Vaughan v. Shalala

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 21, 1995
• Docket: 94-50564
• Status: Unpublished

Opinion

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

_______________________

No. 94-50564 Summary Calendar _______________________

FREDA R. VAUGHAN,

Plaintiff-Appellant,

versus

DONNA SHALALA,

Defendant-Appellee.

_________________________________________________________________

Appeal from the United States District Court for the Western District of Texas (A-93-CA-260) _________________________________________________________________

(May 17, 1995)

Before JONES, BARKSDALE and BENAVIDES, Circuit Judges.

PER CURIAM:*

On September 24, 1991, Freda R. Vaughan applied for

disability insurance benefits, alleging disability since December

31, 1986. Her application was denied initially and on

reconsideration. Vaughan then requested and received a hearing

before an Administrative Law Judge (ALJ). The ALJ determined that

Vaughan was unable to perform her past work but had the residual

* Local Rule 47.5 provides: "The publication of opinions that have no precedential value and merely decide particular cases on the basis of well- settled principles of law imposes needless expense on the public and burdens on the legal profession." Pursuant to that Rule, the Court has determined that this opinion should not be published. functional capacity to perform a wide range of sedentary work.

Thus, the ALJ held that Vaughan was not disabled within the meaning

of the Social Security Act at any time through December 31, 1988,

the date she was last insured for disability benefits. The

decision of the ALJ became the final decision of the Secretary when

the Appeals Council denied Vaughan's request for review.

Vaughan filed suit in the district court seeking review

of the Secretary's decision. Both the magistrate judge and

district court authored opinions rejecting appellant's challenges

to the ALJ's decision. On appeal, Sullivan raises many of the same

objections, and we find them no more persuasive than the other

judges did.

BACKGROUND

The following salient facts were presented for the

Secretary's determination. Vaughan, a high school graduate, was

born on June 1, 1937. Her work experience includes co-owning a

liquor store and a furniture store, and working as a supervisor in

the mail rooms of an oil company and a savings and loan. She last

met the earnings requirements for disability benefits on December

31, 1988.

Between 1985 and 1990, Vaughan was treated conservatively

for a variety of ailments by a family practitioner, Dr. Norman

Moore. She saw him for hip, leg, and chest pain in 1986, and for

back pain, dizzy spells, and pain in her right arm in 1988. On May

6, 1988, her blood pressure was measured at 140/80. On April 3,

2 1990, it had risen to 170/90. Dr. Moore's records contain no

specific diagnosis of Vaughan's problems.

In July 1990, after her eligibility expired, Dr. Jorge

Duchicela, also a family practitioner, began treating Vaughan for

headaches and pain in her legs and tailbone, hypertension, and pain

in her back, arms, and legs.

At the July 22, 1992, hearing before the ALJ, Vaughan

testified that she suffered from progressively worsening pain and

"tingling" in her arms and legs, a condition present to some degree

for 20 years. She had recently begun taking "Propox," which

relieved some of the pain. Vaughan also testified that she had

suffered from high blood pressure for 20 to 25 years. Although she

had experienced severe headaches in the past, these were currently

controlled with medication. She also testified that she had

suffered a "mini-stroke" around 1988, resulting in some memory

loss. According to Vaughan, the blood pressure medication that she

had taken that morning caused her to have difficulty thinking. She

also testified that her family performed most of the household

chores.

The vocational expert, Robert Marion, testified that

Vaughan's past relevant work was classified as skilled and that

these skills were transferable to sedentary jobs. Such jobs

included receptionist, interview clerk, and cashier, which existed

in the hundreds of thousands in the national economy. Vaughan's

counsel challenged Marion's figures regarding the number of these

3 jobs that were available in the national economy. Marion responded

that his figures were accurate.

In this case, the ALJ determined that although Mrs.

Vaughan cannot perform her past relevant work, she could perform a

wide range of sedentary work1 from December 31, 1986, the alleged

onset date of disability, through December 31, 1988, the date she

was last insured for benefits. Thus, the ALJ concluded that

Vaughan was not disabled within the meaning of the Social Security.

DISCUSSION

Vaughan first argues that the ALJ's determination that

she was not disabled is not supported by substantial evidence. She

states that the ALJ's finding that she could perform the full range

of sedentary work conflicts with Dr. Duchicela's evaluation of her

exertional abilities, the objective medical evidence of high blood

pressure and cholesterol, and her testimony at the hearing

regarding her limitations.

Contrary to Vaughan's allegation, the ALJ did not find

that Vaughan could perform the full range of sedentary work.

Rather, the ALJ found that Vaughan could perform a wide range of

sedentary work. This conclusion is supported by substantial

evidence. First, the record reflects that Vaughan was able to, and

did, work for several years while suffering from ailments she now

asserts are disabling. see Fraga v. Bowen, 810 F.2d 1296, 1305 &

1 "Sedentary work involves lifting no more than 10 pounds at a time" and also "involves sitting," although "a certain amount of walking and standing is often necessary in carrying out job duties." 20 C.F.R. § 404.1567(a).

