IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 98-50901
Summary Calendar
LOUISE SHELBY,
Plaintiff-Appellant,
versus
KENNETH S. APFEL,
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. A-97-CV-367-JN
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July 16, 1999
Before HIGGINBOTHAM, JONES, and DENNIS, Circuit Judges.
PER CURIAM:*
Louise Shelby appeals the district court’s judgment for the
Commissioner in her action pursuant to 42 U.S.C. § 405(g) for
review of the administrative law judge’s (ALJ) decision denying her
disability and SSI benefits. Shelby argues that the ALJ erred in
mischaracterizing the level of education that she had achieved.
She argues that the mischaracterization of her education has flawed
the entire basis of the ALJ’s presumption that she is capable of
gainful employment. She does not explain how the alleged
mischaracterization of her education has flawed the ALJ’s analysis.
*
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that this opinion should not be published and is not precedent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.
No. 98-50901
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Contrary to Shelby’s assertion, the ALJ considered the evidence of
her mathematical learning disability, found that she had a learning
disorder, and included in the hypothetical to the vocational expert
(VE) that she had math skills in the low average range.
Shelby states that the ALJ found that there were no exertional
limitations, states that this is contrary to all the evidence, but
then she does not state what exertional limitations she contends
exist. She argues that the decision of the Commissioner was not
based on substantial evidence. She further contends that the
proper legal standard was not applied since non-exertional
impairments were not given proper consideration. She does not
state specifically which non-exertional limitations the ALJ did not
consider.
The ALJ presented many non-exertional limitations to the VE,
including vision in one eye; an unspecified personality disorder;
difficulty with long term visual memory function; reduced problem-
solving ability; difficulty with motor strength and speed; impaired
high auto sensory integration; and a very mild attention problem.
The VE stated that such a person could perform the job of an
assembler of small parts. Shelby does not contend what other
impairments should have been included in the hypothetical posed by
the ALJ to the VE. Visual acuity was addressed by the ALJ
informing the VE that she had vision in one eye only. The VE
testified that depth perception would not affect the ability to
perform the job of small parts assembly. Shelby does not point to
any evidence of a lack of visual acuity in her remaining left eye.
The VE acknowledged that a significantly higher than expected error
No. 98-50901
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rate in hand-eye coordination would affect the assembly job.
Shelby does not point to any evidence in the record of
significantly impaired hand-eye coordination. To the contrary,
although Dr. Dailey reported that Shelby showed a pattern of motor
speed lower than expected, and a pattern of motor strength that was
significantly impaired, she performed alternating movements very
well, and her coordination was intact in both her fine and gross
motor skills.
Shelby argues that the ALJ must analyze both the disabling
effect of each of the plaintiff’s ailments and the combined effect
of all these impairment. She states that this was not done. She
contends that the ALJ disregarded the evidence of poor vocational
and social adjustment. She takes issue with the ALJ’s finding that
she had only slight difficulties in maintaining social functioning.
Shelby’s personality-related impairments relate to her ability
to hold down any type of job in general. Dr. Dailey stated that
her tests indicated an absence of acute psychological distress or
discomfort, but did suggest what are likely some long-standing
personality features that include a tendency towards passive-
dependent and passive-aggressive behavior. Dr. Dailey reported
that Shelby had moderate psychosocial stressors and that her
highest level of adaptive functioning was fair. Dr. Carrasco
reported that her personality evaluation was devoid of severe
indicators of emotional disturbance or psychopathology. Beth
Fowler testified that Shelby had a great attitude and that she
never saw her get angry when she made mistakes.
No. 98-50901
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The ALJ found that Shelby’s complaints of an inability to
perform any type of job were not credible. The ALJ stated that she
gave inconsistent statements concerning why she left her last job.
He noted that she reported to Dr. Dailey that she left her most
recent job because it only paid minimum wage. She also told Dr.
Dailey that she was working on a children’s book which she hoped to
publish, that she wanted to return to school and finish her degree
in commercial art, and that she left her job at a telemarketing
company because she was burned out on it. The ALJ’s finding that
Shelby had only slight difficulties in maintaining social
functioning was not without support. Shelby does not challenge the
ALJ’s credibility determination.
Shelby argues that the evidence does not show that she is
capable of performing the physical activities that the job of small
parts assembler requires. She states that the ALJ found that she
could perform this job, although the VE testified that the
inability to sequence “less than three items would eliminate the
job of assembly work.”
Shelby mischaracterizes the VE’s testimony. What he actually
said was that the inability to sequence “more” than two to three
parts would eliminate the job. The VE acknowledged that if the
person could not assemble two or three objects in the right order
consistently, that would eliminate the assembly job. Shelby
points to the testimony of Beth Fowler about Shelby’s difficulties
collating documents for book mockups and mailouts, and she points
to the medical evidence that showed impairment in her psychomotor
speed and attention, but she points to no evidence that she could
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not sequence even two or three items consistently. Fowler’s
testimony discussed collating “multiple shoots that went in
envelopes” and “dummy copies of a book” which would surely be
longer than two or three pages, and “piles of things.”
The ALJ relied on the VE’s testimony that someone with
Shelby’s limitations could perform the job of small parts assembly,
which job existed in significant numbers in the national economy.
This finding is sufficient to meet the ALJ’s burden. See Morris v.
Bowen, 864 F.2d 333, 335-36 (5th Cir. 1988) (Secretary can meet
burden by pointing to testimony that there are a number of jobs
suited to the claimant’s capabilities which were available to him).
The Commissioner’s decision is supported by substantial evidence
and is AFFIRMED.