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

No. 12-30216 Summary Calendar

DAVID LLOYD, 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

(10-CV-920)

Before BENAVIDES, STEWART, and HIGGINSON, Circuit Judges. PER CURIAM: * David Lloyd filed an application for disability insur ance benefits in July 2 0 0 6 , w h i c h claimed that he had been unable to work since November 2005 because of a “disabling condition.” In November 2009, th e C ommissioner rejected Lloyd’s asserted date of the onset of his disability, b u t concluded that Lloyd was disabled beginning on August 1, 2009. Lloyd then unsuccessfully 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 August 8, 2 012 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 for th in 5 T H C IR

. R. 47.5 .4. Case: 12-30216 Document: 00511949832 Page: 1 Date Filed: 08/08/2012No. 12-30216

challenged the Commissioner’s decision in federal district court. F o r the following reasons, we affirm the district court’s judgment. I. A. David Lloyd visited William H. Morrison, M.D., on March 29, 2006 after noticing blood in his urine and experiencing lower back pain. During this visit, Lloyd, who at the time was 48 years old, requ e s t ed an appointment to see a cardiologist. After conducting a physical examination, Dr. Morrison prescribed Cipro and set up an appointment with Assad Mouhaffel, M.D. Dr. Mouhaffe l e xamined Lloyd on May 1, 2006, and noted that Lloyd complained of chest pain, shortness of breath, easy fatigability, and nausea. Later that week, Dr. Mouhaffel conducted a nuclear stress test. According to Dr. Mouhaffel’s notes, the result of Lloyd’s stress test was abnormal, and Lloyd was diagnosed with a ventricular septal defect. 1 App r o ximately two months later, on July 5, 2006, Lloyd filed an application for disability insurance benefits. In his application, L l o yd stated that he had been unable to work “because of his disabling condition” since November 1, 2005. On August 24, 2006, consultative examiner Ken Barrick, M.D., examined Lloyd. In his report, Dr. Barrick acknowledged Lloyd’s congenital heart condition; indicated that Lloyd was complaining o f daily chest pain, shortness of breath, and numbness in both arms and both legs; and noted that Lloyd claimed to have had a heart attack in 2000. In concluding his report, Dr. Barrick obse rved that, although Lloyd complained of functional problems due to his

“A ventr icula r se pt al def ect (VSD ), als o call ed a hole in the hear t, is a com mo n hear t 1 def ect that ’s pr es ent at birt h (c ongenit al)

. The def ect involves an ope ning (ho le) in the heart for mi ng betw een theheart’ s low er cham bers , allo wi ng oxygen-ric h an d oxygen-p oorbl oodt o mix.” Mayo Clinic , htt p: //ww w. mayo clini c. com/he alth/ventr icular- sept al- defe ct/DS 0 0 6 1 4 (l a st visi tedJul y 16, 201 2). 2 Case: 12-30216 Document: 00511949832 Page: 2 Date Filed: 08/08/2012No. 12-30216

heart condition, there were “no clinical exam findings to support [his] claim.” Additionally, Dr. Barrick questioned Lloyd’s assertion that he had experienced

a heart attack on the grounds that no medical documentation supported Lloyd’s assertion. Dr. Barrick concluded that despite Lloyd’s complaints, he believed that Lloyd should have been “able to sit, walk, and/or stand for a full workday with adequate rest breaks, lift/carry objects of at least 20 pounds, hold a conversation, respond appropriately to questions, [and] carry out and remember instructions.” The following month, Susan Snell, a medical consultant, completed a Physical Residual Functional Capacity Assessment in connection with Lloyd’s application for disability benefits. In this assessment, Snell indicated that Lloyd could occasionally lift 50 pounds, frequently lift 25 pou n d s , a n d stand or walk with normal breaks for a total of about 8 hours in an 8-hour workday. Despite t he evidence in Lloyd’s file revealing a minor heart abnormality and a t y p i c a l chest p a i n , S n e ll concluded that the evidence before her did not establish that Lloyd’s physical restrictions were as serious as Lloyd described them. Lloyd was admitted to the hospital on April 15, 2007 after complaining of chest pain. In his discharge report, Lloyd’s physician, Dr. Mouhaffel, noted that he had previously seen Lloyd. This report also indicated that Lloyd’s chest pain “ha[d] resolved.” At the end of the ensuing month, Dr. Mouhaffel filled out a Residual Functional Capacity Questionnaire that was sent to him. In this form , w h i ch

