IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-50703
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JOSEPHINE RODRIGUEZ,
Plaintiff-Appellant,
VERSUS
KENNETH S. APFEL, Commissioner of Social Security,
Defendant-Appellee.
_________________________
Appeal from the United States District Court
for the Western District of Texas
(A-95-CV-19)
_________________________
March 5, 1998
Before POLITZ, Chief Judge, SMITH and DUHÉ, Circuit Judges.
JERRY E. SMITH, Circuit Judge:*
Josephine Rodriguez appeals the district court's order
adopting the magistrate judge's report and recommendation to affirm
the final decision of the Commissioner of Social Security
(“Commissioner”) denying her benefits. Finding no error, 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should not be published and is not precedent except under the limited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.
A.
Rodriguez injured her left wrist at work in 1988. She was
diagnosed with an unstable distal radial ulnar joint and underwent
reconstructive surgery in June 1989. On August 28 of that year,
she injured her wrist again and was diagnosed with partial carpal
tunnel syndrome. She continued to experience pain and underwent
another reconstructive surgery and pin placement on June 22, 1990.
The doctor gave Rodriguez a splint, but she chose not to wear it.
In August 1990, the pin was prematurely removed after it broke when
she fell.
Rodriguez again underwent surgery on her wrist in November
1990. Her health improved during the first few months of 1991, and
on March 8 her treating physician found that her condition had
stabilized. But on April 13, Rodriguez reinjured her wrist when
she fell out of bed. On June 19, Rodriguez was diagnosed with
extensor tenosynovitis. The doctor noted that she still had not
been wearing her splint. On October 11, she underwent surgery yet
again.
In May and June 1991, Rodriguez was treated for depression.
She told the doctor that her daily activities included making her
bed, caring for her dog, and watching television. She was
diagnosed with chronic depression/dysthemia. On February 29, 1992,
Rodriguez underwent a psychiatric evaluation. The doctor diagnosed
moderate depression/dysthemia that affected her memory level and
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concentration, but did not preclude gainful employment.
Rodriguez underwent surgery again in October 1992. In a
follow-up letter, the physician wrote that Rodriguez had chronic
instability in her left wrist and had also developed a fracture.
In July 1993, a psychologist, Dr. George Parker, evaluated
Rodriguez and diagnosed major depression, chronic pain syndrome,
and reflex sympathetic dystrophy. He stated that she was unable,
at that time, to perform gainful work activity.
B.
Rodriguez applied for Social Security disability insurance
benefits in July 1991, alleging that her disability, stemming from
the injury to her left wrist, began April 16, 1990. Her application
was administratively denied on September 16, 1991. She requested,
and was granted, a hearing before an Administrative Law Judge
(“ALJ”), who concluded, in May 1993, that Rodriguez was not
entitled to benefits. The ALJ found that Rodriguez was not
disabled because, although she could not perform a full range of
light work, there were a significant number of jobs in the national
economy that she could perform. Specifically, the ALJ found that
Rodriguez could have obtained gainful employment as, among other
things, a telephone quotation clerk, cashier, or surveillance
systems monitor. Her request for review by the Appeals Council was
denied on December 5, 1994. This denial constituted the
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Commissioner's final decision.
Rodriguez then sought review in the district court. In July
1995, the magistrate judge recommended that the Commissioner's
final decision be affirmed. Rodriguez filed objections to the
magistrate judge's report and recommendations. By order dated
August 24, 1995, the district court adopted the report and
recommendation and affirmed the Commissioner's decision.
Rodriguez appealed to this court, arguing that she was unable
to engage in any substantial activity because of a medically
determinable physical impairment that lasted more than a year. She
contended that between April 1990 and October 1991, she was
undergoing surgery, treatment or therapy, or was recuperating, and
thus would have been unable to hold down employment. We found that
the ALJ had failed to address whether Rodriguez's need for surgery
and other medical treatment precluded her from holding substantial
gainful employment during this time period. Accordingly, we were
unsure whether the issue had been raised belowSSand therefore
whether Rodriguez had exhausted her administrative remedies.2
We remanded to the district court for the limited purpose of
supplementing the record to determine what issues had been raised
2
We have jurisdiction to review only those issues that a claimant has
exhausted through the administrative process. That means the claims must have
been presented to the Appeals Council. Paul v. Shalala, 29 F.3d 208, 210-11 (5th
Cir. 1994).
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before the Appeals Council.3 The magistrate judge's report,
accepted by the district court, found that the report of the
psychologist, Dr. Parker, was the only issue Rodriguez had raised
before the Appeals Council.
II.
On review, we determine whether substantial evidence exists in
the record as a whole to support the ALJ's factual findings, and
whether he applied the proper legal standards. Spellman v.
Shalala, 1 F.3d 357, 360 (5th Cir. 1993). “Substantial evidence is
that which is relevant and sufficient for a reasonable mind to
accept as adequate to support a conclusion.” Id. If the findings
are supported by substantial evidence, they must be affirmed.
