Perez v. Barnhart

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 1, 2005

)))))))))))))))))))))))))) Charles R. Fulbruge III
Clerk
No. 04-50200

))))))))))))))))))))))))))

DANIEL PEREZ,

Plaintiff-Appellant,

v.

JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY,

Defendant-Appellee.

Appeal from the United States District Court
for the Western District of Texas

Before REAVLEY, DeMOSS, and PRADO, Circuit Judges.

EDWARD C. PRADO, Circuit Judge:

Daniel Perez challenges his denial of social security

disability benefits. Because the Commissioner’s decision is

supported by substantial evidence, we affirm the judgment of the

district court.

I. Background

Plaintiff-Appellant Daniel Perez injured his knee while

working as a painter in May 1990. He began receiving treatment

for his injury immediately. Between 1990 and 1997, Perez saw at

least seven doctors for a variety of conditions, including

degenerative disc disease of the spine, degenerative arthritis of

1
the knee, neck pain, back pain, buttock pain, obesity, and

diabetes.

Perez filed a disability insurance benefits (“DIB”)

application in June 1997, alleging disability since May 1990 due

to diabetes, left leg pain, and osteoarthritis.1 The Commissioner

contends, and Perez does not dispute, that the relevant time

frame for consideration of Perez’s status is May 31, 1990, the

date that Perez was injured on the job, to December 31, 1995, the

date that Perez last met the insured status requirements of the

Social Security Act.2 The Commissioner denied Perez’s

application.

The ALJ held a hearing on Perez’s application and determined

that Perez was not disabled. In addition to considering the

objective medical evidence in the record, the ALJ heard testimony

from Perez, a medical expert, and a vocational expert (“VE”).

First, the ALJ found that the objective medical evidence

supported a finding of no disability. Although the record

contained a letter from one of Perez’s treating physicians, Dr.

Sullivan, stating that Perez was unable to work, this evidence

was contradicted by Dr. Sullivan himself as well as other

1
The June 1997 DIB application was Perez’s second. Perez
first applied for DIB in 1993. His application was denied, and
his appeal was dismissed as untimely.
2
42 U.S.C. § 401 et seq. (2003); see also 20 C.F.R. §
404.320 (listing “insured for disability” among those
requirements to be met before one is entitled to benefits).

2
evidence in Perez’s medical records. Specifically, a year before

Dr. Sullivan issued the letter stating that Perez was unable to

work, he released Perez to sedentary work.3 Moreover, Dr.

Sullivan had not performed any X-Rays, MRIs, CT scans, or other

medical tests on Perez. In addition, Perez had never used a cane

or other device to help him walk, nor had he ever gone to

physical therapy, performed strengthening exercises at home, or

used a TENS unit to relieve pain.

Second, the ALJ found that Perez’s testimony regarding the

severity of his pain was not fully credible and thus did not

support a finding of disability. Perez testified that he

graduated from high school but was in special education from

sixth to tenth grade and was in a work program from eleventh

through twelfth grade. He also testified to the following: he

received Cortisone injections every four weeks, which did not

relieve his pain, and took Vicodin three times a day, which

helped some; he did not have enough money to pay for his diabetes

medication; he walked for exercise when able, but his feet had

been too swollen to exercise during the four months prior to the

hearing; he was forgetful; and his back and knee pain prevented

him from working.

3
Sedentary work involves “lifting no more than 10 pounds at
a time and occasionally lifting or carrying articles like docket
files, ledgers, and small tools.” 20 C.F.R. § 404.1567(a)
(2005).

3
 The ALJ noted that the issue to be decided was not whether

Perez experienced pain, but rather “the degree of incapacity

incurred because of it.” And although Perez complained of severe

pain, the medical and other evidence contradicted Perez’s

testimony. As a result, the ALJ “[did] not find [Perez’s]

statements regarding severe limitations in his activities of

daily living or his inability to perform any work activity to be

credible.”

Third, the ALJ found the testimony of the medical expert and

the VE to be credible. The medical expert, a board certified

surgeon, reviewed Perez’s medical records and concluded that from

May 1990 to June 1991, Perez was capable of less than sedentary

work, but was capable of sedentary work thereafter.

Additionally, the ALJ asked the VE about the work prospects

of a hypothetical person with Perez’s age, education, past work

history, and work skills and who is limited to sedentary work.

The VE testified that there is a significant number of jobs in

the national economy that such a person could perform,

specifically, assembler of small parts (7,000 jobs in the state

and 70,000 nationally), parking lot cashier (2,500 jobs in the

state and 25,000 nationally), surveillance system monitor (2,700

jobs in the state and 27,000 nationally), and envelope addresser

and stuffer (2,800 jobs in the state and 30,000 nationally).

