Weary v. Astrue

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

FILED
August 15, 2008

No. 07-61012 Charles R. Fulbruge III
Summary Calendar Clerk

JAMIE D. WEARY,

Plaintiff-Appellant,
v.

MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY,

Defendant-Appelle.

Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 06-188

Before STEWART, OWEN, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Plaintiff-Appellant Jamie D. Weary appeals the district court’s decision
affirming the Commissioner’s denial of her claim for Disability Insurance
Benefits and Supplemental Security Income (“SSI”) payments under Titles II
and XVI of the Social Security Act, 42 U.S.C §§ 423 and 1382c(a)(3). For the
following reasons, we affirm the district court’s decision.

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-61012

I. Factual and Procedural Background
Plaintiff-Appellant Weary is a thirty-one year old female with an eleventh
grade education. The record indicates that Weary first complained of pain on
September 15, 2003, when, while working as a housekeeper at Marion General
Hospital (“Marion General”), she felt a pop in her back as she lifted a full bag of
bed linens. She was evaluated at Marion General’s emergency room that same
day and released. She continued to work as a housekeeper for six more weeks,
until October 29, 2003, when she claims that her back pain was so constant and
severe that she could no longer endure working. On October 29, 2003, she again
went to Marion General’s emergency room where she was examined by Dr. Brian
McGraw. Dr. McGraw noted that Weary was experiencing mild paralumbar
spasms, and upon conducting an x-ray, diagnosed her with lower back pain and
probable chronic strain. She was scheduled for an MRI the following day.
On November 13, 2003, Weary followed-up with Dr. Kevin Holmes, an
attending physician at Marion General, who assessed her with an annular tear
around L5-S1 with radicular back pain. On December 4, 2003, Weary visited Dr.
James Antinnes at the Hattiesburg Clinic and reported that she was
experiencing lower back pain, radiating into her legs. Dr. Antinnes noted that
Weary demonstrated severely limited range of motion of her back and that her
posture was stooped. He remarked that her x-rays appeared to be essentially
normal, and noted that the MRI conducted on October 30, 2003, revealed mild
disc degeneration at L4-5 and L5-S1, although there were no obvious herniations
or neural compromise. Based on Dr. Antinnes recommendation, Weary began
physical therapy. On December 16, 2003, Weary went to see Dr. Michael
Molleston, a neurosurgeon at the Hattiesburg Neurosurgery Clinic, to whom she
was referred by Dr. Holmes. Dr. Molleston recommended that Weary undergo
surgery and told her to stop physical therapy and work until further notice.

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Weary decided to put off surgery, continue physical therapy, and explore other
methods of conservative care to relieve her pain.
After experiencing no improvement in her condition from physical therapy,
Weary went to see Dr. Moses Jones at Jackson Neurosurgery and Spine
Associates on January 8, 2004. Her straight leg raise test was negative and she
was able to sit on the exam table with her legs fully extended at a 90-degree
angle. Dr. Jones reviewed Weary’s MRI from October 30, 2003, and did not find
any significant abnormalities. While Dr. Jones did see some minimal
degenerative changes in the lumbar spine, he found no evidence of disc
herniation. He remarked that Weary’s “symptoms follow in no organic disease
pattern and seem clearly out of proportion to any objective findings.” Finding
no neurological reason why she could not resume all normal activities, Dr. Jones
recommended that Weary be treated with physical therapy and rehabilitation.
He felt that surgery was unwarranted.
On February 24, 2004, Weary returned to Dr. Molleston who recommended
that she have a lumbar discogram to determine which discs were causing her
pain. He also was of the opinion that Dr. Jones’s report contained a number of
inaccuracies and “represented a company’s-doctor type medical report.” Shortly
thereafter, on March 9, 2004, Weary was seen by Dr. David McKellar who
assessed her with lumbar disc displacement. Dr. McKellar performed a lumbar
discogram which revealed marked degeneration of disc material at L5-S1 and
severe spinal stenosis at L4-5 and L5-S1. He gave Weary a lumbar epidural
steroidal injection and also conducted a CT scan of her lumbar spine. The CT
scan also showed degeneration of disc material at L4-5 and L5-S1.
On April 30, 2004, Weary underwent surgery which consisted of a lumbar
laminectomy at L4-5 and L5-S1, with micro dissection and interbody fusion with
rods and screws. The post-operation discharge sheet indicated that Weary’s
condition had improved, and that within two days after surgery, she was able to

