IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 10-50576

Summary Calendar

JOE H. HERRERA,

Plaintiff–Appellant

v.

COMMISSIONER OF SOCIAL SECURITY, MICHAEL J. ASTRUE,

Defendant–Appellee

Appeal from the United States District Court

for the Western District of Texas

1:09-CV-683

Before KING, BENAVIDES, and ELROD, Circuit Judges.

PER CURIAM:

*

Appellant Joe H. Herrera appeals from a final judgment of the district

court affirming the decision of the Commissioner of the Social Security

Administration denying disability benefits. We find that substantial evidence

supported the Commissioner’s decision to deny disability benefits, and affirm the

judgment of the district court.

United States Court of Appeals

Fifth Circuit

F I L E D

December 30, 2010

Lyle W. Cayce

Clerk

 Pursuant to 5TH CIR. R. 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 5TH CIR.

R. 47.5.4.

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I. BACKGROUND

Herrera, previously employed as a concrete truck driver, filed for

Disability Insurance Benefits on November 30, 2006. Herrera alleged an

inability to work beginning August 21, 2006, when he slipped from a ladder on

his truck, sustaining a blow to the left side of his chest in the fall.

After denial of his application, Herrera requested a hearing before an

Administrative Law Judge (“ALJ”), which was held on July 7, 2008. Herrera,

represented by counsel, testified that he was unable to work due to constant

back pain unresponsive to pain medication or physical therapy, which has

restricted his ability to lift and carry more than five to ten pounds, and sit or

stand for extended periods of time. He also testified that the pain limited his

ability to engage in daily activities such as bathing and dressing without

assistance. Evidence in the record shows that Herrera has also been diagnosed

with diabetes mellitus, acid reflux, pancreatitis, and an adjustment disorder

with anxiety and depression. After the hearing and upon review of the evidence

in the record, the ALJ denied Herrera’s application for benefits in a decision

issued on September 19, 2008. The Appeals Council denied Herrera’s request

for review of the ALJ’s decision on July 30, 2009, rendering it the final decision

of the Commissioner of the Social Security Administration.

On September 16, 2009, Herrera filed a complaint seeking judicial review

of the Commissioner’s decision pursuant to 42 U.S.C. § 405(g). In a Report and

Recommendation issued on May 10, 2010, a magistrate judge recommended that

the Commissioner’s decision be affirmed, finding that substantial evidence

supported the Commissioner’s determination that Herrera was not entitled to

disability benefits. Over Herrera’s objections, the district court adopted the

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magistrate judge’s Report and Recommendation and issued a final judgment

affirming the Commissioner’s decision on May 25, 2010. Herrera appeals.

II. ANALYSIS

“Our review of the Commissioner’s decision is limited to two inquiries: (1)

whether the decision is supported by substantial evidence on the record as a

whole, and (2) whether the Commissioner applied the proper legal standard.”

Perez v. Barnhart, 415 F.3d 457, 461 (5th Cir. 2005). “The Court of Appeals

cannot reweigh the evidence, but may only scrutinize the record to determine

whether it contains substantial evidence to support the Commissioner’s

decision.” Leggett v. Chater, 67 F.3d 558, 564 (5th Cir. 1995). Substantial

evidence is “more than a mere scintilla. It means such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion.” Richardson

v. Perales, 402 U.S. 389, 401 (1971) (citation and internal quotation marks

omitted). “If the Commissioner’s fact findings are supported by substantial

evidence, they are conclusive.” Perez, 415 F.3d at 461 (citing Richardson, 402

U.S. at 390).

A person is “disabled” within the meaning of the Social Security Act if he

is unable “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.” 42 U.S.C. § 423(d)(1)(A). In evaluating a

disability claim, the Commissioner conducts a five-step sequential analysis to

determine

(1) whether the claimant is currently engaged in substantial gainful

activity (whether the claimant is working); (2) whether the claimant

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has a severe impairment; (3) whether the claimant’s impairment

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meets or equals the severity of an impairment listed in 20 C.F.R.,

Part 404, Subpart B, Appendix 1; (4) whether the impairment

prevents the claimant from doing past relevant work (whether the

claimant can return to his old job); and (5) whether the impairment

prevents the claimant from doing any other work.

