### IN THE UNI TED STAT ES COURT OFAPPEALS FOR THE FIF TH CIRCU IT

No. 10-31006

BONNIE GILES, Plaintiff – Appellant
v. MICHAEL J. ASTRUE, Commissioner of Social Security Defendant – Appellee

Appeal from the United States District Court for the Western District of Louisiana USDC No. 5:09-CV-00685

Before JONES, Chief Judge, and HIGGINBOTHAM and SOUTHWICK, Circuit Judges. PER CURIAM: * For well over a decade, Plaintiff Bonnie Giles has been seeking disability insurance benefits under Title II of the Social S e c u rity Act. Giles asserts she became disabled on February 7, 1992, res ulting from the onset of multiple impairments including scoliosis, temporal lobe epilepsy, headaches, Graves disease, depression, fibromyalgia, diabetes, and a later onset of cardiac disease. Giles first filed for disability benefits in 1996 and her claim has since been heard U n i te d S ta te s C o u rt o f A p p ea l s

F i ft h C i rc u i t 

### F I L E D July 18, 2 011 Lyle W . Cayce Clerk

Pursua nt to 5 T H C IR

. R. 47.5 , the cour t has d ete rm inedt hat this op inion s houldnot * be publ ish ed and is not pr ece dent excep t unde r the lim ite d cir cum st ance s se t forth in 5 T H C IR

. R. 47.5 .4. Case: 10-31006 Document: 00511542858 Page: 1 Date Filed: 07/18/2011No. 10-31006

by four administrative law judges (“ALJs”). All four denied benefits. The first three decisions were remanded by the Social Security Appeals Council or by the federal district court. The district court affirmed the most recent ALJ decision and Giles timely appealed. For the reasons stated below, we AFFIRM.

I. Factual Background Giles was born in 1950 and has a high school education. She worked for Mobil Oil in Dal las from 1977 until the alleged onset of her disability in February 1992. During her t i m e at Mobil, she was promoted several times, eventually becoming a compu t e r a n a l y st, which she did for about a year until she became sick. Giles claims she was terminated for missing too much work,

a problem caused by her illness. Af t e r b e i n g terminated, Giles moved to her hometown in Louisiana to be closer to family. Although Giles states her disability began in February 1992, the medical records p r o vi d e limited insight into the treatment she received before 1996, showing only that she was seen by a psychiatrist for a few months and an endocrinologist for a few years. The records also show that Giles has a 43 degree l u m bar curvature, but most doctors agreed that scoliosis is the lesser o f h e r problems. In October 1 996, Giles started seeing Mairus McFarland for family practice medicine, whose regular notes are throughout the record. Giles’s medi c a l h i s t o ry i s c o mplex, likely in part due to the challenges inherent in treating Graves disease, an autoimmune disorder that c a uses hyperthyroidism. Treatment of Grav e s disease may lead to hypothyroidism, which can cause depression, mental and physical sluggishness, and weight gain—conditions appearing in Giles’s medical history. Giles’s thyroid condition had been treated successfully with medicati o n in September 1995, but physicians later altered her medication s b ecause of negative side effects. In April 1996, the endocrinologist noted that Giles’s Graves disease was seemingly

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under control, but he expressed co n c e r n s t h at it may be over-controlled. In February 1997, the record indicates Giles had normal thyroid function without medication, but she s t ill relied on medication intermittently during the next several years. Throughout Giles’s illness, she has struggled with depressio n . S o me examining physicians also sugg e s t ed she be assessed for bipolar disorder. Several doctors noted that Giles was crying during examinations. Much of Giles’s physical pain during 1996 and 1997 involved her temporal lobe seizures which were likely causing severe migraine headaches. However, medical records suggest that the prescription medication Tegretol was generally effective in assisting Giles with her seizures, and Giles’s c o m p l aints about the headaches were limited from 1999 to 2006. In early 1997, Giles w a s admitted to the hospital and ultimately diagnosed with diabetes. Her gallbladder was remov ed and she started insulin therapy. There is no indication that her diabetes was an impairment u n til late 2004, when she was admitted to the hospital with chest pain and the emergency room physician noted that her diabetes was poorly controlled. Despite Giles’s numerous health problems, there are very fe w m e di cal records from 1998 through 2005, other than regular notes from her primary care physician. In 2005, Giles’s cardiac issues arose, and she was diagnosed w i th mitral valve prolapse and later received a pacemaker. G i l e s has not been employed since 1992, and her insured status expire d

on December 31, 1998. Accordingly, she must e stablish disability on or before that date.