4 n.11 (5th Cir. 1987) (ability to work despite pre-existing

condition supports ALJ's finding of not disabled). Second, no

physician who examined Vaughan pronounced her disabled. See Harper

v. Sullivan, 887 F.2d 92, 97 (5th Cir. 1989) (substantial evidence

supported ALJ's finding that claimant's subjective symptomology not

credible when no physician on record stated that claimant was

physically disabled). In her "Disability Report," submitted nearly

three years after the date she last met insured status, Vaughan

acknowledged that no physician had advised her to limit her

activities in any way. Accordingly, Dr. Duchicela's November 1991

assessment that Vaughan could lift only five pounds does not alter

the validity of the ALJ's decision.

Third, although Vaughan alleged a very limited activity

level at the hearing, she stated in the "Disability Report" that

her social contacts and driving were not restricted and that she

could perform household chores like cooking, making the bed, and

washing. The ALJ concluded that several of the symptoms allegedly

plaguing Vaughan were not consistent with the objective medical

evidence. See Anthony v. Sullivan, 954 F.2d 289, 296 (5th Cir.

1992). Thus, the ALJ's finding that Vaughan's complaints were not

debilitating is supported by substantial evidence.

Vaughan next asserts that the ALJ failed to use proper

legal standards in denying benefits. First, she argues that the

ALJ improperly relied on the "grids" contained in Subpart P

Appendix of the Medical-Vocational Guidelines, which presume that

jobs are available in the national economy for claimants meeting

5 certain criteria, to direct a decision of not disabled. See 20

C.F.R. §§ 404.1569 Subpt. P, App. 2. This contention misconstrues

the record. The ALJ found that Vaughan's nonexertional limitations

prevented her from performing the full range of sedentary work

activity, but that she was not disabled within the framework of

Rule 210.07, considered in light of the vocational expert's

identification of jobs available in the national economy that she

could perform.

Vaughan's contention that the ALJ "applied improper legal

standards in failing to make a finding on [her] credibility

regarding statements of disabling pain, dizziness and confusion

prior to December 31, 1988[,]" is also contradicted by the record.

The ALJ made specific credibility determinations regarding

Vaughan's allegations of pain and discomfort.

Vaughan also contends that there was not substantial

evidence that there were jobs available in the national economy

that she was capable of performing. We disagree. A vocational

expert is called to testify because of his familiarity with job

requirements and working conditions. Fields v. Bowen, 805 F.2d

1168, 1170 (5th Cir. 1986). "The value of a vocational expert is

that he is familiar with the specific requirements of a particular

occupation, including working conditions and the attributes and

skills needed." Id. At Vaughan's hearing, the vocational expert

explained that he determined the availability of the receptionist,

interview clerk, and cashier jobs in the national economy by

referring to the Dictionary of Occupational Titles (DOT), in

6 conjunction with additional sources. The expert also found that

Mrs. Vaughan possesses considerable transferable work skills.

Thus, the vocational expert relied on his expertise to arrive at

the conclusions that he gave to the ALJ, and he explained how he

arrived at his conclusions. See Fields, 805 F.2d at 1170. To

insist, as Vaughan now does, that the ALJ must consider not simply

the existence of generic jobs such as cashier but their specific

working conditions is incorrect. The contention comes close to

arguing that the vocational expert must identify specific jobs open

to a particular claimant, an exercise both futile, overwhelming,

and unnecessary.

Vaughan finally contends that she was denied a full and

fair hearing because the ALJ asked leading questions of the

vocational expert, misstated her disabling conditions in a

hypothetical question, refused to let counsel fully cross-examine

the vocational expert, and refused to give counsel access to the

vocational expert's notes. These arguments have been addressed

fully in district court. We add only a few observations. First,

the regulations do not require the use of the formal rules of

evidence at an administrative hearing. See 20 C.F.R. § 404.950(c).

Second, the ALJ's duty is to develop the facts relative to a claim

for benefits fairly and fully, not merely to sit and listen. Kane

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

two cases cited by Vaughan, Lidy v. Sullivan, 911 F.2d 1075 (5th

Cir. 1990), cert. denied, 500 U.S. 959 (1991), and Tanner v.

Secretary, 932 F.2d 1110 (5th Cir. 1991), the ALJ in this case

7 allowed counsel to cross-examine the vocational expert extensively,

including the subject matter of the challenged hypothetical.

Accordingly, no reversible error has been shown.

Finally, Vaughan's reliance on Scott v. Shalala, 30 F.3d

33 (5th Cir. 1994), to show that the ALJ did not properly consider

the vocational expert's testimony is misplaced. Blue brief, 18-19.

In that case, the ALJ made only a "passing reference" to the

vocational expert's testimony in finding that the claimant had the

residual capacity to perform sedentary work. Scott, 30 F.3d at 35.

By contrast, the ALJ in this case found that Vaughan could not

perform the full range of sedentary work activity and expressly

relied upon the vocational expert's identification of jobs as

evidence of Vaughan's ability to perform work in the national

economy, despite her nonexertional limitations.

Since Vaughan offered no evidence that she was incapable

of performing the types of work that the ALJ determined were

available and that she was capable of performing, Vaughan failed to

meet her burden of proof under the disability test. Selders v.

Sullivan, 914 F.2d 614, 618 (5th Cir. 1990).

For these reasons, the judgment of the district court is

AFFIRMED.