United States Court of Appeals,
Fifth Circuit.
No. 95-50058
Summary Calendar.
Don E. LEGGETT, Plaintiff-Appellant,
v.
Shirley E. CHATER, Commissioner of the Social Security Administration, Defendant-Appellee.
Oct. 30, 1995.
Appeal from the United States District Court for the Western District of Texas.
Before WISDOM, DAVIS and STEWART, Circuit Judges.
WISDOM, Circuit Judge:
The plaintiff/appellant asks this Court to review the decision
of the Commissioner of Social Security (Commissioner) denying his
application for disability benefits.1 Specifically, the plaintiff
alleges that the Commissioner's decision is erroneous because it is
not supported by substantial evidence and does not properly weigh
the opinion of the plaintiff's treating physicians. Additionally,
he requests that this Court remand his case to the Commissioner to
consider new evidence of his mental disability. We, however, agree
with the findings of the earlier proceedings and, accordingly, we
AFFIRM.
I.
1 Pursuant to the Social Security Independence and Program Improvements Act of 1994, Pub.L. No. 103-296, 108 Stat. 1464 (codified in scattered sections of 42 U.S.C.), the Commissioner of Social Security assumed the role previously held by the Secretary of Health and Human Services in such proceedings.
1 The claimant, Don Leggett, filed an application for Social
Security benefits on August 30, 1991, for alleged disabilities
stemming from a July 2, 1991, heart attack. The Social Security
Administration timely denied Leggett's application both initially
and on reconsideration. Leggett then requested a hearing before an
Administrative Law Judge (ALJ), who also denied his disability
application. The Appeals Council declined Leggett's request for
review, making the ALJ's decision the final decision of the
Commissioner. Leggett next sought review in federal district
court. The federal magistrate, to whom the case was assigned,
denied relief to Leggett, thereby generating one basis for this
appeal.
After the ALJ's decision, Leggett refiled for disability
benefits, this time basing his application on alleged mental
impairments. Unlike his former application, the Commissioner
granted his new application for disability benefits. This event
serves as another basis for Leggett's appeal.
II.
Leggett, born May 31, 1939, has a high school education. He
worked for a chemical company from 1962 to 1985, a restaurant
equipment company from 1986 to 1989, and a food vending machine
company for the last part of 1989. All of these positions required
Leggett regularly to lift items weighing at least 25 pounds. At
the time of Leggett's heart attack, which is described below, he
was working as a cashier in a convenience store. This position
required Leggett to wait on customers, complete a daily report, and
2 stock the shelves. To perform the stocking duties, Leggett carried
containers in excess of ten pounds.
On July 2, 1991, while moving some cartons at the convenience
store, Leggett suffered an acute myocardial infarction (heart
attack). He entered a hospital, which performed a cardiac
catheterization on him. This test revealed an 80 percent stenosis
(narrowing) in one branch of a bifurcated diagonal vessel and a 50
to 60 percent occlusion (blockage) in the right coronary. Chest
X-rays suggested chronic obstructive pulmonary disease (COPD) and
diffuse interstitial fibrosis (hardening of the lung tissues).
After seven days, Leggett was discharged from the hospital, placed
on medication, ordered to stop smoking, and allowed to participate
in non-strenuous physical activities.
Experiencing chest discomfort, Leggett returned to the
hospital on July 19, 1991. Dr. Salmon took X-rays of Leggett,
which revealed a mild cardiomegaly (enlargement of the heart) with
mild to moderate vascular congestive change. An echocardiogram
taken at this time showed that Leggett's heart is normal, except
for posterior and inferior hypokinesis (lack of active muscular
contraction) and mild aortic regurgitation (blood flowing backwards
into the heart). Dr. Salmon adjusted Leggett's medications and
released him.
Leggett took a treadmill stress test on August 21, 1991. The
test revealed areas of reversible ischemia (lack of blood supply)
in the anterior and lateral wall of the left ventricle and Leggett
complained of some pain in his left shoulder. Nevertheless, Dr.
3 Williams found Leggett to have "good exercise tolerance".
Following the test, Dr. Williams again adjusted Leggett's
medications.