II. Procedural Background Four ALJs have denied Giles’s claim. In May 1998, ALJ Morton J. Gold denied the claim, which was later rema n d e d f o r failure to consider updated

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medical evidence. ALJ Thomas B undy was the second to review the case in November 2001, and his decis i o n w a s remanded because of an insufficient examination of the claimant’s mental impairment and credibility

. ALJ Nancy J. Griswold took the case on the next appeal in May 2004, and the district court remanded her decision because of insufficient consideration of the claimant’s

severe headach e s an d wh eth er an un derlying medical impairment could have led to Giles’s alleged symptoms. Finally, ALJ Charles R. Lindsay issued a decision in August 2008, which serves as the basis for this appeal. All ALJs incorporated the previous ALJ’s opinion in their decision. ALJ Lindsay found that Giles had severe impairments of thyroid disease, depression, cardiac disease, epilepsy, diabetes, and a history of migraine headaches. He found that these conditions and others limited Giles’s residual functional capacity (RFC) to the performance of light work except for no more 1 than frequent postural activities (and no climbing ladders); an inability to work at unprotected heigh t s or around dangerous moving machinery; no more than frequent reaching, handling, and fingering; moderately reduced ability to understand, remember, and carry out detailed instructions; moderately reduced ability to mai ntain attention and concentration, deal with the public, and set goals independently; the need to sit and stand at will; and an inability to work in high stress situations. ALJ Lindsay concluded that these limitations did not preclude Giles from p e rf o rming her past relevant work as a computer analyst and that she could also perform three alternative jobs recom m ended by the vocational expert: cashier II, telephon e i n f ormation clerk, and document
preparer.

Light wo rk is def

ined as wo rk involving “lif ting no mo re than 20 poun ds at a tim e wi th 1 fr equent lif

ting or car rying of objec ts we ighing up to 10 poun ds

. Even thou gh the we ight lif ted may be very litt le, a job is in this cat egory wh en it requ ires a good dea l of wa lking or st andi ng, or wh en it involves sit ting mo st of the tim e wi th so me pus hing and pull ing of a r m o r l eg cont rols .” 20 C. F.R. § 404. 1567(b). 4 Case: 10-31006 Document: 00511542858 Page: 4 Date Filed: 07/18/2011No. 10-31006

The Appeals Council rejected the ALJ’s conclusion that Giles could have performed her prior job. Giles only worked as a computer analyst for one year, and the vocational expert testified that two years of experience were required to acquire skills at that level. Moreover, the Appeals Council found that “[i]n light of the numerous, moderate mental limitations that are contained in the established residual functional capacity,” Giles was unable to perform her past work. The Council agreed that the vocational expert’s testimony provided sufficient support to conclu d e that Giles could perform the alternate jobs ALJ Lindsay listed, and the Council affirmed the denial of benefits. The district court affirmed, and Giles timely appealed.

III. Applicable Laws This court reviews the Commissioner’s denial of s o c i a l security benefits only to ascertain (1) whether the final d e c i s i o n is supported by substantial evidence and (2) whether the Commissioner used the proper legal standards to evaluate the evidence. Substantial evidence is that which a reasonable mind 2 might accept to support a conclusion. “It is more than a mere scintilla and less 3 than a preponderance.” When we apply the substantial evidence standard, “we 4 scrutinize the record to determine whether such evidence is present. We may not reweigh the evidence, try the issues de novo , or substitute our judgment” for that of the Commissioner. 5

New ton v

. Apfe l , 209 F.3d448 , 452 (5t h Cir

. 2000)

. 2
Ric har dson v. Pe ra le s , 402 U. S. 389 , 401 (197 1). 3 Rip le y v. Chater , 67 F.3d 552, 555 (5t h Cir. 1995) (int erna l quot atio n mar ks om itt ed)

. 4
Green sp an v. Shalala , 38 F.3d 232, 236 (5th Cir. 1994) (c itat ion om itt ed) , cer t. deni ed , 5 514 U. S. 112 0 ( 1995) ; seeN ew ton , 209 F.3dat452

.

