Shave v. Apfel

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 00-10267

CRAIG A. SHAVE,

Plaintiff-Appellant,

VERSUS

KENNETH S. APFEL, COMMISSIONER OF SOCIAL SECURITY,

Defendant-Appellee.

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Appeal from the United States District Court
for the Northern District of Texas
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January 9, 2001
Before KENNEDY,* JONES and DeMOSS, Circuit Judges.

DeMOSS, Circuit Judge:

Craig A. Shave appeals a final judgment dismissing his 42

U.S.C. § 405(g) action for judicial review and affirming an

administrative law judge’s (ALJ) decision denying his application

for social security disability benefits. We affirm.

I.

Shave was injured in a 1992 automobile accident. Shave claims

total disability and an inability to work arising primarily from

neck, shoulder, and chest pain arising from the accident. Shave

filed his social security claim for disability benefits on

September 21, 1994. Shave's claim was denied, and then denied

*
Circuit Judge of the Sixth Circuit, sitting by designation.
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again on reconsideration. Shave requested a hearing, which was

held in June 1996 before ALJ Lindsey E. Martin. Shave, his

brother, and his wife testified concerning his abilities. The ALJ

also relied upon the testimony of a vocational expert, who

testified that Shave's past relevant work included employment as a

route deliverer, self-employed glass repairer, auto parts manager,

power shovel operator, auto mechanic, and retail store manager. The

vocational expert further testified that these jobs ranged from

exertionally light (auto parts manager, retail store manager) to

exertionally heavy (auto mechanic), and from semi-skilled to

skilled. The case was submitted primarily, however, upon the

voluminous medical records relating to Shave's condition. Some

time after the hearing, ALJ Martin retired and the case was

reassigned by ALJ W. Howard O'Bryan. While the case was pending

before the second ALJ, Shave sought leave and was granted

permission to file additional medical records relating to his

condition. In March 1997, ALJ O'Bryan entered a decision denying

benefits.

II.

The five step procedure for making a disability determination

under the Social Security Act was cogently set forth in Crowley v.

Apfel, 197 F.3d 194 (5th Cir.1999):

The Social Security Act defines "disability" as the
"inability to engage in any substantial gainful activity
by reason of any medically determinable physical or
mental impairment which can be expected to result in
death or which has lasted or can be expected to last for
a continuous period of not less than 12 months.” To
determine whether a claimant is disabled, and thus
entitled to disability benefits, a five-step analysis is
employed. First, the claimant must not be presently
working at any substantial gainful activity. Second, the
claimant must have an impairment or combination of
 -3-

impairments that are severe. An impairment or
combination of impairments is "severe" if it
"significantly limits [a claimant's] physical or mental
ability to do basic work activities." Third, the
claimant's impairment must meet or equal an impairment
listed in the appendix to the regulations. Fourth, the
impairment must prevent the claimant from returning to
his past relevant work. Fifth, the impairment must
prevent the claimant from doing any relevant work,
considering the claimant's residual functional capacity,
age, education, and past work experience. At steps one
through four, the burden of proof rests upon the claimant
to show he is disabled. If the claimant acquits this
responsibility, at step five the burden shifts to the
Commissioner to show that there is other gainful
employment the claimant is capable of performing in spite
of his existing impairments. If the Commissioner meets
this burden, the claimant must then prove he in fact
cannot perform the alternate work.

Id. at 197-98 (footnotes omitted).

In this case, the ALJ declined to make a definitive finding at

step 1. The ALJ noted that when Shave was last employed in

substantial gainful activity was an issue complicated by the need

to characterize Shave’s various business dealings, which included

continued ownership of certain small businesses. The ALJ did point

out that, contrary to his claim and his hearing testimony, Shave

was still gainfully employed at least through 1994. The ALJ then

concluded that he could dispense with a finding at step 1 because

Shave was not, in any event, disabled.

With respect to step 2, the ALJ reviewed allegations of severe

physical impairment arising from shoulder strain and pain and

severe mental impairment arising from the somatoform disorder. The

ALJ concluded that the shoulder strain placed some limitations on

his life activities, including his work capacity, and could

therefore be considered a severe impairment. The ALJ found no

severe impairment, however, arising from Shave’s claimed disabling

pain. In making that determination, the ALJ considered Shave’s
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daily activities, the medications he takes, the functional

restrictions placed on him, the kinds of treatment he has had,

precipitating and aggravating factors, the type, dosage,

effectiveness and adverse side effects of pain medications taken,

the nature, location, intensity, onset, frequency, and radiation of

the pain alleged, and the observations of treating and reviewing

physicians. The ALJ further found no severe mental impairment

arising from the somatoform disorder. The ALJ expressly found that

Shave’s subjective complaints were not completely supported by

objective medical evidence, and that to the extent those claims

were not supported, his credibility with respect to those

subjective complaints was diminished. As a consequence, the ALJ

concluded at step 3 that Shave did not have an impairment or

combination of impairments that met any of the medical listings.