Perez, 415 F.3d at 461; 20 C.F.R. § 404.1520(a)(4). In determining whether an

impairment prevents a claimant from doing past work or any other work at steps

four and five of the analysis, the Commissioner looks to the claimant’s residual

functional capacity, which is the determination of what the claimant can do

despite his mental or physical limitations, based on all the relevant evidence in

the case record. 20 C.F.R. § 404.1545(a). “The claimant bears the burden of

showing she is disabled through the first four steps of the analysis; on the fifth,

the Commissioner must show that there is other substantial work in the

national economy that the claimant can perform.” Audler v. Astrue, 501 F.3d

446, 448 (5th Cir. 2007).

First, the ALJ found that Herrera had not engaged in substantial gainful

activity since August 21, 2006, his alleged onset date. At step two, the ALJ

determined, upon review of the evidence, that Hererra suffered from the severe

impairments of back strain, a peripheral neuropathy, depression, diabetes

mellitus, and pancreatitis. At step three, the ALJ found that Herrera did not

have an impairment or combination of impairments that met or equaled one of

the impairments listed in Appendix 1. The ALJ then determined Herrera’s

residual functional capacity, concluding that Herrera retained the capacity to

An impairment is not severe “only if it is a slight abnormality [having] such minimal 1

effect on the individual that it would not be expected to interfere with the individual’s ability

to work, irrespective of age, education or work experience.” Loza v. Apfel, 219 F.3d 378, 391

(5th Cir. 2000) (citation and internal quotation marks omitted).

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lift/carry 10 pounds frequently and 20 pounds occasionally,

stand/walk 6 hours in an 8-hour workday, and sit 6 hours in an 8-

hour workday. The claimant’s ability to push/pull would be limited

to the weights given. The claimant can frequently, but not

constantly, feel with hands and feet; consequently, the claimant

must avoid operation of pedal controls. The claimant would also be

precluded from more than occasionally stooping, crouching, kneeling

and crawling. The claimant would be able to understand,

remember, and carry out routine step instructions and respond

appropriately to supervisors and coworkers in jobs that do not

require independent decision making.

Determining that Herrera was unable to perform his past work as a truck driver,

the ALJ nonetheless held that Herrera was not disabled because, considering

Herrera’s age, education, work experience, and residual functional capacity, jobs

existed in significant numbers in the national economy that Herrera could

perform. Based on the testimony of a vocational expert, the ALJ found that a

person with Herrera’s limitations could perform a limited range of light work

such as housekeeper/cleaner, cafeteria attendant, or small parts assembler.

Herrera contends on appeal that the ALJ’s decision is not supported by

substantial evidence or the proper legal standard because (1) the ALJ failed to

determine the severity of his other mental impairments, specifically his anxiety

and learning disability, at step two of the disability analysis; (2) the ALJ failed

to assess the evidence relating to all of his mental impairments in determining

his residual functional capacity; (3) the ALJ failed to assess the effect of his

mental impairments on his ability to perform unskilled work; and (4) the ALJ

improperly assessed the effect of plaintiff’s pain in determining his residual

functional capacity. We address these arguments in turn, and find each to be

without merit.

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First, we reject Herrera’s contention that we must remand this case

because the ALJ did not explicitly determine the severity of Herrera’s anxiety

or alleged learning disability, which Herrera contends were identified by Dr.

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McMains, his evaluating psychologist, and Dr. Boulos, the state agency

psychological consultant who conducted a psychiatric review and mental

residual functional capacity assessment. Herrera is correct that, at step two of

the five step analysis, the adjudicator must determine whether any identified

impairments are “severe” or “not severe.” See 20 C.F.R. § 404.1520(a)(4)(ii), (c).

However, this case did not turn on a finding that Herrera’s impairments were

not severe at step two; rather, the ALJ concluded that Herrera was not disabled

because, despite his severe impairments, he retained the residual functional

capacity to do other work. Therefore, the ALJ’s failure to assess the severity of

Herrera’s anxiety or learning impairments at step two is not a basis for remand.

See Adams v. Bowen, 833 F.2d 509, 512 (5th Cir. 1987) (ALJ’s failure to make a

severity finding at step two not a basis for remand where ALJ proceeded to later

steps of the analysis); see also Mays v. Bowen, 837 F.2d 1362, 1365 (5th Cir.