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stand and walk, and was doing well with physical therapy. Weary followed up
with Dr. Molleston on June 30, 2004. Dr. Molleston noted that Weary was doing
“somewhat” better, and was no longer using a wheelchair or a walker, though
she did use a cane. Dr. Molleston cleared Weary to drive, but recommended that
she not bend at the waist or perform strenuous activity. He did not feel that she
was ready for rehabilitation. At her August 2004 follow-up, Dr. Molleston noted
that Weary was doing relatively well and told her she could discontinue wearing
her lumbar corset brace. Weary reported some swelling in her thighs which Dr.
Molleston attributed to inactivity. He recommended that she try walking for ten
minutes, twice a day. On August 19, 2004, Weary was examined by Dr. Victor
Bazzone, an independent neurosurgeon. Weary reported that she felt 60% better
than she did before surgery, but was still experiencing pain. Dr. Bazzone noted
that Weary was morbidly obese and that this was one of the primary causes of
her pain.1 Although Weary’s straight leg raise test was positive at 50 degrees,
Dr. Bazzone could not find any “hard fast neurological findings” related to her
symptoms. He was of the opinion that she had fully recuperated from her
surgery and that she had reached maximum medical improvement. To manage
her pain, Dr. Bazzone recommended that Weary lose significant weight,
exercise, and continue her anti-inflammatory medication.
On December 16, 2004, Weary filed an application for disability benefits
and SSI, claiming that she had been unable to work since September 15, 2003,
because of a back injury. Her initial application was denied and Weary filed for
reconsideration. In connection with her application for reconsideration, an
independent review of Weary’s medical files was conducted by Dr. Glenn James,
a state agency physician and disability examiner, as well as by Angela Moore,

1
At the time of this exam, Weary was 5'3'’ tall and weighed 240 pounds. She reported
that prior to her injury, she weighed only 200 pounds. According to Dr. Bazzone, her prior
weight still placed her in the category of morbidly obese.

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a vocational examiner. Ms. Moore found that Weary had the residual functional
capacity for light work. Dr. James rated Weary as being able to lift up to twenty
pounds occasionally, and ten pounds frequently. He also found that Weary had
no postural limitations. Weary’s application for reconsideration was
subsequently denied. Weary then requested a hearing before an Administrative
Law Judge (“ALJ”). In the interim, Weary underwent a physical impairment
rating. She was assigned a 20% whole person impairment. Dr. J. Stephen Beam
conducted the impairment assessment and noted that Weary became tearful
upon examination, but had no other visible signs of active pain. Because Weary
stated that the physical movements were too painful, Dr. Beam based the
impairment rating on Weary’s medical history and subjective symptoms.
The administrative hearing was held on August 17, 2005; Weary and
Donald Woodall, a vocational expert, testified. Weary testified that the surgery
had not improved her symptoms, and that physical therapy and pain medication
were equally ineffective. She complained of daily pain in her back, buttocks,
arms, and thighs; she rated the pain an eight out of ten, with ten being the most
painful. She stated that she lived with her grandmother and next door to her
mother, both of whom were responsible for her daily care, such as bathing and
combing her hair. She further testified that she stayed at home all day either
laying or sitting down, and that she was driven to the grocery store once a week
and to church once a month. Finally, Weary testified that she had worked as a
housekeeper, re-packer, poultry dressing worker, wire harness assembler,
furniture wiper, and car parts inspector. Woodall testified that Weary’s past
work history would be classified as medium unskilled, light unskilled, light semi-
skilled, and sedentary unskilled.
Based on this testimony and the medical evidence, the ALJ determined
that Weary was not disabled within the meaning of the Social Security Act
because her impairments did not meet or equal an impairment in the

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regulations, and she could return to her past work. Weary filed an intra-agency
appeal, to which she attached an August 23, 2005, report from Dr. Molleston. Dr.
Molleston noted that Weary had reached maximum medical improvement, but
continued to walk with a cane. He was of the opinion that Weary was “totally
and permanently disabled for any substantial gainful activity” and that she
could not sit or stand for over two hours in an eight hour day. The Appeals
Council affirmed the ALJ’s decision. Weary then filed a complaint in the district
court seeking judicial review of the agency’s final determination. Weary filed a
motion for summary judgment. The Commissioner filed a motion for an order
affirming the agency’s decision. The magistrate judge found that the ALJ’s
determination that Weary’s impairments did not meet an impairment listed in
the regulations was not supported by substantial evidence. He also found that
the ALJ’s conclusion that Weary could return to her past relevant work was
unsupported. He recommended that the district court reverse the agency’s
decision. The Commissioner objected to the magistrate’s recommendations. The
district court rejected the magistrate’s recommendation finding that the agency’s
decision was supported by substantial evidence. On November 8, 2007, the
district court entered judgment dismissing Weary’s complaint. Weary timely
appealed.
II. Discussion
On appeal, Weary makes the following arguments: (1) the ALJ improperly
determined that her impairments were not severe enough to meet a listed
impairment under 20 C.F.R. Part 404, Subpart P, Appendix 1; and (2) the ALJ
improperly determined that she possessed the residual functional capacity to
perform light exertional work.
Under the Social Security Act, 42 U.S.C. § 405(g), this court’s review of the
Commissioner’s denial of disability benefits and SSI is limited to determining:
(1) whether substantial evidence supports the final decision; and (2) whether

