Zimmerman v. Astrue

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
August 13, 2008

No. 07-20766 Charles R. Fulbruge III
Summary Calendar Clerk

ERNEST S ZIMMERMAN

Plaintiff-Appellant
v.

MICHAEL J ASTRUE, COMMISSIONER OF SOCIAL SECURITY
ADMINISTRATION

Defendant-Appellee

Appeal from the United States District Court
for the Southern District of Texas
USDC No. H-07-00345

Before JOLLY, DENNIS, and PRADO, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Ernest Zimmerman (“Zimmerman”) appeals from the
district court’s approval of the decision of an administrative law judge (“ALJ”)
that he is not disabled within the meaning of the Social Security Act. We
AFFIRM.

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
 No. 07-20766

I. FACTUAL AND PROCEDURAL BACKGROUND
Zimmerman asserts that he became disabled and unable to work in
December 2003 due to chronic pain, obesity, and depression. He applied for
disability insurance benefits and supplemental security income payments under
Titles II and XVI of the Social Security Act, 42 U.S.C. §§ 423, 1382 (“the Act”).
After the Social Security Administration denied his claim, Zimmerman obtained
a hearing before an ALJ. At the hearing, evidence showed that Zimmerman’s
weight was between 370 and 500 pounds; he had chronic back and joint pain
related to his obesity; he sought treatment for pain on several occasions in 2004,
2005, and 2006; his pain improved with medication; and he was depressed and
had attempted suicide in February 2004. Scans of his back in 2004 showed
slight but not severe disc problems. There was conflicting evidence from several
sources—including treating physicians, examining physicians, non-examining
experts, medical records, and Zimmerman’s own testimony—concerning the
degree to which Zimmerman’s pain and depression limited his ability to move,
perform daily activities, and interact with others.
After considering the evidence, the ALJ found that Zimmerman’s
impairments, though severe, did not render him disabled within the meaning of
the Act because a significant number of jobs existed that Zimmerman could still
perform. A district court accepted a magistrate judge’s ruling affirming the
ALJ’s decision, and Zimmerman appealed to this court. We have jurisdiction
pursuant to 28 U.S.C. § 1291.
II. STANDARD OF REVIEW
Our review is limited to determining (1) whether the ALJ’s decision was
supported by substantial evidence in the record, and (2) whether the ALJ used
proper legal standards to evaluate the evidence. Brown v. Apfel, 192 F.3d 492,
496 (5th Cir. 1999). Substantial evidence “means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Id.

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(internal quotation marks omitted). This court may not “reweigh the evidence
in the record, nor try the issues de novo, nor substitute our judgment for that of
the [ALJ], even if the evidence preponderates against the [ALJ’s] decision.” Id.
(internal quotation marks omitted).
III. DISCUSSION
To be entitled to Social Security benefits, a claimant must show that he is
disabled within the meaning of the Act. Villa v. Strickland, 895 F.2d 1019, 1022
(5th Cir. 1990). Disability is defined as the “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or
mental impairment which . . . has lasted or can be expected to last for a
continuous period of not less than twelve months.” 42 U.S.C. § 423(d)(1)(A). The
ALJ must conduct a five-step process when examining a claim of disability:
(1) a claimant who is working, engaging in a substantial gainful
activity, will not be found to be disabled no matter what the medical
findings are; (2) a claimant will not be found to be disabled unless
he has a “severe impairment”; (3) a claimant whose impairment
meets or is equivalent to an impairment listed in Appendix 1 of the
regulations will be considered disabled without the need to consider
vocational factors; (4) a claimant who is capable of performing work
that he has done in the past must be found “not disabled”; and (5)
if the claimant is unable to perform his previous work as a result of
his impairment, then factors such as his age, education, past work
experience, and residual functional capacity must be considered to
determine whether he can do other work.
Bowling v. Shalala, 36 F.3d 431, 435 (5th Cir. 1994); see also 20 C.F.R.
§ 404.1520(a)-(e) (describing the five steps). “A finding that a claimant is
disabled or not disabled at any point in the five-step process is conclusive and
terminates the . . . analysis.” Harrell v. Bowen, 862 F.2d 471, 475 (5th Cir.
1988).
Here, at steps one and two, the ALJ found that Zimmerman was not
engaging in a substantial gainful activity and that Zimmerman had several
severe impairments: sleep apnea, degenerative disc disease, obesity, depression,