Taking into account the medical evidence as well as the

testimony of Perez, the medical expert, and the VE, the ALJ found

4
that Perez had the residual functional capacity (“RFC”) to

perform sedentary work. As such, he was not disabled within the

meaning of the Act prior to December 31, 1995, the date on which

he last met the insured status requirements.

Perez appealed to the Appeals Council, which concluded that

no basis existed for review of the ALJ’s decision. The ALJ’s

decision therefore became the final decision of the Commissioner

of the Social Security Administration. See Masterson v.

Barnhart, 309 F.3d 267, 271 (5th Cir. 2002). Having exhausted

his administrative remedies, Perez filed suit in the U.S.

District Court for the Western District of Texas. The case was

referred to a U.S. magistrate judge, who issued a Report and

Recommendation that Perez’s claims be denied. The district court

accepted the magistrate judge’s recommendation and affirmed the

administrative decision denying Perez’s application for benefits.

Perez timely appealed to this court.

II. Standard of Review

Our review of the Commissioner’s decision is limited to two

inquiries: (1) whether the decision is supported by substantial

evidence on the record as a whole, and (2) whether the

Commissioner applied the proper legal standard. Greenspan v.

Shalala, 38 F.3d 232, 236 (5th Cir. 1994). “Substantial evidence

is ‘such relevant evidence as a reasonable mind might accept as

adequate to support a conclusion.’” Id. It is “more than a mere

5
scintilla and less than a preponderance.” Masterson, 309 F.3d at

272 (quoting Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000)).

In applying the substantial evidence standard, the court

scrutinizes the record to determine whether such evidence is

present, but may not reweigh the evidence or substitute its

judgment for the Commissioner’s. Greenspan, 38 F.3d at 236;

Masterson, 309 F.3d at 272. Conflicts of evidence are for the

Commissioner, not the courts, to resolve. Masterson, 309 F.3d at

272. If the Commissioner’s fact findings are supported by

substantial evidence, they are conclusive. Richardson v.

Perales, 402 U.S. 389, 390 (1971).

III. Discussion

A claimant bears the burden of proving that he or she

suffers from a disability, defined as the “inability to engage in

any substantial gainful activity by reason of any medically

determinable physical 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.” Newton, 209

F.3d at 452 (quoting 42 U.S.C. § 423(d)(1)(A) (2003)).

“Substantial gainful activity is defined as work activity

involving significant physical or mental abilities for pay or

profit.” Id. at 452–53 (citing 20 C.F.R. § 404.1572(a)–(b)).

The ALJ uses a five-step sequential analysis to evaluate claims

of disability: (1) whether the claimant is currently engaged in

6
substantial gainful activity (whether the claimant is working);

(2) whether the claimant has a severe impairment; (3) whether the

claimant’s impairment meets or equals the severity of an

impairment listed in 20 C.F.R., Part 404, Subpart B, Appendix 1;

(4) whether the impairment prevents the claimant from doing past

relevant work (whether the claimant can return to his old job);

and (5) whether the impairment prevents the claimant from doing

any other work. Masterson, 309 F.3d at 271–72; Newton, 209 F.3d

at 453 (both citing 20 C.F.R. § 404.1520). The claimant bears

the burden of proof on the first four steps, and then the burden

shifts to the Commissioner on the fifth step to show that the

claimant can perform other substantial work in the national

economy. Masterson, 309 F.3d at 272; Newton, 209 F.3d at 453.

“Once the Commissioner makes this showing, the burden shifts back

to the claimant to rebut this finding.” Newton, 209 F.3d at 453.

If the Commissioner can determine whether the claimant is

disabled at any step, that ends the analysis. 20 C.F.R. §

404.1520(a). If the Commissioner cannot make a determination, he

goes on to the next step. Id. Before going from step three to

step four, the Commissioner assesses the claimant’s RFC. Id.

The claimant’s RFC assessment is a determination of the most the

claimant can still do despite his physical and mental limitations

and is based on all relevant evidence in the claimant’s record.

20 C.F.R. § 404.1545(a)(1). The claimant’s RFC is used at both

7
steps four and five of the sequential analysis: at the fourth

step to determine if the claimant can still do his past relevant

work, and at the fifth step to determine whether the claimant can

adjust to any other type of work. 20 C.F.R. § 404.1520(e).

