United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT February 15, 2007
Charles R. Fulbruge III
Clerk
No. 06-30909
Summary Calendar
WILLIAM HENRY CANTRELL,
Plaintiff-Appellant,
versus
LINDA S MCMAHON, ACTING COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Louisiana
(5:05-CV-868)
Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
William Henry Cantrell challenges the Commissioner of the
Social Security Administration’s final decision denying his claim
for disability benefits, which was affirmed by the district court.
Cantrell claims: in finding he was not disabled, the
Administrative Law Judge (ALJ) improperly defined “moderate” in
relation to mental limitations; and the Appeals Council failed to
consider evidence he submitted that was allegedly new and material
and would provide a basis for changing the decision of the ALJ.
*
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this opinion should not be published and is not precedent except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.
As an applicant for disability benefits, Cantrell bore the
initial burden of proving he was disabled by establishing a
physical or mental impairment prevented him from engaging in
substantial gainful activity for at least 12 months. 42 U.S.C. §
423. Once he satisfied this burden, the Secretary bore the burden
of establishing he did not have any impairments significantly
limiting his physical or mental ability to do work activities, and
therefore was not disabled. See 20 C.F.R. §§ 404.1520(c) and
416.920(c); Johnson v. Bowen, 864 F.2d 340, 344 (5th Cir. 1988).
The ALJ found Cantrell had the residual functional capacity
(RFC) for a full range of medium work, with, inter alia, “moderate”
limitations in his ability to maintain attention and concentration
for extended periods, to interact with the general public, and to
accept instructions and respond appropriately to supervisors. This
determination was based in part on the reports from a state
consultant’s assessment of Cantrell’s ability to work. A
vocational expert testified that an individual with Cantrell’s RFC
could not perform his past work as a sales agent but could perform
his past work as a gambling dealer. The ALJ defined “moderate”,
both in his decision and in the interrogatories directed to the
vocational expert, as meaning “there are some moderate limitations,
but the person can still perform the task satisfactorily”.
After the ALJ issued his decision finding him not disabled,
Cantrell submitted additional evidence to the Appeals Council
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regarding treatment he received for two medical conditions. (The
evidence had apparently been inadvertently left out of the
administrative transcript. Accordingly, the Agency filed a
supplemental transcript.) The Appeals Council reviews a case if,
inter alia, it receives new and material evidence and the decision
is contrary to the weight of all the evidence in the record. 20
C.F.R. § 404.970(b). The Appeals Council denied Cantrell’s request
for review in a written order.
Pursuant to 42 U.S.C. § 405(g), our court reviews whether
substantial record evidence supports the Commissioner’s final
decision and whether, in reaching it, the Commissioner applied
proper legal standards. Perez v. Barnhart, 415 F.3d 457, 461 (5th
Cir. 2005). Substantial evidence is more than a mere scintilla,
less than a preponderance, and “‘such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion’”.
Id. (quoting Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir.
1994)).
Cantrell claims that, because “moderate” falls between “mild”
and “marked”, which are defined in the regulations, it should
indicate a greater degree of limitation than that in the ALJ’s
definition. Although the term “moderate” is not defined in the
regulations or the Program Operations Manual System, Cantrell does
not show the definition used by the ALJ conflicts with either.
“Marked” is defined as “more than moderate but less than extreme”.
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20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00(c). Accordingly,
“moderate” is less severe and was not used in a manner inconsistent
with the regulations. Moreover, there is substantial evidence the
vocational expert understood the degree of limitation at issue in
assessing what level of work a person with Cantrell’s RFC could
perform.
The record also contains substantial evidence the Appeals
Council considered all of the evidence, including the post-decision
supplemental records submitted by Cantrell, in denying his request
for review. In its order, the Appeals Council specifically stated
it had considered the additional evidence and found it did not
warrant changing the ALJ’s disability decision. Furthermore, the
final no-disability decision is supported by substantial evidence:
Cantrell has not shown no credible choices or medical evidence
support the decision. See Hames v. Heckler, 707 F.2d 162, 164 (5th
Cir. 1983) (“‘[N]o substantial evidence’ will be found only where
there is a ‘conspicuous absence of credible choices’ or ‘no
contrary medical evidence’”. (citations omitted)).
AFFIRMED
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