* 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this opinion should not be published and is not precedent except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

FILED

February 15, 2007

Charles R. Fulbruge III

Clerk

UNITED STATES COURT OF APPEALS

FIFTH CIRCUIT

No. 06-30909

Summary Calendar

WILLIAM HENRY CANTRELL,

Plaintiff-Appellant,

versus

LINDA S MCMAHON, ACTING COMMISSIONER OF SOCIAL SECURITY,

Defendant-Appellee.

Appeal from the United States District Court 

for the Western District of Louisiana

(5:05-CV-868)

Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.

PER CURIAM:*

William Henry Cantrell challenges the Commissioner of the

Social Security Administration’s final decision denying his claim

for disability benefits, which was affirmed by the district court.

Cantrell claims: in finding he was not disabled, the

Administrative Law Judge (ALJ) improperly defined “moderate” in

relation to mental limitations; and the Appeals Council failed to

consider evidence he submitted that was allegedly new and material

and would provide a basis for changing the decision of the ALJ.
2

As an applicant for disability benefits, Cantrell bore the

initial burden of proving he was disabled by establishing a

physical or mental impairment prevented him from engaging in

substantial gainful activity for at least 12 months. 42 U.S.C. §

423. Once he satisfied this burden, the Secretary bore the burden

of establishing he did not have any impairments significantly

limiting his physical or mental ability to do work activities, and

therefore was not disabled. See 20 C.F.R. §§ 404.1520(c) and

416.920(c); Johnson v. Bowen, 864 F.2d 340, 344 (5th Cir. 1988). 

The ALJ found Cantrell had the residual functional capacity

(RFC) for a full range of medium work, with, inter alia, “moderate”

limitations in his ability to maintain attention and concentration

for extended periods, to interact with the general public, and to

accept instructions and respond appropriately to supervisors. This

determination was based in part on the reports from a state

consultant’s assessment of Cantrell’s ability to work. A

vocational expert testified that an individual with Cantrell’s RFC

could not perform his past work as a sales agent but could perform

his past work as a gambling dealer. The ALJ defined “moderate”,

both in his decision and in the interrogatories directed to the

vocational expert, as meaning “there are some moderate limitations,

but the person can still perform the task satisfactorily”. 

After the ALJ issued his decision finding him not disabled,

Cantrell submitted additional evidence to the Appeals Council
3

regarding treatment he received for two medical conditions. (The

evidence had apparently been inadvertently left out of the

administrative transcript. Accordingly, the Agency filed a

supplemental transcript.) The Appeals Council reviews a case if,

inter alia, it receives new and material evidence and the decision

is contrary to the weight of all the evidence in the record. 20

C.F.R. § 404.970(b). The Appeals Council denied Cantrell’s request

for review in a written order.

Pursuant to 42 U.S.C. § 405(g), our court reviews whether

substantial record evidence supports the Commissioner’s final

decision and whether, in reaching it, the Commissioner applied

proper legal standards. Perez v. Barnhart, 415 F.3d 457, 461 (5th

Cir. 2005). Substantial evidence is more than a mere scintilla,

less than a preponderance, and “‘such relevant evidence as a

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

Id. (quoting Greenspan v. Shalala, 38 F.3d 232, 236 (5th Cir.

1994)). 

Cantrell claims that, because “moderate” falls between “mild”

and “marked”, which are defined in the regulations, it should

indicate a greater degree of limitation than that in the ALJ’s

definition. Although the term “moderate” is not defined in the

regulations or the Program Operations Manual System, Cantrell does

not show the definition used by the ALJ conflicts with either.

“Marked” is defined as “more than moderate but less than extreme”.
4

20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00(c). Accordingly,

“moderate” is less severe and was not used in a manner inconsistent

with the regulations. Moreover, there is substantial evidence the

vocational expert understood the degree of limitation at issue in

assessing what level of work a person with Cantrell’s RFC could

perform.

The record also contains substantial evidence the Appeals

Council considered all of the evidence, including the post-decision

supplemental records submitted by Cantrell, in denying his request

for review. In its order, the Appeals Council specifically stated

it had considered the additional evidence and found it did not

warrant changing the ALJ’s disability decision. Furthermore, the

final no-disability decision is supported by substantial evidence:

Cantrell has not shown no credible choices or medical evidence

support the decision. See Hames v. Heckler, 707 F.2d 162, 164 (5th

Cir. 1983) (“‘[N]o substantial evidence’ will be found only where

there is a ‘conspicuous absence of credible choices’ or ‘no

contrary medical evidence’”. (citations omitted)).

AFFIRMED