Here, the ALJ found that Perez was not disabled at step five

of the sequential analysis, where the Commissioner has the burden

to show that the claimant is not disabled, Wren v. Sullivan, 925

F.2d 123, 125 (5th Cir. 1991). In determining whether

substantial evidence of disability exists, this court weighs four

factors: (1) objective medical evidence; (2) diagnoses and

opinions; (3) the claimant’s subjective evidence of pain and

disability; and (4) the claimant’s age, education, and work

history. Id. at 126. On appeal, Perez challenges three aspects

of the ALJ’s step-five determination that he was not disabled:4

First, Perez argues that substantial evidence does not support

the ALJ’s finding that Perez possesses a high school education.

Second, Perez argues that substantial evidence does not support

the ALJ’s RFC assessment. Third, he argues that the ALJ was

required under Fifth Circuit caselaw to make a specific finding

4
Because Perez’s brief is poorly organized, it is unclear
whether he is also arguing that the ALJ erred in determining that
Perez’s impairments did not impose “an additional and significant
work-related limitation of function” such that he should be
deemed automatically disabled under step three of the sequential
analysis. See 20 C.F.R. pt. 404, subpt. P, App. 1 (1993)
(Listing 12.05C). To the extent that Perez attempted to advance
that argument, it is waived due to inadequate briefing. See FED.
R. APP. P. 28(a)(9)(A).

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that Perez could not only obtain, but also maintain, employment.

None of these arguments has merit.

A. Education

First, Perez argues that substantial evidence does not

support the ALJ’s finding that he possesses a high school

education. The regulations define education as “formal schooling

or other training which contributes to [one’s] ability to meet

vocational requirements, for example, reasoning ability,

communication skills, and arithmetical ability.” 20 C.F.R. §

15.64(a). The Social Security Administration uses six categories

to evaluate an applicant’s educational level: (1) illiteracy, (2)

marginal education, (3) limited education, (4) high school

education and above, (5) inability to communicate in English, and

(6) other. Id. § 404.1564 (b)(1)–(6). In this case, the ALJ

found that Perez falls into the fourth category——high school

education and above. In making that determination, the ALJ

relied on Perez’s own testimony that he graduated from high

school in 1978. San Marcos Independent School District records

confirm Perez’s testimony.

Perez argues that the ALJ erred in finding that he possesses

a “[h]igh school education or above” under 20 C.F.R. §

404.1564(b)(4) instead of “[m]arginal education” or “[l]imited

education.” Although Perez received a high school diploma, he

was not enrolled in traditional high school classes. Rather, he

9
was found to have a “slow learning disability” that necessitated

his enrollment in special education classes through the tenth

grade. Throughout his eleventh and twelfth grade years, Perez

did not take academic courses but rather received credit through

a work program in which he worked as a painter. Perez claims

that he has difficulty spelling and cannot even fill out a job

application. Thus, he argues, the ALJ should not have relied on

his testimony that he graduated from high school, as well as the

school records that confirm his graduation, and should have

instead found that Perez possesses some level of education lower

than “[h]igh school education or above.” If the ALJ had done so,

Perez contends, the VE would have evaluated the hypothetical

employment prospects of someone in a lesser educational category.

The ALJ’s finding that Perez has a high school education is

supported by substantial evidence: Perez’s testimony and school

records.5 Yet even if Perez should have been found to possess a

marginal or limited education, his education is just one of

several factors that this court must weigh in determining whether

substantial evidence supports the ALJ’s finding that Perez was

5
See Johnson v. Barnhart, 312 F. Supp. 2d 415, 428 (W.D.
N.Y. 2003). There, the plaintiff disputed the ALJ’s finding that
he was a high school graduate because he attended special
education classes. Id. The district court rejected his
argument, stating that “[t]o the extent that evidence in the
record supports plaintiff’s contention that his reading ability
is limited, the Court does not find that this undermines the
ALJ’s determination that plaintiff is also a high school
graduate.” Id.

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not disabled prior to December 31, 1995. 20 C.F.R. §

404.1520(a)(4)(v) (RFC, age, education, and work experience);

Wren, 925 F.2d at 126 (objective medical facts; diagnoses and

opinions; subjective evidence of pain; education, age, and work

history). Perez does not allege that he would have been deemed

disabled but for the ALJ’s finding that he has a high school

education. Nor does Perez allege that a finding of marginal or

limited education would prevent him from performing the sedentary

jobs that the VE testified a hypothetical person with Perez’s

characteristics could perform——e.g., small parts assembler,

parking lot cashier, or surveillance system monitor. In fact,

Perez’s counsel failed to ask the VE a single question, much less

present the expert with his own hypothetical question concerning

a claimant in a lower educational category.

Rather, Perez simply argues that substantial evidence does

not support the ALJ’s educational finding because he completed

high school through special education classes and a work program.

