IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 96-60574
_____________________
ANNIE B. WHITE,
Plaintiff-Appellant,
versus
JOHN J. CALLAHAN, Acting
Commissioner of Social Security,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court for the
Southern District of Mississippi
(3:95-CV 739-WS)
_________________________________________________________________
September 12, 1997
Before JOLLY, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Annie White appeals from the district court’s order adopting
the magistrate judge’s report and recommendation and upholding the
Commissioner’s denial of Social Security disability benefits. We
hold that the record, as a whole, contains substantial evidence
supporting the findings of the administrative law judge (the
*
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this opinion should not be published and is not precedent except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
“ALJ”), and that the ALJ applied the proper legal standards.
Accordingly, we affirm.
2
I
Annie White sought Disability Insurance Benefits and
Supplemental Security Income under the Social Security Act in
November 1991, initially alleging that she had not worked since
1988.1 After conducting an administrative hearing, the ALJ denied
White’s claim on January 27, 1995. The ALJ found that White’s
subjective complaints of pain were not credible and that she could
perform her past relevant work, thus, rendering her outside the
statutory definition of “disabled.” The Appeals Council denied
White’s request for review and she later filed suit in district
court seeking judicial review of the Commissioner’s final decision
pursuant to 42 U.S.C. § 405(g). The magistrate judge, in his
report and recommendation filed June 10, 1996, recommended that the
district court affirm the Commissioner’s decision. The district
court did so on June 28, 1996. This appeal followed.
II
On appeal, White argues that the ALJ erred by finding that she
could perform her past work and by discounting her testimony
concerning her subjective pain. White further maintains that the
ALJ violated this circuit’s case law by basing findings of fact
upon personal observations of White. Finally, White argues that
1
At the administrative hearing, White amended her onset date
to July 1991.
3
the ALJ’s findings are contrary to the vocational expert’s
testimony.
III
Our review of the Commissioner’s decision is limited in scope
to determining whether substantial evidence supports the decision
and whether the correct legal standards were applied. Ripley v.
Chater, 67 F.3d 552, 555 (5th Cir. 1995). “Substantial evidence is
such relevant evidence as a reasonable mind might accept to support
a conclusion. It is more than a mere scintilla and less than a
preponderance.” Id. (citing Greenspan v. Shalala, 38 F.3d 232, 236
(5th Cir. 1994), cert. denied, ___ U.S. ___, 115 S.Ct. 1984, 131
L.Ed.2d 871 (1995); Richardson v. Perales, 402 U.S. 389, 401, 91
S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971)). The Commissioner’s
factual findings which are supported by substantial evidence are
deemed conclusive. 42 U.S.C. § 402(g). This court may not retry
the issue of disability de novo, nor may we reweigh the evidence or
substitute our judgment for that of the Commissioner. Id.; Ripley,
67 F.3d at 555.
The Commissioner engages in a five-step inquiry when
determining questions of disability:
(1) whether the claimant is presently engaging in
substantial gainful activity;
(2) whether the claimant has a severe impairment;
4
(3) whether the impairment is listed, or equivalent to
an impairment listed in appendix 1 of the regulation;
(4) whether the impairment prevents the claimant from
doing past relevant work; and
(5) whether the impairment prevents the claimant from
performing any other substantial gainful activity.
Leggett v. Chater, 67 F.3d 558, 564 n.2 (5th Cir. 1995); 20 C.F.R.
§§ 404.1520, 416.920. White met her burden with respect to the
first enumerated factors, but failed to adequately demonstrate to
the ALJ that she could no longer engage in her past relevant work.
The ALJ partly based his decision in this matter on his finding
that White’s subjective complaints of pain were not credible.
An ALJ may discount subjective complaints of pain only after
weighing “the objective medical evidence and assigning articulated
reasons for discrediting” the complaints. Anderson v. Sullivan,
887 F.2d 630, 633 (5th Cir. 1989). To prove a pain-induced
disability, a claimant must demonstrate a “medically determinable
impairment that is capable of producing disabling pain.” Ripley,
67 F.3d at 556; 20 C.F.R. § 404.1529. Once the claimant
establishes such an impairment, the ALJ must consider the
subjective complaints of pain, along with the medical evidence in
determining the individual’s working ability. Ripley, 67 F.3d at
556; 20 C.F.R. § 404.1529. Standing alone, pain is not considered
a disability unless it is “constant, unremitting, and wholly
unresponsive to therapeutic treatment.” Selders v. Sullivan, 914
F.2d 614, 618-19 (5th Cir. 1990).
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IV
The ALJ articulated in his opinion specific reasons for
refusing to grant credence to White’s subjective complaints of
pain:
Considering the claimant’s residual functional capacity
and reaching a decision herein, the Administrative Law
Judge has evaluated the claimant’s subjective complaints
under Social Security ruling 88-13. While the claimant
alleges shortness of breath and does have a history of
asthma, she is not taking medications for asthma. She
did not allege that dust, fumes, gasses or other
pulmonary irritants make her short of breath. Although
she alleges pain and limited motion, she is not taking
strong pain medications and x-rays do not show evidence
of arthritic limitation. Although she alleges a heart
problem, EKG’s have been interpreted at normal. The
Administrative Law Judge has considered the location,
intensity, duration and frequency of the subjective
complaints, the amount of medication that the claimant
takes, the amount of medical treatment that she has,
treatment other than medication, her daily activities,
and the absence of side effects from medication which the
claimant specifically acknowledged. After a complete and
thorough evaluation, it is found that the claimant’s
subjective complaints are not credible.
ALJ op. at 5; R. at 16. With these specific factual findings,
along with the vocational expert’s testimony that White could
return to her past relevant work, we hold that substantial evidence
supports the Commissioner’s decision to deny White her claim for
benefits.2 Should White develop more serious limitations, she is
2
White also argues that the ALJ erred by basing findings of
fact and credibility determinations upon personal observations of
White--the so-called “sit and squirm” index. The Fifth Circuit has
held, however, that it is not reversible error for an ALJ to
consider demeanor as one of several factors in evaluating a
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not barred by this opinion from filing a successive claim for
disability benefits.
For the foregoing reasons, we AFFIRM the district court’s
decision.
A F F I R M E D.
claimant’s credibility. Villa v. Sullivan, 895 F.2d 1019, 1024
(5th Cir. 1990). Furthermore, there is no evidence before the
court that the ALJ discounted White’s subjective complaints of pain
due to her demeanor before him in the hearing. This argument is
without merit.
7