5 Case: 10-31006 Document: 00511542858 Page: 5 Date Filed: 07/18/2011No. 10-31006

In order to be eligible for disability benefits, the claimant must prove that

s h e has a medically determinable physical or mental impairment, or combination of impairments, lasting at le a s t t welve months that prevents her from engaging in a substantial gainful activity. Substantial gainful activity is 6 defined as work involving significant physical or mental abilities that is usually done for pay or profit. The ALJ e n g a g e s in a five-step sequential evaluation 7
process for determining whether an individual i s disabled: (1) whether the claimant is presently engaging in substantial gainful activity; (2) wheth e r the clai m a n t has a medically determinable severe impairment, as defined by regulat i o n s ; (3) whether the claimant’s impairment or combination of impairments meets the criteria of an i m pairment listed in Appendix 1 of the regulations; (4) whether the impairment prevents the claimant from doing her past relevant work; and (5) whether the impairment prevents the claimant from doing any other work. 8 Before considering the f o urth and fifth steps, the Commissioner must determine the claimant’s residual functional capacity (RFC). The RFC i s the 9 individual’s ability to do physical and mental tasks on a sustained basis despite limitations from her impairments. In determining the RFC, the Commissioner must cons i d e r all of a claimant’s impairments, including those that are not

severe. 1 0 The claimant bears the burden of proof on the first four steps and then the burden shifts to the Commissioner for the fifth step. If the claimant shows she

42 U. S. C. § 4 23(d)( 1)(A). 6
20 C.F. R. § 4 04.1 572( a) and (b)

. 7
Id. § 4 04.1 520( a). 8
Id. § 4 04.1 520( e). 9
Id. § 4 04.1 545. 1 0 6 Case: 10-31006 Document: 00511542858 Page: 6 Date Filed: 07/18/2011No. 10-31006

is no longer capable of performing her previous job s, the Commissioner must show that the claimant is capable of engaging in some type of alternative work that exists i n t h e national economy. Giles does not challenge the 1 1 Commissioner’s conclusions in the first four steps. Rather, the sole basis for this appeal involves the RFC limitations and Giles’s ability to perform alternative work.

IV. Discussion A. Consideration of the Combined Effects of Giles’s Multiple Impairments Giles argues that the ALJ did not properly consider the combined effects of her multiple impairments. This claim generally is without merit, as ALJ Lindsay specifically incorporated “the combination” of Giles’s diabetes, cardiac disease, and migraine headaches into his RFC. Additionally, he included limitations resu l ting from Giles’s epilepsy and depression. However, Giles contends that neither the ALJ nor the Appeals Council considered the effects of her scoliosis and fibromyalgia in combination with the other impairments listed. Neither of these two conditions was listed as a severe impairment or explicitly included in the RFC. However, the RFC included a specification allowing Giles to sit or stand at will to assist with back pain. In challenging ALJ Lindsay’s failure to list scolios i s as a severe impairment, Giles points to several physician reports that label the scoliosis as “severe.” However, a conclusion that the degree of curvature i s m e di cally “severe” differs from a finding that th e a i l m e nt was “severe” for purposes of disability determination. A non-severe impairment under the Social Security regulations is one that “does not significantly limit [the claimant’s] physical or

Chap ar ro v. Bow en , 815 F.2d100 8, 1010 (5t h Cir

. 1987)

