UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
_________________
No. 96-31308
Summary Calendar
_________________
SHEROLYN NEVERS,
Plaintiff-Appellant,
versus
JOHN J CALLAHAN, Acting
Commissioner of Social Security,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of Louisiana
(95-CV-4092-R)
July 3, 1997
Before DAVIS, EMILIO M. GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
Sherolyn Nevers appeals the district court’s grant of summary
judgment in favor of the Commissioner of Social Security, affirming
the denial of her application for Supplemental Security Income. We
affirm.
I
Nevers applied for Supplemental Security Income (“SSI”) in
January 1993, alleging that she had become disabled in 1989 due 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opinion should not be published and is not precedent except under the limited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.
arthritis, back pain, swelling feet, vocal cord nodules and carpal
tunnel syndrome (“CTS”). After the Social Security Administration
denied her application for benefits, Nevers requested a hearing
before an administrative law judge (“ALJ”).
The ALJ concluded that Nevers is not disabled and therefore
denied her application. The ALJ found that Nevers is obese and has
CTS and vocal cord nodules, but that these impairments do not
satisfy the requirements for disability in the applicable
regulations. See 20 C.F.R. pt. 404, subpt. P, App. 1. In making
this determination, the ALJ found that although Nevers meets the
weight requirement of the obesity listing, her obesity is not of
listing level severity because the evidence does not also
show that she also has either: x-ray evidence of
arthritis in a weight bearing joint or the spine;
hypertension with diastolic blood pressure persistently
in excess of 100 mmHg [sic]; a history of congestive
heart failure; chronic venous insufficiency; or
respiratory disease with a forced vital capacity equal to
or less than 2.0 liters.
With respect to Nevers’s CTS, the ALJ found that although evidence
established that she has a bilateral peripheral neuropathy
involving both hands, the record did not demonstrate that her
condition resulted in “significant and persistent disorganization
of the motor function” in her hands as required by the regulations.
The ALJ found that Nevers’s vocal cord condition is not of listing
level severity because her speech, although hoarse, is nevertheless
understandable.
Because the ALJ found that Nevers’s impairments are not of
-2-
listing level severity, he evaluated her ability to perform her
past relevant work. The ALJ concluded that Nevers is capable of
performing her past work as a telephone solicitor and as a nursing
assistant. Specifically, the ALJ observed that Nevers’s vocal cord
condition responded to treatment and that her ability to speak
quickly returned to within normal limits; that no physician had
reported that Nevers’s neck, back and hand pain and numbness limit
her ability to work; and that the testimony of Nevers and her
mother regarding Nevers’s limitations is insufficient to support
the conclusion that Nevers cannot lift objects weighing up to fifty
pounds or that she has any physical limitations on her ability to
sit, stand and walk. The ALJ found Nevers’s testimony regarding
her pain and other limitations not “credible to the extent
alleged.”
After the Appeals Council denied Nevers’s request for review,
she filed a complaint in federal district court seeking judicial
review of the ALJ’s decision. A magistrate judge found that
substantial evidence supported the ALJ’s decision and recommended
that the district court grant the Commissioner’s motion for summary
judgment. The district court adopted the magistrate judge’s
recommendation and granted summary judgment for the Commissioner.
Nevers appeals.
II
Our review of the Commissioner’s denial of disability benefits
is limited to determining whether the decision is supported by
-3-
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). 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. Id. at 1021-22. In applying this standard, we must
review the entire record to determine if such evidence is present.
Id. at 1022. However, we may neither reweigh the evidence in the
record nor substitute our judgment for that of the Commissioner.
Id.
The Commissioner evaluates disability claims by answering the
following sequential questions:
(1) Is the claimant currently working?
(2) Can the impairment be classified as severe?
(3) Does the impairment meet or equal a listed impairment
in Appendix 1 of the Commissioner’s regulations? (If so,
disability is automatic.)
(4) Can the claimant perform past relevant work?
(5) Can the claimant perform other work?
