United States Court of Appeals,
Fifth Circuit.
No. 93-7360
Summary Calendar.
Pete FALCO, SSN XXX-XX-9336, Plaintiff-Appellant,
v.
Donna E. SHALALA, Secretary of Health and Human Services, Defendant-Appellee.
July 29, 1994.
Appeal from the United States District Court for the Southern District of Texas.
Before WISDOM, GARWOOD and EMILIO M. GARZA, Circuit Judges.
WISDOM, Circuit Judge:
The issue presented by this appeal is whether substantial
evidence exists to support the Secretary's decision that the
appellant was not disabled within the meaning of the Social
Security Act and, thus, was not entitled to disability insurance
benefits. We answer in the affirmative and, accordingly, AFFIRM.
I.
The claimant in this case, Pete Falco, applied for
supplementary security benefits on August 23, 1989, pursuant to
Title II of the Social Security Act in compensation for an injury
to his back. His application was denied, both initially and after
reconsideration.
Falco requested and received a hearing before an
administrative law judge ("ALJ") who also determined that Falco was
not disabled within the meaning of the Social Security Act. In
1 particular, the ALJ concluded that, although Falco no longer could
perform his previous job as a repossessor of mobile homes, he had
the residual functional capacity to perform sedentary work. The
Appeals Council denied Falco's request for review.
Falco then sought relief in federal district court. The
magistrate judge to whom the case was assigned recommended
upholding the decision of the agency. The district court adopted
the report and recommendation of the magistrate judge in full,
prompting Falco to take this appeal.
II.
Falco seeks disability benefits for injuries he sustained in
1984 (he was 51 at the time). In January and again in February of
that year, Falco injured his back. In April 1985, he had back
surgery. His condition nonetheless deteriorated. Throughout the
following two years, Falco complained of intense, debilitating pain
in his lower back and left hip. He frequently used
anti-inflammatory medicine and pain killers.
In April 1988, Falco underwent further diagnostic testing.
The tests revealed spinal stenosis and degenerative changes in the
lumbosacral spine. As time progressed, Dr. Glassman, his physician
instructed Falco not to perform any work which required lifting,
prolonged standing or sitting, walking, or driving. By the Spring
of 1989, Falco had become obese and was virtually immobile.
Dr. Cannon, another examining physician, believed that Falco's
condition rendered him "unemployable". Moreover, Cannon was
concerned about Falco's dependence on the medication that he had
2 been taking. Cannon lamented the fact that Falco displayed no
motivation for retraining in an effort to return to gainful
employment.1
Falco moved from his job as a repossessor of mobile homes to
office work. Nonetheless, Falco complained that he was in such
intense pain that it was impossible for him to work even at a desk.
The evidence suggests that, while at home, he routinely watched
television for extended periods and he moved only from his bed to
his couch or to the bathroom. Only occasionally did he leave his
house to dine out with friends.
III.
This Court is but the last stop on Falco's long legal trip
that began with his agency application and hearing process and
ended in federal court. At every stop he has received the same
decision; namely, that his condition did not satisfy the criteria
for disability insurance. We are sympathetic with Falco, but not
to the point of closing our ears to the heavy chorus of voices
rejecting his claims. The decisions of the ALJ, Secretary,
magistrate judge, and district court are sound.
As a starting point, we define our task. We review the
Secretary's decision to deny disability benefits by determining
whether substantial evidence in the record supports the decision
and, further, whether proper legal standards were used in
1 Two consulting physicians concluded that Falco should be limited to lifting 20 pounds at one time and no more than 10 pounds frequently. He could stand for up to six hours, with frequent rest periods (every 15-20 minutes) but was not to be required to stoop and crouch frequently.
3 evaluating the evidence.2 In Richardson v. Perales3, the Supreme
Court explained that substantial evidence is more than a scintilla
and less than a preponderance. It is of such relevance that a
reasonable mind would accept it as adequate to support a
conclusion.4
IV.
In evaluating a disability claim, the Secretary engages in a
sequential series of five inquiries. The claimant must satisfy the
disability criteria at each juncture in order to receive benefits.
In the matter before us, the ALJ terminated his analysis when he
found that Falco did not meet the final criterion (Step V), which
required a finding that "Claimant cannot perform relevant work".5
Falco assigns two errors: First, he takes exception to the ALJ's
Step V finding and, second, he argues that the ALJ erroneously
found that he was not within the Step III disability parameters.
