United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS March 4, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-30403
JEROME C. HAAS, III,
Plaintiff-Appellant,
versus
JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
Appeal from the United States District Court
For the Western District of Louisiana
(01-CV-1320)
Before REAVLEY, DAVIS, and DeMOSS, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Jerome C. Haas, III (“Haas”) seeks
reversal of the district court’s decision to affirm the decision of
the Administrative Law Judge (“ALJ”) to deny Haas Supplemental
Security Income (“SSI”) and Social Security Disability benefits.
The ALJ found that Haas was not disabled, that he could perform a
range of sedentary work, and that there are a significant number of
*
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opinion should not be published and is not precedent except under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.
those jobs in the national economy. Haas argues that the ALJ
failed to give proper weight to the opinions of Haas’s treating
physicians and failed to provide a reasonable explanation for a
conflict between testimony by the vocational expert (“VE”) and the
Dictionary of Occupational Titles (“DOT”). Because we find that
the proper legal standards were used to evaluate the evidence and
the ALJ’s decision was supported by substantial evidence in the
record, we AFFIRM the decision of the district court.
BACKGROUND
Haas applied for SSI on September 29, 1999, and Social
Security Disability benefits on November 3, 1999. These
applications were denied. In his applications, Haas alleged he
became disabled on January 9, 1998; however, in his disability
report, Haas asserted that he was first bothered by symptoms on
that date but did not become unable to work until January 1999.
Haas stated that he stopped working due to severe back pain and
neck impairments and that he had undergone three back surgeries and
suffered from degenerative disk disorder and osteoporosis. Haas’s
prior work experience was in the construction business: as an
electrician helper, a safety technician, and a safety supervisor.
Haas’s medical history includes a March 1999 stair accident
resulting in minimal spurs and calcification at disk L4; a July
1999 fall resulting in multiple rib fractures; and several back
surgeries, the latest being an L5 laminectomy and L4-5 diskectomy
2
in August 1999.
In October 1999 Haas was examined by Dr. Frank Lopez, who
determined Haas had a chronic pain condition and post-traumatic
stress disorder. Dr. Lopez suggested long-term physical therapy
and counselor services; he also indicated that with physical
therapy Haas could obtain enough strength in his back and shoulders
to return to gainful employment.
Haas underwent a consultive examination in December 1999 in
connection with his claim for disability benefits. Dr. Anand Roy
noted that Haas had a history of back surgery with limitation of
flexion and extension of the back; difficulty walking and positive
leg-raising; mild reduction of flexion of the neck; and mild grip
loss, but essentially normal fine and dextrous movement of both
hands. Dr. Roy suggested Haas refrain from lifting weight and
working on uneven surfaces or at heights, due to his back problems.
Haas also underwent a consultive neuropsychiatric examination
in February 2000 in connection with his disability benefits claim.
Dr. Aretta Rathmell, a psychiatrist, noted that Haas sat back in
her couch with his legs propped up and appeared to be totally
comfortable. Dr. Rathmell’s overall impression was that Haas had
depression secondary to his medical problems and that he was
anxious with a short attention span. She recommended that Haas
receive therapy on an outpatient basis.
A residual functional capacity assessment provided by state
Disability Determination Service medical consultants in February
3
2000 indicated that Haas was limited to light work activity. The
associated psychiatric report noted Haas was depressed about his
condition but was capable of simple, unskilled work.
In September 2000 Dr. Brian Willis, who had performed Hass’s
August 1999 back surgery, performed a radiological examination on
Hass. Tests showed degenerative changes resulting in a narrowed
segment of the cervical spine but no evidence of spinal cord
compression. Dr. Willis also performed an electromyography (“EMG”)
that was suggestive of upper motor neuron disease, such as Lou
Gehrig’s disease, but not conclusive. Dr. Willis indicated he did
not observe significant spinal cord or nerve root compression, nor
did he see the need for additional surgery.
