Skalij vs. Chater (5th Cir. 1996)

Federal Circuits, Fifth Circuit (December 16, 1996)

Docket number: 95-11061


Permanent Link: http://vlex.com/vid/skalij-vs-chater-18396161
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U.S. Court of Appeals for the Fifth Circuit - 49 Soc.Sec.Rep.Ser. 118, Unempl.Ins.Rep. (Cch) P 14848B Don E. Leggett, Plaintiff-Appellant, v. Shirley E. Chater, Commissioner of the Social Security Administration, Defendant-Appellee., 67 F.3d 558 (5th Cir. 1995)

U.S. Court of Appeals for the Fifth Circuit - 49 Soc.Sec.Rep.Ser. 112, Unempl.Ins.Rep. (Cch) P 14847B Travis Ripley, Plaintiff-Appellant, v. Shirley S. Chater, Commissioner of Social Security, Defendant-Appellee., 67 F.3d 552 (5th Cir. 1995)

Code of Federal Regulations - Title 20: Employees' Benefits - 20 CFR 404.920 - Reconsidered determination.

U.S. Court of Appeals for the Fifth Circuit - 45 Soc.Sec.Rep.Ser. 618, Unempl.Ins.Rep. (Cch) P 14170B Glenn G. Latham, Plaintiff-Appellant, v. Donna E. Shalala, Secretary Department of Health & Human Services, Defendant-Appellee., 36 F.3d 482 (5th Cir. 1994)

U.S. Court of Appeals for the Fifth Circuit - 32 Soc.Sec.Rep.Ser. 6, Unempl.Ins.Rep. Cch 15818a Arthur K. Moore, Plaintiff-Appellant, v. Louis W. Sullivan, M.D., Secretary, of Health and Human Services, Defendant-Appellee., 919 F.2d 901 (5th Cir. 1990)


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* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 95-11061 LATISA SKALIJ, Plaintiff-Appellant, VERSUS SHIRLEY S. CHATER, COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee.

Appeal from the United States District Court For the Northern District of Texas (4:94-CV-361) December 4, 1996 Before JOLLY, JONES, and PARKER, Circuit Judges.

PER CURIAM: * Latisa S kalij (“Skalij”) appeals the district court’s order granting summary judgm ent in favor of the Commissioner of Social Security (“Commissioner”), thereby affirming the Commissioner’s denial of Skalij’s appli cation for supplemental security income (“SSI”) benefits. For the following reasons, we affirm.

FACTS AND PROCEEDINGS BELOW Skalij applied for SSI benefits, alleging that a back and neck injury prevented her from being gainfully employed. Her claim was denied both initially and on reconsideration. Skalij then requested a hearing before an administrative law judge (“ALJ”). At the hearing before th e ALJ, Skalij alleged disability due to depression as well as due to her previously alleged back and neck injury. The ALJ ordered that Skalij undergo psychiatric evaluation and psychological testin g. After receiving two psychiatric and psyc hological diagnoses, the ALJ issued a decision finding that Skalij was not disabled and denying her claim for SSI benefits. Skalij requested review by the Appeals Council. The Appeals Council remanded the case to the ALJ for testimony from a vocational expert and to make more thorough findings. After a supplemental hearing, the ALJ again issued a decision finding that Skalij was not disabled and denying her claim for benefits.

Skalij requested another review by the Appeals Council and she attached to her request new evide nce concerning her psychiatric condition. The Appeals Council denied her request for review.

Skalij then filed suit in district court, seeking review of the CommissionerÂ’s decision. She again attached the new evidence concerning her psychiatric condition. In granting the Commissioner summary jud gment, the district court affirmed the CommissionerÂ’s denial of SSI benefits. Skalij now appeals to this Court.

DISCUSSION A. The Commissioner§ 423(d)(1)(a).

Substantial gainful activity is defined as work activity involving significant physical or mental abilities for pay or profit. 20 C.F.R. § 404.1572. The claimant must also show that she is no longer capable of performing her current or past relevant work. 20 C.F.R. § 404.920(e). If the claimant satisfies this burden, then the Commissioner must show that the claimant is capable of engaging is some type of substantial activity and that other jobs exist for the claimant in the national economy. Ferguson v. Schweiker , 641 F.2d 243, 246 (5th Cir. 1981). Once the Commissioner makes such a showing, the burden of proof shifts back to the claimant to rebut this finding. Mays v. Bowen , 837 F.2d 1362, 1364 (5th Cir. 1988).

The ALJ uses a five-step se quential process to make determinations of disability for SSI benefits. The ALJ determines (1) if the claimant is not working in a substantial gainful activity, (2) whether the claimant has a severe impairment, (3) if the claimant§ 416.920.

