* 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opinion should not be published and is not precedent except under the limited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. 

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

_________________

No. 96-31308

Summary Calendar

_________________

SHEROLYN NEVERS,

Plaintiff-Appellant,

versus

JOHN J CALLAHAN, Acting 

Commissioner of Social Security,

Defendant-Appellee.

Appeal from the United States District Court

for the Eastern District of Louisiana

(95-CV-4092-R)

July 3, 1997

Before DAVIS, EMILIO M. GARZA, and STEWART, Circuit Judges.

PER CURIAM:*

Sherolyn Nevers appeals the district court’s grant of summary

judgment in favor of the Commissioner of Social Security, affirming

the denial of her application for Supplemental Security Income. We

affirm.

I

Nevers applied for Supplemental Security Income (“SSI”) in

January 1993, alleging that she had become disabled in 1989 due to
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arthritis, back pain, swelling feet, vocal cord nodules and carpal

tunnel syndrome (“CTS”). After the Social Security Administration

denied her application for benefits, Nevers requested a hearing

before an administrative law judge (“ALJ”). 

The ALJ concluded that Nevers is not disabled and therefore

denied her application. The ALJ found that Nevers is obese and has

CTS and vocal cord nodules, but that these impairments do not

satisfy the requirements for disability in the applicable

regulations. See 20 C.F.R. pt. 404, subpt. P, App. 1. In making

this determination, the ALJ found that although Nevers meets the

weight requirement of the obesity listing, her obesity is not of

listing level severity because the evidence does not also

show that she also has either: x-ray evidence of

arthritis in a weight bearing joint or the spine;

hypertension with diastolic blood pressure persistently

in excess of 100 mmHg [sic]; a history of congestive

heart failure; chronic venous insufficiency; or

respiratory disease with a forced vital capacity equal to

or less than 2.0 liters. 

With respect to Nevers’s CTS, the ALJ found that although evidence

established that she has a bilateral peripheral neuropathy

involving both hands, the record did not demonstrate that her

condition resulted in “significant and persistent disorganization

of the motor function” in her hands as required by the regulations.

The ALJ found that Nevers’s vocal cord condition is not of listing

level severity because her speech, although hoarse, is nevertheless

understandable. 

Because the ALJ found that Nevers’s impairments are not of
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listing level severity, he evaluated her ability to perform her

past relevant work. The ALJ concluded that Nevers is capable of

performing her past work as a telephone solicitor and as a nursing

assistant. Specifically, the ALJ observed that Nevers’s vocal cord

condition responded to treatment and that her ability to speak

quickly returned to within normal limits; that no physician had

reported that Nevers’s neck, back and hand pain and numbness limit

her ability to work; and that the testimony of Nevers and her

mother regarding Nevers’s limitations is insufficient to support

the conclusion that Nevers cannot lift objects weighing up to fifty

pounds or that she has any physical limitations on her ability to

sit, stand and walk. The ALJ found Nevers’s testimony regarding

her pain and other limitations not “credible to the extent

alleged.” 

After the Appeals Council denied Nevers’s request for review,

she filed a complaint in federal district court seeking judicial

review of the ALJ’s decision. A magistrate judge found that

substantial evidence supported the ALJ’s decision and recommended

that the district court grant the Commissioner’s motion for summary

judgment. The district court adopted the magistrate judge’s

recommendation and granted summary judgment for the Commissioner.

Nevers appeals.

II

Our review of the Commissioner’s denial of disability benefits

is limited to determining whether the decision is supported by
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substantial evidence in the record and whether the proper legal

standards were used in evaluating the evidence. Villa v. Sullivan,

895 F.2d 1019, 1021 (5th Cir. 1990). Substantial evidence is more

than a scintilla, less than a preponderance, and is such relevant

evidence as a reasonable mind might accept as adequate to support

a conclusion. Id. at 1021-22. In applying this standard, we must

review the entire record to determine if such evidence is present.

Id. at 1022. However, we may neither reweigh the evidence in the

record nor substitute our judgment for that of the Commissioner.

Id.

