UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
_________________
No. 97-20049
(Summary Calendar)
_________________
LESLIE A TAYLOR,
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 Texas
(H-96-CV-1184)
August 29, 1997
Before DAVIS, EMILIO M. GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
Leslie A. Taylor appeals the district court’s grant of summary
judgment in favor of the Commissioner of Social Security, affirming
the denial of her application for disability insurance benefits.
We affirm.
*
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that this opinion should not be published and is not precedent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.
I
Taylor applied for disability insurance benefits on December
1, 1992, alleging that she had become disabled on September 17,
1991, due to fibromyalgia which caused her muscle pain and
headaches. After the Social Security Administration denied her
application for benefits, Taylor requested a hearing before an
administrative law judge (“ALJ”).
Since 1991, Taylor has been treated for pain and other
symptoms allegedly related to her condition by Dr. Anh Cacciatore
at the Kelsey-Seybold Clinic. In addition to the fibromyalgia,
Taylor has been diagnosed with depression. She takes several pain
medications, as well as antidepressant medication.
On August 25, 1992, Taylor complained of a headache that had
lasted for two days, followed by aching and weakness, especially in
her hands. Upon examination, however, she was found to have normal
strength in her hands. On September 29, 1992, Taylor reported
improvement in her headaches with medication, but Dr. Cacciatore
reported spasm of Taylor’s paracervical muscles. On November 23,
1992, Taylor reported to Dr. Cacciatore that she had had to cease
vacuuming due to pain. Dr. Cacciatore treated Taylor with trigger
point injections, completed a functional capacity questionnaire,
and refilled a prescription for Pamelor.
On January 23, 1993, Steven Rubenzer, Ph.D., performed a
psychological evaluation of Taylor. She reported that she was
depressed and anxious due to fibromyalgia and headaches, but that
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she could drive, handle money, and pay her bills. Dr. Rubenzer
reported that when Taylor was not in pain, she was able to care for
herself, socialize, and perform household tasks without assistance.
Dr. Rubenzer diagnosed “major depression, single episode, moderate”
and concluded that “[o]verall [Taylor] appears to possess both the
intellectual and academic abilities to function effectively on a
day to day basis.”
Dr. Cacciatore examined Taylor again on February 12, 1993.
Taylor reported that she could perform light housework and
requested a rheumatology referral. Rheumatologist Martin Fischer,
M.D., examined Taylor on February 19, 1993. From March through
July 1993, Taylor received treatment for epigastric pain.
A neurological examination of Taylor on July 15, 1993 was
normal. However, on July 21, she complained of pain in her right
third finger that caused her to drop things. The finger was normal
upon examination. Taylor reported that, although medication had
improved her mood, she still had pain and headaches. Dr. Fischer
reported that Taylor’s neck x-rays and cervical spine MRI were
normal.
In 1994, Taylor again received treatment for epigastric pain
from March through May. In October 1994, on a referral by Taylor’s
attorney, Houston Work and Fitness conducted a functional capacity
evaluation of Taylor. The physical therapists who examined Taylor
reported that she sat for twenty minutes and stood and walked for
fifteen minutes, complaining of pain. A lifting test was
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discontinued after Taylor complained of pain upon lifting three
pounds. Nonetheless, she had normal or near normal ranges of
motion for all extremities except her shoulders, left hip extension
and abduction, right hip extension, and dorsiflexion of both
ankles. Manual muscle testing for strength revealed normal
strength in Taylor’s neck, fair to normal trunk strength, and good
to normal arm and hand strength (with the exception of fair
strength in her right elbow and poor strength in her right thumb).
Taylor had good to normal leg strength, with the exception of fair
strength in her toes. Her grip strength was initially measured at
69 percent of normal on the left and 54 percent of normal on the
right, but her strength decreased on a subsequent test.
On October 28, 1994, Dr. Cacciatore stated that Taylor could
sit three hours per day, stand one hour per day, walk one hour per
day, and occasionally lift and carry ten pounds. She reported that
Taylor’s only objective sign of pain was muscle spasm, and she
described Taylor’s pain as moderate.
