IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 95-50288
Summary Calendar
_____________________
JIMMY SALAZAR,
Plaintiff-Appellant,
versus
SHIRLEY S. CHATER,
COMMISSIONER OF SOCIAL SECURITY,
Defendant-Appellee.
_________________________________________________________________
Appeal from the United States District Court for the
Western District of Texas
(CA-A-94-583)
_________________________________________________________________
November 27, 1995
Before JOLLY, JONES, and STEWART, Circuit Judges.
PER CURIAM:*
In February 1992, Jimmy Salazar applied for social security
disability insurance benefits, alleging an onset date of disability
of August 29, 1991.1 After his application was denied, Salazar
*
Local Rule 47.5 provides: "The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession."
Pursuant to that Rule, the court has determined that this opinion
should not be published.
1
The ALJ noted that Salazar had been awarded a prior closed
period of disability, which ended in August 1991 for a back injury
sustained in February 1988.
requested reconsideration, which was denied on October 6, 1992.
Salazar requested a hearing before an administrative law judge
("ALJ").
The ALJ held a hearing on July 19, 1993. On October 27, 1993,
the ALJ found that Salazar was not disabled. In reaching his
decision, the ALJ relied on Salazar's testimony and reports of
pain, reports by treating and consulting physicians, and on Social
Security regulations. The Appeals Council denied Salazar's request
for review of the ALJ's decision on June 23, 1993. The ALJ's
decision became the final decision of the Commissioner of Social
Security. Salazar sought judicial review of that decision. The
parties consented to proceed before a magistrate judge. The
magistrate judge affirmed the Commissioner's decision on April 6,
1995. Salazar filed a timely notice of appeal.
I
Chronic Pain
Salazar argues that "the ALJ erred in finding appellant has
degenerative disc disease but failed to recognize that chronic pain
was an ongoing diagnosis and was the condition being treated
throughout the time after surgery. This oversight of the source of
appellant's truly severe impairment is extremely significant."
"The court below erred in not understanding that chronic pain is
`constant, unremitting and unresponsive to treatment' by
definition."
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Pain constitutes a disabling condition under the Social
Security Act only when it is "constant, unremitting, and wholly
unresponsive to therapeutic treatment." Harrell v. Bowen, 862 F.2d
471, 480 (5th Cir. 1988) (citation omitted). "The [Commissioner],
not the courts, has the duty to weigh the evidence, resolve
material conflicts in the evidence, and decide the case." Chaparro
v. Bowen, 815 F.2d 1008, 1011 (5th Cir. 1987). The evaluation of
a claimant's subjective symptoms is within the province of the ALJ
who had an opportunity to observe the claimant. Harrell, 862 F.2d
at 480. The ALJ "may properly challenge the credibility of a
claimant who asserts he is disabled by pain." Allen v. Schweiker,
642 F.2d 799, 801 (5th Cir. 1981).
The Social Security regulations provide for a two-step process
to be used in evaluating whether subjective complaints of pain
contribute to a finding of disability. 20 C.F.R. § 404.1529. For
pain to contribute to a finding of disability, the claimant must
first establish, by medical signs and laboratory findings, the
presence of a medically determinable physical impairment which
could reasonably be expected to produce the pain alleged. Once
such an impairment is established, allegations about the intensity
and persistence of pain must be considered in addition to the
medical signs and laboratory findings in evaluating the impairment
and the extent to which it affects the claimant's capacity for
work. Id.; see also Pope v. Shalala, 998 F.2d 473, 482 (7th Cir.
1993).
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Although the ALJ did not specifically label his findings under
the two steps, his findings show that he did go through the
process. The ALJ considered the medical evidence in the record and
determined that "the pain experienced by the claimant is limiting,
but not so limiting as to preclude his engaging in all substantial
gainful activity." This shows that the ALJ found that Salazar did
have a medically determinable impairment that could reasonably be
expected to produce pain, but that he did not find the pain to
exist to the extent alleged so as to disable Salazar from work.
The fact that the ALJ considered Salazar's testimony regarding his
activities shows that he did not stop at the threshold inquiry, but
proceeded to the second step. See Carbone v. Sullivan, No. 91-1964
(1st Cir. Apr. 14, 1992), 1992 WL 75143 at *6 (unpublished)
(consideration of activities showed complaints were not dismissed
at threshold level).
