Watson v. Barnhart

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 01-30382

DONNELL WATSON,
Plaintiff-Appellant,

v.

JO ANN B. BARNHART, COMMISSIONER OF SOCIAL SECURITY,

Defendant-Appellee.

--------------------

Appeal from the United States District Court
for the Eastern District of Louisiana

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April 8, 2002
Before EMILIO M. GARZA, BENAVIDES and STEWART, Circuit Judges.

BENAVIDES, Circuit Judge:

Donnell Watson appeals the district court’s dismissal of his

42 U.S.C. § 405(g) lawsuit, seeking review of the Administrative

Law Judge’s denial of disability benefits and supplemental

security income.

FACTUAL AND PROCEDURAL BACKGROUND

On April 17, 1997, Donnell Watson filed an application for

Title II disability benefits and Title XVI supplemental security

income, alleging that due to a back injury he was unable to work

after June 5, 1996. A hearing on the application before the

Administrative Law Judge (“ALJ”) resulted in a denial of benefits.
Watson requested an appeal with the Appeals Council, which was

denied, and ultimately filed a complaint seeking judicial review.

At the time of the hearing before the ALJ, Watson was 51 and

had a high school education. Most of his work experience was as a

laborer and highway construction worker. Watson injured his back

in a work-related accident, while carrying some pieces of iron. He

alleged that the accident left him in pain, and unable to return to

his work as a laborer.

The medical evidence regarding Watson’s injuries is somewhat

inconsistent. Early examinations did not find any significant

problems except for some lower back distress that was resolving.

Lumbar x-rays taken in May 1997 showed that he had mild

degenerative disc disease of the lumbar spine and probable early

degenerative changes of the hip joints. An MRI taken in October

1997 showed a broad-based disc protrusion at the L4-5 level, with

bilateral recess compromise and nerve root contact.

One orthopaedist, Dr. Allen Johnston (“Dr. Johnston”),

reviewed the MRI in March 1998 and found that it showed “clinically

significant disc herniation.” Dr. Johnston opined that the disc

herniation would probably cause pain, and that Watson should avoid

repetitive bending or twisting at the waist, should not work at

unprotected heights, should not lift or carry more than 15-20

pounds, and should not stand or sit for greater than 25 to 30

minutes without being allowed to change positions for 5 minutes.

2
 Another orthopaedist, Dr. Lawrence Messina (“Dr. Messina”),

examined Watson in February 1998. Dr. Messina found that Watson

had degenerative disc disease and that he had restrictions in

bending, sitting for long periods of time, and standing still for

long periods of time. However, Dr. Messina sent Watson to physical

therapy, opining that Watson could be appropriately rehabilitated

and returned to gainful employment with minimal restrictions.

During physical therapy, Watson reported alleviation of pain

in his left leg, and only slight residual lower back pain. Watson

was able to increase the resistance in his back extension exercises

from eighty to one hundred and fifty pounds.

Dr. Messina has testified that his examination of Watson did

not reveal any objective abnormalities in his lower back, and that

the majority of Watson’s problems were caused by the degenerative

process in his back. He disagreed with Dr. Johnston’s conclusion

that the MRI showed a significantly herniated disc, but agreed with

Dr. Johnston’s assessment that Watson would have to avoid bending

and standing for long periods of time. He also testified that

Watson’s progression in physical therapy indicated that he could

lift more than fifteen pounds, though he would not recommend

lifting one hundred and fifty pounds.

Watson’s own testimony regarding his injuries indicated at

different points that he could stand for fifteen to twenty minutes

without pain, and that he could stand for a “good while, maybe

hours.” He testified that he could lift thirty to forty pounds

3
continuously and fifty pounds before it started hurting too much,

and that he could lift two or three gallons of milk at a time (the

ALJ noted that a gallon weighed 17 pounds). He also stated that he

suffered from excruciating pain in his lower back and left leg, and

that the pain had gotten worse since his injury, but that he

experienced some improvement with physical therapy. He took

painkillers and medication to help him sleep.

The ALJ concluded that Watson had degenerative disc disease,

an impairment which was severe but did not meet the criteria of any

of the impairments listed in Appendix 1, Subpart P, Regulations No.

4. Finding that Watson had an exertional capacity for medium work,

the ALJ concluded that he was not disabled.

