Nicholson v. Massanari

• Court: Court of Appeals for the Fifth Circuit
• Decided: May 18, 2001
• Docket: 00-31370
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT ____________________

No. 00-31370 Summary Calendar ____________________

PATRICIA A. NICHOLSON,

Plaintiff-Appellant,

versus

LARRY G. MASSANARI, ACTING COMMISSIONER OF SOCIAL SECURITY,

Defendant-Appellee. ____________________________________________________________

Appeal from the United States District Court for the Western District of Louisiana (99-CV-2074) ____________________________________________________________ May 18, 2001

Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.

PER CURIAM:*

Patricia Nicholson appeals the district court’s judgment

affirming the denial of her application for Social Security

disability benefits and supplemental security income. She

contends: (1) the administrative law judge (“ALJ”) committed

reversible error in failing, at step two of the sequential

evaluation process, to consider the severity of her urinary

incontinence and in failing to apply the proper legal standard to

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. the implicit conclusion that her incontinence was not a severe

impairment; (2) the ALJ’s refusal to secure a medical-assessment

form from the consulting orthopedist was reversible error; (3) the

orthopedic consultant’s report does not support the ALJ’s

disability determination; and (4) the ALJ committed reversible

error in refusing to obtain vocational testimony.

Based upon our review of the record, the district court did

not err in concluding there was substantial evidence to support the

Commissioner’s decision that Nicholson’s incontinence did not

significantly limit her performance of past relevant work. Cf.

Crowley v. Apfel, 197 F.3d 194, 198-99 (5th Cir. 1999) (substantial

evidence did not support determination that claimant’s incontinence

did not significantly affect his ability to perform sedentary

work). Moreover, the ALJ did not apply the wrong legal standard,

because the decision to deny Nicholson benefits was not based on a

finding of non-severity. See Jones v. Bowen, 829 F.2d 524, 526 n.1

(5th Cir. 1987); Lopez v. Bowen, 806 F.2d 632, 634 n.1 (5th Cir.

1986); cf. Stone v. Heckler, 752 F.2d 1099, 1100 (5th Cir. 1985)

(disability claim disposition based on non-severity of the

impairment). The district court properly applied the substantial-

evidence standard to affirm the Commissioner’s determination on

this issue.

Nor did the ALJ commit reversible error in determining that

additional medical information from the consulting orthopedist was

2 not necessary. The ALJ had adequate facts before her on which to

make an informed decision about Nicholson’s disability status;

therefore, she did not fail to fully develop the record. See Kane

v. Heckler, 731 F.2d 1216, 1219 (5th Cir. 1984). Furthermore,

Nicholson has not shown that the additional evidence would have

altered the disability determination; therefore, she has not

demonstrated the requisite prejudice. Id. at 1219-20.

Notwithstanding that Nicholson’s work as a fry cook may have

required “constant” bending, she is not precluded from performing

all past relevant work as a cook, which, by her own admission,

required only “occasional” bending. See Jones, 829 F.2d at 527 n.2

(claimant’s previous job as a sitter requiring lifting in excess of

20 pounds did not preclude claimant from other jobs as sitter which

did not impose duties beyond his residual functional capacity).

Finally, Nicholson’s contention that vocational testimony was

required is without merit. When, as here, the Commissioner finds

that a claimant can perform past relevant work, vocational

testimony is not required. Williams v. Califano, 590 F.2d 1332,

1334 (5th Cir. 1979).

AFFIRMED