1

United States Court of Appeals,

Fifth Circuit.

No. 93-7360

Summary Calendar.

Pete FALCO, SSN XXX-XX-9336, Plaintiff-Appellant,

v.

Donna E. SHALALA, Secretary of Health and Human Services,

Defendant-Appellee.

July 29, 1994.

Appeal from the United States District Court for the Southern

District of Texas.

Before WISDOM, GARWOOD and EMILIO M. GARZA, Circuit Judges.

WISDOM, Circuit Judge:

The issue presented by this appeal is whether substantial

evidence exists to support the Secretary's decision that the

appellant was not disabled within the meaning of the Social

Security Act and, thus, was not entitled to disability insurance

benefits. We answer in the affirmative and, accordingly, AFFIRM.

I.

The claimant in this case, Pete Falco, applied for

supplementary security benefits on August 23, 1989, pursuant to

Title II of the Social Security Act in compensation for an injury

to his back. His application was denied, both initially and after

reconsideration.

Falco requested and received a hearing before an

administrative law judge ("ALJ") who also determined that Falco was

not disabled within the meaning of the Social Security Act. In
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particular, the ALJ concluded that, although Falco no longer could

perform his previous job as a repossessor of mobile homes, he had

the residual functional capacity to perform sedentary work. The

Appeals Council denied Falco's request for review.

Falco then sought relief in federal district court. The

magistrate judge to whom the case was assigned recommended

upholding the decision of the agency. The district court adopted

the report and recommendation of the magistrate judge in full,

prompting Falco to take this appeal.

II.

Falco seeks disability benefits for injuries he sustained in

1984 (he was 51 at the time). In January and again in February of

that year, Falco injured his back. In April 1985, he had back

surgery. His condition nonetheless deteriorated. Throughout the

following two years, Falco complained of intense, debilitating pain

in his lower back and left hip. He frequently used

anti-inflammatory medicine and pain killers.

In April 1988, Falco underwent further diagnostic testing.

The tests revealed spinal stenosis and degenerative changes in the

lumbosacral spine. As time progressed, Dr. Glassman, his physician

instructed Falco not to perform any work which required lifting,

prolonged standing or sitting, walking, or driving. By the Spring

of 1989, Falco had become obese and was virtually immobile.

Dr. Cannon, another examining physician, believed that Falco's

condition rendered him "unemployable". Moreover, Cannon was

concerned about Falco's dependence on the medication that he had
1Two consulting physicians concluded that Falco should be

limited to lifting 20 pounds at one time and no more than 10

pounds frequently. He could stand for up to six hours, with

frequent rest periods (every 15-20 minutes) but was not to be

required to stoop and crouch frequently. 

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been taking. Cannon lamented the fact that Falco displayed no

motivation for retraining in an effort to return to gainful

employment.1

Falco moved from his job as a repossessor of mobile homes to

office work. Nonetheless, Falco complained that he was in such

intense pain that it was impossible for him to work even at a desk.

The evidence suggests that, while at home, he routinely watched

television for extended periods and he moved only from his bed to

his couch or to the bathroom. Only occasionally did he leave his

house to dine out with friends.

III.

This Court is but the last stop on Falco's long legal trip

that began with his agency application and hearing process and

ended in federal court. At every stop he has received the same

decision; namely, that his condition did not satisfy the criteria

for disability insurance. We are sympathetic with Falco, but not

to the point of closing our ears to the heavy chorus of voices

rejecting his claims. The decisions of the ALJ, Secretary,

magistrate judge, and district court are sound.

As a starting point, we define our task. We review the

Secretary's decision to deny disability benefits by determining

whether substantial evidence in the record supports the decision

and, further, whether proper legal standards were used in
2Villa v. Sullivan, 895 F.2d 1019, 1021 (5th Cir.1990). 

3402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842

(1971). 

4Villa, 895 F.2d at 1021-22. 

5Crouchet v. Sullivan, 885 F.2d 202, 206 (5th Cir.1989). 

6Id.

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evaluating the evidence.2 In Richardson v. Perales3, the Supreme

Court explained that substantial evidence is more than a scintilla

and less than a preponderance. It is of such relevance that a

reasonable mind would accept it as adequate to support a

conclusion.4

IV.