Before the district court, Watson argued that the ALJ erred in

concluding that he could perform medium work, that the ALJ erred in

applying the Medical-Vocational Guidelines without determining the

extent of Watson’s non-exertional impairment for back pain, and

that the ALJ improperly failed to consider whether Watson could

obtain and maintain employment under Singletary v. Bowen, 798 F.2d

818 (5th Cir. 1986). On cross-motions for summary judgment, the

district court denied Watson’s motion and granted summary judgment

in favor of the Commissioner of Social Security.

DISCUSSION

4
 We review a Commissioner's decisions with respect to a denial

of SSI benefits to ascertain (1) whether the final decision is

supported by substantial evidence and (2) whether proper legal

standards were used to evaluate the evidence. Brown v. Apfel, 192

F.3d 492, 496 (5th Cir. 1999). Substantial evidence is more than

a scintilla but less than a preponderance and is such relevant

evidence as a reasonable mind might accept as adequate to support

a conclusion. Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct.

1420, 1427 (1971). “If the Secretary's decision is supported by

substantial evidence, the findings are conclusive and must be

affirmed.” Marcello v. Bowen, 803 F.2d 851, 853 (5th Cir. 1986)

(citing Richardson, 402 U.S. at 390). "Conflicts in the evidence

are for the [Commissioner] and not the courts to resolve." Brown,

192 F.3d at 496 (citing Selders v. Sullivan, 914 F.2d 614, 617 (5th

Cir.1990)).

I. There is substantial evidence to support the ALJ’s finding

that Watson could perform medium work

Watson argues that the ALJ erred in finding that he was

capable of performing medium work. Medium work “involves lifting

no more than 50 pounds at a time with frequent lifting or carrying

of objects weighing up to 25 pounds.” 20 C.F.R. §416.967. While

Dr. Johnston restricted Watson to lifting no more than 15 to 20

pounds, Dr. Messina disagreed with that restriction, indicating

that Watson could lift more weight than that. Watson’s other

5
doctors did not place similar restrictions on lifting. Watson’s

own testimony indicated that he could lift up to 50 pounds, and

that he could carry two to three gallons of milk at a time

(weighing collectively 34 to 51 pounds). Thus, there was

substantial evidence to support the ALJ’s finding that Watson could

perform medium work.

II. The ALJ did not err in using the Medical-Vocational Guidelines

Where a claimant seeks to prove an ‘inability to engage in any

substantial gainful activity by reason of any medically

determinable physical or mental impairment which... can be expected

to last for a continuous period of not less than 12 months’, 42

U.S.C. §§ 423(d)(1)(A), the ALJ is required to follow a five-step

process. Boyd v. Apfel, 239 F.3d 698, 704 (5th Cir. 2001). The

burden of proving the first four factors in the process is on the

claimant. Id.1 In the present case, the ALJ found that Watson had

met his burden on the first four factors, so the burden shifted to

the Commissioner to prove the fifth factor, namely, that Watson

could perform other work.

1
The factors are:
(1) An individual who is working and engaging in substantial gainful activity will not be found disabled regardless
of medical findings.
(2) An individual who does not have a "severe impairment" will not be found to be disabled.
(3) An individual who meets or equals a listed impairment in [20 C.F.R. pt. 404, subpt. P, app. 1] will be
considered disabled without the consideration of vocational factors.
(4) If an individual is capable of performing the work he has done in the past, a finding of "not disabled" will be
made.
(5) If an individual's impairment precludes him from performing his past work, other factors including age,
education, past work experience, and residual functional capacity must be considered to determine if other work
can be performed.
Id.

6
 At the fifth step in the process, to determine whether a

claimant is capable of performing other work or is disabled, the

ALJ may use the Medical-Vocational Guidelines (the “grid rules”).

However, use of the grid rules is only appropriate “when it is

established that a claimant suffers only from exertional

impairments, or that the claimant’s nonexertional impairments do

not significantly affect his residual functional capacity.”

Crowley v. Apfel, 197 F.3d 194, 199 (5th Cir. 1999). In the

present case, the ALJ found that Watson did not have any

significant non-exertional impairments that would affect his medium

residual functional capacity. Consequently, the ALJ applied the

grid rules, determined that there were jobs available for Watson to

perform, and found that Watson was not disabled.

