United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT October 27, 2006
Charles R. Fulbruge III
No. 06-50421 Clerk
Summary Calendar
CHARLIE M. BECK,
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 Texas
(04-CV-148)
_________________________________________________________________
Before JONES, Chief Judge, and KING and DAVIS, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Charlie M. Beck appeals the district
court judgment affirming the administrative law judge’s (“ALJ”)
determination that she is not entitled to Supplemental Security
Income (“SSI”) disability benefits under Title XVI of the Social
Security Act.
Beck alleges several grounds for reversal by this court,
*
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this opinion should not be published and is not precedent except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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namely, that the ALJ (1) failed to apply the proper legal standard
in evaluating the cumulative impact of her impairments;
(2) improperly discounted the aggravating effect of obesity on her
other impairments; (3) improperly evaluated the subjective symptoms
of impairment presented at the hearing; and (4) failed to conform
his residual functional capacity (“RFC”) determination to the legal
standard required by this court or support it with substantial
evidence from the record. Finally, Beck alleges that the Appeals
Council erred in rejecting her request for remand and
reconsideration by the ALJ. We address each of her claims in turn.
I. FACTUAL AND PROCEDURAL BACKGROUND
Claimant Charlie M. Beck was 54-years old at the time of
the administrative law hearing and has an eleventh-grade education.
She has not been employed since at least 1985, but worked
sporadically as a babysitter for her daughter’s children until the
onset of her physical ailments.
On March 15, 2002, Beck protectively filed her second
application for SSI under Title XVI of the Social Security Act,
alleging that she was unable to engage in substantial gainful
activity due to high blood pressure, osteoporosis and rheumatoid
arthritis. Her application is composed substantially of medical
records from the Medical Center Hospital in Odessa, Texas, where
Beck has sought various out-patient medical treatment since July
1999.
2
In March 2002, Beck underwent knee and lumbar spine x-
rays in response to complaints of fatigue and back pain. The
doctor’s report noted “moderate changes of degenerative disc
disease at L3-4 with no evidence of fracture or spondylolisthesis”
and arrived at a conclusion of “no acute findings.”
Two months later, on May 23, Beck requested an internal
medicine consultative examination for purposes of obtaining an SSI
disability determination. In his post-examination report,
Dr. Madhu Pamganamamula recorded that Beck complained of frequent
joint pain in both hips, numbness in her lower extremities,
dyspnea, and intermittent chest pain. Dr. Pamganamamula noted that
Beck had a normal gait and no difficulty walking or performing
everyday tasks, although she did require periodic rest breaks when
shopping or attending church. Dr. Pamganamamula concluded that
Beck’s hypertension was adequately controlled by medication and
that she displayed only “mild functional impairment secondary to
her medical conditions.”
The Social Security Administration’s Disability
Determination Services (“DDS”) then conducted an RFC evaluation.
Dr. Barnes, the reviewing physician, found that Beck was capable of
occasional lifting/carrying of 50 pounds, frequent lifting/carrying
of 25 pounds, and that she could stand or walk (with normal breaks)
for about 6 hours in an 8-hour workday. He noted no
manipulative/motor problems, and no visual or communicative
difficulty, concluding that the physical impairments alleged by
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Beck were “not fully supported” by his observations. Both the
opinions of Drs. Pamganamamula and Barnes were included in Beck’s
SSI application.
The Social Security Administration initially denied
Beck’s application on June 17, 2002. Her petition for
reconsideration was denied on September 13, 2002. Beck then timely
requested a hearing for de novo review of her application before an
ALJ, held on February 12, 2003. Beck, represented by counsel,
testified at the hearing.
