Whitehead v. Colvin

• Decision Date: 28 April 2016
• Docket Number: No. 15–30893,15–30893
• Parties: Arthur WHITEHEAD, Plaintiff–Appellant v. Carolyn W. COLVIN, Acting Commissioner of Social Security, Defendant–Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

820 F.3d 776

Arthur WHITEHEAD, Plaintiff–Appellant

v.Carolyn W. COLVIN, Acting Commissioner of Social Security, Defendant–Appellee.

No. 15–30893

United States Court of Appeals, Fifth Circuit.

April 28, 2016.

Adam Meunier, Law Offices of Melanie A. Leavitt, Metairie, LA, for Plaintiff–Appellant.

Michael Jonathan Carey, Social Security Administration, Office of the General Counsel Region VI, Dallas, TX, John Joseph Gaupp, Esq., Assistant U.S. Attorney, U.S. Attorney's Office, Baton Rouge, LA, for Defendant–Appellee.

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

Before REAVLEY, SMITH, and HAYNES, Circuit Judges.

PER CURIAM:

Plaintiff Arthur Whitehead appeals the judgment of the district court affirming the Acting Social Security Commissioner's denial of his application for disability benefits. Because we conclude that the Commissioner's decision is lawful and supported by substantial evidence, we AFFIRM.

I. Background

Whitehead began treatment with Dr. Jorge Isaza on August 20, 2010, complaining chiefly of neck pain, after he slipped and hit his head while employed as a heavy equipment operator several days prior.

Ultimately, Whitehead informed Dr. Isaza that he intended to apply for social security disability benefits.

On July 29, 2011, Whitehead received a Functional Capacity Evaluation (FCE), which showed that he was functioning at a light physical demand capacity. The FCE concluded that Whitehead could perform static standing for 2 to 4 hours in an 8–hour work day, and could occasionally perform repetitive squatting, kneeling, crouching, stair and ladder climbing, forward bent work, and overhead work. The FCE further stated that Whitehead could carry 20 pounds occasionally and 10 pounds frequently, could frequently sit and walk, and could do simple grasping, pushing, and pulling with both his left and right hands. The evaluating physical therapist concluded that Whitehead could return to work with the restrictions in the FCE. Dr. Isaza concurred in this assessment in August, September, and November of 2011.

Dr. Isaza continued to treat Whitehead in February, June, and September of 2012, and in his treatment reports continued to agree with the restrictions in the FCE. In a letter dated December of 2012, Dr. Isaza stated that he had managed Whitehead's symptoms conservatively with medications and once again expressed his agreement with the FCE.

On March 3, 2012, Dr. Herman Toliver performed a consultative examination of Whitehead and found that Whitehead had normal bilateral grip strength, decreased strength in the right arm, normal strength in the left arm, and minor left arm atrophy. Dr. Toliver concluded that Whitehead had mild-to-moderate limitations with pulling, pushing, and lifting heavy objects and should lift no more than 5 to 10 pounds.

On April 6, 2012, Dr. Jeffrey Nugent, a nonexamining state agency medical expert, reviewed Whitehead's physical residual functional capacity (RFC) and opined that Whitehead had limitations regarding frequent handling, fingering, and feeling in his right hand and a limitation of 9 pounds for frequent lifting or carrying.

Whitehead applied for disability insurance benefits on December 29, 2011, alleging that he was disabled beginning on August 15, 2010, due to depression, anxiety, chronic pain, high blood pressure

, vision problems, disc replacement in his neck, artery blockage in his neck and heart, hearing problems, knee problems, and sleep apnea. His claim was initially denied and he filed a request for a hearing.

On November 6, 2012, the Administrative Law Judge (“ALJ”) held an administrative hearing and two months later, she issued her decision, conducting the five-step evaluation process and finding that Whitehead was not disabled. 20 C.F.R. § 404.1520(a)(4)

. At step one, the ALJ found that Whitehead had not engaged in substantial gainful activity since his application date. At step two, the ALJ found that Whitehead had the severe impairment of cervical spine disease. At step three, the ALJ determined that Whitehead's impairments did not meet or medically equal the severity for presumptive disability listed at 20 C.F.R. Pt. 404, Subpart P, App. 1 (Listings), including Listing 1.04 for disorders of the spine. Before addressing step four, the ALJ considered Whitehead's RFC and found that he had the maximum RFC to perform light work, except that he could not climb ladders, ropes, and scaffolds, and should avoid overhead reaching with his right arm. The ALJ also found that Whitehead could occasionally stoop, kneel, crouch, and crawl. In making this finding, the ALJ considered Whitehead's credibility, and determined that his statements concerning the intensity, persistence, and limiting effects of his symptoms were not entirely credible because the objective evidence could not be fully reconciled with his statements. At step four, the ALJ found that Whitehead could not perform his past relevant work as a heavy equipment operator. At step five, the ALJ determined, based on a vocational expert's testimony, that there were jobs existing in significant numbers in the national economy that Whitehead could perform, such as the occupations of food preparation worker, housekeeping cleaner, and information clerk. Thus, the ALJ found that Whitehead was not disabled.

