UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-11061
LATISA SKALIJ,
Plaintiff-Appellant,
VERSUS
SHIRLEY S. CHATER, COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
Appeal from the United States District Court For the Northern District of Texas (4:94-CV-361) December 4, 1996
Before JOLLY, JONES, and PARKER, Circuit Judges.
PER CURIAM:*
Latisa Skalij (“Skalij”) appeals the district court’s order
granting summary judgment in favor of the Commissioner of Social
Security (“Commissioner”), thereby affirming the Commissioner’s
denial of Skalij’s application for supplemental security income
* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. (“SSI”) benefits. For the following reasons, we affirm.
FACTS AND PROCEEDINGS BELOW
Skalij applied for SSI benefits, alleging that a back and neck
injury prevented her from being gainfully employed. Her claim was
denied both initially and on reconsideration. Skalij then
requested a hearing before an administrative law judge (“ALJ”). At
the hearing before the ALJ, Skalij alleged disability due to
depression as well as due to her previously alleged back and neck
injury. The ALJ ordered that Skalij undergo psychiatric evaluation
and psychological testing. After receiving two psychiatric and
psychological diagnoses, the ALJ issued a decision finding that
Skalij was not disabled and denying her claim for SSI benefits.
Skalij requested review by the Appeals Council. The Appeals
Council remanded the case to the ALJ for testimony from a
vocational expert and to make more thorough findings. After a
supplemental hearing, the ALJ again issued a decision finding that
Skalij was not disabled and denying her claim for benefits.
Skalij requested another review by the Appeals Council and she
attached to her request new evidence concerning her psychiatric
condition. The Appeals Council denied her request for review.
Skalij then filed suit in district court, seeking review of the
Commissioner’s decision. She again attached the new evidence
concerning her psychiatric condition. In granting the Commissioner
summary judgment, the district court affirmed the Commissioner’s
2 denial of SSI benefits. Skalij now appeals to this Court.
DISCUSSION
A. The Commissioner’s Decision
At the hearing before the ALJ, Skalij had the burden of
proving a medically determinable physical or mental impairment
lasting at least twelve months which prevents her from engaging in
substantial gainful activity. See 42 U.S.C. § 423(d)(1)(a).
Substantial gainful activity is defined as work activity involving
significant physical or mental abilities for pay or profit. 20
C.F.R. § 404.1572. The claimant must also show that she is no
longer capable of performing her current or past relevant work. 20
C.F.R. § 404.920(e). If the claimant satisfies this burden, then
the Commissioner must show that the claimant is capable of engaging
is some type of substantial activity and that other jobs exist for
the claimant in the national economy. Ferguson v. Schweiker, 641
F.2d 243, 246 (5th Cir. 1981). Once the Commissioner makes such a
showing, the burden of proof shifts back to the claimant to rebut
this finding. Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988).
The ALJ uses a five-step sequential process to make
determinations of disability for SSI benefits. The ALJ determines
(1) if the claimant is not working in a substantial gainful
activity, (2) whether the claimant has a severe impairment, (3) if
the claimant’s impairment meets or equals a listed impairment in
Appendix 1 of the regulations, (4) if the impairment prevents the
3 claimant from doing past relevant work, and (5) whether the
impairment prevents the claimant from doing any other work. See 20
C.F.R. § 416.920.
Our review of a denial of disability benefits is limited to
two inquiries: (1) whether substantial evidence supports the
Commissioner’s decision, and (2) whether the decision of the
Commissioner comports with relevant legal standards. Carrier v.
Sullivan, 944 F.2d 243, 245 (5th Cir. 1991). Substantial evidence
is more than a mere scintilla of evidence, but less than a
preponderance of the evidence. Villa v. Sullivan, 895 F.2d 1019,
1021-22 (5th Cir. 1990). A finding of no substantial evidence is
appropriate only if there are no credible evidentiary choices or
medical findings to support the decision. Johnson v. Bowen, 864
F.2d 340, 343-44 (5th Cir. 1988). We may neither reweigh the
evidence in the record nor substitute our judgment for the
Commissioner’s. Hollis v. Bowen, 837 F.2d 1378, 1383 (5th Cir.
1988).
Skalij contends that the Commissioner’s decision regarding her
mental impairment is not supported by substantial evidence.1 In
support of her contention, she points to her somewhat contradictory
psychological evaluations. Because the claimant has the burden of
establishing the existence of a disability, Skalij has the burden
1 Skalij does not challenge the Commissioner’s finding that her back and neck injury did not render her disabled.
4 of showing that the Commissioner’s decision is not supported by
substantial evidence in the record. Scharlow v. Schweiker, 655
F.2d 645, 648 (5th Cir. 1981).