We start with Falco's second contention. The third step
provides:
Claimant's impairment meets or equals an impairment listed in the appendix to the regulations (if so, disability is automatic).6
The relevant appendix, to which the criterion refers, provides that
2 Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir.1990). 3 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971). 4 Villa, 895 F.2d at 1021-22. 5 Crouchet v. Sullivan, 885 F.2d 202, 206 (5th Cir.1989). 6 Id.
4 a finding of certain vertebrogenic disorders will constitute a
disability.7 To meet the Listing 1.05(C), the claimant must
demonstrate the severity of his impairment with evidence of (1)
pain, muscle spasm, and limitation of motion in the spine and (2)
radicular distribution of significant motor loss with muscle
weakness and sensory and reflex loss.
The physicians diagnosed Falco as having spinal stenosis. No
findings existed, however, that Falco suffered any severe
neurological deficiencies.8 The evidence indicated that Falco
maintained good muscle strength and had no sensory deficits. The
criteria in the medical listings are "demanding and stringent," as
the district court aptly noted. Ample evidence supports the ALJ's
conclusion that Falco's condition did not meet them.
Next, we analyze the court's Step V conclusion that Falco
remained capable of performing alternate forms of work. Falco
carried the burden of showing that he was unable to do so.9 The
focus at this stage is properly on Falco's "residual functional
capacity".10
In the case at hand, the ALJ concluded that Falco was capable
of performing sedentary work. Sedentary work is defined as:
lifting no more than 10 pounds at a time and occasionally
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United States Court of Appeals,
Fifth Circuit.
No. 93-7360
Summary Calendar.
Pete FALCO, SSN XXX-XX-9336, Plaintiff-Appellant,
v.
Donna E. SHALALA, Secretary of Health and Human Services, Defendant-Appellee.
July 29, 1994.
Appeal from the United States District Court for the Southern District of Texas.
Before WISDOM, GARWOOD and EMILIO M. GARZA, Circuit Judges.
WISDOM, Circuit Judge:
The issue presented by this appeal is whether substantial
evidence exists to support the Secretary's decision that the
appellant was not disabled within the meaning of the Social
Security Act and, thus, was not entitled to disability insurance
benefits. We answer in the affirmative and, accordingly, AFFIRM.
I.
The claimant in this case, Pete Falco, applied for
supplementary security benefits on August 23, 1989, pursuant to
Title II of the Social Security Act in compensation for an injury
to his back. His application was denied, both initially and after
reconsideration.
Falco requested and received a hearing before an
administrative law judge ("ALJ") who also determined that Falco was
not disabled within the meaning of the Social Security Act. In
1 particular, the ALJ concluded that, although Falco no longer could
perform his previous job as a repossessor of mobile homes, he had
the residual functional capacity to perform sedentary work. The
Appeals Council denied Falco's request for review.
Falco then sought relief in federal district court. The
magistrate judge to whom the case was assigned recommended
upholding the decision of the agency. The district court adopted
the report and recommendation of the magistrate judge in full,
prompting Falco to take this appeal.
II.
Falco seeks disability benefits for injuries he sustained in
1984 (he was 51 at the time). In January and again in February of
that year, Falco injured his back. In April 1985, he had back
surgery. His condition nonetheless deteriorated. Throughout the
following two years, Falco complained of intense, debilitating pain
in his lower back and left hip. He frequently used
anti-inflammatory medicine and pain killers.
In April 1988, Falco underwent further diagnostic testing.
The tests revealed spinal stenosis and degenerative changes in the
lumbosacral spine. As time progressed, Dr. Glassman, his physician
instructed Falco not to perform any work which required lifting,
prolonged standing or sitting, walking, or driving. By the Spring
of 1989, Falco had become obese and was virtually immobile.
Dr. Cannon, another examining physician, believed that Falco's
condition rendered him "unemployable". Moreover, Cannon was
concerned about Falco's dependence on the medication that he had
2 been taking. Cannon lamented the fact that Falco displayed no
motivation for retraining in an effort to return to gainful
employment.1
Falco moved from his job as a repossessor of mobile homes to
office work. Nonetheless, Falco complained that he was in such
intense pain that it was impossible for him to work even at a desk.
The evidence suggests that, while at home, he routinely watched
television for extended periods and he moved only from his bed to
his couch or to the bathroom. Only occasionally did he leave his
house to dine out with friends.
III.
This Court is but the last stop on Falco's long legal trip
that began with his agency application and hearing process and
ended in federal court. At every stop he has received the same
decision; namely, that his condition did not satisfy the criteria
for disability insurance. We are sympathetic with Falco, but not
to the point of closing our ears to the heavy chorus of voices
rejecting his claims. The decisions of the ALJ, Secretary,
magistrate judge, and district court are sound.