Watson asserts that the ALJ erred in finding that he did not

have significant non-exertional impairments, arguing that his back

pain constitutes such an impairment. The ALJ relied for this

finding on the opinion of a state medical consultant, who concluded

in September 1997 that Watson possessed a medium residual

functional capacity. The opinion of the state medical consultant

regarding Watson’s residual functional capacity is not relevant to

whether Watson’s back pain constitutes a significant non-exertional

impairment. However, the ALJ also relied on Dr. Messina’s

testimony that Watson could return to work with minimal

restrictions, and on the report of the physical therapist that

7
Watson experienced only slight residual pain after the therapy.

The ALJ also found that Watson’s statements about his pain were not

credible, due to inconsistencies in his testimony. The testimony

of Dr. Messina and the physical therapist constitute substantial

evidence to support the ALJ’s finding.

III. The Singletary standard

Watson argues that the ALJ erred in failing to make a

determination that Watson could maintain employment. In Singletary

v. Bowen, 798 F.2d 818 (5th Cir. 1986) this Court held that “[a]

finding that a claimant is able to engage in substantial gainful

activity requires more than a simple determination that the

claimant can find employment and that he can physically perform

certain jobs; it also requires a determination that the claimant

can hold whatever job he finds for a significant period of time.”

Id. at 822. The defendant-appellee argues, and the district court

held, that the Singletary standard applies only to cases of mental

illness or episodic deterioration, not physical disability. The

district court pointed out that Singletary, and a subsequent case

applying the standard, Leatherwood v. Houston Post Co., 59 F.3d 533

(5th Cir. 1995), involved a claimant who suffered from mental

illness. However, while it is true that Singletary and Leatherwood

applied the standard to persons suffering from mental illness, this

does not necessarily imply that the standard cannot be applied to

people who are physically disabled.

8
 Indeed, we have already applied the Singletary standard to a

case involving a woman who suffered from keratosis. See Wingo v.

Bowen, 852 F.2d 827 (5th Cir. 1988). In that decision, this Court

held that a determination that a person is capable of engaging in

substantial gainful activity depends on a finding not only that the

individual has some chance of being hired, but also, that, taking

account of the individual’s exertional and non-exertional

limitations, the individual has a reasonable chance, “once hired,

of keeping the job.” Id. at 831. We noted that “[a] claimant

capable of performing sedentary or light work under the guidelines

must have the ability to perform the required physical acts day in

and day out in the sometimes competitive and stressful conditions

in which all people work in the real world." Id. (citing Allred v.

Heckler, 729 F.2d 529, 533 (8th Cir.1984)). The dissent contends

that this language in Wingo amounts to dicta, arguing that we

decided the case solely on the ground that the Secretary must

consider all of an individual’s limitations when making a

determination of ability to engage in substantial gainful

activities. But to label this language as dicta would render the

decision in Wingo senseless. The Secretary’s error in Wingo was

not simply the failure to consider all of the claimant’s

impairments, but more importantly, the Secretary’s failure to make

a determination that the claimant was capable of maintaining

employment. It was because the Secretary was required to make that

9
determination that it was necessary to consider the claimant’s non-

exertional limitations, in addition to her exertional limitations.

The defendant-appellee seeks to cabin the holding in Wingo,

arguing that Wingo requires a finding of an ability to maintain

employment only where the individual suffers from additional non-

exertional limitations that might limit the individual’s ability to

work.2 This narrow reading of Wingo would create an irrational

distinction, requiring a finding that a person can maintain

employment where the individual suffers from additional non-

exertional limitations, and not requiring such a finding where the

individual suffers solely from exertional limitations. The

individual’s ability to maintain employment should be relevant to

a determination of disability regardless of whether the individual

suffers from non-exertional limitations. In the present case, if

Watson’s degenerative disc disease prevented him from maintaining

employment (e.g., because every number of weeks he lost movement in

his legs) this would be just as relevant to a finding of disability

as if his back pain prevented him from maintaining employment

(e.g., because every number of weeks he was in too much pain to

work). This interpretation is further supported by the fact that

other federal appellate courts have made similar holdings, arguing

that “[a] condition that does not allow a person to work on a

2
While the dissent accuses us of setting up a straw man by
addressing this issue, we consider it appropriate to respond to
the arguments advanced by the parties.