In an attempt to alleviate Leggett's persistent shoulder pain,
on September 6, 1991, Dr. Williams performed balloon coronary
angioplasty on Leggett to try to open a vessel that had an 80
percent stenosis. The procedure, however, was not successful in
restoring the blood flow. Dr. Williams then instructed Leggett
that he would have to learn to live with some of the pain and that
he was not to restrict physical activity, even permitting Leggett
to return to work the following day.
During a November 18, 1991, office visit, Dr. Williams noted
that Leggett had several instances of heart racing and that Leggett
was anxious about his condition. Dr. Williams concluded, however,
that Leggett's "symptoms [are] disproportionate to the objective
degree of coronary disease".
Leggett complained to Dr. Williams of headaches, depression,
and anxiety during a March 11, 1992, office visit. Leggett also
said that he was experiencing pain when he walked and some pain in
his left arm. Dr. Williams determined that the arm pain was not
cardiac related. Leggett then complained to Dr. Williams of the
same problems on April 6, 1992. A physical examination revealed
that Leggett's symptoms were normal, but at this point, Dr.
Williams characterized his symptoms as "basically chronic,
refractory, and debilitating".
Dr. Williams examined Leggett again on September 8, 1992, and
4 on March 29, 1993. On both occasions, Leggett repeated his earlier
complaints. Additionally, during the March examination, Leggett
complained that his ankles swell when he walks, but Dr. Williams
found no swelling during the examination.
Finally, a pulmonary function study conducted on June 28,
1993, revealed moderate signs of shortness of breath, the severity
of which was not disabling on its own.
III.
In addition to the above facts, the ALJ also relied on
testimony from a medical expert, a vocational expert, and Leggett
himself. After reviewing Leggett's medical history, the medical
expert concluded that Leggett has coronary artery disease. He
found no evidence, however, to link Leggett's headaches to this
disease. The medical expert further noted that Leggett's alleged
COPD could aggravate the coronary artery disease, but that more
tests were needed. In closing, the medical expert stated that
Leggett is capable of performing sedentary work in an environment
devoid of dust and extreme temperatures and that he should be
capable of ordinary physical activities.
Furthering the testimony of the medical expert, the vocational
expert testified that Leggett is not capable of performing any of
his past jobs as they were actually performed because those
positions required physical exertion in excess of a sedentary
level. The vocational expert added, however, that generally in the
national economy, cashier positions range from medium-level work to
sedentary.
5 With respect to his post-heart attack activities and
condition, Leggett testified that he takes care of his three
daughters, aged 9, 11, and 13. In a typical day, he stated that he
prepares their breakfast, gets them ready for school, and cleans
the house. After these chores, he said that he rests for an hour.
In the afternoon, Leggett again cares for his daughters, but this
time he does not rest. Leggett also stated that he is able to cut
the grass in small increments and to walk six blocks at a time
before having to rest. Finally, Leggett complained of swelling in
his legs, ankles, and hands if he sits or stands too long;
headaches; and difficulty breathing.
IV.
To determine whether a claimant qualifies as "disabled" under
42 U.S.C.A. § 423(d)(1)(A) (West Supp.1995), the Commissioner uses
a sequential five-part inquiry.2 The burden of proof lies with the
claimant to prove disability under the first four parts of the
inquiry.3 This inquiry terminates if the Commissioner finds at any
step that the claimant is or is not disabled.4 The Commissioner's
2 The five-step analysis requires the Commission to consider: 1) whether the claimant is presently engaging in substantial gainful activity, 2) whether the claimant has a severe impairment, 3) whether the impairment is listed, or equivalent to an impairment listed in appendix I of the regulation, 4) whether the impairment prevents the claimant from doing past relevant work, and 5) whether the impairment prevents the claimant from performing any other substantial gainful activity. 20 C.F.R. § 404.1520 (1995); Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 1984, 131 L.Ed.2d 871 (1995). 3 Greenspan, 38 F.3d at 236. 4 Id.