was submitted in May 2007, Dr. Mouhaffel restated his previous VSD diagnosis, and noted that Lloy d exp eri e nc ed fatigue, nausea, weakness, and had difficulties remembering. He also opined that Lloyd needed to shift positions at will from sitting, standing, or walking; take unscheduled rest periods during the day; and elevate his legs with prolonged sitting. Dr. Mouhaffel also indicated that Lloyd could only rarely lift 20 pounds, climb ladders, or go up stairs. According to this

3 Case: 12-30216 Document: 00511949832 Page: 3 Date Filed: 08/08/2012No. 12-30216

form, Dr. Mouhaffel estimated that, on average, Lloyd would be ill about four days a month as a result of his ailments. B. After hi s ap p lic atio n w a s initially denied, Lloyd requested a hearing before

an administrative law judge. His request for a hearing was granted, and Lloyd received his hearing on August 4, 2008. During this hearing , L loyd testified about his physical limitations, the consequences of physical overexer t i o n , and the blackouts he experienced. His wife also provided testimon y r egarding the blackouts. Two months after the hearing, the administrative law judge issued a written decision denying Lloyd’s application for benefits. Lloyd subsequently appealed the denial of benefits to the Appeals Council. On April 24, 2009, the Appeals Council vacated t h e hearing decision and remanded Lloyd’s case back to an administrative law judge fo r clarification of the relationship between Dr. Mouhaffel’s May 2006 treatment notes and his responses to the May 2007 Residual Functional Capacity Questionnaire. In response to the remand order, the Social Security Administration sent Dr. Mouhaffel a letter requesting that he provide a “[m]edical records update.” Dr. Mouhaffel re p lied to this request in July 2009 by completing a Social Security Administration form entitled “Medical Source Statement of Ability To Do Work-Related Activities (Physical).” On the first page of t his form, Dr. Mouhaffel provided a handwritten notation indicating that Lloyd had not been t o h i s o f f ice since December 2007, and stating that his responses to the for m were based on the information available to him in December 2007. In this form, Dr

. M ouhaffel indicated that Lloyd could continuously lift and carry 20 pounds; sit, stand, and walk without interruption for four hours; and fre q u e n t l y perform various postural activities, such as climbing stairs, crouching, and crawling. Dr. Mouhaffel also opin e d t h at Lloyd could perform

4 Case: 12-30216 Document: 00511949832 Page: 4 Date Filed: 08/08/2012No. 12-30216

activities like shopping, walking at a reasonable pace on rough or uneven surfaces, and using public transportation. The month after Dr. Mouhaffel completed this form, Lloyd was treated in the emergency room for complaints of chest pain and shortness of breath. After being admitted, Lloyd was stabilized on medications and released on August 18, 2009. C. An administrative law judge conducted a second hearing in connection with Lloyd’s application on September 10, 2009. At this hearing, Lloyd testified about his past work experie n c e , h i s various physical ailments, and why those ailments prevented him from working. Along with testimony from Lloyd’s wife, the administrative law judge also heard testim o ny from Charles Smith, a vocational expert, who provided responses to vario u s hyp o th etic al s that explored the boundaries of the type of work Lloyd could perform. In November 2009, the administrative law judge issued a written decision in which he concluded that Lloyd was disabled beginning on August 1, 2009. In arriving at this conclusion, the administrative law judg e rejected Lloyd’s assertion that he was disabled beginning o n N ovember 1, 2005. Notably, the administrative law judge determined that prior to August 1, 2009, Lloyd had the residual functional capacity to perform certain “light work,” a s th e term is defined by the applicable regulations. To support this determination, the administrative law judge referenced various portions of the testimony Lloyd provided, along with the medical documentation in the record. After reviewing the documentation, the administrative law judge opined that “any possible previous inconsistencies in the medical records” w e r e resolved by the post-remand “Medical Source Statement” form Dr. M o uhaffel filled out in July 2009. In addition, the administrative law judge stated that the July 2009 form was not only more