We find that substantial evidence in the record supports the
ALJ’s finding that Skalij’s impairment did not prevent her being
gainfully employed. Skalij underwent two psychiatric evaluations.
In the first, the physician evaluated Skalij in various categories
relating to work-related functions as good, fair, above average,
and average. Supporting medical records and documentation
accompanied his evaluation.2 In a second assessment, a different
physician ranked Skalij in the same categories as fair and “poor to
no ability” and noted that medical intervention might eliminate
some of her symptoms. The ALJ found that the first evaluation
should be given more weight. Credibility is generally accorded to
the ALJ as the finder of fact, and his credibility evaluation is
entitled to deference. Carrier v. Sullivan, 944 F.2d 243, 247 (5th
Cir. 1991); Wren v. Sullivan, 925 F.2d 123, 128 (5th Cir. 1991).
The Commissioner is entitled to determine the credibility of
medical experts and to weigh their opinions accordingly. Moore v.
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UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-11061
LATISA SKALIJ,
Plaintiff-Appellant,
VERSUS
SHIRLEY S. CHATER, COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
Appeal from the United States District Court For the Northern District of Texas (4:94-CV-361) December 4, 1996
Before JOLLY, JONES, and PARKER, Circuit Judges.
PER CURIAM:*
Latisa Skalij (“Skalij”) appeals the district court’s order
granting summary judgment in favor of the Commissioner of Social
Security (“Commissioner”), thereby affirming the Commissioner’s
denial of Skalij’s application for supplemental security income
* Pursuant to Local Rule 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 Local Rule 47.5.4. (“SSI”) benefits. For the following reasons, we affirm.
FACTS AND PROCEEDINGS BELOW
Skalij applied for SSI benefits, alleging that a back and neck
injury prevented her from being gainfully employed. Her claim was
denied both initially and on reconsideration. Skalij then
requested a hearing before an administrative law judge (“ALJ”). At
the hearing before the ALJ, Skalij alleged disability due to
depression as well as due to her previously alleged back and neck
injury. The ALJ ordered that Skalij undergo psychiatric evaluation
and psychological testing. After receiving two psychiatric and
psychological diagnoses, the ALJ issued a decision finding that
Skalij was not disabled and denying her claim for SSI benefits.
Skalij requested review by the Appeals Council. The Appeals
Council remanded the case to the ALJ for testimony from a
vocational expert and to make more thorough findings. After a
supplemental hearing, the ALJ again issued a decision finding that
Skalij was not disabled and denying her claim for benefits.
Skalij requested another review by the Appeals Council and she
attached to her request new evidence concerning her psychiatric
condition. The Appeals Council denied her request for review.
Skalij then filed suit in district court, seeking review of the
Commissioner’s decision. She again attached the new evidence
concerning her psychiatric condition. In granting the Commissioner
summary judgment, the district court affirmed the Commissioner’s
2 denial of SSI benefits. Skalij now appeals to this Court.
DISCUSSION
A. The Commissioner’s Decision
At the hearing before the ALJ, Skalij had the burden of
proving a medically determinable physical or mental impairment
lasting at least twelve months which prevents her from engaging in
substantial gainful activity. See 42 U.S.C. § 423(d)(1)(a).
Substantial gainful activity is defined as work activity involving
significant physical or mental abilities for pay or profit. 20
C.F.R. § 404.1572. The claimant must also show that she is no
longer capable of performing her current or past relevant work. 20
C.F.R. § 404.920(e). If the claimant satisfies this burden, then
the Commissioner must show that the claimant is capable of engaging
is some type of substantial activity and that other jobs exist for
the claimant in the national economy. Ferguson v. Schweiker, 641
F.2d 243, 246 (5th Cir. 1981). Once the Commissioner makes such a
showing, the burden of proof shifts back to the claimant to rebut
this finding. Mays v. Bowen, 837 F.2d 1362, 1364 (5th Cir. 1988).
The ALJ uses a five-step sequential process to make
determinations of disability for SSI benefits. The ALJ determines
(1) if the claimant is not working in a substantial gainful
activity, (2) whether the claimant has a severe impairment, (3) if
the claimant’s impairment meets or equals a listed impairment in
Appendix 1 of the regulations, (4) if the impairment prevents the
3 claimant from doing past relevant work, and (5) whether the
impairment prevents the claimant from doing any other work. See 20
C.F.R. § 416.920.
Our review of a denial of disability benefits is limited to
two inquiries: (1) whether substantial evidence supports the
Commissioner’s decision, and (2) whether the decision of the
Commissioner comports with relevant legal standards. Carrier v.