6 decision is granted great deference5 and will not be disturbed
unless the reviewing court cannot find substantial evidence in the
record to support the Commissioner's decision or finds that the
Commissioner made an error of law.6
A review of the record reveals that the Commissioner's
determination that Leggett is not disabled, as rendered by the ALJ,
is supported by substantial evidence. "Substantial evidence is
that which is 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."7 The Court of
Appeals cannot reweigh the evidence, but may only scrutinize the
record to determine whether it contains substantial evidence to
support the Commissioner's decision.8 Here, the Commissioner found
that Leggett was not disabled under Step IV of the test, which
directs a finding that the claimant is not disabled if the
claimant's impairments do not "prevent [the claimant] from doing
past relevant work".9 Contesting this finding, Leggett points to
the testimony of the vocational expert, who stated that none of
Leggett's past jobs fall within the category of sedentary jobs;
5 42 U.S.C.A. § 405(g) (West Supp.1995); see also Paul v. Shalala, 29 F.3d 208, 210 (5th Cir.1994). 6 Fraga v. Bowen, 810 F.2d 1296, 1302 (5th Cir.1987). 7 Anthony v. Sullivan, 954 F.2d 289, 295 (5th Cir.1992); see also Paul, 29 F.3d at 210. 8 Fraga, 810 F.2d at 1302; see also Greenspan, 38 F.3d at 236. 9 20 C.F.R. § 404.1520(e) (1995).
7 thus, Leggett argues that he cannot return to any of his past
relevant work.
The mere inability of a claimant to perform certain
"requirements of his past job does not mean that he is unable to
perform "past relevant work' as that phrase is used in the
regulations";10 rather, the Commissioner may also consider the
description of the claimant's past work as such work is generally
performed in the national economy.11 The record contains sufficient
evidence to support the Commissioner's finding that Leggett is
10 Jones v. Bowen, 829 F.2d 524, 527 n. 2 (5th Cir.1987) (per curiam). 11 Villa v. Sullivan, 895 F.2d 1019, 1022 (5th Cir.1990). Notably, this determination is distinguishable from the inquiry required when the Commissioner rules that the claimant is not disabled under Step V. If the claimant proves his disability under the first four prongs of the test, then the burden switches to the Commissioner, who must establish that the claimant has "residual functional capacity", given the claimant's age, education, and past work experience, to perform other work available in the national economy. 20 C.F.R. § 404.1520(f); see Greenspan, 38 F.3d at 236; Carrier v. Sullivan, 944 F.2d 243, 246 (5th Cir.1991) (per curiam). Step V also requires the Commissioner to use the medical-vocational guidelines in making the disability determination. See 20 C.F.R. pt. 404, subpt. P, app. 2 (1995).
Step V does not apply to Leggett because it is only appropriate in situations when the Commissioner finds that although the claimant is not disabled, the claimant cannot return to any past relevant work. For instance, in Carrier, the Secretary of Health and Human Services denied disability benefits to the claimant, holding that although the claimant's impairments prevented him from returning to his past job as a roofer, a position involving heavy labor, the claimant was still capable of performing other unrelated jobs in the national economy that are classified as "light work'. Carrier, 944 F.2d at 246; see also Moore v. Sullivan, 919 F.2d 901, 904 (5th Cir.1990) (per curiam). In the instant case, however, Leggett is capable of being a cashier, even though he is limited in the type of cashier positions that he can take.
8 capable of performing his past relevant work as a cashier as that
position is generally performed in the national economy.
In support of the ALJ's decision, we look to the combined
testimony of the medical and vocational experts. After reviewing
Leggett's history, the medical expert stated that he did not
believe that Leggett "should be sitting in a chair doing nothing"
and that he "can do normal physical activity," concluding that
Leggett is capable of performing sedentary work. Leggett's medical
history bolsters this conclusion. Leggett's doctors at no time
restricted his physical activity; instead, they encouraged him to
return to work. To a certain extent, Leggett even appears to have
taken his doctors' advice. By his own testimony, Leggett was able
to care for his three daughters, perform household chores, cut the
grass in small increments, and even walk up to six blocks at a
time.12
The vocational expert testified that Leggett could no longer
carry out the specific duties of a convenience store cashier
because that particular type of cashier must lift cartons to
restock the shelves. The vocational expert added, however, that
Leggett can perform the duties of a cashier as generally found in
the national economy because such positions range from medium work
to sedentary. Typical cashier positions, especially in a food
service or restaurant setting, do not place physical demands on the
12 It is appropriate for the Court to consider the claimant's daily activities when deciding the claimant's disability status. Reyes v. Sullivan, 915 F.2d 151, 155 (5th Cir.1990) (per curiam).
