UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
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No. 95-50191
Summary Calendar
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RUDY MARTINEZ,
Plaintiff-Appellant,
VERSUS
SHIRLEY S. CHATER,
Commissioner of Social Security,
Defendant-Appellee.
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Appeal from the United States District Court
for the Western District of Texas
(CA-A-93-739)
_____________________________________________________
October 26, 1995
Before DAVIS, BARKSDALE, and DeMOSS, Circuit Judges.
PER CURIAM:1
Rudy Martinez appeals the district court's affirmance of
denial of disability benefits and Supplemental Security Income
(SSI) by the Commissioner of Social Security. We AFFIRM.
I.
Martinez applied for disability benefits and SSI in September
1991, alleging that he had been disabled since June 20, 1991,
because of problems with his esophagus and stomach, nervousness,
1
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should not be published.
shortness of breath and impaired vision and hearing. He was denied
benefits initially and on reconsideration. A hearing was held
before an administrative law judge (ALJ) on September 28, 1992.
Following the hearing, Martinez was referred for a consultative
psychological examination, and on February 25, 1993, Martinez, a
medical expert, and a vocational expert testified at a supplemental
hearing. Martinez was represented by a paralegal at both hearings.
The ALJ determined that Martinez was not disabled within the
meaning of the Social Security Act because, although he could not
perform his past relevant work, he could perform other jobs
available in the national economy. The Appeals Council denied
Martinez's request for review, and the decision of the ALJ became
the final decision of the Commissioner2 under 42 U.S.C. § 405(g).
Martinez sought judicial review of the Commissioner's
decision. The magistrate judge recommended that the district court
affirm the Commissioner's determination that Martinez was not
disabled. After a de novo review, the district court adopted that
recommendation, overruled Martinez's objections, and affirmed the
denial of benefits.
II.
Martinez asserts that he should not have been denied benefits,
maintaining that he is mentally impaired. On review, this court
2
Pursuant to P.L. No. 103-296, the Social Security
Independence and Program Improvements Act of 1994, the function of
the Secretary of Health and Human Services in Social Security cases
was transferred to the Commissioner of Social Security effective
March 31, 1995. Accordingly, for all relevant references to the
Secretary (Donna E. Shalala), we have substituted references to the
Commissioner (Shirley S. Chater).
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determines whether the proper legal standards were applied and
whether the decision is supported by substantial evidence in the
record. E.g., Anthony v. Sullivan, 954 F.2d 289, 292 (5th Cir.
1992). The findings "as to any fact, if supported by substantial
evidence, shall be conclusive". 42 U.S.C. § 405(g); Richardson v.
Perales, 402 U.S. 389, 390 (1971). Substantial evidence is "more
than a mere scintilla. It means such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion."
Id. at 401. In short, we do not re-weigh the evidence; conflicts
in the evidence are for the Commissioner to resolve. Selders v.
Sullivan, 914 F.2d 614, 617 (5th Cir. 1990).
Disability is 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 12 months".
42 U.S.C. § 423(d)(1)(A). In evaluating a claim of disability, the
Commissioner conducts a well known five-step sequential analysis to
determine whether (1) the claimant is presently working; (2) the
claimant's ability to work is significantly limited by a physical
or mental impairment; (3) the impairment meets or equals an
impairment listed in the appendix to the regulations; (4) the
impairment prevents the claimant from doing his or her past
relevant work; and (5) the impairment prevents the claimant from
performing other work. 20 C.F.R. § 404.1520 (1995); Muse v.
Sullivan, 925 F.2d 785, 789 (5th Cir. 1991). At the first four
steps of the analysis, the claimant has the initial burden of
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proving disability. At the fifth step, the burden shifts, and the
Commissioner is required to show that the claimant is capable of
performing other work available in the national economy. Wren v.
Sullivan, 925 F.2d 123, 125 (5th Cir. 1991). Martinez claims that
the ALJ's step five determination--that Martinez retained the
functional capacity to perform a limited range of medium work--is
not supported by substantial evidence.
A.
