Ray v. Barnhart

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
January 17, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
____________________ Clerk

No. 05-50163
Summary Calendar
____________________

JOHN T RAY

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, Austin
No. 1:03-CV-861
_________________________________________________________________

Before KING, BARKSDALE and BENAVIDES, Circuit Judges.

PER CURIAM:*

Plaintiff-appellant John T. Ray (“Ray”) appeals the denial

of his claim for Social Security disability benefits. For the

following reasons, we AFFIRM the judgment of the district court.

I. FACTUAL AND PROCEDURAL BACKGROUND

On July 10, 2000, Ray filed a claim for disability benefits

*
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this opinion should not be published and is not precedent except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.

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with the Social Security Administration pursuant to 42 U.S.C.

§ 401, alleging a disability onset date of December 1, 1999.1

After the Commissioner denied his claim, Ray requested and

received a hearing before an Administrative Law Judge (“ALJ”) on

May 13, 2002.

At the hearing, Ray presented the following facts. In 1984,

Ray’s right leg was amputated following a car accident. Ray

asserted that since then, he has had pain in his legs, has had

trouble standing for any length of time, has experienced back

pain, and has suffered from depression. Moreover, his prosthesis

does not fit well, causing pain and bleeding of the stump

whenever he must walk or stand for a long period of time. Ray

also testified that he suffered from drug addiction and was in a

substance abuse program.2 The ALJ also heard testimony from a

1
Ray had previously received disability benefits from 1993
through December 1998, at which time he was informed that his
benefits would be terminated due to medical improvement. Ray
received his last payment of disability benefits in February
1999. Because Ray subsequently filed a new application for
disability benefits with an onset date of July 10, 2000, we note
at the outset that this is not a termination case subject to the
“medical improvement” standard under 42 U.S.C. § 423(f). See
Richardson v. Bowen, 807 F.2d 444, 445 (5th Cir. 1987) (“The
plain language of the statute indicates that the Secretary must
make a finding of medical improvement only in termination
cases.”).
2
According to the record, Ray was diagnosed with a
condition known as “polysubstance abuse disorder,” which more
accurately described his battles with alcohol, marijuana, and
heroin/methadone abuse. 2 R. at 21. Although his testimony
revealed that he still drinks beer and occasionally smokes
marijuana, Ray claimed to have successfully given up heroin and
methadone.

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medical expert (Dr. Barbara Felkins) and a vocational expert

(Diana Moore) to assess Ray’s condition.

At the close of evidence, the ALJ issued an eight-page

opinion denying Ray’s request for Social Security disability

benefits and providing reasons for that denial. The ALJ

indicated that she had “carefully considered all of the medical

opinions in the record regarding the severity of claimant’s

impairments,” and that she found Ray’s “allegations regarding his

limitations . . . not totally credible for the reasons set forth

in the body of the decision.” 2 R. at 21. Specifically, she

found that Ray

has the following residual functioning capacity: lift 20
lbs. occasionally; lift and carry 10 lbs. frequently;
stand and/or walk 2 hours out of 8 hours intermittently,
no more than 15 minutes at one time and then would have
to be seated; sit for 8 hours out of an 8 hours [sic]
with normal breaks; occasionally bend or stoop; unable to
squat or knee [sic]; unable to climb stairs, ladders,
ropes, or scaffolds; unable to or [sic] work at
unprotected heights or around dangerous moving machinery;
and who has a fair ability (somewhat affected or below
average) to maintain attention and concentration for an
extended period[] (more than 2 hours).

Id. Although the ALJ found that Ray could no longer perform the

work he had done in the past, she concluded that, given his age

and educational background,3 he had the residual functional

capacity to perform a range of sedentary and light work jobs that

3
At the time of his hearing before the ALJ, Ray was only
forty-seven years old and had received his GED despite dropping
out of school after the eighth grade, which qualified him as a
“younger person" with the equivalent of a “high school education”
under the regulations. See 20 C.F.R. §§ 416.963-.964.

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existed in sufficient numbers in the national economy, including

such jobs as taxicab dispatcher, toll collector, ticket seller,

and bench assembly. Therefore, the ALJ determined that Ray was

not disabled during the relevant time period.

Ray appealed the ALJ’s decision to the Social Security

Administration Appeals Council, which affirmed the ALJ’s denial

of benefits. Ray then sought review of this determination in the

United States District Court for the Western District of Texas.

The case was referred to a magistrate judge, who issued a report

and recommendation to affirm the ALJ’s decision on September 22,

2004. On January 11, 2005, the district court issued a final

judgment adopting the magistrate judge’s recommendation. Ray

filed this timely appeal on January 20, 2005.

