United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
December 20, 2006
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
06-50420
Summary Calendar
JOETTA WILSON,
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. 1:05-CV-23
Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Joetta Wilson, a social security claimant, appeals the
district court’s decision to affirm the administrative law judge’s
finding that she was not under a disability. We affirm.
I. BACKGROUND
In 2001, Wilson filed an application for supplemental security
income (SSI) under Title XVI of the Social Security Act, 42 U.S.C.
*
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this opinion should not be published and is not precedent except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.
§ 401, et seq., alleging that her inability to work began on
October 1, 2001. The Commissioner found that Wilson was not
disabled. After the Commissioner denied her request for
reconsideration, Wilson requested a hearing before an
administrative law judge (ALJ).
After a hearing, the ALJ found that Wilson had not engaged in
substantial gainful activity since the alleged onset of disability.
The ALJ concluded that Wilson’s conditions, including diabetes and
moderate degenerative joint disease, did not “meet or medically
equal one of the listed impairments” in the regulations. The ALJ
found that Wilson had the residual functional capacity to perform
a significant range of light work. The ALJ therefore found that
Wilson was not disabled and denied the disability benefits.
After exhausting her administrative remedies, Wilson sought
review in federal district court under § 205(g) of the Social
Security Act, 42 U.S.C. § 405(g). A magistrate judge recommended
affirming the Commissioner’s decision, and the district court
accepted the recommendation and entered judgment accordingly.
Wilson appeals.
II. STANDARD OF REVIEW
We review 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,
2
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 our judgment for the Commissioner’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. ANALYSIS
Wilson argues that substantial evidence does not support the
ALJ’s decision finding that she was not disabled as defined in the
Social Security Act. The ALJ uses a sequential five-step inquiry
to evaluate disability claims:
(1) whether the claimant is currently engaged in
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.
Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005).
More specifically, Wilson contends that substantial evidence
does not support the finding made pursuant to step five—that she
had the residual functional capacity to perform the work of a
ticket taker, an office helper and a cashier II. She argues that
the ALJ erred in ignoring the “serious issue of the literacy level
3
and cognitive functioning of Ms. Wilson based on her ability to
complete the questions sent to her.” Wilson did not allege a
mental impairment in her application for disability or at the
hearing. Even assuming arguendo Wilson’s responses to the
questionnaire somehow demonstrated a limitation in Wilson’s
cognitive functioning, Wilson has not shown how the alleged
limitation affects her ability to perform the particular jobs the
ALJ found she could perform. See id. at 464.
Wilson next contends that the ALJ erred by ignoring evidence
that she suffered from depression. Wilson did not assert that she
was depressed in her application or at the hearing.1 The only
evidence of depression she cites is one page out of the hundreds of
pages of medical records in which her physician indicates “possible
depression.” Under these circumstances, the ALJ did not err in
failing to consider a possible mental impairment. Cf. Domingue v.
Barnhart, 388 F.3d 462, 463 (5th Cir. 2004) (finding no error when
claimant did not raise depression as an impairment at the
administrative level and on appeal “pointed to no evidence
indicating that her alleged depression affected her ability to
work”).
Wilson also argues that the ALJ’s conclusion that she could
perform a significant range of light work is not consistent with
1
Subsequent to the hearing, Wilson’s attorney did suggest a
psychological evaluation to exclude malingering or a somatoform
disorder. However, there was no allegation of depression.
4
the medical evidence. Wilson further contends that the ALJ did not
address these conditions. Contrary to Wilson’s assertions, the ALJ
expressly considered her conditions. For example, the ALJ
explained that “[d]espite her complaints of disability due to
diabetes mellitus, hypertension, and pain in her arm and leg, the
medical evidence demonstrates that with proper treatment,
medication compliance, and adherence to the physicians’
instructions, the claimant’s conditions improved.” The ALJ then
cited examples gleaned from Wilson’s medical records. The ALJ
thoroughly discussed Wilson’s medical history, including the
opinions of Dr. Tran, Dr. Ramos, Dr. Buck, and Dr. Welch.
Ultimately, the ALJ concluded that although Wilson’s conditions
“could be expected to cause some limitations, the claimant’s
allegations of disabling conditions are out of proportion to the
record as a whole and cannot be given great evidential weight.”
There is substantial evidence to support this determination, and we
thus affirm it.
Wilson further argues that the ALJ failed to properly evaluate
her credibility. We disagree. The ALJ adequately considered
Wilson’s symptoms and claimed limitations, and properly analyzed
the findings in light of her allegations and the medical evidence.
Wilson also argues that the ALJ erred in failing to make a
specific affirmative finding that she had the ability to work on a
sustained basis. An ALJ is not required to make “an explicit
finding in every case that the claimant cannot only engage in
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substantial gainful activity but maintain that employment as well.”
Dunbar v. Barnhart, 330 F.3d 670, 672 (5th Cir. 2003).2 Here, the
record demonstrates that the ALJ took into consideration whether
Wilson could maintain employment in determining residual functional
capacity. The ALJ specifically questioned the vocational expert
regarding the maximum amount of absenteeism an employer would
tolerate “or they’re not going to be able to maintain it.” Wilson
has failed to provide evidence that required the ALJ to make a
separate finding regarding her ability to maintain employment. See
Frank v. Barnhart, 326 F.3d 618, 619-20 (5th Cir. 2003).
In sum, Wilson has failed to demonstrate either that improper
standards were used to evaluate the evidence or that the final
decision was not supported by substantial evidence. The district
court’s judgment is AFFIRMED.
2
As in Dunbar, the ALJ found in the instant case, after
hearing the testimony of a vocational expert, that the claimant
“was capable of making a successful adjustment to work that exists
in significant numbers in the national economy.”
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