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and personality disorder. At step three, the ALJ found that these impairments
did not meet or equal the severity of any impairment in the Appendix 1 listings
in the regulations. See 20 C.F.R. Pt. 404, Subpt. P. App. 1. At step four, the ALJ
found that Zimmerman could not perform his past relevant work. However, at
step five, the ALJ determined that Zimmerman’s residual functional capacity
(“RFC”) included the ability to do low-stress, unskilled work and that jobs
consistent with his RFC existed in significant numbers in the local and national
economies. On appeal, Zimmerman claims that the ALJ’s analysis was deficient
in several respects.
A. Obesity and obesity-related complications
Zimmerman first argues that in determining his RFC at step five, the ALJ
failed to properly consider Zimmerman’s obesity and obesity-related
complications, as required by Social Security Ruling 02-01p (2002). This
argument is without merit. The ALJ acknowledged that Zimmerman was obese
and that his obesity was a severe impairment. The ALJ also emphasized the
importance of considering Zimmerman’s obesity, stating that Zimmerman’s back
pain was likely secondary to his obesity and that “the combined effects of obesity
with musculoskeletal impairments can be greater than the effects of each of the
impairments considered separately.” In addition, the ALJ discussed
Zimmerman’s allegations that he could not stand, sit, or walk for long periods
of time, and the opinion of Zimmerman’s treating physician, Dr. Michael Taylor,
that Zimmerman had severe limitations. Based on these considerations, many
of which were related to Zimmerman’s obesity, the ALJ found that Zimmerman’s
RFC was significantly limited. He found that Zimmerman could perform light
work but not medium or heavy work; would be “precluded from climbing,
working at unprotected heights and on or about moving or dangerous equipment
or machinery”; could lift no more than twenty pounds; and could stand or walk

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for six hours in a work day and sit for at least two hours, “compromised by the
need to alternate with sitting/standing at will in an 8 hour workday.”
The ALJ’s conclusion that Zimmerman’s obesity was not completely
debilitating was supported by several pieces of evidence in the record. For
example, the State Agency Medical Consultant, Dr. Bonnie Blacklock, concluded
based on Zimmerman’s medical records that Zimmerman could occasionally
carry fifty pounds and could sit or stand for six hours in an eight-hour workday.
In addition, Dr. Hanley examined Zimmerman and reported that Zimmerman
had full motor strength in all his muscle groups. Moreover, a July 2004 MRI
revealed only slight disc degeneration, and a November 2004 computed
tomography scan of Zimmerman’s spine showed early disc degeneration but no
bulge or herniation. Also, records showed that Zimmerman’s pain had improved
with medication on several occasions. Finally, Zimmerman testified that he was
able to perform daily tasks such as shopping and carving ornate wooden canes.
Zimmerman contends that the ALJ should have considered the fact that
Zimmerman walks with a cane. However, a vocational expert testified that the
use of a cane would not have prevented Zimmerman from performing the types
of jobs he identified as consistent with Zimmerman’s RFC. Zimmerman also
maintains that the ALJ should have identified precisely which of the
Zimmerman’s limitations were caused by Zimmerman’s obesity. However,
Zimmerman cites no authority suggesting that when considering a claimant’s
limitations, the ALJ must describe precisely which medical condition triggered
each limitation. Zimmerman further contends that the ALJ improperly relied
on Zimmerman’s failure to lose weight. However, even assuming that such
reliance would have been improper, there is no evidence that the ALJ actually
relied on Zimmerman’s failure to lose weight to find that obesity-related
impairments should not be considered; to the contrary, the record shows that the
ALJ did consider Zimmerman’s obesity-related impairments.

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In sum, the ALJ properly considered Zimmerman’s obesity in his RFC
analysis.
B. Opinion of Zimmerman’s treating physician
Zimmerman’s second argument is that the ALJ improperly disregarded the
opinion of Dr. Taylor, his treating physician, without sufficient justification.
Dr. Taylor opined that Zimmerman was unable to lift or carry more than ten
pounds; could stand, walk, or sit less than two hours during an eight-hour work
day; and could not twist, stoop, bend, crouch, squat, or climb ladders or stairs.
Dr. Taylor also stated that Zimmerman’s pain was sufficiently severe to prevent
Zimmerman from performing even low-stress jobs. The ALJ found Dr. Taylor’s
opinion was “unsupported by the objective clinical evidence” and was
“inconsistent with the evidence considered as a whole,” and he gave it little
weight.
Zimmerman bases his argument on Newton v. Apfel, in which we reversed
an ALJ’s decision where the ALJ rejected the opinion of a treating physician
without performing an analysis based on the six factors listed in 20 C.F.R.
§ 404.1527(d)(2).1 209 F.3d 453, 458 (5th Cir. 2000). However, Newton is
distinguishable. In Newton, the ALJ “summarily rejected the opinions of
Newton’s treating physician, based only on the testimony of a non-specialty
medical expert who had not examined the claimant.” Id. at 458. We emphasized
that Newton did not involve “competing first-hand medical evidence,” nor did it
involve “the medical opinion of other physicians who have treated or examined
the claimant and have specific medical bases for a contrary opinion.” Id. Here,
in contrast to Newton, competing first-hand medical evidence was present that

1
These factors are (1) the length of the treatment relationship and frequency of
examination, (2) the nature and extent of the treatment relationship, (3) the relevant evidence
supporting the opinion, (4) the consistency of the treating physician’s opinion with the record
as a whole, (5) whether the opinion is that of a specialist, and (6) “other factors which tend to
support or contradict the opinion.” 20 C.F.R. § 404.1527(d)(2).