5 Case: 12-30216 Document: 00511949832 Page: 5 Date Filed: 08/08/2012No. 12-30216

consistent with D r . M o uhaffel’s own records, “which had failed to reflect any limitations” prior to the May 2007 Residual Functional Capacity Questionnaire, but was also in greater harmony with the reports provided by Dr. Barrick and Susan Snell. In short, the administrative law judge co n c luded that his determination that Lloyd could perf o rm certain light work prior to August 1, 2009 was supported by the medical documentation contained in the record. It was on this basis that he ruled that Lloyd was not disabled from his alleged onset date of November 1, 2005 through August 1, 2009. Lloyd subsequently sought revie w of this ruling in federal court. On December 7, 2011, a magistrate judge recommended that the administrative law judge’s decision be affirmed. The following month, the district court concluded that the magistrate judge’s recommendation w a s correct, affirmed the administrative l a w j u d g e’s decision, and dismissed Lloyd’s suit. Lloyd now appeals the district court’s judgment. II.

“I n r evi ewin g th e C o m missioner’ s d e t e r min atio n , w e c o n s i d e r o nly wh e th e r the Commissioner applied the proper legal standards and whether substantial evidence in the record supports the decision to deny benefits.” Audler v. Astrue , 501 F.3d 446, 447 (5th Cir. 2007) (citation omitted). “Substantial evidence is ‘more than a mere scintilla. I t m e ans such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’” Id. (citing Richardson

v. Perales , 402 U.S. 389, 401 (1971)). When conducting this review, “[w]e may not reweigh the evi d e n c e or substitute our judgment for that of the Commissioner.” Id. (citation omitted). “Conflict s in the evidence are for the [Commissioner] and not the courts to resolve.” Brown v. Apfel , 192 F.3d 492, 496 (5th Cir. 1999) (internal quotation marks and citation omitted).

6 Case: 12-30216 Document: 00511949832 Page: 6 Date Filed: 08/08/2012No. 12-30216

On appeal, Lloyd contends that the r e is “no substantial evidence” to support the adverse portion of the administrative law judge’s decision. Before addressing this contention, we will first lay out the applicable legal framework. “The Social Security Act provides for the payment of insurance benefits to persons who have contributed to the program and who suffer from a physical or

men t a l d i s ability.” Loza v. Apfel , 219 F.3d 378, 390 (5th Cir. 2000) (citation omitted). The Commissioner applies a five-step sequential evaluation process for deciding whether a n i n d ividual is disabled. “The first two steps involve thres h o ld determinations that the claimant is not presently engaged in substanti a l g a i nful activity and has an impairment or combination of impairments which significantly limits his physical or mental ability to do basic work activities.” Id. (citing 20 C.F.R. §§ 404.1520, 404.1520(b)-(c), 416.920, 416

. 9 20(b)-(c)). “In the third step, the medical evidence of the claimant’s impairment(s) is compared to a list of impairments presumed severe enough to preclude any gainful activity.” Id. (citing 20 C.F.R. pt. 404, subpt. P, App. 1 (pt. A) (1999)). “If the claimant’s impairment matches or is equal to one of the listed impairments, he qualifies f o r b e n e fits without further inquiry.” Id. (citing 20 C.F.R. §§ 404.1520(d), 416.920(d)). If the person cannot qualify under the listings, the evaluation proceeds to the fourth and fifth steps. Under the fourth step, the Commissioner must consider whether “the i m pairment prevents the claimant from doing past relevant work. ” Newton v. Apfel , 209 F.3d 448, 453 (5th Cir. 2000) (citing 20 C.F.R. § 404.1520). “The claimant bears the burden o f proof on the first four steps and the burden shifts to the Commissioner for the fifth step.” Id. F or the fifth step, “the Commissioner must show that the claima n t i s capable of engaging in some type of alternative work that exists in the national economy.” Id. (citing Chaparro v. Bowen , 815 F.2d 1008, 1010 (5th Cir. 1987)).