. 1 1 7 Case: 10-31006 Document: 00511542858 Page: 7 Date Filed: 07/18/2011No. 10-31006

mental ability to do basic work activities.” The plaintiff h a s t h e b u r den of 1 2 proving that her medical condition qualifies as severe. Giles points to no 13 documents in the re c ord to support her assertion that scoliosis significantly limited her physical work ability. Further, the medical history does not support including any s pecific limitation in G i les’s RFC because of her fibromyalgia. Medical records from 1997 and 1998 indicate that Giles was experiencing joint pain, which may have been related to fibromyalgia. However, after Giles received a Celestone injection in December 1998, there a re no records to suggest fibromyalgia caused Giles difficulty. Giles herself did not raise this condition in her most recent ALJ hearing. ALJ Lindsay did not err when failing to list fibromyalgia as severe nor does the medical history support an additional RFC limitation to account for the effects of fibromyalgia.

B. Consideration of Treating and Examining Physicians’ Opinions Disability cases typically i nvolve three types of physicians: 1) a treating physician who regularly provides care to the claimant; 2) an examining physician who conducts a one-time physical exam of the claimant; and 3) a reviewing or non-examining physician who has never examined the claimant, but read the claimant’s files to provide guidance to an adjudicator. Because the 1 4 treating physician is most familiar with the claimant’s impairments, his opinion should be accorded great weight in determining disability. If a t r e ating 1 5 physician’s opinion is “well-supp o r t e d by medically acceptable clinical and

20 C.F. R. § 4 04.1 521. 1 2
See Perez v. Ba rnha rt , 415 F.3d457 , 461 (5t h Cir

. 2005)

. 1 3
See general ly 20 C. F.R. § 404. 1527( d)

. 1 4
New ton , 209 F.3dat455

. 1 5 8 Case: 10-31006 Document: 00511542858 Page: 8 Date Filed: 07/18/2011No. 10-31006

laboratory diagnostic techniques and is not inco n s istent with the other substantial evidence in [the] case reco r d, [the Commissioner] will give it controlling w e i gh t .” Likewise, when a treating physician has reasonable 1 6 knowledge of the impairment, his opinion is given more weight than an opinion from a non-treating p hysician. By contrast, the Commissioner may give less 1 7 weight to a treating physician’s opinion about a condition outside his area of expertise. Treating physicians’ opi n i o n s also receive greater weight “[w]hen

1 8 the treating source has seen [the claimant] a number of times and long enough to have obtained a longitudina l p i cture of [the claimant’s] impairment.” The 1 9 weight given to opinions from nonexamining physicians depends on “the degree to which they provide supporting explanations for their opinions.” 2 0 An ALJ is free to reject a physician’s opinion when good cause exists. 21 “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 c l i n i cal, laboratory, or diagnostic techniques, or is otherwise unsupported by the evidence.” 2 2 Social Security regulations provide that the Administration “will always give good reasons in [the] notice of determination or decision for the weight [it]

20 C.F. R. § 4 04.1 527( d) (2)

. 1 6
Id. 1 7
Id. The regula tio n pr ovide s the exam ple of an opht halm ologis t wh o n ote s thatthe 1 8 pat ient com plai ns of neck pain dur ing an eye exam . The opht halm ologis t’s ass es sm ent of the neck pain wo uld be given lim ite d we ight, even thou gh he is a tre ating phys icia n, beca use the painis ou ts idehi s sp ecia lty.

Id. 1 9
Id. § 4 04.1 527( d) (3)

. 2 0
New ton , 209 F.3dat455

. 2 1
Id. at456

. 2 2 9 Case: 10-31006 Document: 00511542858 Page: 9 Date Filed: 07/18/2011No. 10-31006