1988) (per curiam) (“[I]f the ALJ proceeds past the impairment step in the

On appeal, the Commissioner on appeal contends that the ALJ did not err in failing 2

to determine the severity of Herrera’s alleged learning disability because Herrera had not put

forth any objective medical evidence to establish the existence of such an impairment, much

less that it was severe. The magistrate judge agreed with the Commissioner that “the only

evidence in the record of [Herrera’s] learning impairments is his statement that he attended

special education classes beginning in sixth grade.” Herrera apparently argues that findings

by Dr. McMains in his mental status examination establish the existence of a learning

disability. We need not decide the issue because, as explained below, assuming that the

evidence sufficed to establish a learning disability, the ALJ’s failure to determine whether it

was severe at step two was essentially harmless error. Moreover, to the extent that Dr.

McMains found that Herrera had moderate impairments in certain areas of mental

functioning, the ALJ incorporated these findings into his assessment of Herrera’s residual

functional capacity. 

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sequential evaluation process the court must infer that a severe impairment was

found.”).

Moreover, we also reject Herrera’s contention that these impairments meet

the criteria of any listed impairment. At step three of the analysis, “the medical

evidence of the claimant’s impairment(s) is compared to a list of impairments

presumed severe enough to preclude any gainful activity.” Loza, 219 F.3d at

390. “If the impairment meets or equals one of the listed impairments, the

claimant is conclusively presumed to be disabled. If the impairment is not one

that is conclusively presumed to be disabling, the evaluation proceeds to the

fourth step . . . .” Bowen v. Yuckert, 482 U.S. 137, 141 (1987) (citing 20 C.F.R.

§ 404.1520(e)). Contrary to Herrera’s characterization of the record, neither Dr.

McMains nor Dr. Boulos found that any of Herrera’s mental impairments meet

or equal the criteria for a listed impairment. Dr. McMains concluded that

Herrera has “average intelligence” and social functioning within normal limits,

and only moderate impairments in memory, concentration, abstract thinking,

judgment and insight. Dr. Boulos expressly found that Herrera’s impairments

“do[] not precisely satisfy the diagnostic criteria” of any listed impairment.

Accordingly, we find no reversible error on this basis.

Second, contrary to Herrera’s assertions on appeal, we find that the ALJ

properly considered his mental impairments in determining Herrera’s residual

functional capacity to do past work and other work. In his opinion, the ALJ

specifically referenced findings from Herrera’s mental status evaluation,

Herrera’s global assessment of functioning (“GAF”) score, as well as Herrera’s

3

“GAF is a standard measurement of an individual’s overall functioning level ‘with 3

respect only to psychological, social, and occupational functioning.’ ” Boyd v. Apfel, 239 F.3d

698, 700 n.2 (5th Cir. 2001) (quoting AMERICAN PSYCHIATRIC ASS’N DIAGNOSTIC AND

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treatment records and hearing testimony. Based on the evidence as a whole, the

ALJ concluded that Herrera has mild restrictions in the activities of daily living,

mild difficulties in social functioning, moderate difficulties with regard to

concentration, persistence or pace. He concluded that “[t]his determination is

consistent with the claimant’s demonstrated abilities on mental status

evaluation, which included moderately impaired concentration and social

functioning within normal limits . . . .” The ALJ incorporated these limitations

into his determination of Herrera’s residual functional capacity, finding that

Herrera “would be able to understand, remember, and carry out routine step

instructions and respond appropriately to supervisors and coworkers in jobs that

do not require independent decision making.” We find that the ALJ considered

the relevant evidence regarding Herrera’s mental impairments, and that

substantial evidence supports his conclusions.

Third, Herrera contends that the evidence does not support a finding that

he is capable of performing unskilled work, and that the ALJ failed to properly

assess his mental impairments in determining otherwise. Herrera correctly

notes that “[t]he decisionmaker must not assume that failure to meet or equal

a listed mental impairment equates with capacity to do at least unskilled work.

The decision requires careful consideration of the assessment of [residual

functional capacity].” SSR 85-15 (1985). Social Security Ruling 85-15, upon

which Herrera relies, states that “[t]he basic mental demands of competitive,

remunerative, unskilled work include the abilities . . . to understand, carry out,

and remember simple instructions; to respond appropriately to supervision,

STATISTICAL MANUAL OF MENTAL DISORDERS at 32 (4th ed. 1994) (DSM-IV)). 