Haas requested that his case be adjudicated by an ALJ. A
hearing was held on February 9, 2001, at which Haas was represented
by an attorney. Haas was 42 at the time of the hearing, with a
high school education and one year of college. At the hearing,
Haas complained of headaches, shoulder problems, loss of strength
and numbness in his upper and lower extremities, muscle spasms, and
constant back pain. He also stated he felt depressed and anxious,
and had trouble with his concentration. Haas testified that he
watches TV, reads, and takes care of his children but has no social
activities. A VE then testified that given the limitations as to
Haas’s age, education, past work experience, and determined
residual functional capacity, which the ALJ had assessed to be
4
limited to sedentary work,1 such a person could perform as a
messenger or assembler at the sedentary level. The VE further
testified that at the sedentary level, there were 7000 messenger
positions in the United States, with 335 in Louisiana, and 104,000
assembler positions in the United States, with 600 in Louisiana.
The VE also stated that at the light level of exertion, there were
a larger number of both messenger and assembler jobs available.
The VE did not list the DOT numbers or descriptions for these jobs.
The ALJ determined that Haas was not considered disabled to be
eligible for SSI and Social Security Disability benefits. Although
the ALJ found that Haas was not gainfully employed, Haas did have
an impairment or combination of impairments considered “severe”
under 20 C.F.R. §§ 404.1520(c) and 416.920(c),2 and Haas could not
perform his past relevant work, the ALJ also determined that Haas
was not unable to engage in any substantial gainful activity by
reason of any medically determinable physical or mental impairment
1
The DOT defines “sedentary work” to mean:
Exerting up to 10 pounds of force occasionally (Occasionally:
activity or condition exists up to 1/3 of the time) and/or a
negligible amount of force frequently (Frequently: activity or
condition exists from 1/3 to 2/3 of the time) to lift, carry,
push, pull, or otherwise move objects, including the human
body. Sedentary work involves sitting most of the time, but
may involve walking or standing for brief periods of time.
Jobs are sedentary if walking and standing are required only
occasionally and all other sedentary criteria are met.
DOT, Appendix C.
2
The ALJ referred to subpart (b) of 20 C.F.R. §§ 404.1520 and
416.920 in his decision, but the proper subpart is (c).
5
because he could perform a significant range of sedentary work, of
which there was a significant number of jobs in the national
economy. Haas did not rebut this finding.
Haas then filed this action challenging the ALJ’s findings.
The magistrate judge issued a report and recommendation that the
ALJ’s decision be affirmed and Haas’s complaint be dismissed; Haas
responded with objections. The district court adopted the
magistrate’s report and recommendations and dismissed Haas’s
complaint. Haas timely appealed.
DISCUSSION
This Court’s review of the Commissioner’s final decision to
deny benefits under the Social Security Act, per 42 U.S.C.
§ 405(g), is limited to two inquiries: (1) whether the proper
legal standards were used in evaluating the evidence and (2)
whether the decision is supported by substantial evidence in the
record. Brown v. Apfel, 192 F.3d 492, 496 (5th Cir. 1999)
(citation omitted).
The Social Security Act defines “disability” as the “inability
to engage in any substantial gainful activity by reason of any
medically determinable 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). A sequential five-step approach is used to
determine whether a claimant qualifies as disabled. 20 C.F.R.
6
§§ 404.1520(a), 416.920(a). The claimant bears the burden of
proving the first four steps to show that: (1) he is not presently
engaged in substantial gainful activity; (2) he has a severe
impairment; (3) the impairment is either listed or equivalent to an
impairment listed in the appendix to the regulations; and (4) if
the impairment is not equivalent to one listed in the regulations,
the impairment still prevents him from performing past relevant
work. Leggett v. Chater, 67 F.3d 558, 563 n.2 (5th Cir. 1995)
(citations omitted). Once the claimant proves the first four
steps, the Commissioner has the burden of establishing that the
claimant can perform substantial gainful employment available in
the national economy. Greenspan v. Shalala, 38 F.3d 232, 236 (5th
Cir. 1994) (citing Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987)).