Martinez was 54 years old at the September 1992 hearing before
the ALJ. He has a sixth grade education and limited reading
ability in Spanish and English. His past relevant work includes
driving a cab and trimming trees. He last worked on June 20, 1991.
Martinez testified that he stopped working because he "felt
sick". He experiences nausea once or twice per week and has sharp
pains in his left shoulder and arm. He sometimes vomits blood and
occasionally has a black stool. He becomes nervous about twice a
week and that is usually when he throws up. He has undergone
medical tests but has not been diagnosed with a medical problem
which would explain his symptoms. Martinez's medical records
indicate that he has never sought psychological or psychiatric help
for his symptoms.
Martinez told the ALJ that he did not believe he could drive
a cab because of his stomach problems and nervousness. He drives
his wife to work and his daughter to school, and spends the rest of
the day at home, watching television, listening to the radio,
dusting, and sweeping. The paralegal representative asked that the
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ALJ send Martinez for a mental examination to evaluate his symptoms
of nervousness.
Psychologists Martha Fantasia and William J. Dubin performed
a consultative examination on November 21, 1992. Martinez told
them that he had "spells where [he became] nervous and dizzy, and
thr[ew] up, sometimes with light blood". He reported "almost
daily" episodes of vomiting for the last two years and, three or
four times a week, "attacks" in which he experiences shortness of
breath, dizziness, tachycardia, trembling, sweating, nausea,
numbness, chest pain, and blurry vision. Drs. Fantasia and Dubin
opined that Martinez suffered from panic disorder with mild
agoraphobia,3 secondary type dysthymia (mood disorder), and
borderline intellectual functioning. They estimated that Martinez
had a global functioning (GAF) factor of 50.
At the second hearing, medical expert Dr. Alfred Williams
testified that he had reviewed Martinez's medical and psychological
reports and that the records revealed "nothing, from a medical
standpoint". Concerning the psychological report, Dr. Williams
stated that Martinez's intellectual capacity was "borderline," but
that he was not mentally retarded. The severity of his reported
restrictions on daily activities did not appear to meet or exceed
any listed mental disability or result in a complete inability to
function outside of his home.
3
Agoraphobia is an "irrational fear of leaving the familiar
setting of home, so pervasive that a large number of external life
situations are entered in reluctantly or are avoided". See
Stedman's Medical Dictionary (25th ed. 1990).
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Dr. Williams disagreed with Drs. Fantasia's and Dubin's
estimate of Martinez's GAF factor. Dr. Williams opined that the
activities reported by Martinez indicated that a more accurate
estimate would be "around 60 or something like that". Dr. Williams
stated that Martinez's reported daily activities did not indicate
serious depression or ongoing anxiety, and noted that the only
psychosocial stressor cited by Drs. Fantasia and Dubin was
unemployment, which, "kind of implies [that] if he got a job, . .
. he'd be well".
Vocational expert Frederick Fox testified that Martinez's past
employment as a taxi driver was semi-skilled, medium work and that
his past employment as a tree trimmer was semi-skilled, heavy work.
The ALJ asked whether a man of Martinez's age and work history, who
had no physical restrictions, but who suffered from moderately
severe dysthymia, panic disorder, agoraphobia, and borderline
intelligence, could perform Martinez's past relevant work. Fox
opined that such a person could not work as a cab driver, but could
work as a tree trimmer. When the ALJ changed the hypothetical to
indicate severe, rather than moderately severe, mental conditions,
Fox opined that the person would be unable also to work as a tree
trimmer.
Next, the ALJ asked Fox to assume that the individual suffered
from moderate dysthymia, panic, and agoraphobia and had severe
daytime nausea twice a week. Fox responded that the individual
would likely be unable to work as a tree trimmer. Dr. Williams
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agreed that Martinez's reported symptoms of nausea and dizziness
contraindicated tree-trimming work.
The ALJ asked Fox if there were other unskilled jobs which
this hypothetical individual could perform if his mental problems
were moderate. Fox responded that the individual could work as an
irrigator or an agricultural worker. When the ALJ changed the
hypothetical to give the individual a "severe rather than medium"
mental disorder, Fox opined that the individual would be unable to
perform those jobs. Martinez's representative was given an
opportunity to cross-examine the vocational expert.
