concluded that Selders was unable to perform his past work but that Selders retained the residual functional capacity to perform a full range of light work. Light work involves "lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing 10 pounds." 20 C.F.R. Sec. 404.1567(b). A job also fits into this category when it requires "a good deal of walking or standing or when it involves sitting most of the time with some pushing and pulling of arm or leg controls." Id.

The ALJ's finding that Selders is not disabled is supported by substantial evidence. None of the extensive medical evidence in the record indicates that Selders could not perform light or sedentary work. Furthermore, Selders submitted a statement indicating that he could still occasionally lift up to 10 to 15 pounds, that he could walk for several blocks and sit for hours at a time. The fact that the vocational expert indicated that Selders had no marketable skills is not dispositive. The expert's opinion was based largely on the fact that Selders is of below average intelligence. However, subjective factors such as age, education, and intelligence are taken into account in step 5 of the evaluation process.

Application of the Medical-Vocational Guidelines

Selders contends that the Secretary improperly relied on the Medical-Vocational Guidelines of the Social Security regulations because he has non-exertional impairments. See 20 C.F.R., Subpt. P, App. 2. When the claimant suffers only from exertional impairments or his non-exertional impairments do not significantly affect his residual functional capacity, the ALJ may rely exclusively on the Guidelines in determining whether there is other work available that the claimant can perform. 20 C.F.R. Sec. 404.1569 & Subpt. P, App. 2; Fraga v. Bowen, 810 F.2d at 1304.

Selders claims to have the non-exertional impairments of significantly subaverage mental capacity, chronic pain, and anxiety. Pain may constitute a non-exertional impairment that can limit the jobs a claimant would otherwise be able to perform. Carter v. Heckler, 712...