The burden then shifts back to the claimant to rebut this finding.
Newton v. Apfel, 209 F.3d 448, 453 (5th Cir. 2000) (citation
omitted). A determination at any step that the claimant is or is
not disabled ends the inquiry. Leggett, 67 F.3d at 564.
If the findings of the Commissioner are supported by
substantial evidence in the record as a whole, the findings are
conclusive and the decision must be affirmed. 42 U.S.C. § 405(g);
Richardson v. Perales, 402 U.S. 389, 390 (1971). “Substantial
evidence is that which is relevant and sufficient for a reasonable
mind to accept as adequate to support a conclusion; it must be more
than a scintilla, but it need not be a preponderance.” Leggett,
7
67 F.3d at 564 (citation omitted). Evidentiary conflicts are for
the Commissioner, not the courts, to resolve. Brown, 192 F.3d at
496 (citation omitted). Thus, this Court may not reweigh the
evidence, but may only review the record to determine whether it
contains substantial evidence in support of the Commissioner’s
decision. Leggett, 67 F.3d at 564 (citation omitted).
Whether proper legal standards were used in evaluating the
evidence.
Haas does not dispute that the ALJ properly considered the
inquiry to be whether Haas was under a disability within the
meaning of the Social Security Act. The ALJ also undertook the
proper five-step analysis; finding (1) Haas was not engaged in
substantial gainful activity; (2) Haas had a severe impairment or
combination of impairments based on the regulations; (3) however,
Haas’s impairments were not severe enough to meet or medically
equal one of the impairments listed in Appendix 1, Subpart B,
Regulations No. 4; but (4) Haas is unable to perform any of his
past relevant work. Indeed, Haas had met his initial burden. At
step five, however, the ALJ determined that Haas had the residual
functional capacity to perform a “significant range of sedentary
work” and that such jobs were available in significant numbers both
nationally and in Louisiana. Because the Commissioner had met its
burden, the ALJ ruled against a finding of disability.
The first point of error Haas puts forth on appeal is a legal
one: that contrary to the requirements of SSR 96-5p, 1996 WL
8
374183 (S.S.A.), and Newton, the ALJ disregarded the opinions of
Dr. Lopez and Dr. Willis. Social Security Ruling 96-5p states that
whether a claimant is disabled under the Social Security Act is an
issue reserved to the Commissioner; however, “our rules provide
that adjudicators must always carefully consider medical source
opinions about any issue, including issues that are reserved to the
Commissioner.” 1996 WL 374183 (S.S.A.), at *2. In Newton, we held
“absent reliable medical evidence from a treating or examining
physician controverting the claimant’s medical specialist, an ALJ
may reject the opinion of the treating physician only if the ALJ
performs a detailed analysis of the treating physician’s views.”
209 F.3d at 453 (emphasis in original). Haas contends the ALJ
instead relied upon the opinions of non-examining physicians, Dr.
Roy and Dr. Rathmell, to determine he was capable of performing
light or sedentary work. Haas also claims the ALJ did not address
the fact that his treating physicians’ opinions were consistent
with those of the consultive examiners.
Here, Haas does not specify what opinions of Dr. Lopez and Dr.
Willis the ALJ allegedly rejected; Haas merely cites to the
doctors’ letters detailing their examinations of him. Although Dr.
Lopez stated that Haas had a chronic pain condition with back and
neck problems and post-traumatic stress disorder, and suggested
therapy and counseling, Dr. Lopez did not list any limitations in
activity that conflicted with the ALJ’s findings. In fact,
9
Dr. Lopez indicated that with physical therapy, Haas could fully
mobilize his back and regain the strength to return to gainful
employment. Haas himself considers Dr. Lopez’s opinions to be
consistent with those of the consultive examiners. Therefore,
while the ALJ did not specifically mention Dr. Lopez’s letter in
his decision, given Haas has failed to identify any specific
conflict and the absence of any obvious conflict, there is no error
with regard to the weight the ALJ gave Dr. Lopez’s opinions.
