IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 00-50806 Summary Calendar
MARGARET STANRIDGE-SALAZAR,
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 Texas USDC No. SA-99-CV-964 -------------------- April 24, 2001
Before HIGGINBOTHAM, DUHÉ, and WIENER, Circuit Judges.
PER CURIAM:1
Margaret Stanridge-Salazar appeals the affirmance of the
Commissioner’s denial of her application for disability insurance
benefits. She argues: 1) that she was deprived of due process by
the administrative law judge’s (“ALJ”) issuance of an amended
decision without a supplemental hearing or opportunity to offer
additional evidence and that the ALJ used the same evidentiary
analysis for both her disability and widow’s benefits claims;
2) that the ALJ used an incorrect standard of proof; 3) that the
ALJ erred in “mechanically applying” guidelines for age and
1 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. misstating her educational background; and 4) that the ALJ made
flawed assessments of residual functional capacity (“RFC”) and
credibility.
“Appellate review of the [Commissioner’s] denial of disability
benefits is limited to determining whether the decision is
supported by substantial evidence in the record and whether the
proper legal standards were used in evaluating the evidence.”
Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990)(citation
omitted); Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995).
“`Substantial evidence is more than a scintilla, less than a
preponderance, and is such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.’” Villa, 895
F.2d at 1021-22 (citation omitted).
An ALJ has broad discretion under the applicable regulations
to revise a decision. See 20 C.F.R. §§ 404.955, 404.987 et seq.
There is no requirement for a supplemental hearing if the revision
is based on evidence already in the record. See 20 C.F.R. §
404.992(d). There is no indication that the ALJ relied on any
evidence outside of the previously submitted record in issuing the
amended decision, therefore a supplemental hearing was not
required. Her argument that the ALJ used the same evidentiary
analysis for both types of claims apparently is based on the
different relevant periods: her condition is relevant only through
December 31, 1994 (the date last insured) for a Title II disability
claim, while her condition through the date of the ALJ’s decision
is relevant to a widow’s benefits claim. The ALJ did consider
2 Stanridge’s medical condition after December 31, 1994; as one
example, the ALJ’s decision cited a diagnosis of leukemia from
September 13, 1996. In addition, the record contains a significant
amount of medical evidence from 1995 and 1996, and the ALJ included
a finding in both decisions that “[t]he claimant has not been under
a disability ... at any time through the date of this decision.”
Stanridge next argues that the ALJ improperly used a
“preponderance of the evidence” standard in evaluating her claim
rather than “substantial evidence.” The “substantial evidence”
standard of review applies to appellate review of the
Commissioner’s determinations. See Villa, 895 F.2d at 1021-22.
This includes any review by the Appeals Council. See 20 C.F.R. §
404.970(a)(3). However, Stanridge has failed to show that the
correct burden of proof at the ALJ level is “substantial evidence,”
and she thus has failed to show error.
Stanridge argues that the ALJ erred by “mechanically applying”
guidelines regarding age and in misstating her education as “high
school equivalent.” Age and education are relevant factors when
evaluating disability under the medical vocational guidelines. See
20 C.F.R. §§ 404.1563, 404.1564; see also, 20 C.F.R., pt. 404,
subpt. P, app. 2, tbls. Stanridge argues she was in a “borderline”
situation and the age categories should not have been applied
mechanically. However, “borderline” is not specifically defined
either by statute or regulation, and this court has concluded that
the absence of a definition indicates the Commissioner has
significant discretion to determine when a situation is borderline.
3 See Harrell v. Bowen, 862 F.2d 471, 479 (5th Cir.1988); see also
Underwood v. Bowen, 828 F.2d 1081, 1082 (5th Cir.1987)
(Commissioner vested with considerable discretion in borderline
situations). Other than the fact that Stanridge was approximately
six months from her 55th birthday when the ALJ’s decisions were
issued (which would change her status from a person “approaching
advance age” to a person of “advanced age”), she presents nothing
to support her argument that the ALJ erred in finding her to be a
person “approaching advanced age.” Stanridge also argues that the
ALJ erred in finding that she has a “high school equivalent”
education level. She does not explain why she believes her
educational level was improperly assessed; Stanridge testified that
she had received a GED from a high school. The ALJ did not rely
solely and “mechanically” on the medical vocational guidelines in
making a disability assessment. Because the ALJ found that
Stanridge had significant additional nonexertional limitations, the
ALJ heard testimony from a vocational expert regarding the
availability of jobs in both the local and national economies
consistent with these limitations.