giv e [ s the claimant’s] treating source’s opinion.” Further, Social Security 2 3 Ruling 96-2p instructs that an ALJ should not reject the t r e a t i n g physician’s opinion sim p ly b e c ause it is not well-supported by the record. In those 2 4 instances, t h e o pinion is not given controlling weight, but the treating source opinion is “still entitled to deference and must be weighed using all of the factors provided in [the regulations].” 2 5 Giles all e ge s th at th e Commissioner did not adequately weigh the opinions of treating and examining physicians and over-relied on a reviewing physician’s report. ALJ Lindsay’s decision included a description of interrogatory responses by a reviewing physician, neurologist Dr. Woodrow W. Janese. As noted above, this o pinion may only be weighted according to the value of its supporting explanations. If ALJ Lindsay had heavily relied on Dr. Janese’s testimony, such reliance would have been in error because Dr. Janese’s responses to the interro g a t ories were conclusory and without explanations. However, ALJ Lindsay did not rely exclusively upon Dr. Janese—the medical record as a whole supports ALJ Li n d say’s conclusions. Further, ALJ Lindsay’s decision incorporated the preceding ALJ opinions, which together a d e quately address why some physician reports were given greater or lesser consideration. i. Disability Determinations Reserved for the Commissioner Although some determinations, such as disability and RFC, are legally reserved for the Commissioner, Social Security guidelines require adjudicators making these determinations to consider the opinions of medical s o u rces and “apply the applicable factors” de n o t ed in the regulations when weighing the

20 C.F. R. § 4 04.1 527( d) (2)

. 2 3
Soc ial Sec urit y Ruling 96-2 p, Title s II and XVI: Giving Contr ollin g Weight to 2 4 Treat ing S ourc e M edi cal Op inions , 61 Fe d. Reg. 34, 490 (Jul y 2, 199 6).

Id. at34, 491. 2 5 10 Case: 10-31006 Document: 00511542858 Page: 10 Date Filed: 07/18/2011No. 10-31006

opinions. Thes e factors are: 1) the physician’s length of treatment of the

2 6 claimant; 2) the frequency of examination; 3) the nature and extent of the treatment relationship; 4) the ext e n t t o which the physician’s opinion is supported by the medical record ; 5 ) t h e consistency of the opinion with the record as a whole; and 6) the specialization o f t h e t r e a ting physician. With 2 7 regards to a disability determination, the guidelines note that medical opinions “must not be disregarded. However, even when offered by a treating source, they can never be entitled to controlling weight or special significance.” 2 8 Several physicians—Dr. M cFarland, Dr. Rogers, and Dr. Russell— indicated at various points in time that they considered Giles to be disabled. In the second administrative review of this case, ALJ Bundy specifically addressed these statements and found that they need not be attributed great weight based

on the above-listed factors. His conclusions are supported by the record as a whole. ii. Mental Health Conditions The district court remanded ALJ Bundy’s decision back to the administration for his failure to address the severity of Giles’s mental impairment. Thus, ALJ Griswold, the third administrative reviewer, focused on Giles’s mental health claims, and ALJ Lindsay incorporated Griswold’s findings into his decision. Both ALJs noted that Giles’s mental health t r e a t m ent had been sporadic over the years. One me nt a l h e alth specialist opined that Giles

was mentally impaired to the point that she was not functional at work, but ALJ Griswold adequately explained why this opinion was given limited weight. The

S ocia l S ecur ity Ruling (S SR) 96–5p , Title s II and XVI: MedicalSourc e Op inions on 2 6 Iss ues Res ervedt o the Com mi ss ioner , 61 Fe d. Reg. 34, 471, 34, 473 (Jul y 2, 199 6).
20 C.F. R. § 4 04.1 527( d)

. 2 7
61 Fed. Reg. at34, 474. 2 8
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physician had only treated Giles for five months an d a subsequent examining physician’s report found fewer impairme n t s . M ore importantly, there is no evidence that Giles sought mental health treatment after November 1996. Although Giles did not seek professional psychological help, she did follow

u p with her family practice physician, Dr. McFarland, who continues to prescribe anti-anxiety medicat i o n . Giles asserts that the Commissioner’s decision did not properly weigh Dr. McFarland’s assessm e n t of Giles’s mental limitations. However, ALJ Griswold adequately explained why she gave limited weight to Dr. McFarland’s assessment. For example, Dr. McFarland said that Giles had a poor ability to maintain concentration, but his opinion w a s not consistent with the record as a whole; several other physicians denot e d t h at Giles’s memory and concentration were intact. Moreover, Dr. McFarland is not

