UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-60278
STEPHEN M. GRAY;
Plaintiff-Appellant,
v.
KENNETH S. APFEL,
COMMISSIONER OF SOCIAL SECURITY;
Defendant-Appellee,
Appeal from the United States District Court
for the Southern District of Mississippi
(1:97-CV-224-GR)
May 6, 1999
Before JONES, DUHÉ, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Throughout his life, Stephen Gray has held several jobs:
carpenter, laborer, stock clerk, gas station attendant, delivery
and maintenance employee, school bus driver, and substitute
teacher. He has a high school education. On February 21, 1991,
while employed as a carpenter for SCI Construction, Gray injured
his back lifting a drain cover. He received sundry treatments for
his ailment, including chiropracty, drug therapy, and surgery.
Most significantly, Gray has endured two surgical fusions of his
spine -- the first in April 1992, the second in July 1993.
*
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opinion should not be published and is not precedent except under the limited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.
On February 24, 1993, Gray applied for disability
insurance benefits and Supplemental Security Income under the
Social Security Act. Before an Administrative Law Judge (“ALJ”),
the parties agreed that Gray was disabled from February 21, 1991 to
April 1, 1994. The ALJ refused to grant benefits beyond April 1,
1994, however -- finding no disabling impairment prevented Gray
from returning to his past work as a gas station attendant. The
district court affirmed the ALJ, and Gray timely appealed. Finding
the ALJ’s decision was supported by substantial evidence,1 we
affirm.
The parties agree that Gray suffered from a disabling
impairment through April 1, 1994. Indeed, Gray’s counsel
characterized the disability as a “closed situation” consistent
with the treating physician’s, Dr. M.F. Longernecker’s,
identification of April 1994 as the date of maximum medical
improvement. Now, Gray asks this court to ignore the statements of
his counsel and treating physician and remand this case to the
Secretary based on the ALJ’s failure to employ the assistance of a
vocational expert when gauging Gray’s residual functional capacity
and the alleged failure to account for Gray’s pain and use of
prescription medication when making the disability determination.
Citing Simpson v. Schweiker, Gray maintains -- vaguely --
that this case should be governed by the standard of review
1
If the ALJ applied the appropriate legal standard and the decision
is supported by substantial record evidence, we must affirm. See Ripley v.
Chater, 67 F.3d 552, 555 (5th Cir. 1995). When conducting our review, we will
neither reweigh the evidence nor substitute our judgment for that of the
Secretary. See id.
2
applicable to benefit termination decisions and the corresponding
presumption of disability. See 691 F.2d 966, 969 (11th Cir.
1992).2 This case does not involve the reexamination of a benefits
decision previously entered; instead, the ALJ’s decision involves
an initial determination of benefit eligibility and the period over
which the claimant was affected by the disability. Accordingly,
the ALJ properly applied the five-step sequential process for
determining Gray’s eligibility for benefits and correctly placed
the burden of proving disability on Gray.
Under the five-step sequential process, an ALJ must
consider several factors to determine a claimant’s eligibility for
benefits. See Bowen v. Yuckert, 482 U.S. 137, 140-42, 107 S. Ct.
2287, 2291 (1987). An unfavorable answer to any one factor results
in a denial of benefits. See id. After considering all of the
evidence, including the report of Dr. Longernecker and other
physicians, the ALJ ruled against Gray on two factors. First, the
ALJ determined that Gray’s disability was not the equivalent of an
impairment presumed sufficient to preclude substantial gainful
activity (step 3). Second, while acknowledging Gray’s complaints
of pain, the ALJ found that Gray’s residual functional capacity
permitted the performance of light work activity, including the
past relevant work of a gas station attendant (step 4).
2
This distinction in the review process is set forth in the Code of
Federal Regulations. Compare 20 C.F.R. § 404.1520(a) (“When you file a claim for
a period of disability . . . , we use the following evaluation process.”