Our review of a denial of disability benefits is limited to two inquiries: (1) whether substantial evidence s upports the CommissionerÂ’s decision, and (2) wh ether the decision of the Comm issioner comports with relevant legal standards. C arrier v. Sullivan , 944 F.2d 243, 245 (5th Cir. 1991). Substanti al evidence is more than a mere scintilla of evidence, but less tha n a preponderance of the evidence. Villa v. Sullivan , 895 F.2d 1019, 1021-22 (5th Cir. 1990). A finding of no substantial evidence is appropriate only if there are no cred ible evidentiary choices or medical findings to support the decision. J ohnson v. Bowen , 864 F.2d 340, 343-44 (5th Cir. 1988). We may neither reweigh the evidenc e in the record nor substitute our judgment for the CommissionerÂ’s. H ollis v. Bowen , 837 F.2d 1378, 1383 (5th Cir. 1988).

Skalij contends that the CommissionerÂ’s decision regarding her mental impairment is no t supported by substantial evidence. 1 In support of her contention, she points to her somewhat contradictory psychological evaluations. Because the claimant has the burden of establishing the existence of a disability, Skalij has the burden of showin g that the CommissionerÂ’s decision is not supported by substantial evidence in the record. S charlow v. Schwei ker , 655 F.2d 645, 648 (5th Cir. 1981). We find that substantial evidence in the record supports the ALJÂ’s finding that SkalijÂ’s impairment did no t prevent her being gainfully employed. Skalij underwent two psychiatric evaluations.

In the first, the physician evaluated Skalij in various categories relating to work-related functions as good, fair, above average, and average. Supporting medical records and documentation accompanied his evaluation. 2 In a second assessment, a different physician ranked Skalij in the same categories as fair and “poor to no ability” and noted that medical intervention might eliminate some of her symptoms. The ALJ found that the first evaluation should be given more weight. Credibility is generally accorded to the ALJ as the fi nder of fact, and his credibility evaluation is entitled to deference. C arrier v. Sullivan , 944 F.2d 243, 247 (5th Cir. 1991); Wren v. Sullivan , 925 F.2d 123, 12 8 (5th Cir. 1991).

The Commissioner is entitled to determine the credibility of medical experts and to weigh their opinions accordingly. M oore v. Sullivan , 919 F.2d 901, 905 (5th Cir. 1990). In fact, it is well established that it is for the Commissioner, and not the courts, to choose between conflicting medical opinions. B radley v. Bowen , 809 F.2d 1054, 1 057 (5th Cir. 1987); J ones v. Heckler , 702 F.2d 616, 621 (5th Cir. 1983).

At the supplemental hearing held by the ALJ, a vocational expert testified that a person of SkalijÂ’s age and education, whose functional capacity required her to sit and stand at will, with no greater than light exertional demands, and with limited exposure to the public, could perform simple assembly jobs, of which there were many available in the local economy. The first psychiatric examination together with the vocational expertÂ’s testimony provide substantial evidence to support the decision of the Commissioner.

B. Consideration of New Evidence Skalij next argues that the district court erred in refusing to remand Skalij§ 405(g); L atham v. Shalala , 36 F.3d 482, 483 (5th Cir. 1994). New evidence is materia l only if it relates to the time period for which the disability benefits were denied, and th ere is a reasonable probability that such evidenc e would alter the CommissionerÂ’s decision. R ipley v. Chater , 67 F.3d 552, 555 (5th Cir. 1995). To demonstrate “good cause,” the claimant must provide an excusable explanation for not submitting the records earlier in the proceeding. P ierre v. Sullivan , 884 F.2d 799, 803 (5th Cir. 1989) (reviewing good cause). Skalij presented a significant amount of medical evidence for the first time to the district court. This evidence included medical records of testing and treatment by physicians and a diary kept by Skalij. Even assuming arguendo that this evidence is material, Skalij has not shown good cause for her failure to submit the evidence during the course of the administrative proceedings.

A cover letter accompanying the new evidence is dated a date prior to the Appeals CouncilÂ’s second re view. Skalij offers as explanation for her failure to incorporate this evidence into the a dministrative record only the explanation that the records were misfiled in her attorneyÂ’s office. This explanation is insufficient. S ee Id. A ccordingly, we hold that the district cou rt did not err in refusing to remand SkalijÂ’s claim to the Commissioner for consideration of the new evidence.

CONCLUSION For the foregoing reasons, we AFFIRM.

1 Skalij does not challenge the CommissionerÂ’s finding that her back and neck injury did not render her disabled

2 A fter the supplemental hearing, Skalij submitted a second assessment form from this same physician reflecting different conclusions. In this second assessment form, the physician ranked Skalij as having “poor or no ability” in some of the work-related ability categories. However, unlike this physician’s first assessment, this second assessment wa s not accompanied by any medical findings or documentation, and thus lacked an explanation for the changed assessment. As we have previously held, it is not error for an ALJ to disregard conclusory medical opinions not supported by evidence. Leggett v. Chater , 67 F.3d 558, 566 (5th Cir. 1995).

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