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contradicted Dr. Taylor’s testimony. That evidence, discussed in detail above,
included Dr. Hanley’s examination of Zimmerman that revealed full motor
strength, MRIs indicating only mild problems, records indicating that pain
medication was effective, and Zimmerman’s own testimony about his everyday
activities. Moreover, we note that the ALJ did cite and list the six factors, and
his discussion demonstrates that he considered several of the factors—he noted
the evidence supporting and opposing the opinion, the inconsistency of the
opinion with the record as a whole, and the fact that Dr. Taylor had no
vocational expertise. Thus, we find no error in the ALJ’s decision not to credit
Dr. Taylor’s opinion. Cf. Spellman v. Shalala, 1 F.3d 357, 364-65 (5th Cir. 1993)
(holding that it was proper to reject a treating physician’s opinion that the
claimant could not perform sedentary work, because the opinion was
inconsistent with evidence of the claimant’s everyday activities and with medical
records).
C. Zimmerman’s credibility
Zimmerman argues that the ALJ’s finding that Zimmerman’s allegations
about his impairments were “not totally credible” was unsupported. He cites as
evidence of his credibility numerous pieces of evidence in the record suggesting
that he did have significant pain and decreased range of motion, as well as Dr.
Taylor’s opinion.
We have previously noted that “[w]hile an ALJ must consider an
applicant’s subjective complaints of pain, he is permitted to examine objective
medical evidence in testing the applicant’s credibility. He may find, from the
medical evidence, that an applicant’s complaints of pain are not to be credited
or are exaggerated.” Johnson v. Heckler, 767 F.2d 180, 182 (5th Cir. 1985).
Here, the ALJ explained why the objective evidence discussed
above—Zimmerman’s testimony about his daily activities, combined with
medical evidence concerning his strength, the severity of his spinal problems,

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and the effectiveness of his medications—undermined the credibility of
Zimmerman’s contention that his pain was completely debilitating. In addition,
as the district court noted, two State Agency Medical Consultants opined that
Zimmerman was not “fully credible.” Thus, we find the ALJ’s credibility
determination was supported by substantial evidence.2
D. Mental impairments
Zimmerman next asserts that the ALJ failed to evaluate Zimmerman’s
mental impairments in making the RFC determination. The ALJ determined
that Zimmerman suffered from depression that caused mild difficulties with
daily activities, social functioning, concentration, and persistence. The ALJ also
discussed Zimmerman’s February 2004 suicide attempt but noted that in March
2004, a treatment note indicated that Zimmerman was feeling better and denied
any suicide ideation. The ALJ took these limitations into account in determining
that Zimmerman’s RFC was limited to work requiring “limited public contact
and low stress unskilled tasks due to depression.”
Zimmerman asserts that the ALJ failed to properly consider the report of
Dr. Erick Lenert, a psychologist who diagnosed Zimmerman with depression and
antisocial personality disorder and assigned him a low global assessment of
functioning (“GAF”) score. Dr. Lenert noted that Zimmerman had a somewhat
depressed mood, a flat affect, marginal judgment, fair insight, and adequate
abstract thinking. The ALJ noted Dr. Lenert’s diagnoses and GAF score but
found them inconsistent with Dr. Lenert’s mild description of Zimmerman’s
impairments. The ALJ’s conclusion was supported both by Dr. Lenert’s
description of Zimmerman and by the testimony of a non-examining medical
expert, Dr. Ashok Khushalani. Dr. Khushalani testified that Zimmerman was

2
We also reject Zimmerman’s argument that the ALJ impermissibly relied on
Zimmerman’s history of substance abuse in making his credibility determination because we
see no evidence of such reliance.

