United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
June 2, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
__________________________ Clerk
No. 05-30888
Summary Calendar
__________________________
SHARON ROBINSON,
Plaintiff-Appellant,
versus
JO ANNE B. BARNHART,
Defendant-Appellee.
___________________________________________________
Appeal from the United States District Court
for the Western District of Louisiana
(No. 2:04-CV-518)
___________________________________________________
Before BARKSDALE, STEWART, and CLEMENT, Circuit Judges.
*
PER CURIAM:
A social security claimant appeals the district court’s decision to affirm the ALJ’s
finding that she was not entitled to social security benefits. For the following reasons, we
affirm.
I. FACTS AND PROCEEDINGS
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Robinson first filed for disability benefits under Title II and supplemental security
income benefits under Title XVI in December 2000. She alleged her inability to work began
on August 17, 1999. Her claims were initially denied, and she sought review by an
administrative law judge (“ALJ”). After a hearing, the ALJ denied benefits. The ALJ
concluded that, while Robinson suffered from a combination of impairments, her
impairments were not severe. The Appeals Council granted review and remanded the
case. Upon remand, a different ALJ considered the evidence, conducted a hearing, and
decided that although Robinson’s impairments were severe, she was still capable of
engaging in past relevant work. Accordingly, the ALJ denied benefits.
After exhausting her administrative remedies, Robinson’s decision became final,
and she sought review in federal district court under § 205(g) of the Social Security Act,
42 U.S.C. § 405(g). A federal magistrate judge heard her case and made recommendations
to affirm the decision of the Commissioner. The district court adopted those
recommendations and denied relief. Robinson now appeals.
II. STANDARD OF REVIEW
This court reviews a denial of social security benefits “only to ascertain whether (1)
the final decision is supported by substantial evidence and (2) whether the Commissioner
used the proper legal standards to evaluate the evidence.” Newton v. Apfel, 209 F.3d 448,
452 (5th Cir. 2000). A final decision is supported by substantial evidence if we find relevant
evidence sufficient to establish that a reasonable mind could reach the same conclusion
reached by the Commissioner. See id. In our review of the evidence, we do not substitute
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our judgment for the Commisioner’s judgment. See id. If there are conflicts in the evidence,
we accept the Commissioner’s resolution of those conflicts so long as that resolution is
supported by substantial evidence. See id.
III. DISCUSSION
The Commissioner uses a sequential five-step inquiry to evaluate disability claims
under 42 U.S.C. § 423(d)(1)(A). Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005); 20
C.F.R. § 404.1520(a)(4). In step four of the inquiry, the Commissioner considers whether
the impairment prevents the claimant from doing past relevant work. 20 C.F.R. §
404.1520(a)(4)(iv). The ALJ found that Robinson was not disabled because her impairments
did not prevent her from performing her past relevant work.
Robinson raises three issues on appeal. First, she argues that the ALJ erred in
finding that she could perform past relevant work because the ALJ did not resolve
conflicting medical evidence and because there is no substantial evidence supporting the
finding. Second, Robinson argues that the ALJ failed to properly evaluate her mental
impairments such as her cognitive, depressive, and pain impairments in the aggregate.
Finally, she argues that the ALJ failed to properly evaluate and consider Robinson’s
obesity.
A. Robinson’s past relevant work
The ALJ concluded that Robinson had the residual functioning capacity (“RFC”) to
perform past relevant work as a medical receptionist. In concluding that Robinson had a
RFC sufficient to allow her to perform past relevant work, the ALJ found that Robinson
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“can occasionally kneel, crouch, climb, balance, crawl, stoop and reach in all directions
(including overhead).” Robinson argues that in reaching this conclusion the ALJ did not
give proper weight to the findings of Dr. Po, who was one of her examining doctors. Dr.
Po determined that she should not stoop, crawl, balance, or climb. Therefore, she
concludes that the ALJ failed to properly resolve the evidentiary conflict on Robinson’s
ability to stoop. Robinson argues that, under the Social Security Administration policy in
SSR 96-6p, “[ALJs] . . . may not ignore [the opinions of physicians designated by the
Commissioner] and must explain the weight given to these opinions in their decisions.”
Because conflicts in evidence are to be resolved by the ALJ, and not the courts, Robinson
argues that we should reverse the ALJ’s determination.
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Robinson, however, raises the SSR 96-6p issue for the first time on appeal. An
argument not raised before the district court is waived unless there are “exceptional
circumstances” and addressing the issue is in the “interests of justice.” Castillo v. Barnhart,
325 F.3d 550, 553 (5th Cir. 2003) (internal quotations omitted). See also Kinash v. Callahan,
129 F.3d 736, 739 n.10 (5th Cir. 1997). Robinson had ample opportunity to raise this issue
below but did not. Nor has she has demonstrated exceptional circumstances. Accordingly,
her argument that the ALJ did not follow SSR 96-6p is waived.