Ray raises two claims in this appeal. First, Ray argues

that there is not substantial evidence to support the ALJ’s

assessment of the record, particularly with respect to his

ability to maintain concentration. Specifically, with respect to

his substantial evidence challenge, Ray alleges that the ALJ

failed to adequately consider Ray’s credibility, the testimony of

his treating physician, and the extent to which his residual

functional capacity compromised his ability to secure alternative

employment. Second, Ray asserts that the ALJ applied the

incorrect legal standard with respect to determining the extent

and impact of the pain Ray claimed to suffer as a result of his

physical impairments.

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 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.1 See 42 U.S.C.

§ 405(g); Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005).

“Substantial evidence is ‘such relevant evidence as a reasonable

mind might accept as adequate to support a conclusion.’”

Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir. 1994) (quoting

Richardson v. Perales, 402 U.S. 389, 401) (1971)); see also

Masterson v. Barnhart, 309 F.3d 267, 272 (5th Cir. 2002)

(describing the substantial evidence review as requiring “more

than a mere scintilla and less than a preponderance” of evidence)

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

The Commissioner’s factual findings are conclusive to the extent

they are supported by substantial evidence in the record.

Perales, 402 U.S. at 390. In applying the substantial evidence

standard, we examine the record evidence as a whole, but may not

substitute our judgment for the Commissioner’s or re-weigh the

evidence. Perez, 415 F.3d at 461; Masterson, 309 F.3d at 272.

1
Although Ray’s brief confuses the components of his
substantial evidence and legal standard challenges at times, this
opinion addresses the merits of each argument according to the
applicable statutory and regulatory provisions and case law in
this circuit.

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 III. DISCUSSION

A claimant bears the burden of proving that he suffers from

a disability under the Social Security Act (“SSA”). Anthony v.

Sullivan, 954 F.2d 289, 293 (5th Cir. 1992). “Disability” is

defined under the SSA as “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.” 42 U.S.C. § 423(d)(1)(A);

Newton, 209 F.3d at 452. In examining a disability claim, the

Commissioner follows the familiar five-step sequential analysis

to determine whether: (1) the claimant is currently engaged in

substantial gainful activity;5 (2) he has a severe impairment;

(3) the impairment meets or equals the severity of a listed

impairment in Appendix 1 of the regulations; (4) the impairment

prevents the claimant from performing past relevant work in light

of his residual functional capacity;6 and (5) the impairment

prevents him from adjusting to other work in light of his

residual functional capacity. 20 C.F.R. §§ 404.1520, 416.920;

see Loza v. Apfel, 219 F.3d 378, 390 (5th Cir. 2000).

5
“Substantial gainful activity” is work activity that
involves doing significant physical or mental activities for pay
or profit. 20 C.F.R. § 404.1572(a)-(b).
6
The term “residual functional capacity” is defined as the
most an individual can still do after considering the physical
and mental limitations that affect the ability to perform work-
related tasks. 20 C.F.R. § 416.945(a)(1).

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 If the claimant satisfies the first four steps with

sufficient proof, the burden shifts to the Commissioner to

demonstrate that the claimant can perform other substantial work

in the national economy. Masterson, 309 F.3d at 272; see also

Brown v. Apfel, 192 F.3d 492, 498 (5th Cir. 1999) (“This shifting

of the burden of proof to the Commissioner is neither statutory

nor regulatory, but instead, originates from judicial

practices.”). Once the Commissioner proffers evidence that the

claimant can perform other substantial work, the ultimate burden

of proof “returns to the claimant to rebut the Commissioner’s

showing.” Masterson, 309 F.3d at 272. Consistent with the

sequential nature of the analysis, a finding that the claimant is

not disabled at any step is conclusive and ends the inquiry. Id.

Because the parties do not dispute the ALJ’s findings that Ray

satisfied the first four steps of the analysis, we will focus our

attention on the fifth and final step in scrutinizing the merits

of this appeal.

Ray argues that the ALJ’s final decision at the fifth step

of the analysis is not supported by substantial evidence. See

Ripley v. Chater, 67 F.3d 552, 557 (5th Cir. 1995) (reversing

grant of summary judgment and remanding to ALJ to determine the

extent to which new medical evidence demonstrated the claimant’s

inability to perform sedentary work); Randall v. Sullivan, 956

F.2d 105, 109 (5th Cir. 1992) (finding a lack of substantial

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evidence to support a disability determination where the ALJ

relied on an improper medical report). In particular, he asserts

that the ALJ underestimated the severity and extent of his

physical limitations from his back pain and ill-fitting

prosthesis. He also claims that the ALJ ignored altogether that

he has a personality disorder, which he argues impairs his

ability to concentrate and maintain employment. He then rehashes

each of the ALJ’s findings regarding his condition without

providing specific reasons why the ALJ’s findings are not

supported by substantial evidence or why he claims the ALJ failed

to give certain facts sufficient weight.

