Chambliss v. Massanari

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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No. 00-41420
Summary Calendar
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ROBERT LEE CHAMBLISS,

Plaintiff-Appellant

VERSUS

LARRY G. MASSANARI, ACTING COMMISSIONER OF SOCIAL SECURITY,

Defendant-Appellee

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Appeal from the United States District Court
For the Eastern District of Texas

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October 18, 2001

Before JOLLY, DeMOSS, and PARKER, Circuit Judges.

PER CURIAM:

Robert Lee Chambliss (“Chambliss”) appeals from the district

court’s judgment affirming the denial of his application for

disability insurance benefits. He argues that the (1)

Administrative Law Judge (“ALJ”) improperly evaluated his

allegations of pain; (2) the ALJ did not give appropriate weight to

the Veterans Administration’s (“VA”) determination that he was

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permanently and totally disabled; and (3) the ALJ relied solely on

expert witness testimony and not his medical records.

1. Allegations of Pain

The ALJ did not improperly evaluate the claimant’s allegations

of pain. Whether pain is disabling is an issue for the ALJ, who

has the primary responsibility for resolving conflicts in the

evidence. See Carrier v. Sullivan, 944 F.2d 243, 247 (5th Cir.

1991). It is within the ALJ's discretion to determine the

disabling nature of a claimant's pain, and the ALJ's determination

is entitled to considerable deference. See Wren v. Sullivan, 925

F.2d 123, 128 (5th Cir. 1991); James v. Bowen, 793 F.2d 702, 706

(5th Cir. 1986). The determination whether an applicant is able to

work despite some pain is within the province of the administrative

agency and should be upheld if supported by substantial evidence.

See Jones v. Heckler, 702 F.2d 616, 622 (5th Cir. 1983). Moreover,

pain must be constant, unremitting, and wholly unresponsive to

therapeutic treatment to be disabling. See Falco v. Shalala, 27

F.3d 160, 163 (5th Cir. 1994). Subjective complaints of pain must

also be corroborated by objective medical evidence. See Houston v.

Sullivan, 895 F.2d 1012, 1016 (5th Cir. 1989).

In the instant case, the ALJ properly considered Chambliss’

complaints of chest pain. However, the ALJ determined that

Chambliss’ statements concerning his impairments, i.e., chest pain,

and their impact on his ability to work were “not entirely credible

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in light of the reports of the treating and examining practitioners

and the medical history.” The ALJ concluded that “nothing [in the

medical records] shows significant ongoing cardiac problems or any

basis for restricting the claimant to less than light work

activity, limited by seizure precautions and a restriction from

exposure to concentrated pulmonary irritants.” (Tr. At 14). Based

upon the medical records in evidence, we find the ALJ’s

determination that the claimant’s alleged pain was not sufficient

enough to prevent substantial gainful employment to be supported by

substantial evidence.

2. VA Disability Determination

A VA rating of total and permanent disability is not legally

binding on the Commissioner because the criteria applied by the two

agencies is different, but it is evidence that is entitled to a

certain amount of weight and must be considered by the ALJ. See

Loza v. Apfel, 219 F.3d 378, 394 (5th Cir. 2000); Latham v.

Shalala, 36 F.3d 482, 483 (5th Cir. 1994); Rodriguez v. Schweiker,

640 F.2d 682, 686 (5th Cir. 1981). In Rodriguez and its progeny,

we have sometimes referred to a VA disability determination as

being entitled to “great weight.” While this is true in most

cases, the relative weight to be given this type of evidence will

vary depending upon the factual circumstances of each case. Since

the regulations for disability status differ between the SSA and

the VA, ALJs need not give “great weight” to a VA disability

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determination if they adequately explain the valid reasons for not

doing so.

In the case at bar, the ALJ considered the VA’s determination

that Chambliss was permanently and totally disabled, but gave it

diminished weight. However, the ALJ provided specific reasons for

giving the VA determination diminished weight. First, the ALJ

noted that the VA disability determination was made only a year

after Chambliss’ heart surgery. Second, although not entirely

clear from the ALJ’s decision, the ALJ apparently found that the VA

disability determination and the treating physician’s opinion that

Chambliss could not work were “conclusory” in nature because they

did not adequately explain why Chambliss could not engage in light

work activity. Furthermore, the ALJ evidently discounted the

treating physician’s opinion because it was made as part of an

application for food stamps (based upon need). Because the ALJ

considered the VA disability determination and set forth valid

reasons for giving the determination diminished weight, we cannot

say that the ALJ erred simply because it did not give “great

weight” to the VA disability determination.

3. Inappropriate Weight Given to Expert Witness Testimony

Chambliss argues for the first time in this appeal that the

ALJ based his decision solely upon the expert witness’ testimony

and not the medical records. As a general rule, this court does

not review issues raised for the first time on appeal. See Kinash

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v. Callahan, 129 F.3d 736, 739 n.10 (5th Cir. 1997). Therefore, it

is not necessary to address this issue.1

4. Conclusion

Our review of the evidence indicates a mixed record concerning

Chamblis’ health problems and their impact on his ability to engage

in substantial gainful work activity during the relevant time

period. However, the task of weighing the evidence is the province

of the ALJ. Our job is merely to determine if there is substantial

evidence in the record as a whole which supports the ALJ’s

decision. See Greenspan v. Shalala, 38 F.3d 232, 240 (5th Cir.

1994). Since substantial evidence does exist, the ALJ’s decision

is upheld.

AFFIRMED.

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We note, however, that Chambliss’ contention is without merit
because the ALJ based his decision upon both the testimony elicited
from the expert witness as well as claimant’s medical records. The
relative weight to be given these pieces of evidence is within the
ALJ’s discretion. See Johnson v. Bowen, 864 F.2d 340, 347 (5th
Cir. 1988).

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