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proper legal standards were used to evaluate the evidence. See Higginbotham
v. Barnhart, 405 F.3d 332, 335 (5th Cir. 2005). Where the Commissioner’s
findings are supported by substantial evidence, they are conclusive and must be
affirmed. Newton v. Apfel, 209 F.3d 448, 452 (5th Cir. 2000). Substantial
evidence is defined as “more than a scintilla, less than a preponderance, and is
such relevant evidence as a reasonable mind might accept as adequate to
support a conclusion.” Hames v. Heckler, 707 F.2d 162, 164 (5th Cir. 1983).
Conflicts in the evidence are for the Commissioner to resolve. Selders v.
Sullivan, 914 F.2d 614, 617 (5th Cir. 1990). While we must scrutinize the record
to determine the reasonableness of the decision reached by the ALJ, we must not
reweigh the evidence, try the issues de novo, or substitute our judgment for that
of the ALJ’s. Randall v. Sullivan, 956 F.2d 105, 109 (5th Cir. 1992).
In evaluating a claim of disability, the ALJ conducts the following five-step
sequential inquiry: (1) if a claimant is engaged in substantial gainful activity,
she will not be found disabled regardless of the medical findings, 20 C.F.R. §
404.1520(b); (2) a claimant who does not have a “severe impairment” will not be
found to be disabled, 20 C.F.R. § 404.1520(c); (3) a claimant who meets the
criteria in the list of impairments in Appendix 1 of the regulations will be
considered disabled without consideration of vocational factors, 20 C.F.R. §
404.1520(d); (4) if a claimant can still perform her past work, she is not disabled,
20 C.F.R. § 404.1520(e); and (5) if a claimant’s impairment prevents her from
performing past work, other factors including age, education, past work
experience, and residual functional capacity must be considered to determine if
other work can be performed, 20 C.F.R. § 404.1520(f). We turn now to the issues
on appeal.
Weary first argues that the ALJ erred at step three of the sequential
inquiry when he determined that her impairments were not severe enough to
meet or equal one of the listed impairments. At the previous step, the ALJ found

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that Weary suffered from lumbar disc disease and obesity, which were severe
within the meaning of the regulations. However, at step-three, the ALJ
concluded that those impairments were not severe enough to meet or medically
equal, either singly or in combination, one of the listed impairments. Weary
maintains that her lumbar disc disease, as exacerbated by her obesity, should
have been evaluated under the criteria for an impairment of the Musculoskeletal
System, specifically under § 1.04C of the Listing Impairments to Appendix 1.2
She claims that the combined effect of the two impairments have limited her
ability to ambulate effectively.
Section 1.04C requires that a claimant provide medical evidence of lumbar
spinal stenosis resulting in pseudoclaudication, established by findings on
appropriate medically acceptable imaging, manifested by chronic nonradicular
pain and weakness, and resulting in the inability to ambulate effectively. 20
C.F.R. Pt. 404, Subpt. P, App. 1 § 1.04C. In turn, an inability to ambulate
effectively is defined as an extreme limitation on the ability to walk, i.e., an
impairment that interferes very seriously with the individual’s ability to initiate,
sustain, or complete activities. Id. at § 1.00B2b(1). This definition includes
generally having insufficient lower extremity functioning to permit independent
ambulation without the use of a hand-held assistive device(s) that limits the
functioning of both upper extremities. Id. Some examples of the inability to
ambulate effectively include the inability to walk without the use of a walker,
two crutches, or two canes; the inability to walk a block at a reasonable pace on
rough or uneven surfaces; the inability to use standard public transportation;

2
Although obesity has been removed from the listed impairments, it may be a factor
in both the “meets” and “equals” determinations if there is an impairment that, in combination
with obesity, meets the requirements of a listing. See Social Security Ruling 02-1p; see also
64 F.R. §§ 46122 and 46124 (explaining that because of the combined effect of obesity and the
other impairments, obese individuals may be found to have impairments that meet other
listings or equal the severity of other listings). The ALJ found that Weary’s lumbar disc
disease was a severe impairment within the meaning of the regulations.