In response, the government maintains that the ALJ’s

decision was supported by substantial evidence on each of the

above points. The government argues that the ALJ properly

evaluated Ray’s condition and ability to engage in substantial

gainful employment, pointing out that the ALJ cited extensively

the testimony from the expert medical witness, Ray’s treating

physician, and the vocational expert. Moreover, the government

asserts that the ALJ has the duty to weigh the evidence,

determine witness credibility, and resolve conflicts. Johnson v.

Bowen, 864 F.2d 340, 347 (5th Cir. 1988).

The district court, adopting the report and recommendation

of the magistrate judge, found that the ALJ’s decision did in

fact consider the severity of Ray’s physical and psychological

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limitations before reaching its final determination that he was

still capable of performing light and sedentary work. We agree.

Contrary to Ray’s assertions that the ALJ failed to adequately

consider his back pain and stump irritation, there is substantial

evidence in the record showing otherwise. The ALJ’s opinion

appropriately reviewed Ray’s complaints in light of conflicting

medical evidence in the record. See Moon v. Bowen, 810 F.2d 472,

473 (5th Cir. 1987) (finding substantial evidence to support the

ALJ’s denial of disability benefits despite the applicant’s claim

that he was experiencing back pain). For instance, the ALJ

specifically referred to x-rays of Ray’s lumbar and cervical

spine that were within the normal range and revealed only modest

degenerative changes in discounting Ray’s claims of back pain.

See Brown v. Apfel, 192 F.3d 492, 495 (5th Cir. 1999) (finding

substantial evidence to support the ALJ’s determination that the

claimant did not suffer from a disabling back condition where x-

rays revealed “no physiological abnormalities”). Given the

limited scope of our review, we find that the ALJ’s careful

analysis on this score was amply supported by substantial

evidence.

With respect to his psychological condition, the ALJ did in

fact consider and discuss the depressive disorder that impaired

his concentration abilities before concluding at step five of the

analysis that its effects would not significantly limit his

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ability to perform certain kinds of work available in the

national economy. See Sims v. Apfel, 224 F.3d 380, 381 (5th Cir.

2000) (affirming a denial of disability benefits where the record

reflected only “a mild to moderate difficulty with concentration

and attention due to pain, and moderate difficulty functioning

due to depression”). The medical expert examining the records of

Ray’s psychiatric evaluations also concluded that his depressive

disorder was largely related to his substance abuse problems and

that Ray had shown improvement through treatment. Indeed, Ray’s

global assessment of functioning (“GAF”) score of 70 indicates

only mild symptoms or some difficulty in social or occupational

functioning. See Boyd v. Apfel, 239 F.3d 698, 700 n.2 (5th Cir.

2001) (“GAF is a standard measurement of an individual’s overall

functioning level with ‘respect only to psychological, social,

and occupational functioning.’”) (quoting AMERICAN PSYCHIATRIC ASS’N

DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS at 32 (4th ed.

1994)).

Ray argues that another treating psychiatrist (Dr. Crane)

found him to have a GAF of 45, which Ray contends the ALJ

incorrectly disregarded in its opinion. This is simply not the

case. Although the ALJ never expressly mentioned Dr. Crane by

name or the conflicting GAF scores, she did discuss the

outpatient treatment that Ray received from Dr. Crane in her

written opinion. We are mindful that considerable weight must be

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accorded to the opinion of a treating physician; however, the ALJ

may give “less weight, little weight, or even no weight” to the

opinion of a treating physician upon a showing of good cause.

Myers v. Apfel, 238 F.3d 617, 621 (5th Cir. 2001); see also 20

C.F.R. § 404.1527(d)(2) (giving “controlling weight” to a

treating physician’s opinion only if “well-supported by medically

acceptable clinical and laboratory diagnostic techniques and is

not inconsistent with the other substantial evidence” in the

record).

The record indicates that Dr. Crane’s assessment was

considerably less thorough than the one primarily relied upon in

the ALJ’s opinion and was, as well, somewhat internally

inconsistent. Specifically, Dr. Crane’s evaluation does not

include an explanation for the GAF rating provided and

conspicuously failed to check a box on the evaluation form to

report any occupational problems stemming from Ray’s ailments.