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coworkers, and usual work situations; and to deal with changes in a routine

work setting.” See also 20 C.F.R. § 404.1521(B).

The ALJ in this case considered Herrera’s mental impairments, and

concluded that Herrera retained the capacity “to understand, remember, and

carry out routine step instructions and respond appropriately to supervisors and

coworkers in jobs that do not require independent decision making.” This

finding is consistent with the ALJ’s holding that Herrera retained the residual

functional capacity to perform unskilled work, and is supported by substantial

evidence. For instance, Dr. Boulos concluded that Herrera retained the

functional capacity to “understand, remember, and carry out detailed and

complex instructions, make decisions, attend and concentrate for extended

periods, accept instructions, and respond appropriately to changes in the routine

work setting,” finding Herrera to be only “moderately limited” in these areas.

Furthermore, Dr. Boulos also found that Herrera was “not significantly limited”

in his ability to get along with coworkers or peers, and Dr. McMains found social

functioning within normal limits.

Finally, Herrera contends that the ALJ failed to consider the effect of his

physical impairments and pain in his assessment of Herrera’s residual

functional capacity to work a 40 hour work week, as required by 20 C.F.R.

§ 404.1529 and Social Security Ruling 96-7p. Pursuant to § 404.1529(c)(1), the

adjudicator must find whether the objective medical evidence shows that the

claimant has a medically determinable impairment that could reasonably be

expected to produce the claimant’s complained-of symptoms, such as pain. If so,

the adjudicator must then evaluate the intensity and persistence of the

symptoms in order to determine how the symptoms limit the claimant’s capacity

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for work. Id. If the claimant’s symptoms are not substantiated by objective

medical evidence, “the adjudicator must consider all of the evidence in the case

record, including any statements by the individual . . . concerning the

individual’s symptoms” and then “make a finding on the credibility of the

individual’s statements about symptoms and their functional effects.” SSR 96-7p

(July 3, 1996). “The ALJ must consider subjective evidence of pain, . . . but it is

within his discretion to determine the pain’s disabling nature.” Wren v.

Sullivan, 925 F.2d 123, 128 (5th Cir. 1991) (per curiam) (internal citations

omitted). Although an ALJ “is bound . . . to explain his reasons for rejecting a

claimant’s complaints of pain,” he is not required to “follow formalistic rules in

his articulation.” Falco v. Shalala, 27 F.3d 160, 164 (5th Cir. 1994).

In accordance with § 404.1529, the ALJ first determined that Herrera’s

medically-determinable impairments could reasonably be expected to produce

the symptoms that Herrera alleged. However, the ALJ concluded that Herrera’s

“statements concerning the intensity, persistence and limiting effects of these

symptoms are not credible to the extent they are inconsistent with the residual

functional capacity assessment . . . .” Based on the evidence in the record, the

ALJ was “not convinced the claimant has been precluded from meeting the

demands of competitive work since August 21, 2006,” and that “ the degree of

pain alleged exceeds objective medical findings.” He found that “the evidence .

. . does not reflect symptomatology that would cause more than 1 to 2 absences

a month,” and therefore would not preclude competitive work.

Contrary to Herrera’s assertions, the ALJ came to this conclusion after

thorough consideration and discussion of the relevant medical evidence on record

regarding Herrera’s physical impairments. This evidence included reports from

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his treating physician following the August 21, 2006 accident and from a number

of consultative physical examinations, and Herrera’s and his wife’s accounts of

his pain and the effect of his symptoms on his daily activities. The ALJ found

that Herrera’s physical impairments limited his abilities, but concluded that the

evidence “suggests at most symptomatology that would preclude lifting/carrying

in excess of 20 pounds occasionally and 10 pounds frequently and more than

occasionally stooping, crouching, kneeling, and crawling.” The ALJ also found

that Herrera’s medical conditions would “preclude the claimant from constantly

feeling with his hands and feet and operating foot controls.” The ALJ

incorporated these limitations into his residual functional capacity

determination. It appears that the ALJ fully considered the evidence in the

record in making his determination, and on review of the record we find that

substantial evidence supports the ALJ’s conclusions.

III. CONCLUSION

For the foregoing reasons, we AFFIRM the judgment of the district court.

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