10
regular basis precludes substantial gainful activity.” Dix v.

Sullivan, 900 F.2d 135, 138 (8th Cir. 1990)3; see also Broadbent v.

Harris, 698 F.2d 407, 413 (10th Cir. 1983).

Wingo is properly interpreted as applying the Singletary

standard to determinations of physical disability. Consequently,

we find that the ALJ erred in failing to determine whether Watson

was capable not only of obtaining, but also maintaining employment.

CONCLUSION

There is substantial evidence to support the ALJ’s findings

that Watson is capable of performing medium work and that Watson’s

back pain does not constitute a significant non-exertional

impairment. However, the ALJ erred in failing to determine whether

Watson was capable not only of obtaining employment, but also

maintaining it. Therefore, we VACATE the district court’s judgment

affirming the ALJ’s decision, and REMAND to the district court with

3
The dissent argues that we interpret Dix too broadly, and
that Dix stands only for the proposition that the Singletary
standard applies in cases where a claimant suffers from a
disability that periodically affects his or her ability to work.
But this interpretation of Dix has it exactly backwards: the
purpose of applying the Singletary standard in the context of
physical disabilities is to make the determination whether the
claimant has a disability that periodically affects his or her
ability to work, such that the claimant cannot engage in
substantial gainful activity. It would be pointless to apply the
standard after that determination has been made. Moreover, by
interpreting Dix in this manner, the dissent implicitly accepts
that the regulations do not adequately address all cases of
physical disability. It is precisely for that reason that the
Singletary standard must apply in physical disability cases.

11
instructions to REMAND to the Secretary for further proceedings to

determine whether Watson was capable of maintaining employment.

ENDRECORD

12
EMILIO M. GARZA, Circuit Judge, dissenting:

This case requires us to determine if the appellant, Daniel

Watson, is entitled to disability and supplemental security

benefits under the Social Security Act. 42 U.S.C. § 423(d).

Specifically, we must decide whether the Secretary of Health and

Human Services (the “Secretary”) applied the correct legal standard

in concluding that Watson was capable of performing other work and

therefore was not disabled. The majority, relying on our decision

in Singletary v. Bowen, holds that the Secretary erred by not

making a specific finding that Watson could maintain employment.

798 F.2d 818 (5th Cir. 1986). In contrast to the majority, I

believe that the Secretary was not required to make such a specific

finding when evaluating Watson’s claim. Rather, in cases such as

Watson’s, in which the applicant alleges only a physical

disability, the usual five-step sequential inquiry set forth in the

federal regulations is the appropriate method to determine whether

an applicant is capable of engaging in substantial gainful

activity. See 20 C.F.R. § 404.1520(b)-(f).

As the majority points out, the Secretary ordinarily evaluates

disability claims under the five-step sequential process set forth

in 20 C.F.R. § 404.1520.4 At issue here is the Secretary’s

4
The five steps are: (1) whether the claimant is not presently working, (2) whether the
claimant has a severe impairment, (3) whether the impairment is not listed in, or equivalent to, an

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application of the fifth step in that inquiry, which asks whether

the impairment prevents the applicant from performing any

substantial gainful activity other than his or her original

employment. In determining whether the claimant can do any other

work under the regulations, the Secretary considers the claimant’s

residual functional capacity, together with his age, education, and

work experience, according to the Medical-Vocational Guidelines.

See 20 C.F.R. § 404.1561. Using these criteria, the Secretary

found that Watson possessed the requisite residual functional

capacity to perform jobs that required a medium level of work.5

The regulations define medium work as work that “involves lifting

of no more than 50 pounds at a time with frequent lifting or

carrying of objects weighing up to 25 pounds.” 20 C.F.R. §

416.967(c) (emphasis added). Thus, the Secretary specifically

found that Watson could frequently lift up to 25 pounds and, on

occasion, lift as much as 50 pounds. Based in part on this

determination, the Secretary concluded that Watson was physically

capable of performing other types of substantial gainful activity

that required medium or less strenuous work levels.

impairment listed in Appendix 1 of the regulations, (4) whether the impairment prevents the
claimant from doing past relevant work, and (5) whether the impairment prevents the claimant
from doing any other substantial gainful activity. Hampton v. Bowen, 785 F.2d 1308, 1311 (5th
Cir. 1986).
5
The majority concedes in their opinion that the Secretary’s determination that Watson
was capable of performing jobs that required medium work was supported by substantial
evidence.