After comparing the subjective complaints with the objective
evidence, the ALJ found the subjective complaints to be not
corroborated in severity, duration, or intensity. In doing so, he
observed that Dr. Simonsen released Salazar for light work and
determined that he had reached maximum medical improvement;
examinations "showed only mild decreased range of motion and were
otherwise normal"; Salazar took prescribed medication with no noted
side effects; Salazar testified that he drives his wife to and from
work and can take care of his personal needs, including fixing
lunch; "[a]t the hearing, the claimant alleged constant burning
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pain in the left side of his back and radiating into his legs. Yet
medical reports do not contain any such complaints." The ALJ noted
that the medical reports "noted nothing in the way of objective
medical findings" and "continue to show virtually nothing in the
way of objective findings to support allegations of constant
disabling pain." The ALJ discredited Salazar's testimony regarding
the degree of his pain because it was not supported by objective
medical signs and findings and because his activities of daily
living were inconsistent with his contentions.
Although the medical records do not indicate that Salazar
complained about pain radiating down his leg as noted by the ALJ,
the records show that Salazar consistently complained of lower back
pain. The doctor continually attempted to relieve the pain by
prescribing new drugs and dosages. In May 1991, the doctor
recommended another surgery.
Salazar testified that when he had back surgery in 1988, the
pain ranked a "ten" on the scale. He testified that he asked Dr.
Simonsen "how would 50 or 20 percent I would come out of the
hospital?" The doctor gave him only a "fair" chance of recovery.
In the light of those odds, Salazar elected to live with the pain.
Salazar testified that he drives his wife 10 minutes to work
and 10 minutes home. He can stand for about 20 minutes before his
feet start getting numb. He can take care of his personal needs.
He exercises under doctor's orders. Salazar ranked his pain as a
six on a scale of one to ten with ten being "almost unbearable."
-5-
The pain "goes up to about seven or eight" when he is exercising,
then goes back down when he stops.
The ALJ's finding that Salazar's pain was not disabling is,
especially in the light of discrediting his testimony concerning
the degree of pain, supported by substantial evidence.
II
Past relevant work
Salazar argues that the ALJ erred in finding that he could
perform his past relevant work. To determine whether a claimant
can perform past relevant work, the ALJ must access the physical
demands of the job by considering the description of the work
actually performed or as generally performed in the national
economy. Villa, 895 F.2d at 1022. The ALJ considered Salazar's
testimony describing the work he actually performed.
Salazar testified that in past work as a janitor cleaning
offices he cleaned desks, took out trash (small office-type cans c.
20-25 lbs and larger cans from the kitchen), mopped, swept, and
vacuumed. He stated that the trash and vacuuming would be the
problem for him now. He testified that he sometimes had to pick up
and carry up stairs vacuum cleaners that weighed about 50 pounds.
Vocational expert Teri Hewitt reviewed Salazar's records and
testified at the hearing that Salazar's "janitorial work in office
buildings was light and at the low end of semi-skilled."2 Given
2
"Light work involves lifting no more than 20 pounds at a time
with frequent lifting or carrying of objects weighing up to ten
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Salazar's limitations, the vocational expert said that his past
janitorial job would still be possible with either medium or light
exertional capacity.
The ALJ found that Salazar had "the residual functional
capacity to perform work related activities except for work
involving jobs greater than medium work as defined in the
Regulations with the limitation that the work avoid twisting,
sitting for prolonged periods of time and vibration (20 CFR
404.1545)." The ALJ found that Salazar's "past relevant work as
janitor in a building did not require the performance of work
related activities precluded by the above limitation[s] (20 CFR
404.1565)." The ALJ concluded that Salazar's "impairments do not
prevent the claimant from performing his past relevant work."
Salazar does not dispute that he can do light to medium work
with the described limitations. He argues that he could not do his
former job with his limitations and says: "A janitor must sweep,
mop, and vacuum, emptying garbage cans, cleaning sidewalks and
mowing lawn. It is impossible to perform these duties without
twisting. (Exhibit B)."
pounds." A job is in this category if it requires "a good deal of
walking or standing, or when it involves sitting most of the time
with some pushing and pulling up arm or leg controls." 20 C.F.R.
§ 404.1567(b).
"Medium 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." 20 C.F.R. § 404.1567(c).
-7-
Exhibit B appears to be a page copied from the Dictionary of
Occupational Titles, which reflects exertional requirements of work
required of a janitor as performed in the national economy. This
exhibit does not address Salazar's argument that the duties of a
janitor cannot be performed without twisting. Salazar provides no
authority to support this proposition. To accept Salazar's
argument, we would have to take judicial notice that sweeping,
mopping, etc., requires twisting.
However, the vocational expert did not address the question or
provide evidence whether such duties could be performed in spite of
a "no twisting" limitation. A vocational expert's opinion "is
meaningless" unless there is adequate record evidence to support
the assumptions made by the expert. Bowling v. Shalala, 36 F.3d
431, 436 (5th Cir. 1994) (citing Gallant v. Heckler, 735 F.2d 1450,
1456 (9th Cir. 1984)).
Salazar argues that the ALJ erred finding that he could
perform his past relevant work when Salazar's treating physician
said that he could not. He argues that the ALJ did not give proper
consideration to his treating physician's opinion that he could not
return to his prior work.