7 Case: 12-30216 Document: 00511949832 Page: 7 Date Filed: 08/08/2012No. 12-30216

“Once the Commissioner makes this showing, the burden of proof shifts back to the claimant to rebut this finding.” Id. (citation omitted). Here, Lloyd challenges the administrative law judge’s conclusion at step five of this analysis. According to him, the administrative law judge’s finding at step five was impermissibly based on the post-remand “Medical S o urce Statement” form Dr. Mouhaffel filled out in July 2009. This form, he argues, has “several defects,” such as conflicting with Dr. Mouhaffel’s May 2007 report and being made without examining Lloyd, which undermine its r e l iability and credib ility . Give n these alleged defects, Lloyd maintains that the administrative law judge’s reliance on this report was improper. Without this re p ort, Lloyd

a s serts that there is “no substantial evidence” in the record to suppo r t th e administrative law judge’s finding at step 5 that Lloyd could perfor m certain light work prior to August 1, 2009. We reject Lloyd’s assertion. In conducting our review, we gran t great deference to the administrative l a w j u d g e’s decision and can only disturb his determination if we cannot find substantial evidence in the record to support his decision, or if we conclude that he made an error of law. Leggett v. Chater , 67 F.3d 558, 564 (5th Cir. 1995). Contrary to what Lloyd contend s , th e administrative law judge’s decision with respect to step 5 of the applicable analysis is supported by substantial evidence. Dr. Mouhaffel’s July 2009 report, combined with the reports provided by Dr. Barrick and Susan Snell, provide a basis for a reasonable mind to conclude that Lloyd was able to perform certain

8 Case: 12-30216 Document: 00511949832 Page: 8 Date Filed: 08/08/2012No. 12-30216

light work prior t o Au gust 1, 2009. We are therefore unable to unsettle the 2 administrative law judge’s decision. At its core, Lloyd’s appeal asks us to place the content of Dr. Mouhaffel’s May 2007 report above the rest of the administrative record. Doing so, however, would be tantamount to resolving a conflict in the evidence in his favor

. Our

case law makes clear that we are unable to satisfy Lloyd’s request. See Brown , 192 F.3d at 496 (noting that conflicts in the evidence are for the Commissioner, and not the courts, to resolve). III. For these reasons, we AFFIRM the district court’s judgment.

Theap pli cabler egulat ions d efi ne “lightw ork” as fol low s: 2 (b) Light wo rk

. Light wo rk invol v e s lif ting no mo re than 20 poun ds at a tim e wi th fr equent lif

ting or car rying of objec ts we ighing up to 1 0 poun ds

. Even thou gh t h e w e i gh t lif ted may be very litt le, a job is in this cat egory wh en it requ ires a good dea l of walk ing or stand ing, or wh en it involves sit ting mo st of the tim e wi th so me pus hing and pull ing of arm or leg cont rols

. To be cons ide red cap able of per for mi ng a full or wi de range of light wo rk , y ou mus t have the abilit y to do sub st antia lly all of th es e activitie s. If so me one can do light wo rk , we det erm ine that he or she can als o do s ede ntary wo rk , unles s ther e are add itio nal lim itin g fa c t o r s suc h as los s of fine dext erit y or inabil ity to sit for long per iod s of tim e. 20 C. F.R. 404 .156 7(b)

. 9 Case: 12-30216 Document: 00511949832 Page: 9 Date Filed: 08/08/2012