(emphasis added)), with 20 C.F.R. § 404.1594(a) (“[I]f you are entitled to
disability benefits, your continued entitlement . . . must be reviewed
periodically.”).
3
Contrary to Gray’s argument, the ALJ clearly considered
Gray’s subjective complaints of pain when making his disability
determination; however, he only found the complaints credible to
the extent the described pain limited Gray to activities requiring
greater exertion than light work. This finding not only
constitutes a credibility determination this court will not
review,3 but it is also consistent with the law regarding the
debilitating nature of pain. See Wren v. Sullivan, 925 F.2d 123,
128-29 (5th Cir. 1991) (“The ALJ must consider subjective evidence
of pain, but it is within his discretion to determine the pain’s
disabling nature.” (internal citations omitted)). Subjective
complaints of pain will only support a disability finding when the
pain is “constant, unremitting, and wholly unresponsive to
therapeutic treatment.” See id. at 128 (citing Haywood v.
Sullivan, 888 F.2d 1463, 1470 (5th Cir. 1989)). According to the
record reports, Gray’s back condition continued to improve and his
complaints of pain, while real, did not rise to the level of a
disabling impairment. Cf. Falco, 27 F.3d at 163 (upholding ALJ
determination that pain associated with claimant’s back injury was
not disabling).
Gray also challenges the sufficiency of the record
evidence with respect to the finding that he retained a residual
functional capacity to perform light work. In support of his
argument, Gray cites the December 1993 report of Dr. Longernecker
estimating a 30% total body loss and recognizing a potential
3
See Falco v. Shalala, 27 F.3d 160, 164 n.18 (5th Cir. 1994).
4
limitation to sedentary work. While the opinion of the treating
physician is entitled to considerable weight, Dr. Longernecker’s
opinion is not conclusive. See Floyd v. Bowen, 833 F.2d 529, 531
(5th Cir. 1987). The December 1993 report merely speculates
regarding Gray’s residual functional capacity, and both the
December 1993 letter and a January 1994 follow-up letter suggest
that a functional capacity evaluation should be performed once Gray
achieves maximum medical improvement. No such evaluation was
entered in the record.
Left with no evidence regarding Gray’s limitations after
April 1, 1994, Dr. Longernecker’s report that the results of the
fusion were satisfactory, and Gray’s continued improvement since
December 1993, we cannot say that the ALJ’s opinion was not based
on substantial record evidence. The ALJ considered all the medical
reports and the testimony of Gray when setting a residual
functional capacity. Gray, originally characterizing his claim as
a “closed situation” after April 1, 1994, failed to present any
evidence that indicated a limitation to sedentary work only. The
record as whole thus supports the ALJ’s residual functional
capacity finding. Moreover, because the ALJ properly found that
Gray was able to perform his past relevant work -- an element of
Gray’s prima facie disability claim -- no resort to the testimony
of a vocational expert was necessary. See Green v. Schweiker, 694
F.2d 108, 112 (5th Cir. 1982) (ALJ not required to call vocational
expert when claimant fails to support prima facie case of
disability).
5
Gray also contends that his use of prescription drugs,
such as Merpergan Fortis and Valium, limits his ability to return
to work. Essentially, Gray argues that he experiences so much
anxiety as a side effect of the Valium that he would be unable to
perform his past job as a gas station attendant. Not only did Gray
fail to assert and, thus, waived this argument,4 but the ALJ
specifically considered “the type, dosage, effectiveness and side-
effect[s] of any medication to alleviate pain or other symptoms”
when rendering his decision regarding Gray’s residual functional
capacity. As we have previously found, the ALJ’s holding with
respect to Gray’s residual functional capacity was supported by
substantial evidence.
AFFIRMED.
4
See Paul v. Shalala, 29 F.3d 208, 210 (5th Cir. 1994) (appellate
court lacks jurisdiction to consider argument not asserted in administrative
proceedings).
6