Whitehead sought review from the Appeals Council on October 30, 2013, which was denied. Whitehead requested review again and submitted additional evidence consisting of three additional treatment records from Dr. Isaza. The Appeals Council again denied his request for review. In its second denial, the Appeals Council stated that it considered the additional evidence Whitehead submitted, but concluded that the additional information did not provide a basis for changing the ALJ's decision. Thus, the ALJ's decision became the Commissioner's final decision. See 20 C.F.R. § 404.981

.

Whitehead appealed the Commissioner's final decision to the district court, which affirmed the Commissioner's decision and dismissed Whitehead's complaint. Whitehead now appeals the district court's dismissal, contending that: (1) the Appeals Council failed to adequately consider the additional evidence Whitehead submitted after the ALJ's decision; (2) the ALJ applied the wrong standard in determining that Whitehead did not meet or medically equal Listing 1.04(A); and (3) the ALJ's RFC finding is not supported by substantial evidence.

II. Jurisdiction and Standard of Review

Whitehead sought judicial review of the Commissioner's final administrative decision under 42 U.S.C. § 405(g)

. The district court entered a final judgment affirming the Commissioner's decision and dismissing Whitehead's complaint, and Whitehead timely appealed. We have jurisdiction to review Whitehead's appeal under 28 U.S.C. § 1291.

We review the Commissioner's denial of social security benefits “only to ascertain whether (1) the final decision is supported by substantial evidence and (2) whether the Commissioner used the proper legal standards to evaluate the evidence.” Newton v. Apfel, 209 F.3d 448, 452 (5th Cir.2000)

. “A finding of no substantial evidence is appropriate only if no credible evidentiary choices or medical findings support the decision.” Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir.2001) (quoting Harris v. Apfel, 209 F.3d 413, 417 (5th Cir.2000) ).

A claimant attempting to establish entitlement to social security benefits “has the burden of proving she has a medically determinable physical or mental impairment

lasting at least twelve months that prevents her from engaging in substantial gainful activity.” Newton, 209 F.3d at 452 (citing 42 U.S.C. § 423(d)(1)(A) ). The ALJ then uses a five-step sequential process to evaluate the claimant's entitlement to social security benefits by determining whether: “(1) the claimant is not working in substantial gainful activity; (2) the claimant has a severe impairment; (3) the claimant's impairment meets or equals a listed impairment in Appendix 1 of the Regulations; (4) the impairment prevents the claimant from doing past relevant work; and (5) the impairment prevents the claimant from doing any other work.” Id. at 453 (citing 20 C.F.R. § 404.1520 ). The claimant bears this burden of proof for the first four steps and then the burden shifts to the Commissioner for the fifth step. See

id.

III. Discussion

A. Consideration of New Evidence

Whitehead first argues that the Appeals Council erred in failing to adequately consider, evaluate, or discuss the new evidence Whitehead submitted after the ALJ's determination: namely, updated treatment records from Dr. Isaza, which Whitehead contends cast doubt on the soundness of the ALJ's findings.

When confronted with new and material evidence, the Appeals Council “shall evaluate the entire record including the new and material evidence.... It will then review the case if it finds that the administrative law judge's action, findings, or conclusion is contrary to the weight of the evidence currently of record.” 20 C.F.R. § 404.970(b)

. However, the regulations do not require the Appeals Council to discuss the newly submitted evidence, nor is the Appeals Council required to give reasons for denying review. See

Sun v. Colvin, 793 F.3d 502, 511 (5th Cir.2015). Thus, it was not error for the Appeals Council to omit a discussion of the additional treatment records submitted by Whitehead. Id.

Whitehead contends that his newly submitted evidence casts doubt on the ALJ's decision and thus should be addressed by a fact finder. He argues that his case is similar to Sun, where we concluded that new records “create[d] considerable uncertainty” regarding the ALJ's findings that the plaintiff “was able to ambulate effectively within a year of her injury's onset[.]” Id. at 512

. We disagree. The additional medical records do not change Dr. Isaza's stated agreement with the restrictions in Whitehead's FCE. Indeed, as contrasted with the facts in Sun, the newly submitted medical...