See Leggett v. Chater, 67 F.3d 558, 566 (5th Cir. 1995)

(affirming a denial of disability benefits where the ALJ placed

little emphasis on an “isolated, conclusory statement” about the

applicant’s condition that conflicted with the rest of the

evidentiary record); Greenspan, 38 F.3d at 238 (affirming ALJ’s

decision to disregard the opinion of a treating physician that

was “conclusory” and “contradicted by both itself and outside

medical evidence”). Given the limited scope of our review and

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presence of conflicting accounts of Ray’s mental condition in the

record, we find substantial evidence to support the ALJ’s

conclusion. See Sims, 224 F.3d at 381 (affirming ALJ’s denial of

disability benefits for “a person capable of performing light

work who had a mild to moderate difficulty with concentration and

attention due to pain, and moderate difficulty functioning due to

depression”).

As the district court correctly found in adopting the

magistrate judge’s report, the ALJ’s decision bespeaks a careful

analysis of the medical evidence available in the record before

reaching its conclusion to deny disability benefits to Ray.

First, the ALJ noted that Ray’s mental status evaluations

characterized him as having a euthymic mood, stable affect, and

thought processes that were logical, coherent, and goal oriented.

Second, upon his release from inpatient psychiatric treatment for

severe depression and suicidal ideation, Ray’s mental condition

showed marked improvement, including goal-directed speech, intact

insight and judgment, and no further evidence of suicidal or

delusional ideations.7 Third, with respect to his physical

7
These improvements are also consistent with the testimony
of Dr. Felkins at the hearing, who concluded that Ray’s substance
abuse problems were closely associated with his mental condition.
In fact, Ray testified at the hearing that he had successfully
given up his previous addictions to methadone and heroin,
although he admitted that he continued to drink beer and smoke
marijuana on occasion.

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limitations, our review of the record indicates that the ALJ

actually adopted the most conservative assessment of Ray’s

functional limitations. When viewed in this light, Ray’s

arguments that the ALJ failed to adequately consider his

disabling condition certainly lack merit under our substantial

evidence standard of review. Finally, the ALJ’s opinion rightly

and expressly used the live testimony from the medical and

vocational experts to balance the conflicting evidence in the

record. See Masterson, 309 F.3d at 273; see also Vaughan v.

Shalala, 58 F.3d 129, 132 (5th Cir. 1995) (approving of the ALJ’s

use of a vocational expert). Thus, we find that substantial

evidence supports the ALJ’s conclusion that Ray retained the

requisite capacity to perform light and sedentary work activities

despite his depressive disorder.

Finally, Ray argues that the ALJ ignored the requirements of

20 C.F.R. § 416.929 in assessing the extent and impact of the

pain Ray suffered. Specifically, Ray alleges that the ALJ failed

to consider whether his symptoms of pain were consistent with the

objective medical evidence. The government responds that the ALJ

properly evaluated Ray’s subjective claims of pain under the

appropriate legal standards. In particular, the government

argues that the ALJ correctly examined his claims in light of the

countervailing medical testimony. Moreover, the government

maintains that a reviewing court should give deference to the

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ALJ’s credibility determinations. Selders v. Sullivan, 914 F.2d

614, 617 (5th Cir. 1990).

We agree with the government and find no merit in this

aspect of Ray’s appeal. Under 20 C.F.R. § 416.929(a), the ALJ is

directed to “consider all [an individual’s] symptoms, including

pain, and the extent to which [an individual’s] symptoms can

reasonably be accepted as consistent with the objective medical

evidence, and other evidence.” As stated in the magistrate

judge’s report and recommendation to the district court, the ALJ

was “clearly aware” of her need to assess Ray’s pain symptoms and

the extent to which those symptoms were consistent with the

record evidence. Accordingly, the ALJ contrasted Ray’s testimony

that he experienced back pain with the x-ray evidence showing

normal lumbar conditions and only minor degenerative changes in

the cervical vertebrae. See Brown, 192 F.3d at 500 (finding no

abuse of discretion under the relevant regulations where the ALJ

discounted the individual’s pain symptoms because “every

objective medical assessment revealed no physiological basis for

[the individual’s] pain”). Further, the objective medical

evidence in the record demonstrated that Ray could perform a full

range of daily activities, and the ALJ correctly took this into

account in reaching her final determination. Id. Thus, we find

absolutely no merit in Ray’s argument that the ALJ failed to

apply the correct legal standard to assess his subjective claims

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of pain.

IV. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the

district court.

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