Stanridge makes various arguments related to the ALJ’s
credibility and RFC determinations. It is within the province of
the ALJ to make credibility determinations concerning testimony at
administrative hearings. See Newton v. Apfel, 209 F.3d 448, 458
(5th Cir. 2000). There also is substantial evidence to support the
ALJ’s credibility determination. The ALJ cited a number of
objective medical tests which demonstrated only mild to moderate
4 changes in her physical condition, and our review of the medical
records indicates that the majority of objective medical tests were
negative or indicated only mild to moderate changes. Although the
ALJ found she suffered from a number of severe medically
determinable impairments, several of the conditions Stanridge
complained of were either healed (ulcers), under control
(diabetes), or not contributing to her symptoms and apparently not
progressing (leukemia).
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IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 00-50806 Summary Calendar
MARGARET STANRIDGE-SALAZAR,
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 Texas USDC No. SA-99-CV-964 -------------------- April 24, 2001
Before HIGGINBOTHAM, DUHÉ, and WIENER, Circuit Judges.
PER CURIAM:1
Margaret Stanridge-Salazar appeals the affirmance of the
Commissioner’s denial of her application for disability insurance
benefits. She argues: 1) that she was deprived of due process by
the administrative law judge’s (“ALJ”) issuance of an amended
decision without a supplemental hearing or opportunity to offer
additional evidence and that the ALJ used the same evidentiary
analysis for both her disability and widow’s benefits claims;
2) that the ALJ used an incorrect standard of proof; 3) that the
ALJ erred in “mechanically applying” guidelines for age and
1 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. misstating her educational background; and 4) that the ALJ made
flawed assessments of residual functional capacity (“RFC”) and
credibility.
“Appellate review of the [Commissioner’s] denial of disability
benefits is limited to determining whether the decision is
supported by substantial evidence in the record and whether the
proper legal standards were used in evaluating the evidence.”
Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir. 1990)(citation
omitted); Ripley v. Chater, 67 F.3d 552, 555 (5th Cir. 1995).
“`Substantial evidence is more than a scintilla, less than a
preponderance, and is such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.’” Villa, 895
F.2d at 1021-22 (citation omitted).
An ALJ has broad discretion under the applicable regulations
to revise a decision. See 20 C.F.R. §§ 404.955, 404.987 et seq.
There is no requirement for a supplemental hearing if the revision
is based on evidence already in the record. See 20 C.F.R. §
404.992(d). There is no indication that the ALJ relied on any
evidence outside of the previously submitted record in issuing the
amended decision, therefore a supplemental hearing was not
required. Her argument that the ALJ used the same evidentiary
analysis for both types of claims apparently is based on the
different relevant periods: her condition is relevant only through
December 31, 1994 (the date last insured) for a Title II disability
claim, while her condition through the date of the ALJ’s decision
is relevant to a widow’s benefits claim. The ALJ did consider
2 Stanridge’s medical condition after December 31, 1994; as one
example, the ALJ’s decision cited a diagnosis of leukemia from
September 13, 1996. In addition, the record contains a significant
amount of medical evidence from 1995 and 1996, and the ALJ included
a finding in both decisions that “[t]he claimant has not been under
a disability ... at any time through the date of this decision.”
Stanridge next argues that the ALJ improperly used a
“preponderance of the evidence” standard in evaluating her claim
rather than “substantial evidence.” The “substantial evidence”
standard of review applies to appellate review of the
Commissioner’s determinations. See Villa, 895 F.2d at 1021-22.
This includes any review by the Appeals Council. See 20 C.F.R. §
404.970(a)(3). However, Stanridge has failed to show that the
correct burden of proof at the ALJ level is “substantial evidence,”
and she thus has failed to show error.
Stanridge argues that the ALJ erred by “mechanically applying”
guidelines regarding age and in misstating her education as “high
school equivalent.” Age and education are relevant factors when
evaluating disability under the medical vocational guidelines. See
20 C.F.R. §§ 404.1563, 404.1564; see also, 20 C.F.R., pt. 404,
subpt. P, app. 2, tbls. Stanridge argues she was in a “borderline”
situation and the age categories should not have been applied
mechanically. However, “borderline” is not specifically defined
either by statute or regulation, and this court has concluded that
the absence of a definition indicates the Commissioner has
significant discretion to determine when a situation is borderline.