In evaluating a disability claim, the Secretary engages in a

sequential series of five inquiries. The claimant must satisfy the

disability criteria at each juncture in order to receive benefits.

In the matter before us, the ALJ terminated his analysis when he

found that Falco did not meet the final criterion (Step V), which

required a finding that "Claimant cannot perform relevant work".5

Falco assigns two errors: First, he takes exception to the ALJ's

Step V finding and, second, he argues that the ALJ erroneously

found that he was not within the Step III disability parameters.

We start with Falco's second contention. The third step

provides:

Claimant's impairment meets or equals an impairment listed in

the appendix to the regulations (if so, disability is

automatic).6

The relevant appendix, to which the criterion refers, provides that
7See 20 C.F.R. Part 404, Subpt. P, App. 1, § 1.05(C). 

8Falco apparently concedes as much. See Appellant's Brief

at 10. 

9Anderson v. Sullivan, 887 F.2d 630, 632-33 (5th Cir.1989). 

10See Selders v. Sullivan, 914 F.2d 614, 618 (5th Cir.1990). 

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a finding of certain vertebrogenic disorders will constitute a

disability.7 To meet the Listing 1.05(C), the claimant must

demonstrate the severity of his impairment with evidence of (1)

pain, muscle spasm, and limitation of motion in the spine and (2)

radicular distribution of significant motor loss with muscle

weakness and sensory and reflex loss.

The physicians diagnosed Falco as having spinal stenosis. No

findings existed, however, that Falco suffered any severe

neurological deficiencies.8 The evidence indicated that Falco

maintained good muscle strength and had no sensory deficits. The

criteria in the medical listings are "demanding and stringent," as

the district court aptly noted. Ample evidence supports the ALJ's

conclusion that Falco's condition did not meet them.

Next, we analyze the court's Step V conclusion that Falco

remained capable of performing alternate forms of work. Falco

carried the burden of showing that he was unable to do so.9 The

focus at this stage is properly on Falco's "residual functional

capacity".10

In the case at hand, the ALJ concluded that Falco was capable

of performing sedentary work. Sedentary work is defined as:

lifting no more than 10 pounds at a time and occasionally
1120 C.F.R. § 404.1567(a). 

12Cook v. Heckler, 750 F.2d 391, 395 (5th Cir.1985). 

13Selders, 887 F.2d at 618-19. 

14Scharlow v. Schweiker, 655 F.2d 645, 648-49 (5th

Cir.1981). 

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lifting or carrying articles like docket files, ledgers, and

small tools. * * * Jobs are sedentary if walking and standing

are required occasionally and other sedentary criteria are

met.11

The ALJ's conclusion was in accord with that of the two consulting

physicians who stated that Falco was capable of sitting most of the

day and lifting no more than 20 pounds occasionally or 10 pounds

repetitively. In sum, the evidence supports the ALJ's finding that

Falco could perform alternate work.

V.

Falco argues, however, that the ALJ failed to make and

articulate credibility findings concerning Falco's subjective

complaints of pain. It is true that pain can constitute a

disabling impairment.12 Pain constitutes a disabling condition when

it is "constant, unremitting, and wholly unresponsive to

therapeutic treatment".13 Hence, the law requires the ALJ to make

affirmative findings regarding a claimant's subjective complaints.14

The ALJ fulfilled his obligation by expressly rejecting

Falco's contention that his subjective pain was of a disabling

nature. The ALJ stated:

Falco's subjective symptoms, including pain, are of only a

mild to moderate degree and tolerable to claimant for the

level of work, residual functional capacity and work

limitations as found herein; and claimant's subjective

complaints are found not to be fully credible but somewhat
15See Cotter v. Harris, 642 F.2d 700, 705 (3rd Cir.), reh'g

denied, 650 F.2d 481 (1981). 

16Falco states that "Cotter was cited by the fifth circuit

with approval in Early v. Heckler, 743 F.2d 1002, 1007 (5th

Cir.1984)". Appellant's Brief at 16. This is a direct

misrepresentation. First, the Fifth Circuit has never cited

Cotter for that or any other proposition and, second, Early is a

Third Circuit opinion—the proper cite is Early v. Heckler, 743

F.2d 1002, 1007 (3rd Cir.1984). We caution counsel to avoid

these tactics, particularly if this was an intentional attempt to

deceive the Court, but even if it was merely a sloppy oversight. 