Sullivan, 944 F.2d 243, 245 (5th Cir. 1991). Substantial evidence
is more than a mere scintilla of evidence, but less than a
preponderance of the evidence. Villa v. Sullivan, 895 F.2d 1019,
1021-22 (5th Cir. 1990). A finding of no substantial evidence is
appropriate only if there are no credible evidentiary choices or
medical findings to support the decision. Johnson v. Bowen, 864
F.2d 340, 343-44 (5th Cir. 1988). We may neither reweigh the
evidence in the record nor substitute our judgment for the
Commissioner’s. Hollis v. Bowen, 837 F.2d 1378, 1383 (5th Cir.
1988).
Skalij contends that the Commissioner’s decision regarding her
mental impairment is not supported by substantial evidence.1 In
support of her contention, she points to her somewhat contradictory
psychological evaluations. Because the claimant has the burden of
establishing the existence of a disability, Skalij has the burden
1 Skalij does not challenge the Commissioner’s finding that her back and neck injury did not render her disabled.
4 of showing that the Commissioner’s decision is not supported by
substantial evidence in the record. Scharlow v. Schweiker, 655
F.2d 645, 648 (5th Cir. 1981).
We find that substantial evidence in the record supports the
ALJ’s finding that Skalij’s impairment did not prevent her being
gainfully employed. Skalij underwent two psychiatric evaluations.
In the first, the physician evaluated Skalij in various categories
relating to work-related functions as good, fair, above average,
and average. Supporting medical records and documentation
accompanied his evaluation.2 In a second assessment, a different
physician ranked Skalij in the same categories as fair and “poor to
no ability” and noted that medical intervention might eliminate
some of her symptoms. The ALJ found that the first evaluation
should be given more weight. Credibility is generally accorded to
the ALJ as the finder of fact, and his credibility evaluation is
entitled to deference. Carrier v. Sullivan, 944 F.2d 243, 247 (5th
Cir. 1991); Wren v. Sullivan, 925 F.2d 123, 128 (5th Cir. 1991).
The Commissioner is entitled to determine the credibility of
medical experts and to weigh their opinions accordingly. Moore v.
2 After the supplemental hearing, Skalij submitted a second assessment form from this same physician reflecting different conclusions. In this second assessment form, the physician ranked Skalij as having “poor or no ability” in some of the work-related ability categories. However, unlike this physician’s first assessment, this second assessment was not accompanied by any medical findings or documentation, and thus lacked an explanation for the changed assessment. As we have previously held, it is not error for an ALJ to disregard conclusory medical opinions not supported by evidence. Leggett v. Chater, 67 F.3d 558, 566 (5th Cir. 1995).
5 Sullivan, 919 F.2d 901, 905 (5th Cir. 1990). In fact, it is well
established that it is for the Commissioner, and not the courts, to
choose between conflicting medical opinions. Bradley v. Bowen, 809
F.2d 1054, 1057 (5th Cir. 1987); Jones v. Heckler, 702 F.2d 616,
621 (5th Cir. 1983).
At the supplemental hearing held by the ALJ, a vocational
expert testified that a person of Skalij’s age and education, whose
functional capacity required her to sit and stand at will, with no
greater than light exertional demands, and with limited exposure to
the public, could perform simple assembly jobs, of which there were
many available in the local economy. The first psychiatric
examination together with the vocational expert’s testimony provide
substantial evidence to support the decision of the Commissioner.
B. Consideration of New Evidence
Skalij next argues that the district court erred in refusing
to remand Skalij’s claim for consideration in light of her new
evidence. We may remand an SSI claim to the Commissioner for
consideration of evidence presented for the first time during
judicial review only when (1) the evidence is new and material, and
(2) there is good cause for the failure to incorporate the evidence
into the administrative record. 42 U.S.C. § 405(g); Latham v.
Shalala, 36 F.3d 482, 483 (5th Cir. 1994). New evidence is
material only if it relates to the time period for which the
disability benefits were denied, and there is a reasonable
6 probability that such evidence would alter the Commissioner’s
decision. Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995). To
demonstrate “good cause,” the claimant must provide an excusable
explanation for not submitting the records earlier in the
proceeding. Pierre v. Sullivan, 884 F.2d 799, 803 (5th Cir. 1989)
(reviewing good cause).
Skalij presented a significant amount of medical evidence for
the first time to the district court. This evidence included
medical records of testing and treatment by physicians and a diary
kept by Skalij. Even assuming arguendo that this evidence is
material, Skalij has not shown good cause for her failure to submit
the evidence during the course of the administrative proceedings.
A cover letter accompanying the new evidence is dated a date prior
to the Appeals Council’s second review. Skalij offers as
explanation for her failure to incorporate this evidence into the
administrative record only the explanation that the records were
misfiled in her attorney’s office. This explanation is
insufficient. See Id. Accordingly, we hold that the district
court did not err in refusing to remand Skalij’s claim to the
Commissioner for consideration of the new evidence.
CONCLUSION
For the foregoing reasons, we AFFIRM.