3 See Harrell v. Bowen, 862 F.2d 471, 479 (5th Cir.1988); see also
Underwood v. Bowen, 828 F.2d 1081, 1082 (5th Cir.1987)
(Commissioner vested with considerable discretion in borderline
situations). Other than the fact that Stanridge was approximately
six months from her 55th birthday when the ALJ’s decisions were
issued (which would change her status from a person “approaching
advance age” to a person of “advanced age”), she presents nothing
to support her argument that the ALJ erred in finding her to be a
person “approaching advanced age.” Stanridge also argues that the
ALJ erred in finding that she has a “high school equivalent”
education level. She does not explain why she believes her
educational level was improperly assessed; Stanridge testified that
she had received a GED from a high school. The ALJ did not rely
solely and “mechanically” on the medical vocational guidelines in
making a disability assessment. Because the ALJ found that
Stanridge had significant additional nonexertional limitations, the
ALJ heard testimony from a vocational expert regarding the
availability of jobs in both the local and national economies
consistent with these limitations.
Stanridge makes various arguments related to the ALJ’s
credibility and RFC determinations. It is within the province of
the ALJ to make credibility determinations concerning testimony at
administrative hearings. See Newton v. Apfel, 209 F.3d 448, 458
(5th Cir. 2000). There also is substantial evidence to support the
ALJ’s credibility determination. The ALJ cited a number of
objective medical tests which demonstrated only mild to moderate
4 changes in her physical condition, and our review of the medical
records indicates that the majority of objective medical tests were
negative or indicated only mild to moderate changes. Although the
ALJ found she suffered from a number of severe medically
determinable impairments, several of the conditions Stanridge
complained of were either healed (ulcers), under control
(diabetes), or not contributing to her symptoms and apparently not
progressing (leukemia).
Stanridge argues that the ALJ relied in part on her
description of her daily activities to assess her credibility and
RFC. However, the ALJ may consider daily activities when deciding
disability status, although they should not be dispositive. See
Leggett v. Chater, 67 F.3d 558, 565 n.12 (5th Cir. 1995).
Stanridge argues that the ALJ did not properly evaluate her
complaints of pain. A claimant has a duty to establish a
“medically determinable impairment” that is capable of producing
disabling pain. Ripley, 67 F.3d at 556. How much pain is
disabling is a question for the ALJ, because the ALJ has primary
responsibility for resolving conflicts in the evidence. See
Carrier v. Sullivan, 944 F. 2d 243, 247 (5th Cir. 1991); Wren v.
Sullivan, 925 F.2d 123, 128 (5th Cir. 1991). The ALJ made a
specific credibility finding regarding Stanridge’s complaints of
pain, and even found that one of her “severe medically determinable
impairments” was myofascial pain syndrome. However, there is
substantial evidence to support the ALJ’s finding that Stanridge’s
pain was not disabling: most objective medical testing found only
5 mild to moderate degenerative changes, at least one physician
opined that her symptoms were exaggerated, and the medical expert
testified that her pain complaints were “out of proportion to the
physical findings.”
Stanridge also objects to the ALJ’s assessment of her mental
condition. The ALJ undertook a full and proper review under 20
C.F.R. § 404.1520a (evaluation of mental impairments). Although
the ALJ concluded Stanridge had not met the criteria for
presumptive disability based on mental condition, the ALJ gave her
the “benefit of the doubt” and included various non-exertional
limitations in evaluating her RFC.
Stanridge also objects that the ALJ rejected her testimony
regarding medication side effects and her need to lie down during
the day. There is substantial evidence to support the ALJ’s
finding: there are indications in the record that she denied side
effects from her medications, and the ME testified that it was
unlikely that the medications would cause the side effects
described when they were used on chronic basis, as she does.
The ALJ relied on the testimony of both a medical and
vocational expert in finding Stanridge not disabled. The ME
testified that light work was appropriate based on Stanridge’s
medical history, and no physician has ever opined that Stanridge
was disabled, including two who refused to do so even when
requested. A finding of nondisability is supported when no
physician of record has stated that a claimant is disabled. Vaughn
v. Shalala, 58 F.3d 129, 131 (5th Cir. 1995). The ALJ also relied
6 on the VE’s opinion that there were still significant jobs
available even with the restrictions found. Thus, the ALJ’s
conclusion that Stanridge can perform relevant work was supported
by substantial evidence.
Because Stanridge has failed to show that the Commissioner’s
decision was not based on the proper legal standards or that it was
not supported by substantial evidence, the decision of the district
court affirming the Commissioner’s denial of benefits is AFFIRMED.