Wren v. Sullivan, 90-1584

• Decision Date: 01 March 1991
• Docket Number: No. 90-1584,90-1584
• Citation: 925 F.2d 123
• Parties: Florence M. WREN, Plaintiff-Appellant, v. Louis W. SULLIVAN, M.D., Secretary of Health & Human Services, Defendant-Appellee. Summary Calendar.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 123

925 F.2d 123

32 Soc.Sec.Rep.Ser. 359

Florence M. WREN, Plaintiff-Appellant, v. Louis W. SULLIVAN, M.D., Secretary of Health & Human Services, Defendant-Appellee.

No. 90-1584

Summary Calendar.

United States Court of Appeals Fifth Circuit.

March 1, 1991.

Hansel Anthony Jones, Jackson, Miss., for plaintiff-appellant.

George Phillips, U.S. Atty., Jackson, Miss., Beth Henderson, Mary A. Sloan, Mack A. Davis, and Bruce R. Granger, Atlanta, Ga., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Mississippi.

Before JOHNSON, SMITH and WIENER, Circuit Judges.

PER CURIAM:

In this Social Security case, Plaintiff-Appellant, Florence M. Wren, appeals from the order of the district court adopting the magistrate's report and recommendation to affirm the final decision of Defendant-Appellee (Secretary) declining Wren's request for review. Finding no reversible error in the district court's determination that the Secretary's decision was reasonable and supported by substantial evidence, we affirm.

I.

Wren filed her applications for disability insurance benefits and Supplemental Security Income on November 10, 1987, alleging disability from October 11, 1987, as a result of a back injury sustained in an automobile accident. The applications were denied initially, and were again denied upon reconsideration. Wren then requested a hearing before an Administrative Law Judge (ALJ), which was held on October 12, 1988. The ALJ subsequently issued a decision on November 25, 1988, denying Wren's claims. On May 5, 1989, the Appeals Council declined to grant Wren's request for review.

After she timely exhausted her administrative remedies, Wren sought judicial review of the Secretary's final decision in the district court. On July 3, 1990, the magistrate recommended that Wren's complaint be dismissed. Wren filed objections to the magistrate's report and recommendation. By order dated July 18, 1990, the district court adopted the magistrate's report and recommendation and affirmed the decision of the Secretary. Wren timely appealed on July 20, 1990.

II.

A. PROOF OF DISABILITY

In order to obtain a period of disability and disability insurance benefits, Wren bears the burden of proving that she is disabled within the meaning of the Social Security Act (the Act). Cook v. Heckler, 750 F.2d 391, 393 (5th Cir.1985). The Act defines disability 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 twelve months." 42 U.S.C. Sec. 423(d)(1)(A). A physical or mental impairment is "an impairment that results from anatomical, physiological or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. Sec. 423(d)(3).

B. DETERMINING DISABILITY

The Secretary has promulgated Social Security Administration Regulation No. 16, setting forth a five-step sequential process to be used in determining whether a claimant is disabled:

1. An individual who is working and engaging in substantial gainful activity will not be found disabled regardless of the medical findings. 20 C.F.R. Secs. 404.1520(b) and 416.920(b) (1989).

2. An individual who does not have a "severe impairment" will not be found to be disabled. 20 C.F.R. Secs. 404.1520(c) and 416.920(c) (1989).

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. 20 C.F.R. Sec. 404.1520(d) and 416.920(d) (1989).

4. If an individual is capable of performing the work he has done in the past, a finding of "not disabled" must be made. 20 C.F.R. Sec. 404.1520(e) and 416.920(e) (1989).

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 work can be performed. 20 C.F.R. Secs. 404.1520(f) and 416.920(f) (1989).

On the first four steps of the analysis, the claimant has the initial burden of proving that she is disabled. Bowen v. Yuckert, 482 U.S. 137, 146 n. 5, 107 S.Ct. 2287, 2294 n. 5, 96 L.Ed.2d 119 (1987). The burden shifts to the Secretary on the fifth step to show that the claimant is capable of performing work in the national economy and is therefore not disabled. Id. "A finding that a claimant is disabled or is not disabled at any point in the five-step review is conclusive and terminates the analysis." Lovelace v. Bowen, 813 F.2d 55, 58 (5th Cir.1987).