a mental health specialist, so his opinions regarding the claimant’s mental impairments are entitled to lesser weight. 2 9 To the degree Dr. McFarland’s opinion was consistent with the record, the C ommissioner’s decision adequately takes it into consideration. For e x a m p l e , Dr. McFarland opined that Giles has a poor ability to deal with work stress, and the vocational expert testified that the recommended alternate jobs were appropriate for an employee who could not handle high stress job environments. Although ALJ Lindsay concluded that Giles’s mental health limitations would not im p a ir her from performing her prior work, the Appeals Council reversed that portion of his decision. The Council’s conclusion that Giles could perform the alternative jobs listed by ALJ Lindsay, even with her mental limitations, is supported by substantial evidence in the record. The Commissioner’s final decision adequately c onsidered the testimony of treating and examining physicians in determining Giles’s mental health limitations.

See 20 C. F.R. § 404. 1527( d)

. 2 9 12 Case: 10-31006 Document: 00511542858 Page: 12 Date Filed: 07/18/2011No. 10-31006

iii. Physical Limitations Giles further claims that ALJ Lindsay’s RFC ass e s s m e n t failed to acknowledge the full extent of her reduced physical capacity. Specifically, Giles cites to Dr. McFarland’s finding that Giles could only occasionally lift up to 10 pounds. Dr. McFarland also found that Giles’s c o ndition prohibited her from sitting for more than an hour or standing for more than an hour during an eight hour work day. ALJ Lindsay, however, concluded that Giles could sit or stand for a full eight hours as long as she had the option to alternate between the two p o stures at will. Giles contends that this RFC determination improperly i gnor e d Dr. McFarland’s expert opinion. While Dr. McFarland’s conclusions are relevant, they are not controlling. The record does not reflect why Giles would be limited to the degree asserted by Dr. McFarland. Moreover, eve n if G i l e s could only occasionally lift up to 10 pounds, as Dr. McFarland concluded, Giles would still be capable of performing two of ALJ Lindsay’s alternative jobs—the telephone information clerk and the document preparer—both of which are sedentary positions, requiring lifting of

no more than ten pou n d s . Likewise, Dr. McFarland limited Giles to only occasional postural maneuvers, and while ALJ Lindsay did not incorporate that into his RFC, the vocational expert testified that none of the three recommended jobs would be affected if the claimant was limited in that manner. Therefore, ALJ Lindsay adequately considered Dr. McFarland’s overall diagnosis, even if the ALJ did not follow the precise guidance Dr. McFarland sug gested with respect to Giles’s RFC limitations.

C. Claimant’s Credibility Giles’s third claim is that ALJ Lindsay’s credibility finding is not based
upon substantial evid e n c e . She asserts that ALJ Griswold’s decision was remanded in part to address the credibility issue and that ALJ Lindsay failed to

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follow the Appeals Council instructions. The Appeals Council had remanded so the ALJ would “consider the following f a c t o r s in evaluating the intensity, persistence and limiting effects of the alleged symptoms: objec t ive medical evidence; medical opinions; prior w o rk record; daily activities; the location, duration, frequency and intensity of pain or other symptoms; precipitating and aggravating factors; the type, dosage, effectiveness and side effects of medication, including headaches and drowsiness; treatment other than medication and other measures used to relieve symptoms.” ALJ Lindsay noted that he was evaluating the intensity and persistence of Giles’s pain based on th e m edical record. He summarized her full medical record and concluded that her statements were not entirely reliable. He did not discuss each factor listed by the Appeals Council, but his decision need not do so. The Social Security Ruling on credibility determinations den o t e s the “kinds of evidence,” including the above factors, that must be considered, but there is no instruction that every factor must be discussed in detail in the determination. 3 0 Of course the ALJ’s determination decision cannot simply make conclusory

s t atements regarding credibility and “must contain specific reasons for th e finding on credibility, supported by the evidence in the case record,” but ALJ 3 1 Lindsay satisfied this burden by discussing the medical record and opinions. While the record supports Giles’s assertions regarding her diagnoses, the extent of the sy m p t o m s she described in the hearing exceed what the record supports. For example, Giles testified she has severe migraine headaches two to three times a week, while the re c o r d o n ly supports that Giles experienced