The ALJ concluded the inquiry at step 4, finding that Shave

retained the capacity to perform past relevant work, including work

as a driver, owner of contract hauling business, owner of

windshield repair business, operator of convenience store, sales,

and manager of an auto parts store. Indeed, the ALJ noted that

Shave continued to operate his contract hauling business, which

according to record evidence generated more than $2,100 in gross

revenue per week. Based upon the above analysis, the ALJ held that

Shave retained the ability to work and that benefits were properly

denied.

Shave sought review by the Appeals Council. Shave argued that

the ALJ's decision was not supported by substantial evidence, and

that the ALJ to whom the case was reassigned was obligated to

conduct a second administrative hearing before rendering a decision
 -5-

in his case. While the case was pending on appeal, Shave sought

leave and was granted permission to file additional medical records

relating to his current medical condition. In March 1998, Shave

filed approximately twenty-five pages of additional medical

records, which were considered by the Appeals Council. In June

1998, the Appeals Council entered a decision denying further

review.

Shave then filed the instant action for judicial review of the

Commissioner's final decision pursuant to 42 U.S.C. § 405(g). The

parties consented to proceed before a magistrate judge and cross-

motions for summary judgment were filed. In January 1998, the

magistrate judge entered a final judgment in favor of the

Commissioner, affirming the ALJ's determination that Shave is not

entitled to disability benefits. Shave filed a timely appeal.

III.

Shave first maintains that the ALJ's decision is premised upon

factual error because it fails to accord sufficient weight to

medical records provided by his treating physician. For example,

the ALJ stated in one portion of his opinion that Shave would not

be able to lift more than 50 pounds, while his treating physician

twice reported that Shave should be limited to lifting 35 pounds.

As an initial matter, we note that the passage identified by Shave

is probably not material to the ALJ's decision. The ALJ concluded

that Shave retained the ability perform certain specific jobs

identified by the vocational expert as past relevant work,

including jobs that could be classified as sedentary or light

depending upon how they are performed by Shave. Those jobs do not

require an exertional ability in excess of that identified by
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Shave's own physician. See 20 C.F.R. § 404.1567(b) (light work

involves lifting no more than 20 pounds). Thus, Shave's argument

does not tend to undermine the ALJ's ultimate determination that

Shave could perform past relevant work. Moreover, and to the

extent that the ALJ's determination reflected a limited rejection

of the opinions or medical records provided by his treating

physician, we find that rejection to be justified by the character

of the records provided and to be supported by overwhelming medical

evidence from other treating and reviewing physicians. See Newton

v. Apfel, 209 F.3d 448, 456 (5th Cir. 2000) (“Good cause may permit

an ALJ to discount the weight of a treating physician relative to

other experts where the treating physician's evidence is

conclusory, is unsupported by medically acceptable clinical,

laboratory, or diagnostic techniques, or is otherwise unsupported

by the evidence.”).

Shave also maintains that the ALJ's decision is premised upon

reversible factual error because the ALJ failed to consider

evidence that Shave was taking pain medication when deciding

whether he was suffering from disabling pain. Once again, we

disagree. When read in context, the ALJ's decision reflects an

accurate understanding of Shave's medical regimen, and further,

rests upon a number of independently sufficient factors that

support the ALJ's decision that Shave does not suffer from

disabling pain.

Shave also argues that the ALJ’s finding that he had no

limitations due to a mental impairment is not supported by

substantial evidence. He refers to his treatment in October 1994

by Dr. Khatami, who was of the opinion that Shave suffered from
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post traumatic stress syndrome arising from the accident. Shave

was treated over a period of two weeks and then discharged from Dr.

Khatami's care. While there is evidence that Shave continued to

experience stress and perhaps depression arising from the accident

and other personal concerns, there is no evidence tending to

support the proposition that Shave suffered from a disabling mental

impairment that precluded him from seeking gainful employment.

There was substantial evidence to the contrary. A January 3, 1995

evaluation by Dr. Tomlinson reflected no more than slight

impairment in social, occupational, or school functioning.

