### I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 13-30212 Summary Calendar

TAMMY LAFLEUR, Plaintiff-Appellant
v. CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant-Appellee

Appeal from the United States District Court for the Western District of Louisiana U SDC No. 6:11-CV-01620-TLM

Before DAVIS, DENNIS, and SOUTHWICK, Circuit Judges. PER CURIAM: * Tammy Lafleur f

iled a claim for T itle XVI Supplemental Social Security disability benefits. Benefits were denied both in the administrative process at the Social Security Administration and after first-level j u d i cial review by the United States District Court for the Western District of Louisiana. We AFFIRM. U n i t e d S t a te s C o u rt o f A p p e al s F i f t h C i rc u i t 

### F I L E D Aug ust 26, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R. 47. 5, the court has determ ined that this op inion s hould not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

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On February 7, 2011, an Administrative Law Judge (“ALJ”) conducted a hearing o n L a f

leur’s c laim and then denied benefits. The Social Security Administration’s Appeals Council affirmed. The Council’s decision constitutes the Commissioner of the Social Security Administration’s final decision. Lafleur appeals from the district court’s affirmance of the Commissioner’s decision. Lafleur seeks reversal based o n the argument that the ALJ’s residual functional capacity (“RFC”) finding was not s upported by substantial evidence. Lafleur’s argument is based on three claimed errors, and we will discuss each. The parties a gree that Lafleur has “degenerative disc disease” and “carpal tunnel syndrome” and was p reviously employed as a hotel front desk clerk. The question is whether Lafleur’s conditions are sufficiently d ebilitating as to entitle her to an award of benefits. Judicial review of a d enial o f Social Security benefits “is limited to whether the d ecision w as supported by substantial evidence.” Fields v. Bowen , 805 F.2d 1168, 1 169 (5th Cir. 1986). Substantial evidence “i s more than a mere scintilla and less than a preponderance. A finding of no s ubstantial evidence is

a p p ropriate only if n o credible evidentiary choices or medical findings suppor t the decision.” Boyd v. A pfel , 239 F.3d 698, 704 (5th C ir. 2001). In making this determination w e “scrutinize the record in its entirety

. ” F i e lds , 805 F.2d at 1169. Eligibility for benefits is evaluated under a five-step process: (1) Is the c laiman t c u r r e ntly working? (2) Can th e impairment be classified as “non-severe”? (3) Does the impairment meet th e duration requirement of 42 U.S.C. § 423(d)(1)(A) and is it listed, or medically equivalent to, an impairment in Appendix 1? (4) Can th e claimant perform her past relevant work? a nd (5) Can the claimant perform any other gainful job?
Id. a t 1170. The ALJ denied benefits at step four, which concerns whether Lafleur could still p erform past relevant work. T he ALJ found that Lafleur could return

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to her p revious work as a hotel front desk clerk. Lafleur h as the initial burden of demonstrating h er inability to perf o r m her p rior work. See id. at 1169-70. Lafleur seeks to show she carried her evidentiary b urden both by c o n tending there were errors in the RFC finding and by emphasizing the importance of certain limitations that were found to exist. One complained-of omission was that she should have been given an RFC limitation on looking do w n . D r. G eorge Smith testified at the administrative hearing that Lafleur “would have difficulty looking down on a persistent basis without the ability to c ha n g e p o sitions.” Smith also testified Lafleur would “[p]robably do better

. . . n ot having to change the position of her head and neck” in doing computer work. There is contrary evidence in the record that supports the absence of this limitation. The state’s medical consultant, Dr. Charles L ee, did not indicate any restrictions with respect to looking down. Also, Lafleur’s treating physician, Dr. Vikram Parmar, found after t wo e x a m i n ati o n s th at al th o u gh L afleur had “severe neck tenderness

. . . . [s]he can touch her chin to her chest. She can hyperextend her neck

. . . .” For these determinations, the m o s t w e i gh t i s given to treating physicians such a s Dr. Parmar, who have the greatest degree of familiarity with

a patient’s medical conditions. 20 C.F.R. § 416.927(c)(2). Less weight is given to the testimony of physicians who perform consultative examinations, such as Dr. L ee, and still less weight to testimony based on a review of medical records, such as the testimony of Dr. Smith. Id. The ALJ indicated she considered the o p i ni o n evi d e n c e “i n ac c o r d a nce with the requirements of” this a nd companion Social Security regulations. The ALJ also i ndicated she c onsidered other medical evid e n c e “based on the requirements of” 20 C.F.R. § 416.929 and made a credibility finding that Lafleur’s statements regarding “the intensity, persistence, and limiting effects” o f her symptoms were not credible insofar as they went beyond the RFC finding.