The ALJ issued an unfavorable decision on April 7, 2003,
finding that Beck retained sufficient residual functional capacity
and relevant vocational characteristics required for performance of
medium work activity and was therefore not disabled, as defined in
the Social Security Act, at any time through the date of the
administrative law hearing. The ALJ further concluded: that Beck
had no relevant past employment history or skills; that although
Beck’s subjective complaints of pain were related to medically
determinable physical impairments, Beck’s testimony regarding her
subjective complaints and functional limitations was not credible
or reasonably supported by objective medical evidence; and that
medical evidence produced by Beck established the existence of
severe impairments including hypertension, osteoarthritis, GE
reflux, and obesity, but that no single impairment or combination
thereof was sufficiently severe to qualify her for SSI.
Undeterred by the ALJ’s ruling, Beck requested review by
4
the Appeals Council and accompanied her application to that body
with an x-ray of her left knee and a bilateral lower extremity
Doppler study, both of which were performed within two months after
the ALJ’s unfavorable ruling. The knee x-ray report showed no
bone, joint or soft tissue abnormalities and presented no evidence
of fracture or dislocation. The Doppler study showed that Beck
suffered from peripheral vascular disease characterized by
significant stenosis in the right common femoral artery. On
September 10, 2004, after considering Beck’s entire record,
including the two new medical reports, the Appeals Council denied
Beck’s SSI application, thus rendering the ALJ’s April 7, 2003,
ruling the final administrative determination of the Commissioner
of Social Security.
Beck then sought judicial review of the Commissioner’s
decision in the district court. On January 25, 2006, after de novo
review, the district court, the Hon. Robert Junell, United States
District Judge for the Western District of Texas, issued a Final
Judgment and Order adopting the magistrate judge’s report and
recommendation to affirm the commissioner’s decision and dismissed
Beck’s complaint with prejudice. Beck now appeals the district
court judgment.
II. DISCUSSION
The SSI administrative review process includes an initial
determination of eligibility, reconsideration, a hearing before an
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ALJ, and review by the Appeals Council, 20 C.F.R. § 416.1400(a)(1)-
(4), whereupon a still-unsatisfied claimant may seek review by the
district court, and, ultimately, this court. Id. § 416.1400(a)(5).
1. Standard of Review
On appeal before this court, the ALJ’s determination that
an SSI claimant is not disabled will be upheld if it is based upon
substantial evidence from the record as a whole and if proper legal
standards were applied in consideration of the evidence. See
42 U.S.C. § 405(g); Higginbotham v. Barnhart, 405 F.3d 332, 335
(5th Cir. 2005); Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir.
1990). Substantial evidence requires more than a scintilla, but
less than a preponderance, and is such relevant evidence that a
“responsible mind might accept as adequate to support a
conclusion.” Watson v. Barnhart, 288 F.3d 212, 215 (5th Cir. 2002)
(citing Villa, 895 F.2d at 1021-22). Substantial evidence will be
lacking “only where there is a ‘conspicuous absence of credible
choices’ or ‘no contrary medical evidence.’” Haywood v. Sullivan,
888 F.2d 1463, 1467 (5th Cir. 1989)(citing Hames v. Heckler,
707 F.2d 162, 164 (5th Cir. 1983)(per curiam)). This court will
not reweigh the evidence de novo or substitute its judgment for
that of the Commissioner, Fraga v. Bowen, 810 F.2d 1296, 1302 (5th
Cir. 1987), even if we believe the evidence weights against the
Commisioner’s decision, Masterson v. Barnhart, 309 F.3d 267, 272
(5th Cir. 2002).
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2. Combined Impact of Impairments
Beck alleges that the ALJ did not properly evaluate the
combined impact of her impairments and as a result underestimated
the severity of her disability. We have held on numerous occasions
that in making a disability determination, the examining ALJ must
analyze the disabling effect of both the claimant’s ailments
individually and for their cumulative impact. See, e.g., Loza v.
Apfel, 219 F.3d 378, 399 (5th Cir. 2000); Crowley v. Apfel,
197 F.3d 194, 197 (5th Cir. 1999); Fraga, 810 F.2d at 1305; see
also 20 C.F.R. §§ 404.1523, 416.923. Additionally, a finding of
nonseverity based upon the failure to examine the cumulative impact
of a claimant’s alleged impairments is per se not supported by
substantial evidence. Wingo v. Bowen, 852 F.2d 827, 830-31 (5th
Cir. 1988); Loza, 219 F.3d at 394.