Significantly, Shave did in fact continue to work during at least

some of this period. Shave reported to Dr. Tomlinson that he owned

a body shop where he did detail work and rebuilt wrecked and burned

automobiles, and that he lived by himself in an apartment, took

care of all his personal needs and household chores, was able to

drive, handled his own affairs, and enjoyed working on cars. He

visited friends and dated about once a week. Shave himself

described his present mental health as “fair.” It is apparent from

Shave’s own statements to Dr. Tomlinson that as of January 1995, he

had no mental difficulties that were severe enough to impair his

basic ability to function. We conclude that there is an ample

evidentiary basis for the ALJ's determination that Shave did not

suffer from a disabling mental impairment.

Having reviewed the record in its entirety, we conclude that

the ALJ's decision denying benefits is adequately supported by

competent and objective medical evidence.

IV.
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Shave next argues that the ALJ committed legal error by

deciding his case without personally conducting a second hearing

once the case was reassigned. Shave relies upon internal

procedures defined in the Hearings, Appeals and Litigation Law

Manual, which provides:

When an Administrative Law Judge (ALJ) who conducted a
hearing in a case is not available to issue the decision
because of death, retirement, resignation, prolonged
leave of 30 or more days, etc., the Hearing Office Chief
ALJ will reassign the case to another ALJ. The ALJ to
whom the case is reassigned will review the record and
determine whether or not another hearing is required to
issue a decision. The ALJ's review will include all of
the evidence of record, including the cassette recording
of the hearing.

1. If the ALJ is prepared to issue a fully favorable
decision, another hearing would not be necessary.

2. If the ALJ is prepared to issue a less than favorable
decision, another hearing may be necessary. For example,
another hearing would be necessary if . . . the claimant
alleges disabling pain, and the ALJ believes that the
claimant's credibility and demeanor could be a
significant factor in deciding the case.

HALLEX I-2-840. Shave points out that the ALJ expressly found that

his credibility was diminished to the extent not supported by the

objective medical evidence. Thus, Shave argues that ALJ O'Bryan

had an imperative and unavoidable obligation to hold a second

hearing prior to deciding his case.

This Circuit has expressed a strong preference for requiring

the social security administration to follow its own internal

procedures. See Newton, 209 F.3d at 459 (“While HALLEX does not

carry the authority of law, this court has held that where the

rights of individuals are affected, an agency must follow its own

procedures, even where the internal procedures are more rigorous

than would otherwise be required.”). This Court requires, however,
 -9-

a showing that the claimant was prejudiced by the agency's failure

to follow a particular rule before such a failure will be permitted

to serve as the basis for relief from an ALJ's decision. See id.

As an initial matter, we express doubt about whether the

circumstances at issue in this case fall within the letter or

spirit of the rule at issue. The ALJ's limited rejection of

Shave's credibility was premised, not upon Shave's demeanor or any

other factor that would be better observed in a live hearing, but

upon controverting and overwhelming medical evidence to the

contrary. Moreover, the ALJ's limited rejection of Shave's

credibility was based in part upon the conflict between Shave's

hearing testimony and the written record of his own

characterization of his condition at the time medical treatment was

received. For these reasons, Shave's credibility is not

necessarily a “significant” or deciding factor in the decision and

a second hearing would not have added in any meaningful way to the

administrative record. More importantly, Shave does not offer any

theory that would support a contrary conclusion. Therefore,

without regard to whether HALLEX I-2-840 would require a second

hearing in this case, Shave cannot make the showing of prejudice

required to support relief from the ALJ's decision.

V.

Shave's final argument is that the ALJ's decision must be

reversed because the additional medical records submitted to the

Appeals Council were not before the ALJ when a decision was made.

The Appeals Council decided that the additional evidence failed to

provide a basis for changing the ALJ’s decision. We agree. The

great majority of the records provided state earlier diagnoses and
 -10-

then impose further limitations without providing any objective

medical support for those limitations. Thus, the evidence is of

only limited probative value with respect to the proposition that

Shave's condition experienced any significant deterioration

material to the ALJ's disability determination. Further, to the

extent Shave's additional submission is probative at all, those

records are not material to the ALJ's determination that Shave was

not entitled to benefits for the period sought. See Falco v.

Shalala, 27 F.3d 160, 164 (5th Cir. 1994) (evidence relating to

subsequent deterioration of a previously non-disabling condition is

not material unless it relates to the time period for which

benefits were sought and denied); id. at 164 n.20 (noting that

claimant was free to seek benefits for the period covered by the

additional medical records). We agree with the Appeals Council's

determination that the additional medical records do not provide

any basis for further review at this time.

CONCLUSION

The final judgment entered below is in all respects AFFIRMED.