Aside from her SSR 96-6p argument, Robinson argues there was not substantial
evidence from which the ALJ could conclude that she maintains the RFC to perform past
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Robinson’s arguments to the district court for reversing the ALJ were that (1) there
was no substantial evidence for the ALJ’s finding regarding RFC and (2) the ALJ failed to
evaluate Robinson’s mental impairments in the aggregate.
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relevant work. However, the record plainly reveals evidence sufficient to establish that
a reasonable mind could reach the same conclusion as the Commissioner. As noted by the
district court, even Dr. Po’s findings indicated that Robinson could crouch, which is an
activity similar to stooping, but even more strenuous. See SSR 85-15 (noting that stooping
requires “bend[ing] the spine alone” and crouching requires “bend[ing] both the spine and
legs”). As the district court also noted, the record shows that Robinson engaged in certain
tasks that involved stooping. For instance, Robinson stated that she picked up things from
the floor and straightened her bedroom. Moreover, two physicians, Drs. Perry and Ruiz,
also indicated in their evaluations of Robinson that she is not limited in occasional
stooping, kneeling, crouching, and crawling.
We hold that substantial evidence supports the Commissioner’s determination that
Robinson had sufficient RFC to perform past relevant work and that the proper legal
standard was applied.
B. Evaluation of the mental impairments in the aggregate
More than a year before her alleged disability onset, Robinson underwent
psychological testing conducted by a clinical psychologist. In the psychologist’s opinion,
Robinson suffered from a mild traumatic brain injury and depression and required
additional testing. Robinson argues that the ALJ erred in not fully developing the record
regarding Robinson’s alleged mental impairments by failing to order more psychological
testing at the behest of the examining psychologist. In addition, Robinson argues the ALJ
erred in not applying the “slight abnormality” standard to Robinson’s mental
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impairments. For the following reasons, we disagree.
This court will hold that the ALJ’s decision is not supported by substantial evidence
if the claimant demonstrates “(1) that the ALJ failed to fulfill his duty to adequately
develop the record, and (2) that the claimant was prejudiced thereby.” Brock v. Chater, 84
F.3d 726, 728 (5th Cir. 1996) (citing Kane v. Heckler, 731 F.2d 1216, 1220 (5th Cir. 1984)).
But ordering a consultive evaluation is only required “when the claimant presents
evidence sufficient to raise a suspicion concerning a non-exertional impairment.” Id. Plus,
the decision to order a consultive evaluation is within the discretion of the ALJ. Anderson
v. Sullivan, 887 F.3d 630, 634 (5th Cir. 1989). Here, the ALJ’s decision not to order a
consultive evaluation was not required and was properly within the ALJ’s discretion
because the claimant neither requested a consultive evaulation nor listed a mental
impairment in her request for benefits. See Leggett v. Chater, 67 F.3d 558, 566 (5th Cir.
1995) (holding that the ALJ’s duty to investigate does not extend to possible disabilities not
claimed or not clearly apparent from the record); Pierre v. Sullivan, 884 F.2d 799, 803 (5th
Cir. 1989) (per curiam) (same). Moreover, the psychologist’s recommendation for more
testing came more than a year prior to Robinson’s alleged onset of disability.
The court also finds no merit in Robinson’s argument that the ALJ erred in failing
to apply the “slight abnormality” standard. In Stone v. Heckler, this circuit interpreted the
term “severe” found in 20 C.F.R. § 404.1520(c) and determined that an impairment is
“considered not severe only if it is a slight abnormality” that has such a “minimal effect
on the individual that it would not be expected to interfere with an individual’s ability to
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work.” 752 F.2d 1099, 1101 (5th Cir. 1985). See also Loza v. Apfel, 219 F.3d 378, 390–91 (5th
Cir. 2000). While the “slight abnormality” standard is used by an ALJ to determine
whether an impairment is severe, that standard is not applied after the ALJ finds the
impairment to be severe. Harrell v. Bowen, 862 F.2d 471, 481 (5th Cir. 1988) (distinguishing
between severe and disabling impairments); Chapparo v. Bowen, 815 F.2d 1008, 1011 (5th
Cir. 1987) (same).
The ALJ found that Robinson’s impairments were severe, but that she could still
engage in past relevant work. Robinson does not challenge the finding that the mental
impairments did not prevent her from engaging in gainful employment. Accordingly, we
reject Robinson’s argument that the ALJ erred by not applying the “slight abnormality”
test.
C. Robinson’s obesity
Robinson notes that the ALJ did not identify, mention, or discuss obesity as an
impairment or a risk factor. This argument could have been made before the district court
but is raised for the first time on appeal. Accordingly, this claim is waived and will not be
heard on appeal as Robinson has not presented extraordinary circumstances that justify
doing so. Castillo, 325 F.3d at 553; Kinash, 129 F.3d at 739 n.10.
IV. CONCLUSION
The order of the district court is AFFIRMED.
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