As a starting point, we define our task. We review the
Secretary's decision to deny disability benefits by determining
whether substantial evidence in the record supports the decision
and, further, whether proper legal standards were used in
1 Two consulting physicians concluded that Falco should be limited to lifting 20 pounds at one time and no more than 10 pounds frequently. He could stand for up to six hours, with frequent rest periods (every 15-20 minutes) but was not to be required to stoop and crouch frequently.
3 evaluating the evidence.2 In Richardson v. Perales3, the Supreme
Court explained that substantial evidence is more than a scintilla
and less than a preponderance. It is of such relevance that a
reasonable mind would accept it as adequate to support a
conclusion.4
IV.
In evaluating a disability claim, the Secretary engages in a
sequential series of five inquiries. The claimant must satisfy the
disability criteria at each juncture in order to receive benefits.
In the matter before us, the ALJ terminated his analysis when he
found that Falco did not meet the final criterion (Step V), which
required a finding that "Claimant cannot perform relevant work".5
Falco assigns two errors: First, he takes exception to the ALJ's
Step V finding and, second, he argues that the ALJ erroneously
found that he was not within the Step III disability parameters.
We start with Falco's second contention. The third step
provides:
Claimant's impairment meets or equals an impairment listed in the appendix to the regulations (if so, disability is automatic).6
The relevant appendix, to which the criterion refers, provides that
2 Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir.1990). 3 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971). 4 Villa, 895 F.2d at 1021-22. 5 Crouchet v. Sullivan, 885 F.2d 202, 206 (5th Cir.1989). 6 Id.
4 a finding of certain vertebrogenic disorders will constitute a
disability.7 To meet the Listing 1.05(C), the claimant must
demonstrate the severity of his impairment with evidence of (1)
pain, muscle spasm, and limitation of motion in the spine and (2)
radicular distribution of significant motor loss with muscle
weakness and sensory and reflex loss.
The physicians diagnosed Falco as having spinal stenosis. No
findings existed, however, that Falco suffered any severe
neurological deficiencies.8 The evidence indicated that Falco
maintained good muscle strength and had no sensory deficits. The
criteria in the medical listings are "demanding and stringent," as
the district court aptly noted. Ample evidence supports the ALJ's
conclusion that Falco's condition did not meet them.
Next, we analyze the court's Step V conclusion that Falco
remained capable of performing alternate forms of work. Falco
carried the burden of showing that he was unable to do so.9 The
focus at this stage is properly on Falco's "residual functional
capacity".10
In the case at hand, the ALJ concluded that Falco was capable
of performing sedentary work. Sedentary work is defined as:
lifting no more than 10 pounds at a time and occasionally
7 See 20 C.F.R. Part 404, Subpt. P, App. 1, § 1.05(C). 8 Falco apparently concedes as much. See Appellant's Brief at 10. 9 Anderson v. Sullivan, 887 F.2d 630, 632-33 (5th Cir.1989). 10 See Selders v. Sullivan, 914 F.2d 614, 618 (5th Cir.1990).
5 lifting or carrying articles like docket files, ledgers, and small tools. * * * Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.11
The ALJ's conclusion was in accord with that of the two consulting
physicians who stated that Falco was capable of sitting most of the
day and lifting no more than 20 pounds occasionally or 10 pounds
repetitively. In sum, the evidence supports the ALJ's finding that
Falco could perform alternate work.
Falco argues, however, that the ALJ failed to make and
articulate credibility findings concerning Falco's subjective
complaints of pain. It is true that pain can constitute a
disabling impairment.12 Pain constitutes a disabling condition when
it is "constant, unremitting, and wholly unresponsive to
therapeutic treatment".13 Hence, the law requires the ALJ to make
affirmative findings regarding a claimant's subjective complaints.14
The ALJ fulfilled his obligation by expressly rejecting
Falco's contention that his subjective pain was of a disabling
nature. The ALJ stated:
Falco's subjective symptoms, including pain, are of only a mild to moderate degree and tolerable to claimant for the level of work, residual functional capacity and work limitations as found herein; and claimant's subjective complaints are found not to be fully credible but somewhat
11 20 C.F.R. § 404.1567(a). 12 Cook v. Heckler, 750 F.2d 391, 395 (5th Cir.1985). 13 Selders, 887 F.2d at 618-19. 14 Scharlow v. Schweiker, 655 F.2d 645, 648-49 (5th Cir.1981).
