United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT September 15, 2003
Charles R. Fulbruge III
Clerk
No. 02-50968
Summary Calendar
CARMEN SANCHEZ,
Plaintiff-Appellant,
versus
JO ANNE B. BARNHART, 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. SA-00-CV-1551
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Before DUHÉ, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:1
Carmen Sanchez appeals the district court’s judgment affirming
the Commissioner’s decision to deny her application for
supplemental security income. Because Sanchez did not file
objections to the magistrate judge’s report and recommendation,
review of the district court’s decision is for plain error only.
See Rodriguez v. Bowen, 857 F.2d 275, 277 (5th Cir. 1988); see also
United States v. Olano, 507 U.S. 725, 731-37 (1993)(defining plain
error).
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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that this opinion should not be published and is not precedent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.
Sanchez argues for the first time in this court that the
administrative law judge (ALJ) erred in finding, at the third step
of the sequential analysis, that she did not have a listed
impairment. Assuming, arguendo, that exceptional circumstances
warrant review of Sanchez’s argument, it is utterly without merit.
The medical expert clearly testified that in his opinion, Sanchez
did not have a listed impairment, and Sanchez’s counsel even
questioned the expert as to why he opined that Sanchez did not have
a listed impairment.
Sanchez also argues that the ALJ erred in determining that she
could do sedentary work because the regulations “require sitting
for six hours out of an eight hour day -- not less than six hours.”
She notes that the medical expert testified that she could sit for
less than six hours. There is no requirement that in order to do
sedentary work, the claimant be allowed to sit for precisely six
hours per day. See 61 Fed. Reg. 34,480. Further, the hypothetical
posed to the vocational expert included the requirement that the
claimant be able to walk and stand for at least two hours in a
workday.
Citing the medical reports submitted as new evidence before
the Appeals Council, Sanchez argues that the ALJ “simply
disregarded” this “most recent evidence.” The Appeals Council
considered the additional evidence submitted by Sanchez, but
determined that it provided no basis for changing the ALJ’s
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decision. Evidence relating to the subsequent deterioration of a
previously non-disabling condition is not material unless it
relates to the time period for which benefits were sought and
denied. See Falco v. Shalala, 27 F.3d 160, 164 (5th Cir. 1994).
The relevant time period was from the date of Sanchez’s initial
application on September 2, 1998, through the ALJ’s decision on
September 15, 1999. Thus, the Appeals Council did not err in
determining that the additional evidence did not provide any basis
for further review. See Shave v. Apfel, 238 F.3d 592, 597 (5th
Cir. 2001).
Sanchez argues that the ALJ disregarded her psychological
impairments and that the hypothetical posed to the vocational
expert was flawed because it did not include her psychological
limitations. Other than testimony establishing that she had been
prescribed medication for depression, the only evidence presented
by Sanchez relating to her psychological limitations was a 1995
evaluation by a psychologist. The ALJ specifically found that the
psychologist who performed the 1995 evaluation was not credible.
Moreover, a review of the evaluation reveals that the psychologist
had given only a provisional diagnosis, and that the evaluation was
to be continued the following week. No further evidence relating
to the evaluation was entered into the record. Because the ALJ
properly rejected Sanchez’s assertion of a psychological
limitation, he did not err by not including such limitation in his
hypothetical.
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Sanchez also argues that the ALJ erred in finding her
allegations of pain not credible. It is within the ALJ’s
discretion to discredit complaints of pain based on the
complainant’s testimony of her daily activities in combination with
the medical records. See Griego v. Sullivan, 940 F.2d 942, 945
(5th Cir. 1991); see also 20 C.F.R. § 404.1529 (explaining how the
Social Security Administration evaluates symptoms, including pain).
We find no abuse of discretion with respect to the ALJ’s evaluation
of Sanchez’s assertions of pain.
Finally, Sanchez argues that the ALJ erred in failing to
determine whether she could maintain employment for a significant
period of time. In support of her argument, she cites Watson v.
Barnhart, 288 F.3d 212, 218 (5th Cir. 2002). In Watson, this court
held that an individual’s ability to maintain employment is
relevant to a determination of disability. Id. However, this
court has since held that “nothing in Watson suggests that the ALJ
must make a specific finding regarding the claimant’s ability to
maintain employment in every case.” Frank v. Barnhart, 326 F.3d
618, 619 (5th Cir. 2003). Rather, “Watson requires a situation in
which, by its nature, the claimant’s physical ailment waxes and
wanes in its manifestation of disabling symptoms.” Id. Because
Sanchez’s case did not present such a situation, the ALJ did not
err by failing to make a separate finding regarding her ability to
maintain employment for a significant period of time.
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AFFIRMED.
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