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the inability to carry out routine ambulatory activities, such as shopping and
banking; or the inability to climb a few steps at a reasonable pace with the use
of a single hand rail. 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 1.00B2b(2).
Although it is clear that Weary continues to suffer from pain in her back,
buttocks, arms and thighs, in light of the deferential standard of review
applicable in this case, our review of the record demonstrates that there is
substantial evidence to support the ALJ’s finding that Weary’s impairments did
not meet or equal an impairment under § 1.04C. The medical evidence provided
by Weary shows that, prior to her surgery, at least one physician diagnosed her
with spinal stenosis and that an MRI and CT revealed disc degeneration in her
lumbar spine. However, her post-surgery medical records belie her claim that
she cannot ambulate effectively. Her post-operation discharge report shows that
she was walking within two days of the surgery. Further, at her August 19,
2004, examination with Dr. Bazzone, Weary reported a 60% improvement in her
condition since the operation. Although Dr. Bazzone observed that Weary used
a cane, reliance on a single cane does not limit the function of both upper
extremities, as would reliance on a walker, two crutches or two canes as required
under § 1.00B2b(1). Moreover, even though Dr. Molleston opined that Weary
was “permanently disabled from substantial gainful activity,” statements from
a physician as to whether a patient is “disabled” or “unable to work” are legal
conclusions that are reserved for the ALJ to determine. See Frank v. Barnhart,
326 F.3d 618, 620 (5th Cir. 2003) (citing 20 C.F.R. §§ 404.1527(e)(1) and (e)(3)).
Therefore, we conclude that substantial evidence supported the ALJ’s
determination that Weary’s impairments did not meet or equal Listing
Impairment § 1.04C.
Weary next claims that the ALJ improperly determined that she possessed
the residual functional capacity to perform light exertional work and that she
could return to her past relevant work. The fourth step of the five-step inquiry

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requires the ALJ to determine a claimant’s residual functional capacity, defined
as assessing the type of work an individual can perform despite the limiting
effects of her impairments. 20 C.F.R. §§ 404.1545 and 416.945. The ALJ found
that, except for five months post-surgery, Weary had the residual functional
capacity to perform light exertional work. He based his decision on the medical
evidence, as well as the hearing testimony of Weary and Woodall, the vocational
expert. Light work, in turn, is defined as lifting no more than twenty pounds at
a time with frequent lifting or carrying of objects weighing up to ten pounds, as
well as walking or standing for approximately six hours out of an eight-hour
work day. 20 C.F.R. §§ 404.1567(b) and 416.967(b). We conclude that
substantial evidence supported the ALJ’s determination that Weary had the
residual functional capacity to do light work and that she could therefore, return
to her past relevant work.
While an ALJ must take into account a claimant’s subjective allegations
of pain in determining her residual functional capacity, the claimant must
produce objective medical evidence of a condition that reasonably could be
expected to produce the level of pain alleged. Harper v. Sullivan, 887 F.2d 92,
96 (5th Cir. 1989). The mere existence of pain does not automatically create
grounds for disability , and subjective evidence of pain will not take precedence
over conflicting medical evidence. Id. Weary’s subjective allegations of
continued pain after the surgery were extensive. She testified at the hearing
that the surgery had not improved her symptoms, and that physical therapy and
pain medication were equally ineffective. She rated her daily pain an eight out
of ten, with ten being the most painful. However, the objective medical evidence
conflicts with Weary’s allegations. In his August 19, 2004, report, Dr. Bazzone
noted that Weary had recuperated well from her surgery and that there were no
hard and fast neurological findings related to her continued pain. He advised
that Weary lose weight to reduce any residual pain she was experiencing. By

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August 2005, Dr. Molleston was also of the opinion that Weary had reached
maximum medical improvement, and he too advised her to reduce her weight.
Finally, both Dr. James and vocational expert Angela Moore concluded that
Weary had the residual functional capacity to do light work, in that she could lift
up to twenty pounds, and ten pounds frequently. Based on the testimony of
vocational expert Donald Woodall that Weary’s past work included light
unskilled and semi-skilled work, the ALJ concluded that Weary could return to
her past relevant work. Consequently, our review of the record reveals that
substantial evidence supported the ALJ’s determination that Weary had the
residual functional capacity to do light work, and that she could return to her
past relevant work.
III. Conclusion
For the foregoing reasons we AFFIRM the ruling of the district court.

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