9 cashier and are basically sedentary in nature. The vocational
expert's testimony, then, provided the basis upon which the ALJ
could rely to determine that an appropriate cashier position exists
for Leggett.13 A combination of the testimony of both experts and
Leggett's medical records satisfy the substantial evidence
requirement.14
Leggett contends, however, that the ALJ did not consider the
claimant's ability to cope with stress as directed by Social
Security Ruling (SSR) 85-15. The Court must take into
consideration all of the claimant's impairments and consider their
cumulative effect on the claimant's ability to perform a job.15
Leggett's reliance on SSR 85-15 for this issue is misplaced.
First, the application of SSR 85-15 is limited to those cases in
which the Commissioner finds that the claimant is not disabled at
Step V; Leggett was found disabled at Step IV. Second, this
ruling applies only to situations in which the claimant suffers an
13 Leggett also argues that the ALJ's decision is erroneous because the record does not contain evidence of job availability. This analysis, however, is not required when a claimant, like Leggett, is found not to be disabled at Step IV as opposed to Step V. Compare 20 C.F.R. § 404.1560(b) (1995) with 20 C.F.R. § 404.1560(c) (1995). 14 The district court properly modified the specific finding of the ALJ on this point. The district court agreed with the ALJ that Leggett could be a cashier, but that there was only substantial evidence to support a finding that Leggett can be a cashier in a sedentary position, and not in a "light work" position as the ALJ held. 42 U.S.C.A. § 405(g) (West Supp.1995) ("The court shall have the power to enter ... a judgment affirming, modifying, or reversing the decision of the [Commissioner]".). 15 Scott v. Heckler, 770 F.2d 482, 487 (5th Cir.1985).
10 alleged mental impairment that causes a severe adverse reaction to
even the mildest demands of work. The record contains no evidence
that Leggett suffers from such a condition, other than a few
isolated references to his anxiety and depression about his
condition. Attempting to advance his argument, Leggett points to
the vocational expert's statement that a cashier position will not
be totally free of stress and to the medical expert's references to
"stress"; however, when considered in the context in which his
statements were made, it is apparent that the medical expert was
referring to Leggett's physical abilities on the job, and not to
stress in a mental sense. The ALJ, then, properly considered all
of Leggett's impairments that were put forth.
Leggett next challenges the ALJ's interpretation of the
medical evidence, arguing that the ALJ did not give the proper
weight to the opinions of Leggett's treating physicians.
Primarily, Leggett relies on Dr. Williams's April 6, 1992,
conclusion that Leggett's condition was "chronic, refractory, and
debilitating". While the opinions of a claimant's treating
physicians are "entitled to great weight",16 the ALJ can decrease
reliance on treating physician testimony for good cause.17 Good
cause for abandoning the treating physician rule includes
"disregarding statements [by the treating physician] that are brief
and conclusory, not supported by medically acceptable clinical
16 Paul, 29 F.3d at 211. 17 Id.; see also Greenspan, 38 F.3d at 237.
11 laboratory diagnostic techniques, or otherwise unsupported by
evidence".18
The April 6, 1992, statement is the only time that Leggett's
treating physicians characterized Leggett's condition in such a
manner. Until that point, Dr. Williams consistently found that
Leggett's symptoms were more severe than objective medical evidence
warranted. Furthermore, at no time did the treating physicians
order Leggett to restrict his physical activity, nor does the
record explain Dr. Williams's April 6, 1992, finding. When
considered in conjunction with the earlier opinions of the treating
physicians, the objective medical evidence, and Leggett's own
testimony regarding his physical abilities, this Court finds that
the ALJ had good cause to place little emphasis on that isolated,
conclusory statement.
VI.
Leggett also asserts that the ALJ's decision is erroneous
because it fails to consider his alleged mental impairments and
because the ALJ did not order psychological tests. The claimant
has the burden of proving his disability and the ALJ has a duty to
fully develop the facts, or else the decision is not supported by
substantial evidence.19 The ALJ's duty to investigate, though, does
not extend to possible disabilities that are not alleged by the
claimant or to those disabilities that are not clearly indicated on
18 Greenspan, 38 F.3d at 237. 19 Pierre v. Sullivan, 884 F.2d 799, 802 (5th Cir.1989) (per curiam).
12 the record.20 Because Leggett never raised the issue of mental
impairment until this appeal, Leggett cannot say that he put his
mental impairments before the ALJ.