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ALJs are required to “take into c onsideration all of the evidence from the treating doctors.” Myers v. Apfel , 238 F.3d 617, 621 (5th Cir. 2001). The ALJ did
so, and the record c ontains credible m edical evidence upon which the ALJ could have relied to omit a finding as to limitations on looking down. L af l e u r also c omplains that the RFC found a limitation for overhead lifting b u t n o l i m itation on overhead reaching. The R FC stated that Lafleur could perform “light work

. . . except no overhead lifting and s tanding and walking for thirty minutes.” After a review of medical records a n d c o nsultative e xamination, Dr. Lee concluded that Lafleur did have a l imitation in “[r]eaching in all directions (including o verhead).” On the o ther hand, D r. Parmar, Lafleur’s treating physician, indicated i n treatment notes after two separate examinati o n s , t h at Lafleur “has 5/5 [normal] strength in the bilateral u pper extremities” and “normal light touch” i n t h ose extremities. Earlier treatment n otes state that Lafleur had “full range of motion and no restriction [in] movement.” Dr. Smith testified at the hearing that Lafleur “would have difficult y in working overhead,” but did not e x p o u n d upon the n a ture or extent of this difficulty. Among the items o f e v i d e n ce on which Dr. Smith relied was Dr. Parmar’s notes indicating “a good r ange of motion of her cervical spine, really at that time was not having much [pain] i n e ither extremi t y” a n d e vidence that Lafleur was “improving with [physical therapy] treatments.” The ALJ o pinion reveals that the opinions of Drs. S mith, Parmar, and Lee

were considered, and n oted “consideration of the e ntire case record” and “careful consideration of the evidence.” We have already quoted the ALJ as stating she weighed opinion evidence in accordance with 20 C.F.R. § 4 16.927(c)(1)-(2), which would give m ore w e i gh t t o the opinions of Dr. Parmar, a treating physician. Considering this testimony and o ther medical evidence in the record, there was

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substantial evidence t o support the omission of an overhead reaching l i mitation in Lafleur’s RFC. See Myers, 238 F.3d at 621. Based on an RF C f

inding that omitted any looking-down or r eaching-up limitation but include d o n e f o r overhead lifting, the ALJ found that Lafleur could return to her past work as a hotel clerk. Lafleur argues that this finding is not supported by substantial evidence. At the hearing, the ALJ asked vocational e xpert Beverly M ajors 1 to

assume a hypothetical individual w ho “has no overhead lifting or d o wnward looking [ability] and must alternate sit, stand and walk 30 minutes.” The expert was asked to s tate an opinion about that individual’s ability to work as a hotel desk clerk. T his hypo t h e t i cal “reasonably incorporated the disabilities recognized by the ALJ.” See Morris v . Bowen , 864 F.2d 333, 336 ( 5th C ir. 1988). The hypothetical even gave Laf l e u r th e benefit of the d o ubt, a ssuming a l i mitation for looking down a lthough the ALJ did not find Lafleur was l i m i t e d in this respect. The question was n ot “too abstract to reflect [ L a f l e u r]’s particular disabilities” and, prior to answering, Majors clarified an a spect of the question with the ALJ. See id. Further, Lafleur “had an opportunity to correct any defect in the hypothetical b y m e n t i oning a dditional limitations to the vocational expert.” See i d

. M aj o r s and Lafleur engaged in a short colloquy during which time Lafleur had the opportunity to speak. Lafleur argues that b ecause the R FC findings underlying the hypothetical

were in error, the finding of abili t y t o return to p a st work which relied on the vocational expert’s answer to the h ypothe t i c a l , w a s also in e rror, or not supported b y substantial evidence. Yet, Lafleur’s prem i s e – that the

1 The ALJ’s op inion ref ers to the vocational exp ert as “Lionel Bord elon, ” but the hearing trans crip t lis ts the exp ert as “Barilyn M angers
. ” Laf leur’s brief s tates that the vocational exp ert w as nam ed “Beverly Majors

. ” Regard les s of the vocational exp ert’s nam e, the content of the vocational exp ert’s tes tim ony is not contes ted

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hypothetical question was f lawed – incorrectly assumes the ALJ was obligated to f ind Lafleur was limited in her ability to r e ach overhea d

. A s we have discussed ab ov e , s ubstantial evidence supports the omission of such a limitation. In addition, we have not been pointed to any record evidence that Lafleur’s prior work involved overhead work of any kind. The description of the hotel c l erk job i n s ection 2 38.367-038 of the Dictionary of O ccupational Titles includes telephone, computer, a nd other clerical work, but does not i ndicate that a ny overhead work is a c omponent of the job. T he descriptions of Lafleur’s past work in the record, including the descriptions provided by Lafleur at the hearing, similarly do no t e v idence an overhead work component to the job. Majors testified that Lafleur’s p osition was largely “sedentary,” with Lafleur “sitting six hours” and “[t]he h e aviest weight lifted was two pounds.” L afleur’s description of the job included standing up to

answer the phone or greet customers, u sing a cash register, writing, r e trieving files from other offices, and lifting paper into computers. The ALJ’s finding that Lafleur c o uld re t u r n t o h e r p ast w ork as a hotel clerk was supported by substantial evidence. AFFIRMED.

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