17848 F.2d 638, 642 (5th Cir.1988). 

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exaggerated.

The ALJ was well-founded in this conclusion. The evidence

demonstrated that, while Falco undoubtedly experienced some pain,

he was able to spend a great deal of time watching television or

dining with friends; those activities are inconsistent with

Falco's assertion that he could spend no more than 15-20 minutes

sitting at a time. Moreover, Falco exhibited no external

manifestations of debilitating pain such as marked weight loss. We

are not unsympathetic to Falco's legitimate complaints of pain.

Still, the ALJ's determination that Falco's pain was not so intense

and persistent as to be disabling was supported by substantial

evidence.

Falco urges that we adopt the Third Circuit's rule that an

ALJ must articulate specifically the evidence that supported his

decision and discuss the evidence that was rejected.15 Although we

find that this rigid approach is unnecessary, we have nonetheless

set our own strictures that, we feel, effectively reach the same

result.16 In Abshire v. Bowen17, for example, we explained that,
18We do not sit in de novo review nor may we re-weigh the

evidence. Johnson v. Bowen, 864 F.2d 340, 343-44 (5th Cir.1988). 

Moreover, the ALJ enjoys the benefit of perceiving first hand the

claimant at the hearing. 

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when the evidence clearly favors the claimant, the ALJ must

articulate reasons for rejecting the claimant's subjective

complaints of pain.

Falco acknowledges that the ALJ gave a "pretty exhaustive

list" of his findings. Falco, however, persistently argues that

the ALJ's failure to explain his findings as to five objective

signs of pain—weakness, addiction to narcotics, limping, knee

giveway, and walking limitations—should constitute reversible

error. We do not agree. The ALJ is bound by the rules of this

Court to explain his reasons for rejecting a claimant's complaints

of pain. He did so. That he did not follow formalistic rules in

his articulation compromises no aspect of fairness or accuracy that

this process is designed to ensure.

As to those values, the present matter is a case in point.

The ALJ concluded that several of the symptoms plaguing Falco were

caused not by his injuries, but by his immobility due to his

obesity. The ALJ further indicated that he found the claimant's

subjective complaints exaggerated and not credible. The ALJ found

the medical evidence more persuasive than the claimant's own

testimony. These are precisely the kinds of determinations that

the ALJ is best positioned to make.18

VI.

Last, Falco seeks to have this case remanded for
1942 U.S.C. § 405(g). 

20Haywood v. Sullivan, 888 F.2d 1463, 1471 (5th Cir.1989)

(internal quotations omitted) (emphasis added). Nothing in this

decision, of course, bars the claimant from using the report to

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consideration of additional evidence. We do so only if the

claimant has shown good cause why the evidence in question was not

presented in a prior proceeding.19 If the claimant can show good

cause, he then must show that the evidence is material and that it

is new.

As for good cause, Falco contends that the ALJ falsely

promised that Falco would have an additional opportunity to submit

the evidence but rendered his decision before Falco could present

the evidence. Second, Falco complains that he mailed this new

evidence to the Appeals Council months before it rendered its

decision. The record does not disclose whether the Appeals Council

received the material.

Falco seeks to admit a report by Dr. Unal Gurol restricting

Falco to lifting five pounds, walking and standing only five

minutes at a time, and sitting for only 30 minutes. That report,

however, is dated February 22, 1991—well outside the time frame in

which the claimant applied for or was denied the benefits in

question.

This Court has explicitly rejected this strategy in the past.

We explained that

it is implicit in the materiality requirement that the new

evidence relate to the time period for which benefits were

denied, and that it not concern evidence of a later-acquired

disability or of the subsequent deterioration of the

previously non-disabling condition.20
secure benefits for the time period it does cover. 

10

The most that this report reflects is the fact that Falco's

condition has deteriorated. His request for a remand is rejected.

VII.

The judgment of the district court is AFFIRMED.