20 C.F.R. § 416.920. In this case, the ALJ found that Nevers’s
obesity and CTS do not meet or equal a listed impairment in
Appendix 1 of the regulations and that Nevers can perform her past
relevant work. The ALJ thus concluded that Nevers is not disabled.
Nevers first challenges the ALJ’s determination that her
obesity does not meet or equal a listed impairment in Appendix 1 of
the regulations. She also argues without elaboration that the ALJ
erroneously required her “to prove more than the regulation
-4-
requires” for disability as a result of obesity.
To establish obesity as a disability, a claimant must
demonstrate that her weight meets the height-to-weight ratio and
that she has one of several impairments listed in § 9.09 of the
regulations.2 The parties do not dispute that Nevers’s weight
meets the height-to-weight ratio. The ALJ found, however, that
Nevers’s obesity is not of listing level severity because she does
not have one of the additional impairments specified in § 9.09.
Nevers argues that she meets the additional impairment
described in § 9.09A because one of the x-rays of her left knee
showed osteoarthritis. Although a 1992 x-ray of the left knee
revealed evidence of early osteoarthritis, no evidence in the
record shows limitation of motion in the left knee, as required by
§ 9.09A. X-rays of Nevers’s knees taken at Charity Hospital in
1991 revealed no abnormalities and subsequent examination
demonstrated that her knees were stable. In 1992, when x-rays of
2
The listed impairments are:
A. History of pain and limitation of motion in any weight-bearing
joint or the lumbosacral spine (on physical examination) associated
with findings on medically acceptable imaging techniques of
arthritis in the affected joint or lumbosacral spine; or
B. Hypertension with diastolic blood pressure persistently in
excess of 100 mm. Hg measured with appropriate size cuff; or
C. History of congestive heart failure manifested by past
evidence of vascular congestion such as hepatomegaly, peripheral or
pulmonary edema; or
D. Chronic venous insufficiency with superficial varicosities in
a lower extremity with pain on weight bearing and persistent edema;
or
E. Respiratory disease with total forced vital capacity equal to
or less than 2.0 L. or a level of hypoxemia at rest equal to or less
than the values specified in Table III-A or III-B or III-C.
20 C.F.R. pt. 404, subpt. P, App. 1, § 9.09.
-5-
Nevers’s left knee revealed evidence of early osteoarthritis, Dr.
Stewart E. Altman did not find any limitation of motion in Nevers’s
left knee. Furthermore, Nevers did not complain of knee pain to
her physicians during treatment after she applied for SSI in
January 1993. Rather, in 1993 she complained to Dr. V. J. Zeringue
of neck and back pain after an automobile accident. In the same
year, Dr. James T. Williams found no evidence of muscular atrophy,
weakness, or sensory deficiency in either of Nevers’s lower
extremities, and Nevers did not complain of pain or limitation of
motion in her left knee. During treatment at Charity Hospital in
November 1994, Nevers complained of neck, wrist and back pain.
Finally, none of Nevers’s physicians characterized her as disabled
as a result of the alleged impairment of her left knee. See Vaughn
v. Shalala, 58 F.3d 129, 131 (5th Cir. 1995) (explaining that fact
that no physician who examined claimant pronounced her disabled
supported ALJ’s decision that claimant was not disabled).3
Based on the foregoing, we conclude that substantial evidence
supports the ALJ’s determination that Nevers’s obesity does not
satisfy the requirements of § 9.09. Furthermore, we find no
indication that the ALJ applied a higher burden of proof to
3
As noted by the magistrate judge, Dr. Altman’s February 1992
diagnosis of early osteoarthritis contradicts the ALJ’s finding that Nevers did
not present any x-ray evidence of arthritis in a weight-bearing joint or the
spine. The ALJ’s finding, however, does not affect the outcome of the instant
appeal. As discussed above, Nevers does not satisfy § 9.09A’s other requirement
that she have a “history of pain and limitation of motion” in a weight-bearing
joint or the spine.