One federal district court recently rejected a similar argument

in Lipson v. Barnhart, 347 F. Supp. 2d 1182 (M.D. Ala. 2004).

There, Lipson argued that the Commissioner’s decision denying her

disability benefits should be reversed because the ALJ’s finding

that she had a tenth grade education was not supported by

substantial evidence. Id. at 1186. Specifically, Lipson argued

that the ALJ had “erroneously determined Lipson’s level of

11
education by accepting Lipson’s testimony as to what grade she

completed.” Id. Other evidence showed that Lipson had taken

special education classes since the sixth grade. Id.

Standardized tests administered by a doctor “revealed that Lipson

had borderline intellectual functioning.” Id. Although Lipson

had acknowledged that she could read, the tests showed that she

was illiterate and reading at less than a third grade level. Id.

“Thus, although Lipson testified that she had a tenth grade

education, her actual level of education attained was

significantly lower.” Id.

Nevertheless, the district court held that substantial

evidence supported the ALJ’s finding that Lipson had a tenth

grade education. Id. at 1187. Critical to the court’s decision

was the fact that “[the doctor’s] assessment made no findings

regarding [the impact of Lipson’s reading skills and intellectual

functioning upon her ability to perform vocational tasks].” Id.

at 1187–88. Lipson argued that “the ALJ should have assumed that

her diminished intellectual functioning rendered her unable to

perform the jobs listed by the VE, including assembler, sorter,

and facilities attendant.” Id. at 1187. However, the district

court held that despite the evidence of Lipson’s low reading

level, “in the absence of evidence of [impact], the court cannot

conclude that the ALJ’s determination was unsupported by the

12
record.”6 Id. at 1187–88.

Here, the ALJ determined that Perez possesses a high school

education based on his own testimony and San Marcos Independent

School District records. Perez now makes the same argument that

the plaintiff in Lipson made: the ALJ should not have based its

educational assessment on Perez’s own testimony but should have

looked to other evidence that points to a lower educational

level. Yet despite his educational limitations, Perez worked as

a painter and oil field worker before the onset of disability.

Perez has not provided any impact evidence; that is, he has not

shown how his less-than-high-school education affects his ability

to perform the jobs suggested by the VE, or how these jobs

require more intellectual ability than did his past relevant work

as a painter and oil field worker.

In light of the highly deferential standard of review and

6
Similarly, in Hatcher v. Apfel, the district court
rejected the plaintiff’s “argu[ment] for reversal on the grounds
that the ALJ incorrectly determined that the plaintiff had a
‘“high school” education obtained through special education.’”
167 F. Supp. 2d 1231, 1238 (D. Kan. 2001). Finding that there
was substantial evidence that the plaintiff had at least a
“marginal education,” the court agreed with the Commissioner’s
position that even if the plaintiff did not have a high school
education, he was still not disabled. Id. The regulations
command a finding of not disabled for illiterate or marginally
educated claimants whose RFC still permits them to do light or
sedentary work. Id. (citing 20 C.F.R. Part 404, Subpart P,
Appendix 2, §§ 201.18, 202.16–.17). Therefore, even if the ALJ
had made a mistake in categorizing the plaintiff’s level of
education, there was still substantial evidence to support the
ALJ’s conclusion that the plaintiff was not disabled. Id.

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Perez’s failure to develop his argument or support it by citing

to any relevant authority, Perez’s assertion that his special-

education and work-program evidence entitles him to summary

judgment or remand is not persuasive. The ALJ’s finding that

Perez has a high school education is supported by substantial

evidence.

B. Determination of RFC

Perez also argues that the ALJ’s RFC determination is not

supported by substantial evidence. We disagree.

The VE testified that there were numerous jobs in the

national economy that Perez could perform, but Perez’s attorney

neither cross-examined the VE nor provided any contrary evidence.

We have held that where the claimant offers no evidence contrary

to the VE’s testimony, the claimant fails to meet his burden of

proof under the fifth step of the disability analysis.7

Accordingly, substantial evidence supports the ALJ’s

determination that Perez was capable of sedentary work prior to

December 31, 1995.

C. Maintaining Employment

7
See Masterson v. Barnhart, 309 F.3d 267, 273 (5th Cir.
2002) (“Masterson offered no contrary evidence and thus did not
satisfy his burden to prove that he could not perform the kinds
of jobs identified by [the VE].”); Vaughan v. Shalala, 58 F.3d
129, 132 (5th Cir. 1995) (“Since Vaughan offered no evidence that
she was incapable of performing the types of work that the ALJ
determined were available and that she was capable of performing,
Vaughan failed to meet her burden of proof under the disability
test.”).