The ALJ’s findings in this case adequately adhere to the
analytical mandates outlined above. In performing his cumulative
impact analysis, the ALJ relied on Beck’s own testimony, the
reports of her treating physicians, and the DDS examiner to
conclude that she suffered from severe impairments. The ALJ then
determined that the cumulative impact of Beck’s impairments did not
combine to limit her functional capacity and she therefore did not
satisfy the requirements for SSI eligibility. See Listing of
Impairments at 20 C.F.R. Part 404, Subpart P, Appendix 1. The
ALJ’s analysis is supported by substantial evidence and satisfies
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the proper legal standard required under our cumulative impact
jurisprudence.2
3. Consideration of Obesity in the Evaluation Process
As a corollary to her cumulative impact argument, Beck
posits that the ALJ failed to consider that obesity has a
multiplier effect whereby it can exacerbate existing ailments and
magnify their cumulative impact. In so doing, Beck contends, the
ALJ rendered a decision unsupported by substantial evidence and
based on an erroneous legal standard. This contention is without
merit.
Social Security rulings indicate that obesity – although
itself not a listed impairment – can reduce an individual’s
occupational base for work activity in combination with other
ailments. See SSR 02-1p (stating that obesity remains a
complicating factor for many ailments and is a “medically
determinable impairment” to be considered in assessing an
individual’s RFC); SSR 96-8p (stating that the effects of obesity
may be considered as part of an RFC’s function-by-function
2
Beck’s attempt to analogize the ALJ’s findings in this case
with those of the ALJ in Scott v. Heckler, 770 F.2d 482 (5th Cir.
1985), is not on point. In Scott, we determined that an ALJ’s
conclusory “evaluation of the evidence” without consideration of
the combined impact of a claimant’s impairments incorrectly
applied the legal standard for cumulative impact required by this
court. 770 F.2d at 487. Here, however, the ALJ’s inquiry is
squarely in line with the requirement that an ALJ “consider the
combination of unrelated impairments ‘to see if together they are
severe enough to keep the claimant from doing substantial gainful
activity.’” Id. (citing Dorsey v. Heckler, 702 F.2d 597, 605
(5th Cir. 1983)).
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analysis); 64 F.R. 46122 (retracting obesity as a listed impairment
under 20 C.F.R., Subpart P, Appendix 1).
In spite of Beck’s failure to specifically allege obesity
as a disability justifying award of SSI – her application states
that the only illnesses limiting her ability to work are “high
blood pressure, osteoporosis, and rheumatoid arthritis” – the ALJ
independently acknowledged that obesity should be considered in
conjunction with her other impairments.3 In accord with applicable
Social Security rulings, the ALJ considered Beck’s obesity in
combination with her other impairments in making his RFC
determination, and discussed her ability to perform sustained work
activities. See SSR 02-1p & 96-8p. There is no support for Beck’s
contention that the ALJ’s decision was not characterized by
substantial record evidence.
Nor is there any basis for the allegation that the ALJ
applied an erroneous legal standard in his appraisal of the effect
of obesity on Beck’s combined impairments. Beck’s contention to
the contrary, citing our decision in Moore v. Sullivan, 895 F.2d
1065 (5th Cir. 1990), is unpersuasive on this account. In Moore,
an ALJ incorrectly rejected an application for SSI benefits based
on the conclusion that the claimant’s mental disorder did not
3
The ALJ stated in his second finding that “[t]he medical
evidence establishes that claimant has severe impairments,
including hypertension; osteoarthritis; GE reflux: and obesity
(approximate body mass index: 36), but she does not have an
impairment or combination of impairments that are listed in, or
that equal in severity an impairment found in the Listing....”