The ALJ accepted Dr. Williams's assessment of Martinez's
physical and mental impairments, including his determination that
the evidence did not support the GAF factor of 50 reported by the
consultative examiners. The ALJ concluded that Martinez's
impairments did not rise to the level of a listed disability. The
ALJ found that Martinez suffered some symptoms of nervousness,
pain, dizziness, and nausea, but determined that Martinez's claims
as to the extent of his symptoms were not credible. The ALJ noted
that Martinez's claims of blackouts were unsupported and
inconsistent; his allegations about the frequency of his vomiting
attacks were inconsistent; medical tests had disclosed no
esophageal irritation consistent with his reported frequency of
vomiting; and his visual problems could be corrected with glasses.
The ALJ concluded that Martinez had a psychological
impairment, but agreed with Dr. Williams' assessment that the
problem was moderate rather than clinically severe. The ALJ
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reasoned that Martinez's psychological problems were long-term, he
had worked for much of this time, and there was no reason why he
should now be unable to work. The ALJ determined that it would be
difficult for Martinez to work in highly stressful situations and
that his borderline intellectual abilities limited him to simple,
unskilled work. Accepting that Martinez was unable to perform his
past relevant work, the ALJ determined that Martinez was
nevertheless not disabled within the meaning of the Social Security
Act because he could work as an irrigation or farm worker, which
are jobs available in substantial numbers in the national economy.
B.
The Commissioner may carry her burden at step 5 by relying on
a vocational expert's response to hypothetical questions which
incorporate all disabilities recognized by the ALJ. Morris v.
Bowen, 864 F.2d 333, 335-36 (5th Cir. 1988). Martinez contends
that the ALJ's hypothetical questions to the vocational expert
failed to rebut the step 5 presumption of disability because they
did not incorporate all of his limitations. He argues that the
hypothetical questions did not consider Martinez's limited ability
to relate to co-workers, exercise judgment, accept supervision, and
function independently; his total inability to deal with work-
related stress; his poor social functioning, impaired ability to
concentrate, and infrequent episodes of withdrawal due to
"deterioration or decompensation in work or work-like settings".
Unless the hypothetical question posed to the vocational
expert by the ALJ can be said to incorporate reasonably
all disabilities of the claimant recognized by the ALJ,
and the claimant or his representative is afforded the
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opportunity to correct deficiencies in the ALJ's question
by mentioning or suggesting to the vocational expert any
purported defects in the hypothetical questions
(including additional disabilities not recognized by the
ALJ's findings and disabilities recognized but omitted
from the question), a determination of non-disability
based on such a defective question cannot stand.
Bowling v. Shalala, 36 F.3d 431, 436 (5th Cir. 1994). Martinez was
given the opportunity to correct deficiencies in the hypothetical
questions but did not.
1.
The ALJ was not required to include in his hypothetical
questions assumptions concerning Martinez's ability to relate to
co-workers, exercise judgment, accept supervision, function
independently, deal with work-related stress, and function
socially. Although these factors may be caused by his problems,
they are not in themselves separate disabilities. See Bellow v.
Chater, No. 95-30035 (5th Cir. Aug. 16, 1995) at 4 n.3
(unpublished). Furthermore, Martinez's paralegal representative
had an opportunity to point out any errors in the hypothetical.
Bowling, 36 F.3d at 436.
2.
Drs. Fantasia and Dubin reported that Martinez's concentration
skills were "essentially normal," but that his cognitive processing
speed and psychomotor behavior were "significantly impaired". The
ALJ found that Martinez could perform only simple, unskilled work;
and he limited his hypothetical question to the vocational expert
to this type of work. The ALJ also provided that the hypothetical
individual described to the vocational expert was a person of
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"borderline intelligence". No error is presented because the ALJ's
hypotheticals presented record evidence to adequately support
assumptions made by the vocational expert. Bowling, 36 F.3d at
436. The vocational expert was thus enabled to express a
meaningful opinion concerning Martinez's employability.