Haas makes the same argument with regard to Dr. Willis’s
opinions. Dr. Willis stated nothing definitive, only that he could
not determine whether Haas was suffering from a degenerative
condition of the cervical cord and that Haas’s EMG was inconclusive
as to upper motor neuron disease. The ALJ specifically considered
and noted this uncertain finding by Dr. Willis, and when asked by
the ALJ, Haas testified that he was still in the process of getting
a second opinion. It is clear here that the ALJ did not reject or
disregard Dr. Willis’s opinions. It is also clear that both
Dr. Lopez’s and Dr. Willis’s opinions were not incompatible with,
but were consistent with, the consultative opinions of Drs. Roy and
Rathmell. In fact, the ALJ found Haas’s impairments to be more
limiting than what the state examiners and physicians and Haas’s
own physicians found, at the sedentary level instead of the more
strenuous light level. Thus, we also find no error with regard to
the weight given to Dr. Willis’s evidence by the ALJ. After
10
reviewing the legal analysis undertaken by the ALJ, we find that
the proper legal standards were used to evaluate the evidence in
Haas’s case.
Whether substantial evidence existed to support the ALJ’s decision.
When a claimant suffers from impairments that potentially
preclude him from performing a significant number of light,
unskilled jobs, such that application of the Medical-Vocational
Guidelines is inappropriate, the Commissioner must rely on a VE or
similar evidence to support a finding regarding the ability to
perform a certain job. See Carey v. Apfel, 230 F.3d 131, 145 (5th
Cir. 2000). To support a determination of not disabled, the
hypothetical questions posed to the VE by the ALJ must reasonably
incorporate all disabilities of the claimant recognized by the ALJ,
and the claimant must be afforded the opportunity to correct
deficiencies in the ALJ’s questions. Boyd v. Apfel, 239 F.3d 698,
707-08 (5th Cir. 2001)(citing Bowling v. Shalala, 36 F.3d 431, 436
(5th Cir. 1994)).
The second point of error Haas puts forth is an evidentiary
one that concerns conflict between the VE’s testimony as to the
exertional level for a messenger and that provided for that job in
the DOT, and the ALJ’s failure to explain this conflict. Haas
specifically points to DOT 239.677-010 (copy messenger) and
230.663-010 (outside deliverer), which are both characterized as
11
having an exertional level of light,3 as opposed to sedentary.
Haas asserts the ALJ’s reliance on the VE’s testimony is also
misplaced because it did not support the ALJ’s finding as to the
number of available sedentary assembler jobs. Also, no DOT numbers
were given for the jobs cited.
This Court has held that where there is a conflict between the
VE’s testimony and the DOT, the ALJ may rely upon the VE’s
testimony, provided that the record reflects an adequate basis for
doing so. Carey, 230 F.3d at 146. While we noted that a VE’s
erroneous classification of the exertional level or skills required
to perform a particular job could call into question the probative
value and reliability of such testimony, we also made it clear
that:
3
The DOT defines “light work” to mean:
Exerting up to 20 pounds of force occasionally, and/or up to
10 pounds of force frequently, and/or a negligible amount of
force constantly (Constantly: activity or condition exists 2/3
or more of the time) to move objects. Physical demand
requirements are in excess of those for Sedentary Work. Even
though the weight lifted may be only a negligible amount, a
job should be rated Light Work: (1) when it requires walking
or standing to a significant degree; or (2) when it requires
sitting most of the time but entails pushing and/or pulling of
arm or leg controls; and/or (3) when the job requires working
at a production rate pace entailing the constant pushing
and/or pulling of materials even though the weight of those
materials is negligible. NOTE: The constant stress and strain
of maintaining a production rate pace, especially in an
industrial setting, can be and is physically demanding of a
worker even though the amount of force exerted is negligible.
DOT, Appendix C.