The Commissioner evaluates disability claims by answering the

following sequential questions: 

(1) Is the claimant currently working? 

(2) Can the impairment be classified as severe? 

(3) Does the impairment meet or equal a listed impairment

in Appendix 1 of the Commissioner’s regulations? (If so,

disability is automatic.) 

(4) Can the claimant perform past relevant work? 

(5) Can the claimant perform other work? 

20 C.F.R. § 416.920. In this case, the ALJ found that Nevers’s

obesity and CTS do not meet or equal a listed impairment in

Appendix 1 of the regulations and that Nevers can perform her past

relevant work. The ALJ thus concluded that Nevers is not disabled.

Nevers first challenges the ALJ’s determination that her

obesity does not meet or equal a listed impairment in Appendix 1 of

the regulations. She also argues without elaboration that the ALJ

erroneously required her “to prove more than the regulation
 

2 The listed impairments are:

A. History of pain and limitation of motion in any weight-bearing

joint or the lumbosacral spine (on physical examination) associated

with findings on medically acceptable imaging techniques of

arthritis in the affected joint or lumbosacral spine; or

B. Hypertension with diastolic blood pressure persistently in

excess of 100 mm. Hg measured with appropriate size cuff; or

C. History of congestive heart failure manifested by past

evidence of vascular congestion such as hepatomegaly, peripheral or

pulmonary edema; or

D. Chronic venous insufficiency with superficial varicosities in

a lower extremity with pain on weight bearing and persistent edema;

or

E. Respiratory disease with total forced vital capacity equal to

or less than 2.0 L. or a level of hypoxemia at rest equal to or less

than the values specified in Table III-A or III-B or III-C.

20 C.F.R. pt. 404, subpt. P, App. 1, § 9.09.

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requires” for disability as a result of obesity.

To establish obesity as a disability, a claimant must

demonstrate that her weight meets the height-to-weight ratio and

that she has one of several impairments listed in § 9.09 of the

regulations.2 The parties do not dispute that Nevers’s weight

meets the height-to-weight ratio. The ALJ found, however, that

Nevers’s obesity is not of listing level severity because she does

not have one of the additional impairments specified in § 9.09. 

Nevers argues that she meets the additional impairment

described in § 9.09A because one of the x-rays of her left knee

showed osteoarthritis. Although a 1992 x-ray of the left knee

revealed evidence of early osteoarthritis, no evidence in the

record shows limitation of motion in the left knee, as required by

§ 9.09A. X-rays of Nevers’s knees taken at Charity Hospital in

1991 revealed no abnormalities and subsequent examination

demonstrated that her knees were stable. In 1992, when x-rays of
 

3 As noted by the magistrate judge, Dr. Altman’s February 1992

diagnosis of early osteoarthritis contradicts the ALJ’s finding that Nevers did

not present any x-ray evidence of arthritis in a weight-bearing joint or the

spine. The ALJ’s finding, however, does not affect the outcome of the instant

appeal. As discussed above, Nevers does not satisfy § 9.09A’s other requirement

that she have a “history of pain and limitation of motion” in a weight-bearing

joint or the spine.

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Nevers’s left knee revealed evidence of early osteoarthritis, Dr.

Stewart E. Altman did not find any limitation of motion in Nevers’s

left knee. Furthermore, Nevers did not complain of knee pain to

her physicians during treatment after she applied for SSI in

January 1993. Rather, in 1993 she complained to Dr. V. J. Zeringue

of neck and back pain after an automobile accident. In the same

year, Dr. James T. Williams found no evidence of muscular atrophy,

weakness, or sensory deficiency in either of Nevers’s lower

extremities, and Nevers did not complain of pain or limitation of

motion in her left knee. During treatment at Charity Hospital in

November 1994, Nevers complained of neck, wrist and back pain.