-6-
Nevers’s claim for benefits related to obesity than § 9.09 of the
regulations requires. To the contrary, the ALJ properly applied
§ 9.09A and found that Nevers’s obesity simply does not satisfy its
requirements.4 Nevers next challenges the ALJ’s determination that
her CTS does not meet or equal a listed impairment in Appendix 1 of
the regulations. She argues that the ALJ erroneously concluded
that the evidence does not demonstrate that her bilateral CTS has
been associated with “disorganization of motor function” of the
hands as required by § 11.04 of the regulations.5 The relevant
portion § 11.04 requires:
Significant and persistent disorganization of motor
function in two extremities resulting in sustained
disturbance of gross and dexterous movements, or gait and
station.
20 C.F.R. pt. 404, subpt. P, App. 1, § 11.04B.
Nevers contends that she presented evidence demonstrating
limitations in the use of her hands. She points to her testimony
4
Nevers also contends that the district court erroneously stated that
the Social Security Act contains a one-year durational requirement for
impairments. This contention lacks merit.
Section 416.920(d) of the regulations states that a claimant will be found
to be disabled if she has an impairment “which meets the duration requirement and
is listed in appendix 1 or is equal to a listed impairment(s) . . . .” 20 C.F.R.
§ 416.920(d) (emphasis added). The durational requirement is found in the Social
Security Act, 42 U.S.C. § 423(d)(1)(A), which defines “disability” as an
inability to engage in any substantial gainful activity by reason of
any medically determinable physical or mental impairment which can be expected
to result in death or which has lasted or can be expected to last for a
continuous period of not less than 12 months . . . .
The district court correctly cited to this section on page four of its order; the
plain language of the section refutes Nevers’s contention of error.
5
Disability due to peripheral neuropathy such as CTS requires a
finding of peripheral neuropathy “with disorganization of motor function as
described in [section] 11.04B, in spite of prescribed treatment.” 20 C.F.R. pt.
404, subpt. P, App. 1, § 11.14. Section 11.04B is set forth above.
-7-
that her hands become numb, that she sometimes drops things, that
she can only write for short time periods, and that she can’t “lift
[her] arms up really high.”
Despite this testimony, substantial evidence in the record
demonstrates that Nevers’s CTS does not satisfy the requirements of
§ 11.04B. In 1988, Dr. John W. Watermeier found decreased grip
strength in Nevers’s right hand, but no evidence of neurological or
sensory deficiency. In 1989, Dr. Claude S. Williams found Nevers’s
grip strength and sensory appreciation “intact.” Dr. Zeringue, who
treated Nevers for neck, back and hand pain and numbness, initially
recommended carpal tunnel release surgery in December 1993, but
later withdrew the recommendation. Dr. James T. Williams, who
examined Nevers in April 1993, found no muscle atrophy in either
hand. In 1994, although Nevers was diagnosed with CTS at Charity
Hospital, physical examination revealed complete range of motion in
both hands with good strength in flexion and extension in both
wrists. None of the examining physicians placed any restrictions
on Nevers’s activities as a result of the CTS, and none reported
any significant and persistent disorganization of motor function,
as required by § 11.04B. This substantial evidence supports the
ALJ’s conclusion that Nevers’s CTS does not satisfy the
requirements of § 11.04B.
Nevers last argues that the ALJ improperly discounted her
testimony regarding pain and limitations. The ALJ’s decision,
however, reveals that he considered Nevers’s testimony and
-8-
contrasted it to the extensive medical evidence in the record. The
ALJ had no obligation to credit Nevers’s testimony over the
objective evidence in the record. See, e.g., Anthony v. Sullivan,
954 F.2d 289, 295 (5th Cir. 1992) (stating that ALJ need not credit
subjective evidence over conflicting medical evidence); Villa, 895
F.2d at 1024 (“Subjective evidence need not take precedence over
objective evidence.”). We therefore find no error in the ALJ’s
evaluation of Nevers’s testimony.
AFFIRMED.
-9-