3.
The ALJ rejected Martinez's descriptions of the severity of
his panic attacks (consisting of nervousness, pain, and dizziness)
and blackouts as exaggerated and, thus, incredible. The ALJ is in
the best position to determine the persuasiveness of evidence, and
we do not re-weigh it. Falco v. Shalala, 27 F.3d 160, 164 (5th
Cir. 1994); Chaparro v. Bowen, 815 F.2d 1008, 1010-11 (5th Cir.
1987). The ALJ concurred with Dr. Williams's rejection of the
psychologists' assessment (based on only one interview) of the
severity of Martinez's disorder as not supported by the
uncontroverted evidence of Martinez's reported activities. See
Greenspan v. Shalala, 38 F.3d 232, 237 (5th Cir. 1994) (medical
evidence may be rejected as incredible if it is inconsistent with
other evidence), cert. denied, 115 S. Ct. 1984 (1995); Bradley v.
Bowen, 809 F.2d 1054, 1057 (5th Cir. 1987). Obviously, the ALJ is
not required to incorporate in his hypotheticals disabilities which
he does not recognize. See Bowling, 36 F.3d at 436. Because the
ALJ rejected Martinez's description of the severity of his episodes
of withdrawal, he was not required to include this information in
his hypothetical questions. See id.
C.
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Martinez claims that substantial evidence does not support the
ALJ's rejection of his testimony concerning the severity and
frequency of his panic attacks. The ALJ determined that Martinez
suffered from panic attacks and vomiting, but that his "allegations
[could not] be afforded a full degree of credibility". To support
his credibility determination, the ALJ cited Dr. Williams's
rejection of the psychologists' diagnosis as inconsistent with
Martinez's level of activity, the fact that Martinez had never
sought treatment for his mental disorder, inconsistencies in
Martinez's descriptions of his problems, and the fact that
Martinez's reports of frequent vomiting were inconsistent with the
results of his medical examination.
It goes without saying that, in evaluating the credibility of
Martinez's testimony, the ALJ was entitled to consider evidence of
Martinez's daily activities, inconsistencies in his testimony,
Reyes v. Sullivan, 915 F.2d 151, 155 (5th Cir. 1990), and whether
he had sought treatment for his mental problems, Selders, 914 F.2d
at 619. The ALJ's finding is supported by substantial evidence.
See Richardson, 402 U.S. at 390.
D.
Martinez suggests that the ALJ improperly applied the
regulations when he determined that Martinez had the mental
residual functional capacity to work. He asserts that, in
evaluating Martinez's mental impairment, the ALJ relied solely on
Part "B" of the Psychiatric Review Technique Form to determine that
Martinez could perform substantial gainful activity, and failed to
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consider Part "A" of the form. See 20 C.F.R. § 404.1520a and pt.
404, subpt. P, app. 1, § 12.02 (1995).
To be classified as mentally impaired from an organic mental
disorder under the regulations, an applicant must meet the criteria
of both Parts "A" and "B" of § 12.02. 20 C.F.R. pt. 404, subpt. P,
app. 1, § 12.02 (1995). Part "A" requires a finding of a
demonstrated loss of specific cognitive abilities of affective
changes and medical documentation of specified psychiatric
symptoms. Id. Part "B" determines the severity of the disorder
and states, inter alia, that the disorder must result in marked
restriction of daily activities or social functioning. Id.
Because the ALJ found that Martinez did not meet the criteria in
Part B, the ALJ was correct in determining that organic mental
disorders were absent since the criteria in both A and B were not
met. Id.
E.
Martinez urges that the record does not support the ALJ's
determination that he has the mental capacity to perform unskilled
work. As discussed above, the ALJ did not err by accepting Dr.
Williams's assessment of Martinez's mental state over the opinion
of the consulting psychologists. The ALJ's hypothetical question
to the vocational expert included the mental limitations identified
by Dr. Williams. The determination that Martinez can perform
unskilled work is supported by substantial evidence. See
Richardson, 402 U.S. at 390.
VI.
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For the foregoing reasons, the judgment is
AFFIRMED.
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