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 The majority reasons that the Secretary should have then

determined, in addition to the findings required under the

regulations, that Watson could maintain an employment position

requiring a medium level of physical exertion. In support of their

argument, they rely on our decision in Singletary. Singletary

involved a disability applicant who was suffering from a variety of

serious mental illnesses, including schizophrenia, delusions, and

an anti-social personality disorder. The Secretary applied the

five-step process under the regulations and found that Singletary

was not disabled. Singletary, 798 F.2d at 820. We reversed the

Secretary’s determination, holding that he must consider whether an

applicant with a serious mental illness is capable of engaging in

substantial gainful activity when, although physically capable of

working, he or she cannot maintain regular employment. Id. at 823.

The majority’s application of Singletary in the context of a

physical disability case is misplaced. The applicant in

Singletary suffered from mental illnesses. Thus, even though he

possessed the residual functional capacity to perform certain types

of work, his mental disability precluded him from working for any

extended period of time. We concluded that usual five-step inquiry

under the regulations, which focuses primarily on physical

disabilities, did not adequately address a mental disability.

Thus, we held that an additional determination that the applicant

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could maintain employment was necessary. In doing so, we

acknowledged the limitations in the regulations in evaluating

mental disability claims:

Determining whether a claimant is disabled because of a
mental condition under the above sequential process can
be a difficult task. In some cases, the mental
impairment may be so severe that the claimant is presumed
to be incapable of working. . . . Quite often, however,
the claimant is capable of finding a job and working for
short periods of time. The nature of the mental
impairment is such, however, that the claimant is unable
to remain employed for any significant period of time.

Singletary, 798 F.2d at 820-821 (internal citation omitted).

Singletary’s requirement that the Secretary must make a specific

additional finding that a disability applicant with a mental

illness is able to maintain employment in order to be capable of

engaging in substantial gainful activity was intended to address

the difficulties arising when applying the regulations to a

mentally disabled applicant. Because the residual function inquiry

focuses on an applicant’s physical capabilities and not on any

mental disabilities, we concluded that an additional inquiry was

necessary to address such cases.

Here, however, Watson only asserts a physical disability. The

residual function determination made by the Secretary adequately

deals with such claims. The Secretary found, based on substantial

evidence, that Watson retained the residual functional capacity, in

spite of his disability, to lift 50 pounds at any one time and to

lift frequently up to 25 pounds. The Secretary’s physical

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disability determination, therefore, includes a determination that

Watson was both physically capable of performing medium work and of

maintaining a job requiring a medium level of physical exertion

over an extended period of time. Thus, it would be redundant to

require the Secretary to make an additional finding that Watson was

physically capable of maintaining employment beyond the

determination that he was physically capable of frequently lifting

up to 25 pounds.

This distinction between mental and physical disabilities is

not a distinction without a difference as the majority contends.

An applicant with a mental illness may be physically capable of

performing certain jobs, but yet ultimately unable to engage in

substantial gainful activity. Here, however, the Secretary’s

determination that Watson retained the residual functional capacity

to frequently lift 25 pounds means that he is physically capable of

engaging in that type of substantial gainful activity. No

additional determination is necessary. The concerns that motivated

our decision in Singletary are not present in the context of a

physical disability claim.

The majority also relies on our decision in Wingo v. Bowen for

the proposition that the Secretary was required to make an

additional finding that Watson could maintain employment. 852 F.2d

827 (1988). In Wingo, the Secretary determined that the disability

applicant was qualified to perform sedentary work. We concluded

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that the Secretary had failed to consider the applicant’s other,

non-exertional limitations in reaching his conclusion that the

applicant was not disabled. We stated: “When making his

determination that Wingo could perform gainful employment, the

Secretary failed to consider this combination of impairments, and

we cannot say therefore that this decision was supported by

substantial evidence.” Thus, Wingo stands solely for the

proposition that the Secretary must consider all of a disability

applicant’s physical and mental limitations when determining

whether he or she can engage in substantial gainful activities.