Finally, none of Nevers’s physicians characterized her as disabled

as a result of the alleged impairment of her left knee. See Vaughn

v. Shalala, 58 F.3d 129, 131 (5th Cir. 1995) (explaining that fact

that no physician who examined claimant pronounced her disabled

supported ALJ’s decision that claimant was not disabled).3

Based on the foregoing, we conclude that substantial evidence

supports the ALJ’s determination that Nevers’s obesity does not

satisfy the requirements of § 9.09. Furthermore, we find no

indication that the ALJ applied a higher burden of proof to
 

4 Nevers also contends that the district court erroneously stated that

the Social Security Act contains a one-year durational requirement for

impairments. This contention lacks merit.

Section 416.920(d) of the regulations states that a claimant will be found

to be disabled if she has an impairment “which meets the duration requirement and

is listed in appendix 1 or is equal to a listed impairment(s) . . . .” 20 C.F.R.

§ 416.920(d) (emphasis added). The durational requirement is found in the Social

Security Act, 42 U.S.C. § 423(d)(1)(A), which defines “disability” as an

inability 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 . . . .

The district court correctly cited to this section on page four of its order; the

plain language of the section refutes Nevers’s contention of error.

 

5 Disability due to peripheral neuropathy such as CTS requires a

finding of peripheral neuropathy “with disorganization of motor function as

described in [section] 11.04B, in spite of prescribed treatment.” 20 C.F.R. pt.

404, subpt. P, App. 1, § 11.14. Section 11.04B is set forth above. 

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Nevers’s claim for benefits related to obesity than § 9.09 of the

regulations requires. To the contrary, the ALJ properly applied

§ 9.09A and found that Nevers’s obesity simply does not satisfy its

requirements.4 Nevers next challenges the ALJ’s determination that

her CTS does not meet or equal a listed impairment in Appendix 1 of

the regulations. She argues that the ALJ erroneously concluded

that the evidence does not demonstrate that her bilateral CTS has

been associated with “disorganization of motor function” of the

hands as required by § 11.04 of the regulations.5 The relevant

portion § 11.04 requires:

Significant and persistent disorganization of motor

function in two extremities resulting in sustained

disturbance of gross and dexterous movements, or gait and

station.

20 C.F.R. pt. 404, subpt. P, App. 1, § 11.04B.

Nevers contends that she presented evidence demonstrating

limitations in the use of her hands. She points to her testimony
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that her hands become numb, that she sometimes drops things, that

she can only write for short time periods, and that she can’t “lift

[her] arms up really high.”

Despite this testimony, substantial evidence in the record

demonstrates that Nevers’s CTS does not satisfy the requirements of

§ 11.04B. In 1988, Dr. John W. Watermeier found decreased grip

strength in Nevers’s right hand, but no evidence of neurological or

sensory deficiency. In 1989, Dr. Claude S. Williams found Nevers’s

grip strength and sensory appreciation “intact.” Dr. Zeringue, who

treated Nevers for neck, back and hand pain and numbness, initially

recommended carpal tunnel release surgery in December 1993, but

later withdrew the recommendation. Dr. James T. Williams, who

examined Nevers in April 1993, found no muscle atrophy in either

hand. In 1994, although Nevers was diagnosed with CTS at Charity

Hospital, physical examination revealed complete range of motion in

both hands with good strength in flexion and extension in both

wrists. None of the examining physicians placed any restrictions

on Nevers’s activities as a result of the CTS, and none reported

any significant and persistent disorganization of motor function,

as required by § 11.04B. This substantial evidence supports the

ALJ’s conclusion that Nevers’s CTS does not satisfy the

requirements of § 11.04B.

Nevers last argues that the ALJ improperly discounted her

testimony regarding pain and limitations. The ALJ’s decision,

however, reveals that he considered Nevers’s testimony and
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contrasted it to the extensive medical evidence in the record. The

ALJ had no obligation to credit Nevers’s testimony over the

objective evidence in the record. See, e.g., Anthony v. Sullivan,

954 F.2d 289, 295 (5th Cir. 1992) (stating that ALJ need not credit

subjective evidence over conflicting medical evidence); Villa, 895

F.2d at 1024 (“Subjective evidence need not take precedence over

objective evidence.”). We therefore find no error in the ALJ’s

evaluation of Nevers’s testimony.

AFFIRMED.