9
prevent her from gainful employment for a minimum of twelve months
prior to her eligibility. The legal standard applied by the ALJ
was in direct contradiction to this court’s decision in Singletary
v. Bowen, 798 F.2d 818 (5th Cir. 1986), which held that the only
durational requirement contained in the relevant statute was that
the impairment last or be expected to last for twelve months.
Here, in stark contrast to the ALJ’s obvious disregard of
applicable law in Moore, there is no indication that the ALJ has
misapplied the applicable legal standards in holistically
evaluating Beck’s impairments in conjunction with her obesity, or
that he ignored the possibility that obesity aggravates some of
Beck’s unquestionably serious physical conditions.
4. Evaluation of Subjective Symptomology
Beck next contends that the ALJ failed to make adequate
credibility findings regarding her subjective symptomology,
specifically, her complaints of arthritic joint pain, as required
under SSR 96-7P, SSR 96-8P and 20 C.F.R. § 416.929, and that his
credibility determination is supported neither by substantial
evidence nor applies the proper legal standard to the evidence of
record.
Once a medical impairment is established, an ALJ “must
consider subjective evidence of nonexertional ailments, such as
pain, which may have a disabling effect.” James v. Bowen, 793 F.2d
702, 706 (5th Cir. 1986). Pain constitutes a disabling condition,
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however, only when “it is constant, unremitting, and wholly
unresponsive to therapeutic treatment.” Cook v. Heckler, 750 F.2d
391, 395 (5th Cir. 1985).
The standard for evaluation of subjective symptoms such
as pain is found at 20 C.F.R. § 416.929 and is explained further in
SSR 96-7p. In summary, even if a claimant’s subjective symptoms
are not fully justified by objective medical evidence, the ALJ
cannot disregard them but must make a credibility finding based on
the entire record. See, 20 C.F.R. § 416.929 (outlining the
evaluation calculus for determining and measuring the credibility
of a claimant’s subjective symptomology and symptom-derived
functional limitations); SSR 96-7p (requiring case adjudicator to
make specific findings of credibility based on the case record).
There is no basis for Beck’s claim that the ALJ’s
determination lacked substantial evidentiary support. Beck’s
examining physicians detailed the impact of her impairments on her
mobility and ability to function normally. According to the ALJ,
her testimony at the administrative hearing conflicted
significantly with these diagnoses. It is the role of the ALJ, not
this court, to resolve such evidentiary conflicts. Patton v.
Schweiker, 697 F.2d 590, 592 (5th Cir. 1983); James, 793 F.2d at
706 (stating that an ALJ’s findings regarding the credibility of
subjective symptom testimony is “entitled to considerable judicial
deference.”). Quite simply, the ALJ evaluated the testimony and
concluded that Beck’s “subjective complaints are exaggerated.”
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This determination was based on reference to her own internally
inconsistent testimony and medical reports detailing her condition.
Using the available medical evidence, the ALJ determined
that Beck’s physical pain was not of a disabling nature. In so
doing, the ALJ in no way failed to make the necessary credibility
choices and indicate the basis for those choices in resolving the
crucial subsidiary fact of the truthfulness of Beck’s subjective
symptoms and complaints. See Hayes v. Celebrezze, 311 F.2d 648,
653-54 (5th Cir. 1963). Accordingly, we do not disturb the
credibility determination of the ALJ.
5. The ALJ’s Residual Functional Capacity Determination
Beck further challenges the ALJ’s residual functional
capacity (“RFC”) determination that she retains the exertional
capacity for performance of the full range of medium work,4
alleging that it is not based upon substantial evidence and does
not apply the proper legal standards required by this court’s
decision in Myers v. Apfel, 238 F.3d 617, 620-621 (5th Cir. 2001),
20 C.F.R. § 416.967 and SSR 96-8p.
4
20 C.F.R. § 416.967(c) provides that “[m]edium work
involves lifting no more than 50 pounds at a time with frequent
lifting or carrying of objects weighing up to 25 pounds. If
someone can do medium work, we determine that he or she can also
do sedentary and light work.” Myers contains largely the same
definition, with interpolations from SSR 96-8p and describes the
various functions required for normal work activities, including
exertional factors like “sitting, standing, walking, lifting,
carrying, pushing, and pulling. Each function must be considered
separately.” 238 F.3d at 620. SSR 96-8p provides in-depth
guidelines describing the various exertional and nonexertional
factors which should figure in the ALJ’s determination.