Soc ial Sec urit y Ruling 96-7 p, Title s II and XVI: Evaluati on of Sym pt om s in Di sab ilit y 3 0 Claim s: Ass es sin g the Credibi lity of an I ndivid ual’s Stat em ents , 61 Fed. Reg. 34,483, 34,4 85 (Jul y 2, 1996) ; see also Cla ry v. Barn har t , 214 Fed. App ’x 479 (5t h Cir. 2007) (“ The ALJ is not requ ired to m e c h anica lly fol low every guidin g regula tory fac tor in art icula ting reas ons for denyi ng c laim s or we ighing cre dibi lity. ”)

. 61 Fed. Reg. at34, 486. 3 1
14 Case: 10-31006 Document: 00511542858 Page: 14 Date Filed: 07/18/2011No. 10-31006

intermittent headaches, which diminished in frequency with her sei z u r e

m e di c a tion. In short, there is sufficient evidence in the record to support ALJ Lindsay’s determination to give the claimant limited credibility. Finally, ALJ Lindsay did not ignore Giles’s testimony entirely. He found that Giles “has established a lengthy history of complaints of headaches, and it is reasonable to conclude that she did experience occasional headaches that, alone or in combination with her seizur e di s order, depression, and other impairments, could have resulted in moderate limitations.” He included these limitations in his RFC.

D. Burden of Proving the Availability of Alternative Work At s t e p f ive in the disability benefits determination, the Commissioner has the burden of proof to show that there is other gainful employment the claimant is capable of performing in spite of her limitations. Giles first argues that she is not capable of performing the cashier II or telephone information clerk jobs because she has a moderate l i m i t a t i o n in dealing with the public. The Dictionary of Occupational Titles does not explicitly state that persons with such moderate limitations are incapable of performing these jo b s . Although the 32

r ecord suggests that Giles has some limitations in social contexts, th e r e i s a n adequate basis for the ALJ to conclude that Giles coul d sustain some social

See D. O. T. 211. 462- 010 Cashi er II (“Receives cas h f romc ust om ers or em plo yees in 3 2 paym ent for good s or se rvice s . . . .” ); D. O. T. 237. 367- 046 Telep hone Qu otat ion Clerk (“Answ ers tel epho ne call s fr om cus tom ers requ es ting c u r rent st ock quot atio ns . . . .” ). The App ellant note s th a t the vocat ional expe rt’ s cit atio n to D. O. T. 237. 367- 046 wa s in err or beca use the for mal nam e is Telep hone Qu otat ion Clerk , rat her than T elephone I nforma tio n Clerk as st ated by the vocat ional expe rt. App el l a nt sugges ts that the vocat ional expe rt inte nded to ref er to D. O. T. 237. 367- 022, the lis ting for info rm atio n cler k. Ho we ver, the D. O. T. num ber origi nally cit ed by the vocat ional expe rt is the pr o p e r l i st ing—t he alte rnat ive nam e for Telep hone Qu otat ion Clerk is lis ted as “Tele phon e-Inf orm atio n Clerk ,” wh ich is dis tinc t fr om the regula r info rm atio n c lerkli st ing. 15 Case: 10-31006 Document: 00511542858 Page: 15 Date Filed: 07/18/2011No. 10-31006

interaction in a work environment. The vocational expert testified that Giles 3 3 could perform these tasks, even if she had a moderate limitation in her ability to interact with the general public and a marked limitation in d e a l i ng with detailed instructions. To overcome the vocational expert’s testimony, Giles argues t h a t the expert did not properly understand the term “moderate.” The ALJ defined moderate to mean “that there are more than slight limit a ti ons but the person