A.
The Social Security Act defines “disability” as the “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.”
42 U.S.C. § 423(d)(1)(A).
Claims of disability are reviewed under a five-step analysis
3
This case was actually remanded twice to the district court, after the
first remand failed to elicit precisely which issues Rodriguez raised before the
Appeals Council.
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established by the Social Security Administration. See 20 C.F.R.
§ 404.1520. Our focus here is on the fifth step, which requires
the Commissioner to show that the claimant is capable of performing
work in the national economy. See 20 C.F.R. §§ 404.1520(f),
416.920(f). In short, whether Rodriguez is properly deemed non-
disabled hinges on whether the Commissioner established that, even
if Rodriguez could not have performed her previous job, she still
could have found gainful employment somewhere in the national
economy.
B.
Rodriguez's main argument is that the ALJ overlooked her need
for continuing surgery and treatment from April 1990 through
October 1991SSa need that Rodriguez says precluded her from holding
down a job. She contends that the ALJ wrongly assumed that her
hospital visits and therapy appointments could be scheduled so as
to minimize her time away from work. The Commissioner argues that
the ALJ's reasoning was correct, pointing to the testimony of a
vocational expert, who suggested that many employees are able to
miss an hour or two of work a week for therapy, yet are able to
make up the time.
We need not enter the thicket of trying to determine whether
Rodriguez could have held down a job through creative scheduling,
for, as noted by the district court, this issue was not brought
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before the Appeals Council.4 Accordingly, we lack jurisdiction to
consider this claim, because it has not been exhausted through the
administrative process. Paul v. Shalala, 29 F.3d 208, 210-11 (5th
Cir. 1994).
C.
Rodriguez next contends that the ALJ erred in failing properly
to address her claim that she suffers from chronic pain syndrome.
She says that the ALJ wrongly treated her claim as a credibility
issue, rather than an objective medical diagnosis. The
Commissioner argues that Rodriguez waived this claim by failing to
present it to the district court.
Rodriguez did not raise this argument before the magistrate
judge, although she did raise it in her objections to the
magistrate judge's report and recommendations. The general rule is
that issues raised for the first time in objections to a magistrate
judge's report are deemed not properly before the district court,
and therefore cannot be raised on appeal. Cupit v. Whitley, 28
F.3d 532, 535 n.5 (5th Cir. 1994). Rodriguez argues that Dr.
Parker's report, which mentioned but did not discuss chronic pain
syndrome, was raised before both the Appeals Council and the
magistrate judge. But even if we accept that Dr. Parker's report
sufficed to raise the issue, we cannot say that the ALJ's findings
4
On remand, the district court found that the only issues raised before
the Appeals Council were those presented in Dr. Parker's report.
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were not supported by the evidence.
Dr. Parker's report mentions chronic pain syndrome only in
passing, and several other treating physicians did not make such a
diagnosis. Moreover, Rodriguez's testimony supported a finding
that she maintained a fairly active life. She stated that she
walked her dog twice every day and dug in her garden. She also
shopped and attended church. In sum, there was substantial
evidence in the record supporting the ALJ's findings.
D.
Next, Rodriguez charges that the ALJ erred in failing to
conclude that she was disabled because of depression. She relies
on Dr. Parker's report for this claim, and contends that the ALJ
erred in rejecting it. The ALJ found that Rodriguez's depression
seldom affected her ability to concentrate, persevere, or pace
herself to complete tasks. In reaching his conclusion, the ALJ
relied on the findings of two doctors, as well as the testimony of
Rodriguez herself, who conceded that she was not receiving
treatment for depression, nor was she taking any antidepressant
medication. We cannot say that this conclusion was unsupported by
evidence in the record.
E.
Rodriguez also argues that the ALJ erred in failing to
recognize her non-exertional limitations. A non-exertional
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limitation is a non-strength-related limitation on job performance.
Rodriguez alleges, inter alia, that she was unable to concentrate,
had temper outbursts, felt uneasy around other people, suffered
from poor relationships with her neighbors, and was argumentative,
irritable, stressed, and drowsy. Particularly in light of the
testimony of her treating physicians that these problems did not
preclude her from finding a job, the ALJ's conclusion that
Rodriguez was not disabled is supported by the evidence.
F.
Finally, Rodriguez paints as clear error the ALJ's remark that
lack of education is irrelevant to a determination of disability.
Rodriguez labels this a “finding,” but fails to develop the
argument beyond a three-sentence allegation in her brief. The
Commissioner disputes characterizing this as a finding and argues
that the ALJ merely misstated an argument from the brief. We agree
with the Commissioner that this stray remarkSSparticularly in light
of the vocational expert's testimony, which considered Rodriguez's
educational levelSSdoes not undercut the ALJ's finding that
Rodriguez was not disabled.
AFFIRMED.
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