Domingue v. Barnhart

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS September 23, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk

No. 04-30197
Summary Calendar

SHAWANNA DOMINGUE,

Plaintiff-Appellant,

versus

JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY,

Defendant-Appellee.

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Appeal from the United States District Court
for the Western District of Louisiana

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Before REAVLEY, BARKSDALE and EMILIO M. GARZA, Circuit Judges.

PER CURIAM:

Shawanna Domingue appeals from the district court’s judgment

affirming the denial of her application for Child Disability

Benefits and Supplemental Security Income. Domingue argues that

the administrative law judge (ALJ) failed to articulate the

proper standard under Loza v. Apfel, 219 F.3d 378, 391-92 (5th

Cir. 2000), when the ALJ determined that Domingue’s alleged

depression was not a severe impairment. Domingue also contends

that the district court erred by not addressing two of her

claims.

The ALJ did not misapply the standard for identifying a non-

severe impairment because the ALJ concluded that the alleged

depression was no impairment at all. The ALJ’s conclusion is
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fully supported by substantial evidence in the record. At the

administrative level Domingue did not contend that depression was

an impairment, and, in the courts, she pointed to no evidence

indicating that her alleged depression affected her ability to

work. See Pierre v. Sullivan, 884 F.2d 799, 803 (5th Cir. 1989)

(“isolated comments” about claimant’s intellectual functioning,

viewed within whole record, were insufficient to raise suspicion

of mental retardation); Shave v. Apfel, 238 F.3d 592, 596 (5th

Cir. 2001) (no evidence that an alleged impairment precluded

employment).

Domingue is correct that the district court failed to

address two of her claims. However, remand is unnecessary

because this court reviews the record under the same standard as

the district court, and the record contains substantial evidence

to support the ALJ’s conclusion. See Martinez v. Chater, 64 F.3d

172, 173 (5th Cir. 1995) (avoiding remand and affirming where

there was “substantial evidence in the record to support the

Commissioner’s decision”).

The record reveals substantial evidence that Domingue’s

intellectual functioning was “borderline” and did not fit within

the listed impairment of mental retardation combined with other

impairments as provided by 20 C.F.R. § 404, Subpt. P., App. 1,

§ 12.05(C). In addition, the ALJ posited an adequate

hypothetical question to the vocational expert, taking into

account all the restrictions reasonably warranted by the

evidence, and properly relied on the vocational expert’s
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testimony that Domingue is able to perform work in the national

economy. See Morris v. Bowen, 864 F.2d 333, 336 (5th Cir. 1988).

The judgment of the district court is

AFFIRMED.