6 exaggerated.
The ALJ was well-founded in this conclusion. The evidence
demonstrated that, while Falco undoubtedly experienced some pain,
he was able to spend a great deal of time watching television or
dining with friends; those activities are inconsistent with
Falco's assertion that he could spend no more than 15-20 minutes
sitting at a time. Moreover, Falco exhibited no external
manifestations of debilitating pain such as marked weight loss. We
are not unsympathetic to Falco's legitimate complaints of pain.
Still, the ALJ's determination that Falco's pain was not so intense
and persistent as to be disabling was supported by substantial
evidence.
Falco urges that we adopt the Third Circuit's rule that an
ALJ must articulate specifically the evidence that supported his
decision and discuss the evidence that was rejected.15 Although we
find that this rigid approach is unnecessary, we have nonetheless
set our own strictures that, we feel, effectively reach the same
result.16 In Abshire v. Bowen17, for example, we explained that,
15 See Cotter v. Harris, 642 F.2d 700, 705 (3rd Cir.), reh'g denied, 650 F.2d 481 (1981). 16 Falco states that "Cotter was cited by the fifth circuit with approval in Early v. Heckler, 743 F.2d 1002, 1007 (5th Cir.1984)". Appellant's Brief at 16. This is a direct misrepresentation. First, the Fifth Circuit has never cited Cotter for that or any other proposition and, second, Early is a Third Circuit opinion—the proper cite is Early v. Heckler, 743 F.2d 1002, 1007 (3rd Cir.1984). We caution counsel to avoid these tactics, particularly if this was an intentional attempt to deceive the Court, but even if it was merely a sloppy oversight. 17 848 F.2d 638, 642 (5th Cir.1988).
7 when the evidence clearly favors the claimant, the ALJ must
articulate reasons for rejecting the claimant's subjective
complaints of pain.
Falco acknowledges that the ALJ gave a "pretty exhaustive
list" of his findings. Falco, however, persistently argues that
the ALJ's failure to explain his findings as to five objective
signs of pain—weakness, addiction to narcotics, limping, knee
giveway, and walking limitations—should constitute reversible
error. We do not agree. The ALJ is bound by the rules of this
Court to explain his reasons for rejecting a claimant's complaints
of pain. He did so. That he did not follow formalistic rules in
his articulation compromises no aspect of fairness or accuracy that
this process is designed to ensure.
As to those values, the present matter is a case in point.
The ALJ concluded that several of the symptoms plaguing Falco were
caused not by his injuries, but by his immobility due to his
obesity. The ALJ further indicated that he found the claimant's
subjective complaints exaggerated and not credible. The ALJ found
the medical evidence more persuasive than the claimant's own
testimony. These are precisely the kinds of determinations that
the ALJ is best positioned to make.18
VI.
Last, Falco seeks to have this case remanded for
18 We do not sit in de novo review nor may we re-weigh the evidence. Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir.1988). Moreover, the ALJ enjoys the benefit of perceiving first hand the claimant at the hearing.
8 consideration of additional evidence. We do so only if the
claimant has shown good cause why the evidence in question was not
presented in a prior proceeding.19 If the claimant can show good
cause, he then must show that the evidence is material and that it
is new.
As for good cause, Falco contends that the ALJ falsely
promised that Falco would have an additional opportunity to submit
the evidence but rendered his decision before Falco could present
the evidence. Second, Falco complains that he mailed this new
evidence to the Appeals Council months before it rendered its
decision. The record does not disclose whether the Appeals Council
received the material.
Falco seeks to admit a report by Dr. Unal Gurol restricting
Falco to lifting five pounds, walking and standing only five
minutes at a time, and sitting for only 30 minutes. That report,
however, is dated February 22, 1991—well outside the time frame in
which the claimant applied for or was denied the benefits in
question.
This Court has explicitly rejected this strategy in the past.
We explained that
it is implicit in the materiality requirement that the new evidence relate to the time period for which benefits were denied, and that it not concern evidence of a later-acquired disability or of the subsequent deterioration of the previously non-disabling condition.20
19 42 U.S.C. § 405(g). 20 Haywood v. Sullivan, 888 F.2d 1463, 1471 (5th Cir.1989) (internal quotations omitted) (emphasis added). Nothing in this decision, of course, bars the claimant from using the report to
9 The most that this report reflects is the fact that Falco's
condition has deteriorated. His request for a remand is rejected.
VII.
The judgment of the district court is AFFIRMED.
secure benefits for the time period it does cover.