12
In Myers, we held that when making an RFC determination
for an SSI claimant, an ALJ must perform a function-by-function
assessment of a claimant’s capacity to perform sustained work-
related physical and mental activities. 238 F.3d at 620-22. Beck
argues that the absence of a function-by-function analysis in the
ALJ’s decision mandates reversal and remand.
The ALJ’s RFC determination here was supported by
substantial evidence and satisfies the standards announced in
Myers. The ALJ based his decision in part on the medical reports
of Drs. Pamganamamula and Barnes, which contain a general
evaluation of Beck’s mobility and a function-by-function analysis
of the impact of her impairments on her ability to perform various
tasks.5 These reports, cited in conjunction with the ALJ’s own
appraisal of Beck’s testimony and review of the record, are
supported by substantial evidence and satisfy the Myers standard.
See Onishea v. Barnhart, 116 F.App’x 1, 2 (5th Cir. 2004)
(unpublished)(stating that an RFC assessment based in part on the
function-by-function analysis of claimant’s exertional limitations
contained in a state examiner’s medical report satisfies the legal
standard set forth in Myers and SSR 96-8p).
6. Submission of Additional Evidence to Appeals Council
Finally, Beck contends that the additional evidence she
5
The RFC assessment performed by Dr. Barnes specifically
analyzes each separate exertional limitation according to the
categories listed in SSR 98-6p and 20 C.F.R. § 416.967.
13
provided to the Appeals Council was new and material, requiring
that body to refer the decision back to the ALJ for
reconsideration. The Appeals Council disagreed with this
contention and so do we. We have expressly declined to adopt
Beck’s position – the same one espoused by the 11th Circuit’s
ruling in Falge v. Apfel, 150 F.3d 1320, 1323 (11th Cir. 1998) –
that the substantial evidence standard does not apply to evidence
submitted to the Appeals Council and rejected by it as neither new
nor material.6 Higginbotham v. Barnhart, 405 F.3d 332 (5th Cir.
2005) (rejecting the position adopted by the 11th Circuit in
Falge). Accordingly, we agree with the Appeals Council and the
District Court and find that the evidence submitted to the Appeals
6
Beck contends that the test to be applied to evidence
submitted to the Appeals Council after the ruling of an ALJ is
the one announced in Falge, which states that in order to obtain
remand a claimant must establish new, noncumulative evidence;
prove that such evidence is material, i.e., relevant and
probative so that a reasonable probability exists that it would
change the administrative results; and provide good cause for
failure to submit the evidence at the administrative level. 150
F.3d at 1323; see Keeton v. Dep’t of Health & Human Svcs., 21
F.3d 1064, 1068 (11th Cir. 1994). This court rejected this view
in Higginbotham and continue to adhere to that case’s holding
that after-submitted evidence considered by the Appeals Council
constitutes part of the record upon which the final decision on
eligibility is based, and that all record evidence, irrespective
of its submission date, is subject to district court review.
Higginbotham, 405 F.3d at 337. We find no occasion to hold that
the district court should apply a different evidentiary standard
to only certain portions of the Commissioner’s final judgment.
To do so would be an invitation to attorneys to “hold back some
of their evidence in hopes of seeking reconsideration if
proceedings are not initially successful for the clients” under
the more stringent substantial-evidence standard. Higginbotham
v. Barnhart, 163 F.App’x 279, 282 (5th Cir. 2006).
14
Council was not material and did not provide a basis for reversal,
and that the ALJ’s decision was based upon substantial evidence
from the record as a whole.
III. CONCLUSION
In light of the foregoing analysis of Plaintiff-
Appellant’s claims, we hereby AFFIRM the judgment of the district
court.
AFFIRMED.
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