12
[C]laimants should not be permitted to scan the record
for implied or unexplained conflicts between the specific
testimony of an expert witness and the voluminous
provisions of the DOT, and then present that conflict as
reversible error, when the conflict was not deemed
sufficient to merit adversarial development in the
administrative hearing.
Id. at 146-47. Social Security Ruling 00-4p provides that
adjudicators should identify and obtain an explanation for any
conflicts between the VE’s evidence and the DOT, and explain in
their decision how any identified conflicts were resolved. 2000 WL
1898704 (S.S.A.), at *2.
Here, the ALJ solicited the testimony of a VE. As is usual in
such cases, the ALJ posed hypothetical questions to the VE, asking
the expert to address Haas’s residual functional capacity for work
in light of his given set of limitations and impairments.
Specifically, the ability to perform sedentary and light work with
the additional limitations of the work being simple and repetitive
and an assumption that the hypothetical claimant had mild to
moderate pain and would have to change positions from time to time
to relieve his symptoms. The VE identified 7000 messenger jobs
nationwide at the sedentary level that would fit the hypothetical
criteria, with 335 in Louisiana, and 104,000 assembler jobs
nationwide at the sedentary level, with 600 in Louisiana. The VE
stated that more of those positions were available at the light
exertion level. The ALJ then added to the hypothetical question
the assumption that the hypothetical claimant would have all the
13
specific physical and mental limitations the ALJ eventually found
Haas to have. The VE responded that these assembler and messenger
jobs could still be done.
Both messenger jobs cited by Haas from the DOT state that the
physical demand requirements are in excess of sedentary work. DOT
239.677-010 (showing strength as light for copy messenger); DOT
230.663-010 (same for outside deliverer). However, SSR 00-4p
clarifies that the DOT lists the maximum requirements for a
position as it is generally performed, not the full range of
requirements. 2000 WL 1898704 (S.S.A.), at *3; see also Fenton v.
Apfel, 149 F.3d 907, 911 (8th Cir. 1998) (“[T]he DOT, in its job
definition, represents approximate maximum requirements for each
position rather than the range.”). Clearly, “the categorical
requirements listed in the DOT do not and cannot satisfactorily
answer every [] situation.” Carey, 230 F.3d at 146. Moreover, the
DOT does provide for assembler jobs listing maximum physical demand
requirements of sedentary exertion. See, e.g., DOT 700-684-014.
Therefore, the VE’s identification of a lesser number of such
positions being available at the sedentary level is not necessarily
a conflict with the DOT.
As for Haas’s contention that the VE’s testimony does not
support the ALJ’s finding as to the number of sedentary assembler
jobs, it fails because the ALJ based his findings on the precise
figures outlined by the VE. Additionally, Haas cites no support
14
for his claim that the DOT numbers for positions identified by the
VE must be given.
We do note that the VE did not provide an explanation or
supporting authority for drawing a distinction between the
exertional levels of the messenger and assembler positions, but we
also note that Haas had an opportunity to but did not raise the
issue of this alleged conflict at the hearing before the ALJ so the
ALJ could recognize and explain any potential conflict. What we
are left with is the VE’s clear and unchallenged testimony that
even considering all of Haas’s additional personal limitations –
including a sit/stand-at-will option; only occasional bending and
twisting; limited squatting and kneeling; slightly limited
fingering and gripping; the need to avoid uneven surfaces and
unprotected heights; low noise; routine and repetitive
instructions; and limited contact with the public and his coworkers
– a significant number of messenger and assembler jobs were
available at the sedentary level to provide Haas substantial
gainful employment. Overall, we find that substantial evidence
existed to support the ALJ’s finding that Haas was not disabled for
purposes of the Social Security Act.
CONCLUSION
Having carefully reviewed the record of this case and the
parties’ respective briefing, and for the reasons set forth above,
we conclude that the ALJ used the proper legal standards to
15
evaluate the evidence and that substantial evidence existed to
support finding for the Commissioner instead of Haas. Therefore,
we AFFIRM the decision of the district court below.
AFFIRMED.
16