Following the sequential steps, the ALJ found that Wren was not disabled in the fourth step of the analysis because her "impairments do not prevent [her] from performing her past relevant work." The ALJ further found that Wren

ha[d] the residual functional capacity to perform work-related activities except for work involving lifting and carrying more than ten pounds on an occasional basis with frequent lifting and carrying of items such as docket files, ledgers, and small tools as well as standing and walking on an alternating basis throughout the workday with the claimant being able to sit the majority of the workday.

(citing 20 C.F.R. Sec. 404.1545 and Sec. 416.945). Moreover, the ALJ determined that "[t]he claimant's past relevant work as a seamstress did not require the performance of work-related activities precluded by the above limitation(s)." (citing 20 C.F.R. Sec. 404.1565 and Sec. 416.965).

C. REVIEW OF SUBSTANTIAL EVIDENCE

The scope of review by this Court is as follows:

In reviewing disability determinations by the Secretary, this Court's role is limited to determining whether substantial evidence exists in the record, considered as a whole, to support the Secretary's factual findings and whether any errors of law were made.... To be substantial, evidence must be 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.... We may not reweigh the evidence or substitute our judgment for that of the Secretary, but we must scrutinize the record in its entirety to ascertain whether substantial evidence does indeed support the Secretary's findings.

Anderson v. Sullivan, 887 F.2d 630, 633 (5th Cir.1989) (citation omitted).

To determine whether substantial evidence of disability exists, four elements of proof must be weighted: 1) objective medical facts; 2) diagnoses and opinions of treating and examining physicians; 3) claimant's subjective evidence of pain and disability; and 4) claimant's age, education, and work history. DePaepe v. Richardson, 464 F.2d 92, 94 (5th Cir.1972). The ALJ and the district court weighed the following:

1) Objective medical evidence. The record contains medical evidence from five physicians and one chiropractor. The apparent treating physician was Dr. A.B. Britton, III. The examining physicians were Dr. J.S. McIlwain and Dr. Hudson. The non-examining, reviewing physicians were Dr. Louis T. Maxey and Dr. Carol K. Yarbrough. The chiropractor was Dr. L.C. Huddleston.

Wren's treating physician, Dr. Britton, examined her on March 21, 1988. Both the objective and neurological exams were normal. In order to complete a medical assessment of Wren's ability to do work-related activities, Dr. Britton took x-rays of Wren's cervical and lumbar spine which showed degenerative changes.

Dr. McIlwain examined Wren on October 11, 1987. An x-ray of the lumbar spine indicated degenerative disc disease at L5-S1 and straightening of the lumbar curve. An x-ray of the chest revealed only left thoracoplasty, otherwise negative. Finally, an x-ray of the cervical spine showed degenerative disc disease in the lower cervical spine. Dr. McIlwain prescribed the use of a heating pad, Darvocet for pain, and Robaxin for muscle spasms. Dr. McIlwain saw Wren on two other occasions for follow-up. An x-ray of her back showed some osteoarthritis at L-5 through S-1. An MRI of her back showed a disc bulging at L-5 through S-1 level, degenerative joint disease at L-4, L-5, S-1, and degenerative faucet disease.

Another examining physician, Dr. Hudson, conducted a physical examination of Wren on January 26, 1988. Palpation of the back was unremarkable. There was no apparent localized tenderness. Straight leg raising was negative. Examinations of the wrist and legs were negative.

On October 19, 1987, Dr. Huddleston, Wren's chiropractor, conducted both an orthopedic and neurological examination which revealed hyporeflexia of the left biceps, positive foramina compression, decreased cervical extension with pain, decreased left lateral cervical flexion with pain, decreased cervical rotation with pain bilateral, positive Lewin test, positive Lewin sign, positive Kemps, decreased lumbar flexion with pain, decreased lumbar lateral flexion with pain, decreased left lumbar rotation left with pain, left high shoulder, high right pelvis, positive Soto Hall, positive Laseques right, and positive Fabere Patrick bilateral.

2) Diagnoses and opinions. On March 21, 1988, Dr. Britton was of the opinion that Wren was suffering from osteoarthritis. However, an objective examination and a neurological examination were normal. Moreover, Dr. Britton found that Wren could walk without assistance. In his February 7, 1989, medical assessment of Wren, Dr. Britton concluded that based on x-rays of her cervical and lumbar spine, she could lift and/or carry 2-8 pounds for 1/3 of an eight-hour workday; she could stand and/or walk one hour in an eight-hour workday in periods of 5-10 minutes without interruption; she could sit 2-3 hours for 45 minutes-1 hour without interruption; she could never balance, stoop, or crouch; and she could engage in limited pushing and pulling.

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