Leggett also cannot rely on the record to prevail on this
issue. The record contains some references to Leggett's anxiety,
stress, and depression, but these comments were isolated and
Leggett was not treated for them.21 Leggett attempts to strengthen
his position by relying on 20 C.F.R. § 404.1529(b) (1995), but this
reliance is misplaced. 20 C.F.R. § 404.1529(b) states that the
ALJ:
will develop evidence regarding the possibility of a medically determinable mental impairment when we have information to suggest that such an impairment exists, and [the claimant] allege[s] ... symptoms but the medical signs and laboratory findings do not substantiate any physical impairment(s) capable of producing the pain or other symptoms.
As explained above and unlike Latham v. Shalala on which Leggett
also relies, the ALJ did not have evidence sufficient to suggest
that a mental impairment exists. In Latham, the claimant was
diagnosed as having mental problems and a somatoform disorder,
which is characterized by physical symptoms that cannot be
explained by objective medical evidence; the ALJ erred by not
considering whether the diagnosed disorders were responsible for
his physical symptoms.22 No comparable evidence exists in Leggett's
20 Id. at 802-03. 21 See Jones, 829 F.2d at 526 (holding that the ALJ did not err by not ordering psychological tests when the claimant was merely "emotionally upset" about his condition). 22 Latham v. Shalala, 36 F.3d 482, 484 (5th Cir.1994).
13 case. Accordingly, the ALJ had no duty to develop the possibility
of Leggett having a mental disability.23
VII.
Finally, Leggett argues that the case should be remanded for
the ALJ to consider new evidence of his mental impairments to
determine whether the onset date of these impairments coincides
with the onset date of the alleged impairments in this suit. The
Commissioner granted Leggett's new application for disability,
which was filed after the commencement of these proceedings, on the
basis of mental disability. To reach this conclusion, the
Commissioner relied on the evaluations of two psychiatrists to whom
the Commissioner sent Leggett in late 1994. Leggett now argues
that this Court should remand his case to the ALJ to reconsider
Leggett's disability status in light of this new evidence.
"[I]n order to justify a remand, the evidence must be (1)
new, (2) material, and (3) good cause must be shown for the failure
to incorporate the evidence into the record in a prior
proceeding."24 In addition, the new evidence must also pertain to
the contested time period and not merely concern a subsequently
acquired disability or the deterioration of a condition that was
not previously disabling.25 It is clear, then, that the recent
origin of these psychiatric exams alone is not sufficient to
23 See Jones, 829 F.2d at 526. 24 Bradley v. Bowen, 809 F.2d 1054, 1058 (5th Cir.1987) (per curiam). 25 Id.
14 warrant a remand.26 Furthermore, the fact that the psychiatric
exams were not administered in the lower proceedings is also
insufficient to create good cause; rather, the absence of such
tests only raises the issue of whether the ALJ initially should
have ordered such an examination.27 As explained above, the ALJ was
not required to investigate Leggett's mental disabilities.
While the evidence of Leggett's mental disability is new and
material to his disability status, Leggett does not provide a
satisfactory explanation for its absence from the initial
proceedings. The evidence consists of a new examination taken far
outside of the period in which Leggett applied for or was denied
benefits.28 Leggett offers no evidence that his current mental
disability did not subsequently develop after his initial
application or that it is not the result of the deterioration of a
condition that was not previously disabling.29 Leggett, then, fails
on his burden of providing good cause for the absence of this
evidence. We reject his request for a remand. The appropriate
action regarding these facts is the option that Leggett has already
chosen: to use this evidence as the basis for a new disability
application.30
26 Pierre, 884 F.2d at 803. 27 Id. 28 Falco v. Shalala, 27 F.3d 160, 164 (5th Cir.1994) (Wisdom, J.). 29 See Bradley, 809 F.2d at 1058. 30 Falco, 27 F.3d at 164 n. 20.
15 VIII.
The judgment of the district court is AFFIRMED.