The majority focuses on dicta in Wingo, arguing that it

applies Singletary’s requirement that the Secretary make a specific

finding that a disability applicant can maintain employment when

evaluating a physical disability claim. In Wingo, the Secretary

determined that the applicant could sit for as many as six hours.

Based on this evidence, the Secretary concluded that the applicant

could perform sedentary work. We stated that “[t]his particular

capability would qualify Wingo to perform sedentary work only in a

theoretical sense, however. To be capable of performing sedentary

work under the guidelines, an individual must have some reasonable

chance in the real world of being hired and, once hired, of keeping

the job.” Wingo, 852 F.2d at 831. The regulations define

sedentary work as work which “involves lifting no more than 10

pounds at a time and occasionally lifting or carrying articles like

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docket files, ledgers and small tools. Although sedentary work is

defined as work which involves siting, a certain amount of walking

and standing is often necessary in carrying out job duties.” 20

C.F.R. § 416.967(a). We concluded in Wingo that a finding that an

applicant can sit for up to six hours does not satisfy the

definition of sedentary work in the regulations. Rather, the

definition of sedentary work includes a finding that the applicant

can sit, carry small objects, stand, and walk on a daily basis. We

did not fault the Secretary for failing to make an additional

finding that the applicant could not maintain employment. Instead,

we noted that the Secretary had failed to apply the regulations

properly in reaching his or her conclusion. Thus, “the Secretary’s

determination that [the applicant] can perform these [sedentary]

jobs [was] mere speculation.”6 Id. (citing Fields v. Bowen, 805

F.2d 1168, 1171 (5th Cir. 1986)).

In this instance, however, the majority concedes that the

Secretary’s determination that Watson was able to perform medium

labor was supported by substantial evidence. In other words, the

Secretary correctly applied the regulations, concluding that Watson

6
The majority opinion sets up a straw man by arguing that Singletary cannot be limited to
cases only involving a mixture of exertional and non-exertional limitations as in Wingo. This
argument ignores the import of the Wingo decision. Wingo held that the Secretary must consider
all of the claimant’s disabilities when making his disability determination. It then argued in dicta
that the Secretary must properly apply his or her own regulations. Thus, the distinction between
exertional and non-exertional limitations that the majority draws does not address the basic fact
that Wingo does not represent an extension of Singletary to the context of physical disabilities
altogether.

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could perform jobs which required him to frequently lift up to 25

pounds. The dicta in Wingo, which neither mentions Singletary nor

requires any additional findings beyond what is required in the

regulations, mandates only that the Secretary comply with the

requirements of the regulations.

Finally, the majority relies on an Eighth Circuit decision to

support its extension of our holding in Singletary. Dix v.

Sullivan, 900 F.2d 135 (8th Cir. 1990). In Dix, the disability

applicant suffered from Crohn’s disease, an inflammatory disease

affecting the gastrointestinal tract. Crohn’s disease is

characterized by periods of inactivity in which the patient is

relatively symptom free, followed by periods of severe pain. Dix,

900 F.2d at 135. Like Singletary, the court in Dix confronted a

specialized case where the regulations failed to adequately address

the disabilities of a particular applicant. Similar to an

applicant with a mental illness, Dix was physically able to obtain

employment during her remissions, but was unable to work during her

relapses. Thus, the Dix court concluded that the Secretary’s

residual function determination under the regulations was

insufficient because the applicant had no realistic chance of

retaining work. Dix extends Singletary to the context of physical

disabilities, but only to those disabilities which periodically

affect an applicant’s physical ability to work. This extension is

inapplicable to the facts of this case, however, because Watson

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suffers from back pain and degenerative disc disease. These

afflictions, unlike Crohn’s disease or a mental illness, directly

impede an applicant’s physical ability to perform certain types of

work. The residual function inquiry directly addresses these types

of limitations and an additional inquiry is unnecessary.

The majority’s decision represents an unnecessary extension of

our decision in Singletary to the context of physical disabilities.

The federal regulations governing the determination of an

applicant’s residual functional capacity already provide the

appropriate method for evaluating physical disability claims. The

application of Singletary to cases such as Watson’s is redundant

and only tends to confuse an already complicated regulatory process

without affording deserving applicants any extra protections.

For the foregoing reasons, I would AFFIRM the judgment of the

district court.

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