At the hearing before the ALJ on November 2, 1994, Taylor
complained of arthritis in her right thumb and weakness in both
hands. She stated that her activities included getting her sons
ready for school, sitting most of the day and watching television
or reading, a little cooking, and doing arts and crafts when she
felt up to it. She also stated that she had five or six days each
month when she could not get out of bed.
Dr. Craddock Duren, a specialist in internal medicine,
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testified at the hearing as a medical advisor. He stated that
fibromyalgia is treatable and that Taylor was taking the
appropriate medications for her condition (nonsteroid anti-
inflammatory drugs and tricyclic antidepressants). He testified
that based on the objective medical evidence in the record, Taylor
could frequently lift five pounds, occasionally lift and carry up
to ten pounds, and sit for eight hours per day with a sit/stand
option. He suggested that Taylor seek a repetitive, low-stress job
with minimal contact with the public. In response to questioning
by Taylor’s attorney, Dr. Duren stated that he disagreed with the
assessment by Houston Work and Fitness that Taylor could lift only
three pounds because it was inconsistent with the finding that she
had 90 percent or greater of the normal range of motion for her
arms.
Dr. Ronald DeVere, a consulting neurologist, examined Taylor
in December 1994. Dr. DeVere found no neurological deficits, but
concluded that Taylor’s “aches and pains . . . are certainly
compatible with fibromyalgia.” He stated that Taylor’s “difficulty
in functioning is basically based on chronic pain which does not
appear to be based on any primary neurological disorder.” Based on
this examination, Dr. DeVere concluded that Taylor could lift five
to ten pounds, stand and walk for eight hours per day, and sit for
six to eight hours per day.
Dr. Stuart Rosenthal, another consulting physician, examined
Taylor in March 1995. He found that, although she had multiple
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subjective complaints of musculoskeletal pain, she had no objective
abnormalities. He concluded that Taylor could lift between ten and
fifteen pounds and that she had no other significant functional
limitations.
The ALJ concluded that Taylor is not disabled because,
although she cannot perform her former work as a legal secretary,
she can perform other semi-skilled and unskilled sedentary jobs
which exist in significant numbers in the economy. After the
Appeals Council denied Taylor’s request for review, she filed a
complaint in federal district court seeking judicial review of the
ALJ’s decision. The district court found the ALJ’s decision
supported by substantial evidence and consistent with relevant
legal standards and therefore granted summary judgment for the
Commissioner. Taylor appeals.
II
Our 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). 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.
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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 concluded that Taylor
can perform semi-skilled and unskilled sedentary jobs. The ALJ
thus concluded that Taylor is not disabled.
Dr. Cacciatore opined that Taylor could sit only three hours
per day, stand one hour per day, walk one hour per day, and lift
ten pounds. She supported this opinion with objective medical
findings of muscle spasm, symmetrical trigger points, and a
possible herniated disc. In finding that Taylor was not disabled,
the ALJ disregarded Dr. Cacciatore’s opinion because the reports
and testimony of the consulting physicians were all to the
contrary. Taylor challenges the ALJ’s rejection of her treating
physician’s evaluation in favor of the opinions of the consulting
examining specialists.
While the opinion and diagnosis of a treating physician should
be afforded considerable weight in determining disability, the ALJ
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has the sole responsibility for determining a claimant’s disability
status. Martinez v. Chater, 64 F.3d 172, 176 (5th Cir. 1995). The
ALJ is free to reject the opinion of any physician when the
evidence supports a contrary conclusion. Id. In addition, an ALJ
may give less weight, little weight, or even no weight to a
physician’s testimony where her statements are brief and
conclusory, not supported by medically acceptable clinical
laboratory diagnostic techniques, or otherwise unsupported by the
evidence. Greenspan v. Shalala, 38 F.3d 232, 237 (5th Cir. 1994),
cert. denied, __ U.S. __, 115 S. Ct. 1984, 131 L. Ed. 2d 871
(1995).
In this case, the ALJ received extensive evidence from several
consulting physicians regarding Taylor’s condition and limitations.