Although the opinions of the treating physician ordinarily
should be accorded considerable weight in determining disability,
the opinions are not conclusive. Greenspan v. Shalala, 38 F.3d
232, 237 (5th Cir. 1994), cert. denied, 115 S.Ct. 1984 (1995).
"[W]hen good cause is shown, less weight, little weight, or even no
-8-
weight may be given to the physician's testimony." Id. The ALJ
may disregard statements that are "brief and conclusory, not
supported by medically acceptable clinical laboratory diagnostic
techniques, or otherwise unsupported by the evidence." Id.
(internal quotations and citation omitted).
The Commissioner argues that the doctor's opinion that Salazar
could not return to his prior relevant work conflicts with the
doctor's releasing Salazar to perform light to medium work. See
Spellman v. Shalala, 1 F.3d 357, 364 (5th Cir. 1993) (Commissioner
need not give controlling weight to treating physician's opinion if
it is inconsistent with other evidence in the record).
The doctor's release to light to medium work is not
inconsistent with his opinion that Salazar could not return to his
past work. Doctor Simonsen released Salazar to light to medium
work, with the limitation that he not lift over 20-30 pounds and
that he keep his back straight with no twisting. Apparently the
doctor determined that Salazar's past relevant work required
movements outside these limitations.
The district court stated that Dr. Simonsen's opinion
need not have been given great weight by the
ALJ, as Dr. Simonsen was not qualified as a
vocational expert. Houston v. Sullivan, 895
F.2d 1012, 1016 (5th Cir. 1989). Although
treating physicians often render such
opinions, they are usually made for private
insurance purposes and standing alone are of
little legal effect. In addition, Dr.
Simonsen acknowledged in July 1991 that
plaintiff had been released for "light medium
work" (Tr. 119) and on December 18, 1991, he
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released plaintiff for work with an industrial
back brace (Tr. 118).
The case cited does not stand for the proposition stated by
district court. See Houston, 895 F.2d at 1016. Indeed, the case
seems to support the opposite proposition. See id. ("[E]ven if the
vocational expert's testimony does suggest Houston can do only
light work, the court need not have considered her testimony in
this issue, because the vocational expert is not a medical expert
qualified to testify as to Houston's medical impairments.")
Research does not reveal caselaw showing how an ALJ should weigh
medical and vocational expert testimony in this context.
However, it is the claimant's burden of proving that he cannot
perform his past relevant work. Muse, 925 F.2d at 789. Salazar
did not present any evidence showing that janitorial jobs could not
be performed without twisting. Thus, considering Salazar's burden
and this lack of evidence, substantial evidence supports the
finding that Salazar could perform his past relevant work.
Salazar also argues that "the vocational expert testified
appellant could not work if pain medication sedated him." He
further argues that he can't work without it. Salazar only
testified, however, that medication sometimes affects his driving;
he drives his wife to work, however, because he is the only driver
in the family.
It is true that the vocational expert testified that if a
person takes pain medication that interferes with his ability to
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concentrate or if he does not take pain medication and he is unable
to persist or maintain work activity for more than four to six
hours at a time, such a limitation excludes competitive employment
in a janitorial job. The ALJ stated, however, that Salazar did not
allege any significant side effects of his pain or any other
medication nor do the medical record contain any complaints of side
effects of medications. "It is logical to assume that if the
claimant were suffering significantly from any side affects [sic],
the claimant would have complained to his treating physician, yet
he has not done so." The record thus supports the ALJ's
conclusions on this issue.
III
New Evidence
Salazar argues that new evidence shows that his back pain is
aggravated by almost any type of activity. The new evidence is an
April 17, 1994, report by Dr. William Taylor. Salazar argues that
this evidence shows that he cannot be gainfully employed, thus he
is entitled to summary judgment or remand.
The problem is that Salazar has not shown that this evidence
is "new." Dr. Taylor diagnosed failed back surgery syndrome with
mechanical low back pain. The medical impressions do not differ
from those given by Dr. Simonsen. The portion of the medical
report indicating that Salazar has "back pain aggravated by almost
any type of activity" is not a medical finding, but part of the
medical history presumably supplied by Salazar himself.
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Nor can Salazar meet the good cause requirement. There is no
evidence that this evidence was not previously available or that
this evidence relates to the period for which benefits were denied,
that is, between August 29, 1991, his alleged disability onset
date, and October 27, 1993, the date of the ALJ's decision.
Although a subsequent deterioration may form the basis for a new
claim, to remand the case for that reason alone would be
inconsistent with the principles of appellate review. See Johnson
v. Heckler, 767 F.2d 180, 183 (5th Cir. 1985).
A F F I R M E D.
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