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“reasonably well stabilized” by his medication, did not have major depression,
and had only mild restrictions on daily living, social functioning, and
concentration due to his depression. He also opined that Zimmerman had no
limitations in his ability to understand and carry out short, simple instructions.
In sum, although there was some conflicting evidence, the ALJ’s
conclusions about Zimmerman’s mental impairments was supported by the
substantial evidence provided by Dr. Khushalani and by Dr. Lenert’s specific
findings. Moreover, the ALJ’s RFC determination took into account those
impairments. Thus, we find no error here.
E. Determination that Zimmerman’s obesity did not meet or equal
Listing 1.04
Zimmerman’s next argument is that the ALJ erred in finding that
Zimmerman’s impairments did not meet or equal the requirements of Listing
1.04, which describes disorders of the spine:
1.04 Disorders of the spine (e.g., herniated nucleus pulposus, spinal
arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc
disease, facet arthritis, vertebral fracture), resulting in compromise
of a nerve root (including the cauda equina) or the spinal cord.
With:
A. Evidence of nerve root compression characterized by
neuro-anatomic distribution of pain, limitation of motion of the
spine, motor loss (atrophy with associated muscle weakness or
muscle weakness) accompanied by sensory or reflex loss and, if
there is involvement of the lower back, positive straight-leg raising
test (sitting and supine) [or two other sets of symptoms not relevant
here].
20 C.F.R. Pt. 404, Subpt. P. App. 1 § 1.04. “For a claimant to show that his
impairment matches a listing, it must meet all of the specified medical criteria.”
Sullivan v. Zebley, 493 U.S. 521, 530 (1990). Zimmerman argues that his
impairment met or equaled this listing because there was evidence that his pain
radiated from his back to his left hip and leg, he had limited range of motion in

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his spine, and he had a positive straight leg raising test. As to the requirement
of evidence of nerve root compression, he notes that although his MRIs did not
reveal this, a treating physician noted that his MRIs were blurred and MRI
studies were limited due to his size.
We acknowledge that Zimmerman provided some evidence that his
impairments might meet the Listing 1.04 requirements. However, we find that
substantial evidence supports the ALJ’s contrary conclusion that Zimmerman’s
impairment failed to meet or equal the criteria in the listing. First, Dr. Hanley
reported in June 2004 that “[e]xamination of [Zimmerman’s] lower extremities
shows sensory intact,” suggesting that the “sensory or reflex loss” requirement
was not met. In addition, Dr. Hanley found that Zimmerman’s motor strength
was “5/5 in all muscle groups,” suggesting no motor loss. Finally, there was no
direct indication of nerve root compression. In light of this evidence, we may not
substitute our judgment for that of the ALJ.

F. Determination that Zimmerman retained ability to perform work
existing in significant numbers in the national economy
Zimmerman’s final argument is that the ALJ erred in concluding that
Zimmerman retains the ability to perform work existing in significant numbers
in the national economy. To make this determination, the ALJ posed
hypothetical questions to the vocational expert about what jobs a person with
Zimmerman’s limitations would be able to perform. See Bowling, 36 F.3d at 436
(holding that vocational expert testimony must be based on a hypothetical
question that includes all limitations supported by the record). His questions
included all limitations supported by the record, including the need to alternate
sitting and standing at will; the need to avoid lifting more than twenty pounds
at a time; the need to avoid heights and climbing; and the need for low stress
and limited public contact. Zimmerman’s suggestion that the hypothetical
questions were insufficient is essentially a restatement of his earlier arguments

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that the ALJ did not adequately consider his obesity-related and mental
impairments, arguments we have already rejected.
The vocational expert testified that based on these limitations,
Zimmerman could perform three jobs existing in significant numbers: small
products assembler (200,000 jobs nationally and 1000 locally), hardware
assembler (40,000 jobs nationally and 300 locally), and “assembler/bench
assembler/lawn and garden equipment” (20,000 jobs nationally and 150 locally).
Zimmerman argues that this case must be remanded because (1) “bench
assembler/lawn and garden machinery assembler” is a skilled position and
therefore outside Zimmerman’s RFC and (2) “bench assembler” and “small
products assembler” are actually the same job. These arguments are without
merit: even if we disregarded the availability of the job of bench assembler, there
are 240,000 jobs remaining for Zimmerman in the national economy.3 Thus,
there is no reason to remand on this ground.
IV. CONCLUSION
Because Zimmerman has failed to show that the ALJ’s findings were
either unsupported by substantial evidence or not compatible with the
appropriate legal standards, we AFFIRM the ALJ’s ruling.
AFFIRMED.

3
Zimmerman’s citation to Bagwell v. Barnhart, 338 F. Supp. 2d 723, 738 (S.D. Tex.
2004), does not aid his argument. In Bagwell, the court remanded a case to an ALJ for further
findings where one of three jobs the vocational expert identified was outside the claimant’s
RFC because the expert had not testified about whether the two other jobs existed in
significant numbers in the national economy. Id. Here, in contrast, the vocational expert gave
specific numbers for each of the three jobs he identified.

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