14
 Finally, Perez argues that under the Fifth Circuit’s

decision in Watson v. Barnhart, 288 F.3d 212 (5th Cir. 2002), the

ALJ was required to find not only that the claimant’s ailments do

not prevent him from obtaining employment, but also that the

claimant will be able to maintain employment. The Commissioner

takes the position that Watson’s conclusion has been undermined

by the more recent Fifth Circuit case of Frank v. Barnhart, 326

F.3d 618 (5th Cir. 2003). We agree with the Commissioner.

This court made clear in Frank that “nothing in Watson

suggests that the ALJ must make a specific finding regarding the

claimant’s ability to maintain employment in every case.” Id.

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. Without such a showing, the

claimant’s ability to maintain employment is subsumed in the RFC

determination. See id. Perez has not made the requisite

showing.

The Frank court gave an example of evidence that might

necessitate a separate finding of a claimant’s ability to

maintain employment: “For example, if Frank had alleged that her

degenerative disc disease prevented her from maintaining

employment because every number of weeks she lost movement in her

legs, this would be relevant to the disability determination.”

Id. The evidence urged upon the court by Perez does not rise to

15
this level of impairment.

First, Perez points to his 1995 testimony that he has “good

days and bad days.”8 As the Commissioner correctly points out,

Perez’s testimony, if credible, “simply do[es] not rise to the

level of impairment anticipated by the Court in Frank.” Cf. Dix

v. Sullivan, 900 F.2d 135, 136 (8th Cir. 1990) (describing the

intermittently recurring symptoms of the claimant who was

suffering from Crohn’s disease); Singletary, 798 F.2d at 821

(“The nature of the mental impairment is such . . . that the

claimant is unable to remain employed for any significant period

of time.”).

Second, Perez states that in 1992 he was being given

epidural injections for his pain and “[b]ecause the injections

[were] given over time, the pain would vary in intensity or ‘wax

and wane’ between injections.” Such an assertion is simply not

sufficient to bring Perez’s case within the realm of disablement

envisioned by the Frank court. It is axiomatic that the pain

from any type of ailment will vary in intensity, especially the

8
After Perez’s first application was denied by the Social
Security Administration, Perez requested an administrative
hearing before an ALJ, which was held in May 1995. The ALJ
denied Perez’s application for benefits. His appeal was
dismissed as untimely. In 1997, Perez filed his second DIB
application, which is currently before this court.

16
farther one gets from treatment that alleviates pain.9 Moreover,

Dr. Heinze, who administered the injections, reported that the

injections were effective.

Third, Perez points to testimony by Dr. Heinze in December

1999 that Perez had been unable to work for the previous five

years. The Commissioner points out that Dr. Heinze never

conducted any form of clinical examination on Perez, for example,

an MRI, X-ray, blood test, or CT scan. “[O]rdinarily, the

opinions, diagnoses, and medical evidence of a treating physician

who is familiar with the claimant’s injuries, treatments, and

responses should be accorded considerable weight in determining

disability.” Greenspan v. Shalala, 38 F.3d 232, 237 (5th Cir.

1994) (quoting Scott v. Heckler, 770 F.2d 482, 485 (5th Cir.

1985)). But the treating physician’s opinions are not

conclusive. Id. “[W]hen good cause is shown, less weight,

little weight, or even no weight may be given to the physician’s

testimony.” Id. Recognized “good cause” exceptions include

“disregarding statements that are brief and conclusory, not

supported by medically acceptable clinical laboratory diagnostic

techniques, or otherwise unsupported by the evidence.” Id.

9
See Epidural Steroid Injections, at http://www.spine-
health.com/topics/conserv/epidural/feature/ep01.html (last
visited June 30, 2005) (“An epidural injection is typically used
to alleviate chronic low back and/or leg pain. . . . [I]t can
provide sufficient pain relief to allow the patient to progress
with their rehabilitation program.”).

17
(citing Scott, 770 F.2d at 485) (emphasis added). The ALJ was

therefore justified in giving little weight to Dr. Heinze’s

testimony because he did not perform any clinical examinations on

Perez.

Finally, Perez points to the 1999 testimony by his expert

witness, an environmental safety and health manager, that “he

knew Mr. Perez and it was his professional opinion that Mr. Perez

would not be able to work a 30 hour week ‘on a reliable basis.’”

This evidence does not come close to meeting the standard

required by Frank. Perez has not offered any evidence that his

condition “waxes and wanes” in intensity such that his ability to

maintain employment was not adequately taken into account in his

RFC determination. In short, Perez’s Watson argument is wholly

without merit. It is rejected.

IV. Conclusion

For the foregoing reasons, the judgment of the district

court is affirmed.

AFFIRMED.

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