can still perform the task satisfactorily.” The vocational expert testified that 3 4

a person with moderate limitations in maintaining concentration, carrying out detailed instructions, and setting goals independently could perform Giles’s past skilled work as well as the recommended unskilled alternate jobs. However, the Appeals Council disagreed and found that Giles’s multiple moderate impairments prohibited her from performing her prior skilled work. Giles asserts that the Appeals Council decision undermines the vocational expert ’ s conclusion because, in order to reach opposing positions about Giles’s capacity to perform her prio r skilled work, the vocational expert must have relied on a different interpretation of multiple “moderate” impairments than the Appeals Council endorsed. Given the facts of this case, we do not find this argument persuasive. First, the Appeals Council ba s e d p art of its decision on the fact that Giles had not performed her prior job as a computer analyst for long enough to retain transferable skills. Second, the vocational expert also testified

See Carey v. Apfe l , 230 F.3d 131, 146 (5t h Cir. 2000) (f indi ng that the ALJ may rely 3 3
on the vocat ional expe rt’ s tes tim ony if the rec ord ref lect s an ade quate bas is for doi ng so even if the vocat ion expe rt’ s tes tim ony conf lict s wi th the DO T). Furt her, Giles adm its that the thir d a l t e r n ate job ide ntif

ied by the vocat ional expe rt, doc ume nt pr epa rer , doe s not requ ir e signi fic ant inte rac tio n w ith the genera l p ublic

.

In an unpub lis hed opi nion, this cour t aff irm ed the use of a sim ilar def init ion for 3 4 “m ode rat e,” wh ich is not def ined by the regula tio ns. Cantre ll v. McMa hon , 227 Fed. App ’x 321, 322 (5t h Cir. 2007) (f

indi ng the vocat ional expe rt unde rs too d the degr ee of lim itat ion at iss ue wh en the ALJ def

ined “m ode rat e” to me an “th ere are so me lim itat ions , but the per so n can st ill per for m the tas k sat isf act orily”). 16 Case: 10-31006 Document: 00511542858 Page: 16 Date Filed: 07/18/2011No. 10-31006

that a prohibition on high stress environments would prevent the claimant from performing the comp u ter analyst position. The ALJ’s RFC denoted that Giles could not work in high-stress environments, yet he still included her past prior work in his recommendation. The Appeals Council properly re v e r sed this portion of his decision. Yet this reversal do e s n o t mean that the remainder of the vocational expert’s t e s ti m o ny w a s irr el evant or unp er s u a sive. The vocational expert had a satisfactory understanding of the multiple moderate limitations in Giles’s RFC, and both she and the Appeals Council found that Giles could adequately perform the alternate u n s k i l l ed jobs, even with her multiple limitations. The Commissioner may rely upon the vocational expert’s testimony to satisfy his burden of proof that the claimant is capable of performing alternate jobs in the national economy. 3 5

V. Conclusion “Procedural perfection in administrative proceedings is not r e quired. This court will not v a c a t e a judgment unless the substantial rights of a party have been affected.” Giles has noted several occasions where the ALJ did not 3 6 thoroughly address each aspect of the record. Yet when d e al i ng with such an extensive and multi-faceted record, there will alwa y s b e some evidence that is not specifically discussed in the Commissioner’s decision. Our review is limited to examining whether the decision to deny benefits is supported by substantial

e vi d ence in the record, and it is here. Likewise, the Commissioner u s e d th e proper legal standards to evaluate the eviden c e , a nd the ALJ adequately resolved inconsistencies in the record. The decision below is AFFIRMED.

See, e .g. , Care

y , 230 F.3dat145

. 3 5
Ma ys v. Bow en , 837 F.2d 1 3 6 2 , 1364 (5t h Cir. 1988) (p er curiam); see Ande rso n v. 3 6 Sull iv an , 887 F.2d630 , 634 (5t h Cir

. 1989) ( quot ing Ma ys). 17 Case: 10-31006 Document: 00511542858 Page: 17 Date Filed: 07/18/2011