Dr. Fischer reported that an examination of Taylor’s fingers showed
that they were normal. Dr. DeVere found no neurological deficits
upon examination of Taylor. Dr. DeVere opined that, based on
Taylor’s subjective complaints, she could lift and carry five to
ten pounds and sit six to eight hours per day. He found no
limitation on her ability to stand and walk. Dr. Rosenthal
reported no objective abnormalities and concluded, based on
Taylor’s subjective complaints, that she could lift up to fifteen
pounds and frequently lift and carry ten pounds. Both Dr. DeVere
and Dr. Rosenthal considered Taylor’s subjective complaints in
assessing her residual functional capacity and still determined
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that she could perform sedentary work.
Dr. Duren testified that Taylor was receiving the appropriate
medications for treatment of fibromyalgia. He also stated that,
based on the objective medical evidence in the record, Taylor could
frequently lift five pounds, occasionally lift and carry up to ten
pounds, and sit for eight hours per day with a sit/stand option.
In light of this evidence, the ALJ could properly credit the
reports and testimony of the consulting physicians and discount
those of Taylor’s treating physician.
Taylor argues that the ALJ did not provide sufficient reasons
for finding her subjective complaints of pain lacking in
credibility. To the contrary, the ALJ found Taylor’s complaints of
pain not fully credible because they were not supported by
objective medical findings, because Taylor’s daily activities were
inconsistent with her claims of pain, and because Taylor testified
that medication helped relieve her pain. See Harper v. Sullivan,
887 F.2d 92, 96 (5th Cir. 1989) (“The mere existence of pain does
not automatically create grounds for disability, and subjective
evidence of pain will not take precedence over conflicting medical
evidence.”). The ALJ had no obligation to credit Taylor’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
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need not take precedence over objective evidence.”). We therefore
find no error in the ALJ’s evaluation of Taylor’s testimony.
Taylor next argues that the district court erred in upholding
the ALJ’s decision on a ground not articulated in the ALJ’s
decision. To the contrary, the district court’s decision affirmed
the ALJ’s decision on a ground specifically articulated by the
ALJ))that the limitations described by Taylor’s treating physician
are contradicted by the findings of the consulting physicians.
Taylor also contends that the ALJ purposefully ignored the
evidence and the law to deny Taylor’s application based solely on
the fact that Taylor has been receiving $1,400 per month in
disability insurance from her former employer. The ALJ’s lengthy
and comprehensive decision refutes this frivolous contention.
Taylor maintains that the ALJ failed to develop the record
regarding the “nature and severity of Taylor’s mental disorder.”
Specifically, she contends that the vocational expert who testified
at the hearing was uncertain of the meaning of Taylor’s diagnosis
of “major depression, single episode, moderate.” Taylor does not,
however, explain how she was prejudiced by this alleged
uncertainty. Thus, we will not reverse the ALJ’s decision on this
ground. See Kane v. Heckler, 731 F.2d 1216, 1220 (5th Cir. 1984)
(explaining that, where ALJ fails to develop adequate record,
claimant must show that she was prejudiced as result of scanty
hearing by showing that, had ALJ “done his duty,” she could and
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would have adduced evidence that might have altered result of
proceeding).
Finally, Taylor argues that new, intervening administrative
rulings issued in July 1996 after the administrative denial of
Taylor’s claim, but prior to adjudication by the district court,
require remand to the administrative agency for further evaluation.
Taylor filed her complaint in district court in April 1996, and
moved for summary judgment in August 1996. Thus, Taylor had the
opportunity to raise this issue in district court and failed to do
so; she provides no explanation for this failure. As this case
does not present exceptional circumstances, we will not address
this argument. See, e.g., Rutland v. Moore, 54 F.3d 226, 232 n.12
(5th Cir. 1995) (“As is well established, and with very narrow
exception, we do not consider issues raised for the first time on
appeal . . . .”); Brantley v. Surles, 804 F.2d 321, 324 (5th Cir.
1986) (“We will not consider matters not raised before the district
court unless a miscarriage of justice would result.”).
AFFIRMED.
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